The references followed a similar request the Lord Advocate successfully made last year which changed an aspect of corroboration in rape cases.
To secure a rape conviction, prosecutors need two sources of evidence to prove that the person on trial was the perpetrator, that the physical act took place and that there was no consent.
In June of this year the Lord Advocate asked a bench of nine judges to look again at a ruling from 1937 and find that the law had taken a wrong turn.
In the judgment issued today, the Court agreed with the Lord Advocate and found that a victim’s statements made during or shortly after a crime, when the victim is still suffering the effects of what has happened, can provide a second source of evidence that that crime took place, and that the accused was responsible.
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.
“The Crown Office and Procurator Fiscal Service will study this judgment carefully and integrate its consequences into their continuing efforts to improve how they work.”
In June of this year the Lord Advocate asked the court to consider the issues raised in the 1937 ruling after two trials from 2023 ended in acquittals. In the first trial, concerning 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 nightclub. In the second trial, 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 they were not a separate source of evidence. The accused were cleared by majority not proven verdicts. The Lord Advocate said that it was wrong that the alleged victims’ statements could not provide a separate source of evidence about what had happened.
Today’s decision corrects the wrong turn the law took in 1937 and may have a significant impact on how future cases are prosecuted, but it does not affect the results of the two trials.
The previous Lord Advocate’s reference meant that in rape cases evidence of a complainer’s distress spoken to by another witness may now corroborate the allegation of rape.