Plan to scrap cornerstone of Scottish justice system

Chief Reporter

Friday 18 November 2011

SCOTLAND'S centuries-old, distinctive legal cornerstone of corroboration in criminal prosecutions is "medieval" and "archaic" and should be abolished, according to a radical review of the system.

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Lucy Adams Chief Reporter

However, the proposal -- a key recommendation of a Scottish Government-commissioned review published yesterday -- has led to warnings from the Law Society of Scotland, senior advocates and judges over the dangers of removing it.

In a submission to the review, the Senators of the College of Justice -- Scotland’s High Court judges -- said the loss of this “key safeguard” would “weaken” the system and could lead to more miscarriages of justice.Other consultees warned the review should not include corroboration because it was such a big issue.The corroboration rule, unique to Scotland, ensures at least two separate sources of evidence are required for a successful criminal prosecution and is regarded by many as an important safeguard against miscarriages of justice.However, Lord Carloway, the High Court judge in charge of the review, yesterday declared it no longer had a place in a modern legal system and might actually impede justice.He pointed out that advances in technology, such as CCTV, were incompatible with corroboration and the requirement to have two experts in court to speak to footage led to unnecessary duplication and extra costs.Lord Carloway said judges and juries should be able to assess the quality of evidence, free from current “restrictive” rules and principles.The review commissioned research from the Crown Office which revealed there were more than 458 cases last year where an accused person was placed on petition but the case did not go any further because of a lack of corroboration.Almost 60% of the cases had a “reasonable prospect” of conviction if the need for corroboration was removed. Of 308 cases not prosecuted relating to violence, the study found 62% would have had a reasonable prospect of conviction.Fiscals looked at a further 141 sexual offences not prosecuted in 2010, and found that 67% would have had a good chance of a conviction if they had made it to court.But other senior law figurers were against removing corroboration.John Scott, solicitor advocate and member of the Carloway reference group, said: “I like the general approach -- the future-proofing of the system, the trying to avoid a repeat of the difficulties that Cadder brought -- but corroboration should not have been included as part of this review.“It was introduced as a knee-jerk reaction of the Scottish Government to concerns that rape cases were overly dependent on the confessions of suspects in custody and would therefore fall following Cadder.“There are real risks in this. The irony would be if the SNP Government presided over the removal of the most unique aspect of Scots law after criticising the Supreme Court for interfering in Scots law.”Cameron Ritchie, president of the Law Society of Scotland, said: “We have grave concerns in respect of the proposal to abolish the requirement for corroboration.“Before taking the radical step of abolishing what has been an integral part of Scots criminal law since time immemorial, there would have to be an overwhelming case for thatchange. In our opinion the review in itself does not achieve that. We believe there is a case for a wider and broader-based review of the law of evidence and criminal procedure.In his 400-page review, Lord Carloway made 76 recommend-ations, which are expected to form the basis of new criminal procedure law. He looked at custody, investig-ation, evidence and appeals. The document sets out the case for “radical and substantial” changes to how the police and courts operate.It follows a year-long review by Lord Carloway in the wake of a high-profile Cadder decision by the UK Supreme Court, which put an end to police being able to question suspects without the option of legal representation.Lord Carloway wrote that the requirement for evidence to be corroborated had lain at the heart of the criminal justice system “since time immemorial”.But he said: “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 answer the single question of whether they are satisfied, beyond reasonable doubt, the accused committed the offence libelled.”

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Plan to scrap cornerstone of Scottish justice system

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