Carloway background: An important element of Scots justice for more than 300 years

Published on 18/11/2011 00:00

SCOTTISH law is unique not so much for having corroboration at its core – but for having kept it there.

As Lord Carloway points out, there are references to corroboration in the Bible and from Roman times.

However, over the course of the centuries it has come to mean different things to different legal jurisdictions.

In other justice systems, including England and Wales, it is often a significant part of a prosecution case that more than one independent piece of evidence incriminates the suspect.

It also gives jurors peace of mind when they consider returning a guilty verdict, knowing that they have to be sure ‘beyond all reasonable doubt’.

But in Scotland, it is different. Corroboration is not just a crucial part of a case – without it there is no case.

Its importance to Scottish justice has been underlined for more than three centuries.

Lord Carloway wrote in his review: “The requirement for corroboration in Scottish criminal practice was established in some form by the time that the earliest of the Institutional Writers took up their pens to describe Scots criminal law in earnest.

“At the end of the 17th century, Mackenzie described the ‘singularity’ of witnesses, as well as their ‘contrariety’, as insufficient proof.”

Baron David Hume, a jurist whose writings on Scots law in the 18th and 19th centuries are still frequently quoted today, was another who believed corroboration was a pre-requisite.

“No matter how trivial the offence, and how high so ever the credit and character of the witness, still our law is averse to rely on his single word, in any inquiry which may affect the person, liberty, or fame of his neighbour,” he wrote.

“And rather than run the risk of such an error, a risk which does not hold when there is a concurrence of testimonies, it is willing that the guilty should escape.”

For a period, corroboration was equally important in continental Europe.

However, Lord Carloway noted, often this would involve a single witness or half proof being used as the basis for a suspect being tortured.

When torture was no longer acceptable in society, it became harder to convict, and for practical reasons the importance of corroboration was reduced.

Lord Carloway said: “For reasons which are not entirely clear, Scotland did not follow this route. Rather it seems to have become stuck, so far as the generality is concerned, with the law as stated by Hume at the end of the 18th century.”

He added that in England and Wales “juries were already content to base their verdicts upon a subjective consideration of whatever the evidence demonstrated”.

“Yet the Scots system neither followed its continental neighbours and their systemic antecedents, nor did it adopt the English liberal approach to sufficiency,” Lord Carloway wrote.

“Perhaps mistrust of judges was a factor. But the reality is that Scots law retained the Romano-canonical rules, when all around had abandoned them.