Scottish Law Commission (Reports)

Part 6 Evidence and sexual offences

Introduction

6.1      In this Part we consider aspects of the evidential requirements for proving rape and other sexual offences. In the Discussion Paper we gave particular attention to two topics, namely corroboration in the context of sexual offences and sexual history evidence, but we also took brief note of the wider question of the evidence of the bad character of accused persons. After consultation we have decided not to make any recommendations as to reforming the law of evidence in relation to the offences which are within the scope of this project. In saying this we should not be understood as advancing the view that the law of evidence as it relates to sexual offences does not require any examination or assessment. Rather, as we explain below, our conclusion is based on two main fundamental considerations: first, many of the topics which we considered (such as mutual corroboration and character evidence) are better suited for reform across the whole spectrum of criminal offences and not solely in the context of sexual offences; secondly, for topics which are specific (or mainly so) to sexual offences (such as sexual history evidence), the required detailed and thorough analysis cannot be made within the time-scale of this project.

Corroboration and sexual offences

6.2      In the Discussion Paper we examined how the rules on corroboration applied to cases of rape and other sexual offences. We then raised three issues about the possible reform of those rules. After the close of the period for response to the Discussion Paper we identified another aspect of corroboration which may have a particular bearing on the proof of some of the offences which we consider in this Report and on which we now offer some comment. The issues for discussion are:

(1) whether corroboration should be abolished in respect of proof of sexual offences;

(2) whether the law on corroboration by distress should be set out in statute;

(3) whether the law on mutual corroboration (the so-called Moorov doctrine) should be reformed in respect of proof of sexual offences; and

(4) the implications of a rule or rules that corroboration is not required in respect of procedural or incidental facts or of each step of a single course of acting.

Is corroboration necessary for sexual offences?

6.3      In the Discussion Paper we presented a number of arguments for and against removing the corroboration requirement for sexual offences, or at least certain types of sexual offence. Although we did not reach a concluded view on the matter, we were inclined to adopt the position that there should continue to be a requirement of corroboration for proof of guilt in sexual offences. In order to gauge the views of consultees, we posed the question whether corroboration should be abolished for proof of sexual offences, and if so for which offences. The vast majority of our consultees, ranging over a wide spectrum of interests, rejected the idea that corroboration should be removed entirely,^[1] though two respondents suggested that it should not apply in proving the mens rea of rape and similar offences, and two other respondents were of the view that corroboration should not be necessary where the victim of a sexual offence is a child.
6.4      Consultees who opposed abolition of the corroboration requirement gave several reasons for their view. One reason, stressed by many consultees, was the risk of miscarriage of justice if a conviction could proceed on the basis of uncorroborated evidence. A further point was stressed by several groups representing the interests of victims of sexual attacks: allowing convictions in cases where there was no corroborating evidence could result in successful appeals, which in turn might lead to a general perception that all convictions based solely on the word of the complainer are unsound. The overall effect could be to discourage victims from raising allegations that they had been sexually assaulted.
6.5      A fundamental issue, which we stressed in the Discussion Paper, is whether it makes sense to change the law on corroboration solely in respect of sexual offences. If the requirement for corroboration is to be altered or abolished, then that should be considered across the whole range of criminal offences. Moreover the corroboration requirement cannot be isolated from other aspects of the Scottish criminal justice system, such as the rule that a jury verdict of guilty can be based on 8 jurors out a jury of 15 finding for the accused's guilt.^[2] For these reasons we do not favour having special rules, solely for sexual offences, which remove the requirement for corroboration for mens rea or for child victims.

