Corroboration: room for modification?

As lawyers we are often prone to hyperbole. But the Justice Secretary’s suggestion that “the requirement for corroboration has failed Scotland” perhaps overstates the case for the prosecution.

Suggesting it is based in “a different age” before DNA or CCTV, and that times have changed, is somewhat puzzling. Given that times have changed and that there is DNA and CCTV, is it not more likely that there will be corroboration?

Corroboration has served taxpayers well. It is a simple, unbiased, and quite frankly, in the majority of cases, not too rigorous test, to apply to say whether or not a case should be prosecuted.

It has its problems and they need to be addressed. If a crime is committed in private, there may be only one witness. In these circumstances, it may be necessary to consider whether there should be exceptions to the general rule, but to have as our starting point a requirement that there are two sources to suggest that a crime has been committed is a test which has served this nation well: a complainer who claims he has been assaulted and injuries consistent with assault.

In the absence of this simple test, how can a prosecutor decide who is to be prosecuted? Is it simply who the police believe? Do we have categories of cases where an accused person is automatically prosecuted and others where they are not?

In these circumstances a sweeping statement such as “an emphasis on quality” is in fact meaningless. Changes to jury voting numbers are irrelevant to summary procedure.

Is it too much to ask that there is other evidence to suggest that a crime has been committed? In this respect corroboration has been a bastion of our law, providing protection for our citizens against wrongful accusations and ensuring public money is not wasted on cases where there simply isn’t enough evidence.

What if the complainer is a good liar? Must a sheriff always be bound to convict? What additional guidance will be given to the fact finder?

Does a prosecutor have to prosecute every allegation? Frequently people have vested interests in making allegations. Does the taxpayer have to fund every allegation?

Often an accused person in such a situation has never been in trouble, and equally often they have a lot to lose: involvement with their children, their job. The pressures are such that people often contemplate suicide.

May I propose an alternative to guessing whether or not the person is telling the truth? Let’s insist in at least another source of evidence that the crime has been committed. Thereafter, let’s carefully look at the laws of evidence in relation to identification. In those cases where there is only one source of evidence but that source is compelling, let’s consider how the law can be amended to ensure that the victims in these cases receive justice.

It may be that in cases such as these, the sheriff can direct a jury that if they believe the complainer and are satisfied on corroborated evidence that a crime has been committed, they are entitled to convict.

In summary cases it is difficult to see a better safeguard than corroboration.

But, to abolish corroboration simply because in a small minority of cases it does not do the victims justice is in my opinion throwing the baby out with the bathwater, and as a general rule corroboration should be retained in the exceptions clearly defined.

Protection of the innocent must be the primary concern of our justice system. The removal of the requirement of corroboration is likely to lead to innocent people being convicted of crimes, not only crimes that they did not commit but crimes that didn’t even happen.