Corroboration
The next item of business is a debate on motion S4M-07791, in the name of Margaret Mitchell, on corroboration. We are extremely tight for time so the member has exactly 10 minutes.
14:40
In support of his recommendation to abolish corroboration, Lord Carloway described it as
“an archaic rule that has no place in a modern legal system”.
That assertion has been repeated continuously on the airwaves today and is contained in the amendment from the Cabinet Secretary for Justice. It is a statement that, at the outset of this important debate, is worthy of further scrutiny, rather than just automatic repetition without consideration of what it means.
“The Chambers Dictionary” definition of archaic is:
“Ancient; savouring of the past; not absolutely obsolete but no longer in general use; old-fashioned.”
While the terms “ancient”, and even “savouring of the past” and “old-fashioned”, may be correct descriptions to apply to corroboration, the remainder of the definition is inappropriate and, quite simply, inaccurate when applied to corroboration as a rule.
In practice, corroboration is a principle that, far from being
“not absolutely obsolete but no longer in general use”
is currently, just as it has been for centuries, at the very heart of the Scottish criminal justice system and very much in general use on a daily basis, providing a safeguard against miscarriages of justice and all the misery that results from that for complainers and accused alike.
The member will be aware that Lord Carloway said that, in his extensive research, he could find no other jurisdiction in western Europe or indeed the Commonwealth that had corroboration. Is he wrong, or are all those other jurisdictions wrong?
The fact that no other jurisdiction has corroboration is not sufficient reason to abolish it here. I find that a bizarre argument.
The use of the word archaic is not merely a point about semantics but, rather, indicative of the superficial debate and arguments that have so far dominated the consideration of whether corroboration should be abolished—a debate that, up until now, has been focused on polarised views for and against abolition, with no consideration of a possible third and better way.
Worse still has been the attempt to portray this debate as the vested interests of the legal profession against the rights of victims. That is a gross distortion of the issues at stake, as the views of and submissions from the cross-party group on adult survivors of childhood sexual abuse confirm.
Sadly, though, the view is one that, to a large extent, has been encouraged by Lord Carloway himself, including when he gave evidence to the Justice Committee yesterday and dismissed the views of key stakeholders in the criminal justice system in the form of representatives of the legal profession. They include High Court judges, senators of the College of Justice, the Law Society of Scotland and the Faculty of Advocates. Together with the Scottish Police Federation, the Scottish Human Rights Commission and—significantly—the CPG on survivors of childhood sexual abuse, they are all against the abolition of corroboration.
Would it be possible to find out whether everyone who speaks agrees with going to a new set of verdicts—proven and not proven?
No doubt they will make their position clear. My view is that, if corroboration was abolished, it would strengthen the argument for keeping a not proven verdict.
All those views deserve to be heard and carefully considered. They include the fierce, passionate, yet well-reasoned and justified comments received by me from local bar associations. One of those respondents pointed out that
“there is an irony, in the Scottish Government’s proposals to remove corroboration on the basis that to retain it would be to support an ‘archaic’ principle, when this self same Scottish Government wishes to take Scotland back 300 years with its independence referendum!”
The same respondent went on to stress:
“without doubt, the removal of corroboration will be to the detriment of our much admired and ancient legal system.”
Another respondent made the following comment:
“I cannot express in terms sufficiently strong the great fear that my Parliament’s proposal to remove the requirement for corroboration instils.
As a society I fear this moves us towards the Nazi Doctrine:
‘better a thousand innocent men are convicted than a guilty man should go free.’”
Someone else commented:
“I do not accept the argument that simply because it is a feature unique to our system it (corroboration) has no place in modern times.
I consider as do all my colleagues, that the removal of corroboration is a solution arrived at in haste to address two issues in particular— ... an anticipated fall in the conviction rate brought about by a decline in confessions by legally advised accused, and ... the perceived need to increase the conviction rate in relation to crimes committed in private.”
Many more equally valid comments were made, but the final one I want to highlight is this:
“I have no doubt that if corroboration is abolished as proposed by the Scottish Government it will lead to many more wrongful convictions. I understand the Scottish Government’s concern for victims but what they will do is create a whole new category of victims i.e. those who have been wrongly convicted on the basis of one person’s testimony.”
One of the things that concerns me about all of this is that, in considering 141 sexual offence cases that were dropped between July and December 2010, the Carloway review itself found that 95—or two thirds—of them would have had a reasonable prospect of conviction without the requirement for corroboration. What really bothers me is the situation with sexual offences and the fact that so many cases do not go to trial.
I understand and sympathise with the member’s view. Perhaps I will be able to offer some comfort as I develop my argument.
The comments that I have highlighted clearly indicate the strength of feeling against the abolition of corroboration, which, as my motion stresses, cannot be considered in isolation. At present, the requirement for corroboration must be considered at different points in the criminal justice system. For example, under solemn procedure, it must be considered by the police investigating a crime and by the prosecutors marking decisions; at trial, by the prosecutor, the trial judge and then the jury deciding whether it accepts specific evidence; and, finally, at appeal.
Moreover, I say to the cabinet secretary that the fact that no other jurisdiction has the requirement for corroboration is not in itself a reason to support its abolition. The attempt to polarise the debate into those who want to modernise the criminal justice system and those who oppose modernisation simply does not stack up. Pointing out the judiciary’s overwhelming view that corroboration should not be abolished is not the same as saying that it is not capable of being improved, modernised or changed for the better.
Will the member give way?
I have been very generous with interventions. If the cabinet secretary does not mind, I will develop my argument.
The Parliament’s cross-party group on adult survivors of childhood sexual abuse has suggested improvements that might address some of the concerns expressed in the Labour amendment and by Kevin Stewart. They include the permitting of wider definitions of corroboration in cases of rape, sexual assault, child sexual abuse and domestic violence, a regular feature of which is the unlikelihood of there being a witness, while still maintaining fairness to the accused; further consideration of the introduction of more circumstantial evidence to help support corroboration in a chain of events; more systematic and constructive use of expert witnesses; and reviewing the application of the time period element of the Moorov doctrine—which has offered the opportunity for justice to victims of crimes of interpersonal violence—in cases where the modus operandi is similar, as it would lead to more flexible marking of cases by fiscals. The group made many more evidential suggestions that could and, I believe, would improve the application of corroboration.
Despite the fact that, under its terms of reference, it was competent for his review to do so, Lord Carloway failed to consider the option of retaining corroboration in the context of looking at the law of evidence to improve its application. That failure renders his review fundamentally flawed with regard to corroboration, and the motion seeks to ensure that the option, together with the options to either abolish or retain corroboration, are properly discussed openly and transparently by being subject to the widest independent review.
A wider review of the law of evidence should be carried out, including of the interaction between corroboration and other laws of evidence, either by referral to the Scottish Law Commission or a public inquiry. It is important to note that the term “public inquiry” has a very broad meaning and that a number of forms of inquiry are available. The type of public inquiry suggested would be similar to that under the commission that was established under Lord Thomson in 1970, which carried out a wide-ranging examination of Scottish criminal procedure and produced three reports, which are referred to in the 2012 paper by Professor Chalmers and Dr Leverick. The authors warned in that paper that never before have sweeping changes to the Scottish criminal system been as a result of a single individual and that the Carloway review was
“a model for criminal law reform without recent precedent.”
