Reinterpreting the Scottish corroboration requirement: Lord Advocate’s Reference (No. 1 of 2023) as a ‘Feminist Judgment’

Abstract

Laws of criminal procedure and evidence have long been criticised by feminist scholars, particularly as they apply to rape and other sexual offences. Many countries have redefined rape and have enacted legislation to improve the experiences of rape complainers/the alleged victims at trial. It remains the case, however, that rape is a difficult crime to prove. Securing a conviction for rape is especially demanding in Scotland, where corroboration of the prosecution's case is a general requirement. The recent Scottish case of Lord Advocate's Reference (No. 1 of 2023) highlights many issues relating to rape—issues which have been raised by feminists in many jurisdictions—concerning law's gendered assumptions and biases. The article assess this case from a feminist perspective, and argues that it could be considered to be a ‘feminist judgment’.

Introduction

Men have been at the forefront of every battle, except for the battle for equality of the sexes. Their dreams have spearheaded every liberation, except for the emancipation of women. … Today, we need egalitarian men who care more about respect than power… men who are just. (Jablonka, 2019: vii)

In Scottish criminal procedure, a ‘Lord Advocate's Reference’ is a mechanism whereby the Crown (prosecution) can refer a case which has been tried under solemn procedure (that is, on indictment, before a jury) to the High Court of Justiciary, on a point of law. A Reference can be taken whether the accused has been convicted or acquitted. The Court's decision serves to clarify the law in future cases but does not affect the verdict in the instant case. ¹ Lord Advocate's Reference (No. 1 of 2023) ² is a seven-judge decision of the Scottish High Court which makes it easier for the Crown to prosecute sexual offences and simplifies trial judges’ instructions for juries. The Opinion of the Court in this Reference was delivered by Scotland's most senior judge, Lord Justice General Carloway. The article considers the background to, and decision in, this Reference in some detail, and explores how the legal definition of rape has changed, requiring the laws of evidence, and in particular corroboration, to keep pace. It also assesses what makes a judgment a ‘feminist’ one, and suggests that the case may be viewed as a ‘feminist judgment’.

Substantive law reform

The changing nature of the corroboration requirement reflects reforms made to the substantive law: as Lord Carloway put it, the Scottish law of sexual offences and the corroboration requirement ‘have been shadowing each other down the years’. ³ Until 2009, the legal definition of rape did not reflect the tenets of feminism. A common law crime, it required penile penetration of the vagina, forcibly and ‘against the will’ of the complainer. (Hume, 1844a: 303). This meant that a sleeping woman could not be raped ⁴ nor could one who was unable to consent, or refuse to consent, to sexual intercourse due to having voluntarily consumed alcohol or drugs. ⁵ ‘Marital rape’—non-consensual sex inflicted on a woman by her husband—did not cease to be an oxymoron until 1989. ⁶ It was not rape for an accused person to have sexual intercourse with a complainer by means of having impersonated her sexual partner. ⁷ ‘Male rape’ was not recognised as such, but given the separate nomen iuris of ‘sodomy’, and rarely prosecuted. ⁸ In summarising the law at the beginning of the 21st century, it was noted that

whether a woman has been ‘raped’ or not is viewed from the perspective of the perpetrator rather than the victim. The fact that a man has had sexual intercourse with a woman without her consent does not determine the legal classification of the incident. If the woman was extremely intoxicated at the time of the intercourse, one must enquire whether she took the drink voluntarily, or whether the accused plied her with drink. In either case, the woman may be equally intoxicated and equally abused, and may feel that she has been raped, but only in the latter situation is she regarded as having been raped in the eyes of the law. (Ferguson, 2000: 150–151)

Much has changed since then (Ferguson and Raitt, 2006: 185; Ferguson, 2008: 302), with rape now being defined by statute to include both male and female victims, comprising non-consensual penile penetration of the vagina, anus or mouth, where the accused has no reasonable belief that the complainer is consenting. ⁹ The relevant legislation has also made clear that a sleeping or otherwise unconscious person cannot, as a matter of law, consent to sexual intercourse ¹⁰ and this is also the case for someone who is heavily intoxicated. ¹¹ The fact that the intoxication was self-induced is no longer a bar to prosecution, and one who procures sexual intercourse by pretending to be someone whom the complainer knows personally is now recognised to be a rapist. ¹²