Corroboration by distress

6.6      The doctrine of corroboration by distress applies in other parts of the criminal law of evidence, but in practice it has particular significance in relation to proof of sexual offences. To take the example of the current law of rape, the Crown must prove beyond reasonable doubt (i) that the accused had sexual intercourse with the complainer without her consent (the actus reus) and (ii) that the accused knew that she was not consenting or was recklessly indifferent to whether she consented or not (the mens rea). In other words, there must be corroborative evidence of the actus reus and the accused's mens rea. In the vast majority of cases the accused's mens rea can only be inferred from the facts of the case.^[3] In talking of proof (and corroboration) of the accused's mens rea, what is meant is that there must be evidence of facts from which the inference of the accused's state of mind can be drawn.
6.7      It has long been accepted that evidence from a third party that the complainer was distressed shortly after the time of the alleged rape (known as de recenti distress) can provide corroboration that the complainer had experienced a distressful event shortly before.^[4] However, in itself, the complainer's distress cannot corroborate the identity of accused or the complainer's account of the sexual conduct alleged to have taken place. But if the identity of the accused can be corroborated and there is independent evidence, for example medical evidence, that sexual intercourse took place, evidence from a third party of the complainer's de recenti distress can be significant. If the complainer's evidence was that the accused used force (or the threat of force) in order to have sexual intercourse, evidence of her de recenti distress can corroborate the use of force and the consequent absence of her consent.^[5] In addition, because the accused had resorted to force, evidence of the complainer's de recenti distress could corroborate the inference from her evidence that the accused knew that the complainer did not consent. Put another way, where force is alleged, evidence of the complainer's distress indirectly corroborates the mens rea of the accused.^[6]
6.8      A difficulty arises when the complainer does not allege that the accused used or threatened force in order to have sexual intercourse with her. Instead she maintains simply that she did not consent to having (or continuing to have) sexual intercourse with the accused. Here evidence of the complainer's distress after the alleged rape corroborates her evidence that she found sexual relations with the accused distressful and that she did not consent to the sexual relationship. But in the absence of allegations of violence to compel her to have sexual intercourse, it has been doubted whether evidence of the complainer's distress after intercourse has taken place can amount to corroborative evidence from which it can be inferred that when intercourse began the accused knew that (or was reckless as to whether) the complainer was not consenting.^[7]
6.9      It is thought that as a matter of logic and principle there is no reason why the complainer's de recenti distress cannot corroborate the accused's mens rea.^[8] It depends on what the complainer alleges and the specific context in which the distress is said to have arisen. For example, the complainer may allege that the accused began to have sexual intercourse with her while she was asleep. Evidence of her distress is consistent with the complainer's account of waking up to discover the accused having sexual intercourse and therefore can corroborate her statement that she did not consent to sexual intercourse because she was asleep. As there is now corroborative evidence that she was asleep, there is corroborative evidence of facts from which the jury can infer that the accused knew she was asleep and was therefore unable to consent to having sexual intercourse with him. In this way de recenti distress can indirectly corroborate the accused's mens rea of rape.^[9]
6.10      A similar argument is applicable where the complainer's evidence is that she was incapable of consenting because she was insensible as a result of drink or drugs and was subsequently distressed to find the accused having, or having had, non-consensual sexual intercourse with her. It is thought that the requirement of corroboration of the accused's mens rea would also be satisfied by the complainer's de recenti distress where she alleges that she told him that she did not wish to have sexual intercourse with him but he did so, or continued to do so, without having to use force or threaten to use force against the complainer.
6.11      If de recenti distress can corroborate allegations of force and therefore absence of consent and the inference of the accused's mens rea, it is difficult to see how it cannot corroborate the complainer's evidence that she was incapable of consenting (because she was asleep or insensible through drink or drugs) or had expressly refused consent and the consequent inference that the accused knew that she was not consenting when he had sexual intercourse with her.
6.12      In the Discussion Paper we raised the issue whether reform is needed of this part of the law of evidence. We noted that it would be possible to restate the law of corroboration by distress in statutory form. Such restatement could clarify issues about which there exists doubt or misunderstanding, for example whether distress can corroborate evidence of the accused's mens rea in cases where, in the absence of evidence of force, the complainer alleges that she did not consent. However, we also pointed out that the common law on this topic continues to develop and it might be thought preferable to leave it to the courts to adapt the rules on distress evidence in the light of the facts and circumstances of particular cases.
6.13      There was a division of view among consultees on this issue, with a slight majority in favour of a legislative statement of the law. However, some of those who supported statutory rules made the point that care would have to taken to avoid giving the erroneous message that where a complainer displayed distress only some time after sexual contact or did not show any outward signs of distress, then such a complainer must have consented to the sexual activity. Other consultees who supported legislative restatement in principle noted that there would have to be further consideration, and consultation, on the detail of the proposed rules.
6.14      We have come to the conclusion that at least for the time being the rules on corroboration by distress should remain governed by the common law. Given the present state of the law any statutory rule would have to be in general terms, confirming that distress can in certain circumstances corroborate evidence of the actus reus and the mens rea of rape and other sexual attacks. Whether distress does have this effect in any particular case depends very much on the context in which the distress occurred and this in turn depends on the facts and circumstances of each case. We therefore take the view that the exact scope of any rule on distress as corroboration is best left for the courts to develop.

