APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
 HCJAC 26
Appeal No: XC85/10
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
RONALD JAMES ADAMSON
HER MAJESTY'S ADVOCATE
Appellant: Shead, Moll; John Pryde & Co., Edinburgh
Respondent: Cherry, Q.C., A.D.; Crown Agent
9 March 2011
Conviction and sentence
 The appellant was convicted after trial of five charges of sexual offences against two females when they were each girls or young women. Both victims were granddaughters of the appellant's then partner. In relation to one of them the convictions were of lewd and libidinous practices over a five year period when she was under the age of 12 and of contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 when she was between 12 and 15. In relation to the second victim the first conviction was of lewd and libidinous practices over a three year period when she was under the age of 12 years and of contravention of section 6 of the 1995 Act when she was between 12 and 15. The last conviction was of rape of the second victim on a particular occasion when she was 15.
 On the first charge the appellant was sentenced to two years imprisonment, on the second, third and fourth cumulatively to an extended sentence, comprising a custodial term of five years and an extension period of three years, and on the fifth to an extended sentence of 12 years imprisonment, comprising a custodial term of nine years and an extension period of three years. All were ordered to run concurrently.
Matters not now in issue
 The appellant was granted leave to appeal both against conviction and against sentence. At the hearing his counsel stated that, in respect of the first four charges, it was recognised that, while there may have been a misdirection by the trial judge, it could hardly, in light of decided authority, be said that there had been a miscarriage of justice. Time, he said, would not be taken up presenting an argument in relation to these charges. In effect, as we understood it, the relative ground of appeal was not being insisted in. We, therefore, say nothing further about it. We also note that although the grounds of appeal raised an issue as to the identity of the perpetrator of the offence in charge 9, that issue was not pursued before us.
 At the time of the alleged incident the appellant was about 45 years of age. The complainer, as we have said, was 15. The appellant at that time worked for the local authority, being the site manager at a civic amenity site. The complainer was a daughter of a daughter of the appellant's partner. She regularly visited her grandmother and knew the appellant well. The complainer, at the time of the alleged incident, had a part-time evening job as a cleaner at the appellant's place of work, for which she received modest remuneration from the appellant. Normally her father, who also worked at the civic amenity site, drove her home after work by car but on the evening in question he was ill and left early. When the complainer had finished her cleaning duties the appellant asked her to stay to assist him in retrieving scrap metal. She did so in the expectation that thereafter the appellant would drive her home. After this work was completed the appellant asked her to lock one of the site gates and then to go to the office area. She did so. No one else was around.
The complainer's account
 According to the complainer's evidence, the appellant then entered the office area and began to kiss and cuddle her; he handled her private parts into which he inserted his fingers; he took her trousers down. She struggled and tried to get away but the appellant told her to stop teasing him and said "Fuck me, bitch" before pushing her over a worktop, rubbing her private parts with his hand, handling her breasts and her bra and penetrating her vagina from behind with his penis. Again she tried to get away but he would not let her. He persisted until ejaculation. Immediately afterwards he gave her £20 for her work and said "Don't tell anybody about this". There is nothing to suggest that at the time the complainer was other than a fit young woman, unaffected by drink or drugs.
 The appellant thereafter drove the complainer to her grandmother's house. She did not want to stay overnight there and told her grandmother that she wanted to go to a nearby farm where some of her friends were camping. Her grandmother instructed the appellant to drive her there. The complainer was reluctant to accept a lift from him but at this stage was, she testified, afraid to say anything. She said nothing at the time to her grandmother about what had happened at the site. Later that evening she made an unsuccessful attempt to speak by telephone to her social worker, Miss Darroch.
 The next morning she told her mother by telephone what had happened. She was told to come home. Her father came to collect her. After she arrived she said in the presence of a number of people, including the appellant and her grandmother: "[The appellant] raped me last night" and gave a description of what had occurred. The appellant denied the truth of her account. Her mother apparently told her, "Don't go the police, it will kill your gran." The complainer's grandmother instructed the complainer to have a bath, which she did.
 Later that day the social worker called at the house and the complainer gave her an account of what had happened the previous evening. The social worker took her to stay elsewhere and the next morning arranged for her to be medically examined. The complainer was at this time suffering from dysuria, urgency of micturition and left loin pain. She was unwilling to report her account of rape to the police but was prepared to see a general practitioner in relation to the above symptoms. She was so examined - by a Dr Gemmell, to whose testimony we shall return.
