Friday, 22 November 2013

Northern Viewpoint ~ Scotland and the corroboration rule

One of the fascinations of the British Isles has to be the diversity of its legal systems.

Scotland has its own Parliament (operating under devolved powers) created by the Scotland Act 1998.  There are Scottish Ministers.  There is a Scottish Judiciary, system of courts and legal profession.  Scots Law developed separately to the law of England and Wales and it has its own principles and procedures.

When the Scotland Act 1998 was enacted, what was known as 'devolution jurisdiction' was given to the Judicial Committee of the Privy Council.  This jurisdiction was transferred to the Supreme Court of the UK following the creation of that court by the Constitutional Reform Act 2005.  A 'devolution' case decided by the Supreme Court in 2010 seemed to send seismic shock waves through the Scottish legal system - Cadder v Her Majesty's Advocate [2010] UKSC 43 - [Press summary].

The question
in the appeal was whether a person detained [under section 14 of the Criminal Procedure (Scotland) Act 1995] by the police in Scotland on suspicion of having committed an offence had the right of access to a lawyer prior to being interviewed.  Applying Salduz v Turkey (2008) 49 EHRR 19, the Supreme Court held that the European Convention on Human Rights gave a right to have access to a lawyer prior to interview, unless in the particular circumstances of the case there are compelling reasons to restrict that right.

Following Cadder, the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 was passed by the Scottish Parliament.  Furthermore, a review of criminal law and practice was set up under Scottish judge Lord Carloway and this reported in November 2011 - Carloway Review.

One of Lord Carloway's recommendations related to the Scots Law rule of corroboration.  The necessity for corroboration has lain at the heart of the Scots criminal justice system since time immemorial and is seen by many as an important safeguard against miscarriages of justice.  The rule requires (1) at least one source of evidence (e.g. one witness) pointing to the guilt of the accused.  That evidence may be direct (e.g. an eye-witness) or indirect (circumstantial) (e.g. a fingerprint of the accused found at the crime scene).  Each "essential" or "crucial" fact, required to be proved, must be corroborated by other direct or indirect evidence (e.g. the testimony of another witness).

Lord Carloway pointed out that the rule has been seen as a defining characteristic of the Scots Law of evidence in criminal cases and it is part of the decision-making process at all levels of the Scottish criminal justice system.  Nevertheless, Carloway said:  'The Review is in no doubt that the requirement of corroboration should be entirely abolished for all categories of crime. It is an archaic rule that has no place in a modern legal system where judges and juries should be free to consider all relevant evidence and to answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled ....'

The corroboration rule is discussed in the Carloway Review at pages 255 to 286. 
 
The Scottish Justice Secretary (Kenneth MacAskill MSP) appears to be especially keen to implement this recommendation and its abolition has found its way into the Criminal Justice (Scotland) Bill  - see, for example, BBC Scotland - Corroboration has failed Scotland.  MacAskill is meeting with widespread opposition from Scots lawyers including some as distinguished as Lord Gill and Lord Hope.  (Wikipedia entries: Lord Gill and Lord Hope).  See also the view of the Faculty of Advocates  and the Law Society of Scotland

Part 2 of the Criminal Justice (Scotland) Bill  states (Clause 57):

Corroboration not required
(1) This section — (a) relates to any criminal proceeding, (b) is subject to sections 58 and 59
.
(2)  If satisfied that a fact has been established by evidence in the proceedings, the judge or (as the case may be) the jury is entitled to find the fact proved by the evidence although the evidence is not corroborated.

It is worth noting that one of the points Lord Carloway made is that a legal aid system provides effective representation for the defence - (para 7.2.4 of the Carloway Review).  If legal aid goes the way that it going in England then this argument may no longer hold good and perhaps the need for retaining corroboration will be all the stronger.