'Mutual' corroboration: the Moorov doctrine

6.15      There is a general rule of the law of evidence that in certain circumstances where a person is charged with a series of offences, evidence, even from a single source, in respect of any one of those offences can corroborate the evidence in relation to another of them. The rule is not confined to sexual offences but an example of the rule would be where B alleges that she was raped by A. The prosecution cannot go ahead unless there is corroborative evidence of the actus reus and A's mens rea. But if, for example, A is accused of raping C as well as B, then the uncorroborated evidence of C that she was raped by A may corroborate B's evidence that she was raped by A and vice versa. This is known as the Moorov doctrine. In Moorov v HM Advocate, Lord Justice General Clyde explained when the doctrine could be used:^[10]

"Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration, the connexion between the separate acts (indicated by their external relation in time, character, or circumstance) must be such as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign, or adventure which lies beyond or behind – but is related to – the separate acts. The existence of such an underlying unity, comprehending and governing the separate acts, provides the necessary connecting link between them, and becomes a circumstance in which corroboration of the evidence of the single witnesses in support of the separate acts may be found – whether the existence of such underlying unity is established by independent evidence, or by necessary inference from the evidence of the single witnesses themselves, regarded as a whole."

6.16      Thus before the doctrine applies B and C must have been the victim of acts by the accused which are similar in the sense that they demonstrate an underlying unity, for example because of the locus or the nature of the assault. In addition the two acts must normally be close in time. As the two acts are being treated as though they were, in effect, a single course of criminal conduct, both charges must be made on the same indictment.
6.17      It will be clear that the scope of the doctrine is narrow. The accused's acts must take the same or similar form in respect of each victim. The need for the acts to be close in time means that it might not be possible to use the Moorov doctrine in, for example, cases of child sexual abuse where there are gaps of several years between the incidents of alleged abuse on the children concerned. Nor can the doctrine apply where the victim of the related offences is the same person. Finally, where the accused has been previously convicted of a similar offence that conviction cannot be used to establish corroboration by utilising the Moorov doctrine.^[11]
6.18      Even within its narrow compass, the Moorov doctrine can be useful in establishing corroboration of complainers' evidence that they were the victims of rape and other sexual offences. It seems unlikely that the doctrine will be further extended by judicial development.^[12] The issue for consideration is whether and in what ways the Moorov doctrine should be reformed. Unlike corroboration by distress, which in practice is used mainly in relation to sexual offences, the Moorov doctrine has been applied over a wide range of offences. In the Discussion Paper we asked whether there should be changes to the existing law on the Moorov doctrine but we also stated our view that if reform is required, it should not be done only in the context of sexual offences. Although some consultees thought that there were aspects of the law on mutual corroboration which should be re-examined, including the view that the Moorov doctrine should be abolished, there was virtually no support for the idea of reforming the law solely in respect of sexual offences. Accordingly we make no proposals for consideration of the Moorov doctrine in the context of the present project.

Corroboration in respect of procedural or incidental facts or of different parts of a course of acting