In conclusion, it is totally unacceptable that a decision of such a magnitude is crammed in with the Justice Committee’s scrutiny of the Criminal Justice (Scotland) Bill with its miscellaneous provisions.
I move,
That the Parliament notes the substantial proposal to abolish the centuries old requirement for corroboration in Scottish criminal cases contained in the Criminal Justice (Scotland) Bill; notes the overwhelming opposition to this proposal from all parts of the legal profession, including the Senators of the College of Justice, the Law Society of Scotland and the Faculty of Advocates, as well as the Scottish Police Federation, the Scottish Human Rights Commission, the Cross-Party Group on Adult Survivors of Childhood Sexual Abuse and many legal academics; believes that the proposal to abolish corroboration cannot be looked at in isolation and that the Scottish Government’s Reforming Scots Criminal Law and Practice: Additional Safeguards Following the Removal of the Requirement for Corroboration consultation was inadequate to support a proposed change of this magnitude; notes with concern the implications of the abolition of corroboration, which would undermine confidence in the criminal justice system, and calls on the Scottish Government to remove the proposal to abolish corroboration from the Criminal Justice (Scotland) Bill and, instead, to seek to improve the application of corroboration by carrying out a wider review of the law of evidence in Scotland, including the interaction between corroboration and other rules of evidence, by either a referral to the Scottish Law Commission or a public inquiry.
14:50
I welcome the opportunity to respond to the motion on the proposal to abolish the general requirement for corroboration in criminal cases. That proposal is a long overdue step in ensuring that victims have access to justice.
The Criminal Justice (Scotland) Bill seeks to modernise and improve efficiency in our system and put Scotland at the forefront of human rights protections for suspects while ensuring that victims are not denied justice by outdated rules of evidence. It is important to acknowledge that we are all working towards the same goal. We want Scotland to have a modern and effective criminal justice system that is fit for purpose in our modern age and which properly balances the rights of individuals and the duties of the state. That is why I asked the Lord President to nominate an expert to undertake an independent review of criminal law and practice in the immediate aftermath of Cadder and the subsequent emergency legislation.
Lord Carloway rigorously reviewed the key elements of our system. He spent a year consulting and deliberating, and he focused his recommendations on how we could best combine the thorough investigation and prosecution of crime with rigorous and far-sighted human rights protections. The Government then conducted a general consultation on his report and a second consultation on possible additional safeguards following abolition of the requirement.
The provision in the bill to increase the jury majority for a conviction to two thirds is a direct result of consultation. I have also agreed in principle with the Scottish Law Commission to review the not proven verdict, and I remain open to deliberating on whether further safeguards are needed as the bill progresses.
Will the cabinet secretary confirm that the Scottish Human Rights Commission is against abolition? Does he have any concern that the testimony of one witness could lead to a miscarriage of justice and a challenge under article 6 of the European convention on human rights, which is on the right to a fair trial?
Yes, I would have concerns if it was simply the testimony of one witness, but the Lord Advocate has given clear guidance that that will not be the test. That will simply not happen. There will have to be additional evidence, which is why Lord Carloway made it clear that it is not a matter of quantity but of quality of evidence. That is the position.
Will the cabinet secretary give way?
Not at the moment.
I remain in complete agreement with the damning conclusion that Lord Carloway reached. He said:
“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”.
Will the cabinet secretary acknowledge that the views and recommendations of the senators of the College of Justice are somewhat different and that to accept the recommendation of solely Lord Carloway is a dangerous way forward?
We are not simply accepting the views solely of Lord Carloway. Views have been contributed by Police Scotland, the Crown, Victim Support Scotland, Scottish Women’s Aid and Rape Crisis Scotland. These matters are debated and discussed by us as a national Parliament. One profession does not have the right of veto or the prerogative of deciding what should happen with regard to law reform. That is a matter for a democratically elected chamber.
Will the cabinet secretary give way?
Not at the moment.
The law on corroboration has been debated for the past three years, and at no point has anyone identified another system operating a general rule for corroboration. Indeed, we can positively rule out all the most directly comparable jurisdictions in that regard, particularly common law systems and those of all 47 signatories of the European convention on human rights.
The requirement for corroboration is regularly invoked as guarding against miscarriages of justice, but Lord Carloway could find no evidence to suggest that it does anything of the sort. Instead, he found evidence in the other direction—specifically, that it prevents our courts from hearing cases that in other jurisdictions would be tried. I remind members of Kevin Stewart’s intervention in relation to particular cases, 95 of which—that is, 67 per cent—would have had a reasonable prospect of conviction without the corroboration test. To put it simply, the requirement for corroboration has failed Scotland; it was formulated in a different age before the introduction of DNA or closed-circuit television, for example—times have changed.
Lord Carloway was asked to undertake a root-and-branch review. His review was logical and thorough, and it found that, from first suspicion to final appeal, corroboration in our legal system is a barrier to justice being obtained for the victims of crimes committed in private or when no one else was there. Abolition is not and can never be a panacea for resolving the well-known problems in addressing sexual crime.
Will the cabinet secretary take an intervention?
Sorry, but I am running short of time.
At the very least, the abolition of the requirement for corroboration will allow crimes committed in private, where the complainant has suffered in silence or behind closed doors, to be brought to court. That can only be a step forward.
I stress that the bill seeks to remove the general requirement for corroboration but not the concept of corroboration. Police and prosecutors will continue to seek the best evidence available and corroborative evidence will remain important. I welcome the recent publication by the Crown of its new prosecutorial test to be used following abolition of the requirement for corroboration. The test is two-pronged: first, an evidential test looking at the quantity and quality of the evidence, including an assessment of admissibility, credibility and reliability; and, secondly, a public interest test that is rigorous and which will no doubt be considered by the Justice Committee.
Removing the requirement for corroboration will mean that cases will be assessed on the overall quality of evidence. The burden of proof will remain because each case will be required to meet the high standard of being proven beyond reasonable doubt. The jury majority will be raised to a two-thirds majority for conviction, a position that is supported by the senators of the College of Justice. As I said earlier, I am open to hearing further suggestions on additional safeguards.
Having identified this barrier for vulnerable victims in accessing justice, we must now act and abolish the requirement for corroboration. In a modern society, it is simply not acceptable for victims to be left to suffer in silence and for justice not to be delivered. I remain open to constructive debate on how best to achieve this reform and on any additional safeguards. I will clearly look with interest at the work of the Justice Committee on the bill.
