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:

1.  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)
2. 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)
3. 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.