7 January 2014

Corroboration: a wicker shield against miscarriages of justice

News this morning that two ex-Lords President of the Court of Session, Hamilton and Cullen, oppose abolishing corroboration. Both former judges emphasised that the doctrine has been part of Scots law "for centuries as a safeguard against wrongful conviction".

It is a line - perhaps the line - most regularly invoked by corroboration's defenders, in their opposition to Kenny's BillNobody should be convicted on the evidence of one person, advocates thunder. Requiring a second source of evidence holds witnesses to account, sparing the innocent from falling prey to credible but fraudulent court testimony. 

Advocates of abolishing corroboration, on the other hand, tend to have little to say about the position of accused persons. Their main focus are complainers - often described as victims - whose complaints are never heard by courts, because the requirement of evidence from two sources means that some aspect of the charge is insufficiently corroborated. Can it be right that serious criminal offences with profound effects on the well-being of citizens may be committed with impunity?

Superficially, these are both compelling lines of argument. Who wants the innocent to be convicted? Who wants the guilty to walk free? So should we abolish corroboration or not? Regular readers of the blog will know I have swithered on this one. I thought I should explain why - and hopefully the explanation might help others to make up their minds where they lie.  The problem is that both proponents of abolition and retention make important points, and speak to important values. 

Let's start with the easy admissions. One: corroboration represents a safeguard for accused persons. In some cases, a very effective safeguard, in that it excludes their conduct from any criminal liability. What's more, it preserves us from the dangers of convicting people solely on the basis of false confessions and means that a scheming witness cannot jail you simply on their own word.  

Two: from complainers' perspective, corroboration is a very blunt instrument. Just one example: a woman regularly beaten up by her ex-spouse falls victim to his jealous aggression yet again when he appears at her flat. When questioned, he denies being there. There is no other evidence connecting him to the scene. Although reduced physically to welts and bruises, the identify of her attacker is uncorroborated, however well she might know his face, and the case is dropped. Even for corroboration's greatest defenders, this is a problematic outcome.

For me, the key question on abolishing corroboration is, does retention or abolition satisfy a cost-benefit analysis, taking into account the interests both of complainers and accused persons? It is generally recognised that the rule represents a significant barrier to bringing some kinds of cases to court.  But is corroboration really a significant safeguard from the accused's perspective? Does it really protect us from miscarriages of justice, and the lies of a beguiling but false witness? If it is and it does, that might make one more skeptical about eliminating the rule from our criminal justice system. If, by contrast, corroboration does not really do these things, and represents only a limited safeguard and a substantial barrier to justice, its abolition might begin to look more attractive.

My main problem with the defence of corroboration that is being offered by Hamilton, Cullen and their colleagues in the legal world is that it relies on a - to my mind inflated - understanding of what the corroboration rule of today actually requires. We know that corroboration does not require the Crown to produce "two witnesses" implicating the accused. We know that the rule does not require two sources of evidence substantiating "all claims against the accused", but only the essential facts which are that (i) the criminal offence was committed and (ii) that it was the accused who committed it.  So what is necessary? 

One of the most important but overlooked features of the contemporary doctrine of corroboration is that it does not require that corroborating evidence actually points decisively to the guilt of the accused.  Evidence from secondary sources, equally consistent with the Crown's charge, or the accused's version of events, can corroborate the direct evidence of witnesses (Fox v. H M Advocate). As usual, all of this is bound up in alienating legal complexities, and its significance may not immediately be apparent, so let's illustrate this with an example.

Thomas, Kristian and Mark are acquaintances who live in a sparsely-populated, rural part of Scotland. Mark is found dead, shot, his body abandoned where he was killed, on a heather heath under the sky.  Thomas approaches the police, telling them that he saw Mark and Kristian having an argument that morning, and observed the latter gun the former down. On investigating, Kristian denies killing Mark, claiming that he was nowhere near the field in question that morning, but was instead out rough-shooting in another part of the neighbourhood.  

Neither victim nor alleged attacker bear traces of the other man's DNA about their person.  There is no evidence of past animus or threats being transacted between the two.  A search of Kristian's house yields up no gun matching the bullet which inflicted Mark's injuries, and no evidence that he recently acquired and may have disposed of such a weapon. Kristian's muddy walking boots bear surface traces of soil of the same composition as the heath where the body was found - but the area of countryside where he claims he was walking is of the same composition. On account of the dense heather underfoot, no prints matching Kristian's tread could be found anywhere near the body. While forensic evidence of gunshot residue is found on Kristian, he explains that this derives from his hunting expedition, not from shooting Mark.

