Briefing: Criminal law and determining de recenti statements

Adrian Fraser examines the role played by case law in a recent decision from the Sheriff Appeal Court.

In a previous article for the Journal I discussed the seven-judge decision in the Lord Advocate’s Reference (No. 1 of 2023), also known as HMA v CLB [2023] HCJAC 40 (CLB), which overruled Smith v Lees 1997 JC 73 and Cinci v HMA 2004 JC 103 on the role of distress in proof of a crime. It also disapproved obiter dicta in Morton v HMA 1938 JC 50 on de recenti statements in so far as bearing on proof of a crime. This was all while clarifying what corroboration means in the law of Scotland.

This was a highly important decision, which has impacted significantly the day-to-day work in the criminal courts.

I thought that it might be useful to pick up where I left off and deal with the issue before the Sheriff Appeal Court (SAC) in the appeal against conviction by stated case MXG v PF Edinburgh [2026] SAC (Crim) 3.

The question to be determined by the SAC was whether the evidence led by the Crown at a trial diet of a statement made by a complainer to a witness can constitute a de recenti statement in the absence of primary evidence from the complainer, and in the absence of direct evidence as to precisely when the incident that gave rise to the statement took place.

Case Context

The appellant was initially charged on summary complaint with a contravention of Section 1 of the Domestic Abuse (Scotland) Act 2018, aggravated in terms of Section 5 of the Act by involving a child.

At the end of the trial, the sheriff convicted the appellant of assault at common law, an alternative verdict available in terms of Schedule 3(14) of the Criminal Procedure (Scotland) Act 1995.

The conviction was in the following terms:

“Between 1 August 2023 and 8 June 2024, both dates inclusive, at […] Edinburgh, and elsewhere, you [MXG] did act in an aggressive manner; on an occasion you did assault MG, punch her on the head and seize her on the neck and on 8 June 2024, at […] Edinburgh, assault MG, repeatedly strike her on the head to her injury and did by means unknown damage a door there.”

Leave to appeal in relation to the conviction for assault arising from the incident on 8 June 2024 was refused, leaving the SAC to consider the conviction of an earlier incident which occurred between 1 August 2023 and 8 June 2024.

Examining evidence

The evidence that related to the incident that took place between 1 August 2023 and 8 June 2024 came from RB, a friend of the complainer, MG. The Crown did not lead evidence from MG.

RB gave evidence that she was a friend of MG. She knew the appellant to be the husband of MG. RB identified the appellant in court. One night in August 2023 MG came to RB’s house between 9pm and 10pm. She was crying and asked to stay for a while in RB’s house. RB was shocked that MG was crying. MG talked about trouble she had had with the appellant. MG had her small child with her.

MG told RB that she was crying because the appellant was drunk, that the appellant had kicked her out of the house, and had “given her a punching”. MG had bruising on her face and a bruise on her neck. In relation to the bruising to her neck, MG demonstrated a strangling motion to RB saying that it was “tight by the hand”. She stayed with RB for one night.

The sheriff explained in the stated case that during the evidence, the solicitor acting for the appellant objected to RB’s evidence and submitted that:

• The evidence of MG’s de recenti statement was available for corroboration of MG’s evidence only.

• The Crown had not led evidence from MG.

• The de recenti statement could not be used as a primary source of evidence.

The sheriff repelled the objection under reference to paras 230 and 237 of CLB, from which he concluded that a de recenti statement by a distressed complainer was available as proof of fact and corroboration of other evidence. It was real evidence and all that was required was for it to be spoken to by a witness.

On behalf of the appellant

It was submitted on behalf of the appellant at the appeal hearing that:

• The statement given by MG to RB could not truly be said to be de recenti as there was no evidence as to when the event which gave rise to the giving of the statement was made.

• It could not be said that the statement was truly de recenti as the complainer had not testified at the trial and MG had not advised RB as to when the events took place.

• While there was evidence that bruising was seen on the complainer, MG, the bruising could not be timed and was therefore of no assistance in determining when the events that had caused it took place. There was no evidence upon which the court could rely to establish the proximity of the incident on the one hand and the making of the statement on the other. The witness RB could speak to when the statement was made and to MG’s injuries, but there was no evidence before the court as to when the incident complained of took place.

• Although in a finding in fact within the stated case the sheriff had concluded that the account was given by MG to RB “immediately afterwards” (ie immediately after the incident), there was no evidential basis for the sheriff to include the word “immediately” in the finding in fact. Similarly, the sheriff’s observation within his note forming part of the stated case that the “injuries were described in such a way as if they had only just been inflicted” had no basis in the evidence.

