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REFERENCE BY HMA AGAINST CLB [2023] ScotHC HCJAC_40 (18 October 2023)
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[2023] HCJAC 40
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 40
HCA/2023/6/XM
Lord Justice General
Lord Justice Clerk
Lady Paton
Lord Pentland
Lord Matthews
Lord Boyd of Duncansby
Lady Wise
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in the Reference by
HIS MAJESTY'S ADVOCATE
Appellant
against
CLB
Respondent
Appellant: The Lord Advocate (Bain KC), Harvey AD, Scullion AD; the Crown Agent
Respondent: The Dean of Faculty (Dunlop KC), S Latif, (sol adv), Culross, Loosemore; John Pryde
& Co, SSC (for Craig Wood Solicitors, Inverness)
18 October 2023
2
Contents
Page
Para
Introduction
4
Facts
10
The Corroboration Trail
13
Origins
Relevant Institutional Writings
13
14
Hume
Burnett
Alison
1797 1844
1811
1832
15
19
21
The textbooks
24
Dickson
Trayner
Macdonald
Renton and Brown
1855 1894
1894
1867 1948
1912 - date
24
25
25
28
Early Judicial Analyses
1893 - 1957
30
Lees v Macdonald
Lockwood v Walker
Scott v Jameson
McLennan and McCrindle
Strathern v Lambie
Morton v HM Advocate
1893
1910
1914
1928 1930
1934
1938
30
32
33
33
35
36
Post Morton
38
O'Hara v Central SMT
Burgh to Dalton
Gillespie v Macmillan
Crucial facts academic work
1941
1944 - 1951
1957
1957 1987
38
40
42
46
Distress as corroboration cases
50
Yates and following
A change in direction
Smith v Lees
Mackie and Fox
Following Fox
1976 1987
1990 - 1994
1997
1994 1998
1998 2022
50
53
56
62
67
De recenti developments
72
Cinci v HM Advocate
O'Shea v HM Advocate
Wilson v HM Advocate
2004
2015
2017
72
74
76
3
The Commonwealth and Irish cases
77
England and Wales
Canada
New Zealand
Australia
South Africa
Ireland
78
80
81
81
83
84
The Reference
85
Submissions
85
Crown
Respondent
85
94
Decision
102
Sufficiency in general
Proof of the case or the facts
Sufficiency in sexual offences
Smith v Lees
De recenti statements
102
105
110
114
118
Conclusion
124
4
Introduction
There is no dispute that, "... no one shall in any case be convicted on the testimony
of a single witness" (Hume: Commentaries on the Law of Scotland regarding Crimes (Bell ed)
ii, 383). Corroboration is required. The direct (eye witness) testimony of one witness may be
corroborated not only by another eye witness but also by facts and circumstances which are
spoken to by another witness or witnesses. A case may be proved solely by facts and
circumstances; each fact being spoken to by only one witness (ii, 384). It is not for the court
to decide whether or not this longstanding requirement of the law of evidence should be
departed from. That is a matter for the Scottish Parliament. However, it is for the court to
decide when, and to what, the requirement applies and what constitutes corroboration.
That is something upon which the court has regularly ruled for over a century. Before
revisiting that journey, it is important to make some observations on the context in which
this debate is taking place; the prosecution of increasing numbers of sexual offence cases,
especially rape.
Throughout the whole of the nineteenth and twentieth centuries, rape could only be
committed by a man. It was defined as having sexual intercourse with a woman by
overcoming her will by force, including threats (Hume: Crimes i, 301). The reference to force
may have been a change from an earlier formulation whereby the crime was committed
simply by having vaginal intercourse without the woman's consent. In any event, as with
most other common law crimes, the focus was on the accused's acts and intention. It was to
the earlier formulation that the law returned in 2002 as a result of Lord Advocate's Reference
(No 1 of 2001) 2002 SCCR 435, overruling HM Advocate v Sweenie (1858) 3 Irv 109. This Full
Bench decision, by a majority of 5 to 2, determined that, if intercourse without consent were
5
proved, the required mental element was not an intention to have intercourse with the
woman without her consent, but for the man either to know that the woman was not
consenting or to be reckless in that regard.
The Sexual Offences (Scotland) Act 2009 (section 1(1)) replaced the recently re-
formulated common law definition so that rape could be committed against a man and
could involve other forms of penile penetration. It introduced, as a constituent element of
the crime, an absence of "reasonable belief" that the other party was consenting.
These changes have, in recent years, caused significant practical problems for the
courts and practitioners in understanding just what is needed to constitute a sufficiency of
evidence for the crime of rape. For example, after the 2009 Act came into force, it was
argued, on several occasions successfully, that this newly defined mental element required
to be proved by corroborated evidence. Those advancing this submission relied upon the
mental element having become a constituent of the crime, rather than a possible defence.
This was despite clear guidance in Spendiff v HM Advocate 2005 JC 338, that the necessary
mental element in rape could be inferred from the circumstances in which the act charged
took place. This innovation was caused partly by what had been said about the need to
prove crucial facts in Smith v Lees 1997 JC 73 and what these facts were thought to be. It was
only with Graham v HM Advocate 2017 SCCR 497 that this notion, that the mental element of
a crime required to be proved by corroborated evidence rather than be inferred from
established fact, was conclusively dispelled (see also Maqsood v HM Advocate 2019 JC 45).
Returning to corroboration as a generality, towards the end of the 19th century, in
Lees v Macdonald (1893) 20 R (J) 55, 3 White 468, the Lord Justice Clerk (Macdonald)
1
1
Lord Kingsburgh
6
explained (at 57) that "in any case any fact can be proved by one witness although the whole
case cannot be so proved" (emphasis added). Lord McLaren agreed with this in saying (at
58) that: "All that the law demands is that there should be two witnesses to prove a case...
[A]ny fact... may be proved by the testimony of one credible witness" (emphasis added).
In the years before the First World War, in Lockwood v Walker 1910 SC (J) 3,
(1909) 6 Adam 124, the same Lord Justice Clerk (Macdonald) added (at 5) a gloss on this whereby not
only were two witnesses required to prove a case, but also that every crucial fact in a case
required such proof in the form either of two eye witnesses or one eye witness
supplemented by corroborative facts and circumstances. This view was strengthened, at
least in relation to the identity of an accused as the perpetrator, in the years leading up to the
Second World War, by the Full Bench in Morton v HM Advocate 1938 JC 50.
In the post war years, in another Full Bench decision, Gillespie v Macmillan 1957 JC 31,
the Lord Justice General (Clyde) reiterated (at 35-36) that no person could be convicted on
the evidence of a single witness, but two witnesses were not required to prove every fact.
He continued (at 36):
"In between these two extremes there is an infinite variety of possible situations in
which the question of sufficiency can arise, and no single test of sufficiency which
will solve every ... situation has ever been or ... can be laid down."
Thereafter, it was contended by many that there were two contrasting schools of thought;
one following Gillespie v Macmillan and the other supporting Lockwood v Walker. For there to
be two such schools on a central pillar of the law of evidence is highly undesirable. It leads
to both uncertainty and inconsistency.
The approach of the court shifted away, from what might have been regarded as a
flexible approach in Gillespie v Macmillan, when a third Full Bench was convened, 40 years
7
later, in Smith v Lees. This decided, in short, that evidence from a witness that he or she had
seen a complainer showing signs of physical distress immediately after alleged lewd
practices had been directed against her, could corroborate that complainer's lack of consent
but not what the complainer said had been done to her without her consent.
The law relating to sexual offences and the requirement for corroboration have been
shadowing each other down the years. Now, some twenty five years later, the Court has yet
again convened a Full Bench, at the request of the Lord Advocate, to review whether Smith v
Lees was correctly decided. The Lord Advocate's Reference has drawn into the equation,
albeit at the suggestion of the court, some of the dicta in Morton about the evidential value of
de recenti statements when they are coupled with observed distress, as they almost always
are.
The court's task of reviewing when, and to what, the requirement for corroboration
applies, and what corroboration amounts to, is one which has been undertaken by
successive generations of judges. That may be a benefit of a common law (or in Scotland's
case a hybrid) system. Society's problems and attitudes alter over time. Evidential
requirements may have to change with them in order to meet the public's expectations from
its system of criminal justice. Unlike Parliament, the court cannot decline to consider these
issues when asked to do so, either in an appeal or, as in this case, a Reference from the
Crown. It must determine the issues in the context of modern societal values and thinking.
These, and in particular the approach to be taken to the testimony of women, are not the
same as they were in the 19th century or even, apparently in some cases, that of only a
quarter of a century ago (MR v HM Advocate 2013 JC 212, at para [17]).
8
If an informed bystander were to look at the developments in the evidential
requirements in sexual offences cases over the last century, he or she may form the
impression that the court has been, at times, not only making it increasingly difficult for the
prosecution to meet the formal requirements of proof but has also introduced layers of
complexity which make the direction of juries more and more difficult in areas with which
they will not be familiar. The volume of sexual offence cases at an appellate level, many of
which have resulted in acquittals because of misdirections of juries by judges, including
some very experienced judges, illustrates the extent of the problem. It is one which has to
be, and can only be, addressed by the court setting the parameters within which juries can
operate satisfactorily. That is what this opinion is ultimately designed to achieve.
Meantime, steps have been taken to address so called "rape myths". In Donegan v
HM Advocate 2019 JC 81, the court observed (at para [56]):
"In recent years, in line with the approach in other jurisdictions, notable steps have
been taken in Scotland seeking to address and demystify for court users various
supposed "myths" associated with the reporting of and the reliability of rape
allegations; and to improve the experiences of those involved and those giving
evidence. Procedures have been adopted to address the perceptions of the jury and
the requirement of their role, most notably section 288DA of the Criminal Procedure
(Scotland) Act 1995."
Sections 288DA and 288DB of the 1995 Act are designed to address some of these
myths. Their purpose is to reflect modern thinking, whereby the fact that a complainer may
not have disclosed or reported the offence, or may not have physically resisted the accused,
leads to an inference that the complaint is false. Since the introduction of these sections
there has been a growing awareness of the effect of trauma on those who have been
subjected to rape, sexual assault or sexual abuse. Different people may react in different
9
ways to having been subjected to these crimes. There is no set way in which individuals can
be predicted to behave in the aftermath of a sexual offence.
The issue of rape myths has been the subject of research, much of which is recorded
in the Final Report from the Lord Justice Clerk's Review Group (March 2021) on Improving
The Management of Sexual Offence Cases (at paras 5.17-5.19; and 5.37-5.44). The Report notes
(at para 5.27):
"... there remain opportunities for further enhancement of the current jury system to
assist decision making and increase public confidence by the use of: plain language,
educational materials, education about rape myths, clear and written directions,
some form of route to verdict and other mechanisms...".
Following the Report, written directions for jurors have been introduced. A strong
emphasis has been placed on the use of plain language to assist comprehension. The Review
Group concluded (at para 5.54):
"... it is necessary for information on certain rape myths to be communicated to the
jury in an objective and clear manner. There seemed to be little disagreement about
this, in principle, within the Review Group: what seems to be less settled relates to
identification of the circumstances in which this should be done, and the best means
of doing it... ".
The Group recommended (at para 5.57) that:
"... there may be much to be said for relevant directions on rape myths being given
by the judge both in their introductory remarks at the start of the trial, or otherwise
as soon as such points arise."
That recommendation has been acted upon, in the form of directions set out in the Jury
Manual (7.10/132-7.11/132); the guide book for judges and sheriffs when charging juries.
It is important therefore to stress that the court does not address this Reference from
any view that a complainer may, as a matter of course, be expected to exhibit distress in the
aftermath of a sexual offence. The court proceeds entirely in accordance with the views
expressed (at para 5.54) by the Review Group, viz.:
10
"... there was no default presentation to be expected from someone who has been
raped. She or he may show little emotion or may show considerable emotion. Given
the importance which the law attaches to a witness's demeanour, this is one example
of the need to address the potential for misconceptions to feature in jury
deliberations."
The circumstances of each individual complainer, and their reaction in the aftermath
of an offence, may vary enormously from one individual to another. However, in the
context of a system which requires corroboration for proof of a crime, these circumstances
may take on a particular evidential significance, whether in relation to a physical injury, the
observation of distress or the making of de recenti statements. It is important that the law is
clear on the role which may be played by each of these features in the specific cases in which
they arise. That is not to say that such features are always, or even usually, to be expected.
Facts
The respondent was charged with the assault and rape of the complainer at an
address in Inverness in March 2019. He was alleged to have supplied her with alcohol and
an unknown substance, which had rendered her heavily intoxicated. The trial at Aberdeen
High Court took place in November 2022. The complainer gave evidence in the form of a
recorded interview with the police, which had taken place about six months after the
incident, and a later pre-recorded commission to take her evidence, which included cross-
examination. Both recordings were played to the jury during the trial. The complainer did
not need to attend court.
The circumstances, as described by the complainer, were that she had been provided
with emergency accommodation in a block of flats in which the respondent also lived. She
and her boyfriend had been smoking on the stairwell on the middle floor, where her flat was
11
located. The respondent, who was intoxicated, invited them up to his flat on the top floor.
They drank some cans of lager. The complainer felt that the cans had been "spiked". At
some point, the complainer's boyfriend left to find his tobacco. Shortly thereafter, the
respondent attacked the complainer, threw her onto a bed, removed her clothing and had
intercourse with her without her consent. Not long after that, the complainer's boyfriend
returned. He knocked on the door. The respondent answered it whilst naked. When he did
so, the complainer escaped.
The complainer's boyfriend gave evidence at a pre-recorded commission. He had
left the flat for only about 15 minutes. He returned and knocked on the door. The
respondent answered by opening the door only slightly. He did not seem to have any
clothes on; certainly no top. Very shortly afterwards, the complainer came out of the flat.
She was very distressed. She was shouting and screaming that she had been raped. She was
crying and in shock. Her hair was all messed up. Another witness saw the complainer in
the stairwell, saying that someone had raped her. She was devastated, shaken up and
scared. Her make-up was all over the place. She was upset, screaming and crying. She
pointed up towards the respondent's door and said "It was him. He done it". There was
evidence from the complainer's sister of a phone call from a friend after the incident, in
which she could hear her sister crying and screaming in the background.
The respondent did not give evidence. He had been interviewed by the police. In
his interview, he denied having any sexual contact with the complainer. The respondent's
account at interview was that, having remonstrated with the complainer and her boyfriend
for loitering in the stairwell, he had invited them into his flat. This was something to do
with shielding the boyfriend from the police and/or his father. There had been no physical
12
interaction. No drink was consumed. After an hour or so, the respondent asked the
complainer and her boyfriend to leave. Later, a friend of the respondent arrived to watch a
football match on television. He stayed overnight. On the following morning, the
respondent was woken up by the police because his flat door was lying open. He could not
remember much of what had happened during the previous evening.
The trial judge correctly determined that there was sufficient evidence for the case to
go to the jury; the evidence of witnesses, other than the complainer, on timings and the
respondent's naked appearance at the door, being corroborative of the complainer's account
along with the distress. The judge gave the jury the standard direction that, where there was
an eye witness to an event, the corroboration did not have to be more consistent with guilt
than innocence. All that was required was that it provided support for, or confirmation of,
or fitted in with, the direct evidence of the complainer on the material facts. The judge told
the jury that, for proof of rape, they had to be satisfied that: (1) the respondent had had
sexual intercourse with (ie had penile penetration of) the complainer; and (2) the intercourse
had been without the complainer's consent. Both elements required to be corroborated.
The judge took considerable care to charge the jury on distress as corroboration. He
directed them repeatedly and at length that, if they accepted that the distress had been
genuine and had been caused by whatever had happened, it could both corroborate the
complainer's lack of consent and support her general credibility. It could not, however,
corroborate the complainer's evidence about what the appellant had done. In particular, it
could not "of itself" corroborate her testimony that penetration had occurred. For
penetration to be proved, the jury had to rely on more than just the distress, although the
judge emphasised that the distress was a factor in the equation. They had to rely on the
13
other facts and circumstances, including the timings and the naked appearance of the
respondent at the door. The judge was critical of the manner in which the Advocate depute
had presented the case. It had lacked the correct focus, which ought to have been on the
timings and the respondent's nakedness rather than the complainer's distress.
On the statements made by the complainer to her boyfriend and others, both at the
scene and on the phone, very soon after the rape was said to have happened (de recenti
statements), the judge directed the jury that what the complainer had been reported as
saying could not corroborate her testimony about what had happened. It was available only
to help them in assessing the quality of the complainer's testimony. It was only a guide to
credibility and reliability.
On 15 November 2022, the jury found the case not proven by a majority verdict. The
basis for the jury's reasonable doubt may have been prompted by the directions, notably
those on the evidential effect of the complainer's de recenti statements and the inability of
distress to corroborate penetration. Neither of these concepts in the law of evidence, as
currently applied, is without difficulty. Yet the rules of evidence should be as simple as is
consistent with their purpose (see Scottish Law Commission 100th Report Evidence: Report
on Corroboration (1986) para 1.3).
The Corroboration Trail
Origins
Much has been written about the historical origins and development of the
requirement for corroboration. Its Biblical, Roman and Canon law sources were outlined in
the Carloway Review (2011, at para 7.1.1 et seq citing, inter alia, Gordon: At the Mouth of Two
14
Witnesses in Hunter (ed): Justice and Crime Essays in Honour of Lord Emslie at 33). It is worth
observing in limine that the requirement was, for obvious reasons, particularly important if
the death penalty were involved (Numbers 35 v 30; Deuteronomy 17 v 6; cf 2 Corinthians
13 v 1-4)). Corroboration was not always a feature of the law of evidence in criminal trials.
In the 10th to 12th centuries, in a God fearing world, trial by ordeal was in use until abolished
in 1215 by the Fourth Lateran Council (see APS 1230 c 6).
A realisation, that a determination by a judge might be an improvement on the
results of an ordeal, prompted a change in approach. There remained a lack of confidence in
the judgment of man, whether judge or jury, when compared to that of God. Throughout
mainland Europe, over time, this culminated in the ius commune's (the common civil law)
adoption of a requirement to have either a confession or the testimony of at least two
witnesses. Circumstantial evidence alone would not, until much later, suffice to provide
corroborative proof, either alone or in combination with direct testimony. Although the ius
commune had little influence on the development of trial by jury in England, it did take hold
in Scotland even if Norman customs, which employed a jury, were utilised from the early
13th century, once the church had refused to sanction ordeal (see Walker: A Legal History of
Scotland I, at 231). It is unnecessary, or would at least be unproductive, to delve too deeply
into the origins and development of the requirement, since ultimately the starting point
must be with the Institutional Writers of the later Enlightenment. It is nevertheless worth
noting that the ancient requirement is about the number of witnesses, not facts or sources of
evidence.
Relevant Institutional Writings
The Institutional Writers are those few outstanding individuals who stated the law
15
as it was up to or about the advent of the 19th century, before regular law reporting began to
establish a system of precedent. Their works are a formal source of law, even if the court
may decline to follow some of the principles which they espouse, where they are clearly not
applicable in the modern world. Mackenzie had published his Matters Criminal as early as
1678, but he did not deal with sufficiency of evidence as a generality in any meaningful way
(cf title 26, para 14 et seq). In 1693, the need for two, or in some situations up to seven,
witnesses to prove an allegation was noted by Stair: Institutions IV 43.2, citing Biblical
sources. Stair took a Biblical reference to "every word" as meaning each allegation. Stair
did not detail the requirements of sufficiency much beyond that. It is thus best to start with
David Hume, the nephew of the philosopher of the same name, in order to understand the
requirement as it appeared at the end of the 18th and the beginning of the 19th century. This
was an era in which some matters were not capable of proof by any amount of parole
evidence. That approach has only recently been altogether left behind (Requirements of
Writing (Scotland) Act 1995, s 11).
Hume
Hume was an advocate, sheriff and the Principal Clerk of Session. He was professor
of Scots law at Edinburgh before becoming Baron of the Court of Exchequer. He is primarily
recognised as an academic in both civil and criminal law. His works reflect a scholarly
approach.
In Hume's introduction to his Commentaries on the Law of Scotland respecting the
Description and Punishment of Crimes (1797) there is no general treatment of sufficiency
beyond a statement that, whereas English juries could convict on the testimony of one
witness, Scottish juries could not (i, at xlv). There is no obvious mention of corroboration.
16
Hume examined sufficiency of evidence and modes of proof but only on a crime by crime
basis. He explained the rationale for that approach by reference to the kind of evidence
which was normally available to prove a particular offence (see for example: theft at i, 151;
hamesucken at ii, 38; and adultery at ii, 313). On rape, he wrote that the evidence of the
complainer was necessary testimony without which a conviction could not normally be
obtained. Owing to what Hume regarded (ii, 15) as the "secret" nature of the offence, and
the resultant difficulty which an accused person would face in attempting to disprove a false
allegation, the credit to be given to the complainer's testimony was to be evaluated
according to the "probability of her story, (all circumstances considered), and the concurrent
evidence which supports it".
In his Commentaries on the Law of Scotland respecting Trial for Crimes (1800), Hume
dealt (ii, 231) with "And of Proof in General" under a side note "Single witness is not lawful
evidence". His treatment of the subject was repeated, almost verbatim, under the heading
"Of Proof by Witnesses", in his Commentaries on the Law of Scotland respecting Crimes (1819;
xiii, 369) and in what are regarded as the third (1829) and fourth (1844, adding Bell's notes)
editions of that work ("Crimes"). The same side note is used. It is to the latter work that
reference is commonly made. What is said there (ii, 383) is so ingrained as an accurate
statement of the law that it requires to be set out in some detail.
Hume explains that the subject of the competence of witnesses is a matter of law for
the court. He refers (ii, 339 - 340) to the older practice, which was prevalent even in the
17th century, of excluding women from giving evidence. Exceptions could be made, and the
evidence of a female witness could be admitted cum nota (with reservations as to weight;
Trayner: Latin Maxims at 129) in respect of "all things done without doors" and simpliciter
17
(directly) for "things done within doors". However, Hume continues (ii 340) that, by the
time he was writing, "reason and humanity at length [had] prevailed against this illiberal
and iniquitous distinction and women's testimony was admitted and given equal credit to
that of men "in all cases and situations". Hume explains (ii, 382 - 383) that he was
"unwilling to engage" in the rules by which "a jury shall be guided in forming their opinion
of the sufficiency of the evidence"; it being a matter for the jury to determine "what amounts
to evidence, and what to grounds of suspicion only". He proffers (ii, 383), with some
diffidence, "Two or three particulars ... as grounded in the universal opinion, and
confirmed with numerous examples", as follows:
"One relates to the direct mode of evidence, by the testimony of such persons who
have seen the deed done; and it is this, that no one shall in any case be convicted on
the testimony of a single witness. No matter how trivial the offence, and how high
soever the credit and character of the witness, still our law is averse to rely on his
single word, in any inquiry which may affect the person, liberty, or fame of his
neighbour; and rather than run the risk of such an error, a risk which does not hold
when there is a concurrence of testimonies, it is willing that the guilty should
escape."
Having referred to several cases, and to the earlier practice, which was also prevalent
in continental Europe, of inflicting a lesser form of punishment when proof was defective,
Hume continues (ii, 384):
"It would not however be a reasonable thing, nor is it our law, that the want of a
second witness to the fact cannot be supplied by the other circumstances of the case.
If one man swear that he saw the pannel [accused] stab the deceased, and others
confirm his testimony with circumstances, such as the pannel's sudden flight from
the spot, the blood on his clothes, the bloody instrument found in his possession, his
confession on being taken, or the like; certainly these are as good, nay better even
than a second testimony to the act of stabbing.
Neither is it to be understood in cases of circumstantial evidence, either such as the
foregoing case, or one where all the evidence is circumstantial, that two witnesses are
necessary to establish each particular; because the aptitude and coherence of the
several circumstances often as fully confirm the truth of the story, as if all the
witnesses were deponing to the same facts."
18
Hume cautions lawyers against laying down any rule in this area, before concluding
(ii, 385) that he had assumed that it was lawful to convict on the basis of circumstantial
evidence only; that being a position grounded "in reason and necessity, and the law and
practice of all other civilised realms." Hume refers (ii, 384 and 386) to Stewart Abercromby,
14 January 1723, in which a number of circumstances were used jointly to infer guilt of
murder even although a material circumstance, that the pannel was alone with the deceased
in a tavern near where the murder was committed, was spoken to by only one witness.