I move amendment S4M-07791.3, to leave out from “the overwhelming opposition” to end and insert:
“that the proposal is based on the thorough and independent review of Scots criminal law and practice undertaken by Lord Carloway, the Lord Justice Clerk; accepts Lord Carloway’s conclusion that the general requirement for corroborated evidence in criminal cases is an archaic rule that has no place in a modern legal system; notes the support of Police Scotland, the Crown Office and Procurator Fiscal Service, Rape Crisis Scotland, Victim Support Scotland and Scottish Women’s Aid; welcomes the consideration of additional safeguards suggested by the Senators of the College of Justice in their response to the Scottish Government’s consultation; notes that the Scottish Government is open to considering additional safeguards necessary to ensure fairness of proceedings as the Parliament deems fit; respects the process of parliamentary scrutiny of the Criminal Justice (Scotland) Bill, on which the Justice Committee has begun evidence-taking, and looks forward to completion of that scrutiny process in the normal way.”
14:58
One of the most important functions of the committees of this Parliament is to scrutinise legislation that is proposed by the Scottish Government; it is a role that is particularly important because of the Parliament’s unicameral nature. I believe that it is therefore not appropriate that Parliament should determine its position on a very controversial element of a Government bill prior to the stage 1 consideration of the bill.
The abolition of corroboration is a proposal in a bill that is currently before Parliament. The issue concerns whether the innocent are unjustly convicted or, indeed, whether the guilty go free, so the evidence for the proposed change must be carefully and rigorously examined. I do not think that the Parliament should make a decision on the issue after having a debate in the chamber of less than an hour and a half. The Justice Committee will take evidence at two sessions in November and December, so the decision ought to be taken at the end of stage 1 consideration of the bill.
Is that not an argument for taking the issue of corroboration out of the committee process and having a wide and independent debate on it now?
No, I do not think that it is. There have been many controversial provisions in Government bills over the years, but they have gone through the committee process and we have examined them. It is part of our job to undertake such examination and make recommendations at the end of stage 1.
It is the case that 12 organisations, many of which represent the victims of crime, support the Government’s proposals on the abolition of corroboration, and 15 expressed degrees of concern ranging from outright opposition in some cases to concern in others about the need for additional safeguards or a wider definition of what constitutes corroborative evidence.
Many of the organisations that support abolition believe that it would assist with the prosecution of crimes such as sexual offences and domestic abuse, for which corroborating evidence can be difficult to produce. The requirement for corroboration means that there must be a source of evidence that is independent of the primary accusation that a crime has been committed and the accused has committed it.
Will the member take an intervention?
I am sorry; I only have five minutes.
Removal of the requirement for corroboration would theoretically permit cases to go to court on the evidence of one witness or victim, but other safeguards can be put in place. Mr Stewart mentioned the six-month period in 2010 when two thirds of sexual offence cases—some 95 cases—were dropped that could reasonably have been prosecuted if corroborating evidence had not been required. That is a matter of concern. Of course, it is not necessarily the case that guilt would have been proved beyond reasonable doubt in all those cases.
Will the member give way?
No. I am sorry, but I only have five minutes and I am halfway through.
Supporters of abolition argue that the proving of guilt would be dependent on the quality of the evidence rather than its quantity. That is the view of Police Scotland, for example, which states in its written evidence:
“the ... requirement for corroboration of every material fact is ... an anachronism.”
However, there are some potent arguments on the side of the retention of the requirement for corroboration. The Law Society, the Faculty of Advocates and Justice Scotland argue that it is a fundamental principle of the Scottish criminal justice system and that the proposed two-thirds majority verdict is an insufficient safeguard against possible wrongful conviction on the evidence of a plausible and convincing liar.
The Scottish Government consulted on other safeguards, such as giving judges the power to acquit the accused without reference to the jury if it is considered that no reasonable jury could convict, and also removing the third verdict. It is important that that is considered, and I welcome the fact that the cabinet secretary has said that he is prepared to consider it. As colleagues will know, Michael McMahon MSP has proposed introducing a member’s bill to that effect, and it could be considered at the same time.
The abolition of the requirement for corroboration could have other consequences. The Scottish Police Federation and the Law Society of Scotland fear that, if it is removed, there could be more malicious prosecutions of police officers and people who work in one-to-one situations, such as social workers and prison officers.
The Police Federation and Justice Scotland argue that conviction rates in England, where there is no requirement for corroboration, are little different from those in Scotland, so there is no evidence that removing the requirement for corroboration will result in more successful prosecutions. Organisations that represent the victims of crimes such as sexual violence, while welcoming abolition and opposing—as it happens—the increase in the majority verdict, argue that the education of juries and a fundamental change in attitude are central to the successful prosecution of domestic and sexual crimes and to encouraging victims to come forward. Therefore, it is not as simple as just taking away the requirement for corroboration; that will not be sufficient to solve the entire problem.
We believe that the Justice Committee must give due consideration to the arguments on both sides and the necessity or otherwise of additional safeguards should abolition be agreed to, and indeed to whether the definition of corroboration could be widened to take account of some of the issues, as Margaret Mitchell implied.
The Parliament should not make the decision today, and I therefore move amendment S4M-07791.2, in the name of my colleague Graeme Pearson, to leave out from “overwhelming opposition” to end and insert:
“opposition to this proposal from parts of the legal profession; believes, however, that the proposal to abolish corroboration is supported by many organisations representing the victims of crime, in particular sexual crimes, domestic violence and human trafficking, and by Police Scotland; further notes that the stage one consideration of the Criminal Justice (Scotland) Bill by the Justice Committee began this week, and believes that scrutiny of the bill should be allowed to proceed to allow full consideration of the arguments for and against the abolition of corroboration prior to any decision being taken regarding whether the Scottish Government’s proposals to abolish corroboration should proceed.”
We move to the open debate. We are extraordinarily tight for time. Members have up to four minutes.
15:03
I will try to be as quick as possible, Presiding Officer. Margaret Mitchell said that we should not be looking at corroboration within the Criminal Justice (Scotland) Bill. I know that she has just become a member of the Justice Committee, but if she goes to page 5 of a recent committee paper she will see that it states:
“the Committee noted an underlying consensus; that the corroboration rule should not be seen as sacrosanct, and that it was legitimate to re-investigate from first principles whether it continues to serve a useful purpose in 21st century ... criminal law. The Committee agrees.”
Margaret Mitchell should look at that part of it.
Will the member take an intervention?
I am sorry. I have not even got four minutes.
I want to go back to the basics. I must say that the behaviour of some committee members yesterday perhaps raises more questions than does what the witness said. I asked Lord Carloway about corroboration and he said that corroboration is “not widely understood” by the public, the courts or the judiciary, which was interesting.
As I said to Lord Carloway, I am not a member of the judiciary or the legal profession but I represent constituents, and we should consider corroboration holistically rather than on its own, given that the issue has come up in the context of the Criminal Justice (Scotland) Bill.
Margaret Mitchell’s motion has lost sight of that and puts the cart before the horse. Elaine Murray, in her excellent and fair speech, pointed out that although the committee is debating many issues as part of stage 1 consideration of the bill, the Parliament has been presented with a motion on corroboration to consider in a very short debate. If the issue is so important, we should give it more time.
Will the member take an intervention?
No, I am sorry.