Corroboration

While some jurisdictions require corroborated evidence for certain types of offences ¹³ or certain types of evidence, ¹⁴ this is a general requirement in Scottish criminal prosecutions. ¹⁵ Corroboration can be an important safeguard against wrongful conviction: some witnesses lie; others may be honest but mistaken about what they saw or heard, or misinterpret what they saw or heard (for example, an eyewitness may mis-identify the accused as the perpetrator (Nicolson and Blackie, 2013: 156–157; Ferguson in Duff and Ferguson, 2018) or a suspect may falsely confess (Nicolson and Blackie, 2013: 157–158)). The requirement is said to have Biblical roots and can be traced in Scottish law to the 16th century (Davidson, 2007: para. 1.08; Gardiner, 2020: 41); however, a common starting point in many discussions of the law is the 19th-century work of the Institutional Writer, Baron David Hume. His fourth, and most often cited, edition of Commentaries on the Law of Scotland Respecting Crimes, published in 1844, stated that

no one shall in any case be convicted on the testimony of a single witness. No matter how trivial the offence, and how high soever the credit and character of the witness, still our law is averse to rely on his single word, in any inquiry which may affect the person, liberty, or fame of his neighbour; and rather than run the risk of such an error, a risk which does not hold when there is a concurrence of testimonies, it is willing that the guilty should escape. (Hume, 1844b: 383)

He continued:

It would not however be a reasonable thing, nor is it our law, that the want of a second witness to the fact cannot be supplied by the other circumstances of the case. If one man swear that he saw the pannel [that is, the accused] stab the deceased, and others confirm his testimony with circumstances, such as the pannel's sudden flight from the spot, the blood on his clothes, the bloody instrument found in his possession, his confession on being taken, or the like; certainly these are as good, nay better even than a second testimony to the act of stabbing.

Neither is it to be understood in cases of circumstantial evidence, either such as the foregoing case, or one where all the evidence is circumstantial, that two witnesses are necessary to establish each particular; because the aptitude and coherence of the several circumstances often as fully confirmed the truth of the story, as if all the witnesses were deponing to the same facts. (Hume, 1844b: 384)

This seems straightforward enough, but in the years since Hume wrote these words the law relating to corroboration has become confused: Lord Carloway in this first Reference noted that the case law had ‘introduced layers of complexity’, making the directions provided by trial judges to juries ‘more and more difficult’. ¹⁶ This echoed what His Lordship stated in a review of Scottish criminal law and practice which he undertook for the Scottish Government in 2011, in which he recommended abolition of the corroboration requirement, and referred to the law in this area as ‘frequently misunderstood by lay persons and lawyers, not least judges’. ¹⁷ Following this Review, the Scottish Government drafted legislation to abolish the corroboration requirement. However, this proposal attracted a great deal of criticism from the legal profession, the judiciary and members of the Scottish Parliament, and was ultimately abandoned by the Scottish Government. ¹⁸ It might therefore be suggested that having been thwarted by Parliament, His Lordship decided to achieve the same result by means of the common law. ¹⁹

In the Lord Advocate's Reference Lord Carloway provided a detailed account of the conflicting decisions on corroboration from the end of the 19th century to date. In brief, while in some cases the appeal court had stated that corroboration was required to prove ‘a case’, ²⁰ it had held in other cases that corroboration was needed to prove ‘every crucial fact’ of a case. Lockwood v Walker ²¹ (1910) was the first case to make the latter suggestion, and the academic literature then reflected this. ²² The difficulty in finding corroboration of a complainer's testimony is particularly problematic in cases of sexual assault, where there is rarely a second eyewitness. Corroboration thus became a complicated concept; ²³ in Pete Duff's memorable phrase, it involved ‘all sorts of interpretations, refinements, exceptions, loopholes and pure “fiddles”’ (Duff, 2012: 514, adopted from Birch, 1987: 24), one of which is the concept of corroboration by distress.

Corroboration by distress

Corroboration may be provided by independent evidence of a complainer's distressed state. Although there is no fixed time period during which the distress must be witnessed by others, the distress must be attributable to the alleged incident. ²⁴ Distress evidence was used by the Crown in Yates v HM Advocate ²⁵ (1976), in which the accused was charged with raping the complainer at knifepoint. Witnesses spoke of the complainer being in a ‘shocked condition shortly after the incident’ ²⁶ and the appeal court referred to ‘the broad and clearly correct proposition that evidence as to the condition of the alleged victim of rape is capable of affording corroboration…that she has been raped.’ ²⁷ However, at issue in the later case of McKearney v HM Advocate ²⁸ (2004) was whether such distress was capable of corroborating the complainer's testimony, not only that she did not consent to intercourse, but that the accused knew that she did not consent, or was reckless as to consent—the mens rea of rape. ²⁹ According to Lord Justice Clerk Gill (albeit obiter), while evidence of the complainer's distressed condition ‘may tell us about her lack of consent…I fail to see how it tells us anything about the accused's state of mind’. ³⁰ As James Chalmers pointed out, there was at the time a dearth of authority on the issue of whether mens rea required to be corroborated (Chalmers, 2004: 143). Prior to 2001, as noted above, rape required the accused to have ‘overcome the will’ of the complainer, thus proof that the accused had forced the complainer to have intercourse itself constituted proof of mens rea, since the use of force allowed a jury to infer that the accused was aware that the complainer was not a willing participant. ³¹ The common law crime of rape was redefined in Lord Advocate’s Reference (No. 1 of 2001) such that force was no longer an essential aspect of its actus reus. ³² Rather, it constituted sexual intercourse without the complainer's consent, and the mens rea requirement was that the accused knew that there was no consent, or was reckless as to consent. ³³

