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Corroboration: to be or not to be?

January 4, 2014

Written by Sanah Idrees (2nd Year LLB)

 

Corroboration has been a requirement in Scots law for centuries and has been as fundamental pillar in criminal law in terms of evidence. It is the need for evidence in criminal trials to come from two different and independent sources in order for a verdict beyond reasonable doubt to be given. Hume explains that, for there to be a conviction of a criminal offence, corroboration is required:

“No matter how trivial the offence and how high so ever the credit and character of the witness, still our law is averse to rely on his single word, in any enquiry which may affect the person, liberty and fame of his neighbour; and rather than run the risk of such an error, a risk which does not hold when there is a concurrence of testimonies, it is willing that the guilty should escape.”[1]

A proposal has been made to bring the abolition of corroboration, so why now has it been decided that our law is in need of change?

The Scottish Government wishes to remove corroboration to allow more cases to be brought to court, especially in cases of rape, sexual and domestic abuse. Although the Criminal Justice Bill 2014 is only at debate stages, there has been debate amongst lawyers and judges, particularly Lord Gill and Lord Hope, the Faculty of Advocates and the Law Society of Scotland who see corroboration as a step in the wrong direction. Whereas Justice Secretary Kenny Macaskill, Lord Advocate Frank Mulholland, Lord Carloway, Police Scotland and Rape Crisis see the removal as a progressive modern solution.

Corroboration’s purpose is to protect those who would be vulnerable to unreasonable sources of evidence being used against them. It is seen as a safeguard against potential miscarriages of justice and many now want it to remain in our law, as it has done for centuries.

The Bill that would bring the end of corroboration in criminal cases was based in light of the decision in Cadder v HM Advocate[2] after which Lord Carloway was asked to undertake a review of the Scottish criminal system which concluded that:

 

 “It is an archaic rule that has no place in a modern legal system where judges and juries should be free to consider all relevant evidence and to answer the simple question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled.”[3]

Section 57 of the Bill seeks to abolish the current general requirement for corroboration in criminal cases[4].

The Bill, which is to be debated in the Justice Committee, proposes to make provisions about the criminal justice system; from police powers and rights of suspects, to criminal evidence, procedure and sentencing.

Is the thought process behind the abolition of corroboration irrational? Is it the easiest way to allow more cases to be brought to court? As Lord Hope acknowledges[5], it is obvious that there continues to be a problem in cases of rape and sexual assault. There are no other witnesses, other than the victim and the accused. Yet, is getting rid of corroboration the only solution to this problem, or is it easier to do this, than to reform corroboration itself? Surely reforming corroboration is the lesser of two evils? Without corroboration, there would potentially be an increase in prosecutions brought to the court, but this would not necessarily mean that there would be more convictions. Reformation would create a balance. It would help solve the evidential problems in rape and sexual assaults cases, as well as keeping the long standing principle of corroboration in our law.

To tackle the difficulty of corroboration in sexual offences, the courts have developed doctrines to allow corroboration to be found in circumstances where it would otherwise be difficult to prove. The Moorov[6] doctrine is used where the accused is charged with two or more separate offences and there is only one piece of evidence for each of the crimes. Providing the crimes are so interrelated by character, circumstances and time, it can infer that they are parts of a course of criminal conduct that has been systematically pursued by the accused.[7] This will allow the evidence to be mutually corroborative. Furthermore, the Howden doctrine[8] has been developed to allow the accused to be convicted of more than one crime. This applies where the circumstances are so similar to other crimes that the accused has allegedly committed but where there is only weak identification evidence available for one of the crimes. It allows the accused to be convicted of both crimes, despite the weak identification evidence.  Further reformation should perhaps be considered before taking steps to remove corroboration altogether.

The Bill seeks to reform the jury system to allow for the abolishment of corroboration and to combat concerns of the removal of the safeguard that corroboration provides for. It would increase the requirement for a simple majority of only eight out of fifteen jurors in favour of a guilty verdict, to a qualified majority of ten out of fifteen. Although this higher threshold may allow for, arguably, a more robust outcome, it does not mean that the quality of evidence has been improved, which is the reasoning behind abolishing corroboration. Corroboration, as it stands, ensures the quantity of evidence available, allowing jurors to make a decision. Whereas abolishing corroboration seeks to improve the quality of evidence, rather than the quantity.

But does increasing the number of people to reach a verdict improve the quality of the evidence? Surely the jurors need a certain minimum amount of evidence to help them reach a decision which is what corroboration right now provides for. However, not everyone faces a jury trial - those who face summary proceedings where the judge decides whether they will accept the evidence. Corroboration is in place, as a guarantee, to ensure that the offence has been committed by the accused. However, with the enforcement of the Bill, there would be no checks or support in place to establish these facts. As there is no jury, there will be no further safeguard against wrongful convictions and potential miscarriages of justice. This is contrary to what the Government wishes to achieve in abolishing corroboration.

If the problems are applicable to a relatively small part of the criminal justice system, then why is the whole of the criminal system being subject to this change? Is it right to take away this fundamental principle to solve one problem, that may, consequently, create more problems?

Other than increasing the number needed for agreement to reach a guilty verdict, there have been no other safeguards put in place to compensate for the loss of corroboration. Without more safeguards brought in, there is a serious risk that fundamental principles of Scots criminal law could be compromised. Corroboration has already been developed over the years to adapt to the problems posed, so why can this not be continued?

Although we are one of the last countries to still have corroboration within our legal system, it does not necessarily mean it should be abolished. The Courts have adapted the law to counter the issues relating to corroboration. Surely there are other ways to develop and improve the current law? The decision on the abolition of corroboration will be decided within a matter of months. Whether the decision to abolish corroboration is for better or for worse still remains to be seen.

 


 

[1]    David Hume, Commentaries on the Law of Scotland, Respecting Crimes, 4th edn (1844) vol ii, 383

[2]    Cadder v HM Advocate 2010 SC (UKSC) 13

[3]    Lord Carloway, Reforming Scots Criminal Law and Practice: The Carloway Report, 2011, Corroboration, pgs. 255-286

[4]    SPICe Briefing, Criminal Justice (Scotland) Bill 2014

[5]    A. Robertson, Warning over corroboration change: Interview with Lord Hope of Craighead, Holyrood Magazine (2013)

[6]    Moorov v HM Advocate 1930 JC 68

[7]    Walker and Walker, The Law of Evidence in Scotland, 3rd edn. (2009) paras 5.10.1 to 5.10.5

[8]    Howden v HM Advocate 1994 SCCR 19

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