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Landmark judgment on corroboration in sexual offence cases

This entry is taken from Rape Crisis Scotland’s News post here.

A judgement from nine senior judges has been issued today which transforms the approach to corroboration in sexual offence cases in Scotland.

This follows on from a previous Lord Advocate’s reference last October, which resulted in clarification that:

• Corroboration must still be used to prove the case against the accused. This means that corroboration will be needed to prove that firstly, the crime was committed and secondly, that the person accused in the case is the person who committed it. There is now no requirement for every separate part of a crime to be proven by corroborated evidence.
• Distress, which is observed by a third party, can corroborate a complainer’s account that they have been raped. Penetration does not need to be corroborated separately.
• A statement which is made by a complainer after the relevant incident is normally hearsay and cannot be used as proof of fact. An exception to this is where that statement is made de recenti, when the complainer is in a distressed state. Both the statement and the distress, in combination, can be used as proof of fact and as corroboration. They constitute real evidence, when spoken to by another witness (a third party).

While the ruling last October represented a seismic change in the approach to corroboration in sexual offence cases in Scotland, it left certain key issues unanswered. This is why the Lord Advocate lodged two further references, asking the Court to answer:

(1) Is a de recenti statement on its own corroborative, in the absence of distress;

(2) Can a de recenti statement corroborate a complainer’s testimony both that the crime was committed and that the accused committed it?

(3) At what point does a statement cease to be de recenti, and hence corroborative, and become instead inadmissible hearsay?

(4) Should Morton v HM Advocate 1938 JC 50 be overruled? (this was a case that stated that a de recenti statement could not act as corroboration)

Distress is no longer required

One of the most important parts of today’s ruling is that a de recenti statement is corroborative on its own, that is, in the absence of distress.

Further, if a de recenti statement is corroborative, it is capable of proving the occurrence of the crime and the identity of the perpetrator.

The reason the ruling on absence of distress is so important is because many victims of rape are not visibly distressed afterwards. Trauma can impact on individuals in various ways; some people are visibly distressed whereas others may seem calm or try to carry on as normal. It is important that access to justice following rape is not dependent on victims conforming to only one way of reacting to rape.

What does this judgment mean in practice?

Most reported rape cases never make it to court, and the most common reason given is lack of corroboration. This ruling is significant because it removes a further barrier to justice in sexual offence cases, meaning potentially more cases can make it to court.

Notes

The full judgment can be found here: https://www.scotcourts.gov.uk/media/paub1wxo/2024hcjac43-references-by-her-majestys-advocate-against-pg-and-jm.pdf

Most recent conviction figures are here: https://www.rapecrisisscotland.org.uk/news/news/conviction-rate-for-rape-is-the-lowest-for-any-crime-type-in-scotland/#:~:text=The%20conviction%20rate%20for%20rape,the%20same%20year%20was%2088%25