Scottish judges urged to overturn 'barrier' in rape cases

She wants judges to agree that such statements can be used as a separate source of proof that a crime occurred and that the person accused of committing it is responsible.

His application is expected to be heard over two days at the High Court in Edinburgh.

The issue at the heart of all this is corroboration, a unique cornerstone of Scottish criminal law for decades.

The corroboration requirement means that there must be evidence from at least two sources to prove the essential facts of a case.

When the alleged offense is rape, prosecutors need corroborated evidence that the accused committed it, that the physical act took place, and that there was no consent.

Activists have long argued that corroboration is an obstacle to justice, particularly in sexual offenses cases.

Others argue that it provides protection against miscarriages of justice.

The 1937 decision was made after a man called Henry Morton successfully challenged his conviction for indecent assault.

Morton was convicted of indecently assaulting a woman in a block of flats in Glasgow in 1936.

She was the only one to identify him as her attacker and the conviction was overturned on appeal the following year.

At the time, judges hearing the case ruled that a statement made by an alleged victim shortly after the alleged offense could only be used to show that she had been consistent in her version of events. .

In other words, it could support the claim that they were saying the same thing all along, but nothing more.

This decision has since been implemented.

She then asked the High Court to rule that the 1937 judges were wrong.

Dorothy Bain will argue that statements taken from alleged victims shortly after the offense should be able to corroborate other evidence showing that the crime took place and that the accused was the perpetrator.

Law professor Andrew Tickell, of Glasgow Caledonian University, said this would represent a very significant change.

“This would effectively be the end of corroboration as we have known it for almost 100 years in Scotland,” he said. “It’s a huge intervention in the justice system.

“This would mean we could rely on the testimony of a single witness to potentially corroborate much more than current law allows.”

If the Lord Advocate wins, it would mean more cases involving rape and other sexual offenses would come to court, although no one can say how many.

Dr Tickell said this would amount to a significant change to Scottish law without the approval of the Scottish Parliament and could increase pressure on a justice system already facing a significant backlog of cases.

“Corroboration is seen in two different ways,” he said. “Some people see it as a safeguard against wrongful convictions, but others see it as an obstacle to the courts handling cases.

“If you have a lower threshold of corroboration, that means you can present more cases.

“It doesn't mean the jury will convict, it doesn't mean they'll be convinced beyond a reasonable doubt, but it does mean the cases can go to court.”

The Lord Advocate's request follows two cases last year which resulted in unproven verdicts, another unique feature of Scottish law.

The first trial involved an Edinburgh woman who told passers-by and police that she had been raped by a man she met in a nightclub.

The second involved alleged abuse of two boys by their babysitter.

Whatever the judges decide, it will not affect the outcome of the two trials.

As the case was heard by seven judges in 1937, the Lord Advocate's arguments will be considered by a panel of nine people.

It is believed to be the first time in more than 40 years that so many judges have come together to reach such a decision.

Leading defense attorneys will say the law should not be changed substantially. The judges will make their decision later.