Criminal Law and Practice in Scotland
| Published date | 01 October 1938 |
| Date | 01 October 1938 |
| DOI | 10.1177/0032258X3801100403 |
| Subject Matter | Article |
Criminal
Law
and Practice in Scotland
THE
NEED
FOR CORROBORATION
OF
the distinctions in criminal law and practice between
England and Scotland, none is more striking
than
that
occasioned by the insistence of the Scottish courts on
the"
rule
of two witnesses."
This
rule is often mis-stated and misunder-
stood.
It
does not mean
that
in Scotland an offender can never
be convicted unless the prosecutor is in a position to adduce
the
evidence of two eye-witnesses to the commission of the
offence.
What
it does mean is
that
(apart from suchimportant
statutory exceptions as are afternoted) no person may be found
guilty of a crime or offence in a Scots criminal court on
the
uncorroborated testimony of a single witness and
that
every
crucialfact (such as
the
offender's identity)
must
be proved by
something more
than
such unsupported evidence.
Of
recent years, there had been noticeable atendency
to relax the
rule-see
McCrindle v. Macmillan
(1930
J.C. 56)
and Strathern v. Lambie (1934J.C.
137),
in both of which
the
rule was " stretched " in favour of
the
prosecution-but
this
tendency has received a decided set-back in the recent case of
Morton v.
H.M.
Advocate
(1938
S.L.T.
27), in which acourt
of seven judges has unanimously reasserted the
"rule
of two
witnesses"
as a fundamental of Scots criminal law.
Morton was charged, tried and convicted of an indecent
assault
upon
awoman. Against this conviction he appealed.
In
view of the importance of the question raised, the case was
remitted to a " full bench," who, after an exhaustive hearing
and examination of
the
authorities, allowed the appeal and
quashed the conviction.
"The
only evidence of the identity
of
the
assailant," said
Lord
Aitchison, who gave the leading
opinion, " was the direct evidence of the young woman herself."
The
man who assaulted her was a stranger, whose name she
412
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