6.19      We now examine a further rule, or rules, on corroboration which we did not consider in the Discussion Paper but which may have implications in respect of the proof of some of the offences on which we make recommendations elsewhere in this Report. The law of evidence draws a distinction between essential or crucial facts (facta probanda) and various types of non-essential facts. In criminal trials an important example of this second category are procedural (or incidental) facts. The rule is that whereas corroboration is required in respect of essential facts, there is no need to corroborate procedural or incidental facts. What is less certain is which facts are treated as being procedural or incidental in nature. There is some old authority that where a crime is committed under aggravating circumstances, while the main elements of the offence must be corroborated, no corroboration is needed to prove the aggravation.^[13]
6.20      In the context of sexual offences the most obvious application of this rule is in respect of indecent assault, which has been described as an "assault aggravated by indecency in the manner of its commission."^[14] The rule on corroboration has the effect that while corroboration is needed in respect of proof of the assault itself, none is required of the indecency. For example, where A is charged that he pushed B to the ground and touched B's breasts, provided that there is corroborating evidence of the pushing, A can be convicted of indecent assault solely of the basis of B's evidence as to the touching. We are not convinced that this result is entirely satisfactory. In Part 3 we stated our view that the current law on indecent assault fails to capture the wrong involved in conduct where someone is the victim of a sexual attack (for example, penile penetration of the victim's anus). Characterising the sexual element of the attack as an assault under aggravation fails to capture the violation done to the victim's sexual integrity. Furthermore, it is questionable whether the accused should face not only conviction but also the consequent notification requirements on the basis of uncorroborated evidence as to the sexual element of the attack.^[15] Where A is charged that he pushed B to the ground and penetrated her vagina with his fist, the core element of the offence is the penetration. Yet applying the rule has the effect that this element is merely an aggravation and does not require corroboration.
6.21      Furthermore it is not entirely clear why aggravating circumstances should not be corroborated. In HM Advocate v Davidson,^[16] the court suggested that aggravating circumstances would be difficult to prove if corroboration was required but this argument can apply just as much to the essential facts of many offences. A more fundamental question is why all aggravating circumstances should be treated as procedural facts.^[17] We accept that there are many aspects of the rule about corroboration of aggravating circumstances which are problematic but we are not making any proposals for its reform in this project as the rule has a much wider scope than that of sexual offences. However, we wish to make one comment on the application of the rule to the sexual assault offences which we have recommended in Part 3.^[18] One of the problems of classifying the sexual element in indecent assaults as procedural only is that this so-called aggravating fact is at the core of the offence. Indeed, that is the basis for our recommendation on the offence of sexual assault. If our recommendations on rape and sexual assault were to be implemented, then in our view corroboration would be required to prove the act of penetration, touching etc specified in the charge against the accused. At the same time where rape or a sexual assault is committed with aggravating circumstances, then the rule that no corroboration is required for proof of those circumstances would apply.^[19]
6.22      There is another rule on matters for which corroboration is not required.^[20] Where an offence consists of a single course of conduct involving a number of acts there is no need to corroborate each act. In Campbell v Vannet,^[21] A was charged with striking B, causing her to fall to ground, seizing hold of her, and swinging her about. In addition to B's evidence, there was evidence from another witness that A had struck B with his hand but there was nothing further in respect of the other actings. It was held that that there was sufficient evidence to convict A on the entire charge. The Court justified this conclusion on the basis that the case did not involve two distinct incidents and the matter was "all of a piece".^[22] It is not entirely clear what principle the Court is invoking in this argument but a similar approach has been taken in a case involving sexual touching. In Stirling v McFadyen,^[23] A was charged with lewd, indecent or libidinous practices against B (a 9 year-old girl) in that he induced B to put her hand inside his open trousers and to touch his penis. In addition to B's evidence, evidence was led that when the allegations were put to him, A had responded by saying that he fooled about with children. The court held that this admission was sufficient to corroborate B's evidence but the court also made more general comments that not every item in a charge of assault required corroboration.^[24] A contrasting case is Smith v Lees.^[25] Here the charge was that A used lewd, indecent or libidinous practices towards B (a girl aged 13) by placing his hand on hers and causing her to handle his naked penis. In this case the court expressly pointed out that the placing by A of his hand on B and causing B to touch his penis were both crucial facts which required corroboration.^[26]
6.23      Again, the exact nature and scope of this rule is uncertain. While this rule may require consideration as to possible reform, for the same reasons as apply to the rule about corroboration of aggravating circumstances, we do not explore that issue here. However, we wish to express our views about the possible application of the rule to the new offence of sexual assault which we have recommended in Part 3.^[27] At present it seems to be the law (though the matter is not entirely beyond doubt) that where, for example, as part of one course of acting A penetrates with his penis B's anus and her mouth, and also digitally penetrates her vagina, not every element of this charge requires to be corroborated. If that is so, then we would expect that the same rule would apply to a charge of our proposed offence of sexual assault which narrated such a course of conduct.

Sexual history evidence

6.24      It is a striking feature of sexual offence trials, and rape trials in particular, that there is often a sense of the victim being on trial as much as the accused.^[28] If the accused claims in defence that the complainer consented to the act, then questioning in court is focussed upon whether the complainer was likely to have consented. The complainer may face cross-examination aimed at showing that although she claims she did not consent, she did in fact consent or her behaviour was such that it was reasonable for the accused to believe that she consented. This is likely to involve adducing evidence which intrudes upon the complainer's private life.
6.25      It is clear that the law has to give due weight to the interests of the complainer in a sexual offence trial.^[29] Yet it is inherent in an adversarial system of criminal justice that, by pleading not guilty, inevitably the accused is challenging the truth of the complainer's allegations. In cross-examination of the complainer, counsel for the defence can seek to undermine the reliability of her testimony and suggest that the complainer is not to be believed. But as a general rule an accused cannot impugn the credibility of a Crown witness by producing collateral evidence of her character, for example extracts of previous criminal convictions. Similarly, the Crown cannot attack the credibility of defence witnesses by collateral evidence of their bad character. In Scots law, an accused is not obliged to give evidence. If he should choose to do so, however, an accused is also protected by the rule on the inadmissibility of collateral evidence. Accordingly, in general terms the Crown cannot adduce evidence of the accused's previous criminal convictions.^[30]
6.26      At common law an important exception was made to the general rule that collateral evidence of a witness's bad character was inadmissible. In rape cases it was open to the accused to bring evidence of the complainer's bad moral character in order to undermine her credibility: ^[31]

"It is for the [accused] to show that at the time when the offence is said to have been committed, the woman was of loose and immoral character, not as a matter of defence, but as bearing very materially on the effect of the evidence on the minds of the jury. The law has done wisely in making an exception in the case of rape from the general rule, that you cannot raise up a collateral issue, and allow a proof of a witness' character and repute."

