Similar fact evidence and the Moorov Doctrine

The Scottish Law Commission has published its Discussion Paper on Similar Fact Evidence and the Moorov Doctrine (DP 145). 

The Discussion Paper sets out the present law in Scotland as to when it is permissible, in proving a criminal charge, to lead evidence showing that the accused has committed other crimes, or is otherwise of bad character. In relation to evidence of previous convictions, it considers whether the present statutory rules are satisfactory, and whether such evidence should be more generally admissible. 

It also considers the Moorov doctrine, whereby the evidence of a single witness to one offence may corroborate, and be corroborated by, the evidence of a single witness to another offence which is the subject of a charge in the same trial. The Commission suggests that the Moorov doctrine is a valuable one and asks whether it should be restated in statute.

Patrick Layden QC, the lead Commissioner on the project, said: 

"The rules of criminal evidence should help ensure that innocent people are not convicted. But they should not stand in the way of convicting the guilty. All relevant evidence should be admissible, unless there is some good reason for excluding it. Sometimes evidence of previous convictions would be highly relevant, but the prosecution is not allowed to refer to it. We ask whether this blanket rule remains appropriate, or whether it should be possible, in some cases, to refer to the accused's record in proving the present charge." 

The project on Similar Fact Evidence and the Moorov doctrine is the third and final project undertaken under a reference received from Scottish Ministers in November 2007. The first project, on Crown Appeals, culminated in the publication of a Report in July 2008, the recommendations of which were implemented in the Criminal Justice and Licensing (Scotland) Act 2010. The Report on Double Jeopardy (the second project conducted under the 2007 reference) was published in December 2009. Its recommendations form the basis for the Double Jeopardy (Scotland) Bill which is presently before the Scottish Parliament.

Comments are requested by 8 April 2011, using the electronic response form if possible.

See the project page for further details.