Criminal court: Boundaries of corroboration

There have been two significant developments since my last article.

The first is the seven judge decision in Reference by HM Advocate v CLB [2023] HCJAC 40 (“CLB”), which overruled Smith v Lees 1997 JC 73 and Cinci v HM Advocate 2004 JC 103 on the role of distress in proof of a crime, and disapproved obiter dicta in Morton v HM Advocate 1938 JC 50 on de recenti statements so far as bearing on proof of a crime.

In a journey from the institutional writers Hume, Burnett and Alison through the past authorities, textbooks and Commonwealth and Irish cases, the High Court clarified what corroboration means in the law of Scotland. The twists and turns in the development of the law are clearly set out at paras 1-151 and it makes comprehensive and interesting reading.

The second is the Scottish Sentencing Council guideline on Statutory offences of causing death by driving, approved by the High Court on 31 October and applying to all offenders sentenced on or after 16 January 2024 who have been convicted of causing death by dangerous driving; causing death by careless driving when under the influence of drink or drugs; causing death by careless, or inconsiderate, driving; and causing death by driving: unlicensed, uninsured, or disqualified drivers. This is the first offence-focused guideline as opposed to setting out general sentencing principles. I hope to consider it in a future article, but draw attention to its existence now.

Effect of CLB

In CLB, the Lord Advocate referred two questions to the court following a majority not proven verdict on an accused charged with assault and rape by supplying the complainer with alcohol and an unknown substance at his flat, rendering her heavily intoxicated, and then assaulting her.

Evidence was led from the complainer’s boyfriend and another witness of the complainer’s distressed state immediately following the alleged incident, and of statements by her that she had been raped and that the accused was responsible.

The trial judge directed the jury that if they accepted that the complainer’s distress was genuine, it could both corroborate her lack of consent and support her general credibility, but it could not of itself corroborate that penetration had occurred; and that the complainer’s de recenti statements could not corroborate her testimony about what had happened.

The Lord Advocate asked whether (1) the trial judge erred in directing the jury that distress of itself could not corroborate a complainer’s direct testimony that penetration had occurred; and (2) independent evidence of distress was sufficient to corroborate a complainer’s direct testimony that penetration had taken place.

In consequence of CLB, not only in rape but in other cases too, distress shown by a complainer shortly after an alleged incident, which the factfinder is satisfied arose spontaneously due to the nature of the incident and is genuine, can corroborate a complainer’s direct testimony, including testimony of penetration in a rape case; and there is a role for de recenti statements, the extent of which may merit further consideration in a suitable case.

At the moment, in terms of para 239 of the opinion: “the value of a de recenti statement depends on the context in which it occurs. Where it occurs in the context of observed distress, the statement has corroborative value in enhancing and strengthening the corroborative effect of the distress; and… in any event, a de recenti statement alone is evidence which reflects favourably on the reliability and credibility of the complainer as showing consistency of approach from a moment close to the events in question”.

Looking back, for a moment, to Jamal v HM Advocate 2019 SLT 479, Lord Justice General Carloway said at para 20: “There is no sound reason for restricting the availability of corroboration of the act of rape to the type of scientific, medical or other evidence set out above. In relation to penetration, corroboration can be found in facts and circumstances which ‘support or confirm’ the direct testimony of the commission of the completed crime by the complainer (Fox (Richard John) v HM Advocate, LJG (Rodger) at 1998 JC, p 100…). In a situation in which rape is alleged, a broad approach should be taken. It has been said that distress may not be capable of corroborating an account of the acts which caused that distress. This was conceded by the Crown in Smith v Lees (LJG (Rodger) at 1997 JC, p 79…). Accepting for present purposes that the concession was well made, care must still be taken not to eliminate distress, especially if it is of an extreme nature, as a significant factor which, at least when taken with other circumstances, ‘supports or confirms’ a complainer’s account that she was raped in the manner which she has described. Thus there will be many situations, such as dishevelment or loss of clothing, where direct testimony of rape, in whatever form, can be seen as being corroborated when all the surrounding facts and circumstances are taken into account.”

The words “accepting for present purposes” that a Crown concession was properly made are significant, as is the remainder of the paragraph in providing a foretaste of things to come. When I first read Jamal, I realised that Smith was living on borrowed time, and its fate was inevitable at the hands of a modern interpretation of existing law.

Principles applied

CLB relies on and clarifies well established principles that have to some extent, and from time to time, been misinterpreted. Taking centre stage in Jamal and CLB is Fox v HM Advocate 1998 JC 4, which is authority for the proposition that corroborative evidence is evidence which supports or confirms the direct evidence of a witness.

Also pivotal is the concept of a case either wholly or partly circumstantial:

• The evidence in a circumstantial case must be looked at as a whole. Each piece does not need to be incriminating in itself. What matters is the concurrence of testimonies. Whether a single piece of evidence, or a number of pieces of evidence are incriminating or not is a matter which can only be judged in the whole circumstances taking all the evidence together.
• Corroboration is to be found in the cumulative effect of evidence.
• The nature of circumstantial evidence is such that it may be open to more than one interpretation, and it is the role of the factfinders to decide whether the inference of guilt is drawn.
• It is open to the factfinders to reject evidence, e.g. alibi evidence, because it is inconsistent with other evidence they have decided to accept. Factfinders are entitled to reject evidence which is inconsistent with the guilt of an accused precisely because it was inconsistent with circumstantial evidence pointing to guilt which they had decided to accept.

