Maggie Scott: Corroboration – a second opinion

The mooted abolition of corroboration is a dangerous step - Maggie Scott QC fears Lord Carloway’s recommendations would rob judges of a key pillar of Scots law

Lord Carloway has recommended that the rule of corroboration in Scottish criminal cases simply be abolished. He does so despite the overwhelming majority of responses to his review being against such a move and despite the majority call for a more rigorous, in-depth review before reaching any conclusions. His report – not surprisingly given the short consultation period allowed – is far from comprehensive or rigorous. This is very disappointing.

My real concern is this – not only has this recommendation been made without any proposals for alternative safeguards, but the report is positively against alternative safeguards being put in place. There is a real and dangerous prospect of criminal trials in Scotland being conducted without any rule of law regarding quality of evidence, or any real protection against wrongful conviction.

Corroboration is the requirement that no-one can be convicted of a criminal offence unless there are two separate and independent sources of evidence pointing towards or consistent with the essential facts – that is, the crime was committed and the accused was the perpetrator. This rule shapes and safeguards our system from the stage of investigation (demanding the police look for more than one source of evidence) through to appeal (based on there being insufficient evidence to convict). The purpose of corroboration is to ensure the quality of evidence, protecting against wrongful conviction.

Lord Carloway dismisses corroboration as an archaic rule which many other systems have abandoned. What he fails to examine is that other comparable systems have built in different safeguards. In England, at the investigation stage, there is detailed statutory regulation of police conduct with requirements in respect of how evidence is obtained and recorded, such as witness statements and identification procedures. These rules are designed to ensure quality and fairness. Once the crime is reported, in deciding whether there is a sufficient standard of evidence, the prosecution can take the case to “committal” proceedings to enable an assessment of the evidence, before proceeding to trial. At trial, crucially, the judge has the power to exclude evidence from the jury as a means of quality control, and can warn the jury about the quality of evidence when required.

Both of these safeguards, surprisingly, are rejected by Lord Carloway. At the end of the evidence in a trial in England, a submission can be made that the evidence is of such poor quality that no reasonable jury could convict and the case can be dismissed. Lord Carloway is against this being done and supports the new Scottish statutory restriction, that such a challenge can only be made after conviction, on appeal. It will be enough that “some” evidence is led before a jury to suggest the crime was committed and the accused committed it. That wouldn’t be enough in any other modern criminal justice system.

In England, the jury requires, in the first instance, to reach a unanimous verdict and, if impossible, at least ten out of 12 is required for conviction. Here all that is required is eight out of 15 jurors voting to convict. This safeguard was specifically not addressed in the report, as being outwith its remit.

Finally, in England there is a far broader basis for an appeal against “unsafe” conviction; in Scotland, a much narrower approach is taken and the convicted person requires to show there has been a miscarriage of justice.

All other comparable modern jurisdictions recognise that simply leading evidence and leaving it to the jury is not good enough – and to guard against wrongful conviction, legal rules or guarantees are necessary to secure sufficient standards and the quality of evidence. Other systems are travelling in the direction of introducing more safeguards and quality control – in England, there is a bill before parliament proposing extensive controls over the admission of expert evidence and placing the judge in the role of gatekeeper of such evidence. Scotland has little by way of comparison, having relied upon corroboration as the safeguard. This report is against judges controlling the quality of evidence and is travelling in the opposite direction, going backwards

I find two reasons in the report for the recommendation on corroboration. First, the suggestion that nowadays it does not really work and the rule has become about the quantity, not the quality, of the evidence. That is a reasonable view. Corroboration has, at times, become a matter of arithmetic and proper consideration hasn’t been given to the quality of the two pieces of evidence. That corroboration is today not fit for purpose is an argument we could and should have. But this is a basis for having that discussion and to review what is needed and what other safeguards other systems use. It cannot justify a conclusion that corroboration should simply be abolished.

The second justification is the suggestion that corroboration acts as an impediment to justice – it results in a substantial number of cases, especially sexual assaults, not being taken to trial, because there is no second and separate source of evidence to support the complainer. The Crown Office carried out an analysis of cases to support this. The difficulty with this justification is it carries with it a misplaced assumption that convictions will follow. The limited evidence available from research into sexual offences suggests juries are reluctant in such cases to convict on the evidence of the woman alone. Certainly, conviction rates for rape in England (without corroboration) are not significantly better than Scotland.

The real problem – a very serious one – is the low conviction rate in rape and sexual assault cases. We need to address this issue properly, but by a different route. We could start by researching juries to find out why they are so reluctant to convict and take it from there. Removing corroboration does not address this problem. It might lead to more trials but it will not achieve more convictions in such cases.

Indeed, there is a danger in removing corroboration in such cases. If the evidence of the single witness, the complainer, is all that is required to prosecute then, despite best intentions, there is a realistic prospect that this evidence is all that will be sought and produced. Experience in the real world suggests that under pressure – of time, resources and targets – the police and prosecution will do the minimum. There will at least be no guarantees they do more.

The Carloway Report, in recommending the removal of corroboration and putting nothing in its place, is an appalling prospect. I believe it will result in miscarriages of justice which will be difficult to rectify. There will be no quality control of evidence and no meaningful role for the judge. We face the prospect of persons being tried and convicted on the evidence of a single witness.

The danger is perhaps best illustrated by eyewitness identification evidence. Such evidence is universally recognised as being notoriously unreliable and carries special risks of wrongful conviction. Our ability to accurately recall faces is poor and our memory highly susceptible to suggestion from other information. A witness reconstructs his “memory” of the perpetrator, often from unconsciously absorbing other information.

In Scotland we rejected proposals for introducing quality-control safeguards for this kind of evidence (being introduced in other jurisdictions) on the basis that we had corroboration. If corroboration is simply removed, we have no safeguard, and face the prospect of persons being convicted on the evidence of a single witness, who saw the perpetrator, a stranger, in a fleeting glance and identifies the accused sitting in the dock between two police officers.

No other modern comparable legal system would allow such a conviction and the reputation of our criminal justice system will founder at such a retrograde step. We could have serious criminal convictions based upon a standard of evidence which would not have been allowed in 18th-century Scotland. To remove corroboration and put nothing in its place will undo what justice we have. We must not take such a step without a thorough review, including an examination of the alternatives.

• Maggie Scott QC is chair of the Scottish Advisory Group of JUSTICE, and recognised as an expert on criminal law and European human rights law.