Holyrood is getting itself in a muddle. This week, the Justice Committee heard from a bench of eminent criminal lawyers and academics. The topic, as ever these days, was the proposed abolition of corroboration. I've inveighed before against the bewildering idea that that parliamentarians aren't really abolishing the corroboration rule, by endorsing legislation with a section headed "abolition of the corroboration rule".
This chimerical notion raised one of its three heads again in the Justice Committee Session this week, emanating from SNP MSPs Christian Allard and Sandra White. Sandra observed - yet again - that:
"We have established that the bill is not about abolishing corroboration per se, but is about removing the mandatory requirement for corroboration."
Christian, having quoted from the evidence before the Committee, concluded:
"...corroboration will not be removed, but they [the Polis] are happy to have the requirement for corroboration to be removed and for the situation to be as it is in England. Corroboration will still be used."
Last week, I tried to sketch the perils of this kind of thinking. The corroboration rule MSPs are considering abolishing means only the essential facts of the case must be evidenced by two independence sources - (1) that a crime known to the law of Scotland was committed, and (2) that it was the accused who committed that crime. Kenny's proposals to abolish corroboration are clearly going to change that.
Take this example. Say, under the status quo, an accused person confirms that consensual sex took place between himself and the complainer. She alleges the absence of consent. The complainer was not otherwise injured and there is no evidence of subsequent distress, observed by a third party, capable of corroborating her lack of consent. Today, this case would founder for want of corroboration of the essential fact of the absence of consent on her part, although the crucial fact that intercourse took place is corroborated by the evidence of the complainer and the accused.
We might describe this as a partially-corroborated case, or to use the language of the Justice Committee, one in which there is some "supporting evidence" in addition to the complainer's allegations for at least part of the offence alleged. Critically, however, it is not a fully corroborated case. If and when this Bill passes into law, and the corroboration rule vanishes, I wouldn't be at all surprised to discover cases of this character reaching the High Court docket, where the complainer is assessed to be credible and reliable by prosecutors. But the availability of evidence supporting some but not all of the essential facts does not equal corroboration. It isn't corroboration by another name, as Allard and White seem to understand it and parliamentarians are getting themselves in a guddle, if they can't distinguish the two.
If this legislation is to extend access to justice for complainers at all, as Kenny has said time and again, the Crown are obviously going to have to apply something other than - something weaker than - the current corroboration rule. That much should be self-evident. If all Holyrood thinks it is doing is transforming a mandatory rule of evidence into the same rule, enshrined only in prosecutorial practice, nobody's access to court will be extended one jot. The 3,000 rape and domestic violence cases Sandra White is concerned about will fall at the same hurdle. Either you abolish corroboration de facto and de jure and you open the court doors to those cases - or you don't abolish corroboration de facto and the way remains shut. It's an incoherent position to imagine otherwise.
There's another head to this chimera: the failure to distinguish properly between (a) the law on the books and (b) guidelines from the Lord Advocate on how prosecutors will decide which cases to take in practice. Prosecution policy isn't unimportant, but it can't and shouldn't be the be-all-and-end-all for legislators scrutinising this Bill. Why not? It seems that only an extreme example will serve to batter home the point, so here's one.
A democratic political community tires of the delays and compromises inherent in democratic processes. They find their most virtuous, kindly, and wise citizen, and by a vote of all of their peers, invest that citizen with supreme powers, suspending legislative assemblies. The whim of the sovereign is to be the highest law. That sovereign promises to use their dread powers soberly, sending the dogs of the prosecution racing after only malefactors, only bad folk who really deserve it, not the innocent, or those who occasionally criticise one of his initiatives. One or two folk have qualms about all this - but are cried down by the multitude. He is a good man. He will use these powers wisely.
But the old adage applies, and their sovereign's virtue withers on his throne. Accustomed to the exercise of absolute power, he begins persecuting citizens, adopting illiberal policies and arbitrary practices. His promises of good conduct - ash. But legally, the deed is done. By granting him unconditional, absolute power, his erstwhile comrades could rely only on his current promise of future benevolence. Only when he proved less than kindly, did the incautious character of their initial grant of power fully reveal itself.
This is becoming a parliamentary bad habit: trust prosecutors, trust police. Endorse criminal laws drafted in remarkable breadth which you'd baulk to see enforced, soothed by the idea that constables and procurators will only apply them to the really suspicious or mischievous or malignant characters caught by it, whoever they are. We have to keep (a) the law and (b) aspirations about practice distinct in our heads.
Now, by no means is the Lord Advocate a parallel tyrant, but such practice guidelines as he may adopt are evanescent, and may be ripped up tout suite. Perhaps his successor in office will take a wider view, less concerned about the perils of single-witness convictions, and give prosecutors the go-ahead with fewer and fewer of the essential facts of the charge being corroborated. Such an outcome is not unthinkable. Parliament will get no say if the Lord Advocate's policy changes, no say if the assurances they have been given over the course of this Bill prove empty.
In such circumstances, we get down to the bedrock question - the question really before our legislators: will it be legal for a court to convict someone on a criminal charge, exclusively on the evidence of one witness, and without any external evidence supporting their claims? The short answer is yes: this law will make that possible. If the Bill is to be defended, that proposition is to be defended. I think it can be defended. But there's no point using fast and loose misunderstandings of corroboration to pretend otherwise.