Current projects
home > Law reform projects > Similar fact evidence and the Moorov doctrine
Similar fact evidence and the Moorov doctrine
Commissioner
Patrick Layden, QC, TD
Team members
Mr Alastair Smith, Project Manager
Mr Laurence Diver, Legal Assistant
On 20 November 2007, the Scottish Ministers invited the Commission -
"To consider the law relating to:
- Judicial rulings that can bring a solemn case to an end without the verdict of a jury, and rights of appeal against such;
- The principle of double jeopardy, and whether there should be exceptions to it;
- Admissibility of evidence of bad character or of previous convictions, and of similar fact evidence; and
- The Moorov doctrine."
We published our Report on Crown Appeals (Scot Law Com No 212) in July 2008, and our Report on Double Jeopardy (Scot Law Com No 218) in December 2009. This project deals with the remaining aspects of the Scottish Ministers' reference, namely the admissibility of evidence of bad character or of previous convictions, and of similar fact evidence, and the Moorov doctrine.
As we use the term, "similar fact evidence" is evidence relating to misconduct other than that with which the accused is charged, but which may be seen as rendering it more likely that the accused committed that offence. Under this broad definition, evidence of bad character or of previous convictions may be seen as examples of similar fact evidence. At present, it is not generally possible for the prosecution to present evidence of the commission of offences which are not themselves charged, or which do not arise as part of the facts and circumstances surrounding a charged offence. We shall consider whether the present law is satisfactory, or whether it should be changed to allow the introduction, in certain circumstances, of evidence of the accused's uncharged misconduct, perhaps including evidence of the accused's having been accused, acquitted or convicted of similar offences.
The Moorov doctrine is a mechanism which applies where a person is accused of two or more separate offences, connected in time and circumstances. In such a case, where each of the offences charged is spoken to by a single credible witness, that evidence may corroborate, and be corroborated by, the other single witnesses, so as to enable the conviction of the accused on all the charges. In order for the doctrine to operate, each of the offences must be competently charged. It is not possible to rely for corroboration of a charge upon evidence of conduct, however similar, in respect of which the accused has previously been convicted or acquitted. The operation of the doctrine involves similar issues to cases of similar fact evidence, since it permits evidence relating to one alleged crime to be used in support of a charge relating to a separate incident. We shall consider the origins and present state of the doctrine, and whether any reform is required. In particular, we shall consider whether it would be appropriate, as part of a wider reform of the law of similar fact evidence, to allow corroboration to be found in evidence of similar offences which cannot be tried on the same indictment, such as, for example, offences in relation to which the accused has already been tried and acquitted or convicted.
We aim to publish a discussion paper in late Spring 2010, to be followed by a 3 month public consultation.
For more information, please contact: alastair.smith@scotlawcom.gov.uk
Page last updated: 12 January 2010
