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

Document Cited authorities 27 Cited in Related
Vincent
AuthorJohn Blackie,Donald Nicolson
Pages152-183
Published date01 May 2013
DOI10.3366/elr.2013.0153
Date01 May 2013
<p>In 2010, in <italic>Cadder v HM Advocate,</italic><xref ref-type="fn" rid="fn1"><sup>1</sup></xref><fn id="fn1"><label>1</label><p><span class="vid_spn">[2010] UKSC 43</span>, 2011 SC (UKSC) 13.</p></fn> the Supreme Court held that <span class="vid_spn">article 6</span> of the <a href="https://international.vlex.com/vid/convenio-europeo-libertades-fundamentales-67895138">European Convention on Human Rights</a> (<a href="https://international.vlex.com/vid/convenio-europeo-libertades-fundamentales-67895138">ECHR</a>) entitles all suspects to consult a solicitor before and during police questioning, as well as to be informed of this right. It immediately caused ripples in the Scottish criminal justice pond which may grow to tidal wave proportions, with some worrying that the decision may even leave criminal suspects worse off than before.<xref ref-type="fn" rid="fn2"><sup>2</sup></xref><fn id="fn2"><label>2</label><p>P R Ferguson, “Repercussions of the <italic>Cadder</italic> case: the <a href="https://international.vlex.com/vid/convenio-europeo-libertades-fundamentales-67895138">ECHR</a>'s fair trial provisions and Scottish criminal procedure” [2011] Crim LR 743; J Scott, “Detention without access to a lawyer ends in Scotland” <italic>The Guardian,</italic> 27 October 2010. But cf R M White and P R Ferguson, “Sins of the father? The ‘sons of <italic>Cadder’”</italic> [2012] Crim LR 357 on the judicial response.</p></fn> Thus the legislation responding to <italic>Cadder</italic> doubled the existing six hour period of detention permitted for police questioning and empowered a custody review officer to extend the period for a further twelve hours.<xref ref-type="fn" rid="fn3"><sup>3</sup></xref><fn id="fn3"><label>3</label><p><a href="https://vlex.co.uk/vid/criminal-procedure-legal-assistance-808481217">Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010</a>.</p></fn> Potentially more significant are the recommendations of the <italic>Carloway Review,</italic> commissioned to “review key elements of Scottish criminal law and practice” in the light of <italic>Cadder.</italic><xref ref-type="fn" rid="fn4"><sup>4</sup></xref><fn id="fn4"><label>4</label><p>Carloway Review, <italic>Report and Recommendations</italic> (2011) para 1.01.</p></fn> A year later it reported on a wide variety of issues, including the law on arrest and detention, custody periods, the giving of legal advice, police questioning, child suspects and other vulnerable witnesses, the general test of evidential sufficiency, “mixed” statements, drawing adverse inferences from reliance on the right to silence, as well as issues relating to appeals.</p> <p>Many of the Report's recommendations have been received positively, notably those to limit detention to 12 hours, and to retain a robust right to silence.<xref ref-type="fn" rid="fn5"><sup>5</sup></xref><fn id="fn5"><label>5</label><p>B McVicar, “Carloway: a view from the Law Society” 2012 SCOLAG 8; J Chalmers and F Leverick, “‘Substantial and radical change’: a new dawn for Scottish criminal procedure?” (2012) 72 MLR 842.</p></fn> By contrast, a veritable storm of controversy has met its recommendation to abolish the requirement of corroboration on the basis that 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”.<xref ref-type="fn" rid="fn6"><sup>6</sup></xref><fn id="fn6"><label>6</label><p>Carloway Review<italic>, Report</italic> (n 4) para 7.2.55.</p></fn> Fairly predictably, this was welcomed by Government lawyers and some police organisations,<xref ref-type="fn" rid="fn7"><sup>7</sup></xref><fn id="fn7"><label>7</label><p>R Alderson, “Legal reforms ‘could help reduce domestic abuse levels’”, <italic>BBC News Online</italic> 20 June 2012; “Police body supports evidence reform”, <italic>The Herald</italic> 17 October 2012. But cf Scottish Police Federation, <italic>Briefing Paper: Federation Opposes Lord Carloway's Proposal to Abolish Corroboration</italic> (2012).</p></fn> who were joined by victims’ and women's groups<xref ref-type="fn" rid="fn8"><sup>8</sup></xref><fn id="fn8"><label>8</label><p>See e.g. the views presented to the Justice Committee by Victim Support Scotland, Scottish Women's Aid and Rape Crisis Scotland, available at <ext-link ext-link-type="uri" xlink:href="http://www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=6726&mode=pdf" xlink:type="simple"><italic>http://www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=6726&mode=pdf</italic></ext-link> and <ext-link ext-link-type="uri" xlink:href="http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/Rape_Crisis_Scotland_written_submission.pdf" xlink:type="simple"><italic>http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/Rape_Crisis_Scotland_written_submission.pdf</italic></ext-link>.</p></fn> and more tentatively by some academics.<xref ref-type="fn" rid="fn9"><sup>9</sup></xref><fn id="fn9"><label>9</label><p>P Duff, “The requirement for corroboration in Scottish criminal cases: one argument against retention” [2012] Crim LR 513; F Raitt, “Carloway: a view from the academy” 2012 SCOLAG 9.