17 November 2011

Corroboration an "archaic rule that has no place in a modern legal system..."

As anticipated yesterday on Carloway Eve, this morning, Court of Session judge Lord Carloway has delivered his full report into Scots criminal law and practice, which can be accessed in a range of electronic forms here.  The substantial body of his report and recommendations runs to some four hundred pages, so I'll be circumspect and afford myself a little time to digest his findings before commenting fully. For those less keen on wading through a deluge of judicial prose, the ever-popular executive summary furnishes the headnotes on police custody, right of access to a solicitor given the Cadder decision, rules of evidence, drawing inferences from the silence of the accused when questioned by police, and appeals. The element particularly liable to get the press hopping is Carloway's stark - and rather brutally worded - finding on corroboration, discussed yesterday. Despite some indications in the press earlier on in the process that this old Scots rule would be spared searching examination, Carloway has bluntly concluded:

26. The Review is, however, 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 answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled. Abolition would bring Scots law into line with modern, and almost universal, thinking on how to approach evidence in criminal, and indeed all other, cases. There is little evidence to suggest that the requirement is in fact an effective protection against miscarriages of justice. Research commissioned by the Review suggests instead that the corroboration requirement may well hinder justice by preventing credible and reliable cases from being prosecuted. Furthermore, the requirement has developed into a series of rules which, realistically, are not capable of being understood by many outside the world of criminal legal practice and are inconsistently applied by many within it.

Such a suggestion is likely to be deeply controversial, not least because Carloway's review only passingly touches on other ways doubt is enshrined in the criminal law elsewhere. In England, for example, where no corroboration rule obtains, jury verdicts are reached on a qualified majority basis of ten out of twelve. Where the jury cannot reach a decision - is "hung" - there may be a retrial. By contrast, in Scotland, decision is by bare majority of the fifteen jurors, who cannot fail to reach a verdict like their English counterparts. If a Scottish jury cannot agree on the guilt of the accused, he is acquitted and is not susceptible to retrial. That said, this sort of jury angst can be overstated. While jury trial is used for the most serious of crimes, attracting the most punishing sentences, the vast majority of criminal cases in Scotland are decided by sheriffs sitting alone, or in Justice of the Peace courts. Off the top of my head, jury trials constitute around 5% or so of criminal proceedings undertaken, despite their dominance in the public consciousness and in dramatic representation. 

I'll have more to say on the detail of Carloway's findings and recommendations anon.  Until then, consult them for yourselves here.


  1. One might observe in riposte to Groundskeeper Willie on the previous thread that the Government commissioned the review, but the recommendations are Lord Carloway's. It's pretty safe to assume that the Government wouldn't have bothered spending large amounts of money on such a review, either, if the UK Supreme Court hadn't stuck its oar in. Lord Carloway didn't venture any criticism of its decision, but he did of the challenges to vires permitted by the Scotland Act 1998, saying, "However, the sudden over-ruling of previously well-established and accepted law is
    not the best way to bring about change in any criminal justice system."

    We are where we are: somewhere we wouldn't have been if the Scottish criminal justice system had retained the independence supposedly guaranteed by the 1707 Treaty. On the recommendation on corroboration, however, I am reminded of wisdom from the past:

    “The evidence of accomplices, without external proof from other parties, is insufficient to justify even arrest.”

    So said Alonso de Salazar Frias, Inquisitor in Navarre, to the Inquisitor General, 1612. This recommendation was adopted by the 'Suprema' of the Inquisition in 1614. I am not sure I like the idea of Scots law providing less protection than the practice of the Spanish Inquisition, and the argument that no-one else sticks to the principle of "testis unus, testis nullus", so it must be wrong, shouldn't appeal to anyone with ambitions for our country. 'Romanocanonical' might be a long word, but it isn't a dirty one.

  2. To describe the view of the court side of the profession as utter despair is putting things mildly.

    Prosecutors will now feel obliged to bring to court all manner of outlandish and vindictive allegations made by spurned lovers and complete nutters, as refusal to do so on "sufficiency" grounds no longer exist, and any quality based assessment will give rise to civil claims. Sheriffs will be forced, in cases where proof must be beyond reasonable doubt, to determine cases on which of two versions they prefer, or (more likely) the acquittal rate will rocket, causing yet more concern at Holyrood.

    All this at a time when advances in DNA testing, ever more intrusive CCTV technology, and mobile phone triangulation mean that the whereabouts of most sentient humans under the age of sixty can be ascertained at most times of the day.

    If corroboration is to go, then the majority of weight for a guilty verdict must follow; what place then for the alien import of "not guilty" - is that to be abolished so that juries return the old Scots common law determinations "proven" and "not proven", and if so by what majority? Are judges to be given the power to direct juries on credibility, or are trials to become a free-for-all with almost everything ruled admissible? the vista for those working in courts whose retirement is more than a decade away is a bleak one indeed.

  3. Just relaxing after putting the weans to bed, after breaking up fights for two hours solid and sometimes getting a doing from my youngest I reckoned that I deserved a beer or 6 since I was gettin a long lie.

    Well, what a mistake I made. Playing the politics show from the sky plus and seeing yirsel in aw yir glory.

    Good God man get a haircut! ;¬)

    Somehow I envisaged a man in his late 40's/50's but it turns out your ages wi me.

    Pity that bugger interupted ye in full flow..................just as ye were building up a heid ae steam. Ach well getting on the telly is just the recognition your work on here desreves. Well done for getting the gig.

  4. Tony

    'Ach well getting on the telly is just the recognition your work on here desreves'

    Indeed. Whatever our affiliations we come here for LPW's blend of reliability and readability - an uncommon thing on the web generally and in Scottish cyberspace as rare as (to borrow from MacDiarmid) a white rose in a bed of thistles