The Appeal Court has changed what the Crown can rely on in rape cases. If you are under investigation, or someone close to you is, here is where you stand, what has changed, and what to do before you say a word to the police.
If you have been accused of rape or sexual assault, or you have heard that a complaint has been made, the most important thing is the first step. Get advice from a solicitor before you speak to the police, and before you contact anyone connected with the allegation.
What you do and say before you even speak to the police has become even more important since 25th September 2026, when the Appeal Court of the High Court of Justiciary delivered its opinion in HM Advocate v PK [2026] HCJAC 42. It changes what a suspect's own first words can do to their defence.
What should I do if I am accused of rape or sexual assault in Scotland?
Whatever stage you are at, these very important points apply:
Ask for a solicitor before you answer any questions. If you are arrested, or asked to attend a voluntary interview, you are entitled to speak to a solicitor first and to have one with you. Free police station advice does not depend on your income.
Do not try to explain it away. A friendly chat with an officer is still evidence. Nothing you say informally can be taken back.
Do not contact the person who has made the allegation, directly or through friends or family. It can make your position far worse, and may breach bail conditions or amount to a separate offence.
Keep everything. Do not delete messages, photos, call logs or social media posts, however unhelpful they seem. Your solicitor needs to see all of it.
Call a specialist early. How a case is handled from the first police contact onward matters more now than ever.
What did the Appeal Court decide in HM Advocate v PK?
Scots law has long held that no one can be convicted on the evidence of a single witness. That rule is called corroboration. It exists to protect against a conviction resting on one person's word, however sincere.
For many years in sexual offence cases the rule was applied to each crucial fact separately. In a rape case, that meant independent evidence of intercourse and independent evidence of lack of consent. Evidence that sex had happened could not corroborate that it had happened without consent.
That has been changing in three steps.
Lord Advocate's Reference No 1 of 2023. A seven-judge bench ruled that what must be corroborated is the Crown's case as a whole, namely that the crime was committed and that the accused committed it. Independent evidence of a complainer's distress became capable of corroborating her account that she was raped.
References Nos 2 and 3 of 2023. The court extended the same approach to what a complainer says shortly after the event.
PK (25 September 2026). The court applied the same logic to forensic evidence and to what the accused himself says.
The court held that:
Forensic evidence of penetration can corroborate a complainer's account of rape.
DNA on a complainer's clothing or body can corroborate an account of sexual assault.
Any circumstantial evidence of penetration can do the same.
The Crown must still corroborate both that the crime happened and that the accused did it, but a piece of evidence that once supported only one element can now support the whole case.
Can a "consent" defence still work?
This is the question most people facing these allegations ask, and the honest answer is that it is harder than it was.
In a consent case, intercourse is usually not what the trial is about. It is common ground. Yet the court said that a statement by the accused that intercourse took place is in the same position as scientific evidence of it. That applies even where the statement is a mixed one, accepting intercourse but saying it was consensual. It is capable of corroborating the complainer's account that she was raped.
Put simply, "we had sex, but it was consensual" can no longer be treated as a safe thing to say in a police interview. Whether to give a full account, a prepared statement or no comment at all is a decision that carries real risk, and it should never be made without a solicitor at your side providing crucial advice.
Why is the legal profession divided on this?
It would be wrong to present this as one-sided.
The Dean of the Faculty of Advocates, Roddy Dunlop KC, provide his critique in Scottish Legal News on 28th September 2026. He argues that corroboration in sexual offence cases has been emptied of substance while keeping its name, and that evidence of an undisputed fact now supplies corroboration for the disputed one. He also says a change this size belongs with Parliament. He is clear that these are his personal views and not those of the Faculty.
The court's reasoning is that distress, which says nothing about penetration, was already accepted as capable of corroborating the whole crime. On that logic, evidence of penetration, which says nothing about consent, must be treated the same way. The court stressed that corroboration remains an important safeguard, that the jury must still accept the evidence and be satisfied beyond reasonable doubt, and that cases where such evidence is the only corroboration will be rare. Those who speak for complainers have argued for years that the old rule stopped serious allegations ever reaching a jury.
