The Point

Last updated: 27 June 2022.

The Corroboration Debate

From a legal perspective, Kevin Kane examines the current debate on the removal of the requirement for corroboration in Scots criminal law.

Introduction

A lot of attention in the media of late has centred on the contentious topic of corroboration in criminal trials - the trench warfare alive and well for all to see. On one side we have those who maintain that corroboration is the "cornerstone" of the judicial system in Scotland and those on the other who assert that corroboration is an "archaic" rule that ought to be abandoned. The dialogue from the main stream media has conjured up what one might consider a false dichotomy, between those with apparent vested interests within or connected to the legal profession and those of progressive wisdom who put the rights of victims first. This is a gross over-simplification. This piece will extrapolate on why that is the case and attempt to arm those on the left with a more nuanced take on corroboration – at which point, it is hoped that whatever opinions are upheld, these opinions will be built upon solid foundations - not media hyperbole.

All references and footnotes are numbered and appear at the end of the main body of the text.

Brief History of Corroboration in Scots Law

The corroborative ethos is enshrined in Scots criminal law (1) - indeed, its origins in legal philosophy can be traced all the way back to biblical scriptures:

"Who so killeth any person, the murderer shall be put to death by the mouth of witnesses; but one witness shall not testify against any person to cause him to die" (2)

Moreover, the earliest Institutional Writers affirmed Scots law of corroboration as sacrosanct (3). However, the bible and early institutional writings were not Scots lawyers only source of guidance; they would have been indoctrinated in matters of procedure by "Canon Law" (4) and their training influenced in a manner befitting of continental Europe at that time (5).

Stained glass window - Parliament Hall in Edinburgh. Once the seat of the Scottish
Parliament now the centre of the Scottish courts

Current Status - Corroboration in Scots Law

The law of Scotland purports that no person be convicted of a crime when there is only one source of evidence irrespective of the quality of that evidence - but, what matters are required to be corroborated? Generally speaking those matters are:

* Commission of a crime
* Identification of the accused as the culprit (6).

A classic demonstration of the law of corroboration is illustrated in Morton v HM Advocate 1938 JC 50 (7). It should be noted that not every fact requires corroboration. Furthermore, corroboration of one piece of evidence does not necessarily presume guilt on the part of the accused. What is paramount is that the corroborating evidence is supportive of the primary source of evidence, suggesting guilt on the part of the accused. Therefore, a corroborated case does not need to be a case involving two eye-witnesses to an alleged crime, for example, in Ralston v HM Advocate 1987 SCCR 467 (8) a positive identification by one witness was corroborated by resemblance identification. A circumstantial case can point to guilt and will be sufficient for conviction if there are two or more pieces of evidence that, when taken together, attests to the guilt of the accused (9). There are, of course, difficulties with eye-witness testimony (10) as evidenced in Muldoon v Herron 1970 JC 30 (11), whereby, the witness was unable to identify the accused as the culprit from the witness box. However, it was held this did not matter as two police officers testified that the accused were among those pointed out by both the witnesses. The Sheriff was satisfied with this and, despite there being no other evidence to incriminate the accused, a conviction was secured.

As the law of corroboration has developed it has been interpreted more loosely, such as, the use of the "special knowledge" rule, which permits that when the accused has unique knowledge of the crime that only the perpetrator of that crime could have, then that knowledge can be deemed corroborative. Despite the inherent ambiguity of this rule, the courts have readily accepted such evidence as corroboration (12). Additionally, a victim's distress can provide corroborative evidence that an offence has taken place (13), but there is some contention surrounding whether this form of corroboration is acceptable, since it involves a subjective interpretation of what distress entails (14).

Criticisms of Corroboration

A regularly cited argument that the need for corroboration should be reviewed is that this requirement has resulted in a criminal justice system that prioritises quantity of evidence, rather than, the quality of evidence (15). Opinion in agreement with the aforementioned arrives in the form of COPFS (16) (the group that provided statistical analysis for the Carloway Review). This analysis assisted in forming the conclusion that there had been a high number of cases that were abandoned because of the need for corroboration. In these cases it is asserted that if the necessity for corroboration had been removed, the cases would have proceeded on the basis that the Crown had a credible and reliable case (17).

Proponents for Keeping Corroboration

One of most ardent defenders of corroboration is British-based human rights and law reform organisation, JUSTICE (18).

JUSTICE is disappointed at the proposal to abolish corroboration when no significant alternative safeguards against miscarriages of injustice are offered. The Report "repudiates" safeguards such as:

* The most basic protection of a warning to juries regarding the quality of evidence
* Rules of law enforced by judges controlling the quality of evidence which can be admitted or relied upon for conviction
* Unanimous verdicts.

