References by His Majesty's Advocate against PG and JM (High Court of Justiciary)

Factual and Procedural Background

The Lord Advocate brought two references concerning the evidential status of de recenti statements made by complainers in criminal trials, specifically addressing whether such statements can corroborate testimony regarding both the commission of a crime and the identity of the perpetrator. The references arose following two trials: one involving charges of lewd, indecent, and libidinous practices against the respondent PG concerning incidents from 1990, and another involving a charge of rape against respondent JM in 2022. In both trials, issues arose regarding the admissibility and corroborative value of de recenti statements made by complainers shortly after the alleged offenses. Both charges were found not proven. The court was asked to resolve four related legal questions concerning the corroborative effect of de recenti statements and the scope of the res gestae exception to the hearsay rule, including whether the decision in Morton v HM Advocate should be overruled.

Legal Issues Presented

1. Is a de recenti statement on its own corroborative in the absence of distress?
2. Can a de recenti statement corroborate a complainer's testimony both that the crime was committed and that the accused committed it?
3. At what point does a statement cease to be de recenti, and hence corroborative, and become inadmissible hearsay?
4. Should Morton v HM Advocate (1938 JC 50) be overruled?

Arguments of the Parties

Appellant's Arguments

• The Lord Advocate submitted that the dicta in Morton limiting the corroborative effect of de recenti statements should be disapproved, as it is inconsistent with historical authorities and institutional writings.
• The Crown argued that de recenti statements, whether accompanied by distress or not, can provide corroboration of both the commission of the crime and the identity of the perpetrator.
• The Crown relied on a broad historical and comparative analysis of the law, including the works of institutional writers and case law from Scotland and other common law jurisdictions.
• The Crown contended that treating de recenti statements as corroborative evidence simplifies the law and aligns with the practicalities of sexual offence cases and evidence of children.

Respondents' Arguments

• The respondents accepted that de recenti statements can corroborate the commission of the crime but disputed that such statements can corroborate identification of the perpetrator.
• They emphasized the unique Scottish requirement of corroboration and the risks of mistaken identity inherent in identification evidence.
• Respondents argued that corroboration of identification requires evidence from a source independent of the complainer, such as another eyewitness or forensic evidence.
• They maintained that the distinction between corroboration of commission and corroboration of identity is a well-founded legal policy safeguard against miscarriages of justice.
• Respondents highlighted that other jurisdictions do not impose a corroboration requirement but have alternative safeguards not present in Scots law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Morton v HM Advocate (1938 JC 50)	Held that de recenti statements were admissible only for consistency, not corroboration.	The court disapproved the dicta limiting corroboration but upheld the decision; refused to overrule the case.
Lord Advocate's Reference No 1 of 2023 (2024 JC 140)	Established that de recenti statements accompanied by distress can corroborate testimony of rape.	Formed the foundation for expanding the understanding of corroboration via de recenti statements.
O'Hara v Central SMT (1941 SC 363)	Defined scope and termination of res gestae in relation to temporal and spatial proximity.	Used to clarify when statements form part of the res gestae and are thus corroborative.
McLennan v HM Advocate (1928 JC 39)	Recognized de recenti statements as corroborative of the crime's commission.	Referenced as an example of pre-Morton authority supporting corroborative effect.
McCrindle v MacMillan (1930 JC 56)	Allowed de recenti statements to corroborate identity of the accused.	Considered an outlier; overruled by Morton but discussed in the court's analysis.
Ralston v HM Advocate (1987 SCCR 467)	Established that very little corroboration is needed once positive identification by complainer exists.	Used to assess the sufficiency of corroboration in identification evidence.
Ready v HM Advocate (2009 SCCR 380)	Confirmed the principle that corroboration is required for identification evidence.	Supported the view that corroboration safeguards remain vital in identification cases.
Gage v HM Advocate (2012 SCCR 161)	Highlighted the notorious risk of wrongful convictions from mistaken identification.	Referenced to emphasize the importance of corroboration and jury directions.
Finnegan v HM Advocate ([2024] HCJAC 33)	Reinforced the need for care in assessing identification evidence due to fallibility.	Supported arguments for maintaining corroboration requirements.
Anderson v McFarlane (1899 1 F (J) 36)	Accepted statements made shortly after the event as corroborative evidence.	Illustrated historical acceptance of de recenti statements for corroboration.
Teper v The Queen ([1952] AC 480)	Confirmed the res gestae exception to hearsay in Commonwealth jurisdictions.	Referenced to support the scope of res gestae in Scots law.
Ratten v The Queen ([1972] AC 378)	Developed the test for admissibility of statements based on spontaneity and risk of concoction.	Used as comparative authority for Scots law on hearsay exceptions.
R v Andrews ([1987] AC 281)	Affirmed the test for hearsay admissibility focusing on whether concoction or distortion can be disregarded.	Supported the approach to res gestae and corroboration in other common law jurisdictions.

