The Corroboration Warning in Sexual Offence Trials: Final Vestige of the Historic Suspicion of Sexual Offence Complainants or a Necessary Protection for Defendants?

AuthorSusan Leahy
Published date01 January 2014
Date01 January 2014
Subject MatterArticle
The corroboration
warning in sexual
offence trials: final
vestige of the historic
suspicion of sexual
offence complainants or
a necessary protection
for defendants?
By Susan Leahy*
Lecturer in Law, University of Limerick

Abstract In both England and Ireland, trial judges have discretion whether to
issue a corroboration warning in a sexual offence case. However, there is little
guidance as to when such a warning is appropriate or the form which it should
take. This uncertainty has the potential to produce injustice for complainants
because the inappropriate use of such warnings may unfairly prejudice their
testimony. Further, continuing to place sexual offence complainants in a
special category with respect to the provision of such warnings is objectionable
on principle and contributes to the perpetuation of myths about high levels of
false allegations of sexual crime. Of course, the current rules may be justified on
the basis that it is unfair to convict a defendant on anything but the strongest of
BCL, LLM, PhD; email: The author would like to thank Professor Shane
Kilcommins, University College Cork and Professor Dermot Walsh and Laura Donnellan,
University of Limerick for helpful commentary on earlier drafts of this article. However, the views
contained herein, along with any errors, remain the sole responsibility of the author.

evidence and that judicial comment on the uncorroborated nature of a
complainant’s testimony may thus be necessary in some cases. However, it is
argued that it is possible to reform the current approach to corroboration in a
manner which better accommodates the rights of both complainants and
Keywords Corroboration warnings; Sexual offence trials; Ireland; England and
s a general rule, witnesses in criminal trials are deemed to be fully
competent to testify to matters that are within their own knowledge,
A andtheevidenceofalonewitness,ifbelieved,isenoughtosupporta
finding of guilt. Despite this, in sexual offence trials, a trial judge has discretion to
warn the jury of the dangers of convicting a defendant on the basis of the uncor-
roborated evidence of the complainant. This discretionary corroboration warning
is one of the last remaining commonalities between Irish and English sexual
offences law. Given the heretofore inertia in sexual offences law reform in Ireland,
the fact that the discretionary corroboration warning continues to apply is to be
expected.1 However, in light of the overhaul of both the substantive and proce-
dural rules on sexual offences in England,2 the lack of attention to the suitability
of the discretionary warning in an English context is surprising. A possible expla-
nation for the reluctance to consider the rules on corroboration is that they are
seen as a necessary mechanism to protect defendants’ rights and, given the discre-
tionary nature of the rules, they are not seen to impinge unduly upon the interests
of complainants.
This article will argue that the continued availability of a corroboration warning
in sexual offence trials, albeit on a discretionary basis, is problematic and is a
potential source of injustice for complainants. Admittedly, in both Ireland and
England, there is a lack of research on either the frequency with which such
warnings are given or the effect which such a warning might have on juror
The Irish rules on consent in sexual offences law have not been substantially reviewed since the
reform process which led to the current legislation, that is, the Criminal Law (Rape) Act 1981 and
the Criminal Law (Rape) (Amendment) Act 1990. The debates on reform in that period may be seen
in the Irish Law Reform Commission’s publications which preceded the introduction of the new
law: Law Reform Commission, Consultation Paper on Rape (Law Reform Commission: Dublin, 1987)
and Report on Rape and Allied Offences (Law Reform Commission: Dublin, 1988). The General Scheme
of a Sexual Offences Bill has, however, been circulated in the Dáil and is due to be debated in the
near future: Dáil Debates, Written Answers No. 177, 49711/13.
The substantive rules have been completely overhauled in the Sexual Offences Act 2003. Applicable
rules of evidence such as the regulation of the admissibility of sexual experience evidence and the
admissibility of evidence of recent complaint have also been reformed: Youth Justice and Criminal
Evidence Act 1999, ss. 41–43 and the Criminal Justice Act 2003, s. 120, respectively.

