IN his review of the criminal law last year, Lord Carloway threw down a gauntlet to the Scottish legal establishment.
His recommendation that the need for evidence to be corroborated by being obtained from two separate sources be scrapped has since become the focus of considerable opposition. Fiercely guarded as a fundamental tenet of Scots law in providing essential protection to the accused since time immemorial, Lord Carloway's view that it was archaic and had no place in a modern legal system has proved too radical for all 33 of his fellow judges.
The judiciary, the Faculty of Advocates and the Law Society of Scotland all oppose including the abolition of the need for corroboration in the forthcoming Criminal Justice Bill, because, they say, it will undermine confidence in the legal system. It will be difficult for Justice Secretary Kenny MacAskill to proceed with a measure so widely opposed in the legal profession. However, abolition is supported by the Crown Office, Procurator Fiscal Service and the Association of Chief Police Officers in Scotland (Acpos). Potential advantages must be given thorough consideration.
Lack of corroboration is a serious problem in prosecuting crimes of a sexual nature from rape to domestic abuse where there are no witnesses and the case hinges on the word of the victim versus that of the accused. Research from the Crown Office found that, of 141 sexual offences not prosecuted in 2010, 67% would have had a good chance of a conviction had they made it to court. In such cases, abolishing the requirement for corroboration would be in the interests of justice if it prevented the guilty walking free. Since the majority of victims of sexual crime are women, there is some truth in the claim of the Lord Advocate Frank Mulholland that the legal system is failing female victims of crime.
Nevertheless, justice must be even-handed. It is a serious miscarriage of justice if the innocent are convicted and the risk of that is increased if a case rests on a single piece of evidence or the testimony of one person.
It is significant that, largely for this reason, the Association of Scottish Police Superintendents, which has an interest in enabling prosecution, opposes blanket abolition. However, Lord Carloway's proposition that the quality and strength of the evidence is more important than the amount is a sound one. For example, where evidence such as DNA or a computer record is compelling, it should not require the testimony of two witnesses. This is supported by Acpos, whose position is that good quality evidence can overcome the need for corroboration.
Since Scotland is now unique among European jurisdictions in retaining the centuries-old principle of corroboration, there must be recognition that other safeguards can be provided. There is already some discussion, for example, about whether conviction should require more than a simple majority verdict. Nevertheless, the merit of corroboration in setting a clearly identifiable baseline cannot easily be set aside. Mr MacAskill now has the responses to his consultation. He would be wrong to ignore the extent of disquiet at the prospect of ending corroboration. Further consideration of the implications is necessary, taking account of the opposition to ending corroboration. Given the report and the submissions to the consultation, however, it is difficult to see that a royal commission, as proposed by the Liberal Democrats, would result in significant new information. Convicting the guilty while respecting the rights of suspects and avoiding miscarriages of justice will always be a difficult balancing act. Scottish justice must achieve it.
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