The court’s opinion in HMA v PG and JM clarifies the evidential regime on distress and corroboration, following Lord Advocate’s Reference No 1 of 2023, which overruled Smith v Lees in determining that de recenti distress spoken to by a third party could corroborate a complainer’s account that she was raped. It also made clear that a de recenti statement – coupled with distress – was also corroborative of the complainer’s testimony if spoken to by a third party.

In June of this year Lord Advocate Dorothy Bain KC asked the court to consider the issues raised in the 1938 judgment of Morton v HM Advocate after two trials in 2023 ended in acquittals.

In the first, an alleged rape in Edinburgh city centre, a woman had told passers-by and the police that she had been raped by a man she met in a nightclub. In the second, concerning the alleged abuse of two boys by their babysitter, one of the boys had told his stepfather what had happened.

In both cases, the judges told the jury that the alleged victims’ statements could only be used to show that they had been consistent in what they said but that they lacked corroborative power. The accused were acquitted by majority verdicts of ‘not proven’.

Ms Bain said that it was wrong that the alleged victims’ statements could not provide a separate source of evidence about what had happened. The judges agreed – and now situations in which a complainer is not visibly distressed are also corroborative.

Dr Andrew Tickell, lecturer in law at Glasgow Caledonian University, told Scottish Legal News that the approach was “arguably more consistent with what we know about trauma responses, and the fact that human beings adapt to and communicate about their experience of traumatic events in different ways, which may or may not include immediate distress”.

The most significant aspect of the opinion is that the de recenti statement corroborates not only the alleged crime but the identity of the accused, without a separate evidential source speaking to the accused’s identity, Dr Tickell said.

He added: “In the past, this is not something which distress or a de recenti identification of the perpetrator by the alleged victim could have corroborated, because all the evidence about the perpetrator’s identity comes from the complainer, both in terms of their own evidence, and what they told a witness had happened.

“Previously, some other independent source of evidence would need to be identified to support the complainer’s identification of the accused. This judgment rejects this constraint on the use this supporting evidence can be put to, meaning that a de recenti statement can now fully corroborate both that the crime was committed and that it was the accused who committed it without an additional evidence source speaking directly to their identity such as an admission by the accused that consensual sex took place, or forensic evidence establishing there was sexual contact.

“As a result of this decision, yet more previously uncorroborated cases will now meet the tests for legal sufficiency.”

Lady Paton, however, dissented from the majority view on this point. “The only true ‘source’ of identification in such circumstances is the complainer. That is one single source,” she stated.

She suggested the change was tantamount to removal of corroboration when it comes to identification of a perpetrator.

She wrote in her opinion: “Other systems do not have the unique Scots law safeguard of corroboration. What they do have are numerous other checks and counterbalances which our criminal legal system does not have: for example, a requirement of jury unanimity or super majority; or a pre-jury qualitative assessment of sufficiency.”

Lord Advocate Dorothy Bain KC said: “This decision continues the evolution we are seeing in Scotland towards development of a progressive and humane justice system that truly serves our society. 

“The potential to introduce change, such as through these lord advocate’s references, was a significant motivation for me in taking this office. The decisions of the appeal court have the potential to transform the way we prosecute all offences, in particular sexual offences, and I believe will improve access to justice for many more victims. 

“These references have gone some way in giving victims of sexual crime the opportunity to effectively participate, but I recognise that the whole justice system has more to do.”