This looks like a formally corroborated case. Our starting point is Thomas' witness statement, confirming the essential facts that (i) he saw the accused at the locus (ii) killing the dead man. But what about the corroboration? The muddy boot is capable of putting the accused at the scene, but it is also consistent with his not implausible innocent explanation of being elsewhere in the territory. The gunshot residue - which as I understand it, at this time cannot be matched to a particular firearm - presents evidence consistent with the idea that Kristian shot Mark, but equally consistent with the claim that he took a pop at a passing grouse on the moor as he claims. 

But for evidence equally consistent with Kristian's innocence, the case comes down entirely to one man's word.  Once the requirements of corroboration are satisfied, it's all a matter for the jury. In our hypothetical case, everything would seem to turn on whether or not Thomas is regarded as a credible and reliable witness on whose word to convict Kristian beyond reasonable doubt. 

Because corroboration does not require the corroborating evidence to point decisively towards the guilt of the accused, or require it to be more consistent with guilt than innocence, cases may already rely to a significant extent on the testimony of one - potentially credible-seeming and dishonest - witness. It may be that scheming Thomas knew Kristian's habits, and bumped off Mark himself.  The idea, regularly invoked by its defenders, that the abolition of corroboration introduces this risk into the system radically overstates the extent to which corroboration really acts as a safeguard against it. 

Yes, the rule excludes cases from court where there is only one witness. Where there is one witness plus circumstantial evidence capable of innocent or incriminatory interpretation, however, the dissembling witness is given ample opportunity by the corroboration rule to lie through their teeth in the witness box, in an attempt to put the accused away. 

Short version: convictions can already effectively rely, in the current system, on the evidence of a single witness. This shouldn't be surprising. Corroboration is a quantitative test, not a qualitative one. It doesn't generally enquire into the quality of the supporting evidence: concerned primarily with counting the number of sources. In these circumstances, the rule provides at most a wicker shield against miscarriages of justice. 

All of which leads me to the conclusion that the advantages of the corroboration rule have been wildly overstated by the doctrine's defenders. Yes, it forms a barrier against a very simple kind of injustice, but as shields go, its material is pitted and cracked, strained and broken by a century's worth of judicial interpretation.  It's nice rhetoric for Lord Cullen to appeal to the centuries over which corroboration has served Scotland.  The reality, however, is that the current corroboration rule little resembles the classical formulation of two witnesses speaking directly to the guilt of the accused.  It's contemporary defenders cannot credibly appeal to such antiquities, in defence of its current, compromised form.

If the modern conception of corroboration represents only a limited safeguard for accused people, and a substantial barrier systematically preventing cases of domestic and sexual assault from reaching court, I struggle to see how retaining it strikes the right balance.  The rule is very effective at excluding some kinds of offences and some kind of offenders from court. This might be justified if it served a significant, competing purpose offering a substantial protection for accused people from wrongful conviction. But it doesn't. 

Important outstanding issues remain.  Convictions on the basis of confession evidence alone remain problematic.  What harm could there be, in including a provision in the Bill to the effect that confession evidence alone is insufficient in law to convict an accused person? I also find the Scottish Human Rights Commission's idea of giving judges a limited discretion to refuse to put concluded prosecution cases to juries for decision a compelling one.  Why wait till after conviction and appeal, to determine that "no reasonable jury" could convict an accused person on the basis of the evidence led? 

But corroboration? It's a battle-scarred old shield, but despite the ineptness and confusion of many advocating its abolition, including the Cabinet Secretary, I'm not convinced that it retains even half the virtues attributed to it, in its current shape. A half-century of judicial skirmishes in the Court of Appeal have chipped away its veneer, and splintered its substance. It's time, I think, to hang the old girl up for good.


  1. All you seem to have demonstrated in your example, for me, is a reason to be more, not less, stringent in certain contexts about what we deem to qualify as corroborative evidence. The nuanced argument against corroboration's abolition is not that it "introduces" the potential of conviction effectively on the incriminating evidence of a single witness alone, but that the removal greatly increases the potential for such convictions to take place.

    It's not enough simply to say that we should create a special exemption for convictions that would otherwise happen based on confession evidence. That wasn't the issue in Cadder. The issue was the reverse. The confession evidence was excluded because it was improperly obtained (absent the opportunity to be legally represented) and therefore the Crown was unable to convict on the basis of the other evidence that would have mutually corroborated that confession. Let's just remember, it's these situations that caused the Scottish Government to think about changing this in the first place. These convictions would now happen, and could not be protected by the provision you describe. Either confessions have to be sufficient, provided they are properly obtained, or they have to be insufficient if they are not.

