A man convicted of the rape of two domestic partners more than eight years apart, based on the Moorov principle, has had his appeal against conviction refused by a full bench in the Criminal Appeal Court.

The court reaffirmed that rape is in a different category of offence to non-sexual assault, even in the context of domestic abuse, but overruled a decision that where there was a lengthy time gap, there had to be special or compelling circumstances for mutual corroboration to apply.

Mark Duthie appealed against his conviction on three charges of rape, out of a total of 29 charges on which he was found guilty, the others mainly involving physical assaults, some to injury, of six domestic partners between 2003 and 2018. One charge of rape involved complainer DC in May 2003; the other two, one including an assault by punching, involved complainer ND between September and December 2011. None of the other assaults libelled a sexual element.

For corroboration of the offences, the trial judge considered that the rape charges had to be considered separately from the other charges, but that the jury were entitled to view the domestic setting as a special, compelling or extraordinary circumstance such as would allow for the application of mutual corroboration notwithstanding the time gap. 

On appeal it was argued that the physical abuse of the other complainers could not bridge the time gap. The appellant’s intervening relationships with the other complainers undermined the existence of a continuous course of conduct persistently pursued. The existence of domestic relationships was not an extraordinary feature. The domestic abuse lacked the overall similarity necessary to make the offences “component parts of one course of conduct persistently pursued by the accused”, in terms of MR v HM Advocate (2013). The trial judge should have ruled that there was no case to answer on the rape charges.

The Crown argued that the trial judge had erred in compartmentalising the offences. The whole offending had to be looked at together. In the context of a domestically abusive relationship, the act of penetration could be a sexually violent one designed to achieve coercive control. That illustrated an underlying unity of purpose between the physical and sexual assaults.

The opinion of the court, refusing the appeal was given by Lord Justice General Carloway, who sat with Lord Justice Clerk Lady Dorrian, Lord Menzies, Lord Pentland and Lord Matthews. 

Lord Carloway affirmed the nature of rape as a crime distinct from physical assault. "However interesting it may be to analyse the place of rape as a crime of violence in the domestic context," he said, "the law has traditionally distinguished between two types of behaviour: sexual (including lewd practices, indecent and now sexual assault and rape) and non-sexual (assault, aggravated or simple). It may not be unreasonable to describe rape as an aggravated sexual assault at least in certain circumstances, but the sexual content remains, irrespective of the perpetrator’s motives."

The fact that different types of crime were perpetrated against their partners by someone of a controlling disposition did not make the offences "similar" for the purposes of mutual corroboration. The test of similarity was "a necessary precursor to the search to see if the inference of a course of conduct persistently pursued is met".

Lord Carloway also stated: "The existence of the time gap, and the absence of intervening complaints of sexual offending, could also be a significant feature, but the jury were entitled to take into account events which they were satisfied had occurred in the intermediate domestic relationships when deciding this issue. The question remains one of fact and circumstance in the particular case."

As respects the "special circumstances" argument the court ruled: "It is not the case that, as a matter of law, in a lengthy time gap case, there require to be special, compelling or extraordinary circumstances before the appropriate inference can be drawn. What is essential, in terms of the settled law, which was described in Adam v HM Advocate [2020], are similarities in time, character and circumstances such as to demonstrate that the individual incidents are component parts of one course of conduct persistently pursued by the accused. The jury will have to be directed to that effect but, normally, that is all that is required."

In so far as CS v HM Advocate (2018) was seen as being to the contrary effect, it was overruled.

As regards the present case, he concluded: "Although there was a significant time gap between the rapes involving the two complainers, there were sufficient similarities in the appellant’s actings, not least the domestic context of the rapes, to enable the jury to draw the appropriate inference of a course of conduct persistently pursued by the appellant. It follows that the trial judge was correct to repel the no case to answer submission. In so far as the judge directed the jury that a special or compelling factor was required, this favoured the appellant. The appeal is accordingly refused."

Click here to view the judgment.