Report and Recommendations - Scottish Government

accused as the perpetrator of the crime. That evidence may be direct 7 orcircumstantial 8 . Secondly, each “essential” or “crucial” fact 9 , requiring to beproved, must be corroborated by other direct or circumstantial evidence (i.e.the testimony of at least one other witness).7.2.7 Generally, there are two crucial facts requiring proof in every crime: (1) thatthe offence was committed; and (2) that the accused committed it. Dicta tothe effect that “mens rea” is a fact which requires to be corroborated arewidely regarded as erroneous 10 even if this view continues to be advanced,especially in sexual offences cases 11 . Intention is a fact which may be inferredfrom proof by corroborated evidence of the crucial facts. In relation to proofof the crime, not every element requires corroboration. Thus, in an assault, ifone part of the attack is established, that may be sufficient, at least where theassault is all of one type 12 .7.2.8 There are some limited statutory exceptions to the requirement for evidence tobe corroborated 13 . These exceptions, which tend to relate to minor crimes, donot attract any substantial adverse criticism.7 e.g. eye witness evidence identifying the accused as the perpetrator of the offence8 otherwise known as “indirect”, i.e. evidence of a fact (e.g. fingerprint) or facts from which anotherfact (e.g. presence of accused at the scene) may be inferred9 Walker & Walker: Evidence (1st ed) para 380, p 402 et seq; (3rd ed) para 5.2.210 Spendiff v HM Advocate 2005 JC 338 analysing Lord Advocate’s Reference (No 1 of 2001) 2002SCCR 435; Mackintosh v HM Advocate 2010 SCCR 168; see generally Chalmers: Distress ascorroboration of Mens Rea 2004 SLT (news) 14111 Adamson v HM Advocate 2011 SCCR 271, although this now refers to “corroborated proof ofdistress”, see LJG (Hamilton) at para 2612 Campbell v Vannet 1998 SCCR 207; it may be different if proof of the use of a weapon is required13 e.g. Road Traffic Offenders Act 1988 s 21, parking and related offences258