6.27      After the Criminal Evidence Act 1898,^[32] where an accused had attacked the character of a Crown witness, it became possible for the prosecution to seek to impugn the character of the accused. However, this rarely applied in cases of rape where the courts continued to allow the accused immunity from disclosure of previous convictions if his defence necessarily involved casting aspersions on the moral character of the complainer.^[33] At a time when sexual impropriety was severely frowned upon, a rule under which the sexual character of the complainer could be attacked in this way must have discouraged women from making a complaint.
6.28      An attempt to strike a better balance was made by the introduction of rules on evidence in trials of certain types of sexual offence in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.^[34] Evidence for the accused relating to the complainer's sexual history was prohibited.^[35] But the accused could apply to the court to allow such evidence to be adduced on the following grounds:

(i) in order to explain or rebut evidence led or to be led by someone other than the accused;

(ii) where such evidence related to the events at the core of the charge against the accused or the defence of incrimination; or

(iii) it would be contrary to the interests of justice to exclude such evidence.

6.29      However, research established that evidence of a complainer's sexual history continued be adduced in circumstances which were not justified under the Act.^[36] After consultation,^[37] the sexual evidence provisions of the Criminal Procedure (Scotland) Act 1995 were amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002. ^[38]
6.30      The starting point of the provisions of the 2002 Act is a prohibition on evidence that the complainer is not of good character, including her sexual history, or that she had at any time engaged in sexual behaviour not forming part of the subject matter of the charge.^[39] Nor can evidence be admitted that the complainer at any time (other than at or about the time of the acts at the basis of the charge) engaged in any non-sexual behaviour that might found an inference that the complainer is likely to have consented to those acts or that she is not a credible or reliable witness.
6.31      However, on an application in writing by either party made to the court not less than 14 clear days before the trial, the court may allow such evidence to be admitted if satisfied that:^[40]

"(a) the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating (i) the complainer's character; or (ii) any condition or predisposition to which the complainer is or has been subject;

(b) that occurrence or occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and

(c) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited."

The 'proper administration of justice' includes appropriate protection of a complainer's dignity and privacy.^[41]

6.32      It will be clear that the grounds for the admission of evidence of the complainer's sexual character and sexual history are relatively narrow and involve balancing the accused's right to a fair trial against the complainer's right to dignity and privacy. Early case law seemed to suggest that the courts were still reluctant to refuse to admit evidence if it appeared to be pertinent to the accused's defence.^[42] However, if an application is successful, the prosecutor must place before the presiding judge any relevant previous conviction of the accused: and unless the accused objects the previous convictions will be laid before a jury.^[43] The grounds upon which the accused can object are limited but include the absence of a substantial sexual element in the previous offence and that disclosure of a previous conviction would be contrary to the interests of justice. In considering the latter, it is to be presumed that disclosure is in the interests of justice. It appears, however, that it is not too difficult to rebut this statutory presumption and that the decision whether or not disclosure would be contrary to the interests of justice is to be left to the discretion of the trial judge. The provisions have been held to be compatible with article 6 of the European Convention on Human Rights. ^[44]
6.33      There is no doubt that the rules introduced by the 2002 Act were intended to find an appropriate balance between the complainer's right to dignity and privacy and the accused's right to a fair trial. In the Discussion Paper we noted that a study of the operation of these provisions had been undertaken on behalf of the Scottish Executive. We took the view that further consideration of the law on sexual history should not be made until the results of that research became available. Moreover, the likely timetable for publication of the research findings was such that any review of the law could not be done as part of our project. Consultees expressed broad, though not unanimous, agreement with our approach.^[45] In fact, the findings of that study were published when the preparation of this Report was at an advanced stage, and unfortunately we have been unable to give detailed consideration to its findings.^[46]

