One of Scotland’s most senior judges has come under fire from MSPs over controversial plans to scrap the centuries-old need for corroboration in criminal cases.
Lord Carloway was dubbed “disdainful and dismissive” by Holyrood’s justice committee over his call for the safeguard to be ditched, and faced accusations that the changes were being “steamrollered” through.
In one of the toughest grillings a serving judge has faced at Holyrood, Lord Carloway said the need for evidence in court cases to come from two sources was “archaic” and was “holding the criminal justice system back”.
The recommendation was among a series about the prosecution system made by the High Court judge in the aftermath of the “Cadder” ruling last year. This found that suspects in Scotland must be given access to a lawyer when being quizzed by police, which had not always been the case.
Conservative MSP Margaret Mitchell said his argument that abolishing corroboration would not lead to more people being wrongly convicted was “just an assertion”.
She said: “People who hold a contrary view, what opportunity do they have to debate this properly? It is going through, it is being steamrollered through.”
Liberal Democrat MSP Alison McInnes claimed the judge had been “surprisingly dismissive and almost disdainful” of those who wanted to retain corroboration.
The Scottish Government has put forward the Criminal Justice (Scotland) Bill which would end the need for corroboration.
Lord Carloway told MSPs: “I am not attempting to steamroller anyone into doing anything. I was asked to conduct a review of the matter.
“If you disagree with my view and you consider corroboration should be retained, that is entirely a matter for parliament, and I respect that view.”
He told the MSPs who are scrutinising the bill that Scotland was “the only country in the civilised world” that needed evidence from two sources to secure a conviction.
He added: “It is my view [this] is not reducing the incidence of miscarriages of justice, but it is creating miscarriages of justice in the broader sense, in that perfectly legitimate cases are not being prosecuted in circumstances where there would be a conviction because of this particular rule.
“We looked at the other countries – that was the main driver for the recommendation that Scotland must change and bring itself into line with modern thinking on criminal justice.”
Lord Carloway said there were 458 serious cases in Scotland which had not been prosecuted because of a lack of evidence in 2010, but he added more than half would have been taken to court if corroboration were not required.
He said that, when looking at other legal systems, “of the 458 cases, serious cases which we have not prosecuted, something like 268 of them would have been prosecuted in these other countries with a realistic prospect of success”.
He added: “That is illustrative of the problem which actually exists in this country as a result of the operation of corroboration. Cases, serious cases, are not being prosecuted, whereas in other countries they would be and the people involved would be found guilty.”
Committee convener Christine Grahame told him that the “quality of evidence from which these assertions are made is pretty thin”.
Lord Carloway replied: “I did not make the recommendation to abolish the requirement of corroboration based solely on that research. The critical feature which I would ask the committee to bear in mind is Scotland is the only country in the civilised world which retains this archaic rule of medieval jurisprudence. It is holding the criminal justice system back.”