A landmark judgement by eight Scottish judges is expected to increase the number of rape cases prosecuted and lead to more convictions. The decision overturns an 87-year-old regulation that limited the use of statements made by a victim immediately after an alleged crime. The Lord Advocate Dorothy Bain KC made the request for the change following two sexual offence trials resulting in acquittals in the previous year. At present, it remains unclear what impact the change will have but it is expected that overturning the regulation will allow more cases to reach the court.
The issue at the centre of the change is corroboration, a unique aspect of Scotland’s criminal law; it mandates evidence from at least two sources to prove the essential facts of a case. Campaigners have asserted that it is an obstacle to justice, preventing many cases from reaching court. In contrast, supporters argue it is essential to prevent wrongful convictions. The Lord Advocate’s request for the rule to be overturned targeted cases where statements can be used to prove that a crime has occurred and that the defendant was the perpetrator of that crime.
The original regulation, in place since the 1930s, resulted from a successful appeal by a man called Henry Morton, after his conviction for indecently assaulting a woman in Glasgow in 1936. The judges who heard the case ruled that the victim’s statement made immediately after the alleged crime could only show whether the details of the statement were consistent with subsequent accounts. During a hearing challenging this regulation in June, Dorothy Bain argued that statements should be able to corroborate other evidence that the crime had occurred and that the accused was the perpetrator. Eight out of nine judges agreed with her.
Overturning the ruling should lead to a higher number of cases passing the legal threshold required for court, although juries will still have to be satisfied beyond reasonable doubt of the defendant’s guilt. The decision is anticipated to have a positive effect on rape survivors’ access to justice, which is often hampered by the current legal system. The majority of rape cases reported do not progress to prosecution. Even for those that do, the conviction rate is significantly lower than for other offenses.
In 2022/23, Police Scotland recorded 2,529 rapes and attempted rapes, of which 372 cases reached the courts. The conviction rate for these cases was 48%, compared to more than 80% for all crimes. Dr Andrew Tickell, a law lecturer from Glasgow Caledonian University, recently stated that overturning the Morton rule would mark the end of corroboration as it has existed for almost a century, as the evidence of a single witness could now be used to corroborate far more of the case. Eight judges out of the nine hearing the case agreed with the Lord Advocate’s request
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