Bench of nine considers whether de recenti statements absent distress can corroborate

Lord Advocate Dorothy Bain KC seeks the court’s opinion on points of law relating to the admissibility of statements made soon after an alleged offence and whether or not evidence of such statements can corroborate other evidence.

The references pertain to two High Court sexual offence trials which concluded with majority verdicts of ‘not proven’.

They follow on from the Lord Advocate’s Reference No.1 of 2023, which resulted in the court ruling that evidence of a complainer being distressed shortly after an alleged offence is capable of corroborating their account of what happened.

Ms Bain is now asking the court to consider whether or not statements made soon after an incident can corroborate a complainer’s evidence in the absence of distress, and if so, at what point in time or in which circumstances that stops being the case.

A bench of nine judges has been convened as Ms Bain invites the court to overrule case law from 1938 decided by a bench of seven.