A bench of seven judges has issued its opinion in the Lord Advocate’s Reference No 1 of 2023.
In Smith v Lees 1997 JC 73 the High Court stated that, where a complainer has given evidence that she was raped or sexually assaulted, evidence from a second witness that the complainer was in a state of distress shortly after the alleged offence is capable of corroborating that she did not consent to what happened. However, such evidence could not corroborate what the complainer said happened to her. The Lord Advocate, Dorothy Bain KC, asked the High Court to consider the correctness of that position.
The High Court has now overruled Smith v Lees. The unanimous opinion of the seven judges published today, makes it clear, first, that such evidence is also capable of corroborating what actually happened to the complainer. Secondly, that evidence of what a complainer said while in that state of distress is also capable of corroborating her story.
Where a point of law arises during a trial of a person on indictment, the Lord Advocate may refer that point to the High Court for its opinion. Where the accused has been acquitted, that opinion, if adverse to the accused, does not reverse that acquittal.
Following a rape trial, the Lord Advocate asked the court to consider whether the testimony of a witness concerning a complainer’s distress could corroborate the complainer’s testimony that she had been raped. This required the court to consider whether the decision in Smith v Lees was correct. It also raised the issue of how the court should treat any words said by the complainer shortly after the offence took place (a de recenti statement), where those words accompanied any expression of distress.
The trial took place at Aberdeen High Court in November 2022. The accused was charged with rape. The complainer gave evidence that the accused had invited her and her boyfriend into his flat. At some point, the boyfriend left the flat. The accused had then attacked and raped her.
Soon after, the boyfriend returned. He gave evidence that the accused answered the door and appeared to be naked. The complainer was very distressed. She was crying, shouting and screaming that the accused had raped her. Her hair and make-up were dishevelled.
In line with Smith v Lees, the trial judge directed the jury that the boyfriend’s evidence about the complainer’s distress could corroborate the complainer’s lack of consent, but it could not corroborate her evidence that she had been raped, ie that sexual intercourse had occurred. There were other circumstances, including the accused’s nakedness, that could provide such corroboration.
The accused was acquitted by a majority verdict of the jury.
The unanimous opinion of the seven judges was delivered by Lord Carloway, the Lord Justice General.
The court examined the origins and development of the requirement for corroboration from the late 18th and early 19th centuries, which was the era of the Institutional Writers, to the present day. The Institutional Writers were a group of Scots lawyers whose comprehensive texts on the law, as it was at that time, are a formal source of Scots law.
The court’s examination demonstrated that corroboration was originally understood to mean that two witnesses were needed to prove a case. Those witnesses did not have to be eyewitnesses; they could be speaking to solely circumstantial evidence, if that evidence, when taken together, pointed to the guilt of the accused. Where a complainer gave eye witness evidence, it could be corroborated if there was evidence from someone else that supported or confirmed the complainer’s testimony.
In the early 20th century, the courts and legal textbooks began to treat corroboration as a requirement to have two witnesses to speak to individual facts in a case, characterised as “essential”, “fundamental” or “crucial”, rather than the case as a whole. This, in the view of the court, caused corroboration to become overly technical and complex, particularly in sexual offence cases, whereby lack of consent and the act of intercourse were treated as distinct, essential facts.
The court stated that:
“… the judges [in Smith v Lees] do not analyse the underlying basis for their effective starting point; that each separate element in a criminal offence requires to be individually corroborated… This idea…was not supported by the Institutional Writers, upon whom the judges relied. It was not supported by the preponderance of authority. Traditionally, the familiar direction to juries was that two matters required corroboration; that the crime happened and that the accused committed it…”.
The common thread running through the previous cases and writings, of which the court disapproved, was a tendency to categorise, sub-categorise, over-analyse, and generally complicate the issue of the use to which evidence may be put. The court added that:
“The law of evidence is a highly practical matter. It is a tool designed to set the parameters within which evidence may be led to ensure that the court focuses on the issues truly in dispute, and to achieve a fair trial, not only for the accused but also in the public interest. … The more that complexity is built into the rules, or the more layers added, the more perplexing matters will be for jurors…”.
The court determined that de recenti statements, when coupled with distress, were, contrary to earlier cases, corroborative. They were an exception to the general prohibition on hearsay. Such statements were the natural outpourings of feelings aroused by an injury, and should be regarded as a continuation of the incident itself.
The court overruled Smith v Lees and Cinci v HM Advocate 2004 JC 103. It disapproved certain comments in Morton v HM Advocate 1938 JC 50 regarding the evidential value of de recenti statements. In answer to the Lord Advocate’s questions, it held that:
“The basic rule is that no-one can be convicted on the testimony of one witness alone. Where there is direct (eye witness) evidence of the crime, that evidence can be corroborated by another eye witness or by facts and circumstances spoken to by at least one other witness…”.
The court said that distress, which is observed by a third party, is capable of corroborating a complainer’s account that she had been raped; ie that sexual intercourse had taken place without her consent. The act of intercourse did not require to be corroborated separately. A statement which is made by a complainer some time after the alleged incident is normally hearsay and cannot be used as proof of fact. An exception to this is where a statement is made de recenti (recently after the event), when the complainer is in a distressed state.
The opinion published on the Scottish Courts and Tribunals website is the only authoritative document.