Chalmers’ careful analysis is a convincing one. Unfortunately, however, the Crown had accepted in McKearney that mens rea was an ‘essential fact’ which required to be proved by corroborated evidence. This made rape an extremely difficult crime to prove. The complainer's own testimony could constitute one source of evidence that the accused was well aware that there was no consent, but in cases in which the accused has not required to resort to physical force, it is difficult to see what evidence could corroborate this knowledge of a lack of consent, short of an admission to this effect from the accused. Subsequent cases had held that mens rea did not require to be corroborated ³⁴ but could be inferred from proof of the actus reus. This change was reflected in academic writings, which thereafter referred to the crucial facts as ‘the identity of the perpetrator and the actus reus of the crime’. (Keane and Davidson, 2018: para. 8–13 (emphasis added); see also Auchie, 2015:1).

Notwithstanding the decision in Yates that distress could corroborate certain aspects of a complainer's testimony in a charge of rape, some later cases had held that there needed to be independent corroboration that sexual intercourse had occurred. This was based on the view that distress could indicate only that something had happened, and that this ‘something’ was unpleasant and potentially non-consensual. If the accused accepted that sexual intercourse had taken place or there was forensic evidence of this, then the distress could corroborate the complainer's testimony that it was rape, rather than consensual sex. But if there was no forensic evidence, as could often be the case if a complainer did not immediately report a sexual assault to the police, and the accused did not admit to having had intercourse with the complainer, then distress evidence could not corroborate that what caused the distress was rape.

This reflects the decision in Smith v Lees ³⁵ (1997), a five-judge decision of the appeal court. The charge was using ‘lewd, indecent and libidinous practices and behaviour’ towards a girl aged 13 during a camping holiday. ³⁶ The girl testified that she awoke to find that the accused had put his penis on her hand, was holding it in place with his own hand and moving it up and down. She had pretended to still be asleep, and had made some odd noises to make it sound as if she was asleep. The girl's uncle testified to having seen her a short time later, crying and upset. In holding that this distress could not corroborate the girl's evidence in its entirety, Lord Justice General Rodger stated,

if a complainer says that she did not consent to intercourse but was forced to submit, then evidence of her distress will tend to confirm her evidence since a jury will be entitled to infer that the complainer was distressed because she was forced to submit to intercourse and did not agree to it. But in a case like the present, evidence of distress cannot support or confirm the complainer's evidence that a particular form of sexual activity occurred because there is no basis upon which the jury can use the evidence of distress to draw the necessary inference that it did. ³⁷

Res gestae and de recenti statements

Hearsay evidence is generally inadmissible in Scots law. It is defined by statute as ‘evidence of a statement made by a person otherwise than while giving oral evidence in court’. ³⁸ In other words, testimony from A about a statement A made on an earlier occasion is admissible, but testimony from B about what s/he heard A say is hearsay. A party who wishes to lead evidence of A's statement should call A to testify to this, rather than calling B to recount what A had said. However, evidence from a third party about something said by a complainer may be admissible as evidence of its content ³⁹ —and therefore capable of corroborating the complainer's testimony—but only if the words spoken by the complainer form part of the ‘res gestae’, that is, that they were spoken as part of the event/alleged incident, itself. Thus:

Res gestae is the whole thing that happened. Exclamations uttered or things done at the time by those concerned are part of the res gestae, and may be spoken to by those who heard or saw them. But an account given by anyone … at any time thereafter, is an account only, and not res gestae. ⁴⁰

Anything said by a complainer after the event/incident is considered to be a mere de recenti statement. It may be admissible to support the complainer's credibility, but cannot serve to corroborate her testimony. The rationale for permitting de recenti statements to form an exception to the hearsay rule was explained in Morton v HM Advocate ⁴¹ (1938): such statements were allowed

in the case of sexual assaults on women and children … for the limited purpose of showing that the conduct of the injured party has been consistent and that the story is not an afterthought. ⁴²

It is clear, therefore, that certain types of complainers (women and children) were traditionally regarded as less credible than others (men). It has been rightly said that ‘the exception reflects a view of society which is based on unacceptable prejudice’ (Davidson, 2007: para. 12.138).