The general approach is set out in the five judge decision in Al Megrahi v HM Advocate 2002 JC 99 at paras 31-36. The propositions set out are also supported in Mitchell v HM Advocate 2008 SCCR 469 at paras 91 and 106, and Gage v HM Advocate [2006] HCJAC 7 at para 75.

The significance of proof of the “crime” from different “sources” of evidence, heralding the approach to corroboration set out in CLB, can also be seen in the opinion in the Crown appeal from the Sheriff Appeal Court under s 194ZB of the Criminal Procedure (Scotland) Act 1995, HM Advocate v Taylor [2019] HCJAC 2, where at para 18, referring to Wilson v HM Advocate 2017 JC 64, it was stated: “The crucial facts… the commission of the crime and the identity of the perpetrator, must be proved by evidence ‘from at least two separate sources’. The principle of mutual corroboration is not an exception to this, but an example of it where, in the case of charges involving a course of criminal conduct, ‘the testimony of one witness concerning one charge may corroborate, and be corroborated by, testimony of another witness speaking to another charge linked with it in time, character and circumstance’. There is no suggestion in that passage that the application of the principle is limited to cases where there is more than one complainer. What is required is that there be more than one source of evidence capable of providing the requisite corroboration.”

In Gal v PF Edinburgh [2022] SAC (Crim) 1, the Sheriff Appeal Court upheld a conviction for forcing open a lockfast staffroom door and stealing a quantity of cash. It was held that it was not necessary for proof of theft for there to be evidence from two separate sources, each describing the precise nature of the missing item and its disappearance. The complainer’s evidence was clear and there was sufficient supporting/confirmatory evidence to prove the crime and that it was committed by the appellant.

A note of appeal to the High Court was lodged, but leave to appeal was refused at first and second sift. At second sift, it was made clear that the nature of corroboration had been misunderstood, and that there was clear evidence from the complainer with supporting/confirmatory evidence primarily from CCTV footage that the theft of money had taken place and that the accused was the perpetrator, i.e. evidence of the crime alleged and the identity of the perpetrator.

In CLB, the court’s starting point was Hume (ii, 383): “no one shall in any case be convicted on the testimony of a single witness”. At para 191 the court states: “In any criminal case there requires to be more than the testimony of one witness, but there need not be two eyewitnesses speaking to the case against the accused. A sufficiency may be derived either from facts and circumstances, spoken to by another witness, which ‘confirm the story’ given by the one eyewitness, or alternatively from a combination of facts and circumstances alone, provided that there are at least two witnesses in the case. Two questions, which arise from these two situations, have continued to perplex judges and practitioners. They can be spelled out relatively simply. First, in a case where there is only one eyewitness, as will often be the position in sexual offences, what must the surrounding facts and circumstances, which must be spoken to by one or more witnesses (other than the complainer), actually do? Is it necessary to look at these facts and circumstances in isolation and decide whether they point towards the guilt of the accused? Alternatively, is it enough that the facts and circumstances, when taken together, support or confirm the eyewitness’s testimony? Ultimately, as will be seen, it is the alternative that is correct. Secondly, in a wholly circumstantial case, it is clear that the facts, when interlinked, must point to the guilt of the accused”.

From paras 194-206 and 234-236, it is clear that what is required is corroboration of the “case”. There may for example be two eyewitnesses, or one eyewitness whose testimony is supported by facts and circumstances so as to prove the case as a whole, or the case may be wholly circumstantial; it is not individual facts that require to be proved by evidence from more than one source, it is proof of the crime as a whole that is important and the corroboration required is corroboration of the crime and who it was committed by.

Focusing on rape cases, and applying the reasoning and logic in Fox, what is required is evidence supporting or confirming the complainer’s account, and there is no reason why distress should not be regarded as supporting or confirming the complainer’s account, including her account of penetration without consent (CLB, paras 207-221 and 234-236).

Next step

Why Cinci met the same fate as Smith can easily be understood from the factual matrix of that case and the reasoning succinctly stated at para 230 of CLB: “In Cinci the evidence might reasonably be described as overwhelming… finding that a statement of a naked woman, who was ‘scrunched up’ in the corner of a shower in which the appellant was still present and also naked, that ‘he raped me’ was not evidence of the fact of rape defies common sense, as did, at that time, the idea in Cinci that the ‘mens rea’ of the appellant was not proved. The trial judge’s directions on treating the complainer’s statements as an extension of the res gestae were correct.”

It is worth noting that in O’Shea v HM Advocate 2015 JC 201, the court held that any witness can speak to statements forming part of the res gestae and it is for the factfinder to determine the parameters of the incident so far as the application of the res gestae is concerned. That is the point being made about the trial judge’s directions. What was said should have been determined to have been part of the res gestae, on a proper understanding of the endpoint of the incident in Cinci.

For the moment, then, if my understanding of CLB is correct, in the search for corroboration of the case and identification of the perpetrator, available are the res gestae, the parameters of which are for the factfinder, we have distress itself, and we have distress not forming part of the res gestae but intrinsically supported by de recenti statements.

The next logical step, given the reasoning in CLB, is for the High Court to consider whether de recenti statements on their own without distress, not forming part of the res gestae, can provide corroboration of the case. There is an argument to be made, which no doubt will now be made when a suitable case arises, given what can be seen as an invitation by the court (paras 223-226).

For those who see CLB as revolutionary rather than evolutionary, a clear foundation exists for evolution, applying well established principles going back to the institutional writers, principles which are clear and simple and applied since Fox in the courts day in and day out.