Comment: Less evidence to abolish corroboration

Abolishing the corroboration requirement might see more prosecutions. Picture: Ian rutherford
Abolishing the corroboration requirement might see more prosecutions. Picture: Ian rutherford
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CORROBORATION – the requirement that evidence in criminal trials from one source must be backed by evidence from another source – has been an integral feature of Scots law for centuries.

Just because it is old, it does not necessarily follow either that it no longer serves modern purposes or that it must be preserved. What matters is whether changing the requirement would produce more benefit than loss to the judicial process.

And on this criterion, the debate on abolishing the corroboration requirement looks less clear cut the more it continues. The contribution by Professor Peter Duff of Aberdeen University serves the useful purpose of adding more information, but also may, less helpfully, muddy the waters.

The argument is well known. In rape and sexual assault cases there are usually only two witnesses – the victim and the perpetrator. Finding a corroborating witness is, therefore, often not possible so, it is argued, many potential prosecutions do not get to court, to the anguish of the victim. So abolishing the corroboration requirement might see more prosecutions.

Prof Duff questions whether more convictions would be the result. A problem with sexual assault cases, he says, is that many victims at the time of the alleged assault have been drinking, or have taken drugs, or have mental health problems. The alleged perpetrator’s usual defence is that the supposed victim consented to sexual activity. Assuming that the corroboration requirement had been abolished, then the credibility of the victim and their denial of consent is pretty much all that is left to the jury as the basis for reaching a verdict. Prof Duff describes this as a “he said, she said” scenario in which, he argues, juries are reluctant to convict.

His insertion of the drink, drugs, and mental illness circumstances seems a bit of a red herring. Women in these conditions may be more vulnerable to being sexually assaulted, but why should that make them less credible, especially when the male accused may also be under the influence of drink or drugs?

More relevant is his argument that in sexual assault prosecutions south of the Border, absent a legal requirement for corroboration, prosecutions proceed on the basis of there being a reasonable chance of a conviction. But the conviction rate is no higher than in Scotland.

In other words, abandoning the corroboration requirement simply shifts the chances of a successful prosecution on to another equally intractable problem, that of the complainant’s credibility. It might be argued that this at least gives the victim a day in court, but this is not the purpose of the Scottish Government’s proposed legislation, which is to increase the rape conviction rate. Abandonment of a centuries-old principle that has otherwise served the ends of justice well should only be done when the potential gain is overwhelming. This is looking less and less to be the likely outcome.

Ministers must heed Border warnings

WHO would be a UK Border officer? To the casual traveller’s eye, sitting at a desk sticking passports into a scanner to look for rare anomalies seems pretty monotonous at the best of times. But when the people doing it are under fire whenever problems occur, or are simply over-worked because of under-staffing, it must seem an utterly joyless job with little financial reward or satisfaction.

Small wonder then, that the House of Commons’ public accounts committee has found that staff morale is at rock bottom. It will have sunk even further with the committee’s findings that the UK Border Force has missed eight of its 19 performance targets and failed to check freight for stowaways, while people arriving on private aircraft and boats were pretty much able to stroll in.

Ministers and managers were clearly at fault, cutting workforce numbers to save money and then re-hiring when it became obvious, because of long queues at Heathrow, that they did not have enough officers.

There is a lesson in this for Scottish ministers as they hope for independence and the chance to run Scotland’s own immigration policy. Their white paper promises Scotland will have a “controlled, transparent and efficient immigration system”, which will be different to the current regime.

This Commons report says that operating an efficient system is not cheap. It has to be adequately staffed. Common sense also says that where different systems operate in neighbouring countries that have an unpoliced border between them, loopholes will be exploited. Making the UK Border efficient will be expensive; an independent Scotland should expect to have to make a significant investment in this area.