Scotland’s top legal officer, Lord Advocate Dorothy Bain KC, is requesting a change to an 87-year-old rule that could permit additional rape allegations to reach court. Her move comes after two sexual offence trials ended in acquittals last year. The 1937 ruling limits what can be done with statements made by an alleged victim shortly after an alleged crime. It has been a cornerstone of Scotland’s criminal law for decades and requires evidence from at least two sources to prove the essential facts of a case. Bain wants the judges to overturn this and allow such statements to be used as a separate source of evidence that a crime had taken place.
The High Court in Edinburgh will hear her request over two days. When dealing with rape, prosecutors must provide corroborated evidence that the accused was the perpetrator and that the physical act took place with no consent. Campaigners believe that corroboration is a barrier to justice, in particular, in sexual offence cases. Others argue it offers protection against miscarriages of justice.
This requirement for corroboration dates back to 1937 when a man called Henry Morton successfully challenged his conviction for indecent assault. Morton had been found guilty of indecently assaulting a woman in a tenement close in Glasgow in 1936. She was the only person who identified him as her attacker, and the conviction was quashed on appeal the following year. Since then, Judges have ruled that a statement made by an alleged victim shortly after an alleged offence could only be used to show that they had been consistent in their account of what happened.
Last year, Bain secured an important change in the rules on evidence distress in rape cases. She will now argue that statements taken from alleged victims after an offence should be allowed to corroborate other evidence, which would result in more cases involving rape and sexual offences going to court.
Whether the judges will agree with Bain’s arguments remains uncertain. Many believe that a lower corroboration threshold would mean that more cases could be brought forward, but it would also pose challenges to the court system that is already facing a significant backlog in cases. The judges will issue their decision at a later date
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