Corroboration in Scots Law: “Archaic Rule” or “Invaluable Safeguard”?

Document Cited authorities (27) Cited in Related
AuthorJohn Blackie,Donald Nicolson
DOI10.3366/elr.2013.0153
Published date01 May 2013
Date01 May 2013
Pages152-183

Whether or not the corroboration requirement is “archaic”18

Carloway Review, Report (n 4) para 7.2.55.

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. The original biblical statement of the rule required two witnesses for a conviction, but later it was transformed into one merely requiring two sources of information establishing each of the facta probanda19

Sometimes, as in the Carloway Review's report, designated the “crucial facts”.

 of the crime charged: identification of the accused, the elements of the actus reus and, more recently,20

J Chalmers, “Distress as corroboration of mens rea” 2004 SLT (News) 141.

 the mens rea. While the original rationale was not entirely clear,21

Gordon (n 11) at 33–35.

 its modern rationale was classically stated by Hume:22

Hume, Commentaries ii, 383.

No matter how trivial the offence, and how high so ever the credit and character of the witness, still our law is averse to rely on his single word, in any inquiry which may affect the person, liberty, or fame of his neighbour; and rather than run the risk of such an error, a risk which does not hold when there is a concurrence of testimonies, it is willing that the guilty should escape.

 In other words, the requirement is designed to act as an “invaluable safeguard in the practice of our criminal Courts against unjust conviction”.23

Morton v HM Advocate1938 JC 50 at 55 per Lord Justice-Clerk Aitchison.

 And, as Gordon astutely observes, it does so in classic rule-consequentialist terms:24

Gordon (n 11) at 35.

…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.

It is clear that a core justification for the corroboration requirement is the perceived unreliability of witnesses. The vast body of research, which can only be sketched here, reveals the extent to which the problems are underplayed in the Report's terse recognition that witnesses may be “simply wrong” and “frequently lie”, and that “identification is often regarded...

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