David Cowan,House Affairs Correspondent, BBC Scotland
Judges are being requested to overturn an 87-year-old rule in a transfer which may enable extra rape allegations to succeed in courtroom.
Scotland’s prime regulation officer is in search of the change after two sexual offence trials final yr resulted in acquittals.
The ruling which dates again to 1937 limits what will be accomplished with statements made by an alleged sufferer shortly after an alleged crime.
The Lord Advocate Dorothy Bain KC is asking for that to be overturned.
She needs the judges to agree that such statements can used as a separate supply of proof {that a} crime had taken place and the individual accused of committing it was accountable.
Her request is scheduled to be heard over two days on the Excessive Courtroom in Edinburgh.
The problem on the coronary heart of all of it is corroboration, a novel cornerstone of Scotland’s felony regulation for many years.
The requirement for corroboration means there needs to be proof from not less than two sources to show the important details of a case.
When the alleged offence is rape, prosecutors want corroborated proof that the accused was the perpetrator, that the bodily act occurred and there was no consent.
Campaigners have lengthy claimed that corroboration is a barrier to justice, significantly in sexual offence circumstances.
Others argue it gives safety in opposition to miscarriages of justice.
The Henry Morton ruling
The ruling in 1937 was made after a person referred to as Henry Morton efficiently challenged his conviction for indecent assault.
Morton was discovered responsible of indecently assaulting a lady in a tenement shut in Glasgow in 1936.
She was the one one that recognized him as her attacker and the conviction was quashed on attraction the next yr.
On the time, the judges who heard the case dominated {that a} assertion made by an alleged sufferer shortly after the alleged offence may solely be used to point out that they had been constant of their account of what occurred.
In different phrases, it may help the competition that that they had been saying the identical factor all alongside, however nothing extra.
That ruling has been utilized ever since.
Final yr the Lord Advocate secured an important change in the rules on proof of misery in rape circumstances.
She has adopted that up by asking the Excessive Courtroom to rule that the judges in 1937 have been incorrect.
Dorothy Bain will argue that statements taken from alleged victims shortly after the offence ought to be allowed to corroborate different proof that the crime occurred and the accused was the perpetrator.
Legislation lecturer Dr Andrew Tickell, from Glasgow Caledonian College, mentioned it could quantity to a really important change.
“This might successfully be the top of corroboration as we’ve identified it for nearly 100 years in Scotland,” he mentioned. “That could be a big intervention within the justice system.
“It will imply we may depend on the proof of a single witness doubtlessly to corroborate excess of they’ll beneath the present regulation.”
If the Lord Advocate wins, it could imply extra circumstances involving rape and different sexual offences will go to courtroom, though no-one can say what number of.
Dr Tickell mentioned that will quantity to a major change to Scots Legislation with out the approval of the Scottish Parliament and may enhance the strain on a courtroom system already dealing with a significant backlog in circumstances.
“Corroboration is seen in two other ways,” he mentioned. “Some folks see it as a safeguard in opposition to wrongful convictions however different folks see it as a barrier to circumstances entering into courtroom.
“You probably have a decrease corroboration threshold, it means you may carry extra circumstances ahead.
“That doesn’t imply the jury will convict, it doesn’t imply they’ll be satisfied past cheap doubt, however it means the circumstances can get to courtroom.”
Not confirmed verdicts
The Lord Advocate’s request comes within the wake of two circumstances final yr which resulted in not proven verdicts, one other distinctive function of Scots Legislation.
The primary trial involved a lady in Edinburgh who instructed passers-by and the police that she had been raped by a person she met in a nightclub.
The second concerned the alleged abuse of two boys by their child sitter.
Regardless of the judges determine, it won’t have an effect on the result of both trial.
Because the case in 1937 was heard by seven judges, the Lord Advocate’s arguments might be thought of by a panel of 9.
It’s believed to be the primary time in additional than 40 years that so many judges have been introduced collectively to succeed in such a call.
Senior defence lawyer will say that the regulation shouldn’t be considerably modified. The judges will situation their determination at a later date.