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Scottish High Court of Justiciary Decisons
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References by His Majesty's Advocate against PG and JM (High Court of Justiciary) [2024] HCJAC 43 (30 October 2024)
URL: http://www.bailii.org/scot/cases/ScotHC/2024/2024hcjac43.html
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 43
HCA/2023/24/XM
HCA/2023/25/XM
Lord Justice General
Lord Justice Clerk
Lady Paton
Lord Pentland
Lord Matthews
Lord Boyd of Duncansby
Lady Wise
Lord Armstrong
Lord Beckett
OPINION OF LORD CARLOWAY,
the LORD JUSTICE GENERAL
in the References by
HIS MAJESTY'S ADVOCATE
Appellant
against
PG and JM
Respondents
Appellant: The Lord Advocate (Bain KC), Harvey AD, Scullion, D Blair; the Crown Agent
Respondent (PG): McCall KC, Crowe, Lawrie; Central Court Lawyers, Livingston
Respondent (JM): MD Anderson KC, Cloggie, Loosemore; PDSO
30 October 2024
2
Contents
Page
Para
Introduction
2
The Trials
3
PG
JM
3
4
Submissions
5
Crown
Respondents
5
14
Decision
26
Preface
Institutional Writers
Early Cases
Dickson
Cases in the Dickson era
20
th
Century cases
Commonwealth and Irish cases
Res Gestae and De Recenti
Proof of Identification
26
28
30
34
36
38
44
47
48
Answers to the Four Questions
50
Introduction
[1]
Lord Advocate's Reference No 1 of 2023 2024 JC 140 determined, first, that, contrary to
earlier authorities, the de recenti distress of a complainer, which was spoken to by a third
party, was capable of corroborating the complainer's testimony that she had been raped; ie
including the fact of penetration. Secondly, a de recenti statement of a complainer, when
coupled with distress, was, again if spoken to by a third party, capable of corroborating the
complainer's testimony generally. The court was not asked to analyse the corroborative
effect of a de recenti statement beyond that.
3
[2]
The Lord Advocate has brought two further references posing four related questions,
viz, in summary:
(1)
Is a de recenti statement on its own corroborative, in the absence of distress;
(2)
Can a de recenti statement corroborate a complainer's testimony both that the
crime was committed and that the accused committed it?
(3)
At what point does a statement cease to be de recenti, and hence corroborative,
and become instead inadmissible hearsay?
(4)
Should Morton v HM Advocate 1938 JC 50 be overruled?
The Trials
PG
[3]
On 27 November 2023, PG went to trial at the High Court in Livingston on two
charges of lewd, indecent and libidinous practices towards two brothers, namely CO and
DO, for whom he had been babysitting in 1990. The brothers were adults when they gave
evidence, but there was evidence of de recenti statements made by CO about the events in the
libel when he was still a child of about 6 or 7 years old. He had told his step father and the
police had been contacted. He had spoken to police officers in the presence of his mother.
CO could not say how close his report to his step father had been to the events. The step
father, and CO's mother, confirmed that CO had reported the allegations to them. They said
that CO told them what had happened in a matter of fact manner. He had not been
distressed or upset by the events. According to his father, after CO had made the
allegations, he was "quite quiet", which was uncharacteristic for him. In his father's view,
this was indicative of distress.
[4]
DO spoke to a single incident of lewd behaviour when he was aged 10 or 11. He had
been spoken to by the police as a child, but had told them that nothing had happened to
him. He did not report it until years later.
6
time, was a material fact. Such a statement, when given de recenti by a complainer, was
corroborative.
[10]
Hume: Commentaries (4th ed, 1844, ii, 406 fn 1) referred to the admissibility of
statements which are part of the res gestae, including what passed between witnesses, after
the crime had been committed, in a search of the alleged perpetrator. He examined the
situation of a rape complainer (ibid 407), whose account to her mother had resulted in certain
actions being taken. The res gestae thus involved more than what had happened at the time
of the crime (see William Hardie (1831) Shaw 237; James Mills (1844) 2 Broun 275).
[11]
Alison: Practice (at 553), like Burnett, made a general statement that what a witness
was reported to have said after the event was not corroborative, but he went on to refine his
view under reference to specific crimes. On rape, he did not doubt (Principles 217, citing
James Burtnay, 18 November 1822 (unreported on this point) and Thomas Mackenzie
(1828) Syme 323) that a complainer's de recenti statement was admissible given its "obvious
importance". Alison did not specify any restriction on the use which could be made of such
a statement. In James Burtnay it was corroborative. Alison referred (Principles 219-220) to the
importance of accounts given by a complainer and the support which they derived from
other circumstances. The complainer's statement was "duly corroborated" by any physical
evidence and then by her "subsequent disclosure" to her relatives or the authorities. A
complainer was entitled to give her account and to "support" her testimony by the
statements which she had previously given to others de recenti (ibid 224-225).
[12]
When dealing with hearsay, Alison (Practice 510) referred to exceptions to the
prohibition extending both to de recenti statements of injured persons and to exclamations by
third parties which were part of the res gestae. The former could be led to "confirm", ie
corroborate, the testimony of the complainer (ibid 513). In rape cases in particular, the
8
competent (Hill v Fletcher (1847) 10 D 7; AB v CD (1848) 11 D 289; Hugh McNamara (1848) Ark
521).
[14]
Dickson: Evidence (1st to 3rd eds: 1855, 1864; and 1887) was consistent with Alison.
Dickson referred to statements being part of the res gestae when they accompanied acts, or
were so connected with them as to arise from coexisting motives, which could not rightly be
understood unless the words as well as the acts were proved (1st and 2
nd
eds Vol I, at para 92;
3rd ed at para 254). The statement and the acts had to occur unico contextu, but they did not
have to be contemporaneous. The admissibility of de recenti statements from complainers
was akin to res gestae. Such statements were a "consequence and continuation of the res
gestae". They were "the natural outpourings of feelings aroused by the recent injury, and
still unsubsided". These could corroborate the complainer's evidence (1st and 2
nd
eds at
para 95; 3rd ed para 258). Although de recenti statements would normally be confined to ones
made within hours, greater latitude was permitted in sexual offence cases where statements
made at intervals of two days and almost a month had been permitted (Dickson, 1st and
2
nd
eds at para 98; 3rd ed para 261).
[15]
Trayner: Latin Maxims (4th ed, 551 552) defined res gestae as not only the relevant act
but everything said or done at the time bearing upon, or having reference to, it. It included
all statements made immediately after the event if they were "so nearly connected with it in
point of time as to be inseparable" from it in the sense that the act could not be understood
without reference to them. The cases which followed the principle set out by Dickson (John
Thomson (1857) 2 Irv 747; James Reid (1861) 4 Irv 124; John Murray (1866) 5 Irv 232; James
Simpson (1870) 1 Coup 437; Greer v Stirlingshire Road Trs (1882) 9 R 1069; Anderson v
McFarlane (1899) 1 F (J) 36) reflected his approach. In Anderson, the de recenti statement was
the only corroboration.
10
at the scene, holding onto a railing with the assailant trying to pull her away. The
complainer could identify the accused, but the neighbour could not. The appeal focused on
the lack of corroboration of identification, but the court held that the complainer's de recenti
statement could not corroborate the commission of the crime. Although the result in Morton
was correct, as there was no corroboration of identity, the dicta on de recenti statements were
wrong. They failed to take account of a well settled line of authority. It was difficult to find
an explanation for Morton doing this. The dicta, to the effect that the statement could
negative consent yet not be corroborative, were unsupported by authority and should be
overruled. If a statement can negative consent, it must be evidence of fact (Lord Advocate's
Reference No 1 of 2023 at para [223]).
[18]
An extended approach to the res gestae and a recognition of the corroborative value
of de recenti statements would not be out of step with the approach in the Commonwealth
and Ireland. The restrictive approach to res gestae (eg Cinci v HM Advocate 2004 JC 103) was
changed by Ratten v The Queen [1972] AC 378 at 391 and developed in R v Andrews
[1987] AC 281 (at 300). The test became one of whether the time lapse between event and report
was such that concoction or distortion could be discounted; time itself not being
determinative. This had been followed in: Northern Ireland (McGuiness v Public Prosecution
Queen (1989) 84 ALR 59; New Zealand (R v Olamoe [2005] 3 NZLR 80); and Canada (The
Queen v Deelespp [2002] ABPC 85). The Ratten/Andrews approach had been codified in
England and Wales, Northern Ireland and New Zealand (Criminal Justice Act 2003,
s 118(4)(a); Criminal Justice (Evidence) (Northern Ireland) Order 2004, art 22(4)(a) and the
Evidence Act 2006, s 35(2)(b)).
15
[26]
It was not the definition of the res gestae which had proved problematic. It meant
"the thing done; the whole transaction or circumstance" (Trayner: Latin Maxims 551). The
debate was about its scope. The narrow view in Cinci v HM Advocate, notably that of Lord
McCluskey, could be described as extraordinary. Lord Advocate's Reference No 1 of 2023
overruled Cinci; preferring a wider scope in accordance with O'Hara. The Court concluded
(at paras [19] and [225]) that the statements made after the complainer in Lord Advocate's
Reference had exited the flat, and while in a state of distress, were part of the res gestae. The
respondents agreed. Where the res gestae started and ended could not be set out in a rule
applicable to all cases. There would be different start and end points depending on the
nature of the event and the role of the complainer (O'Hara at 389-390).