deliberations. However, even in the absence of such research, from the
perspective of complainants, it is possible to identify both practical and
principled objections to the current approach to corroboration. Further, it is by
no means clear that the current rules are necessary in order to protect defen-
dants’ rights. Consequently, it is argued that the law in this area is in need of
fresh consideration.
The current rules on corroboration in Ireland and England
Prior to legislative intervention in both England and Ireland in the 1990s, the
provision of a corroboration warning in sexual offence trials was mandatory. A
trial judge was obligated to warn the jury of the dangers of convicting the
defendant on the basis of the unsupported testimony of the complainant. The
primary justifications for the mandatory warning were the alleged ease with
which sexual offence allegations were made, coupled with the difficulties which
defendants faced when defending themselves against such an allegation.3 The
warning was also closely related to prejudicial fears about the purportedly
mendacious nature of female sexual offence complainants.4 With the rape law
reform efforts in the 1980s and 1990s, concerns about the questionable and
discriminatory basis on which the mandatory warning was justified led to the
warning being placed on a discretionary basis.5 In Ireland, the mandatory
corroboration warning was abolished by s. 7 of the Criminal Law (Rape) Act 1990,
which provided that whether or not a warning was necessary should be left to
This is exemplified in the now infamous quote from Hale who asserted that rape was an allegation
that ‘was easily to be made and once made, harder to be proved, and harder to be defended by the
party accused, tho never so innocent’: Hale, The History of Pleas of the Crown (1778) 635.
For example, in 1904, Wigmore cautioned that ‘… the unchaste … mentality finds incidental but
direct expression in the narration of imaginary sex incidents of which the narrator is the heroine
or the victim’. A similar view was expressed by Glanville Williams (G. L. Williams, Textbook of
Criminal Law
(Stevens: London, 1978) 196–7):
Many complaints of rape are false … An adolescent girl who consents to intercourse may, to
placate her parents, assert that she did not consent; the parents then complain to the police
and the girl finds herself compelled to keep to her lie. A girl who feels ashamed about her part
in the affair may even convince herself subsequently that she did not really consent. There is
also the danger of a false allegation being made out of spite, when the man was in fact a lover
who jilted the woman, or for obscure psychological reasons.
See also G. L. Williams, ‘Corroboration—Sexual Cases’ [1962] Crim LR 662 and Note, ‘Corroborating
Charges of Rape’ (1967) 67 Columbia Law Review 1137.
Law Reform Commission, Report on Rape and Allied Offences (Law Reform Commission: Dublin, 1988)
para. 30. Law Commission, Corroboration of Evidence in Criminal Trials (HMSO: London, 1991) paras.

the discretion of the trial judge.6 The English legislature appeared to go further
with s. 32(1) of the Criminal Justice and Public Order Act 1994 formally abrogating
the mandatory corroboration warning in sexual offence trials and making no
mention of retention of the warning on a discretionary basis.7 However, in R v
Makanjuola,8 s. 32(1) was interpreted as allowing for a continuing judicial
discretion to give corroboration warnings in appropriate cases. In that case, Lord
Taylor CJ was clear that, although the practice surrounding corroboration
warnings had changed by virtue of s. 32(1), a trial judge does have a discretion to
warn the jury if he or she thinks it necessary.9 Consequently, in both Ireland and
England, it is now for a trial judge to decide whether or not a corroboration
warning is appropriate in any given case. Guidance on when this discretion might
be exercised has been provided in the judgment of the English Court of Appeal in R
v Makanjuola. This judgment was subsequently endorsed and accepted into Irish
law in People (DPP) v JEM.10
In R v Makanjuola, Lord Taylor CJ held that to continue to give ‘discretionary
warnings’ generally and in the same terms as were previously obligatory would be
contrary to the policy and purpose of the 1994 Act. He went on:
Whether, as a matter of discretion, a judge should give any warning
and if so its strength and terms must depend upon the content and
manner of the witness’s evidence, the circumstances of the case and
Section 7(1) of the Criminal Law (Rape) Act 1990 provides that:
… where at the trial...

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