A “landmark” ruling on corroboration that could lead to more rape cases going to court has been welcomed by a charity supporting victims.
The majority of a historic nine judge bench have agreed with Lord Advocate Dorothy Bain KC, who argued for changes to corroboration laws.
Prosecutors said the decision corrects the wrong turn the law took in a 1937 ruling on the issue and may have a significant impact on how future cases are prosecuted.
The head of Rape Crisis Scotland said the ruling “removes a barrier to justice in sexual offence cases, meaning potentially more cases are able to make it to court”.
The Lord Advocate said the judges’ decision continues the evolution towards “development of a progressive and humane justice system that truly serves our society”.
She had asked the judges to consider whether statements made soon after an incident can corroborate a complainer’s evidence in the absence of distress and if so, at what point in time or in which circumstances that stops being the case.
The Lord Advocate had asked them to consider overturning a rule dating back to the trial of Henry Morton for indecent assault in 1937, which holds that statements made by alleged victims shortly after an alleged offence has been committed can only have a bearing on their consistency and credibility.
This ruling removes a barrier to justice in sexual offence cases, meaning potentially more cases are able to make it to court
Such statements cannot, under the rule, have a bearing on whether the offence actually happened or who committed it, meaning these details need to be corroborated with separate evidence.
The matter was brought in the wake of two sexual offences trials last year that resulted in majority not proven verdicts.
Eight of the nine judges agreed a “de recenti” statement made by a victim soon after an incident can be corroborative on its own, in the absence of distress.
They also agreed it is capable of proving the crime happened and the identity of the perpetrator.
In a written Appeal Court opinion published on Wednesday, Lord Justice General Lord Carloway said the decision in Morton v HM Advocate was correct and should not be overruled “but the dicta on the corroborative effect of a de recenti statement is disapproved”.
He said it is not now disputed that a de recenti statement is corroborative on its own – that is, in the absence of distress – and: “If a de recenti statement is corroborative, it is capable of proving the occurrence of the crime and the identity of the perpetrator.
“A statement ceases to be de recenti when it ceases to be ‘recent’ following upon the commission of the crime, or is not provided to the first natural confidante as described in this opinion.”
Sandy Brindley, chief executive of Rape Crisis Scotland, said: “This is a landmark judgment. Most reported rape cases never make it to court, and the most common reason given is lack of corroboration.
“This ruling removes a barrier to justice in sexual offence cases, meaning potentially more cases are able to make it to court.
“Particularly welcome is the removal of the requirement for distress from certain aspects of corroboration. This is important because trauma can impact rape survivors in different 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.”
The Lord Advocate said the Crown Office and Procurator Fiscal Service will study the judgment carefully and integrate its consequences into continuing efforts to improve how it works.
She said: “This decision continues the evolution we are seeing in Scotland towards development of a progressive and humane justice system that truly serves our society.
“The potential to introduce change, such as through these Lord Advocate’s references, was a significant motivation for me in taking this office.
“The decisions of the Appeal Court have the potential to transform the way we prosecute all offences, in particular sexual offences, and I believe will improve access to justice for many more victims.
“These references have gone some way in giving victims of sexual crime the opportunity to effectively participate, but I recognise that the whole justice system has more to do.”
The case, heard in Edinburgh in June, followed on from the Lord Advocate’s Reference No.1 of 2023, which resulted in the court ruling that evidence of a complainer being distressed shortly after an alleged offence is capable of corroborating their account of what happened.
Lady Dorrian, the Lord Justice Clerk, on Wednesday said she was in “complete agreement” with Lord Carloway.
She wrote: “If the statement has the necessary quality to be accepted as a de recenti statement, as opposed to a subsequent narrative account of facts remote from the events and after time for reflection, then it has corroborative value, in its entirety.”
Six other judges agreed with Lord Carloway, however Lady Paton raised concerns around the issue of identification.
