Scottish Judges Remove Long-Standing Restriction on Rape Case Evidence

A significant ruling by eight Scottish judges is anticipated to lead to an increase in rape cases proceeding to court. They have overturned an 87-year-old regulation that restricted the permissible uses of statements made by an alleged victim shortly after a purported crime. This change is expected to result in more prosecutions and potentially more convictions, although the full extent of its impact is not yet clear. Lord Advocate Dorothy Bain KC requested this modification after two sexual offense trials last year concluded with acquittals. Sandy Brindley, chief executive of Rape Crisis Scotland, stated: “This is a landmark judgement that has the potential to significantly improve access to justice for rape survivors. “This will remove a barrier for cases getting to court.” At the core of this matter is corroboration, a distinctive element of Scotland’s criminal law that necessitates evidence from at least two sources to substantiate the essential facts of a case. Advocates for reform have long contended that it acts as an impediment to justice by preventing many allegations from reaching court. Conversely, supporters of corroboration argue it serves as an important safeguard against wrongful convictions. The rule that has been rescinded originated in the 1930s and limited how statements provided by an alleged victim could be utilized. This rule was established following a successful appeal by a man named Henry Morton, who had been convicted of indecently assaulting a woman in Glasgow in 1936. The judges who heard the Morton case determined that a victim’s statement made immediately after the alleged crime could only be used to demonstrate the consistency of their account of what had happened. During a hearing in June, Dorothy Bain argued that such statements should be permitted to corroborate other evidence indicating that the crime had occurred and that the accused was the perpetrator. Eight out of the nine judges who reviewed the case agreed with her. The Lord Advocate commented that the decision furthered an “evolution towards development of a progressive and humane justice system”. She remarked: “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.” She added: “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 meticulously examine this judgment and integrate its implications into their ongoing efforts to enhance their operational methods. The reversal of this ruling is expected to enable more cases to meet the necessary legal threshold for court proceedings, although juries will still be required to be convinced beyond reasonable doubt of the accused’s guilt. The quality of the evidence in a case will not be affected, but prosecutors will gain expanded capabilities in utilizing the available evidence. The Lord Advocate has frequently expressed her commitment to improving the legal system for victims of sexual crime. The majority of rape cases reported to the police do not result in prosecutions, and among those that do, the conviction rate is considerably lower than for other offenses. For instance, in 2022/23, Police Scotland recorded 2,529 rapes and attempted rapes. In that same year, 372 rape and attempted rape cases reached the courts. The conviction rate was 48%, in contrast to more than 80% for all crimes. Speaking earlier this year, a law lecturer suggested that overturning the Morton rule would effectively signify the end of corroboration as it has been understood for nearly a century. Dr. Andrew Tickell from Glasgow Caledonian University explained that evidence from a single witness could be used to corroborate a much larger portion of the case. Nine judges considered the Lord Advocate’s request because the original decision in the 1930s had been made by seven of their predecessors. Defence lawyer Tony Lenehan KC, vice-dean of the Faculty of Advocates, indicated his belief that this action would allow more cases to be tried where previously there was a “want of sufficient corroboration”. He stated: “It certainly makes it easier to prosecute some people in some cases,” and further commented: “It won’t change the quality of evidence. It might mean that more of the cases which get to court don’t end in convictions.” This marks the second occasion the Lord Advocate has successfully secured a change in evidentiary rules. Additionally, the Scottish government is proceeding with the abolition of the not proven verdict, which many defence lawyers consider another safeguard against wrongful convictions. Mr. Lenehan remarked: “My worry is that the balance point has shifted so that inevitably there will be innocent people who end up in jail. That’s an increasing risk as we move in this direction.”