I look forward to hearing from witnesses. The committee will hear from the cabinet secretary, the Lord Advocate and various groups. Surely they will give us the evidence that will enable us to make up our minds on corroboration.
I point out to Margaret Mitchell that in section 57 of the bill, “Corroboration not required”, it says:
“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.”
That is what the bill says.
Corroboration is not going to be done away with. That is the frightening part of the motion in Margaret Mitchell’s name. She is frightening people out there. Corroboration and the quality of evidence are more important—[Interruption.] Let me tell members what the cabinet secretary said when he explained corroboration. He said that the bill seeks to remove the general requirement for corroboration, not the concept of corroboration. I really think that Margaret Mitchell should consider that.
I know that some members will talk about the sexual and violent crimes that take place behind closed doors. The fact is that victims of other crimes are also affected by the current rules. Submissions to the committee included one from a sheriff who talked about older people and children in care who are the victims of crime behind closed doors. Such people are entitled to have their evidence heard. They should be able to be a witness.
You should be coming to a close, please.
We are talking about not just certain crimes but all crime. Members of the committee and the Parliament must stick up for the victims of crime.
15:07
I am a member of the Justice Committee, so I will consider corroboration over the coming weeks. As we heard, the battle lines for and against the current arrangements have been drawn.
I do not want to pre-empt the evidence that people will give to the committee. I appreciate that there are compelling arguments on both sides. In many ways corroboration has served us well. It is a deep-seated part of our legal tradition, which helps to avoid false convictions. Miscarriages of justice are few and far between.
The counter-argument is that the guilty might escape prosecution. Corroboration is frequently an obstacle to conviction for rape and attempted rape. Strong evidence can be rendered unusable. It is significant that we are unique among the developed countries in requiring corroboration.
Supporters of corroboration argue that Scotland has a higher conviction rate than England has in cases of rape and attempted rape. However, statistics are rarely as straightforward as the people who use them would have us believe. The conviction rate tells us how many prosecutions were successful; it does not tell us how many reported cases were not prosecuted, and we can only guess how many cases were not reported and whether lack of corroboration was a factor in that.
Corroboration will remain an intrinsic part of our legal system and should not be abandoned where it is readily available. For example, post-mortem pathology and related forensic examinations should continue to be the subject of two-person reports.
Corroboration is at the heart of the checks and balances that seek, on the one hand, to minimise the number of false convictions and to ensure, on the other hand, that the guilty do not escape justice. Any decision to reduce the need for corroboration would also have to ensure that safeguards were put in place to maintain and strengthen those checks and balances.
The checks and balances include the verdicts that can be returned and the number of jurors needed to deliver a verdict. The SNP says that requiring a verdict from 10 jurors rather than eight out of the 15 will be an adequate safeguard, but other countries where there is no corroboration require more than two thirds of the jury to return a majority verdict. Some even require unanimity. We would also be changing the basis of our legal system without considering the not proven verdict.
Is corroboration an integral and essential part of our centuries-old law? If it is and it is not broke, why fix it? Or is corroboration a barrier to prosecution and merely an archaic aspect of our legal system? Maybes aye, maybes no. Maybe we should listen to the evidence, look at what safeguards are on offer and carefully consider their adequacy. If we abandon corroboration because it is the right thing to do, we must also consider the implications for the police and courts, which are faced with shrinking budgets and expanding workloads.
A lot of questions still need to be answered, so let us not make up our minds before we have heard all the evidence and considered the issues properly.
15:11
First, I agree with Sandra White that the requirement for corroboration is not sacrosanct and that debate is welcome. I ask members to have regard to the rigorous and robust interrogation of the arguments for and against its abolition or retention. That rigour—it is rigour rather than bad manners—will be applied to all those who give evidence to the Justice Committee in the coming months for our stage 1 report. Secondly, with respect, members may make their own inquiries but only those on the Justice Committee or those following it blow by blow—hourly, in my view—will have fully scrutinised all aspects of the cases for and against.
Thirdly, although I appreciate the popular view that the abolition of mandatory corroboration will bring the prospect of greater justice for victims of sexual abuse, rape and so on, if passed it will apply to all criminal cases in which there is no statutory penalty in both the sheriff courts and the High Court. I hardly need to say that corroboration does not mean two witnesses. Indeed, corroboration can come from the same source. For example, corroboration for an alleged rape victim can come from his or her demeanour, which may be emotional or psychological. As I understand it, the law of corroboration is very broad.
The Conservative motion is correct in listing those who oppose the abolition of corroboration, just as the Labour and Government amendments are correct in naming those who support the proposal, but that does not take us forward in determining whether the proposal is good or bad. The chief constable of Police Scotland favours the proposal, whereas the Scottish Police Federation does not. It is the evidence that they produce that must be tested. It is not a case of one list being better than another list. That demonstrates that the issue is complex and contentious—and rightly so.
The Conservative motion is correct to indicate that corroboration cannot and should not be examined and evaluated in isolation. There are also the matters of jury size and majority, the three verdicts that are available in Scotland, the abolition of the double jeopardy rule and the restrictions that are now placed on the Scottish Criminal Cases Review Commission regarding referrals to the High Court. I am sympathetic to a wider review and, in particular, to giving a role to the Scottish Law Commission, which has the disinterested expertise to examine all those interlocking issues. However, the call for a public inquiry is inappropriate.
In part, the Government’s amendment presents a difficulty for me because I cannot accept the assertion that the Carloway review on corroboration was “thorough”. First, the proposal is Lord Carloway’s alone. Secondly, the review was not thorough. I refer members to the evidence that was given yesterday regarding the criminal cases that he asked to be reviewed in order to determine whether those would have been prosecuted without corroboration and whether a guilty verdict would have been obtained. It was concluded that 67 per cent of that sample of 141 sexual cases from 2010 would have been prosecuted successfully. Who came to that view? Two prosecutors—one active and one retired. That is it. Forgive me, but I cannot say that that amounts to a rigorous examination of evidence.
I return to what I started with—the role of the committee. The Labour amendment does not move matters forward. It is superfluous, so I will abstain on it. For the reasons that I have stated, I will also abstain on the Conservative motion. I will abstain, too, on the Government’s amendment.
We are here as politicians and legislators. Let us not consider the proposal to abolish corroboration with our politician’s hat on; let us behave like responsible legislators. Whatever the outcome at stage 3, what Scotland needs is a bill that improves justice for complainer and accused, not one that is supported because it is politically popular.
15:15
Since the foundations of Scots law were laid, it has been established that no individual should be convicted of a crime based on the testimony of a single witness. However, I do not defend corroboration because of tradition; I defend it because it protects against miscarriages of justice, false accusations, wrongful convictions and the erosion of the presumption of innocence.
The fact is that we cannot remove this pillar of our justice system without making the whole structure unstable. In other jurisdictions, in the absence of a corroboration rule, a series of alternative checks and balances is built into the trial process. For example, England, Wales and Northern Ireland have greater regulation of police investigations, and preliminary hearings to test the quality of evidence. Judges have the power to exclude poor-quality or prejudicial evidence, unanimous verdicts are required in the first instance and there are wider grounds for appeal following an unsafe conviction. In comparison, the additional safeguards that are currently proposed here are utterly inadequate.
