Statement on the Lord Advocate’s reference to the Court of Appeal

The Lord Advocate Dorothy Bain KC has acknowledged the outcome of a reference she made to the Court of Appeal requesting them to consider a point of law concerning corroboration.

In the judgment issued today, the Court of Appeal reviews the law of corroboration in Scots Law. 

Scots Law requires two sources of reliable and credible evidence to corroborate that an offence was committed. 

Prior to today’s judgment the individual elements of certain crimes were required to be corroborated. In particular, allegations of rape required there to be corroboration of penetration through at least two sources of evidence. Evidence of distress by a complainer could not provide the necessary corroboration of this act, but could only confirm a lack of consent. The Lord Advocate’s reference asked the Court to reconsider this issue. 

The court’s decision today has confirmed that it is only the case against the accused that requires to be proved by corroborated evidence, and not the separate elements individually. This decision is a change to the law of corroboration for sexual offences and other offences. 

It means that in cases of rape evidence of a complainer’s distress spoken to by another witness may now corroborate the allegation of rape. Further, the court also stated that if a complainer is seen in a distressed state by an independent witness and reveals to them that she was raped that statement may also provide corroboration of her account that she was raped. This was not previously possible.

The Lord Advocate Dorothy Bain KC said: 

“As Lord Advocate, my fundamental commitment is to upholding the rule of law and to directing an effective, rigorous and fair prosecution system. Since my appointment, I have sought to do all within my power to deliver justice for women and girls, who are disproportionately impacted by sexual offences.

“The potential to introduce transformative change, such as through this Lord Advocate’s reference, was one motivation for me in taking this office. 

“Today’s decision has the potential to transform the way we prosecute all offences, in particular sexual offences, and will improve access to justice for more victims.  

“This ruling clarifies just what is needed to constitute a sufficiency of evidence. COPFS will now consider the terms of the ruling carefully. Prosecutors will take time to consider what it means for our work and plan for the future resourcing of COPFS.”