Lawyers warn over risks of scrapping corroboration

The Law Society of Scotland has said the Criminal Justice Bill, currently being debated in parliament, could have “disastrous” consequences.

The Scottish Government plans to end the centuries old requirement to have two individual pieces of evidence to bring a prosecution under Scots law.

Murray Macara QC, of the society’s criminal law committee, told the Scottish Parliament’s justice committee: “It must be a matter of concern for the commission that corroboration is likely to be abolished and that could lead to the floodgates opening in terms of appeals to the commission.

“A person convicted on a single source of evidence might be quite aggrieved by that and the only remedy might be applying to the commission.

“I suspect if corroboration goes through there will be a significant increase in cases going to the commission.”

Christine Grahame MSP, convener, asked Michael Walker of the Scottish Criminal Case Review Commission (SCCRC), who was also giving evidence: “Do you think the prospect of abolishing corroboration might mean a higher workload for the SCCRC?”

Mr Walker replied: “In England and Wales [where there is no requirement for corroboration] they have the same number of referrals. But they have other safeguards – a 10-2 jury majority for example.”

Asked if he thought the changes will have an impact, he added: “I think yes, possibly.”

At present, the number of jurors required to deliver a guilty verdict is half, or eight out of 15. The Scottish Government proposes raising this to ten.

Removing the requirement for corroboration is a consequence of the Supreme Court’s Cadder judgment in 2010, which said accused people should have access to a lawyer before being interviewed by police.

Justice secretary Kenny MacAskill asked Lord Justice Clerk Lord Carloway to review Scots law as a result of that verdict, and the judge recommended abolishing corroboration.

Mr MacAskill also brought forward legislation which allowed the High Court to refuse to consider appeals referred by the SCCRC if they were deemed not in the “interests of justice”.

Although the bill changes this, it creates a loophole where the court can refuse to quash a conviction under the same grounds, even if it is accepted that a miscarriage of justice has taken place, the Law Society said.

Mr Macara said: “We do not believe that it can ever be in the “interests of justice” for the High Court to allow a conviction based on a miscarriage of justice to stand.

“We think this is especially worrying considering other proposals in the bill to remove the requirement for corroboration.

“We are concerned that by removing the requirement for corroborated evidence, without including sufficiently strong safeguards in the bill, could result in a contest between two competing statements on oath and, as a result, bring increased risk of miscarriages of justice.”

However, the Scottish Government denied this.

A spokeswoman said the bill “improves the current position where a SCCRC referred case can be rejected without being heard”. She added: “In relation to corroboration, no other western country has a general rule requiring corroboration and therefore to suggest we will be facing an increase in miscarriage of justice cases is wrong.”