 No report was made to the police at that time. However, some two years later, a third granddaughter of the appellant's partner having made it known that she also had been sexually abused by the appellant, the family reported the whole matter to the police. In the event there were allegations of sexual abuse in various forms made against the appellant by four granddaughters of his partner. One of these (ultimately charge (6) on the indictment) was of assault with intent to rape of a granddaughter other than the complainer on the charge of rape. That charge was found by the jury to be not proven. Throughout the police investigation and the trial the appellant denied any impropriety with any of his partner's granddaughters.
 The issues in this appeal are in substance two-fold: (1) whether there was corroboration of the complainer's evidence that her vagina was penetrated by the appellant's penis and (2) whether, if there was, there was corroborated evidence that at the time of such penetration the appellant had the mens rea for rape. Associated issues arise in relation to the directions given by the trial judge to the jury on these matters.
 There was direct evidence from the complainer that she was penetrated by the appellant. At no stage did the appellant admit that he had penetrated her. There were no specimens of bodily fluid which might have provided corroboration. Mutual corroboration was in the event unavailable, the jury having acquitted the appellant on the charge of assault with intent to rape. Before us, the Crown relied for corroboration on two sources of evidence: that of Dr Gemmell and the observed reaction of the appellant when he was informed that the complainer's accusation was not to be reported to the police (to which we shall return). The trial judge in this connection charged the jury that "these two strands of circumstantial evidence may be somewhat ambiguous and may be capable of an innocent explanation. In combination depending on the view which you take of them they are capable of providing confirmation and support [of the complainer's evidence of penetration]". In the event the jury, following these directions, must have accepted both strands and taken the view that in combination they provided the requisite confirmation or support.
 Dr Gemmell, as we have said, medically examined the complainer in relation to her symptoms on 11 August 2005, the second day after the alleged rape. At the time of the trial in December 2009 she had no personal recollection of that examination. She was dependent on the medical notes which she had made at the time - which were lodged as a production and spoken to in evidence. In these notes under 11 August 2005 Dr Gemmell had entered in the complainer's medical records, "Raped by a family member (not direct family) two days ago", "c/o [complaining of] left loin pain" and "o/e [on examination] ... tender ++ in left loin and slightly suprapubic". She testified that the tenderness over the loin usually would indicate inflammation of the kidney. She had noted that her impression at the time was that the complainer had a renal tract infection. This was consistent with her complaints of dysuria, urgency of micturition, passing urine frequently and left loin pain. When asked in evidence-in-chief what might have caused the renal tract infection she responded: "Certainly you can have renal tract or urinary tract infections post intercourse, its one of the causes for them. Not the only one, but it is one of the causes for a urinary tract infection." [Dr Gemmell had explained that renal tract infection was a more extensive form of urinary tract infection.] Having formed that impressionistic diagnosis she asked the complainer to hand in a urine sample to the surgery to confirm the diagnosis. In cross-examination it emerged that there was no record that her urine had in fact been tested. Dr Gemmell accepted from counsel the proposition that "the only way of demonstrating whether [her impressionistic diagnosis] is right or not ... is to have a urine sample tested". A number of other possible causes of renal/urinary tract infection were put to her - dehydration and poor hygiene. She accepted these as possibilities.
 Dr Gemmell was not asked expressly about the timescale for the onset of renal/urinary tract infection following intercourse but it is plain that, having taken a history from the complainer that she had been raped two days earlier, she formed the impressionistic diagnosis that intercourse could have caused it. It is thus implicit that she regarded intercourse two days earlier as a possible cause of the symptoms displayed by the complainer on 11 August. There was no evidence that a urine sample was taken from the complainer or, if it was, what were the results of any analysis of it. The impressionistic diagnosis was accordingly not confirmed scientifically but that does not, in our view, deprive it of all value. Likewise, sexual intercourse was not the only possible cause of any renal/urinary tract infection which had occurred: dehydration and poor hygiene were alternative possible causes. There was, however, no evidence to support the proposition that either of these alternatives was present.
