Hundreds of unprosecuted Scottish sexual offence cases could now end up in the courts following a “seismic” decision from the High Court that will change the rules around corroboration.

Earlier this year, Dorothy Bain KC, the Lord Advocate, urged the Appeal Court to look again at a ruling from 1997 that meant that while evidence that a complainer had been in a state of distress shortly after an alleged offence was capable of corroborating that she did not consent to what happened, it could not corroborate what she said happened to her.

Scots Law requires two sources of reliable and credible evidence to corroborate that an offence was committed.

For rape, prosecutors also need to prove the separate elements of the crime, which means needing at least two sources of evidence to prove penetration.

Because there is such a short timeframe for a forensic medical exam, this has always been particularly difficult in situations where a person has for, whatever reason, delayed reporting the crime to the police.

Rape Crisis Scotland has long said this need for corroboration is one of the reasons why most rape cases never make it to court in Scotland.

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The Lord Advocate’s referral, asking the court to reconsider this issue, followed a case heard at Aberdeen High Court in November 2022, where a woman accused a man of raping her.

Her boyfriend found the man naked and his partner crying, shouting and screaming that she had been raped. 

In line with the 1997 ruling, the trial judge directed the jury that while the boyfriend’s evidence about the complainer’s distress could corroborate the complainer’s lack of consent, it could not corroborate her evidence that she had been raped.

The accused was acquitted by a majority verdict of the jury.

The new ruling means that there now does not need to be corroboration that a woman has been penetrated by the accused’s penis without her consent.

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." 

“De recenti statements”, where a complainer, in a distressed state, tells someone what has happened to them son after the crime, can also stand as corroboration.

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Ms Bain welcomed the decision: “As Lord Advocate, my fundamental commitment is to upholding the rule of law and to directing an effective, rigorous and fair prosecution system.

"Since my appointment, I have sought to do all within my power to deliver justice for women and girls, who are disproportionately impacted by sexual offences.

“The potential to introduce transformative change, such as through this Lord Advocate’s reference, was one motivation for me in taking this office.

“Today’s decision has the potential to transform the way we prosecute all offences, in particular sexual offences, and will improve access to justice for more victims.

“This ruling clarifies just what is needed to constitute a sufficiency of evidence.

"COPFS will now consider the terms of the ruling carefully. Prosecutors will take time to consider what it means for our work and plan for the future resourcing of COPFS.”

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Sandy Brindley, the Chief Executive of Rape Crisis Scotland called the ruling “significant.”

She said: “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.”

Ms Brindley added: “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, for decades, 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.”