Prior to this Reference, the distinction made in Scots law between de recenti statements and those made as part of the res gestae was well illustrated by Cinci v HM Advocate, ⁴³ a case decided 20 years ago. In that case, two witnesses gave evidence of having discovered the complainer and the accused, both naked, in a shower cubicle in a hostel, and to having heard the complainer state in the accused's presence, while she was huddled in a corner of the shower, that he had raped her. According to Lord McCluskey in the appeal court, however:

There was no evidence that the complainer's utterance was part of the sexual congress. It was not a shout directed at the [accused]. It was a statement uttered after the sexual intercourse had finished. ⁴⁴

Likewise, Lord Justice Clerk Gill stated: ‘If the words spoken [by the complainer], though closely related to the event, are not part of the event, they cannot be treated as part of the res gestae.’ ⁴⁵ The court therefore quashed Cinci's conviction, holding that the third parties’ evidence of the complainer's statement was not corroborative, and was admissible only in support of her credibility. ⁴⁶ As Lord Carloway noted in a later case, ‘generations of lawyers’ have been ‘weaned upon the distinction, possibly unique to Scots law, between a statement forming part of the res gestae and one de recenti’. ⁴⁷ Such was the state of the law prior to this Lord Advocate's Reference.

Lord Advocate's Reference (No. 1 of 2023)

The evidence

The evidential value of a complainer's distress, the res gestae and de recenti statements were all considered in this Reference, in which the accused was charged with rape. The complainer testified that she and her boyfriend had been invited into the accused's flat where he had given them some cans of lager. She ‘felt that the cans had been “spiked”’. ⁴⁸ When her boyfriend left the flat for about 15 minutes, to get some cigarettes, the accused then raped her. She was able to escape when her boyfriend returned and the accused opened the door to him. Her boyfriend testified that when he returned to the flat, the accused ‘opened the door only slightly’ and appeared to be naked. The complainer had then left the flat in a ‘very distressed’ state. The appeal court summarised the boyfriend's evidence regarding the complainer: ‘She was crying and in shock. Her hair was all messed up.’ ⁴⁹ A second witness testified that the complainer ‘was devastated, shaken up and scared. Her make-up was all over the place. She was upset, screaming and crying.’ ⁵⁰ There was also testimony from the complainer's sister that a friend had phoned her after the incident and ‘she could hear [the complainer] crying and screaming in the background’. ⁵¹

The accused did not testify but during his police interview he had denied that there had been any ‘physical interaction’ between himself and the complainer, ⁵² and the sole evidence that he had in fact had sexual intercourse with her came from the complainer. In addition to the evidence concerning distress, the complainer's boyfriend testified to hearing the complainer say, shortly after the incident, that she had been raped by the accused. ⁵³ Likewise, the evidence of the accused's neighbour was that the complainer had ‘pointed up towards the [accused's] door’ and had said ‘It was him. He done it’ [sic]. ⁵⁴

Although it may seem that there was a plethora of evidence in this case, the accused was acquitted on a not proven verdict. ⁵⁵ In accordance with the decision in Smith v Lees, the trial judge had directed the jury that evidence of the complainer's distress and that she had said immediately after the incident that she was raped by the accused, spoken to by three other witnesses, could corroborate the complainer's evidence that something had happened, and that she had not consented to this. This evidence could also bolster the complainer's credibility, in showing that she had given a consistent account. But none of it could corroborate her testimony that what had happened was non-consensual sexual intercourse. ⁵⁶ A crucial issue in this Lord Advocate's Reference, then, was whether each element of a crime's actus reus required to be corroborated (what one might call ‘full corroboration’) or whether corroboration was a more general requirement.

The decision

The holding in Smith v Lees—‘that evidence of distress could not tell a factfinder anything more than that something distressing had occurred’ ⁵⁷ – was overruled in this Reference. Lord Carloway endorsed Hume's statement that ‘no one shall in any case be convicted on the testimony of a single witness’ (Hume, 1844b: 383: emphasis added by Lord Caroway ⁵⁸ ), pointing out that the contrary view—that all ‘crucial’ or ‘critical’ facts required to be corroborated—had little basis in the Institutional Writers. ⁵⁹ In particular, His Lordship also noted that:

Hume's approach involved looking at cases holistically and in the round, based on the type of evidence normally available in the category of crime under consideration. He did not advocate any more technical an approach. ⁶⁰

Cinci was also overruled, Lord Carloway stating that the evidence in that case ‘might reasonably be described as overwhelming’. ⁶¹ The appeal court's approach in Cinci—that the independent testimony of the complainer's statement was ‘not evidence of the fact of rape’—was described by Lord Carloway as defying common sense. ⁶²

As a result of this Reference it is clear that corroboration ‘is about the number of witnesses, not the number of facts.’ ⁶³ In the context of sexual offence trials: ‘There is only one matter, other than the identity of the perpetrator, that needs such proof…that is that the complainer was subjected to the crime libelled.’ ⁶⁴ Thus, being subject to a sexual assault is likely to cause distress, and when that distress is spoken to by independent witnesses, it is ‘impossible to see’ why it ‘should not be regarded as a separate source of evidence which confirms or supports the complainer's account.’ ⁶⁵ It is the testimony of the complainer that requires to be corroborated, ‘not facts, ingredients or elements’ of the charge. ⁶⁶ The corroborative value of independent evidence of a complainer's de recenti statement depends on the context in which the statement was made. ⁶⁷ Coupled with independent evidence of her distress, it can now corroborate the complainer's testimony.