Further topics in the law of evidence

6.34      In the Discussion Paper, we took note of two other topics in the law of evidence which were possibly relevant to this project. These were similar facts evidence and the use of previous convictions.
6.35      Each of these aspects of the law of evidence is concerned with the general principle that evidence of the bad character of an accused person is inadmissible. The rationale of this principle is that the potential prejudice to the accused which such evidence may bring outweighs its probative value. However, there are various exceptions to this principle. One, which is recognised in some common law systems, is the so-called similar facts rule. Under this rule, evidence is admissible where it relates to conduct of the accused, at some time other than the acts he is charged with, which shows his propensity or disposition to engage in misconduct. One category of this type of evidence is evidence that the accused had previously behaved in a way strikingly similar to his behaviour at the time of the alleged offence.^[47] Although this rule looks like the Moorov doctrine, it is not concerned with corroboration. Similar fact evidence does not appear on the same indictment or complaint and acts as direct proof of the charge currently facing the accused. It is worth noting that some commentators have argued that the Scottish courts have applied a form of similar facts evidence, though its exact nature and scope are uncertain.^[48]
6.36      A particular example of similar facts evidence is where the accused has previously been charged or convicted of the same sort of offence. It is obvious that leading evidence of previous charges or convictions would often be highly relevant in proving the commission of a later offence of the same or similar type. However, the general rule of Scots law is that evidence that the accused has previously been charged or convicted is so prejudicial that it is not admissible.^[49] There are various exceptions to this rule. Evidence of a previous conviction is allowed where it is an essential component of the crime for which the accused is charged.^[50] A previous conviction may also be disclosed where the accused's character becomes an issue in court. Where the accused asks questions or leads evidence showing that he is of good character, or where his evidence impugns the character of the complainer, prosecutor or other witnesses, application may be made to the court to disclose his convictions. Furthermore, in a sexual offence case, if the accused succeeds in an application to lead evidence about the sexual history of the complainer his previous convictions must be laid before the jury, unless the court considers that disclosure would not be in the interests of justice.^[51]
6.37      It is clear that both similar fact evidence and the use of any previous charges and convictions would have an impact on trials of sexual offences. However, in the Discussion Paper we were not inclined to include these topics as part of this present project. In the first place, neither of these topics could properly be restricted to proof of sexual offences only. Each has implications for the general law of evidence in criminal cases. Secondly, we doubted whether similar fact evidence and use of previous charges and convictions should be considered as isolated parts of the law of evidence. Each of these doctrines is part of a much wider issue, namely the extent to which the accused's character can be used as evidence against him. In England and Wales the common law rules on similar fact evidence have been abolished. Instead, the Criminal Justice Act 2003 contains extensive provisions which allow the admission of 'bad character' evidence, (which includes previous convictions).^[52] These provisions implemented recommendations of the Law Commission, who had conducted a detailed and comprehensive survey of this major part of the law of evidence.^[53] We were of the view that any reform of Scots law in this area should be done in a similarly comprehensive way rather than in a piecemeal fashion. Accordingly we concluded that any consideration of the law relating to the character of a person accused of a sexual offence should be conducted as part of a wider review of the law of evidence. There was broad agreement on this matter among consultees and we make no further comment on it.

Note 1   Only seven of the 52 consultees who responded to this issue favoured abolition of corroboration, though some expressed uncertainty.    [Back]

Note 2   In the Discussion Paper we pointed out that in some legal systems, such as England and Wales, which do not have a requirement of corroboration, a jury cannot return a verdict of guilty unless at least 10 members of a jury of 12 agree that verdict.    [Back]

Note 3   Spendiff v HM Advocate 2005 SCCR 522: "The characterisation of mens rea as an inferential fact in a common law crime is hardly surprising or unusual. It can seldom be anything else." (Lord Penrose at 534.)     [Back]

Note 4   Smith v Lees 1997 JC 73 at 80 (Lord Justice General Rodger).    [Back]

Note 5   Ibid.    [Back]

Note 6   Before the Lord Advocate's Reference (No 1 of 2001) 2002 SLT 466 the reasoning in respect of corroboration of the accused's mens rea was largely implicit in the case law as force or the threat of force constituted part of the actus reus of the crime of rape. If force could not be established the crime was not rape: if it was established, the accused's mens rea would be readily inferred.     [Back]

Note 7   McKearney v HM Advocate 2004 JC 87 (Lord Justice Clerk Gill at 91). Lord Gill's views are clearly obiter.     [Back]

Note 8   J Chalmers, "Distress as Corroboration of Mens Rea" 2004 SLT (News) 141. For a contrasting view see M E Scott QC, "Redefined Rape and the Difficulties of Proof" 2005 SLT (News) 65.    [Back]