[27]
The statement in O'Hara v Central SMT, that it was only under the category of res
gestae that hearsay evidence could be regarded as real evidence, was reflected in the
approach of the courts throughout the 19th and into the early 20th Century. When
considering the admissibility of a statement made de recenti (that is shortly after the event,
as opposed to being contemporaneous), the courts asked whether the statement could be
brought within the res gestae (see eg Livingstone v Strachan, Crerar and Jones at 809; Neil
Moran; David Alexander at 111; William Hardie; John Stewart). These cases showed that, prior
to Morton, the focus was on whether a statement could be brought within the res gestae
(which could continue after the event itself was complete). There was no separate category
of statements that were de recenti (but which did not form part of this wider res gestae) and
which could be used as proof of fact. In Hill v Fletcher, the exclusion of the pursuer's
statement was because it did not form part of the res gestae (had it done so, it would have
been admissible regardless of her competence as a witness). It was made some time after
the event and "after the girl had time to concoct her story" (at 8). A statement made de
16
recenti could only be proof of fact if it were made during the res gestae. In many of the cases
which were relied upon by the Lord Advocate, the circumstances in which a statement was
made were not specified and the purpose for which the statement was admitted was
unclear.
[28]
This approach in the cases was consistent with that of the Institutional Writers.
They did not identify a separate category of evidence beyond the res gestae, but being a
consequence or continuation thereof, capable of proving fact. Burnett (at 519) set out the
basic rule that statements, even those that might be described as de recenti, were admissible,
not as corroboration, but only to enhance credibility because they emanated from the same
original source. This was not, as was suggested in Lord Advocate's Reference No 1 of 2023, at
odds with Alison and Dickson. All the writers agreed that this was correct as a general
proposition. The contention that Burnett's statement (at 553), that the "recency" of
complaining was a matter of weight, contained nothing to suggest that it was limited to
consistency. It failed to recognise that, in the 19th Century, any delay in reporting weighed
heavily against the truthfulness of the allegation. By the time of Burnett, a plea in bar of
trial could no longer be based on a failure to report promptly, although such a failure was
likely to be highly damaging to a complainer's credibility (MacKenzie: Matters Criminal, 1,
16, 4; Hume: i, 308). Burnett`s reference (601-602) to what a witness had said de recenti
being proof of fact was within a section on the res gestae. Both Burnett (ibid) and Hume (ii,
407) were clear that the res gestae was not confined to the event itself.
[29]
Alison made the same point as Burnett on the need for corroborative evidence to be
extrinsic to the witness (Practice, 553). James Burtnay involved statements which were
admitted, not for corroboration but to assist with credibility. Alison's references (Principles
224-225) to de recenti statements as supportive, and thus corroborative, occurred when he
17
was dealing with challenges to a complainer's credibility by the use of prior inconsistent
statements. Alison stated (Practice, 514) that the admissibility of recent statements as proof
of fact was restricted within narrow limits. Only those which were connected with the res
gestae, or which were so recently given after it as to be a sequel to the actual violence, could
be used in this way (at 515). Accounts after an interval, with no connection to the res gestae,
would not be admitted (at 515).
[30]
Alison and Burnett were at one. They were both describing the admissibility, as
corroboration, of statements by injured parties falling within the (wider) res gestae. Once the
res gestae had ended, the statement was not allowed as proof of fact. Alison, like Burnett
before him, was not suggesting that there was an additional category of statements de recenti
which could be used as proof of fact. The phrase "consequence and continuation of the res
gestae" originated in Dickson. Dickson described the statements of an injured party, which
were made shortly after the crime, as "the natural outpourings of feelings aroused by the
recent injury, and still unsubsided, [which] are a consequence and continuation of the res
gestae" (3rd ed, Vol 1, para 258). Two things were clear. First, in order to be admissible as
proof of fact, the utterance must have been the "consequence of" what had happened to
cause the injury. This simply meant "caused by" or "the result of" the crime. That was a
familiar concept, for example in cases of distress, where the question was whether the
distress was genuine and attributable to the crime. Secondly, the res gestae had to be ongoing
in that it must not have ended by the time the statement was made. It was the fact that the
feelings generated by the injury were unsubsided that indicated that the res gestae was not
yet over. The statement must be proximate in time to the event (de recenti) and while the
feelings aroused were unsubsided.
18
[31]
Dickson did not mean that the point at which a statement became inadmissible
hearsay was when it resolved into a narrative of a past occurrence. What he meant was that,
while an utterance that was part of the res gestae may be admissible, where it turned into a
statement by way of exposition or qualification it would be excluded (Mary Smith
(1827) Syme 92; John Murray). The proper interpretation of the point at which a statement would
no longer be admissible as part of the (wider) res gestae was clear from Dickson (3rd ed, Vol 1,
para 258) when he cited, inter alia, Neil Moran in which a statement made by the victim of a
robbery five or six hours later was not admitted "because the party's feelings have had time
to subside during the interval". Dickson expanded on this "cut-off" point (ibid at para 260)
in stating that regard must not only be had to the time interval but to the whole
circumstances, such as the extent and nature of the injury and the opportunities which the
sufferer had of expressing his feelings. The critical question was whether the feelings had
subsided.
[32]
Drawing all of this together, the Institutional Writers demonstrated that: (i) the res
gestae was not confined to a strict coincidence with the duration of the crime; (ii) statements
falling within the res gestae were admissible as proof of fact and could be corroborative;
(iii) statements made after the end of the res gestae were not in that category; (iv) statements
were deemed to be after the res gestae if they occurred at a time, or in circumstances, when
the feelings aroused had subsided or there had been an opportunity for that to have
occurred; and (v) statements after the end of the res gestae were not corroborative because
they were not extrinsic to the witness. They came from the same source.
[33]
Statements which were part of the res gestae had a measure of assurance about their
accuracy. They were forced from the individual as a result of the pressure of the incident.
They were spontaneous utterances. What was said was not the product of reflection (see
19
Gilmour v Hansen at 603; Robert Tweedie). The test for res gestae had two elements: a temporal
proximity; and the statement being made when the complainer was in an emotional state.
Authority for the proposition, that there was a particular latitude in sexual offences and the
evidence of children, was not strong (Thomas Mackenzie; John Murray; James Simpson). In
Anderson v McFarlane, a statement, which had been made 3 days after the incident, was
admitted but there were circumstances that explained the unusual passage of time,
including the remoteness of the locus and the complainer telling her parents on the first
occasion upon which she saw them. It illustrated not a particular latitude, but a proper
examination of the res gestae (see also John Stewart). Dickson noted examples of statements
that had been admitted for the prosecution after certain periods of time, but he did not
confirm that any of them was admitted as proof of fact. While the context was about
establishing whether something was part of the res gestae, Dickson was discussing how the
courts dealt with issues around credibility relating to delayed disclosure.
[34]
In Duncan McMillan credibility, rather than sufficiency, was the focus (see also
William Grieve). Robert Henderson was a good illustration of how the Court should consider
whether the res gestae had come to an end prior to the making of the statement; bearing in
mind the particular nature of rape and the "delicacy" around disclosure (see 327). Henderson
illustrated the correct approach to statements as proof of fact by looking at the temporal
proximity, the distressed condition of the complainer and what had happened between the
incident and the report (cf John Thomson). While there may be some degree of flexibility in
temporal proximity and spontaneity, admissibility was still determined by recency and
whether or not there had been an opportunity for reflection.
[35]
In Lord Advocate's Reference No 1 of 2023, the Court stated (at para [224]) that it was
tolerably clear that the bright line distinction in Morton between a statement which was
24
gestae statement following Fulton v HM Advocate 2000 JC 62 and Muldoon v Herron 1970
JC 30.
[45]
The reason why a res gestae statement was admissible as proof of fact was because it
was given in circumstances which provided a measure of reassurance against mistake or
fabrication. While it may seem logical that there should be no difference in the purpose for
which such a statement could be admitted, the risks attendant upon proof of the crime, and
proof that the accused committed it, were different. "Eyewitness identification evidence is
fraught with difficulties, and the potential for wrongful convictions is high" (Ferguson; Post
Corroboration Safeguards Review: Report of the Academic Expert Group at para 5.1). The risk of a
miscarriage of justice was "notorious" (Gage v HM Advocate 2012 SCCR 161, at para [29]).
There were some safeguards available, such as cross examination and the judge's directions,
but the Court should treat this type of evidence differently from evidence that went to proof
of the crime. This was likely to be a live issue in only a very small number of cases given
that "very little else" was required to corroborate identification (Ralston v HM Advocate at
472).
[46]
It would not be difficult for judges to direct juries that a de recenti identification was
not available as corroboration. Judges could explain the different approach by telling the
jury, for example, that identification (particularly of strangers) was difficult and, for that
reason, there needed to be evidence extrinsic of the complainer to corroborate the accused as
the perpetrator. The lack of safeguards was accentuated by the inability of a trial judge to
direct an acquittal
on the basis that a guilty verdict would be unreasonable (Criminal
Procedure (Scotland) Act 1995, s
97D).
[47]
The court should approach the prohibition of hearsay, and its limited exceptions,
from the perspective of how it operated to protect the accused from wrongful conviction.
26
strictly contemporaneous with the crime. It was correct that statements not falling within
the res gestae (however defined) could not be corroborative.
Decision
Preface
[49]
There is a general prohibition of hearsay; that is testimony of a witness who is
speaking to a fact not from his or her own knowledge but from what someone else has
reported to him or her. Dickson (3rd Grierson ed I, para 244) likens it to the examination of a
copy document. The principle behind the prohibition is that, first, it is not the best evidence
and, secondly, the account is not given by the person on oath (ibid 245). The latter was a
very important factor in a God fearing society. The former may be of much less importance
in the modern era, if whatever was said by the absent observer is digitally recorded in video
and/or audio format. The prohibition is not particularly designed as a protection for an
accused, but as a general mode of securing the best evidence, in whomsoever's favour it
might be, at any proof or trial.
