Scottish legal dissertation regarding the fate of corroboration under Scots Law. If you’d like your law dissertation published, contact us here.
Corroboration in Scots law is a rule which remains a fundamental element in the conviction of a charge[ref] Fiona Raitt, Evidence: Principles, Policy and Practice (4th revised edn, W Green 2008) 8-01.[/ref]. Conversely, following the Carloway Review, the law in Scotland has witnessed a large influx of persons opposing the controversial precept of corroboration[ref] The Carloway Review: Report and Recommendations, [7.0.5].[/ref]. Thus, those persons remain tenacious in their fight for abolition[ref] ‘Abolition of the requirement for corroboration’ (The Scottish Parliament 2012) <http://www.scottish.parliament.uk/gettinginvolved/petitions/PE01400-PE01499/PE01436_BackgroundInfo.aspx> accessed 6 October 2012[/ref]. In the light of Cadder[ref] Cadder v HM Advocate [2010] UKSC 43.[/ref], the Scottish Government requested Lord Carloway to reassess certain parts of the law of evidence and procedure – the most contentious being, arguably, corroboration[ref] Peter Duff, ‘The requirement for corroboration in Scottish criminal cases: one argument against retention’ (2012) Crim. L.R. 513.[/ref]. From the outset, it should be clearly stated that the safeguard[ref] McLean v HM Advocate 2010 SLT 73 [54].[/ref] (corroboration) ‘stems from another age’[ref] The Journal of the Law Society of Scotland, ‘Ministers propose to accept Carloway reforms’ (3 July 2012).[/ref]. It is essential to state that the crux of the contentious issue is principally stimulated by the desire to improve the legal system based on ‘quality of evidence’ as opposed to the quantity of it[ref]Carloway Review, Consultation Workshops: Corroboration www.scotland.gov.uk/Resource/Doc/925/0117202.doc accessed 7 October 2012.[/ref].
Corroboration is, in its simplest, evidence that ‘strengthens, or confirms, or supports a statement or the testimony of the witness’[ref] Fox v HM Advocate, 1998 S.L.T. 335 [339].[/ref]. Before anything substantive is discussed on corroboration – it is essential to state that the requirement has no place in civil law[ref] Civil Evidence (Scotland) Act 1988 s1(1).[/ref]. There is a general rule in [criminal] law that nobody can be convicted of a charge on the evidence of a single witness[ref] Fox v HM Advocate, 1998 S.L.T 335 [339].[/ref]. Hume elucidated this by ratifying that ‘no matter how trivial the offence and how high soever the credit and character of the witness, still our law is averse to rely on his single word.[ref] Hume, Commentaries, ii, 383.[/ref]’ Therefore, in Scotland today, in criminal trials evidence must be corroborated should the accused be convicted[ref] Ibid.[/ref]. Two autonomous pieces of evidence is required; these items of evidence need not be in the form of a testimony[ref] Greg Smith, Brodies LLP, Glasgow Caledonian University.[/ref]. Moreover, the ‘crucial’ and ‘essential’ facts must [only] be corroborated[ref] James Chalmers, Evidence: Law Essentials, (3rd edn, Dundee University Press 2012) 21.[/ref]. The testimony of a single witness must be supported by another piece of evidence and the accuracy is analysed by a second independent source[ref] University of South Pacific, ‘Evidence – WEEK 12 – COURSE NOTES’, http://www.vanuatu.usp.ac.fj/courses/LA310_Evidence/LA310_week12_corroboration.html, accessed 7October 2012.[/ref]. These facts are also recognised as facta probanda[ref] Margaret L. Ross and James Chalmers, The Law of Evidence in Scotland, (3rd revised edn, Tottel Publishing 2009) 1.3.1.[/ref] and are ‘the elements which need to be established if the accused is to be found guilty of the crime in question’[ref] Smith v Lees (1997) Lord Justice-General (Rodger) [79].[/ref]. It must be noted that the essential facts will fluctuate depending on the case.[ref] Fiona Raitt, Evidence: Principles, Policy and Practice, (3rd revised edn, W. Green 2008) 8-04.[/ref] In Lockwood[ref] Lockwood v Walker 1910 SC (J) 3.[/ref], the accused was cleared of ‘lewd and libidinous practices’ with a girl who had not yet reached puberty. Because of the fact that the evidence regarding the girl’s age was uttered from her own mouth, the accused was acquitted[ref] Ibid.[/ref]. Here, to clarify, the age was a ‘crucial’ fact and due to the lack of corroboration – the conviction was quashed.
