Lord Advocate asks court to correct legal ‘wrong turn’ affecting some rape cases

The two-day hearing is taking place in the Court of Session in Edinburgh.

A nine-judge bench at the Court of Session in Edinburgh is hearing arguments for the overturning of a decades-old rule (Jane Barlow/PA) (PA Archive)

Scotland’s most senior law officer has appeared in court in front of an historic nine-judge bench arguing for a change to a decades-old rule affecting some rape cases which she claimed is an “error”.

Lord Advocate Dorothy Bain KC asked the judges at the Court of Session in Edinburgh to overturn a principle that one charity has described as a “barrier to justice” for survivors of sexual offences in Scotland.

The rule, which dates back to the trial of Henry Morton for indecent assault in 1937, holds that statements made by alleged victims shortly after an alleged offence has been committed can only have a bearing on their consistency and credibility.

Such statements cannot, under the rule, have a bearing on whether the offence actually happened or who committed it, meaning that these details need to be corroborated with separate evidence.

The matter is being brought in the wake of two sexual offences trials from last year that resulted in majority not proven verdicts.

If the court is satisfied that the common law has taken a wrong turn, it is the responsibility of the court to correct that error

Dorothy Bain KC

The Lord Advocate told the court the Morton ruling was an “error” that broke with normal practice in Scotland up to that point, adding it resulted in Scots law falling “out of step with the rest of the commonwealth and Ireland”.

She referred to a survey of 2,000 reported cases and various legal authorities which she said supported her argument, adding that the Morton ruling had been made without reference to this “settled and substantial body of authority”.

She told the court: “If the court is satisfied that the common law has taken a wrong turn, it is the responsibility of the court to correct that error and, for the reasons which will be set out in these submissions, it is proper that it should do so now.”

The proceedings have been welcomed by charity Rape Crisis Scotland, who said it had the potential to reduce “barriers to justice” for survivors of sexual offences.

Chief executive Sandy Brindley said: “Reporting rape can be a difficult and traumatic process, yet most cases never make it as far as court.

“The most common reason for this is the way corroboration works in Scotland. If successful, this case could significantly reduce current barriers to justice in Scotland for survivors of rape and sexual abuse.”

The two-day hearing ends on Thursday.