[50]
At common law, so far as admissibility is concerned, the prohibition is subject to
exceptions in the case of utterances which were part of the res gestae or where a statement
was made de recenti. In principle these exceptions were because the admission of such
evidence assisted in the truth finding process. Hence they too could fit into the best
evidence profile. Over time, statutory exceptions have eaten into the prohibition; notably
section 3 of the Evidence (Scotland) Act 1852, which permitted the leading of evidence of a
prior inconsistent statement (see now 1995 Act, s 263(4)), and the statutory codification of
the exceptions to the admission of hearsay generally in the 1995 Act (s 259).
27
[51]
Before delving into the substantive issues, it is worth clarifying some of the
concepts which have been expressed in Latin. These have to some extent already been
translated when summarising the submissions. Trayner's Latin Maxims does not include
actus reus, which suggests that it was not a term in common use in Scots law, at least in the
early part of the last century. It just means the crime; literally the guilty act. In the context
of a sexual assault or rape, it refers to the act of assault or rape and nothing more. The act
ceases respectively after the blow has been struck or when penetration ceased.
[52]
Res gestae is translated by Trayner as "The thing done, the whole transaction or
circumstance"; literally the thing (res) accomplished or achieved (gesta or gestae). The
important point is that, whatever its outer limits, it includes, but extends beyond, the actus
reus. De recenti is not covered by Trayner, but it just means "recent"; literally, of recency.
[53]
The first question in the References is whether a de recenti statement is corroborative
in the absence of distress. Lord Advocate's Reference No. 1 of 2023 2024 JC 140 established that,
contrary to Morton, such a statement is corroborative; that is capable of proving fact, if
accompanied by recent distress. Subject to an analysis of the time at which a de recenti
statement is made, it was not disputed by the respondents that it can be corroborative of
evidence that a crime has been committed, even in the absence of visible distress. The
concession extended only as far as a de recenti statement formed part of the res gestae. This
prompts an obvious question of when a statement is part of the res gestae and when it is
classified differently as de recenti. The answer in broad terms is, as will be explored in
greater detail, that a reference to a statement being part of the res gestae is to any utterance by
anyone, whether a complainer, witness or even someone who is never identified or traced,
during the course of, as Trayner put it, "the whole transaction or circumstance". It is not
disputed that it can be used as proof of fact, whether of the crime or its perpetrator.
28
[54]
A de recenti statement is an account given by a complainer, that is the injured party,
after, but as a reaction to, the event. It too, can provide the same corroboration, but care is
required in defining when a post event statement ceases to be de recenti as a matter of law. A
de recenti statement may be classified as part of the res gestae, but it need not form such a part
in order to be capable of proving fact; that is to be corroborative. Greater latitude in terms of
time and circumstance is allowed with the de recenti statements of complainers in sexual
offence cases and with those of children.
The Institutional Writers
[55]
Burnett: Criminal Law (at 519) states that a "recently after" the fact statement is not
corroborative. In this he is referring to the statement of a witness, not specifically to a
complainer, with whom he deals separately. When considering rape, he stresses (at 553) the
importance of a recent complaint. Such a complaint is admissible, but it is not clear in this
passage whether Burnett is saying that it is corroborative as distinct from being a weighty
circumstance only bearing upon credibility. In his treatment of hearsay, Burnett excludes (at
601) evidence of the res gesta from the category of inadmissible evidence because it is proof
of fact. He illustrates this by reference to what is said during a riot.
[56]
Burnett goes on to talk about "what the injured party may have been heard to say
recently after the fact", specifically rape complainers. In a passage which reverts to dealing
with witnesses in general, he continues (at 602):
"Nay, it is competent, and may be a material fact, in corroboration of any witness's
testimony to prove what he said de recenti regarding what he may have heard or
seen, in other words, regarding the fact, as to which he is afterwards called on to give
evidence ...".
This broad statement, which is referring to all witnesses, is not borne out by the subsequent
cases.
29
[57]
Hume: Commentaries (4th ed; ii, 406) states, in a footnote concerning hearsay, that
words which are "a substantial part of the res gesta", are admissible to explain why the
witness took a particular step. He uses the tracing of a highwayman as an example. In this
scenario, the crime has been committed some time previously, but the evidence proves a link
between the crime and its perpetrator. In the same footnote, Hume refers to a rape
complainer giving an account to her mother; this being admissible to explain how a doctor
came to be called or how a button belonging to the accused came into the mother's
possession. In all of this, Hume is talking about admissibility of evidence. He places no
restriction on the use to which the statement might be put. He does not state in terms that it
can be used as proof of fact, but that may be a reasonable inference.
[58]
Alison first refers (Principles: 217) to the de recenti statements of the injured party, but
in the context of proof in favour of the accused (ie a prior inconsistent statement). He
broadens that out into a more general proposition. There is no limitation expressed on the
use of such statements. When considering rape, Alison (ibid 219 - 220) regards it as
indispensable to look "minutely" into the complainer's accounts. He then states that the
question of what violence was used is corroborated:
"in the most unexceptionable way by ... evidence in regard to her subsequent
disclosure of the crime to her relations, or the public authorities".
He continues (ibid 224 citing James Burtnay) by stating that an utterance of a young child de
recenti can confirm her declaration. In essence, Alison is of the view that a de recenti
statement is corroborative in a certain class of cases, including rape.
[59]
The important feature of the Institutional Writers is that they refer to two different
types of statement; those that are part of the res gestae and those that are de recenti.
30
Early Cases
[60]
Care has to be taken when interpreting the cases which occurred before the first
edition of Dickson's Evidence in 1855. Some contain specialities, such as: the civil cases in
which a party was not permitted to testify; the criminal prosecutions in which the statement
came from an incompetent witness; and statements made in the presence of the accused.
Some relate to ordinary witnesses and others to complainers in non-sexual cases. In
deference to the careful research of the parties, the cases may be summarised as follows.
[61]
In Thomas MacKenzie (1828) Syme 323 evidence was admitted of what the complainer
had said to a number of persons in the hours after a prolonged period of detention and
repeated rape. It is not clear, from the detailed narrative of the testimony, that what the
complainer was reported as having said was used as proof of fact, as distinct from either to
bolster or, perhaps more likely, to contradict (see LJC (Boyle) at 332) the complainer's
account. William Hardie (1831) Shaw (J) 237 was an unsuccessful attempt to introduce a
previous unsworn inconsistent statement given by a witness (not a complainer) some days
after the event.
[62]
Two cases in Bell's Notes to Hume are said to be supportive of the res gestae
exception to the prohibition on hearsay. The first, Duncan McMillan (1833) Bell's Notes 288,
explores the need for immediacy in a complaint of rape; delay being regarded as creating a
"strong suspicion". The complainer's partial disclosure, which was made about a week after
the event, was admitted after inquiry about whether any earlier statements had been made
to the first natural confidante; a relative or the authorities. In William Grieve (1833) (ibid), a
statement made by the complainer to her husband several days after the event was admitted
in the face of an objection that it was not de recenti. These cases reveal that evidence of
relatively prolonged delayed disclosures will be admitted, depending on the circumstances.
31
[63]
Neil Moran
2
(1836) 1 Swin 231 was about a robbery in which the Lord Justice Clerk
(Boyle) allowed the defence to lead evidence of a statement by the person robbed. This had
been made, in the accused's presence, 5 or 6 hours after the event. It was regarded as part of
the res gestae and "totally different" from the account given "after an interval of some
hours". A statement made by the same person to the police officer who had arrested the
accused had already been proved.
[64]
The complainer in James Gibbs (1836) 1 Swin 263 was aged 12. She spoke to being
dragged off a road and assaulted in an attempt to rape her. She gave an immediate account
of what had happened to a passer-by who saw the accused running away. She also told her
mother. The complainer's de recenti statement, which would also be classified as within the
res gestae, provided corroboration of the attack. The accused was convicted.
[65]
Robert Henderson (1836) 1 Swin 316 is a more useful precedent for present purposes.
It involved the alleged rape of a young woman who was due wages from the accused.
When she returned home after the incident to her uncle's house, everyone, including her
cousin, with whom she slept, was asleep. She put her dirty and bloodied clothes away. This
had all happened on a Wednesday evening. It was only on the Friday night that she told a
female friend, Mrs Turcan, before making later disclosures to others, including a
Mrs Fotheringham. She explained why she had not told her uncle, bed-ridden aunt or
somewhat unintelligent cousin. Mrs Turcan spoke to the complainer sitting down, bursting
into tears and telling her story of abuse. The account given to Mrs Fotheringham on the
following Wednesday was also admitted. The Lord Justice Clerk (Boyle) explained to the
2
The outcome of this reported decision is contradicted by the account in Bell's Notes at 288.
32
jury (at 327 - 328) that there had been no undue or unreasonable delay in the complainer
telling her friend because:
"great allowance must always be made in a case of this kind, for the delicacy which
prevents a full disclosure to a male relative."
He continued (at 328) by saying, in relation to the defence of consent:
"If this had been the case, why the early communication to Mrs Turcan, and to
Mrs Fotheringam? But the story which she now tells is corroborated by all the other
evidence by the state of the agony in which she first communicated the outrage
by the account she gave to all the witnesses and by the marks of violence seen on
her person."
What the complainer said to Mrs Turcan, some two days after the event, could not be
classified as part of the res gestae, but it was a de recenti statement and regarded as
corroborative. Mr Henderson was fortunate to have been acquitted by a majority not
proven verdict "in opposition to the opinion of the Court" (rubric at 316).
[66]
Robert Tweedie (1836) 1 Swin 22 was another accusation of an out of doors rape of a
young girl (aged 15), this time by a ploughman. The complainer reported the rape to the
accused's sister either that night or on the following (Sunday) morning. She later reported it
to her employer, who was the accused's aunt, on the Tuesday. The aunt testified to the
complainer appearing normal on the night of the incident, but that she had complained of
rape on the Tuesday. The Advocate depute withdrew the libel.
