7 January 2013

Corroboration reform: A false prospectus?

"I'd like you to do the same job you are doing now, but I've a score of new, extra tasks which you'll have to take care of as well.  Oh. And there will be no extra funding to pay for your new responsibilities. And I'm going to cut your budget in real terms at the same time. Haven't you a few efficiency savings you could make? Splendid. Toddle off, then, and get cutting."

A familiar predicament for public authorities in Britain these days, whatever their remit and jurisdiction. Shrinking budgets, and still the pressing clamour for this or that neglected topic or concern to receive the attention and resources they merit.  The Crown Office and Procurator Fiscal Service is no exception.  The draft Scottish budget for prosecutors totalled £108,100,000 in 2012/13, and according to current draft spending plans, will not increase in 2013/14.

In the meantime, our legislators cannot resist ratcheting up the costs, continuously supplementing the roll of new offences and charges.  In 2011, for example, Holyrood enacted the Offensive Behaviour at Football Etc (Scotland) Act, with additional costs envisaged across the justice spectrum, from the police, to court costs, legal aid for accused persons, to the Scottish Prison Service in cases resulting in additional custodial sentences being handed down. The Scottish Government estimated that the total cost of the new law to the prosecutors would range between £70,800 to £151,700 per annum, envisaging between 77 and 165 additional cases a year under the new offences. Per case, government statisticians worked out that prosecution costs alone would total £6,993 for every case tried by a jury with a rather cheaper price tag of £312 for summary cases, tried by judge alone.

Corroboration looks likely to be the primary object of legal controversy in Scotland in 2013. The Scottish Government seems set on eliminating the historic rule; the country's legal establishments are generally opposed to this measure.  As part of his 2011 Review, Lord Carloway commissioned an analysis of the impact of corroboration from the Crown Office. How many potentially successful failed to end up in court, because evidence in the case originated from a single source, he wondered?

Prosecutors examined files where the accused had been put on petition, but which were subsequently identified as "no further proceeding due to insufficient evidence". Unhelpfully, Carloway's tables are all higgledy-piggledy, but with a little sympathetic interpretation, you find that this process identified 458 cases, of which, it was estimated that 374 cases exhibited a sufficiency of evidence for prosecution, but for the requirement that evidence be corroborated, with 268 (58.5%) offering a "reasonable prospect for conviction".  The Review also analysed a second dataset, all cases reported to the National Sexual Crimes Unit in six month period of July to December 2010, where the accused was not placed on petition due to lack of evidence. The researchers found 141 such cases, of which, they estimated that 99% (140) had a sufficiency of evidence for prosecution, but for corroboration, estimating that there was a reasonable chance of conviction in 97 cases (68%).

If we get out a fag packet, and crudely generalise from these figures on the assumption that the last six months of 2010 is representative of the rest of the year, and the number of offences and rates of sufficiency and likelihood of conviction were stable, these figures might suggest that if Scotland abandoned corroboration, the National Sexual Crimes Unit might prosecute an additional 194 people a year.  There are a number of limitations with this approach, as Carloway himself recognised.  It is impossible, for example, to say how many cases the police did not refer to prosecutors because of a lack of corroborated evidence. Conclusions drawn on the basis of the relatively small number of cases closed by prosecutors on the basis of the rule likely underestimate - and potentially underestimate to a large extent - the number of new cases which the abolition of corroboration might put on the desks of procurators fiscal.  They gesture, however, towards the scale of the potential additional case-load.

Unlike many folk with an interest in Scots Law, I am not wedded blood and marrow to the concept of corroboration, but I do worry that the rhetoric used to justify the reform will prove misleading in practical terms. Exponents of the reform typically conjure up affective vignettes of those deprived of justice by the formalism of the rule. "Finally, people will get their day in court."  "No longer will victims be denied justice in the name of a rule come out of medieval jurisprudence".  On this account, you might get the impression that abolishing the rule will open the sluice-gates, daylight will shine in, and a slew of new cases will end up before our courts, with justice being dispensed on a far greater compass than at present.

This seems unrealistic.  Some people are always going to be deprived of their "day in court". Prosecution, court and prison capacity is limited. We get as much criminal justice as we are prepared to pay for. That is the case now, and it would continue to be the case if corroboration was abolished. According to official figures, in 2011/12 the police recorded around 858,000 crimes and offences, the Procurator Fiscal received just 276,000 criminal reports, and undertook criminal proceedings in court against 125,000 people. The reasons are complex and manifold, but the scale of the erosion in cases from complaint to prosecution is stark.

If recent reforms are anything to go by, and the state of the public finances does not alter, the cost of any abolition of corroboration is likely to be resourced from existing budgets to a very significant extent. While abolishing the rule will change the modality of prosecutors' decision-making, and bring non-corroborated cases within the compass of those which procurators fiscal may seriously consider bringing before the criminal courts, bare, unresourced abolition of the rule seems unlikely to significantly increase the actual number of cases which reach our criminal courts.

It is not as if the Justice Secretary is in a position to be financially open-handed, offering increased funding for legal aid, prosecution costs, or to cover those borne by the Scottish court and prison services, to pay for the additional trials and prison cells envisaged.  The case for the abolition of corroboration, as we've heard it, often seems to assume a level of redundancy across the criminal justice system which simply is not there.  

Whatever its limits, whatever injustices it visits in particular cases, the corroboration rule is at least reasonably objective.  In the absence of two sources of evidence, in general terms, a case cannot proceed.  It is also a public standard which prosecutors have to observe.  While it may not be a concept which your average punter may be au fait with in detail, it remains an externally comprehensible standard, which regulates the conduct of prosecutors' discretion.  

