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A difficult legal balancing act

The vexed question of whether to keep or abolish the need for corroboration in criminal cases has been the subject of anxious debate for more than two years and plans to abolish the provision are being given detailed scrutiny by the Justice Committee of the Scottish Parliament.

There are compelling arguments to be made for abolition, but there is also genuine cause for concern about the unintended implications of such a move. Ultimately, the law must balance the very real need to improve the scope for convicting the guilty with preventing miscarriages of justice, without sacrificing the latter in pursuit of the former.

The latest intervention in the debate comes from Mary Ann Davison, the woman at the centre of a high-profile rape case 12 years ago, who has bravely waived her right to anonymity to support the case for removing corroboration, the need for two separate sources to support crucial evidence in a case. Ms Davison's main point is simple: that corroboration prevents some cases where an accusation of rape has been made from even coming to court.

There is support across the political spectrum and in wider society to increase Scotland's woeful conviction rate for rape, yet how can it be improved? The Justice Secretary Kenny MacAskill has concluded that the requirement for corroboration is part of the the problem.

By its nature, rape is a crime that takes place in private, usually with just perpetrator and victim present, so cases often come down to one person's word against another's. Getting corroborative evidence can therefore be difficult or impossible. Crown Office figures show that around 170 rape cases could not be proceeded with over the last two years because of the requirement for corroboration. The Crown Office judged that two-thirds of sexual offences cases that did not proceed in 2010 for lack of corroboration would have had a good chance of a conviction had they made it to court.

Removing corroboration should not be seen as any sort of panacea, however. Just because a case comes to court does not mean juries will convict. Indeed, the Faculty of Advocates has warned that abolishing corroboration might actually make it harder to secure a conviction as police might focus less on finding corroborative evidence, weakening the prosecution case.

There are also worries about the chances of conviction resting on a single piece of evidence or testimony from one person and how this could increase the chances of miscarriages of justice.

Corroboration provides a safeguard for those accused of crimes, but those who oppose its abolition must also recognise that Scotland is alone among European legal systems in requiring it and that other safeguards may be possible. It should not simply be abolished without wider reforms being made. There is a case, for example, for requiring more than a simple majority verdict to secure conviction.

Lord Carloway, who let the genie out of the bottle by proposing the change, has empahsised that more attention should be paid to the quality as opposed to quantity of evidence. Earlier this month, the Scottish Police Federation and the Association of Police Superintendents changed position and gave their backing to abolition, with the SPF vice-chairman saying that the Federation favoured "the requirement for a sufficiency of evidence, across the whole of the evidence, to prove guilt beyond reasonable doubt".

This is a punishingly difficult balancing act, but the Scottish Government must get it right before proceeding with this major reform.

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