[67]
David Alexander (1838) 2 Swin 210 was an assault by stabbing; the victim being the
accused's uncle. At the trial, the uncle denied that a scratch on his throat had been caused
by the accused. The Advocate depute was allowed to lead evidence from a second witness
that, "very shortly" after the incident, the uncle had accused his nephew, in the witness's
presence, of the assault. Lord Meadowbank said (at 111) that the purpose of such a question
was not with a view to contradicting the uncle's testimony but to show that the accused had
33
allowed the uncle's accusation to go unchallenged. This was part of the res gestae and the
equivalent of a confession. In both situations the evidence could be used as proof of fact.
[68]
In Donald Kennedy (1838) Swin 213 the appellant was a landowner who had been
convicted of shooting two poachers. Evidence of an account by one of the poachers, which
had been given three days after the incident, was not allowed (at 219) under reference to
William Hardie (supra). Lord Meadowbank, delivering the opinion of the trial court (at 225
226), said:
"What a witness has said not on oath, cannot unless it is part of the res gestae, be
received, to contradict the evidence which he gives before us. No principle is better
established in the law of Scotland than this; and accordingly ... we have found it our
duty to reject as inadmissible the account ... which one of the parties injured gave to
a companion three days afterwards..."
Lord Meadowbank repeated himself (at 229):
"If it is competent for the pannel to prove what one witness said to another, the same
proceeding must in every case be competent on the part of the prosecution. If this
conversation had been alleged to have been a part of the res gesta, the case would
have been different."
Robert Fulton (1841) 2 Swin 564 involved the conviction of a boy, who was under 14, of the
rape of a 5 year old. The reporter recorded (at 567) that the crime was:
"fully established by the evidence of the girl by proof of the account which she had
given of the matter de recenti by medical testimony... and the panel's confession
...".
[69]
There are civil damages claims for rape, or assault with intent to ravish, of which Hill
v Fletcher (1847) 10 D 7 is one. In these cases, it was, at one time, not competent to lead
evidence of the pursuer's declaration. The question was whether it was nevertheless
competent to lead evidence of what a complainer had said to a friend, with whom she had
been living, when she returned home in a state of "grief and disorder" (at 8). The pursuer's
counsel (later Lord Justice General (Inglis)) argued that it was a declaration de recenti and
34
part of the res gestae. The Lord Justice Clerk (Hope) ruled (at 9 - 10) the statement
inadmissible because it was not part of the res gestae and had been made "after the girl had
had time to concoct her story". The statement had been made after the complainer had
encountered two passers-by and another friend on her way home to whom she had made no
complaint and did not appear to be distressed.
[70]
AB v CD (1848) 11 D 289 was a separation action based on cruelty. The pursuer's
niece had visited the pursuer and deponed to finding her in a "very much excited" state,
almost convulsive. Questions to the niece about what the pursuer had told her were not
admitted because of the "considerable interval" between the quarrel (at about 7.00pm),
which had been spoken to by a maid, and the niece's appearance (at about 9.00 or 10.00pm)
(LP (Boyle) at 293). What passed between the pursuer and her niece was not part of the res
gestae. The reasoning involved a consideration of what were perceived as the dangers of
allowing a statement by a party to the cause. Returning to crime, Hugh McNamara
(1848) Ark 521, was a rape case involving a 14 year old of "weak or imbecile intellect" (at 522).
Evidence of what the complainer had said, possibly de recenti, was excluded on the basis that
she was not a competent witness.
[71]
With the exception of Robert Henderson, these cases are of limited value because of the
various specialities already noted.
Dickson
[72]
Dickson's two volume Law of Evidence is the most comprehensive treatment of its
subject-matter in the 19th Century, even if it is not an Institutional Writing. In the first (1855)
edition (at para 92), Dickson deals with res gestae as an exception to the prohibition on
hearsay, under reference to Hume, Burnett and Alison, as follows:
35
"Statements, which would otherwise be excluded as hearsay, may be proved when
they form part of the res gestae of acts given in evidence. The reason is, that words
which accompany actions, or which are so connected with them as to arise from co-
existing motives form part of the conduct of the individual; which cannot be rightly
understood, unless his words as well as his acts are proved ... The admissibility
usually depends on whether the declarations were co-temporaneous with the facts,
and so connected with them as to illustrate their character; or in legal language
whether the words and acts occurred unico contextu. Yet it is not necessary that they
be co-temporaneous, for the nature and strength of the connection are the material
things to be looked at; and, although concurrence of time cannot but be always
material evidence to show the connection, yet it is by no means essential. On the
other hand, a statement which resolves into a narrative of a past occurrence will not
be admitted to qualify or explain it."
[73]
The most authoritative edition of Dickson is the third (Grierson) version of 1887. It
repeats (at para 254) this text and adds a reference to Greer v Stirlingshire Road Trustees
(1882) 9 R 1069. Dickson deals with de recenti statements, again citing Burnett, Hume and Alison, in
a separate part of his treatment of hearsay (1st and 2
nd
eds at para 95) as follows (at para 258):
"Akin to the principle thus noticed, is that which in criminal cases admits proof of
statements made by the injured party de recenti after the alleged crime. 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 for the crown; while on the other hand a
discrepancy between his sworn testimony and his statements recently after the
alleged offence is a favourable circumstance for the prisoner. On these grounds, such
evidence has for a long period been admitted both for the prosecution and defence,
after the injured party has been examined."
The contrast was with statements made hours later when the complainer's feelings had time
to subside (ibid). These passages are not confined to sexual offences or to children. No
distinction is made between admitting these statements for the purpose of proving the crime
or for proof of the identity of the perpetrator (1st and 2
nd
eds, para 96). Dickson continues
(ibid at para 98, citing inter alia William Grieve and Duncan MacMillan) as follows:
"When applying this principle to cases of rape, and assault with intent to ravish, the
Court has admitted a very extensive investigation into the injured party's
statements."
Allowance had to be made in such cases both for:
36
"the extreme excitement ... which so terrible an outrage causes in the sufferer's
mind, and for her natural reluctance to publish her disgrace" (ibid, para 98).
[74]
These passages are repeated in the Grierson edition (paras 258, 259, 261). The
ultimate conclusion is that there are two different exceptions to the hearsay rule: first,
statements which are part of the res gestae, and, secondly, de recenti statements from
complainers generally, where greater latitude is given to complainers in sexual offence cases
because of their peculiar nature. As will be seen, that is broadly the same position as exists
today.
Cases in the Dickson era
[75]
In John Thomson (1857) 2 Irv 747 the trial judge would not allow hearsay of what a
three year old, who was present when poison was administered to her aunt, had said to her
mother some 16 days after the event. The statement was not part of the res gestae. The case
is not very informative. James Reid (1861) 4 Irv 124 involved a charge of rape, but it
concerned the admissibility of evidence of "acts of unchastity" occurring at or about the time
of the incident libelled. John Murray (1866) 5 Irv 232 is more in point. The complainer was
deemed incompetent to testify because of her inability to understand the oath. She had
made a statement to her mother when she was crying and very much agitated and excited.
What she had said to her mother "immediately after the ... outrage" was deemed
admissible. Lord Ardmillan, departing (at 233) from Hugh McNamara (in which he had been
the Advocate depute
3
), deemed the statement to be:
"really part of the res gestae, and might be laid before the jury as an incidental fact,
like the cry of a child, or even the scream of an animal".
What the complainer had said on the following day was not admissible.
3
Crawford AD.
37
[76]
Lord Ardmillan had presided in the Outer House in Longworth v Yelverton
(1862) 24 D 696. This was an action of declarator of marriage in which statements by the pursuer
about the declaration of marriage to lodging-house keepers were deemed inadmissible
unless they came within the res gestae. Lord Ardmillan said (at 697, footnote) that:
"Where ... any particular statements of the pursuer 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 disassociation is prevented, the statements are treated as partes rei
gestae, and, on that ground, are viewed as within the exception to the rule, and are
admitted accordingly."
[77]
James Simpson (1870) 1 Coup 437 was a case of incest in which the Crown sought to
adduce evidence from the accused's sister-in-law about what the accused's wife had said
whilst in an excited state. This was deemed admissible if it formed part of the res gestae, but
the witness testified that it had occurred four days afterwards. The Solicitor General did not
press the line of examination.
[78]
The civil case of Greer v Stirlingshire Road Trs concerned the death of a 22 month old
child who had fallen through the railing of a bridge and drowned. Statements given by
other very young children on returning home from the scene were deemed admissible as
proof of fact (see Lord Craighill at 1074; cf Lord Young at 1076). The children were too
young to testify.
[79]
Anderson v McFarlane (1899) 1 F (J) 36 involved a husband and wife who had been
convicted of assaulting their 13 year old domestic servant. The only corroboration of the
girl's account, which she had given but not on oath, came from statements made by her to
her mother three days later, but on the first occasion on which she had seen her. The Lord
Justice Clerk (Macdonald) did not (at 37) consider this to be a problem, although he
commented that:
38
"it is not so much leading corroborative evidence as eliciting that the injured party
made a complaint at the earliest opportunity, thus preventing the forcible objection
that the witness had not made complaint after the assault to her own relations".
Looked at broadly, the various cases in this section support the analysis in Dickson
throughout the second half of the 19th Century.
20
th
Century cases
[80]
Gilmour v Hansen (1920) SC 598 was a defamation action in which the pursuer
maintained that the defender had falsely accused him of having had intercourse with her.
