'Landmark' corroboration ruling could bring more rape cases to trial

More rape cases could be brought to trial thanks to a ruling by some of Scotland's most senior judges.

Lord Advocate Dorothy Bain KC has hailed the "evolution" of the legal system after a panel at the Court of Criminal Appeal agreed that comments made by the victim of a crime shortly or during that offence can be used to corroborate the crime.

The change comes after Bain asked judges to look again at a previous ruling over distress in rape cases.

To secure a rape conviction, prosecutors must present two sources of evidence to prove that the accused person was the perpetrator, that the physical act took place and that there was no consent from the complainant.

In a prior ruling, judges ruled that evidence of a victim's distress could be used to prove lack of consent.

Now a fresh panel has agreed that a statement made by an alleged victim can be used for corroboration that a crime took place and that the accused was responsible, regardless of whether distress is shown.

The ruling means more cases could now be brought to trial, including those that do not involve a sexual element.

Bain 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."

Judge Lady Dorrian said it would be "utterly illogical to treat some of what a complainer said as corroborative" but consider statements about the perpetrator's identity as "lacking that quality".

In June, Bain - Scotland's top law officer - asked the court to consider issued raised in a ruling from 1937 after two trials from 2023 resulted in acquittals.

In one, a woman reporting alleged rape in Edinburgh told passers-by and police that she had been attacked by a man she met in a nightclub. 

In the other, which involved the alleged abuse of two boys by a babysitter, one of the children told his stepfather what had taken place.

But in both cases, the trial judges told jury members that while those comments could not be used to show consistency in the claims made by the alleged victims, they could not be considered a separate source of evidence.

Rape Crisis Scotland chief executive Sandy Brindley welcomed the "landmark ruling". She said: "Most reported rapes never make it as far as court, and the most common reason is lack of corroboration.

"What is most welcome about today's judgment is the removal of the requirement for visible distress.

"While some rape victims are visibly distressed immediately afterwards, many are not because trauma can impact people differently."