Mr Abercromby had left his hat in the tavern. In dealing with the inadmissibility of hearsay,
Hume adds a footnote explaining (ii, 406-407) that it is necessary to distinguish hearsay from
"words uttered to a witness [which] are a substantial part of the res gesta, told by such
witnesses" which explain why the person uttering the words acted in a particular way. He
uses an analogy of the victim of a highway robbery in which the victim describes the
robbery and the robber to a witness. The witness pursues and finds a person of that
description carrying incriminatory items. The witness's evidence of the victim's verbal
account of what happened would be "equally admissible in evidence as the rest of the
story". Hume gives another example of the victim of a rape reporting the rape to her mother
"recently after the fact" and her mother then seeking medical assistance. "What passes
between [the victim] and her mother is a necessary portion of the thread of the mother's
story, and serves to connect and expound the facts she swears to". Bell includes (ii, 273)
Duncan McMillan (1833) in his supplemental notes. There, the Lord Justice Clerk (Boyle)
defined the limits of corroboration in a rape trial by saying that, whilst the testimony of one
witness was not sufficient, "if there were a single witness, corroborated by circumstances
`sufficient to satisfy the jury', they were entitled to convict".
19
Burnett
John Burnett's Treatise on various branches of the criminal law was published
posthumously in 1811. Burnett was an advocate, Advocate depute and sheriff of
Haddington during a career which culminated in his appointment as Judge Admiral. His
work is incomplete. It is occasionally cited, but not with the frequency or authority of either
Hume or Alison (infra). Burnett deals separately with direct evidence on the one hand and
direct and circumstantial evidence on the other. On direct evidence, he states (at 509),
following Biblical and Roman tracts, that "legal" direct evidence requires two concurring
witnesses, but that proof of collateral circumstances renders the testimony of the single
witness "legal". Like Hume, Burnett noticed the difference between Scotland and England.
He explains (at 515) that "The rule we have mentioned, as to the necessity of two witnesses
to separate facts", does not apply "to what are merely collateral circumstances either when
brought in aid of direct proof, or when the whole evidence is circumstantial".
Burnett refers (at 515) to proof of "the fact charged" and "the substantive fact
charged". He states that it is "in few cases" that two witnesses are called to prove
circumstances, either by confirming direct evidence or by making out a circumstantial case.
In a footnote, having referred to two cases cited by Hume, Burnett mentions "a strong
instance of the contrary rule, as applicable to fundamental facts". This may be the first
mention of such facts. In the same footnote, Burnett describes what facts and circumstances
were proved, and not proved, in that instance. He cites Isobel Williamson, 1723 at Ayr, in
which two witnesses saw the accused go towards the place where the deceased was found
dead. One witness saw the two together, with the accused having her hands on the
deceased's shoulders. Another witness saw the two engaged in a severe struggle. Shortly
20
after this the deceased was found dead. One witness deponed to the deceased's cravat being
tied as tightly as possible around his neck. The jury found the charge not proven and the
accused was acquitted.
Burnett continues in the same cautionary vein as Hume (at 516):
"... [W]here the facts, in a circumstantial case, are what may be termed fundamental
in the cause, and either apply to the corpus delicti [the offence], ... - There, something
more is in general requisite, than the testimony of one witness to such facts. But, in
truth, no general rule can properly be laid down with regard to such cases; for the
other circumstances proved will necessarily affect the proof of a fundamental fact, and
render it complete, though established only by one witness, in the same way as
circumstances go to complete the semiplena probatio [half proof] of one witness
regarding the corpus delicti."
Burnett starts his chapter on direct and circumstantial evidence by stating (at 518),
with a side note "Direct and circumstantial evidence the most satisfactory", that:
"Though the law hold one witness swearing to the fact directly as not sufficient, it
allows his evidence, when supported by circumstances, to be considered as
amounting to full legal proof; and this constitutes that mixed evidence which is so
common in the prosecution of crimes, and which is in many cases quite conclusive
and satisfactory. For though the law no doubt consider the evidence of two
unexceptionable witnesses swearing to the fact, as the most perfect and complete, it
may sometimes happen, that even this sort of proof is not so convincing to the mind,
as the joint evidence arising from circumstances and direct testimony."
He continues (519), in a passage which will have a bearing on the probative value of a de
recenti statement:
"What those circumstances are which ought to confirm and render complete the
semiplena probatio of one witness, it is impossible to determine by any rule, - as the
result depends upon the nature and quality of each circumstance, and their joint
effect when combined; and also on the view taken of them by those who are to judge
of the case. This only may be noticed, that the circumstances founded on must be
extrinsic of the witness. No evidence, which goes merely to support the credibility of
the witness in the account he has given of the fact to be proved, as by establishing
that he had recently after communicated what he had seen or heard to another
person, and had been all along consistent in his story, will be held as sufficient to
supply the want of another witness to the fact. For though circumstances of this sort
be competent and admissible to strengthen the credit of a witness, they still leave the
fact, he speaks to, resting on his single testimony."
21
In dealing specifically with rape, Burnett refers (at 553) to Sir Matthew Hale's
statement that "it is an accusation easy to be made, hard to be proven, but harder to be
defended by the person accused though innocent" (Pleas of the Crown 835). Sir Matthew was
Lord Chief Justice of England. Burnett distinguishes (at 554) the position in Scotland which
"requires various corroborating circumstances". The "recency and manner of her
complaining is ... a circumstance of weight as a matter of evidence". Burnett cites (at 554 fn)
the case of Cook, September 1774, Dumfries, in which the complainer, aged 14, testified to
being raped. She was heard to cry out, but there were no marks of violence on "her person
or privities", which the surgeon said there would be if an immature girl were raped by a
grown man. The nymphaea had not been pierced. Nevertheless, the jury found Mr Cook
guilty. Lord Auchinleck, who was the father of James Boswell, sentenced him to death.
Dealing specifically with the rule against the admission of hearsay, Burnett explains (at 601)
that a statement which is part of the res gesta is excepted from this rule. He continues (at
602) in relation to a woman who has been raped, but who could not be a witness:
"... [I]t is competent, and may be a material fact, in corroboration of any witness's
testimony, to prove what he said de recenti."
Alison
Archibald Alison's Principles of the Criminal Law of Scotland was published in 1832.
Whilst paying homage (Preface) to Hume's work, "which must always form the foundation
of our Criminal Jurisprudence", Alison's work was intended to be, and is, one of more
practical utility. Alison's career at the Bar culminated with his appointment as Sheriff
(Principal) of Lanarkshire. He was otherwise generally well known as an historian.
When dealing with murder, Alison wrote (Principles at 73, para 24):
22
"Legal evidence in murder, is founded either on the direct testimony of two
witnesses, or of one witness with a train of circumstances, or of such a train of
circumstances by themselves, as leave no reasonable doubt in the mind that the
pannel was guilty."
He comments that "perhaps" the most important branch of the criminal law in practice, viz.
sufficiency of evidence, was one on which little or no information was to be found in books.
Juries were "perpetually misled by erroneous statements of what is really necessary to
constitute legal proof". Having analysed a significant number of murder trials, Alison
continues (at 89), as with Hume and Burnett, in a cautionary tone:
"... [T]he measure of legal evidence can be determined by no other rule than that it
must be such a chain of circumstances or such direct proof, as appears inconsistent
with the prisoner's innocence, and leaves no reasonable doubt ... that the prisoner is
guilty ... Unquestionably the evidence of one witness will not in any case be
sufficient; that is to say, it will not do for the prosecutor to examine one witness and
close his case. But, on the other hand, the evidence of one witness, accompanied by a
train of circumstances, each link of which is established by a single unexceptionable
testimony, is unquestionably sufficient; nay, a chain of circumstantial evidence alone,
proved in the same manner, of itself often amounts to the most conclusive legal
proof. No more specific rule can be laid down for the weighing of such testimony,
but that it must be such as produces conviction of guilt in a reasonable mind...".
In his treatment of rape, Alison refers (at 220) to the prospect of the woman
concocting an allegation in order to preserve her character before observing that:
"The principal point to attend to is, whether her statement, in regard to the violence
used, is duly corroborated; and this is done in the most unexceptional way by such
physical appearances as afford real evidence of the truth of her story, and after that
by the evidence in regard to her subsequent disclosure of the crime to her relations,
or the public authorities, and her previous character for modesty and correct
demeanour."
Under reference to Sir Matthew Hale's comment, Alison describes (at 221) what
circumstances may support the woman's account, including signs of injury and the nature of
the locus, along with those indicating otherwise.
23
In his companion volume, Practice, Alison laments (at 505) the absence of legal
literature dealing with the examination of witnesses. Writing about hearsay generally, he
states (at 515):
"Farther, even in the case of the actual sufferer, it is not every account which he has
given to others, which will be allowed to be repeated in evidence. It is those
accounts only to which this privilege is extended, which are connected, more or less
directly, with the res gesta of the injury, or which were so recently given after it, as to
form, in some sort, a sequel to the actual violence. Upon this principle, the account
which the injured party has given of the assault to his family, or those with whom he
lodged, when he returned home, and exhibited his wounds, is clearly admissible, or
which fell from him on that or the following day, when recounting the transaction, or
showing his wounds to his friends; but a different decision would be given if an
attempt were made to prop up his evidence by the account which he gave of it to
strangers some days or weeks afterwards, and without the intervention of any thing
which connected it with, and rendered it in some degree, the natural sequel of the
violence."
He continues (at 551) by describing the requirements for corroboration in clear terms under
reference to Hume (ii, 383):
"14
The evidence of a single witness, how clear and conclusive soever, is not
sufficient to warrant a conviction; but the evidence of one witness is sufficient, if it is
supported by a train of circumstances, or even a chain of circumstances alone is
sufficient, if it is so strong as to leave no doubt in a rational mind."
He cautions (at 551) that:
"... [T]his rule is to be taken in a reasonable sense, and is not to be carried to the
extravagant length to which it is often pushed by counsel, desirous of perplexing
juries in cases too clear to admit of dispute on any rational grounds."
The absence of a second witness may be cured by a chain of circumstances, each link in
which is proved "only by a single testimony" (at 551). Convictions can proceed on
circumstantial evidence alone, provided it is sufficiently clear and conclusive as to leave no
reasonable doubt in an intelligent mind.
In specific contrast to Burnett (at 516), Alison states (Practice at 552) that there is no
authority in modern practice for the proposition that two witnesses are required to prove
24
"the fundamental facts", such as the corpus delicti (the offence). Numerous convictions had
been returned:
"on no other evidence, as to the corpus delicti, than a single witness, supported by
circumstances tending to bring home the guilt to the prisoner."
The same indicia (signs or indications of something) could "fix the crime on the prisoner"
(at 552); that is prove the identity of the perpetrator.
The textbooks
Dickson
The first edition of William Dickson's Evidence was published in 1855, when he was
32. He had drafted it in his early years at the Bar. He was later Advocate General in
Mauritius before returning to be a sheriff at Glasgow. Dickson wrote (at para 2038) that:
"... the testimony of one witness, however credible, is not full proof of any ground of
action or defence, either in a civil or a criminal case. ... [I]f the only evidence in
support of a case is the uncorroborated testimony of one witness, it is the duty of the
Court to direct the jury that the proof is insufficient in point of law."
He cites Stair, Hume, Burnett and Alison and the civil jury case of Cleland v Paterson (1837)
15 S 1246, in which a Division determined (Lord Mackenzie at 1248-9) that the Lord
President (Hope) had erred in directing the jury that they could find for a party if they
accepted the testimony of one particular witness alone.
Dickson continues (at para 2039), in much the same vein as Hume and Alison had
done in the earlier part of the century, as follows:
"But this rule does not require that two witnesses should swear to every fact in the
case. The direct evidence of one witness, supported by facts and circumstances is
sufficient ... [I]n trials for rape there is seldom any proof of the fact of violence
beyond the statement of the woman, the proof being completed by corroborative
circumstances...".
25
He added that (at para 2042):
"... where proof consists of circumstantial evidence alone, it is not necessary for each
item of it to be established by two witnesses. The mutual interlacing and coincidence
of the circumstances themselves form an ample corroboration of the witnesses who
depone to them."
In dealing with de recenti statements, Dickson explains (at para 95) that:
"Such expressions being the natural outpourings of feelings aroused by the recent
injury, and still unsubsided, are a consequence and continuation of the res gestae, and
corroborate the party's evidence...".
These passages remained unchanged in the second edition (1864; at paras 95, 2038, 2039 and
2042) and in that which tends to be cited as authority today, viz. the third (Grierson) edition
(1887; ii, paras 258, 1807, 1808 and 1811).
Trayner
In the fourth edition (1894) of his Latin Maxims and Phrases, John Trayner (later Lord
Trayner) gives a concise explanation of what the Institutional Writers meant by res gestae.
He says (at 551):
"This phrase ... signifies not only an act performed, but everything said or done at
the time bearing upon or having reference to it. Thus it includes all statements made
immediately before or immediately after any particular act so nearly connected with
it in point of time as to be inseparable parts of the whole transaction, and incapable
of omission from any narrative or testimony professing to be an account of it.
Statements offered in evidence, which would otherwise be excluded as hearsay, are
received when they form part of the res gesta."
He cites Hume (ii, 406 fn) in support of this. In due course, this will be analysed along with
the contrary dicta in Morton.
Macdonald
Macdonald's Practical Treatise on the Criminal Law is, and has been for some time, the
leading authority on criminal law in the late 19th and 20th centuries. In the first, second and
26
third editions, Macdonald's treatment of corroboration is similar to that already seen in
Hume, Alison and Dickson, all of whom he cites repeatedly in support of his text. The first
edition was published in 1867, some time before Macdonald became Lord Justice Clerk in
1888. The first edition was issued after his first term as Lord Advocate. He prefaces (at 565 -
566) his description of sufficiency of evidence as consisting of only a few words:
"The evidence of one witness is not sufficient to convict. But if a witness be
corroborated by circumstances ... this is sufficient ...
Circumstantial proof alone may be sufficient. It is not necessary that there should be
two witnesses to prove any fact..." (emphasis added).
This is repeated in the second edition (1877; at 515-516) and the third (1894; at 495-496);
being the last without editorial intervention.
It is only in the fourth (MacGregor Mitchell) edition (1929) that Macdonald goes on
to add (at 553) that:
"... the evidence of one witness is not sufficient to prove a criminal libel, or establish
any fact essential to the commission of the crime, such as the identity of a vessel charged
with illegal trawling, or the accused's knowledge of the falsity of representations in a
charge of fraud" (emphasis added).
The editor, later Lord Magregor Mitchell KC, was an advocate, and ultimately chairman of
the Scottish Land Court.
In the fifth edition (1948), which was edited by James Walker KC, clerk of justiciary,
and DJ Stevenson, depute clerk, this passage is repeated and the following is added (at 335):
"The essential idea of corroboration is that the testimony of one witness, whether
direct to the actual commission of the crime, or indirect to some circumstance
implicating the pannel in the commission of the crime, is enforced by the testimony,
direct or indirect, of some other witness, so that there are concurrent testimonies,
either to the same or different facts, each pointing to the pannel as the person by
whom the crime was committed."
27
In relation to de recenti statements, similar developments can be traced through the
various editions of Macdonald. The first edition cites (at 546 - 547) Hume, Alison and
Dickson in support of the following:
"Where what is said by any one is part of the res gestae, proof in reference to it is
competent...
In cases of personal injury, the statements of the injured party after the occurrence
may be proved, provided in the ordinary case they were made not later than a few
hours after the offence. The greatest latitude is allowed in cases of injury to women,
where accounts given one or two days after the occurrence are usually received. The
latitude to be allowed is a question of circumstances. In one case a statement
extorted a month after the occurrence, following on a partial disclosure made a week
after the offence, was admitted."
There is no indication that there is a limit on the purpose to which such evidence, once
admitted, can be put. The first edition of Dickson (i, at para 95 and 258) is cited, whereby
such statements are to be regarded as a continuation of the res gestae and corroborative of the
party's evidence (i, at para 258).
Macdonald addresses (at 547 548) the corroborative value of de recenti statements
directly when considering those made by children:
"Although proof of statements made de recenti is generally confined to the case of the
injured party, a young child may be corroborated by proof of statements made by him a
short time after witnessing the offence" (emphasis added).
The second edition is in identical terms (at 479 - 498). A change appears in the third edition
(1894) whereby Macdonald says (at 479) that children's de recenti statements merely add to
the value of the child's evidence. There was no longer any mention of this type of evidence
being corroborative. However, Macdonald still cites (at 479, fn 2 and 3) the passage in
Dickson where Dickson states (1st ed, at para 95), in unequivocal terms, that such statements
are corroborative.
28
The fourth edition (1929) contains a significant change in relation to de recenti
statements generally. It adds (at 532):
"... Such statements should be used not so much as corroborative evidence, but as
shewing that the injured party made a complaint at the earliest opportunity in order
to obviate the criticism of failure to do so."
Several cases are cited. These will be considered in due course. They include McLennan v
HM Advocate 1928 JC 39, although it supports the alternative view, along with Anderson v
McFarlane (1899) 1 F (J) 36, Morton and Burgh v HM Advocate 1944 JC 77. McLennan is not
cited in the fifth edition.
Renton and Brown
Robert Renton and Henry Brown were very experienced procurators fiscal. Their co-
authored text, Criminal Procedure according to the Law of Scotland, first published in 1909, is a
practical manual of criminal procedure. By the time of the publication of the second edition
in 1928, the book had become very popular with practitioners. As with the other works, an
examination of its various editions will shed light on how the courts have approached
corroboration and the use of de recenti statements on a day-to-day basis.
On the matter of corroboration, the first edition explained (at 89) that Dickson's
statement (3rd ed, at para 1807), that the testimony of one witness, however credible, was not
full proof of any ground of action or defence, was subject to qualifications. Circumstantial
evidence spoken to by separate witnesses was sufficient to supply the want of a second
witness. Two witnesses were not required to prove any single fact in a case (at 90), or to
prove a series of circumstantial links which built up a whole case. One witness could
depone to each fact. This was largely unchanged (at 274 275) in the second edition, edited
by George Thomson, who later became Lord Justice Clerk. The substance remained the
29
same in the third edition (1956; at 418), which was edited by Francis Watt QC, who was a
Sheriff (Principal), assisted by DJ Stevenson (see Macdonald (5th ed)).
The third edition (1956) stated (at 418) that there were limitations on the
corroborative value of any statement made by a witness to another person. A witness was
not corroborated by his own statements to others, unless those statements were within the
res gestae. The passage essentially followed Morton (at 53; see the section on Morton below).
This edition contained the first mention (at 419) of the need to corroborate any "essential
fact".
The fourth edition (1972), edited by Gerald Gordon QC, was in similar terms. It
maintained (at para 18-59) the distinction between essential and other facts; stating that
essential facts required to be "separately corroborated". The fifth edition, also edited by
Professor Gordon, was a loose-leaf text which was maintained between 1983 1995. The
treatment of the corroboration of essential facts was more limited (at para18-52) as follows:
"Where the evidence is wholly circumstantial, the [sic?] only essential circumstances
require to be separately corroborated" (emphasis added).
The sixth, and current, edition (1996 2023), reverts (at para 24-69) to a more general
treatment whereby:
"The basic requirement is that the crucial features of an offence, the facta pro-banda,
(sic) i.e. the fact that the offence was committed and that it was committed by the
accused, must be established by evidence from at least two sources."
On the corroborative value of distress, Prof Gordon wrote (5th ed, at para 18-53):
"The distressed state of the complainer shortly after a sexual assault is capable of
corroborating her evidence that she was assaulted and was not a consenting party,
but not to corroborate her identification of the accused. It is also available in cases of
indecent assault to corroborate the complainer's evidence as to the facts of the case,
save that it cannot corroborate her evidence of penetration or attempted penetration,
or that she was physically injured."
30
The position is put similarly (at para 24-71) in the sixth edition. The treatment of res gestae
and de recenti statements is largely consistent throughout the various editions. Evidence of
statements which formed part of the res gestae, that is interwoven or intimately connected
with the acts done, although not necessarily contemporaneous with them, would be
admitted. Statements made by a complainer would also be admitted, if they were made not
more than a few hours after the crime, while feelings on the subject were fresh. A greater
latitude was allowed in cases of rape. De recenti statements made by child witnesses would
be admitted for the purpose of checking the evidence given by the child at trial.
Early Judicial Analysis
Lees v Macdonald
The search must be to find out what happened between the third and fourth editions
of Macdonald. As Lord Justice Clerk, Macdonald chaired the first case of significance. Lees
v Macdonald (1893) 20 R (J) 55, 3 White 468 was a private prosecution by the tenant of certain
shootings in Inverness-shire. The offence was one of poaching. By statute, this could be
proved by a single witness. It was so proved by the evidence of the local gamekeeper, who
also spoke to the sole tenant's title to prosecute. That concluded the evidence, after which
the accused ingeniously submitted, on behalf of the poaching crofter, that the prosecutor's
title, as the sole person entitled to kill game on the estate, had not been proved by
corroborated evidence. The sheriff agreed, but the High Court did not.
The Lord Justice Clerk (Macdonald) said (at 56):
"Where, in a criminal case, a witness depones that he is the proprietor of certain
property, that fact is sufficiently proved unless the opposite party raises the question
and impugns the accuracy of the evidence. The rule as to one witness being
insufficient to prove a case does not apply. That rule only means that where there is
no other evidence, either oral, documentary, or circumstantial, to prove a case than
31
the evidence of one witness, the case must be held not proved. In the present case
proof having been given by a credible witness that the appellant was in fact the
tenant, it lay upon the accused, if he was to dispute the fact, to cross-examine the
witness on that point, and if he so desired, to lead evidence to disprove it. As this
was not done, it was ... not open to the accused to dispute the fact in argument."
The Lord Justice Clerk referred (at 57) to analogous cases in which the official position of
persons was "crucial". He continued:
"... [I]n any case any fact can be proved by one witness although the whole case
cannot be so proved. Thus, both on principle and authority ... the appellant's title
could be proved by one witness unless that witness's evidence was disputed ...".
The idea that a failure to cross-examine or to lead contrary evidence results in the
matter being proved is not one that would now find favour (Morton at 55). Statutory
innovations on the need to challenge certain matters, such as a special capacity, and the
statement of uncontroversial evidence procedure may have superseded this. In any event,
Lords McLaren and Low agreed with the Lord Justice Clerk. Lord McLaren added (at 58):
"... [I]t is not necessary to call two witnesses to prove each incidental fact in a case.
The rule that two witnesses are required to prove the grounds of action ... has been
... sometimes misunderstood. All that the law demands is that there should be two
witnesses to prove a case, and provided that is so, any fact in the case may be proved
by the testimony of one credible witness."
The Lord Justice Clerk (Macdonald) also chaired Anderson v McFarlane (1899) 1 F (J)
36, in which one of the complaints (at 37) was that there had been no "direct corroboration"
of a complainer's testimony that she had been assaulted by her employer, "except evidence
that she had made statements to her mother, to the same effect as her evidence, three days
after the alleged assault". Objection was taken that the statements were not de recenti, but it
was established that she had spoken to her mother on the first occasion upon which she had
seen her. Although the Lord Justice Clerk (with whom Lords Adam and Kincairney agreed)
32
said (at 37) that this was "not so much leading corroborative evidence", the conviction
stood.
Lockwood v Walker
At this point, there appears to have been general agreement within the court about
the broad principles set out by the Institutional and later Writers. A question arises
concerning whether that changed abruptly with the second case of importance: Lockwood v
Walker 1910 SC (J) 3, (1909) 6 Adam 124. This involved a summary complaint of indecent
conduct towards a child under puberty. The girl had testified to her age and the magistrate
was satisfied from her appearance that she was under the age of puberty. The conviction
was quashed. The same Lord Justice Clerk (Macdonald) said (at 5) that:
"No doubt our law does not require that every fact in a case shall be proved by two
witnesses, but it most certainly does require that every crucial fact shall be so proved,
or proved where there is only one witness by corroborative facts and circumstances
proved, or by corroborative documentary evidence."
The Lord Justice Clerk did not consider the magistrate's own observations of the girl's
appearance to be corroborative. This case may signal the first use of the words "crucial
fact", and the need to corroborate each one, as distinct from the idea that only one witness
was required to speak to any fact which was to be used to corroborate direct testimony.