The bill will mean that someone could be convicted on the basis of the testimony of one person, even if five of the 15 jurors believe that they are innocent. Witnesses can be honest yet mistaken. Unfortunately, witnesses sometimes lie to the police and in court, out of eagerness to ensure that the accused is convicted, because of the strength of their convictions or through spite. Furthermore, scrapping corroboration could mean that false accusations become more common. The Law Society of Scotland warns that trials could be reduced to
“a contest between two competing statements on oath”.
We cannot allow trials to hinge on lesser evidence.
I accept that we must strive to ensure that the victims of rape, sexual assault and domestic abuse get justice. Liberal Democrats whole-heartedly share the Scottish Government’s aspiration to improve conviction rates in that area but, sadly, rape conviction levels are not high in other jurisdictions, either. It would take significantly more changes to attitudes across society that are deep and complex for progress to be made.
The research that the Government cites in support of scrapping corroboration to that end is scant—as the convener of the Justice Committee said, it comprises a simple desk-top study by the Crown Office. In the absence of clear in-depth evidence, it would be reckless to proceed in blind hope.
In addition, there is a real risk that scrapping corroboration could reduce the chances of victims of such crimes securing justice. Police investigations might become less rigorous, and even if we get more cases into court, there is no evidence that we would secure any more convictions. The alleged victim could face a much more aggressive cross-examination. Juries are less likely to convict on the basis of one piece of evidence. More acquittals or not proven verdicts in such cases will not help anyone.
No one should be beyond the reach of our justice system, so we should examine other ways of tackling the problem. For example, should rape victims be represented by a lawyer in court, as happens in Belgium? Should we adopt a much more rigorous approach to the gathering of forensic evidence?
The majority of Lord Carloway’s recommendations are sound and should be implemented, but I am extremely concerned that incorporating such a profound change into the wider package of court reforms will mean that it is not given the due consideration that it deserves. I support Margaret Mitchell’s motion.
Corroboration should not be seen as a barrier to justice—a cumbersome requirement that blocks cases being taken to trial. It does not simply deliver a quantity of evidence; it ensures the quality of it. It is the key to determining the guilt or otherwise of the accused. In Scotland, the Crown prosecutes in the public interest. We must guard against any shift towards prosecuting in the interest of the victim alone. We should not cut corners in the pursuit of convictions.
15:19
I refer to my entry in the register of members’ interests, which shows that I am a member of the Faculty of Advocates.
It is clear that Lord Carloway’s proposal on the abolition of the requirement for corroboration remains controversial. We certainly have no consensus on the issue. As Margaret Mitchell indicated, a substantial part of the legal establishment remains opposed to abolition. Of course, many organisations and individuals support Lord Carloway’s proposal, particularly those that regard corroboration as a barrier to conviction in cases in which corroborating evidence is not always available, such as rape or sexual abuse cases.
With that fundamental divergence in views, it is unlikely that consensus will ever be found. However, I draw members’ attention to an anonymous contribution on the Scottish Government consultation on additional safeguards:
“it is ultimately for juries to decide whether they are prepared to convict on the basis of good-quality, relevant evidence, albeit from a single source. We already allow them to convict on the basis of poor-quality evidence of dubious relevance, but we justify it to ourselves because it comes from two sources. This is a pre-scientific, irrational way of guaranteeing fair trials. The government must make its case more vigorously and must not allow the media lines to be dominated by the narrative imposed by the reactionary institutions of the Scottish legal profession who have, let us never forget, uniformly opposed every sensible and necessary reform of the last five hundred years, from moving divorces to the sheriff court, the introduction of the criminal appeal court and even the establishment of the College of Justice itself.”
Although, as a practising advocate, I would not necessarily accept that, it is fair to say that the legal profession is not always on the side of the angels. However, I join others in not being overwhelmed by the Carloway review’s research on the impact of abolition, to which Christine Grahame referred.
I am clear that the abolition of corroboration may have little impact on conviction rates for sexual assault and rape cases, but the possible impact on the number of prosecutions is not clear cut. As Lord Carloway agreed yesterday, with a new prosecutorial test embracing a quantitative assessment and a qualitative assessment before an assessment based on the evidence of whether there is a reasonable prospect of conviction, it is not necessarily the case that there will be more prosecutions. However, it is clear that cases that are currently not pursued will be and some cases that currently are pursued will not be. I suggest that that, in itself, may have a positive impact on reducing miscarriages of justice. As Lord Carloway says, inability to pursue a case at all because of the requirement of corroboration may itself be a miscarriage of justice.
In the absence of consensus, it is incumbent on the Parliament to consider safeguards very closely. I was pleased that the Scottish Government took that on board and launched a second consultation on the additional safeguards that would be required if the requirement for corroboration were abolished and did not simply accept Lord Carloway’s view that no additional safeguards were required. However, I was rather less pleased by the response to that consultation, particularly on the question whether a single judge should have the power to withdraw a case if he was of the view that no reasonable jury could convict the accused on the basis of the evidence led. Paragraph 182 of the policy memorandum fails to consider the matter critically.
It is a reasonable assumption that, if the Scottish Law Commission were asked to consider that issue, it would take the view that it took in 2008 that a single judge should have that power. That perhaps illustrates the point that referring matters to the Scottish Law Commission will not by itself advance them and is no silver bullet.
To end on a more positive note, safeguards are precisely the area of policy that requires further scrutiny. The Government amendment and, indeed, the Labour amendment recognise the role of the Justice Committee in that. That is the proper way forward. We also need to ensure that we explore fully the extent to which abolition might raise article 6 issues. The lesson of Cadder is surely that we need to be ever mindful of fair trial issues.
That is a more constructive approach than the one proposed by the Conservative amendment, which I hope members will reject.
15:23
I welcome the opportunity to defend the principle that has been described as the cornerstone of the Scottish criminal justice system.
The abolition of corroboration should not be taken lightly. It is the view of the Scottish Conservatives that, to be blunt, Lord Carloway has got it wrong and the Scottish Government is mistaken to have accepted the recommendation to remove corroboration from our criminal justice system.
Corroboration has an important place in our criminal justice system because it acts as a safeguard against miscarriages of justice and effectively balances out the intricacies of the rest of the Scottish criminal law. By defending corroboration, lawyers, rank-and-file police and organisations such as the Scottish Human Rights Commission are standing up not for the guilty but for the innocent.
Corroboration protects individuals from being convicted on the basis of evidence from a single witness and, therefore, acts as an important safeguard against miscarriages of justice.
Equally as important is the fact that corroboration provides a safeguard for victims and witnesses. If the corroboration rule was removed, far greater scrutiny of the quality of witness evidence would be needed before prosecutions proceeded and courts convicted.
The Scottish Government argues that corroboration has acted as a barrier to justice, but the truth is that it has never been easier to prosecute. Corroboration has become a more flexible concept in Scots law, particularly in the light of the Moorov doctrine, the relaxation of the rule against double jeopardy and the introduction of statutory exemptions. I admit that the corroboration rule is complex, but while that may be a reason for reform, it is not a reason in itself for abolition.
