The opinion of Lord Hodge in HM Advocate v L  HCJ 16, published on the Scotcourts website yesterday, is an interesting discussion of the use of distress as corroboration in rape cases where it is not alleged that the accused used force to have intercourse with the victim.
To summarise the problem: where a complainer alleges that an accused had sexual intercourse with her by force, it is accepted that evidence of her distress after the event can be used as corroboration establishing both the truth of her account and the fact that the accused had the mens rea required for rape. However, it has not been accepted that distress can be used in this way where force is not alleged, particularly in cases where the charge of rape is based on a claim that the complainer was asleep at the time.
Lord Hodge sidesteps the problem by arguing that there was other evidence before him which could, in total be used to provide corroboration (see paras 6 and 13), and goes on to suggest that the problem may not be a real one at all: it is “unlikely that there will be many cases where the only independent evidence available to the Crown is evidence of distress” (para 15). I have suggested otherwise (2004 SLT (News) 141), but then it never occurred to me (and I still have doubts) that facts such as “the complainer had left behind her mobile phone, which suggested that she left in a hurry” and “the age gap between the complainer and the accused” could be used as corroboration of mens rea if distress could not. Nevertheless, the result is a welcome one, because some of the earlier decisions on distress as corroboration of non-forcible rape threatened to evidentially render that crime out of existence by making it impossible to prove.
One other point about Lord Hodge’s opinion is of interest. The question he addresses has – unusually for most questions coming before Scottish courts – already been extensively discussed in journal articles (Chalmers 2004 SLT (News) 141, Ferguson 2007 SCL 1, Redmayne 2006 JR 4, Scott 2005 SLT (News) 65). None of these articles is referred to, and it is unclear whether they were cited to the court. Lord Hodge – a former Scottish Law Commissioner – does, however quote the Commission’s treatment of the issue in its Discussion Paper on Rape and Sexual Offences.The tendency of Scottish courts (and perhaps counsel appearing before them) not to refer to journal articles is sometimes characterised as a lack of receptiveness to academic opinion. Famously, when Lord Ross did refer to a Scots Law Times article in Deutz Engines Ltd v Terex Ltd 1984 SLT 273 he described it as a piece by “two individuals whom I understand to be academic lawyers” on which it was “not necessary or appropriate to pass comment”. But here, the absence of reference to journal articles can hardly be described as unfair to academics. Of the four articles listed above, the two by academics take broadly the same line as the Commission (which cites one of them). So the lack of reference to journal articles does not leave the academics out in the cold. Instead, and perhaps ironically, it is the views of two QCs over which the opinion passes without comment.