The pursuer took exception to evidence of what the defender had said to her aunt on the
night when she gave birth to, what she said was, the pursuer's child. In determining that
this was inadmissible, Lord President (Clyde) said (at 603):
"In cases of crime and of delict, and also where the facts are of an intimate personal
character, statements more or less similar in their circumstances to that now in
question are admitted in evidence, if made de recenti. But it is a condition attached to
their admissibility that the time elapsing between the alleged occurrence and the
making of the statement must be so exiguous as to exclude the risk of concoction,
consequent on reflection, or at least to reduce such risk to a minimum. In the present
case, the statement is made many months after the latest of the dates assigned to the
alleged acts of intercourse, and in connexion with the new situation created, not
merely by the established fact of pregnancy, but by the birth of illegitimate offspring.
... The de quo quoeritur ... is not the paternity of the child, but the existence of
improper relations between the parties on the occasions libelled. It is, accordingly,
impossible to treat the defender's statement to her aunt as part of the circumstances
of the alleged improper relations between the parties and it does not come within the
rule which admits such statements when forming part of the res gestae."
Although it is easy to follow the ratio, the references to both a de recenti statement and the res
gestae are confusing. As pointed out by Dickson, they are not, or at least not always, the
same.
[81]
Ovenstone v Ovenstone (1920) 2 SLT 83 was a divorce action in which the principal
witness was a "tablemaid" who had, when calling persons to dinner, stumbled upon the
wife and co-defender in a compromising position on the drawing-room sofa. The co-
39
defender's position was that the maid had misconstrued the activity on the sofa, but the
wife's defence was she had not been on the sofa at all. The conclusive evidence, in the mind
of the Lord Ordinary (Sands) was the maid's description of what had happened, which she
had given after dinner. The co-defender begged the maid not to disclose what she had seen
before dinner. The maid "at once" reported the incident and the conversation to her sister,
who was the cook. Lord Sands admitted the evidence of the cook about the maid's "instant
report" because it was part of the res gestae and hence corroborative of the maid's evidence.
To have done otherwise would have been "to carry a somewhat artificial rule of evidence to
a length which would outrage common sense" (at 84).
[82]
It may indeed have defied common sense, but Lord Sands' dictum was disapproved
in Barr v Barr (1939) SC 696 (LP (Normand) at 699). The pursuer in this undefended action
of divorce told his brother of a conversation which he had had with his wife in England. His
account to his brother had been given upon his return to Scotland. It would have been
difficult to categorise the statement he made to his brother as de recenti. It was certainly not
part of the res gestae. Barr was decided in the wake of Morton v HM Advocate and Morton's
disapproval of McLennan v HM Advocate 1928 JC 39 and McCrindle v MacMillan 1930 JC 56
(see in Barr, Lord Moncrieff at 700).
[83]
Livingstone v Strachan, Crerar & Jones (1923) SC 794 was about a road traffic accident
in October 1921 in which the pursuer blamed the defenders' van driver. A few days prior to
the jury trial in November 1922, the pursuer had sent a surveyor to the locus. The surveyor
spoke to the driver, who gave him an account of what had occurred. The pursuer attempted
to lead this evidence, but it was held incompetent to do so. It was not a prior inconsistent
statement, since the driver had not yet testified. It did not meet the criteria in section 3 of the
Evidence Act 1852 (LJC (Alness) at 801). Lord Ormidale's reference (at 805) to a statement
40
being admissible, if it had been made de recenti and thus provable as part of the res gestae, is
interesting (see also Lord Anderson at 809).
[84]
McLennan v HM Advocate was an appeal from a conviction of lewd practices
involving a 5 year old boy. The boy spoke to what had occurred. In advance of his
evidence, both his mother and father testified to the boy's physical condition (disarranged
clothing) and to what he had told them on his arrival home. It was argued (at 40) that his
statement to them was not part of the res gestae and thus not corroborative. The Crown were
not called upon to reply; the appeal being "without hope of success" (at 41). The Lord
Justice General (Clyde), citing Dickson (at paras 254 and 258), said (at 41) that:
"it is a mistake to suppose that the evidence of the parents ... regarding the
explanations given by the boy with regard to his condition when he returned home
do not provide good corroboration."
The corroboration related to both what had happened and the identity of the perpetrator
(ibid at 42). Lords Sands and Blackburn agreed.
[85]
The same result followed in McCrindle v MacMillan. This concerned an indecent
assault on a 13 year old girl in which the only issue at trial was identity. The complainer
identified the appellant, whom she knew. Within a few minutes, and "while still suffering
from [the assault's] effects", she told her parents, and others, about what had happened and
who had been responsible. Lord Morison, with whom the Lord Justice General (Clyde) and
Lord Blackburn agreed, regarded (at 60) what the girl had said and done as part of the res
gestae and thus corroborative.
[86]
In the perjury case of HM Advocate v Smith 1934 JC 66, the question was whether the
testimony under consideration was competent. Mr Smith was alleged to have lied when he
had testified that certain persons (G, W and McL) had not called at his house and told him
that two members of the local licensing court (later convicted after the trial) had solicited
41
bribes from one of them two days earlier at a hotel in Kilwinning. The Lord Justice Clerk
(Aitchison), sitting as a single judge on an objection to the relevancy of the indictment, said
(at 68):
"... statements made by complainers outwith the presence of the party accused are
never evidence against that party, except in very exceptional cases. A fortiori
statements made to complainers outwith the presence of the party accused can never
be evidence. In cases of assault committed on women or on children, where the
complaint is made de recenti, the Court will allow such complaint to be received in
evidence, but that is the exception to the rule. So also if the statements made by [G,
W and McL] had been made at the time of the alleged offence, so as to form part of
the res gestae of the crime alleged, it may be that they would have been admissible in
evidence ... But the statements here ... are ... on 11 of April 1933, whereas the crime
libelled ... occurred ... on 9 April 1933."
This is a very clear statement that there are two different types of exception to the
prohibition on hearsay: first, de recenti statements in sexual offence cases; and, secondly,
statements (of whomsoever) which are part of the res gestae.
[87]
A de recenti statement may reasonably be described as a "natural outpouring of
feelings aroused by the recent injury, and still unsubsided" (Dickson 1st and 2
nd
eds at
para 95, 3rd ed at para 258). It is a "consequence and continuation of the res gestae" (ibid) but
it is not (or need not be) the same as, or part of, the res gestae. The view in Lord Advocate's
Reference No. 1 of 2023 (at para [224]) that a de recenti statement was formerly regarded as
part of the res gestae may not be accurate. The important matter is that both statements are
treated in the same way for evidential purposes; both are proof of fact and corroborative.
[88]
Lord Advocate's Reference No. 1 of 2023 explored the dicta in Morton v HM Advocate in
some depth (at paras [69]-[71]). The complainer in Morton had maintained that the
appellant, who was not known to her, had hustled her into a close and indecently assaulted
her. She identified him at an identification parade. There was an eye witness to the event,
but she was unable to identify the appellant. The only other evidence was from the
42
complainer's brother who spoke to his sister being in a distressed state when she returned
home "immediately after" (at 51). Quantum valeat, according to the Justiciary Papers, it was
actually the complainer's mother, not her brother, to whom she spoke. This was
undoubtedly a de recenti statement, but there was nothing in it to assist with identification.
There does not appear, for example, to have been a description of the assailant. Given that
state of evidence, the decision of the Full Bench to quash the conviction was correct even if,
as was held in Lord Advocate's Reference (at paras [223] [230]), the dicta (at 53) about de
recenti statements not being corroborative are wrong and ought to be formally disapproved.
There is a question of whether the statement which was given by the complainer to her
mother (described erroneously in the Justiciary Cases report of the case as her brother)
"immediately after [the assault] was said to have been committed" and when the complainer
was "in an excited condition", ought to be regarded as part of the res gestae too. On that
issue, careful regard should be had to the seminal O'Hara v Central SMT 1941 SC 363.
[89]
O'Hara was examined closely in Lord Advocate's Reference No. 1 of 2023 (at paras [72]-
[73]). It involved an injury to a bus passenger which had been caused by a sudden swerve
of the bus. The defenders' driver contended that the swerve had been necessary to avoid
hitting a pedestrian who had run out in front of the bus. The driver assisted the passenger,
who had fallen off the bus, before confronting the pedestrian, in the vicinity of the bus, and
in the presence of the conductress. The pedestrian, who could not be traced in order to give
evidence at the proof, had admitted to the conductress that he had run out in front of the
bus. He had given the conductress a note of his name (Charles Hyndman) and an address.
This was handed over to a police officer who, ten minutes later, found a man of that name in
a nearby cinema. This man denied that he had caused the bus to swerve. The onus of proof,
43
that the cause of the swerve was the pedestrian, lay on the defenders. The question was
whether the driver's evidence was, as was required at that time, corroborated.
[90]
According to the Lord President (Normand), the evidence of what had happened
"very shortly" (at 382) after the accident, but after the driver had attended to the passenger,
was admissible as part of the res gestae and hence, in so far as spoken to by the conductress,
corroborative of the driver's account. The Lord President outlined (at 381) the general
principle on which evidence of res gestae, including hearsay, is admitted as being that:
"... words and events may be so clearly 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). 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. So a long
narrative is never allowed to be proved as part of the res gestae".
The Lord President cited Lord Ardmillan in Longworth v Yelverton with approval,
commenting (at 382) that it is often:
"a matter of nice discrimination and of sound discretion whether in particular
circumstances this exception from the general rule that the best evidence must be
brought should be allowed, for it is extremely difficult, if not impossible, to
formulate a general rule for its application (Dickson: Evidence Grierson ed para 254)".
[91]
The Lord President accepted the Lord Ordinary's analysis that what had been said at
the scene was "so closely bound up with the happening of the accident that without it the
history of the accident ... would not be complete" (at 382). That permitted the evidence to
be considered as part of the res gestae. The Lord President thought that what had been said
by Mr Hyndman in the cinema would have been in a different category, but for it being a
recent (10 minute) qualification of what had been said by Mr Hyndman as part of the res
gestae (see Lord Fleming at 386).