If, as seems likely, we eliminate corroboration but fail to extend resources made available for substantially increased numbers of prosecutions, it seems likely that only a small percentage of cases will continue to be tried, but they will now be selected solely on the basis on more qualitative, discretion-laden concepts, more or less impenetrable to those operating outside the system.  Carloway's study offers a flavour of the sort of calculations which prosecutors will be obliged to make in selecting which cases to prosecute.  Is the available evidence credible and reliable? Is there is a reasonable chance of conviction? 

If we abolish corroboration, these sorts of concepts will become gatekeepers, governing access to criminal justice. The concepts may be more contemporary and less formalistic, but they will perform a similar task to that historically served by the corroboration rule itself, limiting the number of folk who get their day in court. This may be a good thing, and the right way for these sort of decisions to be made. Rather than by meeting the formalistic requirement that the evidence against an accused person emanates from more than one quarter, prosecutors will have to use more of their discretion to decide which 125,000 cases or so make it before criminal courts. And like corroboration, the practical operation of these ideas of credibility, reliability and so on will inevitably bring with it its own body of disappointed complainers and victims. 

There is clearly a principled case for the abolition of corroboration, but the idea that we can get more and better criminal justice, cheaper, simply by excising a sometimes inconvenient rule of evidence from Scots law? At worst, that's a false prospectus for this reform, at best, an unserious exercise in wishful thinking.


  1. LPW,

    I'm afraid I must strongly disagree. There is absolutely no principled case for the abolition of corroboration whatsoever. It protects people from unfair and malicious prosecution. Its existence might make some classes of crime more difficult to prosecute at the moment - however, the question that should be asked instead is whether those behaviours should have been classed as crimes in the first place when it must have been known that they would have to be tried under our existing law of evidence. That would be the type of difficult exercise from which the SNP, seeking as ever to be all things to all people, would shy away from in horror, opting instead for the lazy, easy, populist option of hacking down the law of evidence rather than the hard, gritty work of considering the dedecriminalisation of some classes of conduct. The former might result in more people being considered liable to prosecution, while the latter might go some way to stemming the fearful ebb of fairness from our criminal justice system. They seem to prefer the former.

    Abolishing corroboration would suit the police and it would suit the Procurator Fiscal Service, that body from which both our current Law Officers have ascended, apparently by way of appointment; a constitutional conundrum created by power having been devolved in haste, one of which many lawyers are very wary, and which for all I know might be having very far-reaching consequences for the individual's protection from persecution by the state. Whether it suits anyone else is anyone else's guess.

  2. Martin,

    Thanks for the comments. Per your opening gambit, I'm a bit more open to persuasion than you are on abolition, but have concerns.

    Are there no circumstances in which you could be persuaded that corroboration might be better replaced by alternative safeguards for the rights of accused persons, of the sorts MacAskill's second consultation envisages?

    If you can't envisage circumstances in which any such safeguards might persuade you, what do you make of (almost every) other criminal justice system, which does not currently find corroboration necessary?

  3. BRAXFIELD THE BRAVE11 January 2013 at 15:56

    On the contrary, Martin! I'd say that there was no principled case for the retention of the requirement for corroboration! The rule is, after all, not a principle in the first place. It is scarcely even a rule of law. I'd categorise it more as a requirement of process. It's arithmatical, rather than principled, as it has nothing to do with the quality of evidence, the fairness of any conviction that may follow, or any other feature of the justice system.

    In court it 'bites' most obviously at the point of a plea that there is no case to answer (but such pleas are also a feature of criminal systems without the rule). But where its bite has most effect is at the point of the fiscal or depute marking up his files. It is there that he is forced to abandon good cases because of the rule. Or it is there that he has to come up with incrasingly creative, strained legal submissions (Moorov, corroboration by distress and other such absurd fictions) in order to protect the system from total disrepute.

    In any event, you have entirely mischaracterised the reforms. You speak of the "abolition of corroboration" as if that is what is intended. It is not. Prosecutors will continue to corroborate crimes when they can because it is good, convincing and effective and because judges and juries will expect it. What is proposed is the abolition of the *blanket requirement* for corroboration, which is something quite different.

    There are, of course, plenty of crimes where statute has provided that corroboration is not required - look at, for example, any number of fisheries offences where the evidence of a single water bailiff is sufficient.

    Ultimately, I agree with you entirely that the law of criminal evidence should be about principle. But I think our requirement for corroboration has been the most significant hurdle preventing our judges from applying principle in these cases. It is too easy a rule - childish, even. Rather than apply their judicial minds to difficult questions about relevance, or the weight of scientific evidence - as, for example, judges in Canada, the US, England and Australia are well used to - they can instead simply say "there was corroboration, after that it is up to the jury". I would hope that, post-abolition, judges feel obliged much more closely to scrutinise the often-absurd positions the prosecution takes.

    In a system which prefers rules of relevance to rules of corroboration, for instance, would Alan Turnbull have got away with leading some of the highly prejudicial evidence he led in the Luke Mitchell trial? (The bottles of piss etc) I suspect not. I think a rigorous defence of the neglected principle that only relevant evidence should be adduced against an accused would provide a much more effective defence against oppressive prosecution than a simple exercise in counting and luck.

    On the question of alternative safeguards, I would cheerfully dispense with the third verdict (though I think that, for various reasons, not proven and proven are superior verdicts which better denote the jury's true function). Similarly, I think that an increased ratio required of criminal juries would be a good thing in and of itself, absent any logical link to the abolition of the requirement for corroboration.

    Hmm. I have typed more than I meant to! Sorry!