An example of corroboration is illustrated in case law[ref] Stewart v Glasgow Corp, 1958 S.C. 28 [46].[/ref]. In the former case, a mother attempted to claim compensation when her son passed away in an accident concerning a clothes pole. It was essential that she validate that the said pole was badly corroded at the time of said death, and that the authorities must have known this. Inter alia, she lost her case because there was no corroborated evidence of the pole at the time[ref] Stewart v Glasgow Corp, 1958 S.C 28 [46].[/ref]. Additional case law[ref] Morton v HM Advocate 1938 JC 50[/ref] supports this: ‘no person can be convicted of a crime or a statutory offence except where the legislature otherwise directs, unless there is evidence of at least two witnesses implicating the person accused with the commission of the crime or offence with which he is charged’[ref] Ibid, Lord Justice Clerk (Aitchison) [339].[/ref].
Before dealing primarily with the arguments for and against the abolition of corroboration, in criminal trials, the writer deems it necessary that Cadder[ref] Cadder v HM Advocate [2010] UKSC 43.[/ref] be touched on. Prior to the Supreme Court judgement in this case, it was apparent that the ‘right to a fair trial’[ref] European Convention of Human Rights 1953, Article 6.[/ref] was safeguarded by requirements such as corroboration[ref] McLean v HM Advocate 2010 SLT 73.[/ref]. However, now, if an individual is detained as per section 14[ref] Criminal Procedure (Scotland) Act 1995.[/ref] they have an immediate right to access a solicitor. The decision in Cadder was influenced by decisions in cases such as McLean[ref] McLean v HM Advocate 2010 SLT 73.[/ref]. In this case, a bench of 7 judges held that it was not a violation of Article six; to rely on trial admissions devoid of a solicitor was lawful because of the safeguard of corroboration (being enough to convict)[ref] Ibid.[/ref]. Yet, the review of Cadder and the change in the law[ref] Criminal Procedure (Scotland) Act 1995, s14.[/ref] amounted to Lord Carloway’s requirement to reassess this area[ref] The Carloway Review: Report and Recommendations.[/ref]. ‘It seems ironic that a forward development in the law like the Cadder case may lead to the removal of what has long been considered one of the essential safeguards in our system.’[ref] McCluskey Niall, ‘Removing Corroboration: One step forward, two steps back. ‘ (The Firm Magazine 2012) <http://www.firmmagazine.com/features/1144/Removing_corroboration%3A_One_step_forward,_two_steps_back.html> accessed 15 October 2012.[/ref]
The rudimentary stages – post the Carloway Review – saw persons begin to express their disagreement with corroboration. Thus, it is these persons that fuel the argument for abolition. Sheriff Frank Crowe recently opened the SASO[ref] The Scottish Association for the Study of Offending, Glasgow Branch, ‘This house believes that the requirement of corroboration for proof of criminal charges in Scotland should be abolished’. [/ref] debate by submitting that corroboration is a ‘comfort blanket’ that needs to be abolished. He also clarified, it could be argued, that the ‘constituent parts of the Criminal Justice System need to be reconsidered’[ref] Ibid.[/ref]. Throughout the motion, he was obstinate in his attempt to persuade the audience to vote in favour of abolition. He submitted that the complacency of many others has ‘amounted to the inability of the [Criminal Justice] System meeting the needs’; that abolition is the answer[ref] Ibid.[/ref]. This can be coupled with Lord Carloway’s summarisation of corroboration as ‘archaic’[ref] The Carloway Review: Report and Recommendations, [7.2.45 and 7.2.55].[/ref].
Lord Carloway strengthened his argument by submitting that – in solemn procedures – where corroboration is lacking, the judge should not be required to inform the jury of the dangers likely to arise in the absence of it[ref] The Carloway Review: Report and Recommendations, [7.2.42].[/ref]. Furthermore, Lord Carloway emphasised one of the most pertinent aspects of his recommendation; submitting that the abolition of corroboration would bring Scots law ‘into line with modern thinking’[ref] Ibid, [7.2.55].[/ref]. Therefore, this would put added trust in the jury; it is their responsibility to weigh-out the evidence and thus they should be given the opportunity to fully practice this requirement[ref] The Carloway Review: Report and Recommendations, [7.2.42].[/ref].
One protruding factor, arising in light of Lord Carloway’s review, was that there was an understanding that Scotland had a lower miscarriage of justice rate – his Lordship submitted that this was, in fact, incorrect[ref] Ibid, [7.2.56].[/ref]. Thus, essentially, corroboration does not confine this rate and Lord Carloway argued that corroboration actually produces miscarriage of justice[ref] Ibid.[/ref]. It is submitted that the reason for this is because ‘corroboration prevents cases… from being prosecuted’[ref] Ibid.[/ref]. This is due to the fact that where corroboration is obtainable, the police will do very little to find it and the crown will subsequently not lead it[ref] The Scottish Parliament (Brian McConnachie QC – Faculty of Advocates), Official Report: Justice Committee, 13th December 2011.[/ref].