    There is absolutely a case for the courts being more flexible with corroboration in the case of particular patterns of criminal conduct. Sexual offences is the area chief amongst them, and we already make significant concessions in the form of, among other things, the Moorov Doctrine to try to strike that balance. Even if you can make a case to dispense completely with corroboration in those cases, there is no reason why it should be dispensed with as a requirement in all cases, so back we are at square one, against the SNP policy. It isn't corroboration that is the barrier to justice here; it's the result of the way the system more broadly deals with complaints of sexual abuse, the way evidence is collected and the way the justice system goes about protecting alleged victims.

    The evidence simply doesn't support the assertion that corroboration is the barrier to successful convictions in sexual assaults. Our rates are broadly comparable with other jurisdictions with no corroboration requirement. The criminal justice system should have as strong as possible a presumption against actions which lead to wrongful conviction without compromising effective law enforcement. Unless there is significant and compelling evidence that corroboration does this, rather than merely hypothetical situations in extremis, and unless that evidence also discounts very plausible possibilities that other aspects of rules of evidence may instead be at fault, we should not remove it.

  2. I tend to be wary of anyone defending something with what amounts to "but it's how we've always done things! It's the tradition!" That particular line of argument holds about as much sway with me as "we can't break the 300 year old union!"

    Tradition is for culture, not politics and justice.

    Off-topic, but did you see the article in the Telegraph yesterday suggesting a change (in England anyway) to an inquisitorial system like France? Seemed an interesting idea, although mainly because I now understand why the French legal system seems so weird in Spiral.

    1. Doug,

      I do sympathise with that anti-conservative posture. On corroboration, the idea is doubly mistaken in the sense that corroboration or today isn't corroboration of the last century. As Lord Carloway recognised in his report, much has changed. To pretend otherwise is nice rhetoric, but bad law. On your second point, I did see the piece - and I suspect many folk owe their knowledge of the French system to Spiral (which, guiltily, I've still actually to watch). The tension between adversarial approaches and inquisitorial approaches is an interesting one - being challenged already in various outposts of our law.

  3. Well?
    Did Kristian avoid gaol and return to popping the odd passing grouse on the moor? Or was Thomas believed? I think Kristian is innocent. Mind you, nobody with any sense of decorum would spell 'Christian' with a 'K', even if his parents burdened him with it he could have changed it. He might be guilty as charged.

    "......Who wants the innocent to be convicted? Who wants the guilty to walk free?......"

    I assume all right-minded folks are expected to answer 'no one' to those queries, yes? Blackstone's formulation: "It is better that ten guilty persons escape than that one innocent suffer". I am certain that this is not of my mind - I must have read it sometime, somewhere, but the following query always springs to mind when I hear this or variants there of: "Better for whom"?

    1. Like a coming-of-age movie: the ultimate fates. Escaping from liability, Kristian purchased a Renault Clio and was killed in a road-traffic accident the year later. Thomas drank himself to death. Mark went to the bad fire, on account of an irrelevant but morally questionable tendency towards anger, jealousy and falsehood.

  4. "A half-century of judicial skirmishes in the Court of Appeal have chipped away its veneer, and splintered its substance. It's time, I think, to hang the old girl up for good."

    Both suitably academic and suitably Jacobin, LPW.

    Aquarians Love To Cuddle, you ask the question 'Better for whom?'. Well, you, for one.

    1. I agree, Martin, but only in the abstract and only in a society which relishes the primacy of the 'Individual'. From whence I come, a 'Collective' society in South East Asia, the release of 10 guilty persons is certainly not better for the public at large for the near and medium term, now is it? The filthy oiks will pilfer me mam's durians at her fruit stand!
      Some of us in the Ruling Classes of such societies would instead formulate, "It is better that 10 innocent persons suffer than one guilty escape." I know it sounds flippant, but think about it from a "Law, Order and Good Government" society-wide point of view.