Lockwood v Walker was followed in McCourt v HM Advocate 1913 SC (J) 6, where proof of the
appellant's age was necessary for a conviction of being a habitual criminal. The Lord Justice
Clerk (Macdonald) was again in the chair. He rejected (at 7) the idea that the jury's estimate
of the appellant's age could corroborate. Lord Guthrie referred (at 8) to the general rule that
an essential element in the case required corroboration.
33
Scott v Jameson
The emerging focus on the proof of crucial facts continued in Scott v Jameson 1914 SC
(J) 187. This requires a mention principally because it was an early precursor to Gillespie v
Macmillan. Policemen were stationed at each of the entry and exit points of a measured
distance. They calculated the speed of a car by starting their stopwatches at each point and
then stopping them simultaneously to produce a difference which gave the time taken to
cover the distance and hence the car's speed. The appellant argued that the testimony of the
two policemen was the equivalent of only one witness. The accuracy of each stopwatch
timing was "fundamental to the charge". There was a difference between facts which were
merely important and those which were fundamental. The Lord Justice General was
Alexander Ure, Lord Strathclyde. He identified (at 190) four important facts; "call them
fundamental facts if you please". Each was capable of being proved by one witness, if the
tribunal of fact regarded the quality of the testimony as reliable. Lords Dundas and Guthrie
agreed. The latter explained (at 190) that, if evidence of only one fact were tendered, that
fact would have to be proved by two witnesses. If several facts in a chain required proof,
and these formed consecutive links leading to one conclusion, each may be proved by one
witness.
McLennan and McCrindle
Diverting from what requires to be corroborated to what might constitute
corroboration, notably a de recenti statement, by the time of McLennan v HM Advocate 1928 JC
39, the Lord Justice General was the first Lord Clyde. In McLennan, a six year old boy spoke
to having been the victim of lewd practices. When he returned home, soon after the
incident, his father and mother spoke to his appearance, which "indicated interference", and
34
the disarrangement of his clothing. The parents each gave evidence of the boy's account at
the time. He had two pennies in his pocket, which the accused admitted he had given to the
boy in his house. In response to a submission, that the parents' testimony was simply a
repetition of the boy's testimony, the Lord Justice General, with whom Lords Sands and
Blackburn agreed, said (at 41) that:
"... it is a mistake to suppose that the evidence of the parents (if believed) regarding
the explanations given by the boy with regard to his condition when he returned
home do not provide good corroboration."
The Lord Justice General cited (at 41 - 42) Dickson (3rd ed, at 258) on de recenti statements
being "a consequence and continuation of the res gestae and [corroborative of] the party's
evidence". This applied in the case, even if the boy had not made the statements whilst in a
particularly distressed state.
Two years later, following publication of the fourth edition of Macdonald, in
McCrindle v Macmillan 1930 JC 56, the charge was one of indecent assault on a 13 year old
girl. There was no doubt that such an assault had occurred. The issue was whether the
appellant had been proved to be the assailant. The complainer had identified the appellant,
who was known to her. He was proved to have been near the locus at the relevant time. The
complainer's parents testified that, within a few minutes of the assault, she had stated that
the accused had been the perpetrator; something which she repeated shortly thereafter when
confronted with the accused. She had shown signs of alarm during that meeting. Lord
Morison, who delivered the opinion of the court, which included the Lord Justice General
(Clyde) and Lord Blackburn, followed (at 60) McLennan and its citation of Dickson. The
advising was on the day before the Full Bench decision in Moorov v HM Advocate 1930 JC 68
35
over which the Lord Justice General (Clyde), Lord Justice Clerk (Alness) and Lords
Ormidale, Anderson, Sands, Blackburn and Morison presided.
Strathern v Lambie
Continuing chronologically, but returning to what required to be corroborated,
Strathern v Lambie 1934 JC 137 was a stated case involving a road accident. By this time the
Lord Justice Clerk was Craigie Aitchison, who had been a leading defence counsel (see eg
Slater v HM Advocate 1928 JC 94) before becoming Lord Advocate. The respondent in
Strathern had been identified by only one policeman, who had noted his name and address.
His evidence had not been challenged in cross-examination or otherwise. The procurator
fiscal successfully appealed the sheriff's verdict of not proven. It was accepted by the
Crown (at 139) that a crucial fact required to be corroborated, but it did not follow that every
fact, even an important one such as identification, required to be spoken to by two
witnesses. One may be enough. Lord Hunter took the view (at 141) that, although "a vital
and crucial point in the prosecution must rest on something more than ... one witness",
what such a point was depended on the circumstances. Although identification was
normally a crucial point, it was not in that case; it having been established that the driver
had given the policeman his name and address. Even if it had been crucial, there were
enough facts and circumstances to provide the necessary corroboration, including
apparently a lack of cross-examination. Lord Anderson agreed, adding that the respondent
answering to his citation was such a circumstance.
The Lord Justice Clerk agreed with the result. However, in a passage which may not
reflect well on either the judges or practitioners of the time, he went on to describe (at 144)
"the rule of two witnesses" as "frequently stated but seldom understood". He continued:
36
"It does not mean that the requirements of legal evidence are satisfied merely by the
deponing of two witnesses to matters relating to the crime. What the rule does mean
is that, before one can find a verdict of guilty against the person accused, it is
necessary to associate or identify that person with the crime libelled by at least two
witnesses. The crime itself may be proved by ever so many witnesses and yet the
case fail in point of proof, in respect that the accused was not identified by two
witnesses with the commission of the crime. ...
It has sometimes been said that this requirement of legal proof is satisfied by the oral
testimony of one witness corroborated by facts and circumstances. This is simply
another way of stating the same thing. Facts and circumstances do not prove
themselves. ... It is ... altogether illegitimate to take the evidence of one witness
who depones directly to the identity of the accused with the commission of the
crime, and who also depones to certain facts and circumstances which might be held
to associate the accused with the crime, and then to go on to treat these facts as
corroboration of the witness's direct testimony. The essence of corroboration is that
it is something from an independent source. A witness can never corroborate
himself. The testimony of a witness who depones to two matters does not thereby
become the testimony of two witnesses."
It must have been the effect of the court's focus on the need to prove crucial facts, in the
years after Lockwood v Walker, which prompted the change in the fourth edition of
Macdonald, notwithstanding contrary authority in Scott v Jameson.
Morton v HM Advocate
When Morton v HM Advocate 1938 JC 50 was heard, none of the judges who had been
involved in McClennan and McCrindle v Macmillan were on the bench. Morton is a seminal
case in the annals of the law of evidence. The appellant had been charged with pulling the
complainer into a close and indecently assaulting her. She identified the appellant, who was
a stranger to her. She was not cross-examined on that. The assault was witnessed by a third
party, but that party was unable to identify the assailant. There was therefore only one
witness deponing to the appellant as the perpetrator. The complainer's brother spoke to his
sister returning home in a distressed condition and telling him what had happened. A Full
Bench, which included the Lord Justice General (Normand) and the Lord Justice Clerk
37
(Aitchison), was convened, presumably because the earlier authorities were going to be
called into question. It is interesting to note, in that regard, the Justiciary Cases reporter's
summary (at 51) of the appellant's argument and its effect on the bench:
"Argued for the appellant;- There was only one witness whose evidence implicated
the appellant in the commission of the crime libelled. That was not enough. [The
Court then called upon counsel for the respondent.]"
The Crown argued that, although a conviction based on the evidence of one witness
could not stand, any single item in a series of facts leading to a conviction, including
identification, could be proved by one witness. The Crown relied upon Strathern v Lambie,
Scott v Jameson, Lees v Macdonald and McCrindle v Macmillan. The complainer had not been
cross-examined on identity and that was a matter to be taken into account on sufficiency.
The Lord Justice Clerk delivered the opinion of the court. He focused the issue on whether
there was any corroboration of the direct testimony of the complainer that she was assaulted
by the appellant. The only issue which was raised in the appeal was lack of corroboration of
identity. Founding upon Hume (ii, 383-4), the Lord Justice Clerk said (at 52):
"It is a firmly established rule of our criminal law that a person cannot be convicted
of a crime ... on the uncorroborated testimony of one witness however credible...".
McCrindle v Macmillan and McLennan had proceeded upon a misconception of the true
character of corroboration.
The Lord Justice Clerk continued (at 53) in relation to the import of the complainer's
statement to her brother as potential corroboration in relation to assault, following McCrindle
v Macmillan:
"A statement made by an injured party de recenti, unless it can be brought within the
rule of res gestae, is ordinarily inadmissible as being hearsay only, but an exception is
allowed in the case of sexual assaults upon women and children, including sexual
offences against young boys. In cases of that kind the Court will allow the evidence
of complaints or statements de recenti made by the injured party, for the limited
38
purpose of showing that the conduct of the injured party has been consistent and
that the story is not an afterthought, and, in the case of assaults upon women, to
negative consent. A complaint de recenti increases the probability that the complaint
is true and not concocted, and the absence of complaint where sexual offences are
alleged is always a material point for the defence. But it must be clearly affirmed
that the evidence is admissible as bearing upon credibility only, and the statements
of an injured party, although made de recenti of the commission of a crime, do not in
law amount to corroboration. The essential idea of corroboration is that the
testimony of one witness, whether direct to the actual commission of the crime, or
indirect to some circumstance implicating the panel in the commission of the crime,
is enforced by the testimony, direct or indirect, of some other witness, so that there
are concurrent testimonies, either to the same or to different facts, each pointing to
the panel as the person by whom the crime was committed. It is this conjunction of
separate and independent testimonies, each incriminating, that makes corroboration.
A statement of the injured party de recenti is nothing but the statement of the injured
party, and it is not evidence of the fact complained of."
The Lord Justice Clerk was of the view that the error in Strathern was in holding that
identification of the driver of a car by a policeman could be corroborated by facts and
circumstances which were spoken to only by the same policeman. He regarded (at 54) Lord
McLaren's dictum in Lees v Mcdonald as not open to question.
Post Morton
O'Hara v Central SMT
At the time of Morton, the requirement for corroboration applied in civil cases; both
to pursuers and, where the onus was reversed, to defenders. The requirement was
abolished in personal injury cases in 1968 (Law Reform (Miscellaneous Provisions) Act 1968,
s 9) and in all civil cases in 1988 (Civil Evidence (Scotland) Act 1988, s 1). O'Hara v Central
SMT 1941 SC 363 involved a collision caused by a swerving bus. The driver sought to
attribute this to a pedestrian who had run out in front of him. The driver spoke to the
pedestrian immediately after the accident. The pedestrian, in the presence of the
conductress, admitted fault. He gave the conductress a note of his name and address. This
39
was spoken to by the conductress. The note was given to a policeman about ten minutes
later. The policeman spoke to a person in a nearby cinema, but that person denied being the
cause of the swerve. He could not be found at the time of the proof.
The Lord President was Lord Normand, who had chaired the Full Bench in Morton.
In O'Hara v Central SMT he said (at 379):
"Corroboration may be by facts and circumstances proved by other evidence than
that of the single witness who is to be corroborated. There is sufficient corroboration
if the facts and circumstances proved are not only consistent with the evidence of the
single witness, but more consistent with it than with any competing account of the
events spoken to by him. Accordingly, if the facts and circumstances proved by
other witnesses fit in to his narrative so as to make it the most probable account of
the events, the requirements of legal proof are satisfied."
The Lord President regarded what the pedestrian had told the driver, as spoken to by the
conductress in the immediate aftermath of the accident (ie after it had happened), as part of
the res gestae (ie the whole circumstances of the crime; Trayner: Latin Maxims 551) and hence
corroborative. He explained (at 381):
"The principle on which evidence of the res gestae, including hearsay evidence, is
admitted is that words and events may be so closely inter-related that the truth can
only be discovered when the words accompanying the events are disclosed. But it is
not essential that the words should be absolutely contemporaneous with the events
(see eg AB v CD [(1848) 11 D 289]). What is essential is that there should be close
association, and that the words sought to be proved by hearsay should be at least de
recenti and not after an interval which would allow time for reflection and for
concocting a story ... In Longworth v Yelverton [(1862) 24 D 696] Lord Ardmillan ...
lays down [at 697] the principle that, when any particular statements are so
connected with acts or facts given in evidence that the dissociation of the statements
from the acts or facts to which they relate would frustrate the ends of justice and
impede the discovery of the truth, then that dissociation is prevented, the statements
are treated as partes rei gestae and ... are viewed as within the exception to the rule
(against hearsay) and are admitted accordingly...".
Lord Moncrieff (at 390) distinguished between an exclamation "forced out of a witness by
the emotion" of an event and a statement made after it had concluded. Such an exclamation
was a piece of real evidence.
40
Burgh to Dalton
Burgh v HM Advocate 1944 JC 77 throws some light on the approach to de recenti
statements as corroboration both before and after Morton. The bench had again changed and
the new Lord Justice Clerk (Cooper) was in the chair. Lord Burgh had been charged with
lewd practices against two young girls. Mutual corroboration applied. The sheriff directed
the jury that evidence of the mother of one of the girls, about what the girls had said to her
shortly after the incident, corroborated the girls' evidence. The appeal was refused on the
basis that there was no miscarriage of justice, but the Lord Justice Clerk agreed (at 81) that,
following Morton, the sheriff had misdirected the jury that the mother's evidence could
provide corroboration. He continued:
"As a proposition of strict law addressed to a lawyer the first of these statements has
been unsound since the decision in Morton, in which it was held that a complaint de
recenti does not in law amount to corroboration but merely increases the probability
that the complaint is true and not concocted, (p 53). In many cases this distinction is
vital to the legal issue whether or not the case discloses that irreducible minimum of
evidence from at least two witnesses implicating the accused, without which a
verdict of guilty cannot be returned, or if returned, cannot be supported. ... [The
mother's] evidence added no new fact or circumstance to the narrative. It afforded
added evidence of the fact that the children hurried home and told their story, as
they had said they did, and that the story was the same story."
He added that, despite the fact that the mother's evidence did not amount to
corroboration, there was no miscarriage of justice because the jury would have been entitled
to convict on the basis of the mutual corroboration of each of the girl's stories provided to
the other:
"In the ordinary popular sense of the term, [the mother's] evidence did provide
`corroboration,' in the sense that it reinforced the credibility of both the children: and
once the credibility of both was established, their joint story automatically provided
its own corroboration in the legal sense both direct, and under the doctrine of
Moorov. Accepting it, accordingly, that at this point the first version of the Sheriff-
substitute's direction was erroneous as a statement of law, I find it quite impossible
41
... to hold that a complete and unexceptionable explanation of the modern rule
would have made the faintest difference, or that the jury were in any sense misled or
diverted from the proper discharge of their function. No reasonable jury, properly
directed, would have come to any different conclusion."
Lords Fleming and Jamieson agreed.
Moving back to what requires corroboration, but not moving back in time, in Bisset v
Anderson 1949 JC 106 the appellant was charged with using commercial petrol in a private
car. Petrol was rationed at the time. The appellant had disconnected the pipe between the
filler cap and the tank so that anyone trying to extract petrol for testing would think that the
tank was empty. Once reconnected, the petrol was analysed. The analyst certified the petrol
as commercial. The court considered the effect of a regulation that declared the analyst's
certificate to be "evidence of the facts therein stated". It was held that the certificate was
insufficient proof, in the absence of corroboration. Lord Cooper, who was now the Lord
Justice General, and with whom Lords Carmont and Keith agreed, referred (at 110) to
Morton as meaning:
"In other words the evidence of a single witness, however credible, is insufficient at
common law to establish the truth of any essential fact required for a criminal
conviction."
Callan v McFadyean 1950 JC 82, which concerned a similar statutory provision, was to the
same effect; Lord Russell repeating (at 87) the need to corroborate "any essential fact".
Dalton v HM Advocate (HCJAC, 14 March 1951) is reported (at 1951 JC 76 and
SLT 294) on a limited point with which this appeal is not concerned. The unreported
opinion of Lord Mackay is of some note. The appellant was convicted of an attempt to
pervert the course of justice by persuading a shop assistant, who was a witness to a robbery,
not to identify a particular individual. The witness spoke to this event, at which no-one else
was present. The appellant admitted going to the shop after the robbery, but explained that
42
he did so to conduct some business with the shop owner. The issue was whether there was
corroboration that the crime had taken place. There was circumstantial evidence that the
appellant had wanted to speak to the shop owner because his friends were in trouble. Lord
Mackay, who was sitting with the Lord Justice Clerk (Thomson) and Lord Patrick,
commented on Morton, by making a general point about the undesirability of collecting
isolated passages from cases dealing with crimes of a different sort and reading them as if
they applied generally. He added (at 5 6):
"... [C]rimes differ in kind in such a way as to affect the amount and even kind of
corroboration to be looked for. ... [C]rimes which are always found to be done in
secret and intentionally of necessity, apart from other people, must receive a more
favourable view from the Court in relation to this factual corroboration. Otherwise
all these would never be detected and certainly never be proved."
In such cases, "corroboration may often not be required or become very slight".
Gillespie v Macmillan
It is central to an understanding of the more recent cases on corroboration to grasp
what occurred in the wake of the Full Bench in Gillespie v Macmillan 1957 JC 31. In the
months prior to Gillespie v Macmillan, the court had heard Farrell v Concannon 1957 JC 12 in
which a sheriff had found a drink driving charge not proven on the basis that the Crown
had failed to prove by corroborated evidence that the accused had been advised that he did
not need to submit to a medical examination. The court held that this fact could be proved
by a single witness. The new Lord Justice General was Lord Clyde, who was the son of his
namesake in McCrindle v Macmillan and McLennan. He said (at 17), under reference to
Morton (at 54-55), that:
"Apart, however, from the question of implication in the crime (and a question of
identification falls into this category) there is no hard and fast rule ... which requires
every fact in the case to be proved by the evidence of two witnesses."
43
Lord Carmont did not dissent. Lord Sorn agreed, adding (at 19) that it could not be said that
the accused's implication in the crime depended upon the evidence of a single witness
speaking to the accused being warned of his right not to be medically examined.
Gillespie v Macmillan was a speeding case. It was very similar to Scott v Jameson. Two
policemen stood on a road 440 yards apart. If the policeman at the start thought that a car
was speeding, he started his stopwatch and then got on his bicycle thus signalling to the
second policeman to use his stopwatch when the car passed him. The car was stopped by a
third policemen. The two stopwatches were only then stopped simultaneously in the
presence of all three policemen and the appellant. The difference in the two readings was
the time that was taken by the car to travel over the measured distance (17 seconds). That
enabled the speed to be calculated at 52 mph in a 30 mph zone. The sheriff accepted the
testimony of the two policemen that they had started and stopped their stopwatches when
they said they did. The argument for the appellant was that there was insufficient evidence
because the exact moments of entry into, and exit from, the measured distance were each
spoken to by only one policeman.
The Lord Justice General began his analysis by stating (at 35 - 36) that, following
Alison, Hume and Dickson, it was "well settled that no conviction ... will stand if it is based
upon the evidence of only a single witness" but that "it is equally well settled that two
witnesses are not required to prove every fact in a case". He continued (at 36):
"In between these two extremes there is an infinite variety of possible situations in
which the question of sufficiency of evidence can arise, and no single test of
sufficiency which will solve every such situation has ever been or can be laid down.
The matter must depend in the last resort upon whether the evidence is sufficient to
carry the case beyond mere suspicion and into the sphere where it satisfies the
tribunal that the case is proved beyond reasonable doubt.
44
... [I]n regard to the question of whether or not a crime has been committed, certain
principles are now quite settled. Firstly, the evidence of a single witness to the
commission of the crime may be sufficiently corroborated by surrounding facts and
circumstances, so as to establish the necessary degree of certainty. ... Secondly, in a
case of circumstantial evidence, two witnesses are not necessary to each
circumstance. ... [I]n a case of circumstantial evidence it is not a matter of one
witness corroborating another, for each may be speaking to a quite separate and
independent fact. It is the mutual interlacing and coincidence of these separate facts
which can establish the case against the accused."
The Lord Justice General considered Gillespie v Macmillan to be a circumstantial case.
The appellant had not been accused of passing either of the two points at an excessive speed,
but of doing so between these points. The times at which he entered and exited the
measured distance were separate links in a consecutive chain. The links were "clearly
interlaced with one another by the steps taken by the three policemen". There was no need
for each link to be corroborated separately. He reasoned (at 36 37), following what had
been said in the similar circumstances of Scott v Jameson, that:
"Any other conclusion would require to be based upon the view that each separate
fact in a case must be proved by two witnesses, a proposition which has been
negatived over and over again."
The Lord Justice General took note (at 37) of what had been said in Morton; observing
that the issue in Morton had been the identity of the perpetrator. On that matter, two
witnesses were essential, but Morton did not suggest that two witnesses were required for
every link in a chain of circumstantial evidence. Lord McLaren's dictum in Lees v Macdonald
had been described in Morton as unobjectionable. In Lockwood v Walker the facts relative to
the crime had been adequately proved but "a quite independent, although essential, matter
regarding the age of the child was spoken to only in general terms by the child herself".
That was "a quite different problem". The Lord Justice General considered (at 38) his
45
predecessor's observation in Bisset v Anderson that the evidence of one witness was
insufficient to establish any essential fact. He commented that:
"This observation, so widely stated, ... would appear to be directly contradicted by
... Lord McLaren's opinion [in Lees v Macdonald]... quoted with complete approval in
Morton ... Moreover the observation is also irreconcilable with both Hume (ii, 384)
and Alison (Practice 552) and is ... unsound."
The Lord Justice General explained that the question of what evidence was sufficient for
identification had always been treated differently from that required to establish the crime.
"In questions of incriminating an accused two witnesses at least are necessary".
The opinion of the Lord Justice Clerk (Thomson) in Gillespie v Macmillan (at 38 et seq)
deserves extensive quotation:
"Nothing is better established in our law than that no one shall be convicted on the
testimony of a single witness, however credible. Before any question of the
evaluation of the evidence arises, there must be proof of facts emanating from at least
two separate and independent sources.
The rule is well understood and is applied day and daily to infinitely varying sets of
circumstances. Sometimes the problem of legal sufficiency arises on the issue of
whether a crime has been committed; sometimes the issue is whether it was the
accused who perpetrated the crime; sometimes there may be a separate and
independent issue which is a condition precedent to guilt, as in Lockwood v Walker.
But, however the problem of sufficiency arises, the solution depends on the same
principles.
The rule and the principles of its application are fully discussed by Hume in a way
on which nobody has improved. ...
I do not think that the sufficiency of proof of a criminal charge can be any more
precisely defined than by saying that there must be facts emanating from at least two
separate and independent sources.
No doubt in the vast majority of cases the items of evidence which go towards the
making of proof have a certain continuity one with another, and it is the discovery of
the nexus between them, giving the aptitude and coherence to the independent
sources, which makes it safe not to demand two witnesses to each item. To use the
ordinary metaphor of the chain, the fact that there is a chain persuades the mind and
makes it unnecessary to have two witnesses to each link. So too in the metaphor of
the mosaic or the picture, each piece of the jigsaw gets strength from its neighbours
and in turn contributes strength to them. The importance of these considerations
cannot be gainsaid, but ... they are more strictly relevant to the problem of the
46
evaluation of the evidence particularly circumstantial evidence - than to the
problem before us of technical sufficiency. ...
If law were an exact science or even a department of logic, there might be something
to be said for [the appellant's] argument. By relying on the disparate qualities of
space and time the logician can prove that in a race the hare can never overtake the
tortoise. But law is a practical affair and has to approach its problems in a mundane
common-sense way. We cannot expect always to have a tidy and interrelated
picture; in real life a surrealistic element is apt to creep in, and the picture, though
untidy and unharmonious, may be a picture all the same. In the picture which this
case presents we have certain elements which make for continuity. There are the
measured stretch, the synchronised watches. The analytical approach to the problem
is over subtle and over-simplifies the problem. When one views the problem as a
practical issue, the only risk is that the knob was not pressed at the precise moment;
in other words, that the presser was unreliable for some reason or another. The
safeguard against this risk is whether the tribunal believes the witness, and that is
the safeguard which may operate whenever a link in the chain or a tile in the mosaic
or a piece in the jigsaw is spoken to by one witness only. But this just shows that the
appellant's argument depends on value rather than sufficiency.
Hume fully realised the distinction between the two questions of legal sufficiency
and value and that the ultimate justification for not requiring two witnesses to each
separate item was the tribunal's acceptance of the one witness as credible. He also
fully appreciated the difficulty and the undesirability of attempting to lay down any
precise rules."