Court's Reasoning and Analysis

The court undertook an extensive review of the historical evolution of the law concerning de recenti statements and the res gestae exception to the hearsay rule. It noted that prior to Morton, the law did not sharply distinguish between de recenti statements and res gestae, often treating de recenti statements as a consequence and continuation of the res gestae and thus admissible as proof of fact and corroborative evidence.

The court accepted that a statement forming part of the res gestae is admissible as proof of fact and corroboration, whether relating to the commission of the crime or the identity of the perpetrator. It further held that a de recenti statement, whether accompanied by distress or not, constitutes independent evidence capable of corroboration. The rationale is that the person reporting the de recenti statement is independent of the complainer, and the statement reflects spontaneous, unreflected feelings closely connected to the event.

The court identified two key elements for a statement to be corroborative: temporal proximity to the event and spontaneity of expression, with distress being relevant but not essential. A statement ceases to be de recenti when it is no longer recent or when there is an opportunity for reflection or concoction. The court disapproved the narrow scope of res gestae defined in Morton, though it did not overrule the case itself.

However, a significant point of divergence arose regarding whether a de recenti statement can corroborate identification evidence. The majority of the court held that it can, reasoning that the reporting witness constitutes an independent source of evidence separate from the complainer. They emphasized that the safeguards in Scots law, including the requirement for corroboration, legal representation, disclosure, and judicial directions, provide adequate protection against mistaken identity.

In contrast, a minority opinion expressed concern that allowing de recenti statements to corroborate identification would undermine the crucial safeguard of requiring corroboration from an independent source distinct from the complainer. This view stressed the high risk of miscarriages of justice from mistaken identity and advocated maintaining the distinction between corroboration of the crime and corroboration of identity evidence.

The court also considered comparative jurisprudence from other common law jurisdictions, noting that while they do not impose a corroboration requirement, they have alternative safeguards such as jury unanimity or qualitative sufficiency assessments. The court cautioned against uncritically importing foreign concepts into Scots law, which has unique evidential requirements.

Holding and Implications

The court issued the following determinations in response to the four questions posed:

• A de recenti statement is corroborative on its own, even in the absence of distress.
• A de recenti statement can corroborate both that the crime was committed and that the accused committed it. (This holding was by majority; a minority dissented on the identification aspect.)
• A statement ceases to be de recenti when it is no longer recent or when it is no longer made to the first natural confidante, or when there has been an opportunity for concoction or reflection.
• The decision in Morton v HM Advocate is correct and should not be overruled, but the dicta limiting the corroborative effect of de recenti statements and narrowly defining the res gestae are disapproved.

The direct effect of this decision is to confirm and clarify the evidential status of de recenti statements in Scottish criminal law, expanding their corroborative value and simplifying evidential rules. The court emphasized the importance of clear, practical rules to avoid jury confusion and miscarriages of justice.

While the majority accepted that de recenti statements can corroborate identification evidence, a minority cautioned that the corroboration requirement must be preserved as a vital safeguard against mistaken identity, underscoring the need for independent corroborative sources in such cases. This divergence highlights an ongoing tension in evidential policy balancing probative value and protection of the accused.

No new precedent overturning Morton was established, but the court formally disapproved certain dicta from that case, signaling a shift towards a more expansive understanding of de recenti evidence consistent with historical authorities and modern evidential principles.