Landmark ruling on evidence means more rape cases could go to trial

A panel of nine of Scotland’s most senior judges has cleared the way for more rape cases to potentially go to trial.

They held that a complainant’s words following an incident could be used to substantiate the allegation, even if there was no visible distress.

It has been welcomed by campaigners who say people respond to trauma in different ways.

It comes after Scotland’s leading lawyer, Lord Advocate Dorothy Bain, launched a bid to change the rules on evidence and corroboration.

Bain had asked the Court of Criminal Appeals to overturn a decision handed down by five judges in 1997, citing trouble in rape cases.

To obtain a rape conviction in Scotland, it must be proven beyond a reasonable doubt that the person on trial was the perpetrator of the crime, that there was no consent and that the act of rape occurred physically.

According to the 1997 decision, independent evidence of the alleged victim’s distress can only be used to prove the absence of consent.

Scotland’s top legal authority, Bain, has sought to change these rules so that a statement made by an alleged victim following an incident can be corroborative in itself, without visible distress.

The decision of Scotland’s highest court was accepted on Wednesday.

“This is a landmark decision that will make it easier for rape cases to come to court,” said Sandy Brindley, chief executive of Rape Crisis Scotland.

“Most reported rapes are never brought to court, and the most common reason is lack of verification.

“The most pleasing aspect of today’s decision is the removal of the visible hardship requirement.

“While some rape victims experience visibly distress in the immediate aftermath, many do not, as trauma can affect people differently.”

The matter follows two sexual offense trials last year, resulting in mostly not proven verdicts.

In a written opinion published on Wednesday, Lord Justice General Lord Carloway said the 1937 decision in Morton v HM Advocate was correct and should not be overruled, “but the dictum on the supporting effect of a new statement is not upheld”.

He said it was no longer disputed that a new statement was corroborative on its own – that is, in the absence of distress – and said: “If a new statement is corroborative, it is capable of proving the occurrence of the crime and the identity of the perpetrator.

“A statement ceases to be current when it ceases to be ‘new’ after the commission of the crime or is not made available to its first natural confidant as defined in this opinion.”

The case, which was heard at the Magistrates’ Court in Edinburgh in June, follows up on the Lord Advocate’s Reference No. 1 of 2023, which concluded with the court ruling that evidence that the complainant was distressed shortly after an alleged offense could support her allegations. account of what happened.

Lady Dorrian, the Lord Justice Clerk, said she was “entirely in agreement” with Lord Carloway.

He wrote: “It would be highly unreasonable to treat some of what the complainant said as corroborative (in relation to the commission of the offence) and some (anything said in relation to the identity of the perpetrator) as lacking that character.

“If the statement has the necessary quality to be considered a contemporary statement, as opposed to a later narrative statement made after time that is remote from the events and requires reflection, then it has wholly corroborative value.”

The other six judges agreed with Lord Carloway, but Lady Paton expressed concerns about the identity issue.

He wrote: “Supplementing identification evidence with evidence from other independent sources other than the complainant provides useful protection.”

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