So the Carloway Review recommends the abolition of corroboration. Prominent lawyers have questioned the case for abolition, raising concerns that a vital safeguard against miscarriages of justice would be removed. Victims groups have broadly supported the move. They consider the requirement for crimes in Scotland to be proved by corroborated evidence as an unnecessary barrier to bringing offenders to justice, particularly in the case of crimes committed in private. What then are the implications of abolishing a pillar of the criminal justice system that has been in existence since time immemorial?
The law of Scotland as it stands is that no person can be convicted of a crime on the basis of one source of evidence, however credible or reliable. In general terms, two matters require to be corroborated – the commission of a crime, and the identification of the accused as the culprit. It is not the case that every fact requires corroboration. Further, corroboration does not mean that the corroborating piece of evidence of itself requires to point to guilt. All that is required is that the corroborating evidence is supportive of the primary source of evidence pointing to the guilt of the accused. It follows, therefore, that a corroborated case need not be a case involving two eye-witnesses to the incident. A circumstantial case can point to guilt and will be sufficient for conviction if there are two or more pieces of evidence that, when taken together, point to the guilt of the accused.
Criticisms of Corroboration
It is often said that the requirement for corroboration results in a criminal justice system that is more concerned with quantity rather than quality of evidence. Statistical analysis provided by the COPFS for the Carloway Review led to the conclusion in the report that there were a high number of cases that were abandoned because of the requirement for corroboration that would have otherwise proceeded on the basis that there was a credible and reliable Crown case.
The conclusion of the Carloway Report was expressed in the following terms: –
“The Review is in no doubt that the requirement of corroboration should be entirely abolished for all categories of crime. 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 single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled. The argument is not that such a reform would bring Scotland into line with the rest of Europe and the Commonwealth. It is that it would bring Scots law into line with modern, and almost universal, thinking on how to approach evidence in criminal, and indeed all other, cases.”
In support of that conclusion, it was argued that protection against miscarriage of justice comes, not from corroboration, but from the high standard of proof in criminal cases. There was no evidence to suggest that corroboration prevented miscarriages of justice. Scotland has no lower rate of miscarriage than any other judicial system. On the contrary, corroboration prevented justice from being done. Victims of crime were denied access to the courts simply because the prosecutor could not bring proceedings due to a lack of corroborated evidence. That situation was due to variations of fate or providence, which in a modern legal system was not acceptable.
In my view, there is considerable force in this position. It is important that we maintain an independence of thought in relation to our legal system, whilst at the same time being flexible enough to learn from other jurisdictions. That corroboration has, for centuries, been an integral part of the criminal justice system in Scotland is not, of itself, a good reason for retaining it.
Nor does it necessarily follow that the abolition of corroboration will lead to an increase in miscarriages of justice. Often, as things stand, cases proceed to jury verdicts on the basis of what might be described as a technical sufficiency, but the jury are really being asked to assess the quality of one witness’ evidence. Many sexual assaults and rape cases follow this pattern. In other words, there are plenty of cases which proceed to conviction on the basis of the jury’s assessment of one witness and not much else. On reflection, it seems rather obvious that the greatest protection afforded to an accused person is the high standard of proof. If the need for corroboration were removed, the jury would still require to assess the quality of the evidence. To take the example of rape or sexual assault cases, acquittals, in my experience, more often than not occur where the jury cannot accept beyond reasonable doubt the evidence of one witness – the complainer. Acquittals in these cases are not about the lack of sufficiency. That there is a technically sufficient corroborated case is almost irrelevant to the live issues at trial.
Furthermore, there seems to me to be force in the suggestion made in the Carloway Report, that corroboration has stretched to such complicated lengths that it now becomes almost incomprehensible to even experienced criminal lawyers. As I stated in a previous article, it is important that our legal system stays in touch with the people who it is designed to serve – the public. I have, for some time, been concerned about the complex nature some of the legal directions that juries are asked to follow. Simplification of jury directions is in the interests of justice. Abolishing corroboration will, for example, also mean that the so-called Moorov doctrine will become a thing of the past – jurors will no longer require to tackle the complexities of the rule.