44
[92]
If it requires emphasis, the Lord President in O'Hara determined that the statements
by persons, including Mr Hyndman, in the vicinity of the bus but after the event (ie the
swerve), were admissible as part of the res gestate. He was not talking about de recenti
utterances which are made by injured parties either during or after the res gestae. He was
not referring to statements made by a complainer in a sexual offences case. Lord Moncrieff
considered (at 389 - 390) that the res gestate, which he described as "the event" would vary in
scope with the degree of participation in the event of the maker of the statement, but it is not
entirely clear how that would operate in practice.
Commonwealth and Irish cases
[93]
The court should be cautious before grafting concepts from other jurisdictions onto
the Scots law of evidence. Scots law has its unique concepts, not least the requirement for
corroboration, and different trial procedures. Nevertheless, the Institutional Writers and
Dickson relied on reported cases from England in framing their works. Looking at other
systems, especially those which have developed and refined the prohibition of hearsay, can
operate as an important check on whether Scots law is keeping up with modern thinking
and societal norms and expectations. Hearsay is a concept which may, in due course, again
require a degree of re-thinking in light of the development of digital video and audio
recordings and the benefits and pitfalls of new technology.
[94]
Lord Normand followed his dicta in O'Hara v Central SMT in Teper v The Queen
[1952] AC 480; an appeal to the Privy Council from British Guiana (Guyana). He said (at 486) that
the law on res gestae was the same in that country as in both Scotland and England. This was
that (487):
45
"it is essential that the words sought to be proved by hearsay should be, if not
absolutely contemporaneous with the action or event, at least so closely associated
with it, in time, place and circumstances, that they are part of the thing being done,
and so an item of real evidence and not merely a reported statement".
The Scots law influence in this phraseology is evident, yet the court did not admit evidence
from a police constable about an unidentified woman shouting out words, at the scene of an
allegedly deliberate fire-raising, which might have led to the identification of the
perpetrator.
[95]
Twenty years later, in an appeal from Victoria (Ratten v The Queen [1972] AC 378), the
Privy Council admitted evidence of a telephone call from an hysterical woman to the
telephone exchange seeking help from the police shortly before she was shot dead. Lord
Wilberforce described (at 389 - 390) the prohibition against hearsay as stemming not only
from the possibility of words being lost in transmission but also because of the risk of
concoction or fabrication. It was the latter test of admissibility that judges ought to apply.
With statements "after the event" the judge had to be satisfied that:
"the statement was so clearly made in circumstances of spontaneity or involvement
in the event that the possibility of concoction can be disregarded".
Lord Wilberforce cited both O'Hara and Teper.
[96]
Another 15 years passed before R v Andrews [1987] AC 281 examined the
admissibility of a statement to police made by the victim of a stabbing within minutes of the
event. The victim died. The House of Lords (Lord Ackner at 300) affirmed the decisions of
the Privy Council as applicable in English law, thus ridding it of the controversial R v
Bedingfield (1879) 14 Cox CC 341. The primary question was whether the possibility of
concoction or distortion could be disregarded (R v Andrews at 301; for Northern Ireland see
McGuiness v Public Prosecution Service [2017] NICA 30, Weatherup LJ at para [11]; and for
Ireland DPP v Lonergan [2009] IECC 52, Kearns J at paras [13] et seq).
47
truth of its contents because it presents a reliable and spontaneous account of an
event given contemporaneously with, or shortly after, the incident in question".
Murray J went on to explain this (at para 55); describing the rule as one of common sense.
The primary question concerns the possibility of concoction and distortion.
[101] Thus the Commonwealth and Irish jurisdictions have developed a system whereby
statements which form part res gestae constitute proof of fact. What would fall to be
regarded as a de recenti statement in Scotland is not a separate category from other prior
consistent statements elsewhere. The latter may bolster credibility and reliability, but they
are not proof of fact independent of the testimony of their maker. That is an understandable
approach in systems in which there is no formal requirement for corroboration.
Res Gestae and De Recenti
[102] The scope of what will constitute res gestae is relatively clear from O'Hara v Central
SMT. What is needed is a close association between the words, or activity, and the event
(crime). The court in O'Hara regarded what had happened in and around the bus as part of
the res gestae, but would not normally have regarded the interview of the pedestrian in the
cinema, 10 minutes or more later, as being in the same category but for exceptional
circumstances. This may not be too important when what is under consideration is an
utterance of a complainer in a sexual offence case. In that situation, if the statement is de
recenti, it will be corroborative even if it falls outside the boundaries of the res gestae. What
then is meant by de recenti? This opinion is not intended to narrow the scope of the test for
de recenti statements as described in relatively recent cases.
[103] In relation to de recenti distress, the relevance of time was considered in Wilson v HM
Advocate 2017 JC 135 (LJG (Carloway) at para [24] et seq). Following Moore v HM Advocate
1990 JC 371 (LJG (Hope) at 376) and Cannon v HM Advocate 1992 JC 138 (LJG (Hope) at 143),
48
it was said (Wilson at para [30]) that, although the interval between the event and the
observed distress was a factor, the important point was whether the distress was caused by
the offence. Intervening occasions on which the complainer had exhibited distress may be of
some significance, but there was no fixed interval after which distress could not constitute
corroboration.
[104] There are undoubted parallels between the admissibility of de recenti distress and a de
recenti statement. The two will often go together, as in Wilson (see para [35]). Where they do
not, the rule of thumb, which has been applied over the years, is whether the statement or,
better still, utterance has occurred on the first reasonable opportunity to speak to a natural
confidante (Wilson at para [34], following Anderson v McFarlane (1899) 1 F (J) 36, LJC
(Macdonald) at 37; see Walker & Walker: Evidence (1st ed) at para 376). Just what the outer
limits of this may be will depend on the facts and circumstances of each case, but a
considerable latitude is allowed in cases of sexual offending (Wilson at para [34] under
reference to Dickson at para 261).
[105] Robert Henderson (1836) 1 Swin 316 is a useful illustration of the correct approach.
Dickson's reference (at para 95) to a de recenti statement being "the natural outpouring of
feelings aroused by the recent injury and still unsubsided" is a helpful general description of
what will be regarded as admissible. Where there has been a lapse of time, which has raised
a substantial risk of concoction, the statement may be regarded as inadmissible (Gilmour v
Hanson 1920 SC 598, LP (Clyde) at 603). Despite its later overruling in the wake of Morton v
HM Advocate, Ovenstone v Ovenstone 1920 2 SLT 83 was correctly decided, at least if the
maid's instant report after dinner were classified as de recenti rather than res gestae.
49
Proof of Identification
[106] There is no hint in the Institutional Writers, Dickson or the authorities that, if a
statement is corroborative, whether as part of the res gestae or as de recenti, it can only
corroborate the commission of the crime and not the identity of the perpetrator. It is not
easy to find a case in which a de recenti statement was the only corroboration of
identification. Those earlier ones founded upon by the Crown (James Gibbs, David Alexander
and John Barr) are not sufficient for this purpose, but the re-instated McCrindle v MacMillan
is. The principle must be that, if the res gestae or a de recenti statement is to be treated as if it
were real evidence, it is impossible to see why it should not provide, for example, the "very
little else" (Ralston v HM Advocate 1987 SCCR 467, LJG (Emslie) at 472) required when a
positive identification has already been made.
[107] It was not disputed that an utterance which is part of the res gestae can provide
corroboration of evidence of identity (O'Shea v HM Advocate 2015 JC 201, LJG (Carloway),
delivering the Opinion of the Court, at para [21]). The argument in favour of distinguishing
between the corroborative effects of the two categories of statement is unconvincing. The
admission of both presupposes that neither has been the product of fabrication, or at least
that the risk of concoction is minimal.
[108] Proof of identity by corroborated evidence is an important element in the criminal
justice system. The courts must be careful to guard against erroneous identification. Scots
law does this, first, not only by retaining the unique requirement for corroboration but also
in requiring judges to direct juries to take care in cases where the only evidence is eye-
witness identification and there is an objective reason to question its reliability (Finnegan v
HM Advocate 2024 SCCR 318, LJG (Carloway), delivering the Opinion of the Court, at para
[15] et seq). Secondly, the principal guard against miscarriages of justice remains, as it does
50
in most other jurisdictions in the Commonwealth and Ireland, not in a quantitive assessment
of the sources of evidence but in the need for the factfinder to be satisfied of the guilt of the
accused beyond reasonable doubt.
[109] At the heart of the issue is the need for the law of evidence to be as clear and
straightforward as is consistent with the interests of justice, including fairness to the
accused. As the Scottish Law Commission have said (100th Report at para 1.3), albeit in
relation to the reform of the law of evidence:
"(1)
The law should be simplified to the greatest degree consistent with the
proper functioning of a law of evidence;
(2)
As a general rule all evidence should be admissible unless there is good
reason for it to be treated as inadmissible."
Having to apply rules, which prohibit a judge or jury from reaching a just conclusion based
upon a liberal consideration of all relevant testimony, hinders the justice system. As a
generality, if evidence is regarded as admissible, it should be so for all purposes; that is as
proof at large. A judge could direct a jury that a de recenti statement is admissible as proof
only of the commission of the crime but not identity, but this is likely to create perplexity in
the minds of the jury. In short if, as has been determined, a de recenti statement is
admissible, it can provide corroboration of both the commission of the crime and the
identity of the perpetrator.
Answers to the Four Questions
[110] (1) It is not now disputed in the wake of Lord Advocate's Reference No. 1 of 2023 that a
de recenti statement is corroborative on its own, that is, in the absence of distress.