 About a week after the incident the appellant was told that the complainer's accusation was not to be reported to the police. His reaction was that he sat down and "broke his heart crying". That reaction was, of course, open to at least two interpretations, including relief that a well-founded accusation of rape was not to be investigated by the authorities or relief that an ill-founded, malicious accusation of that kind was not to be taken further. Evidence of reaction can in some circumstances at least, have evidential value (McGill v HM Advocate 2000 SCCR 253) - to a greater or lesser degree.
 The issue is whether Dr Gemmell's testimony taken with the appellant's reaction could cumulatively have supported or confirmed the primary and direct testimony of the complainer that intercourse had taken place (Fox v HM Advocate 1998 SCCR 115, per Lord Justice General Rodger at page 126D-E). Although neither strand of testimony can be said to have been compelling in that regard they could, when taken together, in our view, be said to support or confirm the complainer's testimony and thus provide corroboration. Although there were alternative possible explanations for each, it was open to the jury to choose the explanations which fitted with the direct evidence (Fox, at page 126F). This ground of appeal must be rejected.
 The remaining issue concerns whether there was an evidential basis for concluding that the appellant had the mens rea for rape, that is, that he knew that the complainer was not consenting to intercourse or at any rate was reckless as to whether she was consenting (Lord Advocate's Reference (No.1) 2001) 2002 SCCR 435, per Lord Justice General Cullen at para ). The state of the appellant's mind at the material time was not capable of direct observation but was dependent on inference from other facts and circumstances.
 The Crown relied for this purpose primarily on distress exhibited by the complainer some time after the incident. The surrounding context was also important. It was not disputed that there was evidence of such distress. It was not exhibited immediately on the complainer's return to her grandmother's home shortly after the incident, although it was noticed that at that time she was "really tensed up and quiet" and was "puffy-eyed" and "red faced". The next day, having spent the night elsewhere, the complainer returned to her grandmother's house and told her relatives that she had been raped. She was, according to her grandmother, at that time, "very, very upset". This was confirmed by the social worker, Miss Darroch, who chanced to arrive shortly after this account had been first given. Earlier the same day the complainer had telephoned her mother, told her that she had been raped by the appellant and was crying on the phone. When her father picked her up to bring her home she was "really upset, but was trying not to be upset ...she was like sobbing and trying not to sob". The previous evening the complainer had sent a text to Miss Darroch along the lines "something terrible has happened, can you come and speak to me".
 It was not suggested to us that, either because of its timing or its nature, the evidence of distress was irrelevant to the charge of rape. It was relevant and sufficient to demonstrate the complainer's state of mind at the material time. However it was not, so ran the argument, relevant to instruct the appellant's state of mind at that time.
 Prior to Lord Advocate's Reference (No.1) 2001, the general understanding of lawyers was that the use of force (which included the threat of its use) was a necessary constituent element of rape. Macdonald - Criminal Law of Scotland (5th ed.) defines rape at page 119 as "the carnal knowledge of a woman forcibly and against her will". At page 121 it is observed that there "must be force used and resistance shewn at the time of the intercourse, or recently before it." These propositions are supported by references to Hume and to Alison. It might still be rape if the will of the woman was overcome by plying her with drink or drugs with the intention of having sexual intercourse when she was insensible (Logan v HM Advocate 1936 JC 100). Otherwise, the taking of sexual advantage of a sleeping or otherwise insensible female was dealt with under the separate crime of clandestine injury. The review of the law carried out in Lord Advocate's Reference (No.1) 2001, on one view at least, enlarged the circumstances in which the crime of rape could be committed.
 Rape, of its nature, is commonly a clandestine crime in respect of which corroborated proof of all its constituents may be difficult. It is, however, clear that under the law, as generally understood prior to Lord Advocate's Reference (No.1) 2001, distress on the part of the complainer observed by another or others recently after the event could provide corroboration that the carnal knowledge had been had "forcibly and against [the victim's] will".