What still protects someone accused of rape in Scotland?
The standard of proof. The Crown must still prove every element beyond reasonable doubt. For rape, that includes that the complainer did not consent and that the accused had no reasonable belief that she did.
The jury. Corroboration is a threshold. Whether the evidence is credible, reliable and actually fits together is for the jury.
Identification must still be corroborated.
The verdict rules. Since 1 January 2026 the not proven verdict was abolished, and a conviction needs at least ten of fifteen jurors.
How does the ruling affect how a defence is prepared?
The first police interview matters more than ever. What you accept at that stage can be used to supply corroboration.
Agreements with the Crown need careful thought. In PK, DNA findings were the subject of a joint minute of agreement. Agreeing forensic findings can look like tidying up undisputed facts. It can also supply a second source of evidence.
A no case to answer submission is harder to win, which moves the fight to where it will be decided: in front of the jury.
Preparation counts even more. The defence now rests on testing the quality of the evidence, not just its quantity. That means early work on messages, phone data, CCTV, timelines, earlier statements and the interpretation of forensic evidence. It takes time and cannot be done in the days before a trial.
Will legal aid cover my defence?
Free advice at the police station is available whatever your income. For court proceedings, legal aid depends on your circumstances and on the type of case. We will check your eligibility on the first call so you know where you stand before any decision about cost. You can find our private fee information on our Fees page.
Criminal defence solicitor in Alexandria, West Dunbartonshire and Stirlingshire
We act for clients facing serious allegations across Alexandria, Dumbarton, Helensburgh, Clydebank and the villages of West Stirlingshire, as well as across the whole of the West of Scotland, at every stage from first police contact through to trial. We deal with these cases with the discretion they require, and we will tell you honestly where you stand.
Everything you tell us is confidential. You can see us at our office at 102 Main Street, Alexandria, or we can talk by phone or video. If you have already been contacted by the police, tell us when you call so we can act quickly.
Call 01389 756785 or contact us online.
Frequently asked questions
Can you be convicted of rape in Scotland on one person's word?
Not on the evidence of a single witness alone. The Crown needs corroboration. But what counts as corroboration has widened, and after PK it can include forensic evidence of intercourse and a suspect's own statement that intercourse took place.
Should I talk to the police without a solicitor if I have nothing to hide?
No. If you are arrested or asked to attend a voluntary interview, you are entitled to a solicitor first. Innocent people often damage their own defence in a police interview, usually by trying to be helpful.
Is the not proven verdict still available in Scotland?
No. It was abolished on 1 January 2026. A conviction now requires at least ten of fifteen jurors.
What if the police ask me to attend a voluntary interview?
Treat it as seriously as an arrest. Contact a solicitor before you go, and do not attend without one.
Should I contact the person who made the complaint?
No. Do not make contact directly or through anyone else. Speak to a solicitor first.
Further reading
HM Advocate v PK [2026] HCJAC 42, Opinion of the Court, 25 September 2026: https://www.scotcourts.gov.uk/media/21wixefc/2026hcjac42-reference-under-section-123-1-of-the-criminal-procedure-scotland-act-1995-by-his-majesty-s-advocate-against-pk.pdf
Roddy Dunlop KC, "The death of corroboration", Scottish Legal News, 28 September 2026: https://www.scottishlegal.com/articles/the-death-of-corroboration-how-the-law-of-scotland-took-a-wrong-turn
This article is general information about the law in Scotland and is not legal advice on any individual case. It does not express any view on the guilt or innocence of any person. The respondent in the case discussed is anonymised in the court's opinion. The views attributed to the Dean of Faculty are his own, as he states in his article. The law described is correct as at the date of publication and may be developed or changed by later decisions or legislation.