The rule of corroboration has, as the Report states, "lain at the heart of the criminal justice system since time immemorial" and has always been the fundamental safeguard in Scots law against wrongful conviction. This is not in reference to sufficiency in the courtroom but in terms of the investigation process of crime and in decision making as to the prosecution of alleged crimes (19). It is not solely JUSTICE that supports this notion, the majority of those consulted do not support abolition, including:

* Law Commission
* Legal profession
* Judiciary.

If there is no longer necessity for corroborated evidence of an allegation to the police, the Law Society of Scotland believes the police should have to apply a test before reporting a case to the Crown and the Crown should require a further test to be applied before they proceed to prosecution. The Law Society's Criminal Law Committee has also questioned the Criminal Justice (Scotland) Bill's proposal to move to a two thirds majority (10 out of 15 jurors) for a guilty verdict to be returned, as the only proposed additional safeguard in the absence of the requirement for corroboration. Whilst, two thirds is higher than the current requirement for simple majority of 8 out of 15 jurors, the committee is of the opinion that at least 12 of the 15 jury members should be in agreement before returning a guilty verdict (20).

All of the above have advocated for more careful and systematic review before any steps to abolish corroboration are taken. Whilst other comparable jurisdictions do not share the rule of corroboration, they instead have a body of rules of law designed to protect against wrongful conviction; for example, in England, Wales and Northern Ireland, their protections include:

* Preliminary committal hearing in court to test the quality of evidence
* Regulation of police investigation and conduct in obtaining and recording evidence, e.g. taking of witness statements and over identification procedures
* Judges clear role in trials to exclude poor quality and prejudicial evidence (s76 and s78 Police and Criminal Evidence Act 1984)
* Unanimous verdicts are required in the first instance
* Wider grounds for appeal where the verdict is "unsafe" (21).

Jock Thomson QC, former senior prosecutor, now a defence advocate, goes further in his use of negative language in relation to the proposal, asserting in a letter to The Herald on the issue of the removal of corroboration in Scottish courts, that it would be a "draconian step" (22). Moreover, High Court judges and solicitors across Scotland universally rejected the proposal "amid fears it could lead to miscarriages of justice" (23) and, when factoring in the police force in Scotland who are also fervently critical of the proposals (24), it can be seen that there is momentum gathering around corroboration's retention.

Carloway Review

The Carloway review recommends the abolition of corroboration (25. Prominent lawyers have questioned the proposal for abolition, raising concerns that a vital safeguard against miscarriages of justice would be removed (26). However, victims groups, including Rape Crisis, have countenanced the proposed abolition measure, providing very definite opinion:

"Under Scots law it is essential that all crimes are proven by corroborated evidence. Scotland is one of the very few legal jurisdictions to retain the requirement for corroboration. This requirement has had a disproportionate impact on crimes experienced primarily (although not exclusively) by women, such as sexual crime and domestic abuse. Due to the nature of sexual crime, particularly rape, there can be significant difficulties in obtaining corroboration. What this means is that the vast majority of rapes never even make it as far as court. This can have a devastating impact on rape survivors. It also raises the very real possibility of guilty men walking free with no judicial sanction, and the resultant risks for both public safety and public confidence in the Scottish justice system" (27)

The summary of the Carloway Report compounds the view of Rape Crisis, stating:

"The Review is in no doubt that the requirement of corroboration should be entirely abolished for all categories of crime. It is an archaic rule that has no place in a modern legal system where judges and juries should be free to consider all relevant evidence and to answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled. The argument is not that such a reform would bring Scotland into line with the rest of Europe and the Commonwealth. It is that it would bring Scots law into line with modern, and almost universal, thinking on how to approach evidence in criminal, and indeed all other, cases."

This view is supported by Scotland's Justice Secretary, Kenny McKaskill who states "the rule of corroboration stems from another age" and that it should be abolished (28). In agreement with these conclusions, it was submitted that safeguards against miscarriage of justice derives from the high standard of proof required in criminal cases, not from corroboration. Further, from the evidence provided there was none that clarified corroboration as a preventative measure against miscarriages of justice. It was quite the reverse, corroboration prevented justice being delivered; victims of crime being denied access to a potential judgement because the prosecutor could not bring proceedings due to a lack of corroborated evidence.

Kenny MacAskill, who is defending plans to abolish corroboration

Cadder

In any modern missive pertaining to corroboration, it would be remiss of the writer not to include Cadder v HM Advocate (29). Held, that by not having access to a solicitor prior to being interviewed by the police, Cadder's rights under Article 6(1) of the ECHR had been breached. This is relevant in the context of corroboration because The Supreme Court in Cadder overturned the decision of the High Court of Justiciary in McLean v HM Advocate (30), whereby, the Scottish Court had considered that the rule of corroboration was one of the many safeguards that ensured that the accused received a fair trial and concluded that there were adequate safety measures within Scots Law to be confident that there was no breach of Article 6(1). Although Cadder and McLean dealt with corroboration in a general manner, it resulted in the Carloway Review, which was charged with completing a report making recommendations in relation to the law of corroboration as it affects the law of evidence in the Scottish criminal courts (31).

