CORROBORATION
Corroboration has been a central tenet of Scots Law for centuries. This invokes the necessity that evidence in criminal trials from one source must be backed by evidence from another source.
Just because the legal principle is old, should not necessarily mean that it no longer serves a modern purpose or, indeed, that it must be preserved. What matters more is whether changing the requirement for evidence in criminal trials would produce more benefit than loss to the judicial process.
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On this criterion alone, the debate on abolishing the corroboration requirement in Scotland looks less clear cut the more it continues. The contribution put forward by Professor Peter Duff of Aberdeen University is timely – and also well known – when he says that abandoning the need for corroboration may well yield much more information in criminal cases, but may also, less helpfully, muddy the waters.
For instance, in rape and sexual assault cases there are usually only two witnesses – the victim and perpetrator of the crime. Finding and bringing forward a corroborating witness is, therefore, often not possible. Because of that, it is argued, many potential prosecutions do not get to court – to the great anguish of the victim who is denied seeing justice being served. Abolishing the corroboration requirement would likely see more prosecutions.
But Professor Duff questions whether more convictions would be the result of changes to the law. A problem with sexual assault cases, he says, is that many victims at the time of the alleged assault may have been drinking, or have taken drugs, or have mental health problems. And, as is frequently common in criminal trials of this nature, the alleged perpetrator’s usual defence is that the supposed victim consented to sexual activity. Assuming that the corroboration requirement had been abolished, then the credibility of the victim and their denial of consent is pretty much all that is left to the jury as the basis for reaching a verdict. Prof Duff describes this as a ‘he said, she said’ scenario in which, he suggests, juries are reluctant to convict.
For some legal practitioners and advocates, the insertion of the drink, drugs and mental illness circumstances will be a misnomer. Women in these conditions may be more vulnerable to being sexually assaulted, but why should that make them less credible in their evidence, especially when the accused may also have been under the influence of drink or drugs?
Prosecutions in England are not based on the need for corroboration, and proceed on the basis of there being a reasonable chance of a conviction. Whilst this is a relevant point borne out by Prof Duff, the anecdotal evidence suggests that the conviction rate is no higher than in Scotland.
Abandoning the corroboration requirement, which the Scottish Government seeks to do, will simply shift the chances of a successful prosecution on to another equally intractable problem, that of the complainant’s credibility. This might offer the victim an opportunity in court in bringing to light the alleged crimes of the assailant more openly, but this is not the purpose of the Scottish Government’s proposed legislation, which is to increase the rape conviction rate.
Abandonment of a centuries-old legal principle in Scotland that has otherwise served the ends of justice well should only be done when the potential gain is overwhelming. It is extremely doubtful whether this will ever be the case.
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