  5. Aquarians, is your immediately preceding comment intended to be satire? Your attempt to patronise me is merely irritating. I'm in my forties, and was admitted to the Roll of Solicitors in Scotland at the age of 22 (now off it, disabled). You may have been employed as child labour in a sweatshop at that point in time, I don't know. Or your family might have been getting rich from exploiting child labour, for all I know that might have been the case. You are in every sense a non-entity - you don't even post comments under your own name. However, the 'now is it?' is unnecessary. As you might be able to tell, it doesn't make me more receptive to whatever it is you have to say.
    Which isn't much, by the way. Until the SNP assumed power, we had a criminal justice system that protected the interests of all parties. Now we don't. Their proposed abolition of corroboration will stand beside their abolition of double jeopardy as nothing but an assault upon the rights of accused persons. They are unpleasant authoritarians unashamed to engage in populist pandering to the natural authoritarianism which is one of the most unappealing aspects of the Scottish national character. If you think the essence of Scottish culture is 'A man's a man for a' that', you don't know us very well.
    Perversely, that sort of behaviour might make them your cup of tea. but I've come across too many lying policemen to have any confidence in the idea of eroding the rights of accused persons.
    I'm not a fancy academic, or the member of some Third World dump's elite - I just used to defend accused persons in Scotland's criminal courts, sadly quite indifferently.

    1. "Until the SNP assumed power, we had a criminal justice system that protected the interests of all parties."

      No we didn't Martin. And we still don't. Victims of particular crimes likely to be carried out in private (such as sexual assault and domestic violence, crimes which disproportionately victimise women) have less chance of protection and justice than victims of other kinds of crimes. Abolition of corroboration may or may not be the answer, but let's not kid ourselves that our system is fair to victims.

  6. This comment has been removed by the author.

  7. The analyses you post above are superficially attractive to an academic, but ignore the reality of how cases are in fact prepared for prosecution or by the defence. The absence of corroborative evidence in many, if not most, cases, is not because it does not exist, but because it has not been located.

    To take the example of your battered partner above, you state that she lives in a flat, yet there is "no other evidence connecting him to the scene". Imagining for the moment (1) a fully resourced procurator fiscal's office where staff have time to prepare cases, and (2) a diligent police force, there are numerous potential sources of corroboration.

    For example; if the suspect has a car, was it seen outside the house/on CCTV entering the street? If he came by bus or train, again is there CCTV? Did anyone who knows him see him on the bus? Did any neighbour or passer by hear or see anything that might assist with identification? Prior to the assault, was there an exchange of text messages/Facebook postings that included any threats of violence? Was anything said by the suspect on social media afterwards that might show guilty knowledge before he could have known of the incident?

    It may indeed be possible for someone to travel from A to B unseen by another living soul or any form of surveillance, carry out an unprovoked attack without apparent motive, and for it to be carried out so silently that no neighbour is aware of it until long after he has gone, but such seems objectively unlikely. Any of these adminicles, taken together, would certainly increase the likelihood that the identification of the names suspect is truthful and correct.

    If the police or prosecution fail to investigate crime, in my submission that is not a reason to reduce the level of evidence required to commence a prosecution taken on behalf of the state.
    I shall return to Thomas, Mark and Kristian on another day.

  8. I am very, very late to this discusion.

    It seems to me that, absent any evidence to the contrary, the accused and the accuser have equal weight. It also seems to me that conviction on the basis of 'say so' is fundamentally wrong.

    What defence is available to the accused? Is the word of the other party to be taken as read?

    Frankly, without at least forensic evidence, this is a charter for wrongful prosecution.

  9. Douglas Clark: Not so, but far otherwise, as Rudyard Kipling would say.

    On the side of the "accuser": The Lord Advocate, The Solicitor General, Crown counsel, all situated in a lovely Georgian building in the centre of Edinburgh. The solemn team of the local Procurator Fiscal's office. As many officers of police Scotland as the foregoing see fit. Any forensic scientist, video analyst, psychiatrist or other expert the Crown may wish to call, paid whatever fee they choose tpo charge. At trial: Counsel of sufficient seniority to prosecute the case, entirely at the discretion of the Law Officers.

    On the side of the accused: A solicitor who may operate from a single room with shared secretarial services. If his client is held in prison pending trial, he/she receives the princely sum of £836 to prepare the case, investigate the evidence, keep his client informed, cite defence witnesses and instruct counsel. He/she may instruct a report from an expert approved by the Scottish Legal Aid Board, at the rate THEY consider appropriate. If the expert charges more, he meets the difference from his £836.

    This all exists before we factor in a system that currently (1) operates on the basis of a presumption of innocence, but (2) refers to complainers in ongoing prosecutions as "victims" before a word of evidence has been led on oath before a judge.

    Despite this, there are some who feel that the quantity of evidence necessary for a conviction should be less than that considered necessary for prosecution by Alonso de Salazar Frías, Grand Inquisitor at the Navarre Witch Trials in 1613. At the risk of reliance on cliché,

    "NO-ONE EXPECTS THE SPANISH INQUISITION to apply a higher standard of proof than a 21st century democracy"