Those of you who tuned in to ‘The Trial of Alex Salmond’ last week would no doubt have heard about a ‘Moorov Doctrine’*. The programme did not explore this tenet in any detail, nor did it even explain what it was. I thought, therefore, that some might welcome a blog dedicated to it as I try to unravel it for you.
The doctrine itself falls under the Scots Law of corroboration. That is to say ‘other’ (independent) evidence which confirms or supports the statement of another. Scots Law includes a unique requirement that all accusations be ‘corroborated’. Here, in Scotland, we have our own distinct legal system which includes protections for suspects and which differ from elsewhere within the UK. One such unique requirement is the need for corroboration of the ‘essential facts’ (the facta probanda) in a case against an accused. Ordinarily, there must be two separate sources of evidence before a case proceeds to trial. Therefore, it follows that an accused cannot be convicted on the word of just one person alone with no ‘other’ supporting evidence.
It was obvious that, with particular reference to sexual assault and rape cases, this would present a major problem as invariably there are no other persons present and often no other evidence available, sometimes even including forensic (evidence). These cases were reliant on a jury siding with one party’s version of events over another’s and it was highly unsatisfactory.
I suspect many readers, including my past and present law students, will never have heard of Mary Watt. But, in an unsavoury episode in which she was involved not far short of 100 years ago, she would (no doubt unwittingly) change the face of Scots law forever.
Ms. Watt began work as a draper for the firm of ‘Samuel Moorov and Son’ who had premises in Argyle Street, Glasgow. She was part of a number of young women recruited by the firm at a time when work generally was very hard to come by. That working relationship quickly turned sour when Ms. Watt accused the owner, Samuel Moorov of assault and, in particular, sexual assault. She accused him of trying to kiss her, putting his hand down the front of her skirt and lifting her skirt up. In a retaliatory move, Moorov suspended her and said this was due to ‘dull trade’ (no business).
Note the date here (1929/30) – this was decades before any #MeToo movement had been initiated and at a time when such predatory and derogatory treatment against women was all too common. Nor was it uncommon for such allegations to be made against Moorov. His exploitative and brutish behaviour against his female staff had made him somewhat notorious. Some, to their enormous credit, literally fought him back, physically, whilst many others banded together to ensure no female was left alone in his company.
Mary Watt finally summoned up the courage to take the matter to the Police. When she did so and made the very serious allegations that she did, a remarkable 18 other females came forward. The problem, as discussed above, was that there were no other witnesses to the actual commission of any crime (as you would expect in sexual assault cases when generally there are just two parties present).
Consequently, this made it nigh on impossible for any prosecution to proceed , as the normal rules regarding ‘corroboration’ would not be met.
In order to convict anyone of a crime in Scotland you need two independent pieces of evidence for the essential facts of the case. So in terms of a sexual assault case what we need to prove is firstly that an assault took place , and secondly it took place without consent.
The complainer can tell us that the assault took place without their consent, but where is the second source of evidence? Then, as now, there frequently isn’t any. So in a classical corroboration analysis, these cases simply could not be prosecuted.
Notwithstanding these hurdles and obstacles, Moorov was charged and the matter did proceed to trial. There, the Crown, for the first time, attempted a concept known as ‘similar fact evidence’. The argument was led that if several complainers testified to similar assaults by Moorov over a short period of time they could corroborate each other. This is clearly a deviation from the usual principle of corroboration and marked a fairly landslide moment in Scottish Criminal Law.
Perhaps remarkably (some may argue) the tactic was successful and Moorov was found guilty of seven counts of assault and nine of indecent assault. He was sentenced to ‘4 years hard labour’. Unsurprisingly, he appealed, but interestingly all counts of indecent assault were upheld but the seven assault charges were quashed. Moorov’s sentence was reduced to 12 months imprisonment with no hard labour.
The seminal impact of this case, from nearly a century ago, is still felt in courtrooms across Scotland to this day. The method of corroboration became known as the ‘Moorov Doctrine‘ and is used on a daily basis in cases of sexual assault and historical abuse. It is not without criticism from lawyers and the judiciary alike, with comments such as ‘the Moorov straitjacket’ being used in criticism. Equally though there are some that applaud what Scots law has achieved in creating this doctrine which has cured many of the problems seen in other jurisdictions when trying to prosecute similar cases.
Yet another fascinating area (well certainly to an obsessive of the law like yours truly 😉) and which shows no signs of going anywhere anytime soon.
* Moorov -v- HMA (1930) JC 68, SLT 596