close
close

Judges agree with Lord Advocate over changes to uphold rape law

Judges agree with Lord Advocate over changes to uphold rape law

High Court judges agreed with the Lord Advocate, who advocated for changes to consent laws that could affect rape cases.

A majority of the historic nine-judge panel agreed that a “fresh” statement made by a victim shortly after the incident could in itself be corroborating in the absence of distress.

They also agreed that he could prove that the crime occurred and the identity of the perpetrator.

Lord Advocate Dorothy Bain had asked the judges to consider whether statements made immediately after an incident could support the complainant’s evidence without embarrassment and, if so, at what time or under what circumstances this would cease.

He had asked them to consider overturning a rule dating back to the trial of Henry Morton for indecent assault in 1937; this rule suggested that statements made by alleged victims shortly after the commission of an alleged crime could only have an impact on consistency and reliability.

According to the rule, such statements cannot be about whether the crime actually occurred or who committed the crime; In other words, these details need to be supported by separate evidence.

The matter follows two sexual offense trials last year, resulting in mostly not proven verdicts.

Dorothy Bain
Lord Advocate Dorothy Bain asked judges to consider the matter (Andrew Milligan/PA)

In a written opinion published on Wednesday, Lord Justice General Lord Carloway said the decision in Morton v HM Advocate was correct and should not be overruled “but the dictum on the supporting effect of a new statement is not upheld”.

He said it was no longer disputed that a new statement was corroborative on its own – that is, in the absence of distress – and said: “If a new statement is corroborative, it is capable of proving the occurrence of the crime and the identity of the perpetrator.

“A statement ceases to be current when it ceases to be ‘new’ after the commission of the crime or is not made available to its first natural confidant as defined in this opinion.”

The case, which was heard at the Magistrates’ Court in Edinburgh in June, follows up on the Lord Advocate’s Reference No. 1 of 2023, which concluded with the court ruling that evidence that the complainant was distressed shortly after an alleged offense could support her allegations. account of what happened.

Lady Dorrian, the Lord Justice Clerk, said she was “entirely in agreement” with Lord Carloway.

He wrote: “It would be highly unreasonable to treat some of what the complainant said as corroborative (in relation to the commission of the offence) and some (anything said in relation to the identity of the perpetrator) as lacking that character.

“If the statement has the necessary quality to be considered a contemporary statement, as opposed to a later narrative statement made after time that is remote from the events and requires reflection, then it has wholly corroborative value.”

The other six judges agreed with Lord Carloway, but Lady Paton expressed concerns about the identity issue.

He wrote: “Supplementing identification evidence with evidence from other independent sources other than the complainant provides useful protection.”