(2) If a de recenti statement is corroborative, it is capable of proving the occurrence of
the crime and the identity of the perpetrator.
51
(3) A statement ceases to be de recenti when it ceases to be "recent" following upon
the commission of the crime, or is not provided to the first natural confidante as described in
this opinion.
(4) The decision in Morton v HM Advocate was correct and should not be overruled
but the dicta on the corroborative effect of a de recenti statement is disapproved.
52
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 43
HCA/2023/24/XM
HCA/2023/25/XM
Lord Justice General
Lord Justice Clerk
Lady Paton
Lord Pentland
Lord Matthews
Lord Boyd of Duncansby
Lady Wise
Lord Armstrong
Lord Beckett
OPINION OF LADY DORRIAN,
the LORD JUSTICE CLERK
in the References by
HIS MAJESTY'S ADVOCATE
Appellant
against
PG and JM
Respondents
Appellant: The Lord Advocate (Bain KC), Harvey AD, Scullion, D Blair; the Crown Agent
Respondent (PG): McCall KC, Crowe, Lawrie; Central Court Lawyers, Livingston
Respondent (JM): MD Anderson KC, Cloggie, Loosemore; PDSO
30 October 2024
53
[111] I have had the advantage of reading in draft the opinion of your Lordship in the
chair, with which I am in complete agreement. I agree with your Lordship that a statement
forming part of the res gestae can be used as proof of fact, whether the statement relates to
the commission of the crime, the identity of the perpetrator, or both. A statement made in
the context of the res gestae thus has corroborative effect. I did not understand this to have
been substantially disputed during the course of the hearing.
[112] Corroboration may also be found, whether in relation to the commission of the
crime, the identity of the perpetrator, or both, in a de recenti statement. In my view, a de
recenti statement, whether accompanied by distress or not, constitutes evidence separate
from that of the maker of the statement. In Lord Advocate's Reference No 1 of 2023 the court
referred (para 227) to the fallacy which lay in "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". On the contrary, "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" (para 229). Although the
issue was not a live one in Lord Advocate's Reference No 1 of 2023, these observations apply
equally to any de recenti statement made by a complainer. Such a statement constitutes
independent evidence capable of providing corroboration.
[113] It would be utterly illogical to treat some of what a complainer said as corroborative
(as to the commission of the crime) but some as lacking that quality (anything said in respect
of the identity of the perpetrator). If the statement has the necessary quality to be accepted
as a de recenti statement, as opposed to a subsequent narrative account of facts remote from
the events and after time for reflection, then it has corroborative value, in its entirety. To
54
hold otherwise would be to err in the way described in Lord Advocate's Reference No 1 of 2023,
para 234 which noted:
"The common thread running through the authorities and writings which have been
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 overtechnical 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."
[114] The qualities which make one part of the statement corroborative apply equally to
the whole statement: to suggest otherwise is illogical and impractical. To direct the jury that
evidence of what was said in respect of identification could not be treated as corroborative,
but the rest of the statement could be so treated is likely to lead to grave confusion and
indeed, miscarriages of justice.
[115] The underlying rationale for treating res gestae statements as corroborative is one
which has a parallel in the making of a de recenti statement. Statements made in the course
of the res gestae, in circumstances of involvement in events, are likely to shed light on the
nature and true character of the events in question. Being relatively contemporaneous, the
risk of concoction, distortion, influence from extraneous factors and the like, is minimised.
The jury would be entitled to assess the whole circumstances of the making of the statement,
and if they considered it justified, to accept it for whatever corroborative value it had. The
statement is capable of being considered the product of the emotion generated by
55
association with the events. It is, to paraphrase Lord Fleming in O'Hara v Western SMT, a
statement made when the connection between the speaker and the incident was unbroken.
[116] The connection between an incident and the complainer is likely to persist beyond
the termination of the res gestae. A statement made in circumstances of recency, and which
may reasonably be considered the "natural outpourings of feelings aroused by the recent
injury, and still unsubsided" (Dickson, 3rd edition, para 258, emphasis added). A statement
which does not have the quality of recency, and where that lack is not explained by the prior
absence of a reasonable confidante, will not have corroborative value, since it would
constitute a statement remote in time from the events in question, and made following time
for reflection, distortion, and the like.
[117] Once it is accepted that remarks have the quality of a de recenti statement, their
content is to be considered corroborative, with no distinction as to whether the import bears
on the crime, the identity of the perpetrator or both. As with the res gestae, the jury would
be entitled to assess the whole circumstances of the making of the statement, and if they
considered it justified, to accept it for whatever corroborative value it had, in light of the
directions given by the trial judge.
56
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 43
HCA/2023/24/XM
HCA/2023/25/XM
Lord Justice General
Lord Justice Clerk
Lady Paton
Lord Pentland
Lord Matthews
Lord Boyd
Lady Wise
Lord Armstrong
Lord Beckett
OPINION OF LADY PATON
in the References by
HIS MAJESTY'S ADVOCATE
Appellant
against
PG and JM
Respondents
Appellant: The Lord Advocate (Bain KC), Harvey AD, Scullion, D Blair; the Crown Agent
Respondent (PG): McCall KC, Crowe, Lawrie; Central Court Lawyers, Livingston
Respondent (JM): MD Anderson KC, Cloggie, Loosemore; PDSO
30 October 2024
59
submission may be sustained as a matter of law based on the evidence taken at its highest,
and the accused acquitted.
[123] Should this major safeguard requiring two independent sources in the context of
identification evidence be removed? Depending on the evidence available in any particular
case, answering Question 2 with confirmation that a de recenti statement made by the
complainer can provide corroboration for the complainer's identification evidence would, in
my view, result in such a removal, for the following reasons.
[124] The recent decision Lord Advocate's Reference No 1 of 2023 2024 JC 140 recognised that
the requirement of corroboration of the complainer's evidence concerning the commission of
the crime may be satisfied by the evidence of the complainer taken with the evidence of
others who speak to words uttered by the complainer forming part of the res gestae or a de
recenti statement. However the reasoning underlying Lord Advocate's Reference No 1 of 2023 is
not, in my view, easily transferable to a situation where the complainer makes an assertion
either as part of the res gestae, or in the form of a de recenti statement, or both about the
identity of the perpetrator. The only true "source" of identification in such circumstances is
the complainer. That is one single source. The requirement of corroborative evidence from
a second, entirely independent, source (such as another eyewitness, or circumstantial
evidence, or DNA, or fingerprints) means that there must be a crucial cross-check or
safeguard which provides some protection against the risks of fallible observation on the
part of the complainer, which might lead possibly entirely inadvertently to a case of
mistaken identity and to a miscarriage of justice. With the requirement of corroborative
evidence from a second entirely independent source remaining unsatisfied, either a "no case
to answer" submission would prevent the case ever reaching the jury, or at the very least the
jury would be suitably warned about the need for a suitable cross-check or support for the
60
complainer's identification evidence, and the need to find supporting evidence which they
accept which is extrinsic to the complainer's evidence.
[125] Other jurisdictions may have different rules. But other jurisdictions have different
legal structures (not involving corroboration) and different safeguards. As the Lord Justice
General points out at paragraphs [93] and [37] above:
"The court should be cautious before grafting concepts from other jurisdictions into
the Scots law of evidence. Scots law has its unique concepts, not least the
requirement for corroboration, and different trial procedures. ... [In] England and
Wales ... there [is] a sufficiency test containing a qualitative element ..."
Other systems do not have the unique Scots law safeguard of corroboration. What they do
have are numerous other checks and counterbalances which our criminal legal system does
not have: for example, a requirement of jury unanimity or super majority; or a pre-jury
qualitative assessment of sufficiency.
[126] The Lord Advocate invited this court to hold that a de recenti statement can
corroborate a complainer's testimony both (a) that the crime was committed; and (b) that the
accused committed it. Three arguments were advanced.
[127] First, it was submitted that if there has been a positive identification by the
complainer, very little else is required: Ralston v HM Advocate 1987 SCCR 467 at 472; Ready v
HM Advocate 2009 SCCR 380 at para [13]. I accept that very little else is required: but as the
law stands, that "very little else" has to come from a source independent of the complainer,
and that, in my view, provides a major safeguard. For example, in Ralston, the second
witness who, at an identification parade, picked out someone as being "a man resembling
the assailant", was a second source entirely independent of the complainer.
[128] The second argument for the Crown was that if a de recenti statement can corroborate
the commission of the crime (Lord Advocate's Reference No 1 of 2023) there is no reason in
61
principle why such a statement should not corroborate the identification evidence of the
complainer. I do not agree. Witnesses who can speak to a de recenti statement emanating
from the complainer, are themselves "sources" quite independent of the complainer. They
are describing what they themselves saw and heard, and thus are contributing to a body of
evidence pointing to the fact that a crime was committed. They are separate independent
"sources". By contrast, a de recenti statement naming or describing or indicating or
identifying a perpetrator has only one source for that identification: the complainer. That is,
in my view, the "reason in principle" underlying the difference between the law relating to
evidence concerning the commission of a crime, and the law relating to evidence concerning
the identification of a perpetrator. That "reason in principle" is all the more important when
the well-founded concern about miscarriages of justice arising from mistaken identity is
borne in mind.
[129] The third reason advanced by the Lord Advocate is that prior to the decision in
Morton v HM Advocate 1938 JC 50, the cases of James Gibbs (1836) 1 Swin 263, David Alexander
(1838) 2 Swin 210, and John Barr (1850) Shaw (J) 362 relied on de recenti statements to
corroborate the complainer's evidence of identification. In my view, these authorities do not
provide strong support for the proposition that a de recenti statement can be used as
corroboration of the complainer's identification evidence. Arguably, in Gibbs, identification
evidence was provided by the complainer's evidence supported by circumstantial evidence;
in Alexander, identification was not in issue; in Barr, there was circumstantial evidence of
identity.
