Corroboration should be abolished, says MacAskill

Kenny MacAskill. Picture: Julie Bull
Kenny MacAskill. Picture: Julie Bull
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The age-old requirement for corroborating evidence in criminal trials could be abolished as part of changes to the justice system.

The majority required for a guilty verdict would also be increased to two-thirds under the new Criminal Justice (Scotland) Bill.

The Bill, if passed, also raises the maximum sentence for handling knives and offensive weapons from four to five years.

Justice Secretary Kenny MacAskill said: “I have made clear a number of times that I believe that the requirement for corroboration should be abolished as it can represent a barrier to justice.

“It is an outdated rule which can deny victims the opportunity to see those responsible for serious crimes being brought to justice.

“Removing the need for corroboration represents a move towards focusing on the quality of evidence rather than quantity.”

But this view is not shared by the Law Society of Scotland which describes corroboration as a “fundamental principle” of the justice system. Removing it will lead to a greater risk of miscarriages of justice, it said.

Raymond McMenamin, from the society’s criminal law committee, said: “We believe that removing the requirement for corroborated evidence, without including sufficiently strong safeguards in the Bill, could simply result in a contest between two competing statements on oath and, as a result, bring increased risk of miscarriages of justice.

“The requirement for corroborated evidence is not an antiquated, outmoded legal notion but is a fundamental principle of our justice system.

“It’s clear that the concerns expressed by the society and others about juries have been recognised as the Bill proposes a move to a weighted majority from a simple majority, but we don’t believe this is sufficient to remove the risks created by abolishing corroboration.”

Liberal Democrat MP Sir Menzies Campbell, who practised as an advocate depute for several years in Scotland’s High Court, also warned against the changes.

“If the SNP proceed with these proposals, it will confirm that they are not fit to have the stewardship of Scottish criminal law,” the former party leader said.

“This is populism at its worst. Corroboration is an essential component of the presumption of innocence and a necessary bulwark against false accusation and injustice.

“As the power of the state increases, the protection of the rights of the citizen has become even more important.”

Plans to abolish corroboration to be laid out

The move represents a seismic shake-up of criminal law in this country and it will put justice secretary Kenny Mac-Askill at loggerheads with judges and other leading lawyers who have been vocal critics of the plans.

The Scottish Government hopes the change will make it easier to convict rapists and domestic abusers.

Unique to Scots law, corroboration is a safeguard against wrongful conviction, requiring two independent pieces of evidence for a case to be brought to court.

In abolishing it, the Scottish Government will propose other safeguards to try to prevent miscarriages of justice. It is understood one of these will involve raising the proportion of a jury required to convict from a half to two-thirds – or from eight out of 15 jurors to ten.

In their submission to a government consultation on the proposal, judges said: “The Scottish courts have on many occasions been grateful for the requirement of corroboration, which in our view provides a major safeguard against miscarriages of justice.”

Scots law has been under scrutiny since the UK Supreme Court’s “Cadder ruling”, which found the case against an accused man breached his human rights.

Peter Cadder had been convicted of two assaults and a breach of the peace at Glasgow Sheriff Court, on the basis of admissions made during a police interview.

But the Supreme Court ruled he should be allowed to appeal his conviction because he was not given access to a solicitor.

That resulted in all suspects being offered access to a solicitor before being questioned by police, and Mr MacAskill asking the judge Lord Carloway to conduct a review into elements of the criminal legal system.

The justice secretary included the requirement for corroboration in the judge’s brief.

Professor Peter Duff, an expert in criminal justice at Aberdeen University and a member of a panel consulted by Lord Carloway, believes it was always Mr MacAskill’s intention to abolish corroboration. “I’m not at all surprised,” he said. “The government set the review with the view that Carloway would look at corroboration and would have been hopeful that he would [recommend they] abolish it. That has been the government’s agenda all along.”

The Scottish Government consultation on scrapping corroboration divided opinion among those who responded, with 16 for and 22 against.

While judges and lawyers have opposed Lord Carloway’s findings, police, prosecutors and rape campaigners have been supportive.

“Police and the Crown Office are desperate to get rid of corroboration,” Prof Duff said.

“This allows politicians to grandstand about how they’re helping victims of crime and are not in favour of criminals.”

He added: “It’s simplistic, of course. Rape conviction rates are what’s driving the political agenda, and that it is too difficult to get corroboration in rape cases.

“Anyone who knows anything about it is not convinced it will make any difference, but the government believes it will.”

Police Scotland Chief Constable Sir Stephen House is among those who believe the change will make a difference.

Speaking to The Scotsman in December, he pointed to Crown Office research that supported the argument. “In terms of sexual crime, the Crown Office researched 458 cases, which they had marked up as ‘no further proceedings’ due to insufficient evidence,” he said.

“The cases were re-examined as if corroboration was not required, and the conclusion was that 82 per cent of cases could have proceeded to trial, and 60 per cent were considered to have a reasonable prospect of conviction.”

Scottish Women’s Aid and Rape Crisis Scotland have also backed the move.

Many incidents of rape and domestic abuse happen in a private setting where witnesses – a possible source of corroboration – are rare.

Historically, Scotland has had a lower rape conviction rate than the rest of Europe, although it has improved in recent years following changes in the law.

Lily Greenan, manager of Scottish Women’s Aid, said: “If the bill was to include this [abolishing corroboration], we would be pleased. It will mean focusing on quality of evidence, rather than quantity of sources.

“In crimes against women – such as domestic violence and sexual offences – it gives you a more robust case. It is the best way to do it, it’s what you should be doing – the best evidence goes forward.”

She believes more trust should be placed in sheriffs to try people responsibly.

“In relation to domestic abuse, you are talking about low-tariff offences heard by sheriffs sitting on their own,” Ms Greenan said.

“They are perfectly capable of weighing up the evidence. But, at present, it doesn’t even get to them.”

The Scottish Government consulted again in December, this time on safeguards that might be introduced to counter-balance the abolition of corroboration.

It sought views on three additional changes: scrapping the not proven verdict; increasing the jury majority required to return a conviction, and widening trial judges’ power to rule there is no case to answer. It is understood the Scottish Government will, at least, raise the number of jurors needed to convict.

Niall McCluskey, a human rights lawyer who opposes the scrapping of corroboration, said judges should also be given more responsibility.

“There should be specific direction from the judge or sheriff, if there’s no corroboration, that the jury should take great care,” he said.

However, the Scottish Commission on Human Rights has warned other changes may be needed so the forthcoming bill does not breach people’s freedoms.

It suggested tighter controls on the use of hearsay evidence than currently exist in Scots law, and greater powers for the defence to lead evidence challenging the credibility and reliability of a statement.

Sources say the government recognises the level of opposition to its plans, but it is convinced scrapping corroboration is the right thing to do.

Concluding his review in November 2011, Lord Carloway said the requirement was “archaic” and had “no place in a modern legal system”.

He made a series of recommendations that could now be taken forward by the Scottish Government as part of today’s legislation.

They included a new, more straightforward “arrest on suspicion of” status for all suspects taken into custody, which would give them immediate access to a solicitor, whether they were to be questioned by police or not. However, that could lead to a rise in the Scottish Government’s legal aid bill, with more lawyers needed.

Other recommendations included the retention of no adverse inference being drawn from a suspect remaining silent during police interview; greater safeguards put in place for questioning under-18s and vulnerable adults, and speeding up and simplifying the appeals process.

Lord Carloway recommended that police should have 12 hours to either release or charge a suspect – rather than 24 – and that suspects should not be held for more than 36 hours in total before appearing in court.

The Scottish Government refused to comment last night on the plans to abolish corroboration.

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