The Lord Justice Clerk concluded (at 41) by repeating that:
"... nobody has improved on Hume's judicious and guardedly general statement of
the law. Nobody has added anything to it ... The problems arising are so various
and so different that each has to be solved on its own merits in a practical way, and
the decision in one case rarely throws much light on the solution of another."
Lords Russell, Sorn and Blades agreed.
Crucial facts academic work
In the years which followed, Gillespie v Macmillan was the subject of considerable
criticism. In an anonymous article published in the Scots Law Times (Corroboration of
Evidence in Scottish Criminal Law 1958 SLT (news) 137), it was argued that the court had
departed from Hume and had relied on the testimony of a single witness (at 138);
maintaining that the testimony of the policemen was consecutive and not concurrent. It
47
concluded (at 141) that Gillespie v Macmillan would result in it being left to juries to consider
whether they should rely for a conviction on the uncorroborated testimony of a single
witness. This did not happen.
In a more measured and thoughtful piece, Professor Wilson (The Logic of
Corroboration (1960) 76 SLR 101) argued that a criminal charge could be stated as a
proposition of fact which contained a number of ingredients. These were the facta probanda;
otherwise essential, vital or crucial facts, each of which, until Gillespie v Macmillan, required
proof by two witnesses. Gillespie v Macmillan was wrong because it regarded the evidence as
circumstantial rather than looking at the three facts (time of entry, time of exit and distance)
as essential ingredients. In so doing it had introduced a new theory of corroboration,
distinct from the old one which was exemplified by Morton. This article ended in a
somewhat journalistic fashion, suggesting that Gillespie v Macmillan had returned the justice
system to a place beneath the palm tree. This did not occur either.
It was against this background that the first edition of Walker & Walker: Evidence
was published in 1964. This was a seminal work which would have a major influence on all
students and practitioners, including those who became judges, over the next four decades.
Alan Walker QC was the Sheriff (Principal) of Lanarkshire and Norman Walker had been an
advocate and was a sheriff at Glasgow. Chapter XXX dealt with sufficiency of evidence. It
postulated (at para 381), in apparent contradiction of the Institutional Writers, that evidence
was concerned with proof: "not of cases, but of facts ...". Facts fell into three classes:
(1) crucial; (2) evidential; and (3) procedural. The crucial facts (at para 382) were the facta
probanda which must be averred for the libel to be relevant. Each required to be proved
either by the direct evidence of two witnesses, or by two or more evidential facts spoken to
48
by separate witnesses, from which the crucial fact may be inferred, or by a combination of
direct and indirect evidence from different witnesses.
It was the express view of Walkers that Lord McLaren's dictum in Lees v Macdonald
was irreconcilable with a number of cases which Walkers subsequently cited, including
Lockwood v Walker. Dealing specifically with crucial facts in criminal cases, Walkers stated
(at para 383) that the implication of an accused in the commission of a crime was one such
fact. On the commission itself, some crimes, such as assault, consisted of a single act, which
was also a crucial fact. Others were compound, in the sense of arising from a coincidence of
two or more independent acts, each of which was crucial. Lewd and libidinous practices
had two crucial facts, the practices and the age of the complainer.
Evidential or circumstantial facts (para 386) were those from which, in combination,
a crucial fact could be inferred. The evidence of a single witness was enough to prove each
evidential or circumstantial fact. An evidential fact could be used in combination with, and
provide corroboration for, the direct evidence of a single witness. In criminal cases, Walkers
referred (at para 387) to the cable and chain analogies. On the latter, Walkers cited Gillespie v
Macmillan, but stated that it decided that there were three essential facts in that case, each of
which could be proved by the evidence of a single witness (see also para 9, fn 11). A
reference to the two critical articles was added. The basic structure and reasoning in the first
edition of Walkers is maintained throughout the second to fifth (2000 - 2020 Ross and
Chalmers ed, Chapter 5) editions.
In 1980 the Scottish Law Commission issued their Consultative Memorandum
(No 46) on The Law of Evidence. Paragraph X.03 is instructive:
"The facts to be corroborated
49
Confusion appears to have arisen from dicta by Lord Justice-Clerk Macdonald and
Lord M'Laren in Lees v Macdonald, which if applied to proof of facta probanda, would
be destructive of the principle of corroboration. It seems clear that these dicta were
not intended to be so applied, the case being concerned with proof of a procedural
fact, but they were cited nevertheless by Lord Justice-General Clyde in Gillespie v
MacMillan, which followed Scott v Jameson. These two cases propound a doctrine
that so long as facts proving a criminal charge emanate from two separate and
independent sources, not every essential fact requires to be proved by two witnesses.
Such a doctrine is not in accordance with the general principle of corroboration. It is
thought, however, that Gillespie has only been followed in cases where the facts are
virtually identical to those with which it dealt, and it seems the police now rarely
employ the method of calculating speed which caused the controversy. Accordingly
there may be no necessity to legislate on this topic."
The Memorandum proceeded on the basis of a research paper by Sheriff, later Lord,
Macphail. A revised version of his paper was subsequently published in 1987. This adopted
(at para 23.01) the categorisation of crucial, evidential and procedural facts which Walkers
had advanced. It dealt (at para 23.04) with the facts to be corroborated, stating that Gillespie
v Macmillan was inconsistent with what was otherwise generally accepted; that each crucial
fact required to be corroborated, while evidential facts did not. Macphail repeated (at
para 23.04) that, if the dicta of the Lord Justice Clerk and Lord McLaren in Lees v Macdonald
were applied to facta probanda, "they would be destructive of the principle of corroboration".
Macphail followed Prof Wilson's reference to there being three "ingredients" in Gillespie v
Macmillan, each of which ought to have been corroborated. He maintained that Gillespie v
Macmillan was wrong in principle in so far as it suggested that, so long as the facts proving a
criminal charge emanate from two sources, not every fact required to be proved by two
witnesses. So thought "a substantial number of experienced practitioners" (para 23.05). If
the principle were to be relied on by the Crown in the future, mused Macphail, another Full
Bench might have to be convened.
50
Distress as corroboration cases
Yates and following
Yates v HM Advocate 1990 JC 378 (27 May 1976, addendum to Moore v HM Advocate
1990 JC 371) is said to be the fons et origo (source and origin) of the development of distress
as corroboration. It involved a charge of rape in which, intercourse having been admitted,
the jury were faced with two competing accounts. The complainer testified that she was 16.
She was on her way home on a bus. The appellant, who was a stranger, was also on the bus.
He followed her when she got off. He produced a knife and, as a result of that and
accompanying threats, forced her to go to a secluded spot where he raped her. She went
home immediately, in a shocked condition. The appellant maintained that everything had
occurred with the complainer's consent. The issue was whether there was corroboration
that the intercourse had been forced upon her against her will.
The Lord Justice General was Lord Emslie. In delivering the opinion of the court
(including Lords Avonside and Johnston), he identified (at 378) the issue as being whether
there was
"... corroboration of the girl's account of the transaction and of course,
fundamentally, whether the jury believed or disbelieved the version of either. On the
assumption that the jury accepted the girl as a credible witness and believed all her
evidence of what took place, what was left was the search for corroboration of her
evidence of intercourse being forced upon her against her will."
He described (at 379) a passage in the judge's directions to the jury as:
"dealing with the broad and clearly correct proposition that evidence as to the
condition of the alleged victim of rape is capable of affording corroboration by
credible evidence ... that she has been raped."
The Lord Justice General stated that the charge, which libelled the use of a knife, was
not one of a series of separate crimes. It did not charge the crime of assault with a knife.
51
The charge set out the modus of the crime of rape. The Lord Justice General continued (at
379-380):
"... [O]n the assumption that the complainer gives credible evidence of the various
elements of force which she says were applied to induce her to submit to intercourse
the search thereafter is simply to see whether there is evidence in general which
supports the broad proposition of force, details of which have been given by the girl.
In the nature of things it would be very rare to find any specific corroboration of any
specific element in the modus of the crime of rape committed in a secret place, and in
this case the jury were quite entitled to bring in a verdict of guilty as libelled
including a reference to the knife, just as they were entitled to bring in a verdict of
guilty as libelled though there was no direct corroboration either of the fact that
according to the complainer the applicant seized hold of her from behind, place[d] a
hand over her mouth and so on."
The appellant in Begg v Tudhope 1983 SCCR 32 was a teacher who had been convicted
of two charges of indecent assault on pupils. On one charge, the only evidence was that of
the complainer. On the other, in addition to the complainer, there was evidence that a few
minutes after the incident, which occurred in the appellant's room, she had returned to her
classroom. When the bell rang for the end of the class, she complained to her teacher that
the appellant had kissed her. She became distressed, but there was no evidence that she had
been distressed earlier. Two other teachers spoke to the complainer being in a distressed
condition at her home some three hours later. The appeal was refused on the basis that
mutual corroboration applied. The Lord Justice Clerk (Wheatley) was of the opinion that the
lapse in time between the assault and the distress spoken to by the two teachers who had
gone to the complainer's home took it out of the category of being corroborative of the
complainer's account. He doubted (at 39) whether the same could be said about the
evidence of the earlier distress which had been displayed to the class teacher. Lord Stott,
had (at 39) "no doubt that evidence of an offence of the type alleged may be corroborated by
52
evidence of the girl's condition immediately after". However, the distress had not been
sufficiently immediate.
In Gracey v HM Advocate 1987 JC 45 the court followed Yates. Intercourse had been
admitted. The only issue was whether the complainer's resistance had been overcome by
force. The Crown relied on the complainer's distress as spoken to by a friend, to whose
house she had gone immediately after the incident. The Lord Justice Clerk (Ross), delivering
the opinion of the court, said (at 46) that "the matter is correctly stated by the Lord Justice
General" in Yates.
Stephen v HM Advocate 1987 SCCR 570 is in the same mould, although there was
evidence of physical injury in the form of scratches to the appellant's abdomen too.
Intercourse was denied, although some intimate conduct was accepted. The Crown had
amended the charge to one of attempted rape, on the basis that they could not prove
penetration, albeit that the complainer had spoken to a very violent completed rape. She
had been walking home on her own, when she met the appellant who took hold of her,
carried her to the verge of the road and forcibly raped her. There had been medical
evidence pointing to intercourse within a period of six hours of the doctor's examination,
but it was not disputed that the complainer had had consensual intercourse with another
person within that timescale.
In determining that evidence of, inter alia, distress immediately after the incident was
sufficient corroboration of the charge as amended, the Lord Justice General (Emslie),
delivering the opinion of the court (Lords Grieve and Brand), said (at 574 - 575):
"The jury must have begun by believing the girl's story and by rejecting the
competing story of the appellant, and on that approach the question is: was there
sufficient material, setting it against the girl's account, to demonstrate that her
account was true? In our judgment there was. One begins not with the distress but
53
with the girl's account of having attempted to defend herself by scratching the
abdomen of the appellant. Now there was evidence that scratches were found in the
very place where the girl said she had attempted to scratch her assailant. In addition
to that there was her evident distress when she returned to her friends and in all the
circumstances there was sufficient to establish to the jury's satisfaction that the
contents of the evidence of a witness they had found to be credible could be regarded
as true. In these circumstances there is no reason why the principle in Yates does not
fall to be applied. There was sufficient material here to provide the necessary
corroboration required by law and the appeal against conviction will be refused."
A change in direction
A change in the composition of the court was to lead the law on corroboration down
a different path. Moore v HM Advocate 1990 JC 371 involved an allegation of rape in which
corroboration was sought by reference to distress, which had been observed by the
complainer's aunt at least 12 hours later. During the interval, the complainer had gone from
one place to another. Others must have seen her before she reached her aunt's house.
Intercourse was admitted. The conviction was quashed. Nevertheless, the new Lord Justice
General (Hope) did say simply that (at 375):
"It is not in doubt that evidence as to the condition of the alleged victim is capable of
affording corroboration of her evidence that she had been raped."
Lord Cowie, who had extensive experience of criminal trials both on the Bench and at the
Bar, added (at 378):
"... [A]s a general rule, the question whether distress shown by the victim of an
alleged rape, and spoken to by a third party, amounts to corroboration of the victim's
evidence is one which should be decided by the jury under proper directions from
the trial judge.
The judge should direct the jury that before they can regard the evidence of the
victim's distress as corroboration, they must be satisfied beyond reasonable doubt
that the distress of the victim was caused by the events of the alleged rape and was
not due to some extraneous factor such as shame or remorse."
He explained that, nevertheless, there would be circumstances, such as the lapse of time, in
which no reasonable jury could regard the distress as corroboration of her evidence.
54
In McLellan v HM Advocate 1992 SCCR 171, the charge was one of lewd practices on a
single occasion towards an eight year old girl. This included showing her pornographic
images, one of which was recovered from the appellant's house, and more serious
allegations of exposing himself to her and kissing her inappropriately. The corroboration
which was relied on was principally the girl's distressed state when she returned home
"shortly after the incidents" (at 174) and spoke to her mother. In a significant statement of
the Crown's position, the Advocate depute (Macdonald QC, later Lord Uist) conceded that
distress could not corroborate the specific elements of the lewd behaviour. The Lord Justice
General (Hope) disagreed. In delivering the opinion of the court (Lords Allanbridge and
Cowie) he said (at 179) that:
"... [D]istress must be related to the activity which it is said to corroborate. But the
question whether or not it can afford corroboration of the complainer's evidence
must depend upon the nature of the activity which she has described ... If the
activity is one which in itself is so distressing that a jury would be entitled to hold
that it would be liable to distress the victim, then evidence of the victim's distress
will be capable ... of corroborating the complainer's evidence without further
evidence to corroborate every detail of the crime. As in Yates, it will be sufficient for
the jury to be satisfied that the distress corroborates the broad proposition that force
was used, or something else was done, to provoke that distress. But there may be
other cases, and rape may be a good example of this, where further evidence will
require to be led to establish the other elements necessary to prove that the particular
crime libelled has been committed, because distress in itself is incapable of providing
corroboration in regard to those elements."
on a 60 year old woman in his taxi at between 1.15 and 2.15am by kissing and fondling her
and attempting to have her perform oral sex on him. The appellant's defence was alibi.
Only the complainer spoke to what had happened in the taxi, but there was testimony from
the taxi firm's controller of a call in the early hours of the morning from a "hysterical woman
complaining of a sexual assault on her by a taxi driver" (at 31). The complainer's son spoke
55
to his mother being in a distressed state during a phone call with him at about 9.30am,
during which she gave a garbled account of the incident. The appeal against conviction was
refused.
(Lords Allanbridge and Brand). This contains an extensive, if highly discursive, analysis of
where corroboration was to be found, as follows (at 34 - 35):
"I do not think that it is necessary for it to be shown that circumstantial evidence,
such as that provided by physical injuries or torn clothing, is unequivocally referable
to the crime libelled before it can be said to corroborate the evidence of an
eyewitness. ... [C]ircumstantial evidence differs from that of an eyewitness, because
unlike the evidence of an eyewitness it is incapable of describing the event. Its
significance must be left to inference, and the strength or weakness of the inference
to be drawn from it will vary according to the circumstances. ... [W]here
circumstantial evidence is relied upon in order to corroborate the complainer's
evidence ... the circumstances do not require in themselves to be incriminatory.
What is required of the circumstantial evidence is that it is capable of providing
support for her evidence, and it will be sufficient for this purpose if it is consistent
with what she has said. ...
... [I]t is not possible to lay down any more precise rules of law about the use of
distress as circumstantial evidence. Distress is of course a broad concept ... [I]n the
typical case it is spoken to only by lay witnesses. But these features ... raise practical
questions of fact and degree, rather than issues of law, as to the weight which can be
attached to it.
... [T]he opinion that the question whether or not distress can afford corroboration of
the complainer's evidence must depend upon the nature of the activity she has
described. Distress cannot of course corroborate her evidence as to the identity of
her assailant. ... [W]here corroboration of penetration is needed in rape cases
distress will be incapable of providing this, because the other acts involved in the
rape to overcome the complainer's resistance will be sufficiently distressing in
themselves to explain the distress. Similarly I would find it hard to see how distress
alone could corroborate the complainer's account that what had begun as an
indecent assault on her was pressed home to the extent necessary for this to be an
attempted rape. The check which I favour ... is that no reasonable jury, ... could
hold that distress in itself was capable of corroborating that part of the complainer's
account. ... It is a common experience that people may suffer emotional injury when
they are subject to a violent incident or to an incident which causes extreme
revulsion or disgust. If there is some other possible explanation for the distress it
may fall to be regarded as neutral and then left out of account ... [I]t must ... be a
question of fact for the jury whether the evidence of distress on its own is of
56
sufficient weight to corroborate the complainer's eyewitness account of what
occurred."
Two lines of reasoning may be identified from those cases. First, the extent to which the
observed distress can corroborate a complainer's account of a particular offence, including
rape, is a question of fact and degree. A jury may find the distress corroborative in the
whole circumstances. The second, which can be seen from the reduction of the charge to
attempted rape in Stephen and the opinion in Stobo, is that distress cannot corroborate
penetration which is regarded as a crucial fact in a rape prosecution.
Smith v Lees
1997 to hear a stated case in Smith v Lees 1997 JC 73. This concerned a conviction for lewd,
indecent and libidinous practices towards a 13 year old girl. The purpose in so doing was
specifically to reconsider the Lord Justice General's (Hope) opinion in Stobo (see page 75).
The court was to be chaired by the new Lord Justice General (Rodger).
campsite. The children were all nieces and nephews of the appellant and his brother-in-law.
Two tents were pitched; the girls in one and the boys in another. The brother-in-law slept
outside, but the appellant elected to sleep in the girls' tent. The appellant lay down next to
the complainer and one of her cousins. The complainer testified that she woke up to find the
appellant's penis moving up and down in her hand. She was upset. She left the tent. She
was crying and upset; too upset to tell the appellant's brother-in-law what had happened. It
was he who was to provide the potential corroboration. He saw the complainer coming out
of the tent quickly. She had a tear in her eye. She was distressed and gestured towards the
57
tent. He asked her what the matter was. The appellant came out of the tent and said to her
"You can go back in the tent now" (at 75). She went into the boys' tent instead. At the
appeal hearing, the Crown relied only on the distress as corroboration. This may have been
because the focus of the Full Bench was on that issue. The conviction was quashed despite
an apparent sufficiency coming from the brother-in-law's evidence about the appellant
entering a tent occupied by teenaged girls, what the appellant said when he came out and
the girl's actings in declining to go back into the tent, coupled with the distress.
equiparated with de recenti statements and could not operate as corroboration, the Lord
Justice General said (at 78) that it could corroborate "certain aspects of the complainer's
account". However, each fundamental, crucial, or essential fact, otherwise facta probanda,
could only be established by corroborated evidence (at 79). In a rape these facts were
fourfold: (i) penetration of the vagina; (ii) by the penis; (iii) forcibly; and (iv) without
consent. They also included the identity of the appellant; in that particular case that it was
he who had caused the complainer to handle his penis. The Lord Justice General cited the
well worn passages in Hume, Burnett and Alison, whereby, if facts and circumstances were
to corroborate the testimony of an eye witness, their function was to support or confirm that
testimony. He accepted (at 80) that distress could corroborate the complainer's evidence
that something distressing had occurred and that force had been used, but not "what exactly
the appellant did". He analysed Yates and concluded (at 82) that what was attributed to his
predecessor, Lord Emslie, could not have been an accurate record of what he had intended
to say. In the same passage, he offered a speculative alternative by substituting "by" for
58
"of" in relation to the "broad ... proposition". Nevertheless, he accepted that Yates and
Gracey had been correctly decided.
dismissed it as obiter as he had disposed of the appeal on a different basis. He considered
that it had not been supported by the Lord Justice Clerk (Wheatley). He rejected the Lord
Justice General's (Hope) dictum in McLellan on the same grounds. He pointed to an apparent
contradiction in Lord Hope's analyses in McLellan and Stobo, whereby distress could not
corroborate penetration in a rape case, before concluding (at 90) that:
"[T]he approach adopted ... in McLellan and in Stobo is unsound. ... To be valid, any
approach which is applied to evidence of distress must fit into our law of
corroboration as a whole. In order to corroborate an eyewitness's evidence on a
crucial fact, the corroborating evidence must support or confirm the eyewitness's
evidence by showing or tending to show that what the eyewitness said happened did
actually happen. ... [I]f a complainer says that she did not consent to intercourse but
was forced to submit, then evidence of her distress will tend to confirm her evidence
... But ... evidence of distress cannot support or confirm the complainer's evidence
that a particular form of sexual activity occurred because there is no basis upon
which the jury can use the evidence of distress to draw the necessary inference that it
did. Since ... McLellan and Stobo held that in such cases evidence of distress could by
itself provide the necessary corroboration ... they were wrongly decided and must be
overruled."
The opinions are by no means identical in content, albeit that each judge reached the same
result. Each judge must have felt it necessary to express an individual view, rather than
concur with any of his colleagues. Having rehearsed the submissions, Lord Ross took as a
starting point (at 94) that the facta probanda or crucial facts require to be established by
corroborated evidence. He continued (at 95):
"... [W]hat one is looking for is confirmation or support of the evidence which
requires to be corroborated ... [Burnett at p 518]".
59
It was the first witness's evidence which required confirmation by proof of circumstances.
Under reference to Lockwood v Walker, it was necessary to determine what the crucial facts
were. One was that the appellant caused the complainer to handle his penis. He analysed
Yates, Gracey, Moore and other cases on distress; distinguishing those in which intercourse
had been admitted. He criticised the Lord Justice General (Hope) in Stobo as confusing
distress as corroboration in itself and as being part of the circumstantial evidence. He
agreed that distress could not corroborate penetration in a rape case, but disagreed with
Lord Hope where he appeared to say that distress could corroborate an indecent assault but
not an attempted rape. Something more than distress was needed to corroborate the crucial
fact which he had identified. His reasoning (at 99) was that:
"Distress cannot yield the inference that the appellant ... caused [the complainer] to
handle his naked private member."
Stobo was therefore wrongly decided. Lord Stott's remarks in Begg v Tudhope were in error,
as were certain passages of the Lord Justice General (Hope) in McLellan. The Lord Justice
Clerk expressly made no comment on Gillespie v Macmillan.
describing a spectrum across Burnett, Morton and Hume on the one hand and Gillespie v
Macmillan on the other. He described the latter with a degree of vehemence (at 103) as
"expediency masquerade[ing] as pragmatism" in which lip service was paid to the
principles which were then side stepped. That is strong criticism indeed of the senior
judiciary of a past generation, all of whom would have been deeply steeped in the workings
of corroboration in both the civil and criminal context. Lord McCluskey continued (at 104 -
105):
60
"... [W]here the alleged victim is the only eye witness, it is the daily practice of
judges to direct juries that they cannot convict unless they find corroborative
evidence, namely reliable evidence from an independent source (and therefore not
including a de recenti statement by the alleged victim) which separately points to the
truth of the facts which constitute the essential ingredients of the crime. I consider
that this is the correct approach."
Lord McCluskey considered that Yates had been correctly decided, but stated (at 106 - 107):
"... [I]t is abundantly clear that distress of the victim cannot be used as a kind of all-
purpose corroboration ... In short, the fact of the woman's distress is of value in
proving those facts which, as a matter of ordinary human experience, distress is apt
to prove. ... [T]he distress of the girl immediately after she emerged from the tent
would certainly support the inference that something had something [sic, ? happened]
to distress her within the tent. But does it in itself tell us anything about precisely
what did happen within the tent? I do not see that it can...".
between lewd practices as a nomen criminis (the name of the offence) and the facta probanda
contained in the libel. It was "obviously true" that, if what the complainer had said had
happened had occurred:
"[A] very likely consequence would be that the girl would be distressed; and it
follows that proof of such distress would be proof of a fact which was entirely
consistent with her evidence that it did happen. But if one had nothing but the
evidence that she emerged from the encounter in a distressed condition it would be
impossible to guess whether the accused had immediately beforehand deliberately
placed her hand upon his naked private member against her will or had physically
assaulted her, or that she had had a nightmare or that she had come to regret some
consensual conduct some time after it had finished or that some other event had
occurred of a nature that might cause distress to a girl of her age."
He continued (at 108) in a more general tone:
"... [I]t is ... always necessary to identify what the facta probanda are and to ensure
that there is evidence from at least two independent sources pointing to the existence
of each of these crucial facts. If that were not to be the rule, then our traditional
reliance upon a rule requiring corroboration would be entirely worthless."