Note 9   Spendiff v HM Advocate 2005 SCCR 522. It should be noted that Lord Justice Clerk Gill was a member of the Court in this case although the opinion of the Court was given by Lord Penrose. See also Fox v HM Advocate 1998 JC 94 (a clandestine injury case where force was not used as the victim was asleep: this would, of course, now be treated as rape). It is open to the accused to argue that he honestly believed that the complainer would have consented if she had been awake, for example, if she had agreed to have sexual intercourse with him shortly before she went to bed and fell asleep. In McNairn v HM Advocate 2005 SLT 1071, the trial judge took the view that evidence of the accused's distress could not corroborate the complainer's account that she had been asleep or apparently asleep at the time of the intercourse and could not corroborate the accused's mens rea. On appeal, under reference to Spendiff, the Court rejected the proposition that evidence of distress could not in any circumstances be relevant to the issue of mens rea but did not rely on such evidence for the purpose of the appeal.    [Back]

Note 10   1930 JC 68 at 73.    [Back]

Note 11   For discussion of possible changes to the law relating to the use of an accused's previous convictions as evidence see paras 6.34-6.37.    [Back]

Note 12   See for example Johnstone v HM Advocate 2004 SCCR 727, 732 (para 8) (Lord Justice General Cullen).     [Back]

Note 13   HM Advocate v Davidson (1839) 2 Swinton 447 (charge of theft by housebreaking: fact that house was locked need not be corroborated); HM Advocate v Cameron (1841) 2 Swinton 630 (charge of theft by opening lockfast places: no corroboration required that chest contained the goods stolen).    [Back]

Note 14   Grainger v HM Advocate 2005 SCCR 175, 179 (Lord Justice Clerk Gill).    [Back]

Note 15   See Sexual Offences Act 2003, Sch 3, para 40 which lists 'indecent assault' as one of the offences conviction for which triggers the notification requirements. Here, as with other statutory references to the offence, indecent assault is treated as an offence in its own right and not as an assault with aggravating circumstances.    [Back]

Note 16   (1839) 2 Swinton 447, 448 (Lord Justice Clerk Boyle).    [Back]

Note 17   The distinction between essential and non-essential facts has been questioned by commentators. See, for example, Davidson, Evidence (2007), p 669: "There appears to be no satisfactory basis on which to distinguish procedural from crucial facts."    [Back]

Note 18   See paras 3.36-3.47.    [Back]

Note 19   A possible example is a sexual offence committed in racially aggravating circumstances as defined in the Crime and Disorder Act 1998, s 96(2). The 1998 Act repeats the common law rule that this type of aggravation does not require corroboration.    [Back]

Note 20   This rule may simply be a different formulation of the rule just discussed. However, we treat it as a separate rule as the authorities for each are different and each has a separate logic.     [Back]

Note 21   1998 SCCR 207.    [Back]

Note 22   Ibid at 209B.    [Back]

Note 23   2000 SCCR 239.    [Back]

Note 24   Ibid at 242A-B: "Counsel's submission was the factum probandum in this case had to be corroborated specifically and this was not done. If what this means is that there must be specific evidence of each fact in a narrative of indecent assault, then plainly we cannot agree with that proposition. The question is whether there is corroborated evidence of an indecent assault. If so then it is not necessary to corroborate each individual item."     [Back]

Note 25   1997 JC 73.    [Back]

Note 26   1997 JC at 79E; 107F-G; 109H; 112A-B. The issue in this case was whether B's distress corroborated her evidence as to each of these facts. The court stressed that this was a difficult issue on the facts of the case. In these circumstances, it would have been surprising, if corroboration were not required of any part of the charge, that the court made no mention of it.     [Back]

Note 27   See paras 3.36-3.47.    [Back]

Note 28   This was noted by, for example, the Heilbron Committee, Report of the Advisory Group on the Law of Rape, Cmnd 6352 (1975), at para 91: "we have come to the conclusion that, unless there are some restrictions, questioning can take place which does not advance the cause of justice but in effect puts the woman on trial." It is also supported by research such as G Chambers and A Millar, Prosecuting Sexual Assault (Scottish Office Central Research Unit, 1986) and B Brown, M Burman and L Jamieson, Sex Crimes on Trial: The Use of Sexual Evidence in the Scottish Courts (1993).     [Back]

Note 29   For example, the European Commission of Human Rights made the following comment concerning the subjection of witnesses in sexual offence cases to intrusive questioning: "In the assessment of the question whether or not in such proceedings an accused received a fair trial account must be taken of the right to respect for the victim's private life." (Baegen v The Netherlands App No 16696/90, 20 October 1994, para 77.)     [Back]

Note 30   There are some exceptions to this rule where the previous conviction is an essential component of the offence of which the accused is charged: for example, in order to prosecute a charge of driving while disqualified it is necessary to disclose that the accused had previously been convicted of a driving offence for which he was disqualified from driving.    [Back]

