CORROBORATION

One of the fundamental principles of Scots criminal law is likely to be abolished under sweeping reforms of the justice system in Scotland.

Justice Secretary, Kenny MacAkskill MSP, has published a Parliamentary Bill setting out plans to remove the requirement of corroboration, the need for two separate sources of evidence to secure a conviction in criminal cases in Scotland.

The move to scrap the medieval principle is based on a desire to improve rape conviction rates. Lack of corroboration can prevent successful prosecutions.

The Criminal Justice Bill also sets out plans to increase the number of jurors required for a guilty verdict. This would go up from a simple majority to two-thirds of jury members.

Tougher sentences for crimes committed by early release prisoners would also be introduced, and there will be a review into the controversial ‘not proven’ verdict, which Sir Walter Scott famously called the ‘bastard’ verdict.

Many in the criminal justice system, however, including police officers, judges and lawyers, believe that ending corroboration would make miscarriages of justice and unsafe convictions more likely.

Mr MacAskill said:

… I have made clear a number of times that I believe that the requirement for corroboration should be abolished as it can represent a barrier to justice.

… It is an outdated rule which can deny victims the opportunity to see those responsible for serious crimes being brought to justice. Removing the need for corroboration represents a move towards focusing on the quality of evidence rather than quantity.

The issue was a key recommendation of Lord Calloway’s 2011 review of Scots Law and practice, which called corroboration ‘an archaic rule’.

Lord Carloway said it had remained at the heart of Scotland’s criminal justice system ‘since time immemorial’ but was based on ‘medieval’ thinking which had no place in a modern legal system.

But The Law Society of Scotland has described corroboration as a ‘fundamental principle’ of the justice system, and warned that removing it could make some convictions insecure.

A statement issued by the society’s criminal law committee, said:

… We believe that removing the requirement for corroborated evidence, without including sufficiently strong safeguards in the Bill, could simply result in a contest between two competing statements on oath and, as a result, bring increased risk of miscarriages of justice.

… The requirement for corroborated evidence is not an antiquated, outmoded legal notion but is a fundamental principle of our justice system.

… It’s clear that the concerns expressed by the society and others about juries have been recognised as the Bill proposes a move to a weighted majority from a simple majority, but we don’t believe this is sufficient to remove the risks created by abolishing corroboration.

Lib Dem MP Sir Menzies Campbell, who practised as a legal advocate for many years in Scotland’s High Court, said these proposals amount to populism at its worst. Sir Menzies said that corroboration is an essential component of the presumption of innocence and a necessary bulwark against false accusation and injustice. The former leader of the Lib Dems also highlighted that, as the power of the state increases, the protection of the rights of the citizen has become ever more imperative.

A spokesperson for Rape Crisis Scotland, backed the proposals, saying:

… It can’t be right to have a justice system where three-quarters of rapes reported to the police can’t be prosecuted.

… However, we need to be realistic about the prospect of this leading to increased convictions; this Bill will remove a barrier to cases getting to court, but it will still be for juries to make a decision beyond reasonable doubt.

… With the change to jury majority, it is even more important that we consider how to ensure jury decision-making in rape cases is informed and free of stereotypes and prejudices.

… We are disappointed, however, that the legislation will not be retrospective.

… This means that, even after the requirement for corroboration is abolished, survivors of historic sexual abuse will continue to face this barrier to justice, as their cases will continue to require corroboration.

ANALYSIS

Loss of key safeguard in the Scottish justice system.  

Our Government in Scotland welcomed the report by Lord Carloway in 2011 that looked into aspects of our justice system. This came following the Cadder case when the UK Supreme Court pointed out that, like almost everywhere else, Scotland should allow a suspect to speak to a solicitor before being interviewed by the police.

The report by Lord Carloway contained much that would modernise our legal system and make it human-rights proof in many ways. But the report also recommended the abolition of corroboration due to it being ‘archaic’ and a barrier to the conviction of some guilty people.

Some legal practitioners and analysts saw this change as involving a necessary rebalancing of the system to compensate for the convictions that previously depended on confession evidence, typically rape cases where the fact of sexual intercourse must be corroborated.

Others suggested this was too simplistic a view, and, in any event, even after the Cadder ruling, most suspects were still interviewed without legal advice and representation, as many seem not to understand their rights and the implications of being interviewed without proper advice.

Corroboration is accepted by the rest of all of our High Court judges, and is seen as an essential safeguard against miscarriages of justice. The Scottish Government, though, agreed it had to go.

Statistically insignificant and artificial testing done for the Carloway Review suggested there would be more convictions without corroborating evidence. Little thought seems to have been given to the quality of the convictions in the absence of corroboration.

Any system can increase the conviction rate by removing essential safeguards, but a safeguard-free, target-led justice system will guarantee the conviction of the innocent along with the guilty. Convictions should always depend on the quality of the evidence; any dilution can only increase the chances of a miscarriage of justice.

It has been suggested that corroboration was only about quantity of evidence – but to many it offered a quality check and avoided prosecutions being mounted on the word of a single witness.

With only now a rather submissive justice committee in the way, a key safeguard against miscarriages looks likely to be abandoned without any satisfactory answer or provision as to its replacement.

The Criminal Justice Bill seems certain to amend the majority required for a guilty verdict in Scotland – ten rather than eight out of 15 for a guilty verdict – but, how much comfort will that give to the wrongly accused in such a tinkering of the system?

And, most cases don’t involve juries. What safeguards are in place for them? The High Court judges suggested a proper review of the whole system of safeguards but that was politically overruled by the Scottish Government.