Mere consistency could not be enough to provide corroboration. What was needed was
evidence which in itself pointed in some way towards the truth of one or more of the facta
61
probanda. Different considerations applied where all the evidence was circumstantial.
Corroborative evidence must be capable of testing the truth or falsity of the facta probanda.
"The fallacy of the appellant's principal approach [that distress could never provide
corroboration] is demonstrated by the acceptance of the fact that distress can be used
as one of a number of factors in making up a circumstantial case. If it can be so used
it must follow that it is a valid and relevant piece of evidence and, if that be so, in
appropriate circumstances, there is no reason why it should not be used as the sole
corroborative factor...".
Following Burnett's cautionary words, about it not being possible to devise a rule, Lord
Sutherland was of the view (at 111) that:
"Nearly 200 years ago Burnett wrote [at 519]: ... `This only may be noticed, that the
circumstances founded on must be extrinsic of the witness.' Nothing has happened
since [Burnett] to make the formulation of any rule any easier. The only thing that
can be said with any degree of certainty about corroboration is that it is such
evidence as is necessary to enable the Crown to surmount the hurdle that proof of
the commission of a crime and the identity of the perpetrator cannot rest on the
evidence of a single witness."
In a rape charge the Crown had to prove penetration, lack of consent and force. Each was an
essential element and had to be established by evidence from more than one source. What
required to be corroborated was the precise act libelled and this could not be provided by
distress alone, since, as distinct from physical injury, it gave no indication of its cause.
intercourse had been admitted and penetration thereby corroborated. He analysed the cases
which had followed it. He disagreed with the obiter dicta of the Lord Justice Clerk
(Wheatley) and Lord Stott in Begg v Tudhope. He agreed with the Advocate deputes in both
McLellan and Stobo, but not with the opinion of the court. He added (at 117) that if, in terms
of Stobo, the function of corroboration were simply to be capable of providing support for
the complainer's evidence, it would be logical for it to be corroborative not only of
62
penetration but identification. Lord Sutherland did not accept that. He recognised that the
court's view in Smith v Lees might lead to insuperable difficulties of proof, but the valuable
safeguard of corroboration must not be lost.
evidence, was capable of corroborating "certain facts". He too focused (at 119) on the need
to prove the facta probanda by corroborated evidence. He disagreed with the dicta in Begg v
Tudhope, McLellan and Stobo and concluded (at 121) that:
"If we approach this problem from principle, it is apparent that while distress may
corroborate the complainer's state of mind where, as in Yates, that is one of the facta
probanda, it cannot by itself provide comprehensive corroboration of the essential
facts of the charge ...
In principle, whatever the charge, it cannot be said that distress alone, in the absence
of any other evidence, points to the accused's having committed each and all of the
essential facts in the charge."
Mackie and Fox
illustrated, first, by Mackie v HM Advocate 1994 JC 132 (Lord Justice General (Hope), Lords
Cowie and Mayfield) and then by the Full Bench in Fox v HM Advocate 1998 JC 94 (Lord
Justice General (Rodger), Lord Justice Clerk (Cullen), Lords Kirkwood, Coulsfield and Gill).
trading. The allegation was that the appellant, who was an investment analyst with a well-
known firm of Edinburgh stockbrokers, had become aware that a profits warning was
imminent in relation to a particular company. Its chairman testified that he had told the
appellant about this during a private meeting. Almost immediately afterwards, the
appellant called in two of his firm's staff and told them that his investment advice in relation
to the company's shares had changed. A large number of shares, which were held by the
63
appellant's firm's clients, were disposed of before the profits warning. This avoided losses,
totalling almost £1.5m, which would have been incurred when the share price dropped in
the wake of the warning. A no case to answer submission failed. The appellant then
testified that he had not been told of the warning; only that there would be minimal share
earnings, which was not price-sensitive information and hence its disclosure was not
prohibited. The appellant argued that there had been no corroboration of the essential fact
that he had been told of the profits warning.
General (Hope) said (at 141):
"... [T]he argument for the Crown was that [the chairman's] evidence was
corroborated by facts and circumstances. The trial judge [later Lord McEwan] said
that it was appropriate to look at the whole context and all the evidence, and to that
extent I agree with him. But ... the question which then had to be considered was
whether the facts and circumstances, when taken together, were more consistent
with [the chairman's] evidence than with the appellant's evidence."
If this were correct, it would mean that a sufficiency of evidence, which was present at the
no case to answer stage of a trial (ie at the conclusion of the Crown case) could have
vanished after all the evidence had been led (ie at the end of the defence case). The Lord
Justice General rejected a submission that all that was required was evidence which was
capable of supporting the chairman's testimony. Circumstantial evidence which was
equally consistent with the appellant's account could not amount to corroboration. It was
not sufficient for the evidence to be neutral on this point. Lord Cowie was not convinced of
this, since the jury could reject the appellant's account and find corroboration of the
chairman's testimony in the surrounding facts and circumstances. However, both he and
Lord Mayfield agreed with the Lord Justice General's conclusion. The conviction was
quashed; a matter which caused a considerable degree of controversy at the time.
64
reconsider Mackie (see page 95). By this time, Lord Rodger had become Lord Justice
General. Fox involved a conviction of clandestine injury; having intercourse with a woman
whilst she was asleep. She had woken to find the appellant having intercourse with her.
This would constitute rape under the 2009 Act; but not then. The appellant did not testify,
but the Crown led evidence of his interview with the police. The appellant admitted
intercourse but claimed that the complainer had been awake and consenting. She had only
complained when she discovered that the appellant was not the same man with whom she
had had consensual intercourse earlier that evening and who had put her to bed. On
discovering this, the complainer became "quite upset". The Crown relied for corroboration
on evidence from others about the complainer's distress very soon after the incident. The
appeal was based on the dictum in Mackie that corroboration could only exist if the distress
were more consistent with the complainer's account than with that of the appellant.
(at 100) that:
"In essence the picture has not changed since these works were written.
Corroborative evidence is still said to be evidence which supports or confirms the
direct evidence of a witness: see Smith v Lees ... [T]he starting point is that the jury
have accepted the evidence of the direct witness as credible and reliable. The law
requires that, ... they must still find confirmation of the direct evidence from other
independent direct or circumstantial evidence. ...
This does not mean to say that the jury can look at the circumstantial evidence only
at this final stage of their deliberations. How the jury approach their task of
assessing credibility and reliability is, of course, very much a matter for them. When
examining the direct evidence to see whether they accept it, the jury may well test it
by reference to various matters, including the available circumstantial evidence.
Nevertheless, once the jury have accepted the direct evidence, the same
circumstantial evidence may come into the picture once more when, ... the jury are
looking for evidence which confirms the direct testimony.
65
While evidence can provide corroboration only if it is independent of the direct
evidence which it is to corroborate, the evidence is properly described as being
corroborative because of its relation to the direct evidence: it is corroborative because
it confirms or supports the direct evidence. The starting point is the direct evidence.
So long as the circumstantial evidence is independent and confirms or supports the
direct evidence on the crucial facts, it provides corroboration and the requirements of
legal proof are met."
In introducing a new element, whereby the corroborative evidence had to be more
consistent with the direct evidence than with the accused's account, Mackie was in error. If
the jury rejected the accused's evidence, they would be entitled to find that the
circumstantial evidence "fits with" (at 101) the direct evidence. Since O'Hara v Central SMT
was not a case with competing accounts, it ought not to have been founded upon to justify
the conclusion in Mackie.
element" and factum probandum. Lord Kirkwood did this too, before revisiting Hume,
Burnett and Alison and stating (at 111) that, where the Crown rely on one witness
implicating the accused:
"the necessary corroboration can be found in the evidence of another witness, or
evidence of facts and circumstances, which provides concurrent testimony in the
sense that the evidence relied on as corroboration confirms or supports the evidence
of the direct witness in relation to the facta probanda."
Alison; stressing (at 117) Hume (ii, 383) as the locus classicus [the standard], upon which it
was difficult to improve. He continued:
"What the rule requiring corroboration is intended ... to direct [the jury] to do is to
be certain ... that they are not relying on a single source but have at least two
independent sources of evidence whose coherence convinces them of the validity of
the Crown case."
66
Lord Coulsfield, like Hume, cautioned against defining any quality which the circumstantial
evidence required to have; that being a matter for the jury to assess. He did not consider
(at 118) that each source required to be incriminating in itself. He continued:
"[I]t ... seems ... to be wrong to try to divide cases into different categories by
reference to the nature of the evidence which is relied on, and if there were a rule
that each piece of evidence must be incriminating, I would find it difficult to see why
that should not apply in every case. I do not ... think that it is necessary that each
piece of evidence, of whatever kind, should be incriminating in that sense. ...
[W]hat matters is the concurrence of testimonies. Whether a single piece of evidence,
or a number of pieces of evidence, are incriminating or not is a matter which can only
be judged in the whole circumstances taking all the evidence together. It is an
everyday occurrence that juries are directed that corroboration of a strong piece of
evidence may be found in a weaker piece of evidence which, in itself, might not be
capable of being described as incriminating. That is not to say that care must not be
taken to see that there is evidence which a jury can properly regard as incriminating
taken together. ... [H]owever, ... it is much easier to say that evidence must not be
ambiguous or insignificant than it is to describe in any positive terms any quality
which any single piece of evidence must possess."
like a fingerprint. It is always manifested in particular ways and in particular circumstances.
It is important that directions to the jury on this have to be given "as simply and briefly as
possible". He summarised (at 119):
"... [W]hat the rule requiring corroboration demands is that there should be
evidence which does not depend upon one single witness or one single source, but
derives from at least two independent sources which, taken together, display a
sufficient concurrence to leave no reasonable doubt in a rational mind: and that, so
far as sufficiency is concerned, there should be evidence which a reasonable jury
could regard as satisfying that requirement (cf Alison, Practice, at 551). That ... [is]
what Hume's statement of the rule requires and I do not think that any further
requirement can be justified. ... [I]t might be suggested that this view reduces the
requirement to a `two witness' rule, (see Gordon in Justice and Crime ...), that is, a
merely mechanical or formal requirement, but I do not think that such a criticism
would be justified. ... [T]he rule would not merely be a formal rule but would be a
rule requiring a positive conjunction of testimony to a degree which carried
conviction."
67
was incapable, on any view, of supporting the direct evidence of the crucial fact and cases in
which it was, even if there might be an innocent explanation. Smith v Lees was in the former
category and the evidence of distress was "neutral". Yates was in the latter class. The
evidence was not neutral. It was incriminatory. Lord Gill was critical (at 122) of the Lord
Justice General's (Hope) approach, which had "no solid foundation in the criminal law".
The question was whether the distress was supportive of the complainer's account; that
evaluation being for the jury to determine.
"... [T]he writers give us the correct approach. ... [T]he essence of the doctrine of
corroboration is that there must be evidence emanating from two independent
sources both of which point to the crucial fact. In a case such as this, so long as the
evidence of facts and circumstances, taken as a whole, is capable of supporting the
direct evidence, it can constitute corroboration. It is then a matter for the jury to
decide whether or not to give the circumstantial evidence an incriminatory
interpretation.
...
When the court considers the corroborative value of circumstantial evidence, it is not
a matter of examining the evidence to see whether it is more supportive of the
complainer's account than of any other suggested account. If there is direct evidence
... the court simply looks to all of the other evidence to see if within it there is
independent evidence capable of supporting the direct evidence."
Following Fox
Fox are by no means identical. The use of the words "concurrence of testimonies", which
appears in Hume (ii, 383), may have caused some confusion. There remain shades of the
idea that, where there is direct testimony, the corroborating circumstances when looked at
separately require to point towards the guilt of the accused (eg Lord Kirkwood at 111; Lord
Gill at 123). However, the principal thrust in Fox is clear. What is needed is independent
68
testimony of facts which confirm or support the direct evidence (Lord Justice General
(Rodger) at 100). The corroboration need not be incriminating in itself (Lord Coulsfield
at 118). That has been the approach which has been adopted by the court ever since Fox.
first instance, HM Advocate v L 2008 SCCR 51 involved, as in Fox, clandestine injury.
Intercourse was admitted. The issue was whether the complainer had been asleep and had
woken up with the accused having intercourse with her. The Crown relied on several
circumstances as corroboration of the complainer's account, including the quantity of drink
taken, distress, lack of protection, relative ages and the lack of any prior history of intimacy.
Citing Fox and Smith v Lees, the trial judge (Lord Hodge) observed (at para [12]) that the
potentially corroborative circumstantial evidence "must be capable of pointing to the
essential fact or facts". The various factors were, in combination, sufficient corroboration.
Lord Hodge did not (at para [16]) require to consider whether distress alone might be
sufficient. However, he found it difficult (at para [17]) to see how it could support or confirm
a complainer's evidence in such a way as to satisfy a jury that she had "expressed her lack of
consent in a way that would have given the accused the requisite knowledge for the mens rea
of rape". Spendiff ought to have made it clear that "mens rea" was something which was to
be inferred from established fact. It did not require corroborated evidence (Lord Penrose,
delivering the opinion of the court (Lord Justice General (Gill) and Lord Cameron) at
para [33]). Nevertheless, not only was that revisited in HM Advocate v L, it also featured in
Branney v HM Advocate 2014 SCCR 620. There, when the appellant was confronted with an
allegation that he had "molested" (at para [8]) a girl aged between 13 and 19, he had replied
"It didn't start until she was 21". This was held (at para [21]) not to be capable of amounting
69
to an admission of intercourse (ie penetration); the word "molest" being too vague relative
to the need to prove penetration in what was a rape charge.
now be termed mainstream thinking, the Lord Justice General's (Rodger) dictum in Fox was
followed in Adamson v HM Advocate 2012 JC 27. There the complainer was the
granddaughter of the appellant's partner. Her testimony was adequately corroborated by
medical evidence of a condition which might have been caused by intercourse and
testimony that the appellant had broken down in tears when he was told that the family
were not going to report him to the police. Under express reference to Fox, the Lord Justice
General (Hamilton), delivering the opinion of the court (Lords Marnoch and Brodie), said (at
para [15]) that:
"Although neither strand of testimony can be said to have been compelling ... they
could, when taken together ... be said to support or confirm the complainer's
testimony and thus provide corroboration."
2015 JC 1. The issue was whether penetration of the complainer's vagina had been
adequately corroborated by the finding of the appellant's pubic hair on the inside crotch
area of the complainer's pants. The court held that it was. Lord Carloway, delivering the
opinion of the court (Lords Bonomy and Malcolm) in 2010, said (at para [7]):
"A piece of evidence is corroborative of testimony of a fact in issue if it can be said to
support or confirm that testimony. That is, in essence, the test set out by the Lord
Justice-General (Rodger) and by Lord Gill in Fox v HM Advocate (at 100 and 124
respectively) (reversing the effect of Mackie v HM Advocate). Where there is an
allegation of rape, which of course involves proof of sexual intercourse in the sense
of penetration, the finding of an accused's pubic hair adhering to the inside crotch
area of a complainer's pants will support the complainer's testimony that sexual
intercourse occurred. ... [I]t is not something dependent upon a scientific view of
consistency, as a scientist rather than a lawyer would use that term, but whether an
appropriate inference of fact can be drawn by a jury."
70
appellant's semen was found on the complainer's duvet. Citing Munro and Fox, the Lord
Justice Clerk (Carloway), delivering the opinion of the court (Lady Smith and
Lord Bracadale), (at para [10]) said:
"A piece of evidence is corroborative of testimony of a fact in issue if it can be said to
support or confirm that testimony ... The corroborating piece of evidence does not,
of itself, have to point exclusively to the fact in issue. Each case will depend upon its
own facts and circumstances."
argument was whether penetration had been corroborated. The Lord Justice General
(Carloway), delivering the opinion of the court (Lords Menzies and Turnbull), said (at
paras [18] [20]):
"It is accepted that, in all rape cases, there requires to be proof, by corroborated
evidence, that the crime has been committed; that is that sexual intercourse has taken
place without the complainer's consent. This has come to be understood as meaning
that the two elements ought to be looked at separately, or in isolation. This has led to
an assumption that the act of penetration, when spoken to by a complainer, requires
corroboration by scientific or medical evidence, such as the finding of semen in, or
injuries to, the vagina, by an admission of intercourse, or, very much more rarely ...
an eye ... witness account of the event. In some situations, in which a complainer
has given evidence of penetration, it has been held that only a conviction of
attempted rape was available. This is both strange and anomalous.
This understanding has been prompted by the former idea that the most serious
element in rape was the penile penetration of the vagina and the several
consequences which that had in relation to the woman's `honour and value'. That
idea has given way to a much broader concept whereby rape is regarded as serious
because it involves a violation of a person's physical and sexual autonomy (Scottish
Law Commission, Report on Rape and Other Sexual Offences (no 2007) paras 3.1 and
3.11). Thus, what may now be characterised as a sexual `attack' may be committed
against both the male and the female and not only by penile penetration of the
vagina, but also by anal or oral penetration. It was because of the serious nature of
penile penetration, especially vaginal penetration in the context of the risks of
pregnancy and the transmission of particular diseases, that the nomen criminis was
retained.
71
There is no sound reason for restricting the availability of corroboration of the act of
rape to the type of scientific, medical or other evidence set out above. In relation to
penetration, corroboration can be found in facts and circumstances which `support or
confirm' the direct testimony of the commission of the completed crime by the
complainer (Fox v HM Advocate, LJG (Rodger) at 100). In a situation in which rape is
alleged, a broad approach should be taken. It has been said that distress may not be
capable of corroborating an account of the acts which caused that distress. This was
conceded by the Crown in Smith v Lees (Lord Justice General (Rodger), p 79).
Accepting for present purposes that the concession was well made, care must still be
taken not to eliminate distress, especially if it is of an extreme nature, as a significant
factor which, at least when taken with other circumstances, `supports or confirms' a
complainer's account that she was raped in the manner which she has described.
Thus there will be many situations, such as dishevelment or loss of clothing, where
direct testimony of rape ... can be seen as being corroborated when all the
surrounding facts and circumstances are taken into account."
DNA on the inside of a pair of pants, which the complainer had been wearing under her
jeans at the time of a sexual assault, was sufficient to corroborate the complainer's testimony
of digital, vaginal penetration. Finally, there is Fisher v HM Advocate 2023 JC 21 in which the
appellant had been charged with two sexual assaults which the Crown intended to
corroborate by using evidence of other assaults of which the appellant had been acquitted.
The Lord Justice General (Carloway), delivering the opinion of the court (Lords Woolman
and Matthews), explained (at paras [20]-[21]) the limitations under which the prosecution of
criminal cases were carried out, viz.: (i) the need for corroboration, which in a sexual offence
case would normally consist of testimony from another person about facts and
circumstances which confirm or support the direct evidence of the complainer; (ii) that de
recenti statements may be admitted to bolster credibility only; and (iii) the fact that sexual
offences are seldom witnessed by others, which often resulted in a lack of acceptable
corroboration, even where a complainer was regarded by the jury as entirely truthful and
dependable.
72
of Reasons rather than an Opinion has been issued. The reason for the distinction is that, in
the former, the cases are fact specific. They are not thought to raise a new point of law or
other matter which ought to be widely distributed to the legal and wider community by
being published on the internet. For example, in Reid v HM Advocate, 24 November 2021,
unreported, penetration was corroborated by testimony that, in advance of the rape, the
appellant had been asking the complainer, amongst others, to have intercourse with him
(see also McCabe v HM Advocate, 10 February 2022, unreported, and Graham v HM Advocate,
5 July 2022, unreported).
De recenti developments
Cinci v HM Advocate
made during the commission of a crime (res gestae) and those which occur afterwards (de
recenti), and the evidential effect of that distinction, is apparent from Morton (at 53). The
practical effect of the distinction and, as will be seen, the injustice which it can promote is
well illustrated by Cinci v HM Advocate 2004 JC 103. The complainer in Cinci had no
recollection of the incident and nor it seems (although it is unclear from the law report) did
the appellant. What happened all came from the testimony of other witnesses. The
complainer, her boyfriend, the appellant and others were on an organised backpacking tour
of the Highlands. Considerable quantities of alcohol had been consumed. The complainer
was extremely drunk. At the hostel in Oban, where the tour group was staying, she had to
be put to bed. She was sick. She was assisted to a shower cubicle by the tour guide. The
appellant, who was also drunk, tried to join her but was rebuffed. The tour guide told the
73
appellant, in no uncertain terms, to go away and leave the complainer alone. She already
had a boyfriend. The appellant must have returned to the cubicle, which was then locked.
everything was alright. The appellant said "Yes", but the complainer said "No" and then
"No help me!". The cubicle was opened. The appellant and the complainer were both
naked. The complainer immediately said "He raped me". She was "scrunched up" in a
corner of the shower "very upset and crying". The appellant was told, in very firm terms, to
make himself scarce by locking himself in a toilet. The complainer's boyfriend appeared,
having heard the complainer shouting "help me". She said to him "He put his willy into
me". She was lying on the floor of the shower, in deep shock, quite incoherent and
repeating "Help me. Help me". Forensic scientific evidence discovered the appellant's
semen in the complainer's vagina. The police were called. They found the appellant fast
asleep in a toilet.
two bases (at paras [6], [9], [21] and [22]), viz.: (1) the trial judge (Lady Smith) had
misdirected the jury when she said that the complainer's words "he raped me" were so
closely related to the event as to be part of the res gestae and thus available as proof of fact;
and (2) there was insufficient evidence of "mens rea". The Lord Justice Clerk (Gill) doubted
the Lord President's (Normand) approach in O'Hara v Central SMT. Lord McCluskey,
following McKearney v HM Advocate 2004 JC 87, was of the view (at para [22]) that there was
no direct evidence of "mens rea". The complainer's use of the word "rape" would not do.
misunderstood, Morton in relation to the point at which res gestae come to an end. The
74
content of any statement made thereafter, even if de recenti, was not available as proof of fact,
and hence as corroboration. The same errors were made by trial judges in Farooq v HM
Advocate 1991 SCCR 889, M v HM Advocate 2006 SCCR 338 and DS v HM Advocate 2012
SCCR 319; all of which proceeded on Crown concessions. In Dyer v HM Advocate 2009 SCCR
194 the conviction of rape was quashed because of what the court regarded as a failure by
the trial judge (Lord Dawson) to distinguish adequately between the evidential effects of
distress and those of a de recenti statement which had been made in the context of that
distress. He ought to have said that corroboration could not be found in anything that the
complainer may have said when distressed (Lord Justice General (Hamilton), delivering the
opinion of the court (Lords Osborne and Mackay), at para [22]; cf Ahmed v HM Advocate 2010
JC 41, Lord Justice General (Hamilton), delivering the opinion of the Full Bench (Lords
Osborne, Nimmo Smith and Bracadale and Lady Paton), at para [20]).
O'Shea v HM Advocate
the lack of it) between statements which are part of the res gestae and those said only to be de
recenti, O'Shea v HM Advocate 2015 JC 201 involved a conviction for murder. The deceased
and a friend had been attacked in the street as they walked past a flat. They ran around the
corner but were caught and stabbed. A witness, who had been walking past the flat after the
chase had been lost from view, spoke to what the occupier of the flat, who turned out to be
the appellant's partner, had shouted. This was: "They bastards smashed my window" and
"My man's round there" (at para [5]). The appellant came back around the corner and
accompanied his partner back into the flat. It was held that these statements were part of the
res gestae and thus available as proof of identity. In delivering the opinion of the court
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(Lords Bracadale and Drummond Young), the Lord Justice Clerk (Carloway) reviewed (at
para [20] et seq) the authorities in relation to the origins, nature and extent of the res gestae
principle at some length. He commented that it had been a dissenting opinion in Greer v
Stirling County Roads Trs (1882) 9 R 1069 (at 1076) that had taken root in Walkers (1st ed,
para 377), in which it was said that res gestae included exclamations which were uttered at
the time, but not an account given after a person had gone home (which was what had been
nevertheless admitted as evidence of fact in Greer).
para [27]) Teper v R [1952] AC 480 in which Lord Normand, who had been in Morton and
O'Hara and was then in the House of Lords, said (at 486 - 487) that the rules on the
admission of evidence of statements as part of the res gestae were the same in Scotland as in
England. Lord Normand continued:
"... [H]uman utterance is both fact and a means of communication, and ... human
action may be so interwoven with words that the significance of the action cannot be
understood without the correlative words, and the dissociation of the words from
the action would impede discovery of the truth."