The Lord Advocate brought two more references to the High Court in June 2024, seeking further clarification on the corroborative value of de recenti statements. ⁶⁸ A detailed examination of these cases is beyond the scope of this paper, but it should be noted that the Court—in a nine-judge decision—held that a de recenti statement may be corroborative on its own, even where there is no evidence that the complainer was displaying distress during the making of the statement, and that such a statement only ceases to be corroborative if it is made at a time which is too remote from the time of the crime, or is not made to the first natural confidante. Particularly radical (and controversial) is the decision that such a statement is capable of corroborating not only that a crime has been committed, but the identity of the accused as the perpetrator. ⁶⁹ This further weakens the corroboration requirement, leading one commentator to suggest that Lord Carloway has ‘accomplished what he set out to achieve’ in his Review of 2011, ⁷⁰ namely, ‘that the corroboration rule should be abolished’ (Barclay, 2024).

Feminism(s)

To determine whether this Reference can be considered to be a feminist judgment we must first consider the meaning of feminism. Described as ‘one of the most far-reaching movements’ of the 20th century, ‘whose influence has been felt in every area of social, political and cultural life worldwide’ (Gamble, 2001: vii), feminism is not a monolithic concept (Hannam, 2012: 95; Logan, 2008: 5). Jason Powell distinguishes libertarian feminism (‘the State laws and interference are the cause of women's oppression’), liberal feminism (women require ‘equal access to the public sphere’), welfare feminism (‘women's oppression is caused by failure of the State to recognise costs of “Motherhood”’), radical feminism (the fault lies with ‘patriarchy…men's power over women's reproduction and sexuality’), socialist feminism (which blames both patriarchy and capitalism), Black feminism (focusing on ‘historical problems of globalisation, racism, imperialism and international division of labour’ alongside ‘gender and social class’) and postmodern feminism (exploring ‘wider issues associated with the body, sexual identity and cultural representations of gender’) (Powell, 2013: 9–11). The working definition of feminism used in this article is that at its core it

is the belief that women, purely and simply because they are women, are treated inequitably within a society which is organised to prioritise male viewpoints and concerns … [and which] seeks to change this situation. (Gamble, 2001: vii. See also Hannam, 2012: 7).

Feminist scholarship has been (rightly) criticised for focusing mainly on the concerns of women who are able-bodied, cisgendered, middle-class and white (Phipps, 2020: 6; Eagleton 2003: 6–7)—largely reflecting the dominance of these characteristics in academia. As a white, middle-class, feminist academic, I worry that my voice is one that has spoken too often. Perhaps I should make space for other voices. And yet…I do not always feel heard. Following a recent contribution I made to the debate on piloting judge-only trials of rape and attempted rape in Scotland (I suggested that we might perhaps learn something useful from such a pilot), I was described by a senior member of the Scottish Bar (Faculty of Advocates) as ‘engagingly naïve’ (Lenehan, 2023). As a (somewhat) elderly academic, and Professor of Law for more than two decades, I found myself wondering whether such a description would ever be applied to an elderly male professor. While these matters merit further consideration, this article is not the place to explore critiques of feminism (or of feminists), nor to propose potential solutions. They do suggest, however, that we are not living in a ‘post-feminist’ era, as some might imagine.

It should also be noted that some feminist scholars question whether law reform can ever improve the position of women: Heather Douglas's research involving female victims of domestic violence in Queensland found that they ‘generally viewed law as powerful conceptually but in general did not find law useful’ (Douglas, 2012, 130); Nicola Lacey questions ‘the potential effectiveness and, indeed, wisdom of exploiting the legal institutions as a primary forum for advancing feminist demands’ (Lacey, 1989, 383). Carol Smart advocates non-legal strategies, warning that law does not offer ‘the key to unlock women's oppression’ (Smart, 1989: 5) and urges feminists to eschew ‘colluding with law's overinflated view of itself’ (1989: 25). In the context of sexual offences, Sharon Cowan notes that

while efforts to reform the text of the substantive as well as evidential and procedural aspects of the law have been largely successful, in practice the impact of these reforms has not always been felt. (Cowan, 2019: 22).

