(SCOT LAW COM No 229) Report on Similar Fact Evidence and the Moorov Doctrine report Report on Similar Fact Evidence and the Moorov Doctrine Report on a reference under section 3(1)(e) of the Law Commissions Act 1965 Laid before the Scottish Parliament by the Scottish Ministers May 2012 SCOT LAW COM No 229 SG/2012/81 EDINBURGH: The Stationery Office £38.50 © Crown copyright 2012 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/ or email: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. Any copyright enquiries regarding this publication should be sent to us at [email protected]. ISBN: 978-0-10-888265-4 Printed in the UK for The Stationery Office Limited on behalf of the Queen’s Printer for Scotland. 05/12 Cover printed on 75% recycled paper Text printed on 100% recycled paper ii The Scottish Law Commission was set up by section 2 of the Law Commissions Act 19651 for the purpose of promoting the reform of the law of Scotland. The Commissioners2 are: Laura J Dunlop, QC Patrick Layden, QC TD Professor Hector L MacQueen Dr Andrew J M Steven. The Chief Executive of the Commission is Malcolm McMillan. Its offices are at 140 Causewayside, Edinburgh EH9 1PR. Tel: 0131 668 2131 Fax: 0131 662 4900 Email: [email protected] Or via our website at http://www.scotlawcom.gov.uk/contact-us NOTES 1. For those wishing further copies of this paper it may be downloaded from our website or purchased from TSO (http://www.tsoshop.co.uk/). 2. Please note that all hyperlinks in this document were checked for accuracy at the time of final draft. 3. 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You may wish to note that the pdf version of this document available on our website has been tagged for accessibility. 1 Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (SI 1999/1820). 2 As at 16 April 2012. iii SCOTTISH LAW COMMISSION Report on a reference under section 3(1)(e) of the Law Commissions Act 1965 Report on Similar Fact Evidence and the Moorov Doctrine To: Kenny MacAskill MSP, Cabinet Secretary for Justice We have the honour to submit to the Scottish Ministers our Report on Similar Fact Evidence and the Moorov Doctrine (Signed) LAURA J DUNLOP PATRICK LAYDEN HECTOR L MACQUEEN ANDREW J M STEVEN Malcolm McMillan, Chief Executive 16 April 2012 iv Contents Paragraph Page Abbreviations x Chapter 1 Introduction Our Remit 1.1 1 The scope of the reference: definition of terms 1.4 2 "Evidence of bad character" 1.5 2 "Similar fact evidence" 1.6 2 The Moorov doctrine 1.7 2 The Howden doctrine 1.8 3 General Summary 1.9 3 The Structure of this Report 1.17 4 Corroboration and Lord Carloway's Report 1.24 5 Legislative Competence 1.27 6 Impact Assessment 1.33 6 Chapter 2 Need for Reform of the Law of Criminal Evidence Our guiding principles 2.2 8 The need for reform 2.4 9 Consultees' responses 2.6 9 Common law good, statute law bad? 2.12 11 The character of the restatement 2.29 14 Chapter 3 Preliminary matters Introduction 3.2 16 Relevance 3.3 16 Relevance is independent of procedural history 3.4 16 What is meant by "relevance"? 3.7 16 Relevance to what? 3.8 17 What is meant by "admissibility"? 3.16 19 Is irrelevant evidence ever admissible? 3.19 20 When is relevant evidence inadmissible? 3.21 20 The evidence of a spouse 3.23 21 Legal professional privilege 3.24 21 Hearsay 3.25 22 Statements made in precognition 3.26 22 Evidence unfairly obtained 3.27 23 What can evidence be used for? 3.28 23 Should the use of relevant evidence of a particular nature be restricted to particular issues and excluded from others? 3.29 23 v Contents (cont'd) Paragraph Page Chapter 3 Cont'd Can evidence admitted in relation to one charge be excluded from consideration in relation to another? 3.31 24 Evidence of co-accused 3.33 25 Can the jury be trusted? 3.34 25 Corroboration 3.44 27 General 3.44 27 If there were no requirement of corroboration, would it still be a relevant consideration for this Report? 3.46 27 The present law 3.48 28 All crucial facts must be corroborated 3.55 30 How does evidence corroborate other evidence? 