tag:blogger.com,1999:blog-1638916042737526171.post499806918328705936..comments2024-03-28T07:16:39.621+00:00Comments on Lallands Peat Worrier: Corroboration reform: A false prospectus?Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-1638916042737526171.post-37167584139990477392013-01-11T15:56:10.193+00:002013-01-11T15:56:10.193+00:00On the contrary, Martin! I'd say that there wa...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. <br /><br />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.<br /><br />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. <br /><br />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.<br /><br />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. <br /><br />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.<br /><br />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.<br /><br />Hmm. I have typed more than I meant to! Sorry!BRAXFIELD THE BRAVEnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-10779338344296759622013-01-09T16:15:14.891+00:002013-01-09T16:15:14.891+00:00Martin,
Thanks for the comments. Per your opening...<b>Martin,</b><br /><br />Thanks for the comments. Per your opening gambit, I'm a bit more open to persuasion than you are on abolition, but have concerns.<br /><br />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? <br /><br />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?Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-21508791276498098772013-01-08T00:22:54.967+00:002013-01-08T00:22:54.967+00:00LPW,
I'm afraid I must strongly disagree. Th...LPW, <br /><br />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. <br /><br />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. Martinhttps://www.blogger.com/profile/11219870920638914624noreply@blogger.com