Corroboration in Rape Cases

The Appeal Court’s decision in the case of CLB brings us into uncertain territory, writes C. S. Fly.

Wha’s like us?  In Scotland the evidence of one witness is not enough to prove a criminal charge. There has to be other supporting evidence. Time was when this rule of corroboration was common throughout the world. It has however been abandoned almost everywhere. Scotland is not quite unique in insisting on corroboration in criminal cases. The Netherlands has a similar concept. But that is it. The days of corroboration being necessary in Scotland  may well be numbered but for the time being it is a cornerstone of our system.      

One question that has troubled the Courts is whether the apparent distress of a person alleging rape can act as corroboration of that person’s account. In October this year the Appeal Court looked at this question again in the case of CLB and the judges did not hold back.

Rape is a crime that tends to happen where there is nobody else about. Prosecutors often have to rely on circumstantial evidence such as physical injuries to provide corroboration. Distress as corroboration of an allegation of rape is controversial. Critics say it can be faked relatively easily and can be caused by conduct that falls well short of rape.

In 1997 it was decided by a Full Bench of five judges of the Appeal Court that while distress could corroborate that something distressing in general terms had happened to an accuser it could not corroborate the detail of the accuser’s statement. It could not corroborate an accuser’s account of having been raped. In October this year, in the case of CLB, the Lord Advocate asked the Appeal Court to look at this question again. As the 1997 case had been decided by a Full Bench of five judges, CLB was considered by a Full Bench of seven Appeal Court judges. They decided that the 1997 case had been wrongly decided and that an accuser’s distress can after all corroborate her allegation of rape.

That was in itself a major change. The Court however went further. Generally speaking what someone is heard to say (hearsay) is not admitted as evidence. Something said during an incident is however admitted as evidence as it is considered part of the incident itself.  This came up in the case of Cinci in 2004. In that case the manageress of a hostel having heard moaning from a shower cubicle opened the cubicle and saw a young lady crunched up in the corner naked, upset and crying and a naked Mr Cinci standing over her. The young lady immediately said “he raped me”. The trial judge allowed the statement “he raped me” to go before the jury as evidence of rape on the basis it was part of the whole incident. Mr Cinci was convicted. The Appeal Court disagreed saying these words had no evidential value as they had been said after the incident and the conviction was quashed.  In the CLB case the Court looked at the decision in the Cinci case. In a major departure from what had been thought before, they held that a statement uttered soon after an incident by an accuser who is distressed is available as evidence. So, if a distressed accuser soon after an alleged incident is heard to say “he raped me” that statement is an independent piece of evidence that can corroborate what the accuser says later in the witness box.

And there was more. For many years it had been accepted that while not all elements of a crime have to be corroborated the essential elements must be corroborated. In a rape it was accepted that the essential elements were (a) penetration of the vagina (b) by the accused’s penis (c) using force and (d) without consent. In CLB the Appeal Court swept away this notion of having to corroborate all the essential elements of a crime. They decided that the only thing that needs to be corroborated is that the crime charged was committed. The evidence should be looked at in the round to see whether an accusation of rape is corroborated. This could be a very significant change.

The decision in CLB means it is much easier for a prosecutor to reach the minimum standard of evidence needed to bring a prosecution. More cases can be brought to Court. Whether this will have any impact on the low conviction rate in rape trials is another matter. If juries have been reluctant to convict where there is strong evidence they might not be any more keen to convict where the only corroboration is the accuser’s distress at the time. It may be of more relevance in the pilot scheme of juryless trials.There is a possible problem with all of this. Scotland has another claim to be unique.   Jurisdictions with similar jury systems to Scotland generally insist on a unanimous or near unanimous jury verdict for a conviction. Scots Law allows a conviction where eight of a jury of fifteen are in favour of a guilty verdict, a bare majority. Some might say that if seven members of a jury think an accused should be acquitted that is a good indication that there is a reasonable doubt. However, to an extent any unfairness arising from this is offset by the insistence on corroboration. The system has to be looked at as a whole. Coincidentally, a Bill placed before the Scottish Parliament before CLB was decided provides that a jury can only return a guilty verdict if there is a two thirds majority in favour if a guilty verdict. That is still a far cry from a near unanimous verdict and arguably does not go far enough if the corroboration rule is weakened or abolished. When the Court weakens the rules of corroboration that is done in isolation. The other checks and balances are not reset. That brings us into uncertain territory.

C. S. Fly is a retired Sheriff from the west of Scotland.