I am not sufficiently versed in Scots criminal law, evidence or procedure to be able to express a view either way on this fascinating debate.  However, let us look briefly at the view of the Faculty of Advocates :

'The resulting report includes a review of the requirement for corroboration generally and recommends its abolition, but does so without taking into account existing procedural and evidential issues closely related to the requirement for corroboration, or giving adequate consideration to any additional safeguards or consequential changes required in the event of its abolition.

and, later

The Faculty remains of the view, as stated in its response to the Consultation Document, that the matters considered (including corroboration) are of such fundamental importance to the administration of justice in Scotland that they should be the subject of much fuller consideration by a Royal Commission.'

That would seem to be a more sensible way forward even if takes rather longer.  A fundamental question would however seem to be - Is abolition of the rule necessary?  The view from south of the border seems that the answer from those who understand the system - Scots criminal lawyers and other practitioners - is, generally, a resounding NO.

Footnote on Cadder v HM Advocate:

The Cadder decision led to further cases in the UK Supreme Court - see UK Human Rights blog 24th November 2011 - "Sons of Cadder" - Supreme Court rulings on legal advice during Police interviews.   The Cadder decision was discussed on the Head of Legal blog 26th October 2010 and on the Scottish Law Reporter 26th October 2010.  The reader will see from the Scottish Law Reporter article that there was a considerable political element (and maybe resentment) in the response from Edinburgh to the Cadder judgment. 

Some other links:

30th November 2012 - a brief look at corroboration in English law - Sir Cyril Smith~Corroboration of evidence

Blogposts by Lallands Peat Worrier - the author looks at some aspects of the corroboration rule

Reforming Scots Criminal Law and Practice: additional safeguards following the removal of the requirement for corroboration: Analysis of Consultation Responses - This was a further consultation on additional safeguards including the possibility of an increase to the jury majority required for a conviction; widening of the trial judge's power to rule that there is no case to answer; and views were sought on the retention or abolition of the 'not proven' verdict.  As regards jury trial in Scotland it has to be noted that it is only used in a small percentage of cases (albeit the most serious cases).  Most criminal trials in Scotland are before either Justice of the Peace Courts or Sheriff Courts and are without juries.

Scottish Law of Evidence - Law Teacher

Scots Justice failed by corroboration - MacAskill - The Scotsman

The Corroboration Debate - The Point - Kevin Kane examines the debate on the removal of corroboration

Scots criminal law and practice reform - abolition of corroboration - a Police view - Chief Superintendent David O’Connor, President comments “we are not opposed to making some amendments in relation to corroboration and its application but hold a strong view that there should be no blanket abolition of the requirement for corroboration. Corroboration serves as a safeguard for the general public who come under suspicion of a committing a criminal act, the accused and also for police officers who are on occasion subject to false or malicious complaints as a course of executing their duty”.

' ... the principle of corroboration provides some balance between the protection of individuals from wrongful prosecution and/or conviction and miscarriage of justice. There is no doubt that there is scope for change but ASPS are not wholly convinced of the need for the complete abolition of one of the key safeguards in Scots Criminal Law.'

Corroboration - Random Thoughts Re Scots Law - Paul McConville

Corroboration and Distress - The Supreme Court - lecture by Lord Hope (2009) in memory of Sir Gerald Gordon

Corroboration in Scots Law: "archaic rule" or "invaluable safeguard" - University of Strathclyde

Proposal for reform of the law of evidence relating to corroboration - Scots Law Commission 1967 - this report related to the different topic of corroboration in CIVIL cases.

4 comments:

  1. As in other areas of the law eg the "not proven" verdict or the 8:7 majority Scotland has a case that a system where the bias if any is in favour of the individual as opposed to the state, confidence in the legal system is arguably greater than in England excepting perhaps the matter of Al Megrahi, the Libyan jailed in connection with the Lockerbie bombing.

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    Replies
    1. Re Lockerbie, Robert Black QC's blog is invaluable - Lockerbie Blog

      I note that there has been talk of altering the jury majority required for a conviction but jury trial is not as extensive as people might think.

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