About this case

Case name

Lord Advocate's References No.2 and No.3 of 2023

Case reference numbers

Lord Advocate's Reference No.2 of 2023

HCA/2023/024/XM

Lord Advocate's Reference No.3 of 2023

HCA/2023/025/XM

Date of hearings

• Wednesday 5 June 2024
• Thursday 6 June 2024

Division

First Appeal Court

Judges

• Lord Justice General
• Lord Justice Clerk
• Lady Paton
• Lord Pentland
• Lord Matthews
• Lord Boyd of Duncansby
• Lady Wise
• Lord Armstrong
• Lord Beckett

Counsel

Counsel for Respondent in Ref No.2

• Shelagh M McCall KC
• Jonathan Crowe, Advocate
• Leigh Lawrie, Advocate

Counsel for Respondent in Ref No.3

• Michael D Anderson KC
• Kenneth Cloggie, Advocate
• Sarah Loosemore, Advocate

Case description

A bench of nine High Court judges will consider the Lord Advocate’s References No.2 and No.3 at a hearing on Wednesday 5 and Thursday 6 June 2024.

The Lord Advocate seeks the Court’s opinion on points of law relating to the admissibility of statements made soon after an alleged offence and whether or not evidence of such statements can corroborate other evidence.

The references pertain to two High Court sexual offence trials which concluded with majority verdicts of not proven. They follow on from the Lord Advocate’s Reference No.1 of 2023, which resulted in the Court ruling that evidence of a complainer being distressed shortly after an alleged offence is capable of corroborating their account of what happened.

The Lord Advocate is now asking the court to consider whether or not statements made soon after an incident can corroborate a complainer’s evidence in the absence of distress, and if so, at what point in time or in which circumstances that stops being the case. A bench of nine judges has been convened because the Lord Advocate invites the court to overrule case law from 1938 decided by a bench of seven judges.

The proceedings will take place at Parliament House, Edinburgh, with the Court hearing arguments from the Lord Advocate and the respondents.