As the law has adapted, the requirement for corroboration is much less onerous than it used to be. Modern developments in evidence gathering, such as DNA identification, forensic analysis and the use of CCTV, mean that, from an available evidence perspective, there is less reason to abolish the corroboration rule than there ever has been. To put it another way, it is easier for the Crown to secure corroborated evidence than it ever has been.
The primary argument for the change is that removing the corroboration requirement will increase the number of convictions, particularly for rape and sexual offences, which often lack witnesses. Poor conviction rates are extremely worrying, but abolishing the corroboration requirement is not the way to address the problem, and the removal of the corroboration rule will not lead to increased conviction rates.
I have no doubt that the Scottish Government will point to the analysis that the Carloway review carried out, which concluded that, of cases marked as unable to proceed because of insufficient evidence, 80 per cent could have proceeded without the corroboration requirement, and 59 per cent would have had a reasonable prospect of conviction. However, that analysis was carried out by prosecutors who have no experience of a world without corroboration and who were asked essentially to guess how many convictions would occur if corroboration were no longer necessary, and then to second-guess juries’ conclusions.
Final minute.
It is more likely that juries will be more cautious about convicting people of the most serious charges without corroborated evidence.
Supporters of the abolition of corroboration ignore one simple fact. Any system of justice is a human system, and no human system will ever be perfect. The major hurdle in the pursuit of justice is the reality that some people do not come to court to tell the truth and others—however well meaning—fail to tell the truth.
For centuries, Scots law has accepted that, sometimes, a single witness can be reliable and that, by refusing to believe him or her, we might well let guilty people walk free. However, that is a price worth paying because, on the whole, maintaining the requirement for corroboration leads to less injustice than allowing convictions on the basis of evidence from a single witness.
I am afraid that you must finish.
I have great pleasure in supporting Margaret Mitchell’s motion.
15:27
As a co-convener of the cross-party group on men’s violence against women and children, I have seen a great deal of evidence from agencies and individuals who support victims of domestic violence. It sends a shiver of terror down my spine to think that one in five women are victims of domestic violence. Almost 30,000 domestic abuse offences took place in 2011-12, including 307 attempted murders, 12 homicides and 485 sexual offences. Domestic common assaults made up 14,154 of the total offences.
I suggest that we are being naive if we refuse to recognise that reality. Just as misogyny and the dismissal of women at work and at home continue to be a reality, so there remains a section of stakeholders who do not welcome changes to the law. It is clear that corroboration is virtually impossible for a woman who is brutally attacked in her home by her partner. She might be raped, battered and humiliated, but how does she prove that when she must have two independent witnesses to uphold her complaint? Violent and abusive partners do not normally carry out their crimes in the view of others, with the possible exception of their children, who might be very young and who would in any event be unable to provide disinterested evidence to a court.
Lord Carloway does not suggest that the use of corroboration should be abolished and neither does the bill. Police and prosecutors will seek the best evidence that is available and will—rightly—trust judges and juries to weigh the evidence that is put before them.
Will the member give way?
No.
Lord Carloway could find no other criminal justice system that operates a general requirement for corroboration and there is no evidence to suggest that the rule prevents miscarriages of justice.
For victims of abuse, the corroboration requirement inevitably results in fewer genuine complaints reaching the courts. That is not good for our Scottish criminal justice system, which so clearly discriminates against women—who are usually the victims in cases of domestic sexual violence—in following the current codes.
Scottish Women’s Aid points out in its submission to the Justice Committee that where domestic abuse cases do not go forward due to technicalities, the removal of the corroboration requirement would allow them to seek redress more readily through the courts.
Scottish Women’s Aid adds that that would help to redress the balance where there are
“all the hallmarks of exposure to prolonged domestic abuse ... only”
for victims
to be told ... that there is no corroboration”.
More widely, the change would reflect the growing awareness that many cases of domestic violence go unheard as a result of the current restrictions. That is fundamentally unfair to the victims of such abuse.
Rape Crisis Scotland has also welcomed the move to change the corroboration requirement, the existence of which, it stresses, diminishes a woman’s right to redress. There are already excellent safeguards within the legal system to ensure that malicious claims would not proceed, not least the need to prove beyond reasonable doubt that there is indeed a case to be answered.
The removal of the corroboration requirement will probably require further safeguards to be imposed to ensure that no wrongful convictions can take place. It is worth remembering, however, that miscarriages of justice can go in both directions—not only where a suspect is found guilty incorrectly, but where a guilty suspect goes free.
There are concerns about whether the bill should allow the changes to apply retrospectively and there are reservations about the change to the jury majority in a guilty verdict. I take all that on board.
At the core of the debate is access to justice. In Scotland, we have always believed in and supported the right of every individual to seek redress from the courts. Do we want to deny that basic human right to abused women? I think not.
We are not seeking to abandon the need for high-quality evidence; what we are seeking to do, as Victim Support Scotland has described it, is to take a
“step towards a system which”
takes
“account of all fairly obtained evidence, respecting not only the accused but also victims and their families”.
The law as it stands is not fit for purpose in a modern Scottish system. I support the cabinet secretary’s amendment.
15:31
Corroboration is not only an important and unique feature of Scots criminal law, but a cornerstone of Scots law.
The University of Strathclyde school of law professors John Blackie and Donald Nicolson have recently produced a research paper that studies the likely consequences of this profound change to the system of criminal justice in Scotland. They state:
“Whether or not the corroboration requirement is ‘archaic’ or rather a reflection of ancient wisdom depends on whether its rationale remains persuasive in the context of the values, rules and practices of the contemporary Scottish criminal justice system and society more generally.”
Furthermore, within a criminal justice setting it
“is clear that a core justification for the corroboration requirement is the perceived unreliability of witnesses.”
Also:
“All forms of unreliable evidence are equally capable of causing wrongful acquittals as wrongful convictions.”
Such arguments have been utilised by, for example, members of the judiciary, certain academics, legal practitioners’ organisations, some police organisations and the Scottish Human Rights Commission.
Turning to the reasoning for abolition,
“Lord Carloway and the Scottish Government did not question the historical rationale for the corroboration requirement.”
Rather, their argument had three main points. First,
“the requirement is not fit for purpose in being incomprehensible, inconsistent and ineffective”.
Secondly,
“it is disproportionately prejudicial to the interests of victims and the public”.
Thirdly,
“it is unnecessary because fact-finders can be trusted to evaluate accurately the strength and reliability of evidence free from legal regulation and because there exist a range of other protections against unjust convictions”.
Those points have been welcomed and used by Government lawyers and by some police organisations, which have been joined by women’s groups, as mentioned earlier, in their campaign for change.
The points that I have highlighted both for retention and abolition of the corroboration rule in Scottish criminal law cases are but the tip of the iceberg; if anything, they show the necessity of a referral to the Scottish Law Commission or a public inquiry.