European Court of Human Rights (ECHR) based in Strasbourg

To Remove or Not to Remove?

The Carloway Review is an example of how Scots' lawyers ought to be progressive in their outlook by assessing the experiences of other jurisdictions and being unafraid to challenge outmoded forms of legal thought. However, change should not be for changes' sake and the potential ramifications of any change should be forensically thought out. Neither, should the legal establishment avoid reform because it has had a system in place for a significant period of time. As has been discussed, the rule of corroboration is a central pillar of the Scottish justice system, meaning that any removal should not be treated as anything other than radical upheaval. This means that the technicalities of change that is potentially about to be embarked upon is not just a matter of papering over the Scots Law crack that is corroboration. Rather, the wider consequences of any overhaul in the justice system which would attempt to bring it up to date, should be taken with respect to all areas of Scots Law that may be affected by the change.

It is my contention that Scots Law should maintain, where possible, an independence of thought in relation to its legal system and remain flexible enough to learn from other legal systems. For centuries corroboration has been an integral part of the criminal justice system in Scotland, but this fact taken in isolation is not reason enough to merit its retention. It also does not necessarily follow that the abolition of corroboration will result in an increase in miscarriages of justice. There are cases abound that proceed to a conviction on the basis of the jury's assessment of one witness and not much else, so one might argue that the law of corroboration is somewhat illusory in nature? Therefore, it could be argued that the polarised nature of the recent discussions on corroboration (32) misrepresents the complexity of the debate.

The most stringent protection afforded to an accused person is the high standard of proof - but, if the need for corroboration was no longer a requirement, the jury would still be directed to assess the quality of the evidence. For example, in sexual assault cases, acquittals are often as a result of the jury not accepting beyond reasonable doubt the evidence of the complainer - the witness. Taking this on its own is not reason enough to keep corroboration, but it is meaningful to address all the issues in practical terms, rather than get caught up in theory and a myriad of sensationalist rhetoric.

Abolishing corroboration would mean that the Moorov doctrine (33) would become a thing of the past – jurors would no longer be required to tackle the complexities of the rule. This could be construed as a positive step as it would simplify the process for the public - the very people the legal establishment is designed to serve. However, with the addition of the Moorov doctrine in the Scottish legal system, one might also argue that it stretches corroboration to its limits. Thus, the Moorov doctrine, in my view, is corroboration's safeguard mechanism that already protects against miscarriages of injustice. It provides that the rule of corroboration is pliable enough that each criminal case can be dutifully assessed on its own unique merits. The application of Moorov evidences that corroboration has evolved and is, in fact, not the archaic rule despite the criticisms levelled at it by certain commentators (primarily Lord Carloway).

It is my contention that the law of corroboration in Scots Law should remain; but if it is abolished, that it is not on the basis of the Carloway report alone. It should be reformed as part of a wider review that takes into account all the cautionary checks and balances that will be required to minimise the domino effect any change (as yet unknown) might have on other areas of the Scottish justice system.

 

Kevin Kane

Kevin Kane is a member of the SNP, and a YES Scotland campaigner. He is currently working towards his Law degree, and is a proud member of the Scottish Militant NInja Turtles.

 