 In Yates v HM Advocate 1990 JC 378 (Note) (where the force alleged was threats, including the threat of the use of a knife) the court, presided over by Lord Justice General Emslie, said that, on the assumption that the jury accepted the girl as a credible witness and believed all her evidence of what took place, "what was left was the search for corroboration of her evidence of intercourse being forced upon her against her will". In that case it was conceded that there was sufficient evidence in law to justify the conviction; but the issue of what constituted corroboration of the force did not go by default. Lord Justice General Emslie at page 379, in dealing with a passage in the judge's charge, observed that the trial judge was "dealing with the broad and clearly correct proposition that evidence as to the condition of the alleged victim of rape is capable of affording corroboration of credible evidence, which the jury accept, that she has been raped" - that is, that the intercourse was "forced upon her against her will". There was no question of the evidential significance of the distress being restricted to the state of mind of the complainer; it went beyond that to the inference that in the circumstances her will had been overcome by force (on the part of the offender). It cannot be doubted that, if there is an evidential foundation for the use of force, it can readily be further inferred that the offender knew that the victim was not consenting to intercourse or at least was reckless as to whether she was.
 In subsequent cases, where the complainer alleged that force had been used against her, the correlation between her exhibited distress and the use of that force was acknowledged. In Smith v Lees 1997 SCCR 139 (a five judge case concerned with lewd and libidinous practices) Lord Justice General Rodger said at page 146:
"I have no difficulty with the Solicitor General's argument insofar as it suggests that evidence of a complainer's distress can corroborate her evidence that she was subjected to conduct which caused her distress. It seems to me to be equally legitimate in an appropriate case to infer from the fact that the conduct caused actual distress that it occurred against the complainer's will and hence that force was used by the offender. Evidence of distress can therefore corroborate a complainer's evidence that she did not consent to the accused's conduct and he used force to overcome her will."
At pages 171-2 Lord McCluskey said
"... once the evidence has clearly established the identity of the man, plus the fact of sexual penetration by him, and also the absence of consent, it appears to me to be perfectly legitimate, where genuine distress is observed, to infer that force must have been used to overcome the refusal of the consent. That would be a natural and legitimate inference in any case in which it was established that the woman refused her consent and that she was physically fit to resist unwanted sexual penetration. Accordingly, the inference which is legitimate in such circumstances can be used to corroborate the victim's direct evidence that force was in fact used. In my opinion, therefore, Yates was correctly decided and it is legitimate to use evidence of the distress of the victim as corroborative evidence."
 A new dimension to the crime of rape was introduced by the decision in Lord Advocate's Reference (No.1) 2001. This recognised that that crime could be committed where no force of any kind had been used against the victim - it was sufficient that the intercourse was not with her consent. This gave rise to novel situations as to the proof of the mens rea of the alleged offender in circumstances in which there was no suggestion that he had used force. The potential evidential difficulties to which this development could give rise were foreshadowed by Lord Marnoch in para  of his dissenting Opinion in Lord Advocate's Reference (No.1) 2001. Such difficulties did not take long to surface. In McKearney v HM Advocate 2004 SCCR 252 the complainer, who as a result of the accused's earlier conduct was afraid of him, did not protest or resist when he proceeded to penetrate her, although she was unwilling to have intercourse with him. In Cinci v HM Advocate 2004 SCCR 267 the complainer, who had been voluntarily drinking heavily and who was found with the accused in a shower, both being naked, had no recollection of the events surrounding the intercourse; there was no evidence of the use of force. In such circumstances the need for corroborative proof that the accused had the mens rea for rape was emphasised. On the other hand, in cases where the evidence of the complainer was that force had been used against her, the traditional approach to proof of mens rea (that is that the complainer's account together with independent proof of recent distress sufficed) was held to be appropriate - see Gordon v HM Advocate 2004 SCCR 641; Flynn v HM Advocate 2009 SCCR 651.
 In Spendiff v HM Advocate 2005 SCCR 522 the distinction between the evidential requirements of "forcible" and "non-forcible" rape was discussed. The Opinion of the Court was delivered by Lord Penrose. He said:
" McKearney raised more directly the question of what was required to determine whether the accused had the mens rea necessary for the act of intercourse to be characterised as rape. The Lord Justice Clerk doubted whether the complainer's distress observed de recenti could tell one anything about the accused's state of mind, but found it unnecessary to express a concluded view on the matter. That, however was a case where the Crown did not allege that force had been used, and the Lord Justice Clerk's statement was confined to that context in McKearney (at paragraph 16). This is not such a case.
 It is clear that there may be cases in which distress de recenti cannot instruct a jury as to the state of the man's mind."
[He then gives certain illustrations of circumstances where the victim's distress might or might not be instructive and continues.]
