15 November 2013

Baffling Poppycock

It's one of the weirder talking points in the corroboration debate: even if we abolish corroboration, you couldn't be convicted on the evidence of a single witness

As I have written here before, I'm swithering on the issue, but am increasingly inclined towards Kenny MacAskill's side of the argument. But one reason why I'm still undecided is that the claims being advanced by both sides of the debate, to justify retention or abolition, too often appear confused, hysterical, and even dog-gone fanciful. 

Enter Kenny MacAskill, sofa right. The Cabinet Secretary for Justice appeared on Scotland Tonight on Wednesday, discussing the proposals set out in his Criminal Justice Bill and defending the proposed abolition of corroboration. Advocate Derek Ogg QC made the contrary case. Kenny argued:

"We’re not going to have people convicted on one single evidence from one single witness.  That’s been made quite clear by the Lord Advocate; there will always require to be additional evidence. That’s been made clear it’s not just a quantitative, but a qualitative test so the evidence of one person on its own will not be sufficient; there will require to be additional evidence that will be led."

And I scratch my head.  Let's remind ourselves (a) what the current rule on corroboration requires and (b) just what Kenny's reforms will do.

Definition: Corroboration

In Scots criminal law, only the essential elements of criminal offences need to be corroborated by evidence from two different sources.  To borrow Lord Carloway's definition:
7.2.7 Generally, there are two crucial facts requiring proof in every crime: (1) that the offence was committed; and (2) that the accused committed it.
In a murder case, for example, the crucial facts would be that Jimmy was killed, and that Bob killed him.  It can't be emphasised enough that you don't have to find two witnesses to say "I saw Lee Harvey Oswald hunched over a rifle on the grassy knoll."  Scottish courts treat circumstantial evidence as potentially corroborative.

Equally significantly, corroborative evidence needn't point decisively to the guilt of the soul in the dock. As Lord Carloway observed in his Review, evidence can "be corroborative even if, taken on its own, it does not point conclusively, or even at all, towards an accused's guilt". The corroboration might be an a muddy boot, equally consistent with the prosecution and defence cases. Even under the status quo, competent convictions may rely - almost in their entirety - on the direct evidence of a single witness.  But legally, the crucial facts must (with some exceptions) be spoken to by two independent sources of evidence. 

What Kenny's Bill will do...

So that's the current dispensation. What will replace it, if Kenny's proposals go through? Under a heading "abolition of corroboration", section 57 of the draft Bill sets out that:

Corroboration not required 
(1) This section — (a) relates to any criminal proceedings, (b) is subject to sections 58 and 59 .
(2) If satisfied that a fact has been established by evidence in the proceedings, the judge or (as the case may be) the jury is entitled to find the fact proved by the evidence although the evidence is not corroborated.

Put simply, the legislation will eliminate the idea that the essential facts of the case - that a crime was committed, and that it was the accused who committed it - must be corroborated. That's the whole rationale of the reform. It will allow folk to be convicted on the evidence of a single voice that (a) the crime was committed and (b) the accused committed it.  It's for the trier of fact - judge or jury - to determine whether the prosecution has proved that beyond reasonable doubt.  But the credible and reliable evidence of a single witness will be enough.  Make no bones about that. No ifs or maybes.  That's the essence of this reform.

So. Um. No single-witness convictions?

So what the devil is Kenny talking about when he says "We’re not going to have people convicted on one single evidence from one single witness?" Take a hypothetical sexual assault case, the sort of case we hear about a lot in the corroboration debate. Kelly says John sexually assaulted her, without consent.  There is no other direct evidence. Because Kelly did not take her complaint to the police for over a week after the alleged offence, there is no DNA evidence capable of confirming Kelly's evidence that sex took place. There is no witness to the complainer's subsequent distress after the incident, capable of corroborating the absence of consent on Kelly's part. John denies everything. There is no other evidence to confirm his presence in the house on the day alleged.  But Kelly is a credible and reliable witness, with no obvious reason for confecting the story. Should criminal proceedings be taken?

Kenny seems to be suggesting here that the answer is no, that the Crown wouldn't proceed. But that's exactly what happens under the current corroboration rules. That's exactly the situation the SNP government claim they are seeking to remedy. So why change the legal rules if, de facto, the Crown intends to revive exactly the same test in deciding whether or not to prosecute? It is a bewildering claim.

Remember, under the current law, only essential facts need to be corroborated, not every fact which the prosecutors lay before the jury in their deliberations. The reason given most often to justify abolishing corroboration is that proving these bare essential facts is impossible in too many cases, particularly where the alleged offences take place in private. If the Lord Advocate instructs prosecutors to apply a quantitative test to the evidence, as Kenny argues, many of the complainers who find the doors of court closed to them at present will remain, unhappily, at the gate, still deprived of a day in court.

Change the facts of our hypothetical case just a wee bit.  Say that, in police interview, John admits that he had sex with Kelly, but argues that the intercourse was consensual. In this situation, the fact that sex took place is now corroborated.  But absent any witness which can speak to Kelly's distress after the event, under the current corroboration rules, this case would fail on the grounds of insufficient evidence.  If the Crown rigorously applied its own "quantitative" test, as Kenny suggests, presumably the case wouldn't be taken to the High Court either. The absence of consent isn't corroborated.  Only Kelly's evidence - the evidence of a single witness - speaks to it. 

But this is precisely the sort of case which the corroboration reform is designed to catch; precisely the sort of complainer whose "access to court" Kenny was passionately, and I'm sure sincerely, arguing for on the Scotland Tonight sofa.  So what to make of his mystifying reference to a "quantitative" safeguard even if we abolish the corroboration rule? I've tried to make some sense of Kenny's argument, and put it in its best light, but I'm stumped.

The whole point of reforming corroboration is that you could be convicted on the voice of a single witness. That isn't to say that prosecutors will habitually decide not to lead strengthening evidence in support of their cases, to overcome the high hurdle of reasonable doubt.  But that's what this law is all about. For Kenny to suggest otherwise is baffling poppycock.


  1. I've been seriously hacked off with Kenny since 20th August 2009, but it was only last month when I heard him speak at Perth that I realised I want him replaced as Justice Minister. My impression was that he has become a one man band who believes that he knows best and so he will railroad his preferred course of action through regardless of the views of any other interested parties.

  2. I'm at a loss to understand what he means and he should be asked to clarify with an example. You helpfully give examples to explain your analysis and rules of evidence are almost impossible understand in the abstract.

    1. Ewan,

      Me too. An example would be helpful. Clearly the Lord Advocate has given him some sort of undertaking or the other, but I'm blowed if I can find it anywhere online. I suspect he may return to this theme at some point before we're through. Kenny also made some reference to the idea in his speech to October's SNP conference. It doesn't do much to clear away the fug either.

      "Let me be quite clear – the removal for the routine requirement for corroboration does not mean that anyone will be prosecuted simply on the say so of one individual, whether a police officer or a victim of crime. That has been made quite clear by the Lord Advocate, who has invoked both a qualitative and quantitative test for prosecutions. There will always require to be supportive evidence and the case will be look at as a whole."

  3. LPW, a good analysis, notwithstanding that Oswald fired from the Texas Schoolbook Depository, not the grassy knoll.

  4. Martin,

    A fair point, made by a fair few folk on twitter. In my defence, I plead youth, inexperience, and being born in the middle of the 1980s.