The debate over whether corroboration is an archaic requirement or an invaluable safeguard presents a false dilemma. We must focus on the tangible evidence from victims of crime and their support groups, and on the experience of our legal professionals from around the country.
The proposal to abolish the corroboration requirement cannot be considered in isolation, but must be viewed in the context of the wider reform of the criminal justice system in Scotland.
We come to the winding-up speeches, and we have no time at all in hand. I call Graeme Pearson, who has four minutes.
15:35
Thank you, Presiding Officer, for giving me the opportunity to wind up in the debate.
It is evident from the views that have been expressed by members around the chamber that there is an element of discomfort in our consideration of whether we should welcome or challenge the proposal to abolish the requirement for corroboration.
We should bear it in mind that Lord Carloway’s job was not to report specifically on corroboration but to address much wider elements of criminal justice. He included his comments on the corroboration requirement on his own account, and they were not supported by the balance of the group that dealt with the inquiry.
Equally, the senators of the College of Justice have expressed their reservations about the way forward, and the convener of the Justice Committee has gone some way in expressing her views, based on her experience of convening the committee.
I believe that we should take one bit of guidance from Lord Carloway. It is important that, when we decide the facts of the matter, we weigh the quality of evidence that has been provided in the discussions at the Justice Committee, and not merely the names of those who support or do not support the proposals.
Scottish Labour is not distant from reform. We have led reform for many decades, and there is no doubt that the courts and the legal process need reform. My worry is that the proposal involves merely fiddling with one part of the system without considering the impacts that might derive from doing so.
In removing the requirement for corroboration, we have not considered what has been described throughout the debate as a system of justice, and for centuries, corroboration has been acknowledged as a benchmark and a central part of that system. When we interfere with the system, it is important that we consider the knock-on impacts—on verdicts, for example. Do we need two or three verdicts in future? Michael McMahon’s proposals have lain fallow for many months—indeed, years—but will the change result in more trials? Victims and witnesses may go through a process in which there is no hope of a conviction at the end.
The cabinet secretary often mentions what is happening south of the border—by which I presume he means England. The conviction rates there are no better than those in Scotland. We should be consolidating our position. We would like witnesses and victims to be given a fair hearing in court, but we need the Government to provide the checks and balances, rather than putting them up for auction so that members can offer alternatives. We need sizeable proposals that will put our minds at rest that what we are doing will make our system better; we do not need headlines that simply say that we have changed something and have thereby been seen to reform.
It is beyond consideration that witnesses whose evidence becomes the only source of a successful prosecution will be challenged very robustly in court in future. At present, the experience of such witnesses is pretty devastating. I would like to think that the cabinet secretary will not only listen today, but implement additional checks and balances in his final proposals and put our minds at rest by assuring us that, in removing the corroboration requirement, we will have produced a better system.
I am afraid that we really have no extra time. Cabinet secretary, you have six minutes maximum.
15:39
First, let me give Graeme Pearson and those on the Labour benches an absolute assurance. Today’s debate does not follow the normal procedure, as it has been initiated by the Conservatives. Normally, we would have the stage 1 debate after the bill has gone through the committee stage. Ironically, we had the benefit of the Lord Justice Clerk giving evidence yesterday, but the committee members have still to hear from the Lord Advocate, the police and victims groups, so all the evidence will be brought out—I can give Graeme Pearson that assurance. I also reaffirm my position that we are happy to look at any safeguards that may be forthcoming.
I was rather staggered by John Lamont’s comment that there was no need for the change. Did he not sit through all the consequences of Cadder, including the emergency legislation that the Parliament was required to pass? The situation changed because of Cadder—the system cannot stay the same. That applies not only to major cases but to sexual offences matters, where previously some justice was done. There would have been corroboration in terms of the sexual content if the witness said, “I did have sexual relations with her,” thus providing corroboration. Following Cadder, as we all know, on the advice of their lawyer people now make no comment, so there is no corroboration and justice will not be done. That applies not only to cases at the very top level of magnitude but at a lower level.
I was also gobsmacked to hear from the Tories that we should improve corroboration. That was put to the Lord Justice Clerk, and I think that it is fair to say that he was rather gobsmacked. It would also be fair to say that the Lord Justice Clerk has been considering the issue since 2010—
Will the cabinet secretary give way?
By all means.
Is it not true to say that, far from being gobsmacked, Lord Carloway had not even given that proposal any consideration? That is why we are calling today not for definite decisions to be made but for a wider, independent review so that this important issue can be fully debated.
I do not see how corroboration can be improved. Despite there being several consultations since 2010, I note that the Tories appear to have inputted not one iota—or, indeed, jot—into those. Doubtless they have just been saving that up and we will hear about it in due course.
John Pentland gave a very thoughtful speech. Sometimes, it will be essential to require corroboration, in relation to the issue of forensic science, for example, which can be very difficult—I was dealing with papers last night on that issue. I think that members will find that the Crown Office will give assurances that, regarding issues that have caused great angst in the debate because they involve not a science but an art, there will be a requirement to have additional evidence from another source.
As Sandra White correctly pointed out, we are talking about the removal of the general requirement. That will stop the inanities, which Mr Pearson will know of, whereby two forensic scientists are required not to speak to what the autopsy revealed but to confirm, “That is the label,” or, “That is the blood sample that was taken by the nurse.” That goes right through the justice system.
It may be that the Tories are saying, “If we can tinker with it, we can accept that,” but I do not know where they will set the tariff when that becomes the fundamental matter—I will be interested to see that.
The Tories also seemed to suggest that we could get rid of the test for some offences but not for others. I will be interested to see how that would work in a situation in which someone is charged with rape but the victim dies six months later. Given his extensive experience with the police, Mr Pearson may very well have experienced such cases, where corroboration was deemed not to have been required but was required subsequently. Those who oppose Lord Carloway’s recommendation need to think that through.
Equally, we need to recognise the new prosecutorial test, which will be an evidential and quantitative test: is there sufficient evidence that the accused was the perpetrator? Following a qualitative assessment, is the available evidence admissible, credible and reliable? Is there a reasonable prospect of conviction? Even thereafter, the Crown expects there to be a public interest test: is there a public interest in prosecuting the case?
Those safeguards will be laid out. I have no doubt that, when the committee hears from the chief constable and the Lord Advocate, they will be able to allay Mr Pentland’s understandable concerns—I think that he is right on that—and confirm that those will be dealt with. It is quite clear from the Crown that we are not talking about a situation in which one witness says that something happened and there is no other evidence at all. That is not the position.
What we are talking about is justice. This is not a moot point. In a trial for serious assault or rape—or, indeed, a trial that involves less stressful matters that still cause great angst to the individual who was the recipient—the requirement for corroboration is not a moot point to the individual involved. It is not simply a debate between our learned friends on a point of order or motion, m’ Lord, that the requirement should be removed; it matters to the people involved that justice is delivered.
Does the cabinet secretary understand that the issues that we have raised with him are not so much about the investigation and the first port of call, but about how the courts will deal with the changes, how juries will assess the evidence, what a jury will look like and how the verdicts will be achieved?
