Rights around corroboration
Survey of the human rights issues raised by the proposed abolition of the corroboration rule
Corroboration, seen by many as the cornerstone of Scots criminal law, looks set to be abolished.
The proposal, made by Lord Carloway in his review of the Scottish criminal justice system, has been accepted by the Scottish Government despite strong opposition from the legal profession, including the Law Society of Scotland, the Faculty of Advocates and the Senators of the College of Justice (excluding Lord Carloway).
The requirement under Scots criminal law is that the essential facts of a case be proven by corroborated evidence, that is, evidence from two independent sources. It has long been recognised as a significant safeguard against unjust conviction, contributing to the accused’s right to a fair trial as protected by article 6 of the European Convention on Human Rights (ECHR), along with every individual’s article 5 right to liberty and security.
Lord Carloway’s review
The Carloway review was commissioned in the wake of Cadder v HM Advocate, which resulted in a statutory right to legal advice for all suspects detained by the police for questioning. The review looked at reforming the Scottish criminal justice system as a whole and made several recommendations, including that “the current requirement for corroboration in criminal cases be abolished”.
Examining the origins of the rule, its development and current application, Lord Carloway found it to be archaic and responsible for placing focus on the quantity as opposed to the quality of evidence. The anticipation is that the abolition of corroboration will enable the prosecution of crimes with a sufficient quality of evidence available but where corroboration of all crucial facts of the case is lacking, crimes which in another jurisdiction would have been prosecuted.
Although Lord Carloway stated that it is not within the remit of the review to “re-balance” the perception that Cadder has thus “tilted the advantage too far in favour of the suspect”, the removal of corroboration would appear to redress the effect of Cadder that suspects are less likely to corroborate evidence against them during questioning.
Corroboration is a legal requirement exclusive, today, to the jurisdiction of Scotland. Other legal systems, including that of England & Wales, operate without this protection. It should be noted however that although corroboration is not a legal requirement in other jurisdictions, weight is still given to corroborated evidence, and conversely warnings can be issued to juries on the risks of convicting on uncorroborated evidence.
Following the publication of the Carloway Review, the Scottish Government launched a public consultation that ran from 3 July to 15 October 2012. The consultation asked: “Lord Carloway concludes that the requirement for corroboration has no place in a modern legal system and should be abolished. Setting aside any question about whether this would require other changes to be made, do you agree with that conclusion?”
The question was answered: Yes – 16; No – 22; Other – 6; No response – 12. Of the six “others” (respondents who commented but did not give a definitive answer), four “stated or implied concern over the proposal to abolish”. This was the only proposal made by Lord Carloway that attracted a principally negative response.
Independent analysis of the consultation responses showed the most common themes as: concern regarding the role of corroboration as a safeguard against wrongful convictions; the possibility of alternatives to abolition of corroboration; that abolition of corroboration would benefit victims, as more cases would be taken to court; that more research into this matter is required. This last point was the one most emphasised. The Law Society of Scotland suggested that the Scottish Law Commission be tasked with this job, whilst the Faculty of Advocates has expressed its opinion that a Royal Commission should be employed to reconsider the possible abolition.
Opposition to abolition
Opposition is centred on the potential miscarriages of justice that could occur without the safeguard of corroboration. The point was made that it is not known how juries reach a verdict, but at a basic level the juror must make their decision on the basis of what evidence, if any, they find compelling. In cases where there is no corroboration it becomes a “he said, she said” situation, and the witness found to be most compelling may not be the witness who is telling the truth. The Carloway Review acknowledged the fact that witnesses do not always tell the truth, and even those who do may be mistaken.
Support for abolition
Support for the abolition of corroboration has come from third sector organisations such as Rape Crisis Scotland and Victim Support Scotland, who believe that there will be more successful prosecutions for rape and domestic abuse. This however has not been proven, and Lord Carloway, while accepting the conclusion of research by two procurators fiscal that a proportion of cases not prosecuted would have a reasonable prospect of conviction if the rule were abolished, comments in his review that an increase in prosecution and conviction rates is not expected across the board.
There is no clear evidence that the abolition of corroboration will result in higher conviction rates for rape and domestic abuse and to use Lord Carloway’s comparison, there is not a higher rate of conviction for these crimes in England & Wales. As crimes that typically occur in private, they will always be more difficult to prosecute.