[130] McCrindle v MacMillan 1930 JC 56 is a more recent decision involving de recenti
statements being treated as corroborative of the complainer's identification evidence.
McCrindle relied inter alia on a decision McLennan v HM Advocate 1928 JC 39 (where the
62
identity of the perpetrator was not in fact contested). In the later full bench decision Morton
v HM Advocate 1938 JC 50, McLennan was disapproved, and McCrindle overruled. Thus
there is no clear line of authority supporting the Lord Advocate's position. In any event, this
9-judge bench is entitled to overturn or disapprove any or all of these decisions. The
question remains: what approach should this court adopt?
[131] In support of the Crown's contention that a de recenti statement by the complainer
could and should corroborate the complainer's evidence concerning the identity of the
perpetrator, the Crown suggested that any submission to the contrary based on a potential
for a miscarriage of justice was in effect a submission based on "legal policy reasons". It was
pointed out that no other jurisdiction draws a distinction between evidential rules for
identification on the one hand, and for the commission of the crime on the other. Such a
dividing line, it was submitted, would complicate the law of evidence. The accused already
had the benefit of safeguards of disclosure and legal representation.
[132] In my view, the "legal policy reasons" are well-founded. While the risk of
concoction or fabrication may be minimised by the contemporaneous nature of the res gestae
or the recency of a de recenti statement, the risks of mistaken identity (including mistakes
occurring in good faith) remain. Corroboration of identification evidence in the sense of
evidence from other independent sources extrinsic to the complainer provides a salutary
safeguard. Other jurisdictions may not impose the same evidential rule, but they have
different, complex, and comprehensive approaches to the law of evidence, often codified in
modern statutes. The ways in which their laws of evidence have evolved have been shaped
by their particular legal systems. The safeguards adopted vary from jurisdiction to
jurisdiction, and may involve, for example, jury unanimity or super majority, or a pre-jury
qualitative assessment of sufficiency. At present, the Scots legal system relies on
64
[136] I appreciate that I am in the minority. For that reason, I offer an example where
corroboration might play an important role, illustrating the need for corroboration as
outlined in the current Jury Manual (page 9.11/133) where it is stated:
"Corroboration needed for commission and identification
1
The requirement of corroboration is based on the rule that it is unsafe to rely
on the evidence of a single witness. The basic rule is that no-one can be convicted on
the testimony of one witness alone. There are two facts which must be proved by
corroborated evidence: first, that the crime charged was committed, and secondly,
that it was committed by the accused."
[137] What follows is a hypothetical example. At a petrol station late at night, a sole
employee (E) is in charge. He runs out of the building very distressed, shouting to someone
filling their car in the forecourt that he has been held up at gunpoint, robbed, that all the till
money had been taken, the gunman's scarf had slipped, and (as E shouted to the witness in
the forecourt) E had "recognised a local man, Peter Smith". (In fact E was wrong, it was a
case of bona fide mistaken identity, someone who looked similar to the individual named.)
[138] There was indeed a local man named Peter Smith, who, when investigated by the
police, could not satisfactorily account for his whereabouts at the relevant time, or produce
someone who could. On searching and investigating further, the police found nothing
which might incriminate Peter Smith or link him to the locus.
[139] On assessing the evidence, there would be ample corroboration for the first fact,
namely that a crime had been committed: E's behaviour, his distress, his shouted de recenti
statement, the till drawer lying open, the cash gone. However in relation to the second fact
who committed the crime there were no fingerprints; no CCTV footage (the system had
broken down); no item left behind such as the scarf or some other item dropped in haste
which might have traces of DNA; no other eyewitnesses. When the police investigate Peter
65
Smith, nothing incriminating is found. E later identifies Peter Smith at an identification
parade.
[140] If the view is taken that E's de recenti statement is corroboration, emanating from a
second source, the case will proceed to court. But what is the corroboration of E's
identification? Where is the "cross-check"? The only source who actually saw the robber's
face was E. The person in the forecourt did not, and can only speak to what E said, and how
he appeared and behaved, and what could be seen if the till and its surroundings were
examined. If the view is taken that E's de recenti statement is sufficient corroboration of
identification, the defence would be unable to argue a section 97 submission, and the
evidence would go to the jury. The jury might find E entirely credible and reliable, and
proceed to convict.
[141] Such a case may be rare. In most cases there is likely to be supporting forensic
evidence, supporting circumstantial evidence, or some other sort of supporting evidence, all
emanating from sources independent from E, thus providing a cross-check on his
identification of the perpetrator. But in my view there is no principle or precedent which
would justify deeming a de recenti statement such as that illustrated above to be
corroboration of the complainer's evidence about the identity of the person who committed
the crime. The identification (by someone who actually saw the perpetrator's face), and the
statement (about who the perpetrator was), emanate from one and the same individual,
from one and the same witness, from one and the same source.
70
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 43
HCA/2023/24/XM
HCA/2023/25/XM
Lord Justice General
Lord Justice Clerk
Lady Paton
Lord Pentland
Lord Matthews
Lord Boyd of Duncansby
Lady Wise
Lord Armstrong
Lord Beckett
OPINION OF LORD MATTHEWS
in the References by
HIS MAJESTY'S ADVOCATE
Appellant
against
PG and JM
Respondents
Appellant: The Lord Advocate (Bain KC), Harvey AD, Scullion, D Blair; the Crown Agent
Respondent (PG): McCall KC, Crowe, Lawrie; Central Court Lawyers, Livingston
Respondent (JM): MD Anderson KC, Cloggie, Loosemore; PDSO
30 October 2024
[148] I have had the advantage of reading in draft the opinion of your Lordship in the
chair and the concurring opinions of the Lord Justice Clerk, Lord Pentland and Lord Boyd of
Duncansby. I agree entirely. It follows that, for the reasons set out in the opinions I have
71
mentioned, I respectfully disagree with Lady Paton as to the corroborative effect of a de
recenti statement in relation to the identification of the perpetrator. There is nothing which I
can usefully add.
72
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 43
HCA/2023/24/XM
HCA/2023/25/XM
Lord Justice General
Lord Justice Clerk
Lady Paton
Lord Pentland
Lord Matthews
Lord Boyd of Duncansby
Lady Wise
Lord Armstrong
Lord Beckett
OPINION OF LORD BOYD OF DUNCANSBY
in the References by
HIS MAJESTY'S ADVOCATE
Appellant
against
PG and JM
Respondents
Appellant: The Lord Advocate (Bain KC), Harvey AD, Scullion, D Blair; the Crown Agent
Respondent (PG): McCall KC, Crowe, Lawrie; Central Court Lawyers, Livingston
Respondent (JM): MD Anderson KC, Cloggie, Loosemore; PDSO
30 October 2024
[149] I have read in draft the opinions of the Lord Justice General, the Lord Justice Clerk,
and Lord Pentland. I agree with them and would answer the questions in the references as
proposed by the Lord Justice General.
76
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 43
HCA/2023/24/XM
HCA/2023/25/XM
Lord Justice General
Lord Justice Clerk
Lady Paton
Lord Pentland
Lord Matthews
Lord Boyd of Duncansby
Lady Wise
Lord Armstrong
Lord Beckett
OPINION OF LADY WISE
in the References by
HIS MAJESTY'S ADVOCATE
Appellant
against
PG and JM
Respondents
Appellant: The Lord Advocate (Bain KC), Harvey AD, Scullion, D Blair; the Crown Agent
Respondent (PG): McCall KC, Crowe, Lawrie; Central Court Lawyers, Livingston
Respondent (JM): MD Anderson KC, Cloggie, Loosemore; PDSO
30 October 2024
[158] I have read in draft the opinion of your Lordship in the chair and the concurring
opinions of the Lord Justice Clerk, Lord Pentland and Lord Boyd of Duncansby. I agree
entirely.
77
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 43
HCA/2023/24/XM
HCA/2023/25/XM
Lord Justice General
Lord Justice Clerk
Lady Paton
Lord Pentland
Lord Matthews
Lord Boyd of Duncansby
Lady Wise
Lord Armstrong
Lord Beckett
OPINION OF LORD ARMSTRONG
in the References by
HIS MAJESTY'S ADVOCATE
Appellant
against
PG and JM
Respondents
Appellant: The Lord Advocate (Bain KC), Harvey AD, Scullion, D Blair; the Crown Agent
Respondent (PG): McCall KC, Crowe, Lawrie; Central Court Lawyers, Livingston
Respondent (JM): MD Anderson KC, Cloggie, Loosemore; PDSO
30 October 2024
[159] I have read in draft the opinion of your Lordship in the chair and the concurring
opinions of the Lord Justice Clerk, Lord Pentland and Lord Boyd of Duncansby. I agree
entirely.
78
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 43
HCA/2023/24/XM
HCA/2023/25/XM
Lord Justice General
Lord Justice Clerk
Lady Paton
Lord Pentland
Lord Matthews
Lord Boyd of Duncansby
Lady Wise
Lord Armstrong
Lord Beckett
OPINION OF LORD BECKETT
in the References by
HIS MAJESTY'S ADVOCATE
Appellant
against
PG and JM
Respondents
Appellant: The Lord Advocate (Bain KC), Harvey AD, Scullion, D Blair; the Crown Agent
Respondent (PG): McCall KC, Crowe, Lawrie; Central Court Lawyers, Livingston
Respondent (JM): MD Anderson KC, Cloggie, Loosemore; PDSO
30 October 2024
[160] I have read in draft the opinion of your Lordship in the chair and the concurring
opinions of the Lord Justice Clerk, Lord Pentland and Lord Boyd of Duncansby. I agree
entirely.
