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Corroboration to go among criminal justice reforms

21 June 2013

The requirement for corroborated evidence in Scottish prosecutions is to be abolished, among reforms in the Criminal Justice (Scotland) Bill just introduced to the Scottish Parliament.

Based mainly on the reports by Lord Carloway in the wake of the Cadder case, published in November 2011, and Sheriff Principal Bowen on sheriff and jury procedure, published in June 2010, the bill's 91 sections and three schedules are grouped into parts covering arrest and custody; corroboration and statements; solemn procedure; sentencing; appeals and the Scottish Criminal Cases Review Commission; and miscellaneous provisions.

Part 1 sets out a constable's power to arrest without warrant; the procedure (and information to be given) following arrest; keeping a person in custody following arrest, if not charged (a "necessary and proportionate" test, with a general 12 hour limit); "investigative liberation" for up to 28 days; procedure following arrest under warrant or charging of accused; rights of suspects in relation to police interviews, principally to legal advice; court authorisatoin for questioning of a person already accused; rights of suspects in police custody; provisions relating to vulnerable persons; police powers to enter and search, and duties not to detain unnecessarily, and to consider the best interests of a child under suspicion; breaches of liberation conditions; and general provisions including the abolition of certain rules relating to arrest and charge.

Part 2 allows a fact to be found proved by evidence "although the evidence is not corroborated" – subject to any statutory provision to the contrary – in relation to offences committed on or after the day the section (currently section 57) comes into force; and provides for the admission of hearsay statements made by an accused under police questioning.

Sheriff and jury

Sheriff Bowen's proposals, so far as requiring primary legislation, are reflected in part 3, which provides for:

  • a requirement for the prosecutor and the defence to engage in advance of the first hearing;
  • a case to be indicted to a first diet and only to proceed to trial when a sheriff is satisfied that it is ready;
  • increasing the time period in which an accused person can be remanded before having been brought to trial from 110 days to 140 days; and
  • removal of the requirement for an accused person to sign a guilty plea.

Section 70 in part 3 raises from eight to 10 (or two thirds of a reduced jury) the number of votes required for a guilty verdict.

Part 4 increases from four to five years the maximum sentence for certain offences relating to offensive weapons, and provides for sentencing for offences committed while on early release, to ensure that that element is always taken into account and improve the flexibility of powers of disposal.

In relation to appeals (part 5), the bill is said to follow the spirit, and in many cases the letter, of Lord Carloway's recommendations for reducing delays, while taking account of arguments for a different approach in particular cases. "The proposed approach is to ensure that there are changes to the law which support case management by the courts, promote the progression of cases and address some of the difficult practices which have led to delay in the past", according to the policy memorandum published with the bill. In references from the SCCRC, the appeal court will in future apply the "interests of justice" test when hearing the appeal rather than separately and in advance.

The miscellaneous provisions in part 6 include aggravations in relation to people trafficking; participation through live television link; and establishment of the Police Negotiating Board for Scotland to deal with police pay and conditions.

Not proven

One topic not in the bill is the not proven verdict. The Government said it had taken on board views that now was not the right time to consider any further change in the light of other significant reforms being proposed. However it has agreed in principle with the Scottish Law Commission that a review of this verdict should be carried out in a future work programme.

Justice Secretary Kenny MacAskill said: “Taken together, these reforms aim to strike a balance between strengthening the powers available to police and prosecutors, while protecting the rights of the accused.

“I have made clear a number of times that I believe that the requirement for corroboration should be abolished as it can represent a barrier to justice. It is an outdated rule which can deny victims the opportunity to see those responsible for serious crimes brought to justice.

“Removing the need for corroboration represents a move towards focusing on the quality of evidence rather than quantity."


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