There is force in these criticisms by Smart and others: we will not see a meaningful reduction in sexual offences without radical changes to society's ethos, in particular regarding the sexual objectification of women. However, for some scholars, it is difficult to ‘avoid the siren call of law’, and ‘resist…the creeping hegemony of the legal order’ (Smart, 1989: 160; 5). Some of us have not given up on the attempt to find solutions to feminist problems, albeit perhaps only partial ones, within the law itself.

The Reference as a feminist judgment

One way in which scholars have attempted to shed light on aspects of the law which fail to address women's concerns is by ‘re-writing’ the judgments in leading cases from a feminist perspective: this has been achieved in Canada (Majury, 2006: 1), England and Wales (Hunter et al., 2010), Australia (Douglas et al., 2014), New Zealand (McDonald et al., 2017), Ireland/Northern Ireland (Enright et al., 2017) and Scotland (Cowan et al., 2019). The value of feminist judgment projects is that they can ‘expose the hidden masculine bias of purportedly neutral judicial decisions’ as well as helping to ‘bridge the gap between theory and practice.’(Grey et al., 2021: 255). In relation to criminal law, in particular, ‘this approach is neither “pro-prosecution” nor “pro-defence”, but offers a more gender-sensitive perspective on the legal process as a whole.’ (Grey et al., 2021: 255). The suggestion that this Reference may be categorised as feminist raises the question: what makes a judgment ‘feminist’?

A great many cases relating to corroboration in sexual offences were considered by the court. In two of these (McLennan ⁷¹ and Farooq ⁷² ) the complainers were boys, while all of the complainers in the remaining 33 cases were women or girls. Since the great majority of complainers in sexual offence prosecutions are female, it could perhaps be argued that any judgment which improves the position of women or girls is intrinsically a feminist one. However, the rhetoric employed by the courts is as important as the legal rulings themselves.

One does not have to self-identify as a feminist judge to produce a feminist judgment; Rosemary Hunter observes:

While we may only expect a consistently feminist approach of feminist judges, this does not mean that other judges may not also make decisions, give speeches or engage in projects that are recognisably feminist at least some of the time … there is no necessary contradiction between excluding someone from the category of ‘feminist judge’ for normative purposes, yet referring to one or more of their judgments or speeches as examples of feminist judicial practice for descriptive purposes. (2008: 9, emphasis in original)

Being female is not a prerequisite of being a feminist—not all women are feminists, and not all feminists are women. Whether Lord Carloway would consider himself to be a feminist is therefore beside the point. As Hunter also reminds us (2008: 9), a judge may behave as a feminist without overtly identifying as one. She offers several criteria for determining whether something counts as a feminist judgment. These include: ‘Asking the woman question’ (Hunter, 2008: 10)—considering ‘the gender implications of a rule or practice’ (2008: 10, quoting Bartlett, 1990: 837), and ‘Including women’—judging inclusively by avoiding decisions which ‘protect male interests masquerading as human interests’ (2008: 11, citing Boyle, 1985: 101–102): this may involve hearing and understanding the stories of women who are involved in court cases and referencing ‘research on women's experiences, in order to gain a broader understanding’ (2008: 11, citing Boyle, 1985: 102–103). A feminist judgment may also involve: ‘Challenging gender bias’ –

questioning the current legal construction of ‘woman’, rejecting ‘stock stories’ about women's reactions and behaviour, not relying on stereotypical or gender-biased assumptions about sexual difference or behaviour, challenging myths and stereotypes about women, and critiquing previous judgments … that adopt such myths and stereotypes. (2008: 11–12).

‘Contextualisation’ may be important in a feminist judgment: this

may include considering the specific situation of the parties, the circumstances in which particular legislation was enacted, and /or the broader social context within and upon which the legal rules in question operate. In order to understand this social context, it may be necessary to refer to social science research literature and policy reports— so-called ‘social framework evidence’. (2008: 12)

Lord Carloway began his Reference judgment by making ‘some observations on the context’ in which the debate over the proper application of the corroboration requirement is taking place. He noted that:

Society's problems and attitudes alter over time. Evidential requirements may have to change with them in order to meet the public's expectations from its system of criminal justice. ⁷³

Thus, the appeal court requires to determine issues which come before it

in the context of modern societal values and thinking. These, and in particular the approach to be taken to the testimony of women, are not the same as they were in the 19th century or even, apparently in some cases, that of only a quarter of a century ago... . ⁷⁴

