Peter Duff – A Response to a Unified Theory of Similar Facts Evidence

by Lewis Shand on April 23, 2012

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I recently read ‘Towards a Unified Theory of Similaw Facts Evidence in Scots Law’ by Peter Duff, a man whose articles I have enjoyed reading since I started studying law. However, I was particularly concerned by the manner in which he confuses the Moorov doctrine with similar facts evidence.

Duff argues that both the Moorov and Howden doctrines result in a system whereby Scottish law permits similar facts evidence.[1] This is sometimes called collateral evidence and is evidence which is out with the circumstances of the charge before the court. An example of this would be introducing evidence of previous convictions in order to taint the character of the accused. Such evidence has long been inadmissible under Scots law and this writer would argue that Peter Duff is incorrect to state that Moorov is a type of collateral evidence. This is fundamentally because Moorov is concerned not with separate cases involving the same perpetrator, but incidents which are part of the same course of conduct, albeit with a passage of time between them.[2]

This was after all, the dicta that the Moorov case provided – incidents where the necessary nexus has been established which result in two or more incidents forming part of the same conduct, connected by time, character and circumstance. It goes back as far as Alison and Hume and I do not see where Peter Duff finds the authority to make such a bold claim.

[1] P. Duff, Towards a Unified Theory of Similaw Facts Evidence in Scots Law, (2002, Juridical Review).

[2] Moorov v. H.M Advocate, 1930 J.C. 69 per Lord Justice-General Clyde.

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