Lord Normand identified a res gestae statement as being real evidence, clearly following
Dickson in that regard, and not "merely a reported statement".
treatment of de recenti/res gestae statements in Scotland and England had diverged after
Teper. In Ratten v R [1972] AC 378, Lord Wilberforce explained (at 389) that res gestae
covered words "so clearly made in circumstances of spontaneity or involvement in the event
that the possibility of concoction can be disregarded". Proof of fact from a de recenti
statement is permissible in England (see also R v Andrews [1987] AC 281) but not, following
Morton, in Scotland.
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Wilson v HM Advocate
who was 20, said that the appellant, who was 41, had sexually assaulted her, including by
vaginal penetration, when she was asleep in a flat which was shared by the appellant and
his partner. The partner was a friend of the complainer. The complainer awoke the
following morning at about 10.30 on what was a Saturday. She spoke to her friend, but
made no mention of the assault. She texted her boyfriend to come and pick her up, but said
nothing of the attack. She explained why she had kept silent at those times. On arriving at
her mother's house at 12.00 noon, she had gone straight upstairs, without speaking to her
mother, had a shower and gone to bed. Her mother described her as "very inward", tired
but sober. She had stayed in bed all Saturday and into the Sunday. On Sunday evening she
drove to meet her best friend in a car park. She was described by this friend as crying and
"quite upset" (at para [11]), becoming hysterical. The Crown elected to lead little evidence
of what the complainer had actually told her friend. The complainer had not gone to work
on the Monday. At interview, the appellant admitted consensual sexual contact, including
inserting his fingers into the complainer's vagina.
(Lords Bracadale and Malcolm), considered (at paras [28] and [29]) Smith v Lees, Fox and the
relevant case law which had been examined in those two Full Bench decisions. He looked at
the rejection of the argument in Smith v Lees that a de recenti statement should be equiparated
with de recenti distress and so could never amount to corroboration. It was accepted in Smith
v Lees that distress could be used as corroboration but, in what seemed to be a compromise,
not of the specific acts charged. The Lord Justice General explained (at para [30]) that,
77
provided a complainer's distress was caused by the incident, there was no fixed time within
which that distress required to manifest itself. There had been no error in the sheriff's
directions to that effect. He added (at para [35]):
"Once it is accepted that the evidence of distress was admissible as potentially
corroborative, it would be unrealistic to exclude evidence of what the complainer
had said at the time when the distress was observed. It is not clear why the Crown
were so circumspect in not leading evidence of what the complainer had said, given
that, in due course, the jury had to decide whether the distress had been caused by
the incident. Once evidence of what was said had been adduced, as it was without
objection, it became advisable, if not a requirement, for the sheriff to direct the jury;
that this evidence could not provide corroboration but could be used in the
assessment of the complainer's credibility and reliability. That is what the sheriff
did; drawing the jury's attention to the lapse of time and lack of detail, as matters for
their legitimate consideration."
The Commonwealth and Irish cases
jurisdictions where these have no grounding in domestic jurisprudence. It remains
instructive to look at how distress and de recenti statements are viewed elsewhere in the
Commonwealth. Although there is now no absolute requirement for corroboration in any of
these jurisdictions, that has not always been the case. In the past it has been obligatory to
require corroboration, or to give the jury a cum nota warning should there be no
corroboration, in sexual offence cases. How these various common law jurisdictions
approach matters now will shed light on what is thought to be appropriate in a modern
democratic society. It may put into perspective the effect of Morton both on de recenti
statements and on what is thought to be available as corroboration in comparison to Smith v
Lees. Both parties provided helpful lists and summaries of Commonwealth cases. What
follows is a general survey of these cases, with some selective quotation of relevant dicta.
Not every case cited has been included and this does not represent an in-depth analysis of
78
each country's jurisprudence on the subject. It is more of a description of the general flavour
of approach across some of the larger Commonwealth states.
England and Wales
she had been playing on a moor with some friends when she was pulled to the ground and
indecently assaulted by the appellant, whom she identified. That identification was
corroborated aliunde (otherwise). A witness described the complainer emerging from the
moor in a very distressed condition. He took her home, where her mother said that she was
trembling and in a terrible state. The complainer immediately told her mother what had
happened. The evidence of the complainer's distress, when emerging from the moor, was
regarded by the Court of Appeal (at 321) as "quite clearly capable of amounting to
corroboration", although, if the distress had only been spoken to by her mother as distinct
from an independent bystander, who was unobserved by the complainer, it would have
been weak because, according to the Lord Chief Justice (Parker) (at 321): "The girl making
the complaint might well put on an act and simulate distress". Since there was no issue of
consent, the corroboration applied to the corpus delicti (crime).
on a woman when they were alone in an office. The woman ran crying to a bathroom. She
was followed by a co-employee who had heard her cries. The direction to the jury stressed
the need for supporting evidence, first, that the offence was committed and, secondly, that
the appellant committed it. The appellant admitted having been alone in the office, so
identity was not an issue. The court held that the distress sufficiently corroborated the
assault. The Lord Chief Justice (Lane) referred (at 235) to a previous ruling whereby juries
79
ought to be warned that, although distress was corroborative, they must be fully satisfied
that it was not feigned.
indecent assault, including digital penetration of the vagina, on a girl aged between 9 and
12. The complainer first mentioned the assaults to schoolmates some months later. She had
burst into tears. The police were called. In between times, her mother had noticed a change
in her behaviour; she had become withdrawn and had given up pursuits which she had
hitherto enjoyed. On being spoken to by the police, the complainer became very distressed;
weeping uncontrollably. Potter LJ cited Redpath and Chauhan, stating (at para 45) that
evidence of distress should carry no weight if it is "only part and parcel of the making of a
complaint". He continued:
"However, it may properly be afforded weight if the complainant is unaware of
being observed, and if the distress is exhibited at the time of, or shortly after, the
offence itself, in circumstances which appear to implicate the accused."
The court held that the evidence of long term changes of demeanour ought to have been
excluded in view of the uncertainties in linking them with the assaults.
the court, favoured (at 422) a direction that, rather than warning jurors not to attach much
weight to evidence of distress, the judge should alert the jury to "the sometimes very real
risk that the distress may have been feigned". In more recent times, in R v Khan [2021]
EWCA Crim 142, the appellants had been convicted of people trafficking and committing
serious sexual offences against young girls, some of whom were in care. One of the girls had
returned home in the early hours of the morning, shortly after a particular incident. She was
in a state of distress and told her father what had happened. Redpath and Chauhan were
80
cited (at para 16), as were more recent cases. These included R v AH
[2005] EWCA Crim 3341, where a complainant spoke to a workmate half an hour after she had been raped. In
that case the court had considered (at para 35) that there ought to have been a direction that
the distress was "part and parcel of the complaint" and should "not be given separate
weight". A similar result followed in R v Thompson [2014] EWCA Crim 743 and in R v JS
[2019] EWCA Crim 2198, in which there was a failure to alert the jury to the possibility of a
feigned complaint. In Khan, Stuart-Smith LJ said this (at para 18) in relation to the previous
cases:
"It is not always obvious what is captured by the phrase that distress is `only part
and parcel of the making of a complaint'. While we endorse fully the propositions
that: (a) demeanour is not necessarily a clue to the truth of an alleged victim's
account with much depending on the personality and character of the person
concerned, and (b) that the jury needs to be alert to the possibility that distress may
be feigned, both of these principles ... necessarily ... imply that it may be open to a
jury in an appropriate case to take the demeanour of the complainant into account.
This approach is reflected in ... the current Crown Court Compendium, which
emphasises the need to avoid making assumptions based upon a witness's
demeanour. Specifically, it offers a specimen direction for when a complainant has
shown distress when making a disclosure to a witness (as [the complainant] did
when she got home and saw her father) and counsel has invited the jury to make
unwarranted assumptions. The specimen direction warns against assessments based
on preconceived ideas, but it contemplates that the complainant's behaviour may
help to decide whether the prosecution has proved its case...".
Canada
the two appellants in their apartment. After the incident, one of the appellants had driven
her to a bus station from where she phoned a cousin and then the police. Both the cousin
and the police said that she was in an "emotionally distraught condition" (at 612). One
appellant denied intercourse. The other admitted intercourse, but said that it had been with
consent. The Canadian Supreme Court found that the distress was corroboration in the
81
cases against both appellants; ie it covered all aspects, and not just a lack of consent. In R v
AJK 2022 ONCA 487 Associate Chief Justice Fairburn, delivering the judgment of the Court
of Appeal for Ontario, said (at para [43]) that, notwithstanding the possibility of a range of
different reactions:
"a complainant's emotional disintegration after an alleged offence may well be
relevant to whether, as a matter of common sense and human experience, the events
occurred as described by the complainant ... The inference to be taken ... was that
the complainant was emotionally devastated because something emotionally
devastating happened to her."
New Zealand
complainer's state was involuntary, uncontrived and therefore independent of her
complaint (R v Moana (1979) 1 NZLR 181 at 184 - 185). In R v B, 26 November 2004,
unreported, Doogue J, delivering the judgment of the Court of Appeal, expressed (at paras
[28] and [29]) the view that apparent distress, which was exhibited two weeks after an
incident, was admissible when the occasion provided the first reasonable opportunity on
which to complain. In R v Daleszak [2006] NZCA 499, Robertson J, giving the reasons of the
court, said (at para [36]) that evidence of distress on the morning after an event was:
"routine .... It was part of the narrative and of relevance to the issue of whether the
sexual connection had been consensual."
Australia
(Winneke CJ delivering the judgment of the Supreme Court of Victoria) that:
"[E]vidence of the distressed condition of a [complainer] may or may not be capable
of amounting to corroboration according to the particular facts of each case. In
determining whether it is so capable, regard must be had to such factors as the age of
the [complainer], the time interval between the alleged assault and when she was
observed in distress, her conduct and appearance in the interim, and the
82
circumstances existing when she is observed in the distressed condition. Without
attempting to enumerate exhaustively the circumstances in which such evidence may
amount to corroboration, ... if, regard being had to factors of the kind we have
mentioned, the reasonable inference from the evidence is that there was a causal
connexion between the alleged assault and the distressed condition, evidence of the
latter is capable of constituting corroboration. If such inference is not open, the
evidence is not, in our opinion, capable of amounting to corroboration. We should
add that except in special circumstances such as existed in Redpath ... evidence of
distressed condition will carry little weight and juries should be so warned by the
trial judge in the course of his charge."
complainer were co-employees attending a Christmas party. The appellant guided the
complainer into a small room and raped her. Intercourse was admitted. After the event,
when the appellant had left her, the complainer fell to the floor, vomited and went to a
bathroom to wash. She complained "virtually" immediately to workmates who spoke to her
extreme distress; that she was crying uncontrollably and saying that she had been raped. In
determining the admissibility of what the complainer had said as proof of fact, reference
was made to R v Bedingfield (1879) 14 Cox CC 341. That had been a trial for murder in which
the defence was suicide. Evidence that the soon to be deceased had run out of the house
with her throat cut and had said "See what Harry has done" was excluded as hearsay. That
was, according to Lord Ackner in R v Andrews [1987] AC 281 (at 300), not a ruling which
would find favour in modern times. In Papakosmas the evidence of what the complainer had
said immediately after the incident was held admissible as proof of fact. As Chief Justice
Gleeson and Justice Kirby, sitting in the High Court, said (at para 59):
"... [T]he statements ... were closely contemporaneous with the events alleged and
were of a kind that might ordinarily be expected if those events occurred. That being
so, they rationally bear on the probability of the occurrence of those events and, thus,
were admissible as evidence of the facts asserted in them."
Justice McHugh said (at para 78):
83
"A complainant who has been sexually assaulted may, but will not necessarily,
display outward signs of distress after the assault. Evidence of distress tends to
prove that the complainant had been sexually assaulted ... [I]n terms of relevance, it
is difficult to see any distinction between the content of these concessions and the
content of recent complaint evidence."
South Africa
raped when, after a drunken afternoon, she had been dragged onto a beach. The appellant
said that all activity had been consensual. After the incident, the appellant's car became
stuck on the beach. Some fishermen arrived to assist. They spoke to being approached by
the complainer who said she had been raped and tried to get into their car. She was crying
and had been drinking. Appeal Justice Cloete in the Supreme Court of Appeal reviewed (at
paras [13]-[16]) the English, Commonwealth and South African cases; concluding that what
a complainer said could be used to demonstrate consistency and as evidence of a lack of
consent. Caution had to be exercised in relation to the complainer's emotional state but (at
para [22]) it was admissible to show that sexual contact had taken place, where this was
denied. Notwithstanding all of this, the conviction was set aside (cf Fletcher v S
and with whom the other justices of appeal agreed, said (at para [18]):
"It must be emphasized immediately that by corroboration is meant other evidence
which supports the evidence of the complainant, and which renders the evidence of
the accused less probable, on the issues in dispute ... If the evidence of the
complainant differs in significant detail from the evidence of other State witnesses,
the court must critically examine the differences with a view to establishing whether
the complainant's evidence is reliable. But the fact that the complainant's evidence
accords with the evidence of other State witnesses on issues not in dispute does not
84
provide corroboration. Thus in the present matter, for example, evidence that the
appellant had sexual intercourse with the complainant does not provide
corroboration of her version that she was raped, as the fact of sexual intercourse is
common cause. What is required is credible evidence which renders the
complainant's version more likely that the sexual intercourse took place without her
consent, and the appellant's version less likely that it did not."
This was followed in Kgosiencho v S [2019] ZANCHC 57 (Northern Cape High Court) by
Williams ADJP at para [23].
Ireland
The Court of Criminal Appeal held that distress might amount to corroboration in certain
circumstances, but the jury should be wary of relying on it. Justice McCarthy carried out an
extensive review of the authorities. The trial judge had directed the jury (at 507) that "it is
dangerous for the jury to convict even if they believe the evidence of the complainant ...
unless there is corroboration". He continued (at 508 509):
"... in criminal cases like this it has been known for girls who have been indecently
assaulted or who have had sexual intercourse with men to make complaints about
the men afterwards which are not true. There are many reasons for this and you use
your common sense and experience of life. Some of you I am sure are married and
have experience of sex."
On that basis the jury had to be absolutely satisfied of the girl's account and beyond doubt
that the defendant knew that she did not consent. Justice McCarthy, with whom the other
judges agreed, considered (at 509) that this adequately conveyed to the jury the proper
approach to the real issue, and the weakness of distress as corroboration.
Appeal (Birmingham) preferred a view on the need for a cum nota warning in Ireland as
follows at para [12]:
85
"... [T]here is no absolute requirement on a Judge to tell a jury, as a matter of course,
that the distressed state of a complainant, if capable of amounting to corroboration,
offers only weak corroboration. Whether to do so is a matter for the judgment of the
Trial Judge and it is a judgment that will be exercised against the background of the
particular facts of the case. There may be cases where it would be regarded as
appropriate to so do. Examples that come to mind would be situations where a
credible alternative explanation for the distressed state is advanced, or where those
giving evidence of having witnessed the distressed state might seem other than
independent, and indeed, as having an axe to grind. In this case, the Court does not
see the need for such a warning or categorisation emerging from the evidence."
The Reference
"(1)
Did the trial judge err in directing the jury that distress of itself cannot
corroborate the direct testimony of a complainer that penetration has occurred?
(2)
Is independent evidence of distress sufficient to corroborate a complainer's
direct testimony that penetration has taken place?"
Submissions
Crown
been wrongly decided and should be overruled for four reasons: (1) it erred in finding that
distress could not corroborate penetration. The error lay in treating distress differently from
other forms of circumstantial evidence which were capable of supporting or confirming a
complainer's account; (2) it was inconsistent with the court's approach to circumstantial
corroboration since Fox; (3) it was at odds with other leading common law jurisdictions,
which did not restrict distress to corroborating only a lack of consent; and (4) it was contrary
to the court's observations in Jamal on the broad approach to corroboration. These
observations were consistent with: (1) the traditional approach to corroboration taken by the
86
Institutional Writers; (2) the modern offence of rape in the Sexual Offences (Scotland) Act
2009; and (3) the approach taken by the other leading common law jurisdictions.
than that something distressing had occurred. Each of the judges analysed corroboration
from the starting point that each of the facta probanda of a crime needed to be corroborated.
While the emphasis was slightly different for each judge, distress could not corroborate
penetration. The error was that distress should be treated in the same way as any other
form of circumstantial evidence. The classic statement of when circumstantial evidence may
be corroborative was when it confirmed or supported the direct evidence (Fox (at 100-101)).
So long as the circumstantial evidence was independent and confirmed or supported the
direct evidence, it provided corroboration and the requirements of legal proof were met.
The essential points to be taken from Fox were: (1) the starting point was the direct evidence;
and (2) circumstantial evidence did not lose its corroborative value simply because it may be
open to more than one interpretation or because there was an alternative explanation. Smith
v Lees could not be read compatibly with Fox. While a complainer's distress could not, when
looked at on its own, reveal precisely what had happened to her, that should not preclude it
from being corroborative. The jury should be permitted to draw an inference from the
distress about what had occurred.
permitted the inference that the sexual intercourse was not consensual. To be corroborative,
it did not need to compel that inference. There may be other reasons why someone was
distressed after sexual intercourse, but the fact that distress permitted an inference was
sufficient for it to corroborate lack of consent. If distress did not lose its ability to
87
corroborate lack of consent, merely because there were alternative explanations, the same
should be true for penetration. There was no principled reason for Smith v Lees to have
found that distress could corroborate lack of consent, even though there may be other
explanations for it, and then to have found that it could not corroborate penetration because
there could be other explanations for the distress.
corroborative value simply because an accused attempts to blunt its force by accepting some
other form of sexual wrongdoing, even if the complainer said that nothing of the kind
occurred and the only thing that happened was the rape she described. By finding that a
complainer's distress showed only that something distressing had happened, Smith v Lees
deprived what would otherwise be good corroborative evidence of the complainer's account
by saying that the distress was no more consistent with rape than with sexual assault.
Admitting the latter, the accused deprived the Crown of sufficient evidence of the former. If
there were two explanations for why a complainer was distressed, there was no reason why
a jury should not be allowed to decide which explanation they preferred.
only to support or confirm a complainer's evidence. In rape cases, it need not point
unequivocally to penetration (Adamson at para [15]; Munro at para [7]; Palmer at paras [10]
and [11]; PM v HM Advocate 2018 SCCR 23 at para [29]; Reid at para [17]; McCabe at para [10];
Graham; and Guthrie v HM Advocate at para [49]). In none of the cases could it be said that
the circumstantial evidence pointed unequivocally to penetration. It was sufficient that the
circumstantial evidence supported or confirmed the complainer's account of penetration. If
a finding of DNA, when compared with the absence of such a finding, was corroborative of
88
penetration because it made the complainer's account more probable, then so too should
distress. The presence of distress, when compared with the absence of distress, made a
complainer's account of rape more probable.
special type of circumstantial evidence, such as forensic or medical evidence. Penetration
could be corroborated in the conventional way. That could be by an adminicle of
circumstantial evidence that supported or confirmed the complainer's account; for example
dishevelment or distress. The same applied to implied or equivocal admissions, where the
charge involved penetrative sexual conduct. Such admissions were corroborative, including
the penetrative element, even though they could be consistent with an admission that
something other than penetration had happened (Adamson; and CR v HM Advocate 2022
JC 235). In both cases, the justification for the admission being capable of corroborating
penetration was that, applying Fox, it supported or confirmed the principal source of
evidence. The relevant principles were re-stated in Jamal (at para [21]). If corroboration of a
complainer's evidence, including penetration, could be supplied by another complainer
speaking to an attack on herself amounting to something less than penetration, there was no
principled reason why evidence of an independent witness speaking to distress shortly after
the incident should be any less corroborative of that penetration.
but it remained a relevant concept in sexual offence cases. Its roots were in the common law
warning of the danger of convicting without corroboration. Although the mandatory need
for a warning had been abolished, the courts in those jurisdictions still analysed what
evidence could corroborate in sexual offences. That made it instructive to look at how other
89
Commonwealth jurisdictions approached distress and which elements of the offence of rape
it could corroborate. Several Commonwealth jurisdictions regarded distress as
corroborative in rape and sexual assault cases. They did not distinguish between distress
corroborating penetration and distress corroborating lack of consent. They did not limit the
corroborative value of distress only to cases where the defence was consent. Distress was
also corroborative when the defence was denial and the prosecution had to prove both
penetration and lack of consent. It was a common and ordinary occurrence for distress to be
relied on, without any distinction between denial and consent cases (Australia: Papakosmas at
paras 20 and 78; and Shillingsworth at paras 36 and 37; Canada: Murphy; R v JAA
v JSS [2016] BCCA 411 at paras 47-49; England and Wales: Redpath; Chauhan; Romeo at para
13; and Khan at paras 16 and 18); Ireland: Mulvey; DPP v MK [2005] IECCA 93; DPP v Boyce
and R v B, CA365/13, 18 November 2004 at para 28); Northern Ireland: R v Z [2017] NICA 2
at para 43; and South Africa: Hammond at para 22; Fletcher at paras 13 and 15; S v Kruger
2014 1 SACR 647 (SCA) at para 9; and S v R 1965 (2) SA 463 (W)). It was anomalous that
Scotland, which was the only jurisdiction to require corroboration, was the only one in
which distress was not regarded as corroborative of penetration, but only corroborative of
lack of consent. Scotland was out of step with its closest common law neighbours.
and circumstances which supported or confirmed the complainer's evidence; and (ii) a
broad approach should be taken. Distress should not be eliminated as a significant factor
which, at least when taken with other circumstances, supported or confirmed the
90
complainer's account. This was consistent with both the traditional understanding of the
function of corroboration, as a check on a principal witness's testimony, and the modern
understanding of rape since the 2009 Act. That understanding rejected the artificiality of an
approach which required the concurrent events of penetration and lack of consent to be
corroborated separately and, in most cases, by different types of evidence.
canonical law sources, but the roots of the modern rule are in Hume: Crimes (ii, 383).
Although Hume identified the two elements of rape, he did not provide a separate
commentary on how corroboration of each element was to be achieved. His principal
observation was simply that "the credit to be given to [a complainer's] story must depend
on its probability, and the collateral evidence in support of it" (i, 308). None of the cases to
which he referred disclosed any consideration of corroboration of separate elements in
isolation. Alison was to the same effect, but with a much fuller treatment of the mode of
proof. Whether the woman's statement was duly corroborated was done "in the most
unexceptional way" (Principles, at 220); looking into the account of the woman and the
support which it received from the other circumstances (Principles, at 221). Signs of injury,
the remoteness of the locus, the accused's flight from it, and similar circumstances were
"concurring circumstances" which gave greater probability to the woman's account. Alison
contained an extensive examination of the various types of circumstantial evidence which
were available in rape cases. Nowhere were the two elements of the crime considered
separately or in isolation. The Institutional Writers' approach was the same as that
identified in Jamal. A woman's direct testimony of rape could be seen as corroborated when
all the surrounding facts and circumstances were taken into account.
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In Jamal the court was correct to observe that the prior understanding, that the two
elements of rape ought to be looked at separately, may have arisen from the view that
penile penetration was the most serious element in rape (HM Advocate v Robertson
(1836) 1 Swin 93). That appears to have led to the incorrect, but enduring, view that penetration
had to be looked at separately from force. This view was swept away by the 2009 Act.
