Report and Recommendations - Scottish Government

Distress7.2.21 Similar considerations apply to the use of a complainer’s distress, as observedby a third party after an alleged sexual offence, to corroborate the use offorce 29 , or lack of consent in the course of that offence 30 , even where there isan alternative explanation for the particular emotional response. Thereasoning behind this is that the complainer’s distress, spoken to by a thirdparty, is a physical manifestation or reaction, akin to but not the same as a derecenti statement. Independent proof of the reaction can lead to an inferencethat whatever happened did so against the will of the complainer and wastherefore something brought about by violence or, now, at least without thecomplainer’s consent. This development has in turn led to new problems,since the courts have also held that, whilst distress can corroborate lack ofconsent 31 , it cannot be used as corroboration of the facts in the libel, such asintercourse or particular acts of violence or indecency 32 . There is, of course,little problem with using this type of distress as a bolster to a complainer’scredibility. It is its use, as something emanating from a single source (i.e. thecomplainer in the form of her oral testimony and demonstrable distress) thatconcerns corroboration purists on the issue of sufficiency.Confessions7.2.22 A confession, whether corroborated or not, is regarded as just one source ofevidence pointing towards guilt. It too, like the testimony of an eye witness29 as the law stood pre Lord Advocate’s Reference (No 1 of 2001) 2002 SCCR 43530 Yates v HM Advocate 1990 JC 378n, 1977 SLT (notes) 42; Smith v Lees 1997 JC 7331 Which a de recenti statement cannot32 Smith v Lees (supra)266