Note 31   HM Advocate v Reid (1861) Irvine 124 at 129 (Lord Justice Clerk Inglis). The evidence of bad character could only be adduced if it related, or was continuously linked, to the time of the alleged offence. Thus evidence could be led that the complainer associated with prostitutes (HM Advocate v Webster (1874) Arkley 269); had sexual relationships with third parties where that was part of the events surrounding the act charged against the accused (Dickie v HM Advocate (1897) 2 Adam 331); evidence that the complainer had a sexual relationship with the accused before or after the alleged rape was not permitted unless it related to sexual relations which took place a short time before the alleged sexual attack (HM Advocate v Blair (1844) 2 Broun 167). The restrictions laid down in these rules came to be ignored in practice.    [Back]

Note 32   The provision is now s 266 of the Criminal Procedure (Scotland) Act 1995.     [Back]

Note 33   It is now settled as a matter of general law that allowing the accused immunity from disclosure is for the discretion of the court: Leggate v HM Advocate 1988 JC 127.     [Back]

Note 34   The 1985 Act added new sections to the Criminal Procedure (Scotland) Act 1975. The provisions of the 1975 Act were consolidated in the Criminal Procedure (Scotland) Act 1995.     [Back]

Note 35   There was no restriction on the Crown adducing evidence of the complainer's sexual history, for example, that the complainer and the accused had lived together.    [Back]

Note 36   B Brown, M Burman and L Jamieson, Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials (1992). It appears that in some cases such evidence was being admitted without any application by the defence to the court to allow them to do so. Even when an application was made and permission granted, the evidence was used to undermine the complainer's credibility and where she had been promiscuous that this implied that she had consensual sexual intercourse with the accused. There was also the problem that evidence which did not directly involve the complainer's sexual behaviour was being used in subtle ways to imply that she was of bad sexual character.     [Back]

Note 37   Scottish Executive, Redressing the Balance: Cross-Examination in Rape and Sexual Offence Trials (2000).     [Back]

Note 38   Criminal Procedure (Scotland) Act 1995, ss 274-275B (as added by the Sexual Offences (Protection and Evidence) (Scotland) Act 2002).     [Back]

Note 39   1995 Act, s 274 (as amended).     [Back]

Note 40   Ibid, s 275.    [Back]

Note 41   Ibid, s 275(2)(b)(i).    [Back]

Note 42   Cumming v HM Advocate 2003 SCCR 261; Kinnin v HM Advocate 2003 SCCR 295. The provisions have been held to be compatible with article 6 of the European Convention on Human Rights: MM v HM Advocate 2005 1 JC 102.     [Back]

Note 43   Criminal Procedure (Scotland) Act 1995, s 275A.    [Back]

Note 44   DS v HM Advocate 2006 JC 47 (HCJ); 2007 SCCR 222 (PC).    [Back]

Note 45   Two consultees argued that we should conduct a thorough review of law on sexual history evidence without waiting for the findings of the research study. A number of individual consultees stated that the provisions restricting the use of such evidence should be abolished.     [Back]

Note 46   Michele Burman, Lynn Jamieson, Jan Nicholson and Oona Brooks, Impact of Aspects of the Law of Evidence in Sexual Offence Trials: An Evaluation Study (Scottish Government Social Research, 2007).    [Back]

Note 47   The classic example is Makin v Attorney General for New South Wales [1894] AC 57. The accused were charged with the murder of a baby which they had fostered and whose body was found buried in their back yard. The prosecution sought to lead evidence that the accused had already fostered other babies, whose bodies had been buried in the gardens of previous houses in which they had lived.     [Back]

Note 48   P Duff, "Towards a Unified Theory of 'Similar Facts Evidence' in Scots Law" 2002 Jur Rev 143; F E Raitt, "The Evidential Use of 'Similar Facts' in Scots Criminal Law" (2003) 7 Edin LR 174.     [Back]

Note 49   Criminal Procedure (Scotland) Act 1995, s 266(4).    [Back]

Note 50   For example, it is intrinsic to the offence of driving while disqualified that the accused had a road traffic conviction which led to the disqualification.    [Back]

Note 51   Criminal Procedure (Scotland) Act 1995, s 275A. See para 6.32.    [Back]

Note 52   Bad character evidence is evidence of misconduct or a disposition towards misconduct (Criminal Justice Act 2003, s 98), and 'misconduct' is defined as "the commission of an offence or other reprehensible behaviour" (ibid, s 112(1)).     [Back]

Note 53   Law Commission, Report on Evidence of Bad Character in Criminal Proceedings (Law Com No 273 (2001)).    [Back]