Jamal was correct that any former views on the dishonour caused by penile penetration had
given way to a much broader concept of rape as a violation of sexual autonomy (Scottish
Law Commission: Report on Rape and Other Sexual Offences at paras 1.25-1.27 and 1.29). The
specific wrong of sexual assault was the infringement of sexual autonomy; the use of
violence was an additional, not a central part, of the wrongdoing (para 3.5). There was no
principled reason for looking at the two elements of rape, as contained in the 2009 Act, in
isolation from each other. Jamal was consistent with the traditional approach to
corroboration of rape in the Institutional Writers, the modern understanding of rape in the
2009 Act and with the approach taken in other Commonwealth jurisdictions.
Commonwealth, that different people will react in different ways to rape. While distress
and other aspects of a complainer's emotional state after the incident could corroborate her
account, there was no normal reaction to rape or other sexual assault. There was no reason
to restrict the corroborative value of distress to extreme distress (cf Jamal at para [20]). The
only thing that mattered was that the distress, of whatever form, was de recenti, unfeigned
and caused by what the complainer said was done to her. Particularly in historical cases,
distress was not always immediately displayed. There was no strict time within which it
had to be exhibited. What mattered was that the distress was caused by the rape (Ferguson
92
properly be put. When that statement was given in a state of distress, it was admissible as
primary hearsay to show that the reason for the distress was the incident alleged. When
the statement was de recenti, it was admissible as showing consistency in the complainer's
account (that is, as a prior consistent statement). Such evidence was not corroboration, but it
was capable of bolstering the complainer's credibility. There was a third situation, in which
a de recenti statement was made by a complainer while in a state of distress. The distress
was an objective feature and therefore a source of circumstantial evidence which was
independent of the complainer. The words spoken by the complainer, which described the
assault perpetrated upon her, were said not to be corroborative on the basis that a witness
could not corroborate herself (Morton at 54). While that has been the position since Morton,
the cases and text books pre-1938 cast doubt on its accuracy.
recent report, is not sufficient proof. However, Burnett later (at 554) allowed evidence of what
a child said to her parents or others recently after the assault to corroborate the child
complainer's account. Evidence of what the complainer said recently after the event was
competent as corroboration (at 602). Hume, in a footnote stated (ii, 407) that, in the case of
rape, it was admissible to lead evidence that, recently after the fact, the woman complained
of the injury to her mother. Alison said (Principles, 217 to 225) that, in cases of rape, it was
necessary to look at the accounts of the woman, and the support which they received from
the other circumstances of the case. Her statement was duly corroborated by the evidence
of her subsequent disclosure. A woman was permitted to give an account of the injury, and
93
to support that testimony by the accounts which she had previously given to others de
recenti. De recenti statements were capable of corroborating a complainer's evidence
(Practice, 514-515). Alison's exposition was confirmed by Dickson's Evidence (3
rd
edition, at
para 254). There was nothing in Alison or Dickson to suggest that this evidence was
admissible only for the purposes of bolstering a complainer's credibility. Evidence of third
parties speaking to the complainer's de recenti account was capable of providing
corroboration of the facts.
McLennan and McCrindle v
Macmillan
. McLennan and McCrindle
were expressly
disapproved in Morton in favour of allowing statements de recenti to be admitted for the
limited purpose of showing that a complainer had been consistent and, in the case of
assaults upon women, to negative consent. It was acknowledged that a complaint de recenti
increased the probability that a complaint was true. Morton relied upon the well-known
passages on corroboration from Hume, but the court did not refer to all the relevant
passages from Hume or to Burnett, Alison or Dickson. If Alison and Dickson were correct,
Morton was an inaccurate statement of the law. The law at the time permitted de recenti
statements made by complainers to be admitted to support or confirm their accounts.
These accounts were the "natural outpourings of feeling aroused by the recent injury"
(Dickson: i at para 258) and "which are connected, more or less directly, with the res gesta of
the injury, or which were so recently given after it, as to form, in some sort, a sequel to the
actual violence" (Alison Practice at 515). The error in Morton was a failure to recognise this.
de recenti statement when it was made in the absence of distress, which was a guide only to
94
credibility, and a de recenti statement made while in a state of distress. It should be open to
the jury to accept the evidence of a third party, who could speak to the confluence of distress
with a de recenti statement, as corroborative of the complainer's testimony. Not only would
that return the law to the position prior to Morton, it would also be consistent with the
Institutional Writings. It would avoid the anomaly of de recenti distress, coupled with a de
recenti statement, being capable of corroborating force or a lack of consent, but not the facts
spoken to in the statement. If, moments after a rape, a woman were seen in a state of
dishevelment, exhibiting distress to passers-by and heard to say, "Help me, I've been raped",
it was artificial to separate the dishevelment and distress from what the woman said had
caused it. The de recenti statement should be capable of being considered, like distress, as
being an unfeigned reaction, which arose spontaneously, and therefore as a source of
circumstantial evidence independent of the complainer which supported or confirmed her
account. Such evidence would have been corroborative in the 19
th
century. There was no
reason why it should be incapable of providing corroboration today.
Respondent
in the negative. Corroboration remained an essential part of the criminal law. Its limits may
be taken as settled. Developments had proceeded on the basis of that law. The legislature
was able to take an holistic view, so as to cater for any undesirable consequences of change
by the introduction of concomitant safeguards. There was a danger in tinkering at the edges
by way of judicial legislation, in which safeguards were less readily, or not, available.
of two of the facta probanda in rape; lack of consent and mens rea. Distress cannot corroborate
95
either of the other two: the identity of the accused; and penetration. That made sense.
Distress pointed towards something distressing having happened, but it did not say
anything about identity. In trying to place penetration between these two poles, it lay closer
to identity than lack of consent. Distress was not more likely to be experienced in the event
of a rape than, for example, a simple assault, a non-penetrative sexual assault, or many other
crimes. Allowing corroboration of penetration to be found in distress was unprincipled and
unwarranted.
John 8 v 17; and 2 Corinthians 13 v 1-4). It appeared in the Institutional Writings: (Stair IV,
at 43, 2; Mackenzie: Matters Criminal (see the Carloway Report at para 7.1.1); Alison: Practice
at 551; and Hume ii, 383). It was enshrined by the Full Bench in Gillespie v MacMillan.
Crucial facts required corroborated evidence. The facta probanda in a charge of rape were: (1)
identification; (2) penetration; (3) lack of consent and (4) mens rea. Each required
corroborated evidence (Lockwood v Walker). Stobo was overruled in part in Smith v Lees, but
no doubt had ever been cast on the statement in Stobo (at 34) that distress could not
corroborate the complainer's evidence of identity. Corroboration of penetration by distress
went beyond what was appropriate, and was contrary to principle. This had been said by
many judges: McLellan; Stobo; HM Advocate v L (at para [17]); Adamson; and Branney (at
paras [19]-[20])). Just as distress said nothing about who was the assailant, it said nothing
about the mode of assault.
incorrect. The reason why distress could only corroborate two of the facta probanda in rape
was not because of any judicial compromise. It was the principled reason that it was only
96
those crucial facts (lack of consent and mens rea) which gained any evidential support from
distress. Distress was inconsistent with a consensual act. It was not inconsistent with a non-
penetrative act. People became distressed for all sorts of reasons. There was no principled
basis upon which it could be said that distress was more consistent with penetration than
with anything else.
(Carloway) in which it had been suggested that Smith v Lees presented too much of a bright
line distinction. The next was Jamal where it was said that, in some situations in which a
complainer said that she had been raped, it had been held that only a conviction of
attempted rape was available. This was a reference back to Stephen. In Jamal, the court
described the nature of rape as changing over time. In McCabe, it was said that corroborating
evidence did not have to point unequivocally towards penetration. It was sufficient if it
confirmed or supported the complainer's account. Most recently, there was Fisher. In these
cases, there was a conflation of two separate and distinct concepts: corroboration of the facta
probanda, on the one hand; and corroboration of the credit (sic) of the complainer, on the
other. This elision was not in accordance with the principle whereby corroboration of each
of the facta probanda was necessary. If it were otherwise, a distressed complainer would
provide a sufficiency for all elements of the prosecution. That was a step further even than
that understood to be advocated by the Crown in this Reference.
support of the complainer's account should be looked at in the round, appeared to be Fox.
That was not a true reading of Fox. It would be remarkable if, when delivering his opinion
in Fox, the Lord Justice General (Rodger) had forgotten, or departed from, what he had said
97
less than one year previously in Smith v Lees. Fox had not departed from the requirement to
corroborate each factum probandum. The approach of the other members of the Bench in Fox
was consistent with this (Lord Justice Clerk (Cullen) at 108; Lord Kirkwood at 110 and 112;
Lord Coulsfield at 116; Lord Gill at 123).
independent support for the credibility of the complainer ran counter to Burnett (at 518519)
which was cited with approval in Fox (at 99). The correctness of that statement could not be
in doubt, standing Morton. The statement made by the complainer in Morton was held to be
de recenti; recounting what she said had happened to her. As such it was insufficient to
corroborate her testimony, as it was outwith the res gestae. Once it was understood that
corroboration of the facta probanda was required, a shift to a world in which only support of
the credibility of the complainer was needed was unwarranted and unprincipled. It made
no sense, standing Morton.
v Lees should be overruled. The far-reaching consequences of this should not be over-
looked. If distress could provide corroboration in the manner proposed, then corroboration
will have been diluted to the point at which it will no longer be material. The existence of a
distressed complainer would, on that basis, provide a sufficiency. This would not be
restricted to crimes of rape. Any situation in which being the victim of a crime, whether
assault, indecent exposure, robbery or theft, was distressing would mean that corroboration
of whatever the complainer said could be found in the fact that they were distressed.
This would remove something that has for centuries been seen as a vital safeguard.
98
that there were cases in which the complainer was not telling the truth. Rape often presented
difficulties for prosecutors, because it was a crime that would usually be committed in
circumstances where there were no witnesses. The other side of that coin was that an
allegation of rape was one which, once made, could be difficult to challenge. For that
reason, the courts have held to the line that the facta probanda, and not merely the complaint
taken as a whole, required to be supported by corroborative evidence. Removing that
safeguard raised the real possibility of wrongful convictions.
had been that circumstantial evidence could amount to corroboration of direct evidence if
the circumstantial evidence was more consistent with the direct evidence than with any
competing account. The respondent here did not make that submission. Corroboration
should be the same whether at the stage of a no case to answer submission as at the end of
the trial. At the first stage, there may be no competing account. If something could
provide corroboration at that stage, there was no question of it losing its corroborative
value just because a competing account were given.
factum probandum by being more consistent with that fact, as opposed to being neutral.
There was no support in Fox (at 100) for the proposition that all that needed to be looked
for was an independent adminicle that was supportive of the credibility of the complainer.
What was required was independent evidence that confirmed or supported the direct
evidence of the crucial facts.
that distress could corroborate lack of consent. Adamson said that distress could
99
corroborate mens rea. In each of those instances, the distress provided independent support
of the factum probandum (cf the questions of identity and penetration). Distress was neutral
on those critical facts. Independently observed distress provided no support for the
allegation that the accused was the assailant or for the allegation that there was
penetration. This was made clear by Lord Kirkwood (at 112). As Lord Coulsfield noted in
Fox (at 117-8), this was consistent with Morton. The Lord Justice Clerk's opinion in Morton
remained the test for corroboration. It should not be diluted.
penetration should not be heeded. Section 1 of the 2009 Act made it clear that penetration
was a factum probandum, without proof of which there could be no rape. The statutory
changes to the law deliberately maintained rape as a nomen criminis. They included the
requirement of penetration before that crime could be said to have been committed. It
would be inappropriate simply to treat rape as a sexual assault in which, as long as there
was independently observed distress, all elements of the crime were proved.
original Criminal Justice (Scotland) Bill, before that part was discontinued, the Bill
introduced a potential safeguard against miscarriages of justice, by requiring that a two-
thirds majority of a jury must be in favour of a guilty verdict (Policy Memorandum for the
Bill, paras 172-175). That being so, proper safeguards to balance any relaxation of the
requirement must be put in place (see Chalmers and Leverick: Majority Jury Verdicts
(2013) 17 Edin LR 90-96). McLay v HM Advocate 1994 JC 159 (at 167) proceeded on the basis that
widescale changes to the law of evidence should be left to the legislature. The re-
categorisation of distress to corroborate one of the facta probanda in the crime of rape was a
100
matter properly left to the legislature (see Philipp v Barclays Bank UK [2023] 3 WLR 284, at
paras 23 and 24).
admissible (Whorlton v HM Advocate [2020] HCJAC 36 at para [5]). An exception to this was
a de recenti statement. Such a statement was admitted for a limited purpose; as an evidential
tool to gauge credibility and reliability. The only purpose of the de recenti exception was to
permit proof that the witness had been consistent. It was not evidence of fact (Walker
&Walker: Evidence (2
nd
ed) at para 8.3.1). A de recenti statement was nothing but a statement
by the injured party (Morton at 53).
was a distinction between the evidential limits of distress and de recenti statements. Where
there was a temporal proximity between distress and a de recenti statement, the jury required
clear directions on the evidential category into which distress and a de recenti statement fell.
Distress, which was spoken to by another witness, was evidence from a source independent
from the complainer and could thus corroborate the complainer's evidence to the extent
allowed in Smith v Lees. The jury required to be directed on the distinction between the fact
that something was said and the manner in which it was said. The source of the statement
was the complainer. What the complainer said at the time cannot be corroborative of the
complainer's testimony to the same effect, since the source was the same. Farooq was one
example of where the court held that there had been a miscarriage of justice because of the
failure of the trial judge to explain the limited purpose for which de recenti statements were
available (see also DS; Dyer at para [13]); and Cinci and M). The court distinguished
between a res gestae statement and a de recenti statement and made it clear that the latter
101
could never be admitted as corroborative (see also Ahmed at paras [11] and [20]).
paras [28], [34] and [35]). De recenti statements could not be part of the res gestae. There was
a plain tension between what was said in Jamal and what had been said by the courts
repeatedly since Morton. On the clear authority of Morton, the fact that a statement
increased the probability that the complaint was true did not amount to corroboration. The
Reference posed the question of whether Smith v Lees should be overruled. It was not open
to the Crown to overturn Morton. It was a decision of seven judges, and could not be
overruled other than by a larger Bench. The true reasoning for the decision in Morton was
that de recenti statements were not independent of the complainer. A de recenti statement
was evidence from the complainer. If anything was sacrosanct, it was that corroborative
evidence must be independent of the complainer.
self-proving complainer where only a majority verdict was required for conviction. There
was no comparable situation in common law jurisdictions. Judge-made law was a blunt tool
which did not allow for an holistic view, or concomitant safeguards or public consultation.
Change such as this lay with the Scottish Parliament. This approach was supported by the
recognition in O'Shea (at para [37]) that the law as stated in Morton should remain in the
absence of legislation.
consent and mens rea. The Reference sought to extend the purpose for which distress was
available; that is to corroborate penetration. Smith v Lees was binding on the Court in Jamal.
Jamal was about mutual corroboration and not about distress. Jamal erred in law when it
102
said that distress was available as corroboration of the actus reus of rape. In so far as Jamal
proceeded on that basis, it should be overruled.
corroboration in these countries stemmed from a perceived need in relation to witnesses,
including women, who were considered inherently unreliable. These ideas had been
departed from. These countries had different safeguards in relation to jury verdicts. In all
these jurisdictions, safeguards, such as the need for a particular majority for a verdict, were
in place.
Decision
Sufficiency in general
critical, for the proper working of the criminal justice system, that it is fully understood by
both bench and bar. It needs to be clearly and succinctly stated at an authoritative level and
then applied in the courts. The Court's statement on when, and to what, the requirement for
corroboration applies, and what corroboration consists of, may be legitimately criticised in
the public forum. Such comments as may be proffered should not deflect the courts from
implementing that statement, as they are bound by the rule of law to do.
and Europe, purely on a qualitative assessment of whether the evidence is such as to merit a
finding of guilt beyond reasonable doubt, but rather on an initial quantitative assessment of
whether there are at least two sources of evidence, that is to say two witnesses in the case;
the one corroborating the other. It is only once that assessment has been made that the
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quality of the evidence is examined. The initial quantitative assessment is carried out by the
judge before another quantitative, and then a qualitative, analysis is made by the jury under
the judge's directions.
that:
"... no one shall in any case be convicted on the testimony of a single witness"
(emphasis added).
This principle is explained by Hume (ii, 384) as meaning, not that there requires to be two or
more eye witnesses to a fact, but that a want of a second witness can be "supplied by the
other circumstances of the case" (again emphasis added). In cases which involve
circumstantial evidence, either where there is only one eye witness or where there are no eye
witnesses and all the evidence is circumstantial, the "aptitude and coherence of the several
circumstances" may "confirm the truth of the story".
testimony of one witness, but there need not be two eye witnesses speaking to the case
against the accused. A sufficiency may be derived either from facts and circumstances,
spoken to by another witness, which "confirm the story" given by the one eye witness, or
alternatively from a combination of facts and circumstances alone, provided that there are at
least two witnesses in the case. Two questions, which arise from these two situations, have
continued to perplex judges and practitioners. They can be spelled out relatively simply.
First, in a case where there is only one eye witness, as will often be the position in sexual
offences, what must the surrounding facts and circumstances, which must be spoken to by
one or more witnesses (other than the complainer), actually do? Is it necessary to look at
these facts and circumstances in isolation and decide whether they point towards the guilt of
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the accused? Alternatively, is it enough that the facts and circumstances, when taken
together, support or confirm the eye witness's testimony? Ultimately, as will be seen, it is
the alternative that is correct. Secondly, in a wholly circumstantial case, it is clear that the
facts, when interlinked, must point to the guilt of the accused, but what is meant by the need
to have at least two witnesses to prove the case in that context? This Reference is not about
such a case, but the answer is to be found in Gillespie v Macmillan 1957 JC 51.
the principles in a general way. His words of restraint have not always been heeded. This
caution continued with Burnett (at 515 and 518) and Alison (Principles, at 89), who did not
depart in any substantial way from Hume. Burnett advised (at 519) against formulating a
rule about what circumstances might render complete the semiplena (half) proof of one
witness. It just depended on the nature and quality of each circumstance "and their joint
effect when combined". Alison complained (Principles at 73, para 24) about juries being
"perpetually misled by erroneous statements of what is really necessary to constitute legal
proof" and (Practice at 551) about counsel taking the requirement to an "extravagant length
... desirous of perplexing juries". His complaints may have some resonance even today
with, on occasion, perplexity being augmented from the bench.
had improved on Hume's "judicious and guardedly general statement". Nobody had
added anything to it. In Fox v HM Advocate 1998 JC 94, Lord Coulsfield observed (at 117)
that Hume's treatment of the subject was difficult upon which to improve. The court agrees
with these statements, yet it has had no alternative but to analyse what has occurred over
the 180 years or so since the last edition of Hume to see if any of the many opinions on the
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subject, some irreconcilable with the others, have resulted in any improvement or useful
addition. An antecedent question is: what is it that requires corroborated proof? It is to that
question that the court first turns.
Proof of the case or the facts
terminology, of a crime (eg penetration in a rape case), requires support in the form of two
independent sources of evidence, each of which points to the occurrence of that ingredient,
often refer to Burnett, and in particular to his use of the term "fundamental facts". It is
difficult to understand just what Burnett meant by this. His footnoted reference to Isobel
Williamson, which has been described above, is of little assistance to the modern reader.
What was it that was not proved by corroborated evidence? Was it the cause of death or the
accused's involvement in it? From what Burnett went on to write, he was not attempting to
depart from what was said by Hume. It is relatively clear from Burnett's citation (at 554 fn)
of Cook, Dumfries, September 1774, that penetration was not something which required to be
corroborated separately from the general allegation of rape.
basis in the Institutional Writers. Neither Hume nor Alison talk about crucial or critical
facts; nor do they mention "facta probanda", a phrase which, circuitously, means nothing
more than the facts to be proved. In rape cases, Alison makes it clear (Practice at 220) that
corroboration can come from physical injuries, the complainer's disclosure and her previous
good character. He states specifically (Practice at 552) that there is no authority for the
proposition that two witnesses are required to prove the fundamental facts, such as the
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corpus delicti (ie the crime, or actus reus). This is a statement which ought to carry significant
weight.
on the Criminal Law of Scotland, there is no mention of any need to prove separate aspects of a
crime by corroborated evidence. The Lord Justice Clerk (Macdonald) and Lord McLaren in
Lees v Macdonald (1893) 20 R (J) 55, 3 White 468, described the effect of the rule as meaning
simply that, if only one witness were called and there was no other evidence, an acquittal
had to follow. All that was needed was two witnesses to prove the case; not the individual
facts in it. That being so, and this takes the analysis up to the close of the 19th century, the
question is why a requirement to prove essential facts emerged, and gained so much
traction, in the 20th century? Put another way, what caused the fourth edition of Macdonald,
which was published 10 years after the author's death in 1919, to contain the proposition
that "any fact essential to the commission of the crime" required corroborated evidence.
self-edited, edition of Macdonald, that judicial analysis began, in earnest, to take over the
definition of what the requirement for corroboration meant in practice. The first decision of
significance is Lockwood v Walker 1910 SC (J) 3, (1909) 6 Adam 124. This involved lewd
practices and thus required proof that the complainer was under the age of puberty. This
case may signal the first use of the words "crucial fact" and it took the form of the Lord
Justice Clerk (Macdonald) stating (at 5) that the law "most certainly does require that every
crucial fact shall" be proved by two witnesses or, where there is only one, "by corroborative
facts and circumstances". The Lord Justice Clerk (with whom Lords Low and Ardwall
concurred) considered (at 5) that the magistrate's own observations of the complainer, as to
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her age being 11, were "clearly... not corroboration in any way whatsoever". Just why the
observations of the magistrate could not provide the desired corroboration of the child's
evidence is, contrary to the Lord Justice Clerk's assertion, far from clear. It is now remedied
by section 46(3) of the Criminal Procedure (Scotland) Act 1995 (1975 Act, ss 171(3) and
368(3)).
for the proposition in Macgregor Mitchell's fourth edition of Macdonald that the evidence of
one witness was not sufficient to establish "any fact essential to the commission of the
crime". Just what an essential fact might be in relation to a common law crime was not
expanded upon, but Lockwood v Walker regarded the age of the complainer in a lewd
practices trial as being one. It is certainly an essential part of the crime, but upon what basis
should that mean that the court must break down a common law crime into individual
ingredients and require corroboration for each element?
major influence on practitioners in the years which followed; all based on the Lord Justice
Clerk's dictum in Lockwood v Walker. This is despite what were contrary statements by the
same Lord Justice Clerk in the first to third editions of his work on the criminal law, by him
and Lord McLaren some 17 years earlier in Lees v Macdonald and by further conflicting dicta
later in Scott v Jameson 1914 SC (J) 187. In Scott v Jameson, Lord Strathclyde stated in plain
terms that important or "fundamental" facts did not require to be corroborated individually.
The only exception to this, as Lord Guthrie pointed out, was if there was only one fact
requiring proof. Dicta, to the effect that each fundamental or crucial fact in a criminal case
required to be proved by corroborated evidence, beg the question of what such a fact might
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be. The dicta came, in the pre-Walkers' era, from Lockwood v Walker and Bisset v Anderson
1949 JC 106, but they are contradicted by Lees v Macdonald and Gillespie v Macmillan.
broke facts down into crucial, evidential and procedural categories, becomes
understandable. Walkers' categorisation is certainly clear, neat and attractive from a
theoretical analyst's point of view. It reads well and may have a certain logic to it. The
problem with it, and a great deal of what has flowed from it, is that, somewhat surprisingly,
it effectively dismisses the clear dicta emanating from a Full Bench of the High Court which
was issued only seven years earlier, ie Gillespie v Macmillan. It also offends against the
cautionary words of all the Institutional Writers that no rules of this nature ought to be
devised beyond the basic principles set down by Hume. It pays scant attention to what Lord
Mackay said in Dalton v HM Advocate, unreported on this point, about the corroboration of
crimes occurring in secret. Hume's approach involved looking at cases holistically and in
the round, based on the type of evidence normally available in the category of crime under
consideration. He did not advocate any more technical an approach.
subject of criticism. Some of that criticism has been bordering on the vitriolic, unless it was
intended to be purely rhetorical (eg Smith v Lees 1997 JC 73, Lord McCluskey at 103). None
of it is justified and most of it is based on a misunderstanding of how corroboration is
applied, when heed is paid to the words of wisdom of the Institutional Writers.
there are only two policemen, each at one of two end points of a measured distance. Each, it
is argued, spoke only to his own stopwatch reading and therefore neither reading was
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corroborated. That is not what the evidence was. There were three policemen. Each of the
two at the entry and exit to the measured distance spoke to starting their stopwatches at the
point, respectively, of entry and exit of the car. There was no reading at either point. The
car was stopped by the third policeman. All three policemen were present when the
watches were stopped simultaneously. The readings were then taken and visible to all. All
three policemen could speak to there having been a reading; and hence that the stopwatches
had been started. The readings were sufficiently similar as to provide a cross check on
accuracy. They reflected what had been objectively observed; that the car was speeding,
hence the decision to carry out the check. From the appellant's viewpoint, a problem would
only arise, and might have been detected at the time, if the first policeman had pressed his
stopwatch late and/or the second one had pressed his early. The sheriff accepted that they
had not.
in Hume and Alison. As the Lord Justice General (Clyde) correctly said (at 36), it was not
the speed of the car at the points of exit or entry that was in issue, but its speed between the
two points. This was proved by the facts and circumstances in the case; there being no
requirement to prove every link in a chain or every piece of a mosaic by corroborated
evidence.
practical reasoning. He stated the general requirement. In particular, he emphasised that
the law is not an exact science or a department of logic. It is a subject whose problems have
to be addressed in a common sense way. An analytical approach is not appropriate, when
looking at three policemen measuring speed over a 440 yard distance. The Lord Justice
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Clerk readily acknowledged that there was a risk that one of the policemen was not reliable
in stating that he pressed the stopwatch button at the exact point of entry or exit. The
safeguard there was not corroboration, but whether the tribunal of fact was prepared to
accept the witness as reliable; a question of quality and not quantity.