It is easy to forget, given the furore amongst the legal community regarding the “headline” recommendation, that the main purpose of the Carloway Review was not to examine corroboration in isolation, but to look at the law with regard to detention and arrest of suspects in light of the decision in Cadder v HM Advocate. Of course, the remit included a review of the law of corroboration, but in reality that remit had as much to do with the Scottish Government’s concerns that suspects having access to legal advice would prevent the police from gathering confession evidence needed to corroborate serious crimes such as rape. (It is very often the case that the act of vaginal penetration is corroborated by the accused’s admission that he had sex with the complainer, albeit under explanation that the intercourse was consensual.)
The Supreme Court in Cadder overruled the seven judge bench of the High Court of Justiciary in McLean v HM Advocate. In McLean, the Scottish Court considered that the rule of corroboration was one of the many safeguards that taken together insured that the accused received a fair trial. However, this reference to corroboration was only in the context safeguarding against unfair questioning by the police. Corroboration in a wider sense was not considered in McLean. Nor was it considered in a wider sense in Cadder, the Supreme Court, of course, coming to a different conclusion: –
“Much was made, of course, of the rule of Scots law that there must be corroboration of a confession by independent evidence. But there was independent evidence in Salduz. The reasoning in that case offers no prospect of its ruling being held not to apply because any confession must under Scots law be corroborated.”
Accordingly, although neither Cadder nor McLean dealt with corroboration in the wider sense, the Carloway Review was tasked with, and returned a report making recommendations in relation to the law of corroboration as it effects the law of evidence in the Scottish criminal courts. However, the impact of corroboration goes further than the technical rules of evidence. Corroboration is just one of the many safeguards against injustice built into our system.
Removing the Need for Corroboration
Although I consider the reasons for the removal of corroboration advanced in the Carloway Review as sound, I find myself thinking that there remains a mixture of missed opportunity and danger. The suggestion that the removal of corroboration might increase miscarriages of justice should not be readily dismissed. Such suggestion can never be proved on the basis of statistics. However, the rule requiring corroboration in Scots’ Law was not borne from statistical analysis. It was a product of enlightened quasi-philosophical jurisprudencial thinking. It is not an add-on to our system. Rather, it is one of the central pillars around which our system of justice was constructed. That, as I’ve said, should not be a barrier to removal. But, we would be careless in the extreme to remove it without considering the wider implications on our system – implications that the Carloway Review has not considered because it was not asked. For example, if corroboration is removed, should we also consider the status of the majority verdict? As Stephen Raeburn, editor of the Firm Magazine pointed out in an article in the Sunday Times today: –
“You can remove corroboration – other jurisdictions don’t have it – but they do have other safeguards we don’t have. If you are going to take away corroboration, you have to look at the jury system.”
Repair or Overhaul
The Cadder case and the influence of the Strasbourg Court on our criminal justice system has posed many difficult questions. It is important that our legal system can answer those questions justly and effectively. In that regard, the Carloway Review marks a refreshing example of how Scots’ lawyers should be open to change, to the experiences of other jurisdictions and to reform of outdated forms of thinking. Change should not be for change’s sake, nor should we avoid reform because we have had a system in place for hundreds of years. The rule of corroboration is so central to our justice system, we cannot afford to treat its removal as anything other than radical upheaval. This means that the process of reform that we are about to undertake is not merely the repair to the pointing on damaged stonework. Rather, we must look at the wider implications and embark upon an overhaul of our justice system that brings it up to date. To do any less, may lead to the creation of another, as yet unforeseen, imbalance. Further, without a wider review, we are in danger of overseeing a gradual removal of all the inherent checks and balances unique to the Scottish criminal justice system.