Controversial plans to ditch corroboration in Scottish criminal cases will not drive up convictions for rape and sexual assault, one of the country’s top legal experts has warned.
Juries would still be faced with a “he says, she says” scenario which hinges on the “credibility” of the victim and is likely to result in an acquittal, according to Professor Peter Duff of Aberdeen University. Advances in technology through DNA and CCTV may make corroboration easier to acquire, other experts have said.
Corroboration – the need for evidence in criminal trials to come from two sources – has been a requirement in Scots law for centuries. The Scottish Government wants to remove it to allow more cases to proceed.
Prosecution chiefs have warned that almost 200 rape cases in recent years were effectively dropped before reaching court because of the requirement for corroboration. But Prof Duff raised questions ahead of an appearance before the justice committee at Holyrood today.
In a submission to MSPs, he wrote: “The defence [in rape cases] is usually one of consent and, in the absence of the corroboration requirement, the Crown would inevitably have to make a decision on the likely credibility of the victim and, in particular, whether she will stand up to robust cross-examination in court.”
Research has shown that juries are reluctant to convict someone accused of rape in a dispute over consent, according to the academic.
Prof Duff also rejected claims that many cases currently being dropped in Scotland would be prosecuted without the need for corroboration, insisting that cases in England only proceed if there is a “reasonable chance” of conviction. There is currently no difference between conviction rates for reported rapes in Scotland and England.
Prof Duff will appear along with Professor Pamela Ferguson, of the University of Dundee, and Fraser Davidson, from the University of Stirling, who also say the case for scrapping corroboration has not been made.
In a joint submission, they said: “Arguments to the effect that it is an ancient rule and out of keeping with developments in evidence in the 21st century do not make the case for abolition. If anything, improvements in CCTV techniques, DNA analysis, etc suggest that it may be easier to acquire corroboration than hitherto.”
A spokeswoman for Rape Crisis Scotland yesterday said that several strands of research – including the review by Lord Carloway which prompted the corroboration change – all reached similar conclusions.
She added: “It is very heartening to see highlighted in Professor Duff’s submission the importance that independent legal representation, which Rape Crisis Scotland is currently pushing for via the Victims and Witnesses Bill, would have for complainers, who currently have no-one there to represent their interests in the course of a trial.”
Prof Duff said this would be the “best hope” for increasing the number of prosecutions and convictions in rape cases.