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New changes to corroboration rules - an explainer

Up until now, every piece of evidence for every part of a crime must be backed up by another piece. This is corroboration. This is an issue which particularly affects sexual crime cases. Up until this week, for a rape to be prosecuted in Scotland, corroboration was needed for each element of the crime, so lack of consent, the identity of the accused, and penetration all had to be separately corroborated.

Last week, the High Court of Justiciary Appeal published a judgement about how corroboration is used in Scottish criminal trials. The judgement was published after the Lord Advocate had asked the Court to review how corroboration is used, specifically, requirements for corroboration in sexual offence cases.

This judgment sets out that from now, while corroboration is still required, there is no requirement to prove the separate elements of a crime by corroborated evidence. This is a seismic change, and one we hope will improve access to justice in relation to rape and sexual abuse.

What does the judgement change?

The judgement makes three key changes to corroboration.

• 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 (de recenti) 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).

Why is this so significant for rape cases?

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 which, under previous corroboration rules, made corroborating penetration much more difficult. 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 judgement sets out 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. 

Previous rules around corroboration were often confusing for juries, particularly in rape trials. Part of the rationale of these changes is to make the new rules around corroboration clearer to avoid jury misdirections from judges. These misdirections can lead to appeals and acquittals which fail survivors.

Is everyone visibly distressed when they disclose rape?

No. It’s very important to note that not everybody is visibly distressed when they report or disclose rape. Many people try to carry on as normal and don’t tell anyone what happened for years, or ever.

The judgement does acknowledge that every survivor is different and will react in different ways in different circumstances. However, the judgement says that in the context of a legal system which requires corroboration for proof of a crime, these circumstances may become significant for example in relation to a physical injury or the observation of distress. The judgement says it is important that the law should be clear about the role played by injury or distress in terms of evidence in each specific case. They should not be always, or even usually, expected.

Does this mean that rape cases discontinued due to a lack of evidence can be re-visited?

It depends. If someone has been told their case cannot proceed to court because of insufficient corroboration and they have questions about what this ruling might mean for them, we would advise getting in touch with the contact who dealt with their case in either Police Scotland or the Crown Office.

Does this mean that rape cases where there has been a trial and the accused acquitted could be retried under double jeopardy laws, where cases can be reopened if new evidence emerges?

No. This change applies to what elements of crimes need to be corroborated, and what kind of evidence fulfils the requirement for corroboration. It doesn’t mean that where there has been trial and an acquittal that the case can be re-tried.