22 April 2015

Corroboration: a welcome U-turn...

Let's be blunt about it. Lord Carloway reported in 2011, recommending that corroboration be struck from the law of Scotland. In the months and years that followed, the case for abolishing the rule was by turns shambolic, confused, incoherent, and ad hominem. Throughout, the Cabinet Secretary for Justice cut a doubly alienating figure: in the TV studios and in the parliament, he was both jumbled and implausible in his advocacy, and high-handed, carnaptious and indicting of those who disagreed with him. 

Police officers, parliamentarians - even the Lord Advocate - conspired to give an impression of muddle and confusion around what the policy was for, and what it would and would not achieve if enacted. All of this is regrettable -- not least because there are good reasons to take another look at what has become of the old doctrine of corroboration and the injustices which it sometimes produces.

Lord Bonomy reported yesterday, identifying a series of alternative safeguards and changes to the law of evidence which might be adopted if we ditch the requirement that the essential facts of a criminal prosecution must be evidenced by two independent sources. In response, Kenny MacAskill's understated successor as justice minister, Michael Matheson, slammed on the breaks, deleting the proposals from the Criminal Justice Bill -- at least for now -- to allow a holistic examination of the whole area to take place. He has indicated that the final decision will be for the next Scottish Government, after the 2016 election. 

This is a wise move by the Scottish Government, but the fact that reverse-ferreting is now necessary is also a frustrating and unnecessary unforced error. Carloway's proposal was always going to be deadly controversial. It was clear from the get go that the Lord Justice Clerk's recommendations were not underpinned by a thoroughgoing examination of how the corroboration doctrine interacted with other safeguards for accused people. In the absence of that work, the case for abolition had to be coherent, cogent and responsibly made. It wasn't. Behind the scenes, several folk spoke up, sensing the mood, reading the fallout, counselling caution. This boorach was and is unnecessary and has been unnecessarily damaging to the government and to its credibility.

Thanks be to the Wee Man that between them, Nicola and Michael Matheson have finally got a grip on this negligently-handled, runaway reform.


  1. The good Lord's ambition, as he described it to me, that juries should look at all available evidence, in the round, and weight each piece for credibility and reliability, and against the other, as a judge sitting in a civil trial does does, always seemed to me to be hopelessly optimistic. I think it also think it spoke loudly to his past as a prosecutor, and perhaps his lack of experience in the less exhaustive trials in the lower courts.

    1. Also problematic from a statistical point of view. Only a vanishingly small % of trials are jury trials, despite the expectations generated by telly...

    2. Weighing each piece against the other is a recipe for petitio principii in my opinion. In particular, everyone (including me) is simply incredulous of the frequency with which apparently incredible coincidences actually happen in real life.

  2. What's the current status of the Carloway "certainty and finality" legislation? The provision whereby the High Court can refuse to hear an appeal even after the SCCRC has reported that a miscarriage of justice may have occurred, simply on the grounds that it wants to draw a line under the case.

  3. Lest we forget that you initially defended Lord MacAskill's position regarding corroboration - an in a rather public way. "Opponents" to the removal of corroboration were not necessarily against its removal per se, but rather begging His Lordship to slow the process down. We were also increasingly worried about NGOs and civil society hellbent on upsetting the precarious balance in the Scots Criminal Justice system that ensures both justice for victims and the accused in the dock. I wonder if you would have continued to endorse the removal of corroboration had their been less vocal opposition? ;-)