The Corroboration Requirement in Scottish Criminal Trials: Should it Be Retained for Some Forms of Problematic Evidence?

Published date01 January 2014
Date01 January 2014
DOIhttp://doi.org/10.1350/ijep.2014.18.1.439
Subject MatterArticle
THE CORROBORATION REQUIREMENT IN SCOTTISH CRIMINAL TRIALS
The corroboration
requirement in Scottish
criminal trials: should it
be retained for some
forms of problematic
evidence?
By Fraser P. Davidson*and
Professor of Law, University of Stirling
Pamela R. Ferguson**
Professor of Law, University of Dundee
Abstract The merits of corroborated evidence in criminal trials have been hotly
debated in many jurisdictions, with most having now abandoned this
requirement. The Scottish government intends to do likewise—at a time when
some other jurisdictions are considering its reintroduction. This article considers
whether there is merit in retaining a corroboration requirement for two types of
evidence, namely for visual identifications and extra-judicial confessions. It
explores whether the introduction of a weighted jury majority, as the
government proposes, can compensate for the problematic nature of such
evidence. In respect of visual identification evidence, it is argued that any
safeguard which corroboration might have provided has been weakened by the
way in which the courts have developed the law. Alternative mechanisms for
improving the quality of such evidence are assessed. In relation to confessions,
doi:10.1350/ijep.2014.18.1.439
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2014) 18 E&P 1–27 1
* Email: f.p.davidson@stir.ac.uk.
** Email: p.r.ferguson@dundee.ac.uk. The authors are grateful to Professor F. E. Raitt for her
comments on an earlier version of the article.
the article argues that increasing the jury majority is a poor substitute for
corroboration.
Keywords Evidence law; Corroboration; Scotland; Identification; Confession
The background
he case of Cadder vHM Advocate1was a landmark decision by the UK
Supreme Court which established that suspects in Scotland who are
detained by the police for questioning have a right to a consultation with
a lawyer before and during such questioning.2For the prosecution to attempt to
lead evidence of the answers given by a suspect who had not been advised of this
right was a breach of the suspect’s right to a fair trial, rendering such answers
inadmissible. As a result of the Cadder case the right to legal advice was enshrined
in legislation.3Having availed themselves of their right to legal advice, many
suspects now respond to police questioning with a stock reply, declining to answer
‘on the advice of’ their solicitor’. This development is unsurprising; a similar
pattern of behaviour was to be seen when the right was introduced into English
law 25 years ago.4However, English and Scottish criminal procedure differ in two
crucial respects which are pertinent to the issue of silence at the police station.
First, unlike in England,5no adverse inferences may be drawn at trial in Scotland
as a result of a suspect’s refusal to respond to questions from the police. Secondly,
at present Scottish law retains a corroboration rule. This requires the ‘facts in
issue’ to be proved by two independent sources of evidence. Thus the prosecution
must establish: (1) that the crime was committed, and (2) that the accused was the
person who committed it, and must (generally) provide two independent sources
of evidence for each of these.6In many cases one of the two sources of evidence
2 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
THE CORROBORATION REQUIREMENT IN SCOTTISH CRIMINAL TRIALS
1 2011 SC (UKSC) 13.
2 For a critique of the case see P. R. Ferguson, ‘Repercussions of the Cadder Case: the ECHR’s Fair Trial
Provisions and Scottish Criminal Procedure’ [2011] Crim LR 743; J. McCluskey, ‘Supreme Error’
(2011) Edinburgh Law Review 276. More supportive commentary includes F. Leverick, ‘The Supreme
Court Strikes Back’ (2011) Edinburgh Law Review 287; F. Stark, ‘The Consequences of Cadder’ (2011)
Edinburgh Law Review 293.
3 CriminalProcedure (Scotland) Act 1995, s. 15A, inserted by the Criminal Procedure (Legal
Assistance, Detention and Appeals) (Scotland) Act 2010,s.1.
4 By the Police and Criminal Evidence Act 1984, s. 58. For an assessment of the English law position,
see P. Pleasence, V. Kemp and N. J. Balmer, ‘The Justice Lottery? Police Station Advice 25 Years on
from PACE’ [2011] Crim LR 3.
5 Criminal Justiceand PublicOrder Act1994, s. 34.See D.Birch, ‘Sufferingin Silence’ [1999] Crim LR
769.
6 There are several statutory exceptions to this, generally relating to minor offences, e.g. Dog
Fouling (Scotland) Act 2003, s. 1(4). Where offences are aggravated by various forms of prejudice,
there need not be corroboration of the accused’s prejudice. See, e.g., Offences (Aggravation by
Prejudice) (Scotland) Act 2009, s. 1(4): ‘Evidence from a single source is sufficient to prove that an
offence is aggravated by prejudice relating to disability’.
T

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