The not proven verdict and related reforms: consultation

Annex C: Recent Developments Regarding the Corroboration Rule

Development of the rule of mutual corroboration

The law in relation to the requirement of corroboration has continued to develop since the publication of the Carloway Review in 2011, in particular as regards the application of the doctrine of mutual corroboration. “Mutual corroboration” is a rule in law which means that evidence of separate offences can be used to corroborate each other, when certain criteria are met.^[22] For example, it might mean that the evidence of one witness that they have been sexually assaulted by the accused person, can be used to corroborate the evidence of another witness that they have also been sexually assaulted by the accused person (and vice versa).

In 2013, the case of MR v H. M. Advocate confirmed that offences which might be seen by some as “less serious” (such as an offence that doesn’t involve penetration) can corroborate a “more serious” offence (such as an offence that involves penetration).

Sometimes during a trial for a sexual offence, a question comes up as to whether the accused reasonably believed that the complainer was consenting. In 2019, in the case of Maqsood v H. M. Advocate, the Court confirmed that the prosecutor does not have to corroborate the fact that the accused did not have reasonable belief in consent – this can be inferred from other facts and circumstances which are proven in the course of trial. For example, it can be shown through evidence that the complainer was obviously intoxicated and therefore the accused would have known the complainer was not consenting. This decision is particularly important in cases where physical force has not been used by the accused.^[23]

In 2019, the case of Jamal v H. M. Advocate confirmed that in an allegation of rape, penetration does not have to be corroborated by medical or scientific evidence: a broad, holistic approach should be taken and corroboration can be found in other facts and circumstances which support or confirm the direct evidence of the complainer, for example, evidence of dishevelment or loss of clothing.

Additionally, the Court also confirmed that it is possible that evidence of a non-penetrative sexual offence (such as sexual assault) may corroborate evidence of a penetrative sexual offence (such as rape).

It remains the position that distress cannot corroborate penetration, as set out in the case of Smith v Lees. The case of Jamal, however, confirmed that evidence of distress should not be disregarded, as it can still play an important role when taken alongside other circumstances that support or confirm the complainer’s evidence. This is particularly so when the evidence is that the distress was of an extreme nature.

Evidence of a complainer’s distress may also provide supporting evidence regarding the accused’s state of mind and whether they reasonably believed the complainer was consenting.

Also in 2019, HMA v Taylor^[24] clarified both that the doctrine of mutual corroboration does not necessarily require the criminal conduct to be directed towards more than one complainer and that corroboration by mutual corroboration could be established within a single charge provided that there are sufficient similarities between the instances of criminal behaviour.

When prosecutors rely on the doctrine of mutual corroboration to prove a case, they have to show that the offences are linked by time, character and circumstance so that it can be said that the offences amount to a single course of conduct with each individual offence corroborating the other(s). Where there is a significant gap in time between the individual offences, for example, seven or more years, there also has to be “special, compelling or extraordinary circumstances” for mutual corroboration to be possible.^[25] The Court has, however, confirmed that where a case involves sexual abuse of children by adults, this is in itself a special, compelling or extraordinary circumstance which is sufficient for the doctrine of mutual corroboration to apply, even where there is a lengthy gap in time between the individual offences.^[26]

Since the decision in Jamal, in particular, cases are proceeding on the basis of the broader approach recommended. It is important to note, however, that it remains crucial to weigh the evidence as a whole and it cannot be said, for example, that the presence of a single piece of circumstantial evidence will be considered sufficient to corroborate the account of the complainer, in the absence of other compelling facts and circumstances. The decision in each of these cases removed significant barriers to the effective prosecution of allegations involving sexual offending in Scotland.

The use of dockets

During a criminal trial, prosecutors cannot (as a general rule) lead evidence of criminal behaviour that the accused person has not been charged with. There are a few exceptions to this rule but of particular relevance, is the law relating to “dockets” in sexual offence cases.

A “docket” is a type of legal document which allows prosecutors to lead evidence of behaviour which isn’t included in the charges against the accused person. The purpose of leading such evidence is that it may be capable of corroborating the charge(s) against the accused person, even though there isn’t enough evidence to charge the accused person with the behaviour in the docket. This might be, for example, because the conduct in the docket would constitute an offence but the statutory time-limit for prosecution of the offence has passed (it is ‘time-barred’) or because the accused has previously been tried for the behaviour.

The use of dockets sometimes means that a person can be convicted of a sexual offence where there would otherwise have not been enough evidence to corroborate the charge. For example, if a complainer gives evidence about a sexual offence which took place in Scotland, this could be corroborated by evidence of another witness that similar behaviour happened to them outside of Scotland (provided that the other criteria for using the doctrine of “mutual corroboration” are met).

Dockets can also be used to allow the prosecutor to lead evidence of criminal behaviour that an accused person has previously been convicted of. This could be used to support a sexual offence charge by showing that the charge formed part of a wider course of criminal behaviour.^[27] It is important to note that it is the evidence of the behaviour which is included in the docket, not the fact that the accused has been convicted of it.^[28]

Section 1 of the Domestic Abuse (Scotland) Act 2018 - Engaging in a course of abusive behaviour in the context of domestic abuse

A new specific offence of domestic abuse was introduced in 2019. Domestic abuse is often an offence committed in private where the challenges of corroboration can be greater.

This new offence is committed if three conditions are met. A person commits an offence if they engage in a course of behaviour (involving behaviour on at least 2 occasions) which is abusive of their partner or ex-partner. The course of behaviour must be such that a reasonable person would consider the course of behaviour to be likely to cause the victim to suffer physical or psychological harm and the person intended, by the course of behaviour, to cause the victim to suffer physical or psychological harm or is reckless as to whether the course of behaviour causes the victim to suffer physical or psychological harm.

Proof of the offence requires prosecutors to corroborate the course of behaviour, not individual occasions of behaviour which constitute the course of behaviour. Thus prosecutors do not require to corroborate every part of the charge, or corroborate each piece of behaviour that makes up the course of conduct.^[29] The offence allows prosecutors to include, within a charge, uncorroborated conduct, potentially including conduct amounting to serious sexual and violent offending, provided that the conduct constitutes abusive behaviour, as defined in the legislation. The conduct must form part of an overall corroborated course of behaviour. As such, a sufficient connection must exist between any allegation relating to an incident which is not corroborated of itself and the other corroborated allegations of abusive behaviour which form part of the course of conduct, to enable them to be properly be regarded as component parts of the one course of behaviour that meets the requirements of the offence.