Bibliography/Footnotes

1 James Chalmers, Evidence (Law Essentials Series, 2nd Ed, Dundee University Press, 2009) 5
2 The Holy Bible, New International Version (Numbers 35:30)
3 Hume, "no one shall in any case be convicted on the testimony of a single witness" and went further "No matter how trivial the offence, and how high so ever the credit and character of the witness, still our law is averse to rely on his single word, in any inquiry which may affect the person, liberty, or fame of his neighbour; and rather than run the risk of such an error, a risk which does not hold when there is a concurrence of testimonies, it is willing that the guilty should escape" accessed 11 October 2012
4 Canon Law, "A body of ecclesiastical jurisprudence which, in countries where the Roman Catholic church is established, is composed of maxims and rules drawn from patristic sources, ordinances and decrees of general councils, and the decretals and bulls of the popes" accessed 11 October 2012
5 Glasgow University, 'Introduction to the Scottish Legal System', accessed 12 October 2012
6 Equality and Human Rights Commission, 'Response to the Scottish Law commission proposals for reform of law on rape and sexual offences' (2008) accessed 14 October
7 Morton v HM Advocate 1938 JC 50, "no person can be convicted of a crime or a statutory offence except where the legislature otherwise directs, unless there is evidence of at least two witnesses implicating the person accused with the commission of the crime or offence with which he is charged." – per Lord Justice Clerk (Aitchison) at p. 339
8 Ralston v HM Advocate 1987 SCCR 467
9 Chris Fyffe, 'We don't need no corroboration but is it just another brick in the wall'?' accessed 14 October 2012
10 Scottish Criminal Law (the Bryden Report) Cmnd 7096 (1978)
11 Muldoon v Herron 1970 JC 30
12 Sinclair v MacLeod 1964 JC 19. For a court to find that a confession has been corroborated there must be evidence capable of functioning as corroboration. There is authority for this in Manuel v HM Advocate 1958 JC 41. In this case the accused confessed to murder and offered to point out to police the positions in a field where he had buried the victim and one of her shoes. His ability to do so was later held to be corroborative of his confession.
13 Yates v HM Advocate 1977 SLT (Notes) 42 , Lord Justice General (Emslie) states "evidence as to the condition of the alleged victim of rape is capable of affording corroboration by credible evidence...that she has been raped"
14 Lord Hope, 'Corroboration and Distress' (A Lecture in Honour of Sir Gerald Gordon, Edinburgh 12 June 2009) 2. accessed 18 October 2012
15 Charles N. Stoddart, 'Human Rights in Criminal Procedure: The Scottish Experience', in John A. Andrews (ed), Human Rights in Criminal Procedure: A Comparative Study (Kluwer Academic Publishers Group, 1982)
16 "The Crown Office and Procurator Fiscal Service (COPFS) is responsible for the prosecution of crime in Scotland, the investigation of sudden deaths, and the investigation of complaints against the police. We work closely with our partners in the criminal justice system to help make Scotland a safer place" accessed October 15 2012
17 Lord Carloway, 'Carloway Review Report and Recommendations: Executive Summary' (17 November 2011) accessed 15 October 2012
18 accessed 17 October 2012 "JUSTICE is an all-party law reform and human rights organization. We promote improvements to the British legal system – through research, education, lobbying and interventions in the courts. We are the UK section of the International Commission of Jurists. JUSTICE is a registered charity (no 1058580). We rely on the generosity of our members and supporters for the funds to carry out our work"
19 Sutherland Report, para. 1.24, repeating the view of the Scottish Office, Firm and Fair (cm 2600, HMSO, Edinburgh, 1994) accessed 7 October 2012
20 Editor Abolition for requirement of corroboration could expose members of public inappropriate prosecutions accessed 3 October 2013
21 Maggie Scott QC, JUSTICE, 'Initial Response To The Carloway Report' (2011) accessed 16 October 2012
22 Victoria Weldon, 'QC Attacks Legal Unholy Alliance' Herald Scotland (Glasgow 6 October 2012) accessed 10 October 2012
23 Alison Campsie, 'Not Proven: Judges Rebel Over Evidence Rule Plans' Herald Scotland (Glasgow 17 October 2012) accessed 17 October 2012
24 BBC, 'Police Body Criticises Plan To Abolish Corroboration Rule' BBC News (21 October 2012) accessed 21 October 2012
25 Lord Carloway's recommendations "The current requirement for corroboration in criminal cases be abolished; and in solemn prosecutions where there is no corroboration of testimony, there should be no requirement on the judge to warn the jury of any dangers perceived purely as a consequence of the absence of such corroboration." accessed 30 September 2012
26 Chris Fyffe, 'We don't need no corroboration but is it just another brick in the wall' accessed 1 October 2012
27 Rape Crisis Scotland, 'Reforming Scots Criminal Law and Practice - The Carloway Report' (2012) Rape Crisis Briefing Paper September 2012 accessed 1 October 2012
28 'Dean Herbert, 'Senior Judges Go On The Attack Over Bid To Change Law' accessed 17 October 2012
29 Cadder v HM Advocate [2010] UKSC 43 As a result of this case, Scottish police can no longer question suspects without a lawyer being present. The period of detention without charge has been raised from six hours to twelve hours - raised to twenty-four hours if "cause shown" by a senior officer
30 McLean v HM Advocate 2010 SLT 73
31 'Scottish Law of Evidence' accessed 21 October 2012
32 BBC 'corroboration has failed Scotland says Justice Secretary' BBC News (25 September 2013) accessed 2 October 2013
33 Moorov v HM Advocate 1930 SLT 596, [1930], "The Moorov doctrine as it is now known, was established in this case, where the evidence of one witness in the serier of two or more separate offences may be capable of providing corroboration of the evidence of a witness in another case or cases of the existence of underlying unity. In other words, each of the offences corroborate the other(s). In order for the Moorov doctrine to be applied, the crimes must be so inter-related by 1. Character 2. Circumstance 3. Time. The relationship of character and circumstance does not require that the offences be identical. What matters is that they are sufficiently factually connected. The necessary relationship in time will depend on the nature of the offence." accessed 02 October 2013