Common law[ref] N v HM Advocate, 2003 J.C. 140; 2003 S.L.T. 761.[/ref] also raises arguments in favour of abolition. This case involved an encounter re the introduction of an absent complainer’s statement with regards to statutory provisions[ref] Criminal Procedure (Scotland) Act 1995, s(259).[/ref]. The judge[ref]N v HM Advocate, 2003 J.C. 140; 2003 S.L.T. 761, Lord Justice Clerk, Lord Gill [148—149].[/ref] in this case submitted that ‘I cannot see what worthwhile safeguard the principle of corroboration provides if the primary evidence sought to be corroborated is per se unfair to the accused.’ Sheriff Frank Crowe argued that the Scottish criminal justice system has lacked ‘incremental development’[ref] Frank Crowe, ‘A case for the abolition of corroboration in criminal cases?’, S.L.T. 2011, 25, [179-185].[/ref]. Therefore, the abolition of corroboration would require the modernisation of many other areas of the justice system and would allow for an overall assessment[ref] Ibid. [/ref].
Rape Crisis Scotland (RCS) highlighted interesting points regarding the abolition of corroboration[ref] Rape Crises Scotland, Reforming Scots Criminal Law & Practice: The Carloway Report A Rape Crisis Scotland Briefing, September 2012.[/ref]. They emphasised their submission regarding reasonable convictions. RCS claimed that the removal of corroboration would allow the Crown to prosecute cases where there is a lack of the requirement[ref] Ibid.[/ref]. Moreover – they submitted that this would give them the opportunity to bring prosecutions where they consider there to be an adequate quality of evidence to convict, without the requirement of corroboration[ref] Ibid.[/ref].
At this point, RCS began to raise their submissions regarding their concerns about abolition. They clarified the prospective impact on conviction rates; ratifying that apropos to England and Wales, where they do not require corroboration, the conviction rate re rape runs near parallel to the rates in Scotland[ref] The Carloway Review: Report and Recommendations, [7.2.41].[/ref]. They elucidated on the point that abolishing corroboration could attract more cases going to court but could consequently raise more not proven verdicts[ref]The newsletter of the Faculty of Advocates, ‘Just of Unjust?: Concerns voiced over Lord Carloway’s call to scrap corroboration in criminal cases’, http://www.advocates.org.uk/downloads/newsletters/spring2012.pdf, accessed 15th October 2012.[/ref]. Nevertheless, it was submitted by RCS – that should corroboration be abolished – the Crown Office would still be required to put in place a subsequent test[ref] Rape Crises Scotland, Reforming Scots Criminal Law & Practice: The Carloway Report A Rape Crisis Scotland Briefing, September 2012.[/ref]. The reasons for this test are obvious: it would need to regulate whether or not there would be a ‘reasonable’ chance of conviction, ‘in individual cases’, based on the worthiness of the evidence obtainable[ref] Ibid.[/ref].
With regards to the arguments against abolition – there are many, also. The Faculty of Advocates produced a memorandum[ref] The Carloway Review Report: Faculty of Advocates Memorandum on Corroboration.[/ref] in response to the Carloway Review[ref] The Carloway Review: Report and Recommendations.[/ref]. It was extremely clear that, throughout this report, the Faculty put utmost emphasis on their belief that the corroboration debate ‘cannot take place in isolation’[ref] The Carloway Review Report: Faculty of Advocates Memorandum on Corroboration.[/ref]. However, it was also elucidated that there is a need for debate on the issue[ref] Ibid.[/ref]. The Faculty also stressed the importance of convening a Royal Commission[ref] Ibid.[/ref]. This was coupled with their recommendation of getting the Scottish Law Commission to look at the matters in greater depth[ref] Ibid.[/ref].
Derek Ogg QC submitted that: should the requirement for corroboration be eradicated; it would be the ‘citizen against the power of the state’[ref] The Scottish Association for the Study of Offending, Glasgow Branch, ‘This house believes that the requirement of corroboration for proof of criminal charges in Scotland should be abolished’.[/ref]. This was combined with his submission that abolition would resort to the outcome of the case dependant on the decision of the prosecutor – not the judge[ref] Derek Ogg QC, Senior Advocate Depute, The Scottish Association for the Study of Offending, Glasgow Branch, ‘This house believes that the requirement of corroboration for proof of criminal charges in Scotland should be abolished’.[/ref]. Another point made by Ogg was that ‘from the minute the finger is pointed, there is devastation’[ref] Ibid.[/ref]. The crux of this point deals with the idea that when the accused is tried: his family, good name and presumption of innocence are all put in jeopardy. The climactic nature of this, according to Ogg, begins to emphasise the sheer level of devastation involved[ref] Ibid.[/ref]. Thus, the arguments opposing the abolition of corroboration are just as prevalent as those for abolition[ref] Ibid.[/ref].
