News
Judgment from the High Court of Justiciary Appeal Court on how corroboration is used in Scotland
Today's judgement from the High Court of Justiciary Appeal Court presents a seismic change for the use of corroboration and we hope it will be a very positive step for survivors seeking justice in Scotland.
The judgement outlines three key clarifications on corroboration:
- What requires to be proved by corroborated evidence is the case against the accused. That is, first, that the crime, which is libelled, was committed and secondly, that it was the accused who committed it. There is no requirement to prove the separate elements in a crime by corroborated evidence. (Clause 235)
- Distress, which is observed by a third party de recenti is capable of corroborating a complainer’s account that she has been raped; that she was penetrated by the accused’s penis without her consent. That penetration does not require to be corroborated separately (Clause 236)
- A statement which is made by a complainer some time 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, are available as proof of fact and as corroboration. They constitute real evidence, when spoken to by another witness. Neither is from the same source as the complainer’s testimony. (Clause 237)
Our response to this significant change
Most rape cases never make it to court. In many cases, this is because of the requirement in Scotland for corroboration. Up until now, this has meant that every piece of evidence must be backed up by another piece. This is an issue which particularly affects sexual crime cases.
This judgment sets out that from now, there is no requirement to prove the separate elements of a crime by corroborated evidence. This is a seismic change.
Survivors of sexual violence often delay reporting what has happened to them, for a variety of reasons. This means that it isn’t always possible to gather forensic evidence to prove that penetration occurred. In England, if a woman is raped or sexually abused but does not report or undergo a forensic medical exam within a short timeframe, it is still possible for her case to get to court. In Scotland, this is far less likely. This isn’t acceptable.
Today’s judgement from the High Court of Justiciary Appeal Court upheld the Lord Advocate’s contention that distress should be capable of corroborating penetration. This is a very welcome and significant development. The requirement for penetration to be independently corroborated has acted as a barrier to rape and abuse survivors receiving the justice they are entitled to. The Court also held that a complainer’s account can be corroborated if she or he is seen in a distressed state by an independent witness and says that she or he was raped.
We commend the Lord Advocate for bringing the case, and to survivors of sexual violence, including the Speak Out Survivors group, for their work campaigning for change. This judgment should go some way to address the current injustice faced by survivors in these circumstances.
Our written evidence on the Victims, Witnesses and Justice Reform Bill
We have published written evidence on the Scottish Government’s Victims, Witnesses and Justice Reform Bill (Scotland). Our evidence sets out what survivors have told us they think of the bill and the impact we believe it could have on the experiences of survivors seeking justice.
Our evidence was informed by the perspectives of survivors of sexual violence from across Scotland who shared their views about the bill with us and what difference they feel it could make for survivors’ experience of the Scottish justice system. Our evidence was also shaped by Rape Crisis Centres across Scotland, who work with survivors going through the justice system every day.
Our statement on the two-child policy on child tax credits and the rape clause
The two-child policy for accessing child tax credits is cruel and forces families into poverty, particularly during the cost-of-living crisis. It is appalling that the same policy forces survivors of sexual violence to disclose rape to access essential benefits for themselves and their families. Nobody should be forced to disclose sexual violence to access welfare.
Rape Crisis services have been asked to assist with putting this policy into practice in the past. Rape Crisis Scotland will never be a party to this policy by acting as third-party referrers.
We hope politicians will show bold leadership and stand against this cruel and punitive policy.
Our response to plans to make misogyny a hate crime
The Scottish Government has proposed new laws which would make misogynistic abuse a specific hate crime. We welcome these proposals, and hope they will play a part in ending misogynistic abuse and sexual violence in Scotland.
Our work with survivors shows us just how prevalent misogynistic attitudes and behaviours are in Scotland, time and time again.
The Scottish Women’s Rights Centre reports seeing a significant increase in misogynistic abuse and in particular online abuse. This includes cyberstalking, sexual harassment, grooming for exploitation or abuse, ‘revenge porn’, upskirting, sexual extortion, videos of sexual assaults and rapes, rape threats, doxing (publicly publishing women’s personal information), and tech abuse in intimate partnerships.
Women are also subjected to behaviours in public spaces such as being groped or touched inappropriately, being verbally abused or having sexual comments made towards them. There has been a rise in the techniques promoted by ‘pick-up artists’ who suggest that women need to be targeted on their own and repeatedly asked for personal information. The impact of this abuse on survivors can be long lasting and devastating.
Women in Scotland should be free to live without fear of harassment and abuse. It creates a culture of fear and barriers to women and girls fully participating in society.
Many women are taught from childhood to try to protect themselves, to adapt their own behaviour to avoid experiencing this kind of abuse or violence. We hope that these proposals will help to shift the burden of ending this abuse from women to the men who choose to perpetrate it.
The Misogyny and Criminal Justice in Scotland Working Group report showed that 93.4% of women who described their experiences of abusive and harassing behaviour didn’t report this to the police. They reported feeling that the police wouldn’t be interested, or it would be considered trivial.
New proposed laws from the Scottish Government would make misogynistic harassment a specific crime. These laws could send a clear signal to women that these behaviours are unacceptable, that this behaviour is not acceptable and will be taken seriously by the criminal justice system.
These laws can only play one part in ending misogynistic abuse. Firstly, we need to see real action taken within Police Scotland so that all women, especially those from minoritised communities, feel able to repot harassment and abuse safely. Secondly, we need to see a fundamental shift in societal attitudes towards women and girls, at all levels.
Our prevention work is a key way we work to try to challenge harmful attitudes and behaviour at an early age, and to stop sexual violence before it begins. Our prevention programme delivers workshops on issues like consent, social media and sexual violence to a range of age groups in schools all across Scotland. We also run the Equally Safe at School programme, which offers schools a toolkit to tackle gender-based violence.
Our response to the Lord Advocate's proposals to change corroboration in rape cases
Most rape cases never make it to court. In many cases, this is because of the requirement in Scotland for corroboration. This is particularly a problem for cases of historical abuse.
RSSLatest posts
- Our statement on new figures on conviction rates for rape in Scotland
- Our response to the Stage One Report on the Victims, Witnesses and Justice Reform Bill
- New guidance for tackling gender-based violence in schools launched
- Funding extended for essential Rape Crisis services
- Our statement on the conclusion of the Emma Caldwell trial
