How Quickly Things Change – Corroboration – Now “An Antiquated Technical Requirement”

 

The need for corroborated evidence before a person can be convicted of a crime has been an essential element of Scots Law for hundreds of years. As was discussed in the piece linked to here, the need for more than one source of evidence to allow a conviction can be taken back as far as the Old Testament.

On 2nd December 2010 Lord Carloway, having been asked by the Justice Secretary to look into Scottish criminal law in the aftermath of the Cadder case commented on corroboration. He said:-

Corroboration has been a cornerstone of the Scottish system for a long time – and a matter of considerable pride – in assessing sufficiency of evidence.”

By November 2011 when he produced his report, his view had changed. He said then:-

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 answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled.

Today the Solicitor General, Lesley Thomson, is quoted as saying the following about corroboration:-

Prosecutions with evidence of a perfectly good quality to convince a sheriff or jury of an accused’s guilt should not founder on the basis of an antiquated technical requirement, heralding from centuries before a woman could vote, own property or give evidence in criminal proceedings.” (Emphasis added)

Poor corroboration – from “a cornerstone of the system” to “an antiquated technical requirement” in less than nineteen months.

Presumably the Solicitor General, who was speaking at Domestic Abuse in Scotland conference, wants to abolish all other laws dating from “before a woman could vote, own property or give evidence in criminal proceedings”? If not, and she simply came up with that as a snappy sound-bite, then why mention it at all? Was the intention to suggest that the legal system is biased against women, and has been for hundreds of years?

If that were the position of the Solicitor General for Scotland, one would expect to see proposals for root and branch reform, or at least for one of her predecessors as Solicitor General, and latterly Lord Advocate, Dame Elish Angiolini, to have taken up the cudgels.

Whilst it is rarely a bad idea to agree with a learned judge, such as Lord  Carloway, the comments of the Solicitor General smack of bandwagon jumping, and a bandwagon to which the majority of solicitors dealing with the issue of corroboration on a daily basis, are opposed.

 

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4 Comments

Filed under Cadder v HMA, Criminal Law, General Scots Law Rambling

4 responses to “How Quickly Things Change – Corroboration – Now “An Antiquated Technical Requirement”

  1. TooLongGone

    I grew up in Scotland but now reside in Canada where I practice mostly defence criminal law. The requirement for corroboration is no,longer a legal requirement in Canada for any crime though there are special warnings to juries to look for corroboration where an unsavoury witness is the main source of evidence. I must admit it would be nice from a defence perspective to always require corroboration before convicting. However I must admit that I find it difficult to understand why the need for corroboration is an invariable rule. Just because it is a distinctive part of Scots Law does not in and of itself make it worthy of maintaining. Surely a rule or practice should be maintained if it is rationally defensible in a truth seeking process. Longevity of the rule does not logically equate to correctness.

  2. Brian Jeffrey

    It may well be that Lord Carloway was previously comfortable with the establishment position simply because it was the way it has always been and if it ain’t broke don’t fix it. In the light of Cadder however he was specifically tasked with examining the issues and as a result has come to a much more informed view that in fact it is broke and does need fixed.
    I have taken the time to read his review and it seems to me that he provides very cogent, well reasoned arguments for his conclusion and recommendations.
    I think he should be congratulated for having the courage to state his considered view based upon his research rather than maintain an establishment view simply because it would be more acceptable to his peers and the wider legal profession.

  3. mick

    how would this affect the phisical and mental element dont you need both mensis recise recise mensis latans not my strong point

  4. Pingback: Lord Carloway, formerly of the SFA Judicial Panel (And Much Else), Appointed Lord Justice Clerk | Random Thoughts Re Scots Law by Paul McConville

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