The debate surrounding the abolition of corroboration has not been of a quality demanded by the magnitude of the decision the Scottish Parliament is being asked to make.
Those seeking the abolition argue corroboration is out-dated, archaic, out of step with every country in the world and that it denies victims’ access to justice. Abolition we are told will increase convictions. Indeed proponents tell us corroboration represents a barrier to justice and is responsible for denying victims the opportunity of seeing those responsible brought to justice.
This sums up both the arguments for those seeking reform and the absurdity of the proposition being advanced.
Can we start by reminding ourselves what the functions of our courts are and what our legal system seeks to achieve? This is simple, it is to determine guilt or innocence following an allegation by an “alleged” victim of criminal conduct, which results in the finger of suspicion identifying a possible culprit who becomes the accused and then faces trial. The purpose of the trial is to determine the guilt or innocence and to do so according to a set of rules and procedures designed to be fair, to avoid a miscarriage of justice and return a verdict of guilty only when it is right to do so.
Those seeking to abolish corroboration argue for change using emotion, rhetoric, anecdotal references to “if you saw what I saw on my desk” and vocabulary which displays an ignorance of or scant regard for our legal system laws and procedures.
The trial is there to determine if the accuser is a victim. There can be no presumption that those making an allegation are either telling the truth or are reliable. This is decided impartially on the evidence tested at the trial. At stake is the guilt or innocence of the accused.
It is accordingly completely wrong to use vocabulary suggesting that corroboration denies victims the opportunity to see those responsible been brought to justice.
Justice favours neither the alleged victim nor the accused. Not every allegation made is truthful and not every accused is guilty. Not every piece of evidence is reliable. Witnesses sometimes tell the truth; they sometimes tell lies. Witnesses may be truthful yet unreliable or mistaken. The purpose of the trial is to decide what evidence can be relied upon, who is telling the truth, who is to be relied upon. How we go about this in Scotland involves seeking corroboration.
In Scotland, until now we have prevented convictions based only upon confessions or based solely on the testimony of a sole witness. We seek some other evidence which points to the truth and reliability of this evidence. We do not require two eyewitnesses; we do not require every piece of evidence to be corroborated. Corroboration applies only to the essential crucial facts in the case.
As was said in one case,
“what is essential is that the evidence, whether direct or indirect, when taken as a whole provides the necessary conjunction of testimony to the required standard of proof.”
For witnesses who may be nervous or otherwise criticised as unreliable and whose performance in the witness box is unconvincing, corroboration can point to the truth of their evidence and support their reliability and credibility.
Corroboration does not deny justice, it delivers justice. How else are we to decide upon the truth of reliability of witness testimony? Are we to measure it by performance value? How people look in the witness box? Even a man of bad character can be the victim of a crime and corroboration of what they allege goes not to deny the allegation because of their imperfect performance or bad character but indeed proves the truth of what they allege.
The proposed changes are argued for by reference to convictions rates in domestic abuse and rape cases, yet the law on corroboration is to be changed for every type of case, albeit these types of cases form an extremely small part of the cases before courts.
If there is a case to be made to change the law for such crimes then should it not be changed in relation to those crimes and those crimes alone? Much is made of altering the requirements for a majority verdict in a jury trial yet the overwhelming numbers of cases do not come before a jury; they are tried before a sheriff or a magistrate. On what scientific basis do we say a majority of 10 rather than 8 protects us from miscarriages of justice?
The background to these proposed reforms comes from the decision in Cadder where the Supreme Court not unsurprisingly found that our law was not archaic because of corroboration but rather it was unjust and unfair to allow the police to detain an accused for questioning and deny him access to legal advice.
The Supreme Court did not make new law; they applied the existing ECHR law which in common with most civilised countries provided that those to be questioned should have access to a lawyer.
Few people will find it difficult to understand that providing an accused person with the right to legal advice is a requirement of fairness in any judicial process. Extracting confessions, extracting evidence by questioning in circumstances where the police can deny access to legal advice is difficult to reconcile with fairness or justice.
Such practices were good for conviction rates but bad for justice.
Surely the purpose of our legal system is not to increase convictions but to reach a just and fair conclusion as to guilt or innocence. If the aim is simply to increase convictions we can abolish trials or the presumption of innocence.
What is crucial is how we deal with consideration of such important questions. Is it by emotive and ill-informed debate in circumstances where those in power have not only the will but the political majority and can do what they consider best? Or do we refer that matter to the body which already exists to consider changes in our system - The Scottish Law Commission. I quote from the introduction to their website:
The Commission’s task is law reform: to recommend ways of simplifying, updating and improving the law of Scotland.
We want to ensure that our recommendations, if implemented, will result in law which is just, principled, responsive and easy to understand. It is therefore critical for us to engage in a thorough and open process of consultation and we welcome the views of as many people as possible in response to our specific consultations
Let us not rush into foolish ill-thought-out changes to our legal system, a system revered by many throughout the world.
If change is needed, let it to be considered calmly and carefully free from the knockabout debate of politics. Let’s pause to ask why every judge, with the exception of the one asked to write the report which supports this reform, every lawyer and many others beside oppose this reform as it is currently stands.
It remain a mystery why such a fundamental change to our legal system has not been referred to the Scottish Law Commission for impartial and measured consideration. It is not too late. Scotland, surely we can do better than this?