The reference to the approach taken ‘a quarter of a century ago’ is to the case of Smith v Lees. ⁷⁵ Despite his call for the law to reflect ‘modern thinking’, Lord Carloway supported his ruling by referencing the works of Hume, Alison and Burnett ⁷⁶ —each of whom was writing in the first half of the 19th century. He criticised the classification of facts into ‘crucial’, ‘evidential’ or ‘procedural’ (a classification made by 20th-century authors) as having ‘little basis in the Institutional Writers’, and indeed as ‘offend[ing] against the cautionary words of all the Institutional Writers’. ⁷⁷ He favoured the decision in Gillespie v Macmillan ⁷⁸ as ‘a classic example of the practical application of the principles in Hume and Alison’, ⁷⁹ and castigated critics of that case for failing to pay heed ‘to the words of wisdom of the Institutional Writers.’ ⁸⁰ Likewise, Smith v Lees was to be overruled since it ‘falls foul of all the cautionary remarks in the Institutional Writers’. ⁸¹ There was therefore an ambivalence in Lord Carloway's approach: Institutional writings were prayed in aid to demonstrate that the decision in the Reference was in keeping with Scotland's history and legal tradition, but there was an emphasis on the need for the law to keep pace with modern values and reflect ‘what is thought to be appropriate in a modern democratic society’. ⁸²

His Lordship also referred to legislative reforms ‘to address so called “rape myths”’, ⁸³ in particular ss. 288DA and 288DB of the Criminal Procedure (Scotland) Act 1995, which were added to that Act in 2017. ⁸⁴ Section 288DA requires trial judges in appropriate cases to direct juries that there may be good reasons why complainers may not have told others about a sexual attack or reported it to the police, or may have delayed in doing so. The trigger for such a direction is that ‘evidence is given’ at the trial, or questions have been asked or a statement made, about the delay or non-reporting (see Ferguson, 2024: paras. 16–111 and 17–051). Section 288DB provides for similar directions so that juries are made aware that there may be good reasons why complainers offered little physical resistance. As His Lordship explained, the purpose of these provisions

is to reflect modern thinking, whereby the fact that a complainer may not have disclosed or reported the offence, or may not have physically resisted the accused, leads to an inference that the complaint is false. ⁸⁵

As its name suggests, the issues presented to the court in a Lord Advocate's Reference are formulated by the Crown/by the Lord Advocate, and we must not forget the role played by counsel when ‘thinking about who shapes legal outcomes’ (Davies, 2012: 174). The current Lord Advocate, Dorothy Bain KC, has done a great deal to champion reform of Scottish criminal law and procedure in a feminist direction. The Crown's written submission to the Court in this Reference noted (at para. 55) that ‘any former views on the dishonour of penile penetration have given way to a much broader concept of rape as a violation of physical and sexual autonomy’. The submissions also stressed that

different people will react in different ways to rape. Thus, while distress and other aspects of a complainer's demeanour or emotional state after the incident can corroborate her account, there is no normal reaction to rape or other sexual assault.

This approach is reflected in Lord Carloway's observation in the Reference that since the introduction of the legislative provisions described above,

there has been a growing awareness of the effect of trauma on those who had been subjected to rape, sexual assault or sexual abuse. Different people may react in different ways to having been subjected to these crimes. There is no set way in which individuals can be predicted to behave in the aftermath of a sexual offence. ⁸⁶

Res gestae, as an exception to the general rule that hearsay evidence is inadmissible, is preserved for English Law by the Criminal Justice Act 2003. Section 118(1)4(a) of that Act defines this to include a statement made by a person who was ‘so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded’. ⁸⁷ However, in a recent article in this journal, Ruth Coffey points out that developments in neuroscience suggest that an emotionally overpowering or highly stressful event (such as a sexual assault) does not guarantee the truth of any utterances made shortly thereafter. It seems that ‘people are capable of lying very quickly, sometimes more quickly than they can tell the truth.’ (Coffey, 2023: 72). Rather,

science does not support…. [the] theory that people exposed to stress cannot lie, and … even if that were true, the stress also interferes with the ability to observe and relate events accurately. (Coffey, 2023: 72)

Coffey also suggests that: ‘Res gestae evidence as it currently stands is admitted, not on the basis of science but on the basis of old prejudices: good victims cry out, the honest speak immediately.’ (Coffey, 2023: 77). This argument is of particular interest from the perspective of a feminist analysis: admitting emotionally-overpowered statements as evidence ‘enshrines myths about trauma victims, privileging those already able to speak’ (Coffey, 2023: 79).

Although the Scottish appeal court in this Lord Advocate's Reference acknowledged that victims of sexual offences vary enormously in their reactions to having been attacked, it did not specifically address the issue of what a jury should be told about a victim who does not make an emotionally-overpowered statement/spontaneous uttering as part of the res gestae, or who does not show signs of distress. However, as noted above, the more recent References of October 2024 have held that a de recenti statement is corroborative, even in the absence of third-party evidence of distress. ⁸⁸ In practice, trial judges may direct juries that victims of sexual assault react in a variety of ways: not all victims will immediately state that they have been attacked; not all victims immediately show signs of distress. The absence of such a statement or visible distress should not be assumed to mean that the complainer's testimony is fabricated.

