Lord Advocate's Reference (No 1 of 2023) HM Advocate v CLB

The respondent was charged with the assault and rape of the complainer. The complainer gave evidence that her boyfriend had left the property, where she had been with the respondent, after which the respondent attacked her. The complainer's boyfriend gave evidence as to timings, the respondent's naked appearance at the door when he returned to the address, the complainer's distressed state upon leaving the address very shortly afterwards, and her statements around that time that she had been raped. Another witness observed the complainer in the stairwell in a distressed state and saying that someone had raped her. The complainer's sister gave evidence of a phone call from a friend during which she could hear her sister crying and screaming in the background. The respondent did not give evidence but, in his police interview, he denied any physical interaction or sexual contact with the complainer.

The trial judge directed the jury that, for proof of rape, they had to be satisfied that the respondent had had sexual intercourse with the complainer and that it had been without the complainer's consent. Both elements required to be corroborated. If the jury accepted that the distress had been genuine and had been caused by whatever had happened, it could both corroborate the complainer's lack of consent and support her general credibility. It could not corroborate the complainer's evidence about what the appellant had done. In particular, it could not “of itself” corroborate her testimony that penile penetration had occurred. For penetration to be proved, the jury had to rely on other facts and circumstances, including timings and the respondent's nakedness, although the complainer's distress was a factor in the equation. What the complainer had been reported as saying to others very soon after the alleged rape (de recenti statements) could not corroborate her testimony about what had happened. It was available only to help the jury assess the quality of the complainer's testimony, as a guide to credibility and reliability. The jury, by majority verdict, found the charge not proven.

The Lord Advocate referred the following two questions to the court: “(1) Did the trial judge err in directing the jury that distress of itself cannot corroborate the direct testimony of a complainer that penetration has occurred? (2) Is independent evidence of distress sufficient to corroborate a complainer's direct testimony that penetration has taken place?” The Crown invited the court to answer both questions in the affirmative. In particular, it was submitted that Smith v Lees should be overruled because it had erred in treating distress differently from other forms of circumstantial evidence that were capable of supporting or confirming a complainer's account. This was inconsistent with the court's approach to circumstantial corroboration since Fox v HM Advocate and contrary to the court's observations in Jamal v HM Advocate on the broad approach to corroboration. The latter observations were consistent with the traditional approach to corroboration taken by the Institutional Writers, the modern statutory offence of rape, and the approach taken by other leading common law jurisdictions, which did not restrict distress to corroborating a lack of consent. There was no principled reason for requiring the concurrent events of penetration and lack of consent to be corroborated separately. It was inconsistent for Smith v Lees to have found that distress could corroborate lack of consent even though there may be other explanations for it, but that it could not corroborate penetration because there could be other explanations for it. While distress alone could not reveal precisely what had happened to the complainer, that should not preclude it from being corroborative. The jury should be permitted to draw an inference from the distress about what had occurred. If it were otherwise, evidence corroborating a complainer's account of rape could lose its corroborative value simply because an accused accepted some lesser form of sexual wrongdoing and the distress was no more consistent with rape than with sexual assault. The only thing that mattered was that the distress was de recenti, unfeigned and caused by what the complainer said had been done. There was no strict time within which it had to be exhibited. The distress was an objective feature, and, therefore, a source of circumstantial evidence that was independent of the complainer and supported or confirmed the complainer's account. The de recenti statement should also be capable of being considered in this way. It should be open to the jury to accept the evidence of a third party who could speak to the confluence of distress and de recenti statement as corroborative of the complainer's testimony. Such evidence would have been corroborative in the nineteenth century, and there was no reason why it should be incapable of providing corroboration today.

The respondent invited the court to answer both questions in the negative. Corroboration remained an essential part of the criminal law and its limits could be taken as settled. The facta probanda in a charge of rape were identification, penetration, lack of consent, and mens rea. Each required corroborated evidence. Distress might provide corroboration of lack of consent and mens rea as it was inconsistent with a consensual act, but it did not say anything about the assailant or mode of assault. It could not be said that distress was more consistent with penetration than anything else, and allowing distress to corroborate penetration was unprincipled and unwarranted. If it were otherwise, a distressed complainer could provide a sufficiency for all elements of a prosecution. There was a concern among the legal profession that there could effectively be a self-proving complainer where only a majority verdict was required for conviction. There was no comparable situation in common law jurisdictions. Such an approach conflated corroboration of the facta probanda on the one hand, and corroboration of the credibility of the complainer on the other. If distress could provide corroboration in the manner proposed, this would dilute corroboration to the point that it would no longer be material. Removing that vital safeguard raised the real possibility of wrongful convictions, and was a matter properly left to the legislature. If anything was sacrosanct, it was that corroborative evidence required to be independent of the complainer. Distress spoken to by another witness was evidence from a source independent of the complainer and could corroborate the complainer's evidence to the extent allowed in Smith v Lees. What the complainer said at the time could not be corroborative of the complainer's testimony to the same effect, as the source of the statement was the same. The only purpose of de recenti statements was to permit proof that the complainer had been consistent. They could not be part of the res gestae and could never be admitted as corroborative. On the clear authority of Morton v HM Advocate, the fact that a statement increased the probability that the complaint was true did not amount to corroboration. It was not open to the court to overturn Morton, other than by convening a larger bench. Jamal v HM Advocate had erred in law when it said that distress was available as corroboration of the actus reus of rape, and to that extent, it should be overruled.

The court examined the various editions of the works of the Institutional, and later, Writers in order to shed light on how the courts have approached corroboration and the use of de recenti statements in Scotland. The court examined cases relating to the development of these issues in Scotland, and in the Commonwealth and Ireland. The latter cases were instructive, in particular, on what was thought to be appropriate in a modern democratic society.

Held that: (1) the basic principle was that “no one shall in any case be convicted on the testimony of a single witness”, meaning that there required to be more than the testimony of one witness, in the case. A sufficiency may be derived either from facts and circumstances, spoken to by another witness, which “confirm the story” given by the one eyewitness, or alternatively from a combination of facts and circumstances alone, provided that there were at least two witnesses in the case. Where there was direct (eyewitness) testimony, it was not necessary to look at the facts and circumstances in isolation and decide whether these pointed towards the guilt of the accused; it was sufficient that the facts and circumstances, when taken together, supported or confirmed the eyewitness's testimony. In a wholly circumstantial case, the facts, when interlinked, must point to the guilt of the accused, but there was no requirement to prove every link in a chain or every piece of a mosaic by corroborated evidence (paras 1, 122, 124, 190, 191, 193, 203, 235); (2) what required to be proved by corroborated evidence was the case against the accused, that is (i) that the crime was committed and (ii) that it was the accused who committed it. If the crime was rape, then that was the matter requiring corroborative proof; there was no requirement to prove the separate elements in a crime...