" Much depends on a proper analysis of the stage in the process at which the issue of mens rea falls to be determined and of the materials available to the jury at that stage. Of necessity intercourse will have been established. Equally the woman's lack of consent will have been established. If it is assumed that there is no evidence of violence, there will nevertheless usually be circumstantial evidence relating at least to the place, the individuals' relationship apart from the events complained of, and preceding events related to the incident. In Smith v Lees, the Lord Justice General, commenting on Yates v HM Advocate said (at page 148D):
'[E]vidence of the condition of the alleged victim of rape can afford "corroboration of credible evidence, which the jury accept, that she has been raped". Given the context in which this passage occurs, that is plainly an accurate statement of the law since a jury can infer from evidence of the complainer's distress that she did not consent to intercourse and that force must have been used.'
 Lord McCluskey similarly expressed the view that a legitimate inference could be drawn from distress and 'used to corroborate the victim's direct evidence that force was in fact used' (at page 171B). Lord Sutherland expressed his view of Yates as follows (at page 177C-E):
'The difficulty with distress is that on its own it gives no indication of what has been its cause other than that some event of an unspecified but distressing nature has occurred. It is indicative of a state of mind but it is not in any way indicative of the nature of the act which has caused that state of mind. In my opinion, therefore, the value of distress on its own as corroborative evidence should be limited to situations where it is necessary to establish the state of mind of the witness. Accordingly, in a rape case where it is necessary to establish that the penetration which ex hypothesi has been proved by evidence aliunde was without the consent of the witness, distress is properly available to provide corroboration of the lack of consent as it may be the only evidence available to establish the witness's state of mind. For that reason I consider that Yates was correctly decided. The accused admitted intercourse, which provided the necessary corroboration of that aspect. It having been established that intercourse took place, the distressed condition of the victim was apt to corroborate her evidence that that intercourse was without her consent. The combination of corroborated intercourse and corroborated lack of consent would entitle the inference to be drawn that her will had been overcome by force or fear. Accordingly, all the essential elements of a charge of rape were established by corroborated evidence.'
In relation to Yates, Lord Gill (as he then was) said (at page 184E):
'In Yates ... (the) crucial fact of penetration having been admitted by the pannel, the remaining facta probanda were that intercourse took place without the complainer's consent and that it took place by means of the use of force. Evidence of recent distress on the complainer's part was held to be capable of corroborating her evidence that she did not consent. If that was established it was legitimate for the jury to infer that her will was overcome by force.'
 He said that Yates was correctly decided. Force, at that time, in the extended meaning it had developed, was indicative of the accused's state of mind at the material time. The inference of the use of force justified the further inference that the accused had the mens rea required for the crime of rape. ..."
To this review of Smith v Lees it may be added that Lord Justice Clerk Ross (at page 161F) agreed with Lord Justice General Emslie's comments in Yates and was satisfied that that case had been correctly decided.
 Before us, counsel for the appellant placed much emphasis on the opening sentence of paragraph  in Spendiff. But as is clear from that sentence in its context, including the various citations from Smith v Lees, with the approval there of Yates, that in some, perhaps the majority of, cases, corroborated evidence of intercourse together with corroborated evidence of distress will suffice to justify an inference of the use of force (in its extended sense), thus instructing the mens rea of the accused. The surrounding context will be important, including the respective ages of the parties and their prior relationship, together with evidence from the complainer that she struggled or verbally protested. The context may also allow wider inferences, including what Lord McCluskey described in Smith v Lees as "a natural and legitimate inference" that force must have been used to overcome the refusal of consent by a fit and unimpaired female. Thus experience may suggest that in many circumstances (including the circumstances of the present case) a female who is subjected to sexual intercourse against her will may be expected to struggle or otherwise protest, such reaction being habile to instruct the necessary mens rea on the part of the accused.
 There is thus an ample body of well-reasoned authority that in cases of the present kind corroborated proof of intercourse together with corroborated proof of recent distress can in an appropriate context justify the ultimate inference that the accused knew that the complainer was not consenting to intercourse or at least that he was reckless as to whether she was so consenting. There is no need for this to be examined by a larger court.
 The trial judge's directions that distress in this case could permit the inference to be drawn that force was used, with the further inference of knowledge or recklessness on the part of the appellant, were well founded. This ground of appeal must accordingly also be rejected.
 In the whole circumstances the appellant's appeal against conviction must be refused. The case will be continued for consideration of his appeal against sentence.