Human rights considerations
The human rights of victims of crime are not as clear-cut as those afforded to the accused. This can be explained on the basis that human rights traditionally address the relationship between the state and the individual.
When the European Convention on Human Rights was first drafted, it was intended to lay down prohibitions against the infringement of certain rights by states. Article 2, the right to life, and article 3, prohibition of torture, for example, were classically read as imposing a duty on states not to violate these rights. Both articles however are now realised to include a positive obligation to investigate (and in certain cases prevent) any such potential violation, even those committed by a non-state actor.
Beyond this duty to investigate, and through that duty the requirement to keep victims informed of this process, the rights of victims are not so readily identifiable within Convention rights as those of the accused. The accused is protected under article 5, right to liberty and security, and article 6, right to a fair trial, and these rights must be guaranteed by the state.
It will never be possible in a fair and just criminal justice system, and even less so in a corrupt criminal justice system, to ensure that all criminals are caught, prosecuted and convicted. At the stage of prosecution the crime has already been committed. This cannot be counterbalanced through heedless prosecution that risks conviction of the wrong person. The criminal justice system should not create another victim in this way.
Article 6 of the Convention, the right to a fair trial, does not require corroborated evidence to achieve conviction, but instead looks at the trial process as a whole. Other jurisdictions that operate without the protection of corroboration employ other safeguards against wrongful conviction, such as a qualified majority jury verdict, as found in England & Wales, as opposed to the simple majority currently applied in Scotland.
It is in this regard that the need for additional safeguards has been raised should corroboration be abolished, to ensure that individuals are not wrongfully convicted and imprisoned for crimes they did not commit.
However, despite Lord Carloway’s assertion that corroboration has not been shown to prevent miscarriages of justice, JUSTICE Scotland, drawing on their extensive experience throughout the UK, highlighted in their response the fact that there are more overturned convictions and serious miscarriages of justice in England than there are in Scotland, even with their alternative safeguards, and sought to infer that the requirement of corroboration strengthens the criminal justice system in Scotland.
A follow-up question relating to the abolition of corroboration was posed in the consultation: “If the requirement for corroboration is removed, do you think additional changes should be made to the criminal justice system?” The results were: Yes – 25; No – 5; Other – 5; No response – 21. Asked to suggest possible changes, three main themes were identified:
1.The need to consider the wider criminal justice system.
2.The need to give consideration to the majority verdict; the need for a weighted majority.
3.The need to give consideration to the three verdict system; to look at abolishing the not proven verdict.
It was noted that some of those respondents who answered positively to this question maintained their position that corroboration should not be abolished.
Choosing to focus on the responses received to this second question, rather than the majority opposition of the proposition to abolish corroboration, on 19 December 2012 the Scottish Government launched a second consultation: Reforming Scots Criminal Law and Practice: Additional Safeguards Following the Removal of the Requirement for Corroboration.
In the foreword to this paper, Justice Secretary Kenny MacAskill reiterates his support for Lord Carloway’s proposal. The document examines the current safeguards in place within the criminal justice system before going on to consider possible additional safeguards that could be implemented.
The questions posed to respondents include:
· whether, if the requirement for corroborative evidence is removed, the simple majority jury verdict system should be replaced with a qualified majority system, either nine or 10 of 15 jurors to return a verdict;
· whether, in the event that a jury is unable to return a verdict, it should be open to the prosecution to seek a re-trial;
· whether the “not proven” verdict should be retained and, if only two verdicts are available, what they should be named;
· whether the circumstances in which the accused can apply to the judge to have the case withdrawn from the jury should be expanded to include where the judge is of the view that no reasonable jury could convict the accused on the basis of the evidence led during the trial.
Whilst most respondents are in agreement that should corroboration be abolished, additional safeguards would be required, it does not seem to me that the Scottish Government has done enough to convince the legal profession that abolition is in itself a good idea. Mr MacAskill and the Scottish Government seem set to make this change however. Any proposed law reform, particularly one as serious as the abolition of corroboration, is bound to be complex and thus requires extensive research into the potential effects of any changes made. More research into the effects of such a move still seems appropriate.
What is clear however is that if corroboration is abolished, additional safeguards to protect the accused must be put in place.
Respondents have until 15 March 2013 to return their comments.
Sarah Mennie, Scottish Human Rights Law Group