Absolutely, and that is why we went out to consultation and why we making changes in relation to the verdict, with the support of the judiciary. We are happy to look at other proposals that come from Mr Pearson, Dr Murray or any other member of the Parliament.
The issue is not a moot point—it is about access to justice. Each and every elected member in this Parliament will have had people come to their surgeries who did not get justice. We have had to wipe away the tears, give our sympathy and empathise with them. We have had to say, “There was no corroboration so there could be no prosecution—justice was not delivered.” There comes a time, when scientific evidence moves on and when no other country instigates such a rule, that we have to deliver justice to the victims. I stand fully beside Victim Support Scotland, Scottish Women’s Aid, Rape Crisis Scotland and all those others who say that the time has come to get rid of this archaic method.
15:46
The debate is timely. We are discussing the abolition of corroboration, which is a long-standing and much-valued component of the law of evidence in Scotland. I thank members for their contributions to the debate, some of which were more thoughtful and measured than others. I speak as a former solicitor, but I am no longer a member of the Law Society of Scotland and I am not on the roll of solicitors.
In my years in the Parliament, it has been my privilege to take part in many important debates, but this one is pre-eminent, because corroboration finds itself in the dock, charged with being an irrelevance, an anachronism and an impediment to convictions. Those are serious accusations and I want to examine them.
Traditionally in Scotland, two crucial facts require proof in every crime: first, that the offence was committed; and, secondly, that the accused committed it. So where does corroboration come in? What is it, when did we get it and why has it been considered so important to the law of evidence in Scotland and the presumption of innocence? Historically, it goes back to the New Testament, when it was developed to avoid the execution or capital punishment of innocent individuals. More recently, in the 18th and 19th centuries in Scotland, the rationale for corroboration became that a single witness is insufficient for proof or, to quote the founding authority on Scottish criminal law, David Hume:
“no one shall in any case be convicted on the testimony of a single witness”.
As members have said, corroboration underwent reform and was developed as a theme of evidence so that, by the 1950s, it was clear that two witnesses were not required to prove every fact in a case. Reference has been made to the Moorov doctrine, which allows corroboration by similar facts. I sympathise with the situation that Christina McKelvie described, but I point out that the complainer’s distress as observed by a third party after an alleged sexual offence can be used to corroborate the use of force or a lack of consent. Of course, there are now some statutory exceptions to the requirement for corroboration, which tend to relate to minor crimes such as road traffic offences.
What remains unchanged is the underlying principle of corroboration, which is that one version of events on its own is not enough and is not safe. Mr MacAskill says that it is not just about one witness, but then what is it about, because that is what I and others are now completely unclear about? Some members of his party think that corroboration is not to be abolished, but Mr MacAskill’s amendment says explicitly that it is to be.
For modern purposes, the rule is based on the idea that it is better to let a few guilty people escape conviction than to risk depriving an innocent person of their liberty. The current authority on Scottish criminal law, Professor Gerald Gordon, put it in a nutshell when he said:
“we accept that sometimes a single witness can be reliable and that by refusing to believe him we may be doing injustice in the particular case; but we cannot always be sure about our judgments of reliability, and indeed we are so likely to be wrong, and the results of our error are likely to be so serious, that it is better to make it a rule that we shall never rely on only one witness, because, on the whole, that will lead to less injustice than will reliance on our ability to detect unreliability”.
How might the testimony of a witness be unreliable? Contrary to popular belief, witnesses lie in court and their motives might be sinister. Alternatively, they might be completely honest but simply wrong in what they thought they saw, or they might get flustered in the tension of a courtroom environment and, through anxiety or confusion, misrepresent the actual position.
That is because giving evidence is a human process and, for whatever reasons, human beings are fallible. If corroboration as we understand it is abolished, none of that will be tested or challenged. The bastion of the accused’s protection against such frailty and the guardian of the presumption of innocence is corroboration, and that view is shared by all the groups that are mentioned in Margaret Mitchell’s motion: lawyers, judges, groups of police officers, the Scottish Human Rights Commission, adult survivors of childhood sexual abuse and Justice Scotland.
On the matter of judges, I ask the Justice Committee to investigate which judges support the abolition of corroboration, with the honourable exception of Lord Carloway.
Why does corroboration find itself in the dock? In the wake of Cadder, the Scottish Government instructed Lord Carloway to carry out a review of criminal procedure. That case gave rise to significant issues to do with detention, period of detention and the right of the detainee to legal advice. I disagree with Mr MacAskill: I do not think that corroboration was central to the Cadder case. Lord Carloway made numerous recommendations about Cadder, prominent among which was the abolition of corroboration. That is what we are talking about. I say to Sandra White that if she is in any doubt about that, she should look at the text of her colleague’s amendment.
What consultation, research or evidence taking was engaged in to justify that conclusion? None of any extent that I am able to discover. The conclusion is therefore largely subjective. That, in itself, is not fatal—Lord Carloway is an eminent judge—but that conclusion demands the support of a rigorous examination of the arguments that have been advanced.
We are told that corroboration does not serve its stated purpose of preventing miscarriages of justice and that the real protection is the standard of proof that is required. No, it is not. If the standard of proof is beyond reasonable doubt, we still need reliable evidence to satisfy that test. In the absence of corroboration, a dishonest, mistaken or confused witness could easily satisfy that test.
Corroboration is then condemned because it concerns—
Will the member take an intervention?
I am very tight for time, so I apologise to the cabinet secretary; I want to develop my theme.
Corroboration is then condemned because it concerns the quantity and not the quality of testimony. I have to say that, when it comes to a meaningless mantra, that takes the biscuit. When we are dealing with evidence, if we reduce the quantity, we will as surely prejudice the quality as night follows day. Dishonest, wrong and confused testimony will prevail—what kind of quality is that? I would not want to be at the mercy of that if I were the accused.
Then we are told that corroboration acts as an artificial barrier to prosecution in which the only potential evidence might be from the testimony of a single complainer. Yes, it does. That is a strength in our criminal justice system, not a weakness. Of course abolishing corroboration will increase the number of prosecutions, but to imagine that that will lead to more convictions is as naive as it is nonsensical. It will lead to greater doubt in the minds of jurors, who might be much more inclined to acquit people who are guilty. How does that serve the victims? It will certainly lead to innocent people being convicted on dishonest, mistaken or confused testimony because the witness convinced the jury.
The other arguments advanced in the review do not merit the abolition of corroboration, but I accept that they justify its reform. That is a different matter entirely and I am sympathetic to that. The motion in the name of my colleague Margaret Mitchell makes the investigation of that option a possibility.
The Scottish Government is proposing to abolish corroboration on an analysis that is flawed, reasoning that is opaque, logic that is incoherent, and a conclusion that is plain wrong. The Scottish Government has no substantive alternative substitute or mitigating safeguard to offer and that too is plain wrong. It is akin to demolishing the dam wall without putting any flood prevention measures in place.
In my opinion, corroboration is innocent. It requires reform, but the charges against it have not been proved. We should keep it, we should reform it, and I support the motion.