Returning to Hunter's criteria, as noted previously, one characteristic of a feminist judgment is that it may reference research on women's experiences. Lord Carloway referred to studies on rape myths ⁸⁹ and endorsed the view taken in the Final Report of the Dorrian Review: The Lord Justice Clerk's Review Group on Improving the Management of Sexual Offence Cases (2021: para. 5.54) advises that the courts do not harbour any kind of expectation concerning the way rape complainers will present their evidence at court—complainers

may show little emotion or may show considerable emotion. Given the importance which the law attaches to a witness's demeanour, this is one example of the need to address the potential for misconceptions to feature in jury deliberations. ⁹⁰

This also corresponds to Hunter's criterion of a feminist judgment being one which rejects ‘stock stories’ about women's reactions and behaviour.

We noted earlier Davidson's comments on de recenti statements as reflecting ‘unacceptable prejudice’ against women and children. Near the end of his judgment, Lord Carloway observed that some of the dicta in previous case law

are now outdated, in so far as they seem to be based on the false notion that child or female complainers … are likely to be less credible or reliable than their adult, male counterparts. ⁹¹

This chimes with Hunter's criterion that feminist judgments challenge discourses of sexism, and reject stereotypical or gender-biased assumptions about sexual difference or behaviour.

Lord Carloway quoted his own dictum from Jamal v HM Advocate ⁹² (2019) in which he had commented on the view that sexual penetration required to be corroborated—a view which reflected the belief ‘that the most serious element in rape was the penile penetration of the vagina and the several consequences which that had in relation to the woman's “honour and value”.’ ⁹³ Rejecting this approach as ‘strange and anomalous’, ⁹⁴ His Lordship noted: ‘That idea has given way to a much broader concept whereby rape is regarded as serious because it involves a violation of a person's physical and sexual autonomy.’ ⁹⁵ Such comments may be categorised as feminist since, to repeat Hunter's words, they reject ‘stereotypical or gender-biased assumptions about sexual difference or behaviour.’ (2008: 11–12).

Finally, it should be noted that aspects of the prosecution process in the 2023 Reference may be said to reflect a more feminist approach. Scholars have long been critical of the cross-examination of complainers, with the process being described as ‘gruelling’ (Sebba, 1982: 223), ‘distressing, demeaning and humiliating’ (Zydervelt et al., 2017: 555). Lord Carloway has frequently castigated trial judges for failing to intervene when defence counsels’ questioning is ‘protracted, vexatious and unfeeling’ ⁹⁶ (see Ferguson, 2024: paras. 20–063 to 20–069). The complainer in this Reference was spared the ordeal of testifying at trial, with her evidence taking the form of a pre-trial recording of her police interview and of a later commission to take her evidence. The latter included her cross-examination by the defence. ⁹⁷ Her boyfriend's evidence also took the form of a pre-recorded commission. ⁹⁸

Conclusion

Lord Carloway begins this Lord Advocate's Reference by quoting Hume's statement that ‘no one shall in any case be convicted on the testimony of a single witness’; this is repeated at para. 190 of the judgment, but with the word ‘case’ being italicised to emphasise that

where there is only one eye witness, as will often be the position in sexual offences … it [is] enough that the facts and circumstances, when taken together, support or confirm the eye witness's testimony... .

In short: ‘It is the testimony of the complainer that requires to be corroborated, not facts, ingredients or elements.’ ⁹⁹ In one sense, therefore, the decision in this Reference returns corroboration to its historical roots. However, as the above analysis has shown, the ruling is less about continuity than about change, allowing the law to reflect modern understandings of sexual offences and those who are the victims of such offences. Basing the decision on the works of the Institutional Writers of the 19th century may serve to deflect criticism concerning judicial development of the common law. Judicial law-making is controversial: it is especially so if perceived as feminist. Margaret Davies suggests that:

Law has the potential to develop a culture which is moribund, inhibited by dogma, and pointlessly attached to tradition…. The best antidote is surely the ability of critically-aware judges to draw law out of challenging circumstances in a way which is responsive to changing social contexts and which retains law's emphasis on the human. (Davies, 2012: 178).

The requirement for corroboration has been considered by many to be an important part of the Scottish legal tradition (see Gordon, 1993: 33). Nonetheless, the appeal courts’ insistence on full corroboration in the cases which this Reference has now overruled had meant that some forms of very harmful behaviours inflicted by one person on another—and in particular, sexual violence inflicted by male perpetrators on female victims—were effectively ‘beyond the reach of the criminal law’ (Lord Hope, 2010: 13). Lord Carloway's judgment in this Reference recognises that changing social contexts require a break with tradition.