Chain Analogy"). Walkers' view has had a very considerable influence. However, the law
must, of necessity, proceed according to the tenets of stare decisis. If there is a Full Bench
decision of the court on a particular subject, that decision is the law until overtaken by
legislation or higher precedent. The criticisms of Gillespie v Macmillan in legal literature do
not affect that. Prof Wilson was a greatly respected academic. His views must be taken very
seriously. He was nevertheless in error in stating that the times of entry, exit and distance in
Gillespie v Macmillan were essential facts (ingredients). The only such fact, apart from the
identity of the driver, was the speed of the car over the measured distance. No fact or
circumstance in relation to the occurrence of the crime required individual corroborated
proof. Prof Wilson's ingredients theory is unworkable in a properly functioning criminal
justice system; ie one which balances the interests of all and is capable of achieving just
results in that context.
Institutional Writers, Dickson and the first three editions of Macdonald required was
corroboration of, that is at least two witnesses in, the case. That view was supported by the
Lord Justice Clerk (Macdonald) and Lord McLaren in Lees v Macdonald and by Scott v
Jameson. The outliers, ex facie, are Lockwood v Walker and Bisset v Anderson, and these stand in
contrast to Gillespie v Macmillan.
111
Sufficiency in sexual offences
corroborated evidence. That is the decision of the Full Bench in Morton v HM Advocate 1938
JC 50. This is not challenged; nor is it contended that de recenti distress or statements about
the facts of the crime can provide corroboration of identity. The court assumes for present
purposes that these propositions are correct. The Lord Justice Clerk's (Aitchison) dictum in
Morton, that there must be "concurrent testimonies, either to the same or to different facts,
each pointing to the panel as the person by whom the crime was committed", is not the
subject of challenge in the Reference. What he said, about the identification of the driver by
a policeman in Strathern v Lambie 1934 JC 137 not being capable of being corroborated by
evidence of facts and circumstances spoken to by the same policeman, is, on that hypothesis,
correct. Corroboration is about the number of witnesses, not the number of facts. There is
only one matter, other than the identity of the perpetrator, that needs such proof in sexual
offences; that is that the complainer was subjected to the crime libelled.
the Lord Justice General (Emslie) in Yates v HM Advocate 1990 JC 378. He said in plain terms
(at 379) that "evidence as to the condition of the alleged victim is capable of affording
corroboration by credible evidence ... that she has been raped". That is correct. There is no
basis for the contention of the Lord Justice General (Rodger) in Smith v Lees (at 82) that Lord
Emslie meant to say something different. Mistakes can occur, but the Opinions of judges are
normally subject to careful revisal by their authors. The fact that intercourse was admitted
in Yates does not detract from the clear meaning of the Lord Justice General's words. The
charge was not a series of separate events; what was libelled was rape.
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Advocate 1987 SCCR 570 (at 574). If the complainer were believed, the question became:
"was there sufficient material, setting it against the girl's account, to demonstrate that her
account was true?" That approach follows from what Hume and Alison said in cases where
there was already a single source of direct testimony. The same consideration applies in
lewd behaviour or indecent assault cases.
complainer's testimony can be corroborated by "her condition immediately after" is equally
correct as is that of the Lord Justice Clerk (Ross) in Gracey v HM Advocate 1987 SCCR 260,
where he said (at 263) that "the matter was correctly stated in Yates". By 1990 the picture
appeared clear, with the Lord Justice General and the Lord Justice Clerk at one along with
Lords Avonside, Johnston, Dunpark and Wylie.
Advocate 1990 JC 371, the new Lord Justice General (Hope) cited Yates, Stephen, Gracey and
Begg v Tudhope in support of his statement (at 375) that there was no doubt that evidence of
the condition of the victim could corroborate "her evidence that she has been raped".
Lord Cowie's addendum (at 378) was to the same effect. However, a change in tack can be
seen in McLellan v HM Advocate 1992 SCCR 171. This time, less than 18 months after Moore
and sitting with a bench which included Lord Cowie, the Lord Justice General (Hope) went
on to say (at 179) that, although distress could corroborate distressing activities, it could not,
on its own, corroborate the "other elements" of a crime. The passage is difficult to follow. It
starts with an obvious statement that the distress must be related to the "activity" described
by the complainer. In some cases this can be left to the jury, if the activity is so distressing
113
that the jury could hold that "it would be liable to distress the victim". In that event the
distress could corroborate the complainer's evidence "without further evidence to
corroborate every detail of the crime". This confuses the two different concepts of: (i)
corroborating testimony, on the whole case, which is, and will be seen to be, correct; and (ii)
corroborating facts, which is wrong. The Lord Justice General (Hope) continued (at 179) by
saying, without reference to authority and in direct conflict to his reference to Yates in the
same paragraph, that there may be other cases, and rape may be a good example, where
further evidence will have to be led to establish "the other elements necessary to prove the
crime", because distress could not corroborate those elements. This appears to have been
prompted by a submission by the Advocate depute that the Sheriff had misdirected the jury
to the effect that distress could corroborate the complainer's evidence of the particular lewd
practices.
(Sheriff Gordon QC at 179 - 180), is critical of the idea that distress can corroborate a
complainer's account, whether of a sexual or other offence. With remarkable prescience, it
goes on to say (at 180) that the Lord Justice General's observations would "no doubt lead to
a reconsideration of the whole question of distress as corroboration" (see also the reference
to distress as corroboration of robbery in Bennett v HM Advocate 1989 SCCR 608 and Mongan
v HM Advocate 1989 SCCR 25).
similar vein. He commenced correctly by saying (at 34) that, where circumstantial evidence
is relied on to corroborate the complainer's account, the circumstances "do not require to
themselves be incriminatory". What they required to do was to support her testimony. The
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Lord Justice General was again right to say that it is not possible to lay down any more
precise rule. However, he did this by saying (at 34) that distress cannot corroborate
penetration "because the other acts involved in the rape ... will be sufficiently distressing in
themselves to explain the distress". He added, in direct contradiction to Stephen, that
distress could not corroborate attempted rape. Ultimately, the notion that distress can
corroborate a complainer's testimony, but not if the crime libelled goes beyond a sexual
assault, is incorrect. It is the testimony of the complainer that requires to be corroborated,
not facts, ingredients or elements. That was the law, at least until Smith v Lees, to which the
court now turns.
Smith v Lees
respect. The judges include the foremost judicial figures of their generation. Much of what
several of them say about corroboration in their differing opinions is entirely correct. For
example, the Lord Justice General (Rodger) had no difficulty in rejecting (at 77) the
appellant's argument that distress could not provide corroboration because it came from the
same source as the complainer's testimony. It could corroborate the complainer's testimony
that something distressing had occurred and force had been used (at 80). The Lord Justice
General was correct in identifying the anomaly in McLellan and Stobo. He was initially
correct to say (at 90) that "corroborating evidence must support or confirm the eye witness's
evidence". The Lord Justice Clerk (Ross) correctly observed (at 95, following Burnett at 518)
that the corroborative evidence had to confirm the first witness's testimony.
number of factors which make up a circumstantial case, it must follow that it is a valid and
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relevant piece of evidence. "[I]f that be so, ... there is no reason why it should not be used as
the sole corroborative factor". He was right to say (at 111) that the only thing that can be
said about corroboration is that it is evidence that "is necessary ... to surmount the hurdle
that proof of the commission of the crime and the identity of the perpetrator cannot rest on
the evidence of a single witness". With these starting points, the question becomes: where is
the error in the conclusion that distress can corroborate lack of consent and the use of force
but not the central part of the complainer's testimony that she had been raped? It is the
conclusion which the judges in Smith v Lees arrive at, or perhaps the leap of faith which they
took, that is in error.
judges do not analyse the underlying basis for their effective starting point; that each
separate element in a criminal offence requires to be individually corroborated. In a rape
case, each judge considers that either three or four of these elements require corroborated
evidence. This idea, at the time of Smith v Lees, was not supported by the Institutional
Writers, upon whom the judges relied. It was not supported by the preponderance of
authority. Traditionally, the familiar direction to juries was that two matters required
corroboration; that the crime happened and that the accused committed it. The latter has
always been regarded as a separate matter; something the Lord Justice General (Clyde)
mentioned in Gillespie v Macmillan (at 38) and which is not challenged in this Reference.
That leaves proof of the crime where, in a rape case, there is seldom any direct evidence
beyond the complainer's testimony (Dickson: Evidence (3rd ed) ii, para 2039). At the risk of
unnecessary repetition, neither Dickson nor the first three editions of Macdonald mention
any need to corroborate different elements of a crime and, if they had, such a proposition
116
would have run contrary to both the Lord Justice Clerk (Macdonald) and Lord McLaren in
Lees v Macdonald.
so without reference to authority. That is not surprising, because there was no such
authority. It may be necessary to libel certain elements of a charge in an indictment in order
to meet the test of relevancy. It is quite another thing to say that each requires
corroboration. The latter idea is dispelled when regard is had to the Lord Justice General's
(Emslie) opinions in both Yates and Stephen and in the Lord Justice Clerk's (Ross) opinion in
Gracey. It had already been made clear in Gillespie v Macmillan (eg Lord Justice General
(Clyde) at 36, citing Hume ii, 384; and Lord Justice Clerk (Thomson) at 39). The judges in
Smith v Lees do not attempt to critique the reasoning of the judges in Gillespie v Macmillan
other than, in Lord McCluskey's opinion (at 103), to dismiss it in disparaging tones.
cautionary remarks in the Institutional Writers, Dickson and, in particular, those of the Lord
Justice Clerk (Thomson) in Gillespie v Macmillan (at 40). The law is a practical affair. "The
analytical approach to the problem is over subtle and over-simplifies the problem". In a
rape case, leaving aside identity, the complainer's account of having been raped is the only
matter upon which there requires to be two witnesses. In McLellan and Stobo, the Lord
Justice General (Hope) effectively said this in relation to sexual assaults, but drew back from
the logical consequence of this view when it came to rape. This inconsistency was identified
in Smith v Lees. The Lord Justice General (Rodger) said that, if the complainer's testimony,
of being forced to touch the appellant's penis, could be corroborated by evidence of her
distress, it was "hard to see why the same should not apply to evidence of penetration".
117
That is correct, but he went on to reason that, because the Crown had conceded that distress
could not do so, the Crown's argument as a whole was unsound. That is a non sequitur.
obvious consequences of a proposition. The Lord Justice General (Rodger) in Smith v Lees
accepted the soundness of Yates, but only after revising Lord Emslie's opinion. He rejected
Lord Stott's opinion in Begg v Tudhope on the basis, in part, that it was contradicted by the
other judges (Lord Justice Clerk (Wheatley) and Lord Grieve), yet Lord Wheatley's view was
not inconsistent with that of Lord Stott. On the contrary it supported it in relation to what
the complainer had said to her teacher (see Lord Sutherland in Smith v Lees at 112-113).
proximity in time, it cannot survive the analysis of the meaning of corroboration by the Full
Bench in Fox; notably that of the Lord Justice General (Rodger), which has been followed
repeatedly in recent years. In Fox, the court decided that, contrary to Mackie v HM Advocate
1994 JC 132, circumstantial evidence is corroborative of direct testimony if it "strengthens, or
confirms, or supports" that testimony (Lord Justice General (Rodger) at 99, see also 100). Of
critical importance, the corroborating circumstances do not require to be incriminating in
themselves (see Lord Justice Clerk (Cullen) at 109, Lord Coulsfield at 118).
question then was: what could corroborate that testimony? This seems to have been lost
sight of in Smith v Lees when the search became, as if it were a wholly circumstantial case,
one of seeing whether the circumstances, albeit when taken together, were in themselves
incriminating. Lord McCluskey in particular referred (at 108) to distress on its own being
incapable of pointing to the cause of the distress, which he suggests might have been
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because the complainer had had a bad dream. This misses the point that there was already
direct evidence from the complainer that she had been sexually assaulted. It was her
testimony that required to be corroborated. That could be provided by evidence, from
another witness or witnesses, speaking to a fact or facts which supported or confirmed the
complainer's account that she had been sexually assaulted. The fact that the complainer in
Smith v Lees was observed to be distressed immediately after the event did that.
cause distress. When that distress manifests itself to independent witnesses it is, as Lord
Sutherland put it (at 118), difficult to see why it should not be regarded as a separate source
of evidence which confirms or supports the complainer's account. It is impossible to see
why it should not be so regarded.
De Recenti statements
cannot provide corroboration of a complainer's account because it is, as the Lord Justice
Clerk (Aitchison) put it (at 53) in Morton, "nothing but the statement of the injured party,
and it is not evidence of the fact complained of". It was only admissible in "cases of sexual
assaults upon women and children" to show that the complainer had been consistent rather
than her complaint being an afterthought. It was also admissible "in the case of assaults on
women, to negative consent" (at 53). There may be a slight anomaly in this, since, if a
statement could "negative consent", it must be evidence of that fact. The Lord Justice Clerk
accepted that such a statement "increases the probability that the complaint is true". It is
difficult to find that to be so and, at the same time, to dismiss it as incapable in any
119
circumstances of being corroborative at least when it is coupled with independently-
observed distress.
Clerk (Cooper) at 81) that the bright line distinction in Morton between a statement which
was deemed to be part of the res gestae and one which was de recenti was a departure from
the previous understanding that the latter was, contrary to Morton, normally part of the res
gestae; hence the reference to "the modern rule". As the Lord Justice Clerk (Cooper) said,
this accorded with "the ordinary popular sense of the term [complaint de recenti] ... [that it]
did provide `corroboration' in the sense that it reinforced the credibility" of the complainers.
dicta, given that there was a sufficiency of evidence of the criminal act but not of the identity
of the perpetrator, whom the corroborating witness could not identify. It is nevertheless a
statement of high authority, coming as it does from the Lord Justice Clerk and the other
members of the Full Bench (Lord Justice General (Normand), Lords Fleming, Moncrieff,
Pitman, Wark and Carmont). It must be afforded due respect. Nevertheless, it cannot
withstand, at least when the de recenti statement is accompanied by distress, the effect of the
opinions in Fox on how corroboration operates, when there is already one source of direct
evidence. Fox disapproved of the dicta in Mackie, which, although not a sexual offences case,
concerned the corroboration of the testimony of a single witness (the chairman) about what
was regarded as the essential piece of evidence against the accused. The purpose of a trial
is, subject to questions of fairness in relation to the accused, to ascertain what happened. It
is impossible to view the complainer's statements in the present case, on securing her exit
from the respondent's flat, that she had been raped as other than so closely related to what
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occurred in that flat that the truth can only be discovered by admitting evidence of what she
said, alongside evidence of the distress which she exhibited, as part of the res gestae (O'Hara
v Central SMT 1941 SC 363, Lord President (Normand) at 381). What was said was so
connected with what was done that "dissociation" of the words from the facts to which they
relate would frustrate the ends of justice and impede the discovery of the truth (O'Hara
citing Longworth v Yelverton (1862) 24 D 696, Lord Ardmillan at 697). This reflects the
observations of the Lord Justice Clerk (Carloway) in O'Shea v HMA 2015 JC 201 (at
para [27]).
nature, all the circumstances had to be considered in order to evaluate the probability of the
complainer's account. Alison was keen (Principles at 220) to use not only real evidence as
corroborative, but that concerning the complainer's disclosure to her relatives or the
authorities. There is no suggestion in Hume or Alison that a de recenti statement could not
be regarded by a jury as confirming or supporting the complainer's evidence and hence as
corroboration. Only Burnett refers to such a statement as part of a complainer's "single
testimony", and in this he is contradicted by Alison and Dickson. There is thus a body of
authority which suggests that, where the jury is satisfied that a true de recenti statement
which is intimately bound up with the alleged events has been made, they would be entitled
to treat it as corroborative, even in the absence of distress. However, this is an issue which
was not raised in the Reference. Although raised by the court, any argument on that matter
was not sufficiently developed for the court to reach a concluded view.
in the second half of the 20th century, the idea that a de recenti statement cannot, when
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coupled with distress, provide corroboration, does not accord with common sense. The
fallacy is the legal construct whereby what a complainer says shortly after the event is
treated in exactly the same way as her later testimony because it comes from the same
"source". That might hold water if what was being considered was the complainer's own
account of the distress which she felt and exhibited privately, or an account given by a
complainer at a time remote from the event and after a period of reflection. Evidence of that
latter type of statement might be excluded as inadmissible hearsay unless it could be
brought within the statutory exceptions (Criminal Procedure (Scotland) Act 1995, ss 259-260)
or Jamieson v HM Advocate (No. 2) 1994 JC 251. That is where the further exception of the de
recenti statement, when coupled with distress, comes into play. It is testimony from a third
party who is speaking to what Dickson describes as a natural outpouring of feeling aroused
by recent injury and "still unsubsided". As such, and following the approach of the Lord
President (Normand) in O'Hara v Central SMT, at least when accompanied by distress to any
degree, a de recenti statement should be regarded as a consequence and continuation of the
res gestae and thus as proof of fact and hence corroboration. It is real evidence.
Macmillan 1930 JC 56, both following Dickson who, in turn, found support in Alison. These
two cases were overruled in Morton but, upon reflection, this should not have occurred. The
use of a de recenti statement, in the context of distress (the natural and unsubsided
outpouring), should be seen as corroborative material in terms of Fox. If, as the Lord Justice
General (Rodger) said, evidence is properly described as being corroborative because of its
relation to the direct evidence, then it is corroborative because it "confirms or supports the
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direct evidence". A de recenti statement which is made in the context of distress, and
narrates what the complainer has experienced, does precisely that.
(supports and confirms the direct evidence) and testimony which only goes to credibility
and reliability (supports and confirms the direct evidence) is a fine distinction without any
discernible difference. In the context of evidence of facts and circumstances, which are
adduced to support or to confirm direct testimony, there is no difference. The person who
speaks to a de recenti statement is not the same as the maker of the statement but an
independent reporter of what was said in extremis after the event.
recenti statement when accompanied by distress, and why Morton is wrong in suggesting
that a de recenti statement can never have corroborative value, it is not necessary to look
further than Cinci v HM Advocate 2004 JC 103. In Cinci the evidence might reasonably be
described as overwhelming. With due respect to the eminent judges in that case, finding
that a statement of a naked woman, who was "scrunched up" in the corner of a shower in
which the appellant was still present and also naked, that "he raped me" was not evidence
of the fact of rape defies common sense as did, at that time, the idea in Cinci that the "mens
rea" of the appellant was not proved. The trial judge's (Lady Smith) directions on treating
the complainer's statements as an extension of the res gestae were correct and followed the
approach in O'Hara v Central SMT (Lord President (Normand) at 381).
it much easier for a jury to understand and follow a judge's directions that either distress on
its own or in combination with a de recenti statement can operate as corroboration. It will
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also assist in the jury's assessment of credibility and reliability by allowing them to take all
the evidence into account or, as it is sometimes put, to consider it in the round. The notion
that evidence which supports or confirms a complainer's account cannot operate as
corroboration should be dispelled as erroneous. The dicta to that effect in Morton must be
disapproved. Otherwise, the decision in Morton remains sound; being that there was an
insufficiency of evidence because there was no secondary source identifying the appellant as
the perpetrator.
recenti statement, in the midst of her distress, that she had been raped, corroborate? The
answer is straightforward; that she had been raped in the manner later described in her
testimony. The court understands why the trial judge felt obliged to give the jury his
somewhat complex directions. It is to be hoped that, in the future, this will be a much
simpler exercise; one in which the directions will accord with the realities of the situation.
a sexual assault, including rape, without any need to corroborate penetration separately. It
is also evident that a spontaneous statement which is made after the event, whether it be
regarded as part of the res gestae or as de recenti, can be used as proof of fact and hence as
potentially corroborative. Scots law is out of step with the rest of the Commonwealth,
principally because of Morton. Although there is no compulsitor to follow the rules of
evidence from these jurisdictions, the dicta in the Commonwealth and Irish cases are
persuasive in pointing to the errors in Morton and towards a more sensible and simpler
approach to testimony. Some of those dicta are now outdated, in so far as they seem to be
based on the false notion that child or female complainers (and hence presumably any
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witnesses in those categories) are likely to be less credible or reliable than their adult, male
counterparts. Nevertheless the fundamentals of using distress to corroborate the occurrence
of the crime generally and the use of spontaneous statements as real evidence, which can be
used as proof of fact when occurring in that context, are sound.
Conclusion
disapproved in this Opinion is the tendency to categorise, sub-categorise, over-analyse, and
generally complicate the issue of the use to which evidence may be put. The admissibility of
evidence should be a relatively simple concept, rather than something which is over-
technical and theoretical. The court is not dealing with theory, abstraction or hypothesis.
The law of evidence is a highly practical matter. It is a tool designed to set the parameters
within which evidence may be led to ensure that the court focuses on the issues truly in
dispute, and to achieve a fair trial, not only for the accused but also in the public interest.
The rules must be clear and simple and capable of being applied in a myriad of different
factual situations. The more that complexity is built into the rules, or the more layers added,
the more perplexing matters will be for jurors. An overly technical approach: makes it
difficult for the judge adequately to direct the jury; increases the risk of confusion in the jury;
and raises the prospect of a miscarriage of justice. It may make it more difficult to recognise
a jury's verdict as a properly reasoned one.
Where there is direct (eye witness) evidence of the crime, that evidence can be corroborated
by another eye witness or by facts and circumstances spoken to by at least one other witness.
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None of these individual facts and circumstances needs to be spoken to by more than one
witness, and the offence to which the witness speaks need not be divided into several
constituent parts. That applies equally in a wholly circumstantial case. Where there is one
eye witness, the facts and circumstances spoken to by one or more other witnesses are
corroborative if they confirm or support the eye witness evidence of the crime. They do not
themselves, looked at in isolation, require to point towards the commission of the crime as if
they were the equivalent of a second eye witness. If they did that, they would, without the
existence of the direct testimony, be sufficient as a wholly circumstantial case, provided that
there was more than one witness in the case. What requires to be proved by corroborated
evidence is the case against the accused. That is, first, that the crime, which is libelled, was
committed and secondly, that it was the accused who committed it. There is no requirement
to prove the separate elements in a crime by corroborated evidence.
complainer's account that she has been raped; that she was penetrated by the accused's
penis without her consent. That penetration does not require to be corroborated separately.
normally hearsay and cannot be used as proof of fact. An exception to this is where that
statement is made de recenti, when the complainer is in a distressed state. Both the statement
and the distress, in combination, are available as proof of fact and as corroboration. They
constitute real evidence, when spoken to by another witness. Neither is from the same
source as the complainer's testimony.
Morton, in so far as bearing on proof of the crime charged, are disapproved.
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established by corroborated evidence. This means that both the commission of the offence
and the fact that the accused committed it must be corroborated; (b) where the primary
evidence comes from a complainer or other eye witness who speaks to the events libelled,
corroboration of the commission of the offence may be found in any evidence which
supports or confirms the evidence which the complainer or eye witness has given. It is not
necessary for each separate element of the alleged offence to be the subject of separate
corroborated proof; (c) the evidence of a complainer given in support of the libel may be
corroborated by distress shown by the complainer shortly after an alleged incident, where
the jury are satisfied that the distress arose spontaneously due to the nature of the incident
and that the distress was genuine; (d) the value of a de recenti statement depends on the
context in which it occurs. Where it occurs in the context of observed distress, the statement
has corroborative value in enhancing and strengthening the corroborative effect of the
distress; and (e) in any event, a de recenti statement alone is evidence which reflects
favourably on the reliability and credibility of the complainer as showing consistency of
approach from a moment close to the events in question.
recenti distress of a complainer is capable of corroborating direct evidence from a complainer
that she has been raped.
