Similar fact evidence and the Moorov doctrine
Patrick Layden, QC, TD
Alastair Smith, Project Manager
Andrew Blain, 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."
This project has now dealt 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. We published a Discussion Paper on Similar Fact Evidence and the Moorov Doctrine (DP 145) on 21 December 2010, followed by our final Report (Scot Law Com No 229) and accompanying draft Bill in May 2012. A News Release is also available. On 23 May 2012, the Cabinet Secretary for Justice, Kenny MacAskill MSP, wrote to the Commission's chairman to advise that the Scottish Government would take time to consider the Report, with a view to legislating for change at an appropriate opportunity.
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 have considered 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 have considered the origins and present state of the doctrine, and whether any reform is required. In particular, we have considered 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.
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