3.57 31 Chapter 4 Comparative Law Introduction 4.2 33 The Common Background 4.6 34 Admissibility of Similar Fact Evidence 4.9 35 Canada 4.9 35 Australia 4.14 37 Common law 4.15 37 Statute 4.21 38 New Zealand 4.28 40 England and Wales 4.34 41 The Criminal Justice Act 2003 4.37 42 "Gateway (c) – It is important explanatory evidence" 4.41 43 "Gateway (d) – Evidence relevant to 'an important matter between the defendant and the prosecution'" 4.42 44 "Gateway (e) – Evidence which has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant" 4.46 45 Bad Character Evidence in Practice 4.48 45 Previous Convictions 4.48 45 England and Wales 4.49 45 Canada 4.51 46 New Zealand 4.52 46 Australia 4.53 46 Previous acquittals 4.54 46 Previous extra-territorial convictions 4.57 47 Previous non-criminal misconduct 4.58 47 Raising the Character Issue 4.60 48 Separation of Charges 4.64 48 Cross-Admissibility 4.67 49 vi Contents (cont'd) Paragraph Page Chapter 4 Cont'd Purpose for Which Bad Character Evidence May Be Used 4.68 49 England and Wales 4.68 49 New Zealand 4.71 51 Canada 4.72 51 Australia 4.73 51 Satellite Trials and Rehearing Evidence 4.74 51 England and Wales 4.74 51 New Zealand 4.78 53 Canada 4.79 53 Australia 4.80 53 Conclusion 4.81 53 Chapter 5 Bad Character, Similar Fact Evidence and Propensity Bad Character 5.2 55 Similar Fact Evidence 5.5 56 What is "similar fact evidence"? 5.5 56 Similar fact evidence in civil cases 5.9 58 Relevance and collateral matters 5.19 62 Prejudicial effect versus probative value 5.28 64 Propensity 5.55 71 What inference can be drawn from similar fact evidence, or evidence of propensity? 5.63 74 Chapter 6 The Moorov and Howden doctrines Moorov 6.5 78 The development of Moorov 6.8 79 The need to show a "course of conduct" 6.10 79 The use of evidence relating to charges of which the accused has been acquitted 6.16 81 Statutory restatement of Moorov and Howden? 6.23 84 Limitations on Moorov 6.33 85 The "previous acquittal case" 6.35 86 Discussion 6.42 87 The "previous conviction case" 6.48 89 Discussion 6.55 91 The "no jurisdiction case" 6.56 91 Discussion 6.61 93 Further Limitations on Moorov 6.68 94 Time limits 6.68 94 vii Contents (cont'd) Paragraph Page Chapter 6 Cont'd The need to show a "course of conduct" 6.73 95 Corroboration between greater and lesser charges 6.82 98 Howden v HM Advocate 6.88 99 Conclusion 6.95 102 Chapter 7 Use of Previous Convictions Introduction 7.1 103 General 7.2 103 Background 7.3 103 Effect of the legislation – 1887-1898 7.4 106 1898-1995 7.6 106 1995-2002 7.8 106 2002-date 7.9 106 Summary 7.10 107 Cases where evidence of previous convictions is admissible in proof of current offence 7.11 107 Cases where accused has given evidence 7.12 107 Cases where the accused does not give evidence 7.22 110 Relevance and presumption in favour of disclosure 7.23 110 Issue 1 – General effect of a change on the right to a fair trial 7.31 111 Issue 2 – What would evidence of previous convictions prove? 7.41 114 What is the effect of the evidence? 7.46 115 Similar fact evidence generally 7.58 118 Other dicta as to corroborative value of evidence of previous convictions 7.59 118 Conclusion 7.64 120 Issue 3 – What practical difference would a change make? 7.65 120 Issue 4 – Which previous convictions would be relevant? 7.70 121 Issue 5 – What would be involved, in practical terms, in the proof of previous convictions 7.85 125 Should it be competent for the accused to challenge the validity of the conviction? 7.91 127 Issue 6 – Would it be necessary to balance probative value against prejudicial effect? 7.99 129 Procedure 7.103 129 Notice of intention to lead evidence as to previous convictions 7.104 130 Conclusion 7.110 131 viii Contents (cont'd) Paragraph Page Chapter 8 List of recommendations 132 Appendix A Draft Criminal Evidence (Scotland) Bill 136 Appendix B Extracts from legislation 148 Appendix C Advisory Group and Judicial Reference Group 161 Appendix D List of Respondents 162 ix Abbreviations 1887 Act Criminal Procedure (Scotland) Act 1887 1898 Act Criminal Evidence Act 1898 1926 Act Criminal Appeal (Scotland) Act 1926 1975 Act Criminal Procedure (Scotland) Act 1975 1995 Act Criminal Procedure (Scotland) Act 1995 2002 Act Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 2003 Act Criminal Justice Act 2003 2010 Act Criminal Justice and Licensing (Scotland) Act 2010 2011 Act Double Jeopardy (Scotland) Act 2011 The Convention The European Convention on Human Rights ECHR The Crown Office The Crown Office and Procurator Fiscal Service The Faculty The Faculty of Advocates The judges The Senators of the College of Justice The Law Society The Criminal Law Committee of the Law Society of Scotland x Chapter 1 – Introduction OUR REMIT 1.1 On 20 November 2007 we received a reference1 from the Cabinet Secretary for Justice, Mr Kenny MacAskill MSP, asking us: "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 doctrine2; and to make any appropriate recommendations for reform." We published a Discussion Paper3 and Report4 on Crown Appeals in 2008, which dealt with the first part of the reference.