The reader may benefit from an anecdotal approach to summarise some of the most conspicuous arguments arising by those opposing abolition. Touching on the matter of isolation – Brian McConnachie QC used an illustration to the Scottish Parliament’s Justice Committee[ref] The Scottish Parliament, Official Report: Justice Committee, 13th December 2011.[/ref]. This illustration was surrounding the false allegations[ref] Ibid, Brian McConnachie QC.[/ref] about conviction rates re sexual offences. The fallacy[ref] The Scottish Parliament, Official Report: Justice Committee, 13th December 2011.[/ref] that abolishing corroboration would have a positive effect on conviction rates was scrutinised by the QC. McConnachie submitted to the Committee that there has been a lack of statistical study to support these generalisations[ref] Ibid.[/ref]. This argument is supported by James Chalmers – the experience of the jurisdictions practicing without corroboration proposes that abolishing will make little difference to the conviction rates re sexual offences[ref] James Chalmers, The Scottish Parliament, Official Report: Justice Committee, 13th December 2011.[/ref]. McConnachie reiterated the blatant arguments of those against abolition; stating that a lack of corroboration would amount to the reliance on a single witness. This was also coupled, however, with the understanding of the inevitable increase in pressure that the Crown and Procurator Fiscal would be subject to[ref] Brain McConnachie QC, Official Report: Justice Committee, 13th December 2011.[/ref]. McConnachie, indirectly through his speech, made clear the imperativeness of not dealing with the ‘abolition’ of corroboration on, essentially, a whim[ref] Ibid.[/ref].
It is evident in light of both sides of the debate that the requirement for corroboration has gone from being a ‘cornerstone’[ref] Bill Mcvicar, Law Society of Scotland, http://www.lawscot.org.uk/news/press-releases/2012/july/news03072012_carloway, accessed 15th October 2012.[/ref] to ‘an antiquated technical requirement’[ref] Solicitor General Lesley Thomson, <http://www.firmmagazine.com/news/2948/Crown_PR_offensive_to_abolish_corroboration_begins.html> accessed 15th October 2012.[/ref], in very little time.
All in all, the arguments for and against the abolition of corroboration in Scots law are clear. Those in favour of abolishing the ‘archaic’ corroboration submit that: corroboration itself is hindering justice[ref] The Carloway Review: Report and Recommendations, [7.2.56].[/ref]. The principle of ‘beyond reasonable doubt’ is believed to be sufficient in safeguarding (and one that will remain[ref] Rape Crises Scotland, Reforming Scots Criminal Law & Practice: The Carloway Report A Rape Crisis Scotland Briefing, September 2012.[/ref]); thus not hindering justice[ref] The Carloway Review: Report and Recommendations, [7.2.42].[/ref]. It is evident that these persons submit that it is the juries’ responsibility to decide upon the evidence presented to them, and therefore corroboration should be abolished[ref] Ibid.[/ref]. The arguments arising re miscarriage of justice rates are prevalent throughout the debate as a whole. Taking these into account – it is fully submitted, by those persons, that the requirement for corroboration in Scots law of evidence and procedure should be abolished. Yet, the arguments opposing abolition are as prominent and come with the same weight. This can be coupled with the fact that abolition would amount to an unfair citizen to state ratio – which is argued predominantly by the Senior Advocate Depute[ref] Derek Ogg QC, Senior Advocate Depute, The Scottish Association for the Study of Offending, Glasgow Branch, ‘This house believes that the requirement of corroboration for proof of criminal charges in Scotland should be abolished’.[/ref]. The sheer devastation that abolition would bring, taken with the added pressure that would essentially constrain the COPF – are ultimate arguments for those opposing abolition, too[ref] Brain McConnachie QC, Official Report: Justice Committee, 13th December 2011.[/ref]. Without doubt, the fact that these persons feel that the debate cannot be taken in isolation is arguably one of utmost importance[ref] The Scottish Parliament (Brian McConnachie QC – Faculty of Advocates), Official Report: Justice Committee, 13th December 2011.[/ref]. Therefore, many agree that removing corroboration is not a panacea which has the capacity to deal with the concerns arising from the ‘effectiveness’ of the criminal justice system.