On behalf of the Crown

It was submitted by the advocate depute for the Crown at the appeal hearing that:

• The sheriff was entitled to treat the complainer’s statement to RB as de recenti and nothing turned on the fact that the complainer did not give evidence.

• Support for the finding in fact (and consequently the sheriff’s finding that the statement was made de recenti) could be taken from: the timing of the complainer’s arrival at RB’s house between 9pm and 10pm; that she was injured; that she was carrying her child; the request of the complainer to stay with RB; and that her reason for being there was because the appellant had assaulted her and thrown her out of the house. All of this was accompanied by the distress exhibited by the complainer.

• The inference to be drawn was that the statement, made while the complainer was distressed, was a natural outpouring of feelings aroused by the recent injury which had still not subsided. The statement of RB could be regarded properly as a de recenti statement accompanied by de recenti distress and injury. The sheriff had correctly concluded that the evidence of RB was evidence to the first natural confidante, allowing it to qualify as a de recenti statement. Not only was the statement properly categorised as de recenti, but the sheriff would also have been justified in treating it as a part of the res gestae. (The SAC ultimately declined to address the question of res gestae as, given its decision in the appeal, it was unnecessary to do so.)

SAC decision

In refusing the appeal the SAC stated at paras 22, 23, 24, 25, 27, 28 and 30:

“22. […] From the facts and circumstances led in evidence the sheriff was entitled to infer that the statement made to RB by MG was properly categorised as de recenti. The sheriff was entitled to have regard to the following: (a) MG’s distress (as evidenced by her crying); (b) her request to stay at RB’s house for a while; (c) her attendance at RB’s house with her […] small child; (d) her explanation that she was crying because her husband (the appellant) was drunk, had assaulted her and had kicked her out of the house; and (e) the injuries to MG namely the marks on her face and neck.

“23. There is also one other factor […] referred to within para [1] of the findings in fact, which is the fact that RB lived ‘nearby’. While the Crown did not specifically rely on this aspect of the evidence […] it is an important feature, particularly in relation to the point raised by the defence about the lack of evidence referable to the timing of the incident.

“24. […] the accumulation of identified factors in paragraphs (b) to (e), coupled with the complainer’s distress, entitled the sheriff to hold that the complainer’s interaction with RB was a natural outpouring of her feelings aroused by the recent incident and recent injury articulated to the first natural confidante who resided nearby. The fact that RB allowed MG to stay the night emphasises her status as the first natural confidante.

“25. The fact that the complainer did not testify, that she did not specifically state when she was assaulted, or the inability of the court, in the absence of expert testimony, to attribute a specific timeline to the injuries sustained by the complainer were factors for the consideration of the sheriff […] they are not, in and of themselves, necessarily determinative and such features need to be considered in the context of all the evidence led.

[…]

“27. […] direct evidence from a complainer is distinct from the evidence of a third party about that complainer’s de recenti statement accompanied by distress. As such the sheriff was entitled to treat them separately and allow the evidence of the statement and the distress as distinct from the complainer’s direct evidence. The Lord Advocate’s Reference (No. 1 of 2023) at para [234] disavows the proposition that a de recenti statement is a special type of evidence which is only available to corroborate the direct evidence of a complainer. The decision in the Lord Advocate’s Reference (No. 1 of 2023) to overrule Cinci v HM Advocate 2004 JC 103 confirms that position.

“28. […] RB’s evidence in this case about MG’s de recenti statement is distinct from any other account of the incident that might have been given directly by MG. The de recenti statement can be considered as proof of fact independently. The sheriff was entitled to regard RB’s evidence of: (i) the de recenti statement made by MG; and (ii) the distress exhibited by MG, as evidence that was independent of any account that might have been given directly by the complainer in evidence. That being the case, the absence of evidence from the complainer in this case is not critical. The court is entitled to consider other evidence to determine if a statement is de recenti, which is what the sheriff did in this case.

[…]

“30. The next matter to be considered was whether there was corroborated evidence of the assault. In this case corroboration came from the de recenti statement and the application of the doctrine of mutual corroboration. The de recenti statement provided real evidence that an assault was committed and that the appellant was the person who committed it; thereafter, mutual corroboration operated between that assault and the evidence led in support of the assault on 8 June 2024, there being obvious similarities in time, character and circumstance between the two assaults. For that reason, the sheriff did not err in repelling the no case to answer submission. The appellant did not dispute that if we held that the statement made to RB was de recenti, that there was a sufficiency of evidence before the sheriff to allow him to proceed to conviction.”

It is now becoming more and more common for complainers not to be called to give evidence in cases similar to this. The impact of this will vary from case to case depending on the totality of the evidence available. As can be seen from the opinion of the SAC, here there were supporting facts and circumstances which assisted the court in assessing the evidence before the court.