TWO of Scotland’s most eminent judges have warned the Scottish Government against a controversial change in the law on corroboration, predicting it will increase the risk of miscarriages of justice.
Lords Hamilton and Cullen said the requirement for corroboration – the centuries-old requirement for evidence to come from at least two sources in criminal cases – is essential to Scottish law and must not be abolished. They join the majority of Scottish judges, the Faculty of Advocates and the Law Society of Scotland in opposing the plan to allow cases based on just one piece of evidence.
However, the Scottish Government remains determined to push through the change, insisting it is key to delivering access to justice for victims, particularly of sexual crimes and domestic violence.
But there are concerns it will increase the risk of miscarriages of justice. “There is a serious risk that that would be so,” Lord Hamilton said. “They should retain corroboration as an essential element of our criminal jurisdiction in Scotland.”
Lord Cullen added: “It’s very important that [corroboration]is there and always has been for centuries as a safeguard against wrongful conviction.”
Corroboration came under scrutiny following the Supreme Court’s “Cadder” ruling, which said suspects must be given access to legal advice prior to police interview. This has led to more suspects remaining silent, making corroboration difficult, particularly in sexual cases.
Lord Carloway was asked to review Scots law in the wake of the Cadder verdict and ruled the requirement for corroboration should be abolished.
Opponents have welcomed the intervention by Lords Cullen and Hamilton, and hope it will persuade the Scottish Government to change course.
Ian Cruickshank, convener of the Law Society of Scotland’s criminal law committee, said: “Lord Cullen and Lord Hamilton’s comments follow Lord Gill’s recommendation in November last year, that corroboration should be taken out of the bill and looked at separately.
“The views of the country’s most senior judges highlight the serious concerns that surround the government’s proposed reforms and should not be ignored, just as the views of the vast majority of the legal profession should not be ignored.”
All the other main parties in Holyrood oppose the move.
Alison McInnes MSP, Liberal Democrat justice spokeswoman, said: “Scrapping corroboration would not be a progressive step. Quite the contrary; it would place Scots at a greater risk of miscarriages of justice and wrongful imprisonment.”
Graeme Pearson MSP, Scottish Labour’s justice spokesman, added: “The proposals as they stand merely fiddle with the system instead of properly reforming it for the benefit of victims and witnesses. We need to know what the consequential impact on them will be, as well as how it will affect the way juries make decisions at trial.”
And Scottish Conservative justice spokeswoman Margaret Mitchell MSP said: “The Scottish Government cannot continue to abuse its parliamentary majority by ignoring these warnings which come from those who, from experience and expertise, clearly know best.”
But the Scottish Government believes it is on the side of victims.
Kenny MacAskill, Justice Secretary, said: “I listen respectfully to the judiciary and legal profession, but I also have to take on board the views of Victim Support Scotland, Scottish Women’s Aid, Rape Crisis Scotland, Police Scotland, the Crown and Procurator Fiscal Service, those who suffer in silence behind closed doors, behind pulled curtains, where they are not, and have not been getting access to justice.”