Scotland's top judge warns against scrapping corroboration

He told MSPs that only one judge in Scotland, the Lord Justice Clerk Lord Carloway - who recommended abolishing corroboration in his review of criminal law and practice - supported getting rid of the rule, with all other judges opposed to the move.

The Scottish Government has put forward legislation that would end the requirement for corroboration in criminal proceedings.

Scotland's top prosecutor Lord Advocate Frank Mulholland QC told MSPs today he backed the change, saying it could help provide "access to justice for the victims of domestic abuse, rape and sexual offending".

Mr Mulholland told MSPs on Holyrood's Justice Committee: "It seems to me that is something any modern criminal justice system should have."

But Lord Gill told the committee: "I don't think this will improve the quality of justice in Scotland in any way.

"I think there is a very serious risk there will be fewer convictions and I also think that if you make this change in isolation, without looking at the wider picture, there are consequences that at the moment are unknowable but could be very adverse to the system."

He added that scrapping corroboration "might increase the number of prosecutions" but said he was "certainly not convinced it will increase the number of convictions".

Lord Gill argued getting rid of the requirement would mean defence lawyers would be able to "go to the jury and say 'would you convict my client on the word of one person, with nothing else to support it?'".

He went on: "That could be a a very powerful line to take with juries and if corroboration is abolished I am not persuaded it will increase the conviction rate."

He stressed: "We've got to think very carefully about what the consequences of this could be. It's a major change which has consequences, many of which are unknown at this stage.

"It's not just a piece of law reform in the narrow area of the law of evidence, this affects the whole approach of our society towards justice and it could have consequences which could be very, very serious.

"By and large we do not have many miscarriages of justice in Scotland and when they are discovered we put them right. There are very few. My fear would be there will be many more if corroboration is abolished."

Lord Carloway had previously told the committee that Scotland was "the only country in the civilised world" that required evidence from two sources to secure a conviction.

But Lord Gill said taking the view that Scotland was "out of step" was the "wrong way to look at it".

He told MSPs: "I think we should be very proud of the fact we have something that other jurisdictions do not have, it is one of the great hallmarks of Scottish criminal law.

"I take the view we are all privileged in Scotland to live in what is a just society, and the reason for that is our criminal system is rooted in the idea of fairness and corroboration is, in my opinion, a critical element in that.

"So, I'm not here to apologise for the fact that we've got corroboration, I think we should be very grateful that we do."

He insisted this was the "general view of the judiciary", adding: "I asked every judge to express their view individually to me. With the exception of my colleague the Lord Justice Clerk, all the judges were opposed to the abolition of corroboration."

Lord Gill added corroboration was "not some sort of legal relic from antiquity", saying: "We didn't get where we are by accident, the fact that we have this rule in our law, which I regard as one of its finest features, is a result of centuries of legal development and legal thought.

"It has been found to be a good rule and I would say listen to the wisdom of the ages, it has a lot to tell us."

But Justice Secretary Kenny MacAskill has pledged to press ahead with the proposal to abolish corroboration, which is included in the Government's Criminal Justice (Scotland) Bill.

He said last month the requirement to have evidence from two separate sources resulted in "the inability to prosecute offences and the denial of justice for too many".

While the change is opposed by many in the legal profession, the Justice Secretary insisted: "Laws are made by parliament, not one profession. This is about justice in our communities, not a debate between learned legal friends."

With the Justice Committee scrutinising the Bill, Mr Mulholland explained to MSPs he supported abolishing corroboration because it could make it easier to prosecute offences such as domestic abuse, sexual abuse and rape, where often evidence only comes from the victim.

When asked for his view on the proposal, the Lord Advocate said: "I support it and I support it for quite a particular reason. Prosecutors see the effect of the rule of corroboration on certain areas of criminal offending, in particular sexual offending, including rape and domestic abuse."

He added: "I have never said the abolition of corroboration was all about increasing the conviction rate, I see it as access to justice for the victims of domestic abuse, rape and sexual offending. It seems to me that is something any modern criminal justice system should have."

Mr Mulholland said that in 2012-13 there were 2,803 charges of domestic abuse which could not be taken to court because there was insufficient admissible evidence.

He told MSPs: "That I would suggest is a matter of real concern, that we are not giving the possibility of access to justice for a sizeable proportion of victims in those charges."

He also said that over the last two years about 13% of rape cases - approximately 170 - reported to the Crown could not be proceeded with because of the requirement for corroboration.

"That is a real cause for concern for anyone who is interested in delivering justice in Scotland," Mr Mulholland insisted.

He told MSPs: "I had a case where two sisters had been horrifically sexually-abused as children over a period of many years by a relative, a member of the family. The girls were told no-one would believe them if they spoke up, that no-one would love them if they spoke up. So, they didn't speak up.

"But eventually as adults they got the courage to speak up and make a complaint to the police.

"We took the case up, we indicted the case in the High Court and we were prepared to proceed to trial. But one of the complainers, one of the victims, mentally could not go ahead with it.

"We tried to support that victim through the process, give her as much support as was necessary. But at the end of the day we couldn't force that woman to give evidence. The effect of that meant the whole case fell."

He added: "That, to me, is something this Parliament, the committee, the public at large, should be concerned about."

Mr Mulholland said: "I respect people in the legal profession, their views, I respect judges' views. Everyone involved in the criminal justice system has an opinion on this.

"But they are not seeing the cases which cannot be taken up because of the requirement for corroboration. It's police and prosecutors that are seeing this."

A Scottish Government spokeswoman: said: "We remain committed to abolishing the requirement for corroboration, as recommended by the Lord Justice Clerk, Lord Carloway, in his wide-ranging review of Scots law and practice.

"Our proposals are supported by the Crown Office, Police Scotland and a range of victims' organisations including Victim Support Scotland, Scottish Womens' Aid and Rape Crisis Scotland, and are designed to make our justice system fit for the 21st century.

"As the Lord Advocate said at the Justice Committee today, abolishing the requirement for corroboration is about ensuring access to justice for victims. He gave compelling and real-life experiences of the negative impact the rule of corroboration currently has on victims. This is a barrier to justice that does not exist in any other jurisdiction in the western world.

"There is no evidence that other legal systems have an issue with miscarriages of justice due to the absence of this rule. The high standard in criminal cases of proof beyond reasonable doubt will remain."