</p></fn> But, as Gordon predicted almost twenty years ago, and Lord Carloway expected,<xref ref-type="fn" rid="fn10"><sup>10</sup></xref><fn id="fn10"><label>10</label><p>Carloway Review<italic>, Report</italic> (n 4) para 7.05.</p></fn> the requirement has been “defend[ed] religiously [as] one of the most notable and precious features of Scots criminal law”<xref ref-type="fn" rid="fn11"><sup>11</sup></xref><fn id="fn11"><label>11</label><p>G H Gordon, “‘At the mouth of two witnesses’: some comments on corroboration”, in R F Hunter (ed), <italic>Justice and Crime: Essays in Honour of Lord Emslie</italic> (1993) 33 at 33.</p></fn> by lawyers, judges, academic and human rights campaigners, who have questioned whether abolition will in fact save costs and have the predicted positive impact on conviction rates in sexual and domestic violence offences.<xref ref-type="fn" rid="fn12"><sup>12</sup></xref><fn id="fn12"><label>12</label><p>See e.g. Ferguson (n 2) at 747–748; McVicar (n 5); B McConnachie, “Carloway: a view from the bar” 2012 SCOLAG 6; D J C Thomson, “A defence of corroboration in criminal cases” 2012 SLT (News) 7. See also Senators of the College of Justice, <italic>Response to the Scottish Government Consultation Paper: Reforming Scots Criminal Law and Practice</italic> (2012) 21–22, the views expressed by interviewees in P Nicholson, “Case proved?” (2011) 56 JLSS Dec/15, and the evidence taken by the Justice Committee on the Carloway Review (available at <ext-link ext-link-type="uri" xlink:href="http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/45421.aspx" xlink:type="simple"><italic>http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/45421.aspx</italic></ext-link>).</p></fn> Instead, they warn that removing such a “cornerstone” of the law will lead to many unintended problems,<xref ref-type="fn" rid="fn13"><sup>13</sup></xref><fn id="fn13"><label>13</label><p>A view echoed by those not opposed to abolition: Raitt (n 9); F Raitt, “The Carloway Review: an opportunity lost” (2011) 15 EdinLR 427; F Crowe, “A case for the abolition of corroboration in criminal cases?” 2011 SLT (News) 179.</p></fn> take years to bed in<xref ref-type="fn" rid="fn14"><sup>14</sup></xref><fn id="fn14"><label>14</label><p>Crowe (n 13) at 184–185</p></fn> and, most crucially, threaten civil liberties. Nevertheless, despite the overwhelming view that such a momentous step requires greater consultation and consideration, and a far more convincing case than that provided by Lord Carloway,<xref ref-type="fn" rid="fn15"><sup>15</sup></xref><fn id="fn15"><label>15</label><p>In addition to those cited above, see Chalmers and Leverick (n 5) at 856–860, the views (though not all negative) collected in Scottish Government, <italic>Reforming Scots Criminal Law and Practice: The Carloway Report</italic> (2012). Compare also the view that <italic>Carloway</italic> “achieved a great deal more than expected in the timescale available”: McVicar (n 5).</p></fn> the Scottish Government declared itself persuaded and, although setting up a consultation process, before it had completed, announced its intention to introduce a bill to give effect to the Carloway Review including its recommendation to abolish the corroboration requirement.<xref ref-type="fn" rid="fn16"><sup>16</sup></xref><fn id="fn16"><label>16</label><p>Scottish Government, <italic>Reforming Scots Criminal Law and Practice: The Carloway Report: Scottish Government Consultation Paper</italic> (2012); Scottish Government, <italic>Working for Scotland: The Government's Programme for Scotland 2012–13</italic> (2012) 67.</p></fn></p> <p>This article seeks to evaluate whether the government should have been so easily persuaded by Lord Carloway, and, if not, whether a convincing alternative case for abolition could have been made. We will also consider whether, as the Scottish Government seems now to have accepted,<xref ref-type="fn" rid="fn17"><sup>17</sup></xref><fn id="fn17"><label>17</label><p>Scottish Government, <italic>Reforming Scots Criminal Law and Practice: Additional Safeguards Following the Removal of the Requirement for Corroboration</italic> (2012). See further n 169 below.</p></fn> that Lord Carloway was wrong to dismiss the need to replace the requirement with safeguards compensating for the loss of the protection against miscarriages of justice that it supposedly provided. In doing so, we will aim to go beyond the often highly rhetorical and sometimes misleading, unfounded and even illogical arguments seen on both sides of the debate, and, by adopting a multi-disciplinary approach, ground the debate in a more theoretically and empirically informed understanding of the criminal justice process.</p> THE REASONS FOR THE CORROBORATION REQUIREMENT The rule and its rationale

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 Advocate 1938 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.

 Corroboration and problems of evidential reliability

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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