Bonomy post-corroboration review publishes safeguards consultation

Proposals to help prevent miscarriages of justice following the abolition of the corroboration rule in Scottish criminal trials have been published for consultaiton by the expert group looking at the subject.

The Post-corroboration Safeguards Review, under former High Court judge Lord Bonomy, is suggesting a number of exceptions where corroboration will still be required, and new rules on the size and majority voting by juries, among a series of possible measures on which views are invited.

Supported by an academic research project, a summary of whose work appears as an appendix to the paper, the group was appointed by Justice Secretary Kenny MacAskill following sustained criticism of his push to abolish the corroboration rule. Mr MacAskill maintains the rule prevents convictions being properly brought in cases such as sexual assault and domestic violence, but opponents fear a rise in miscarriages of justice if convictions can be obtained on the evidence of only one witness. The Scottish Parliament backed the Justice Secretary by a narrow majority at stage 1, but he promised that the abolition provision would not take effect until Lord Bonomy had reported and the Parliament had considered his recommendations.

Key suggestions on which the review seeks comment include:

• Dock identification should be replaced by a pre-trial visual identification procedure, subject to exceptions to be finalised but including where identification is not in issue or the accused fails to co-operate in pre-trial procedure.
• Corroboration should still be required in cases where a confession would otherwise be the sole evidence; a separate question asks what should constitute a special knowledge admission.
• It should not be possible to convict on a single piece of hearsay evidence.
• Juries might be given written directions. 
• Statute-based codes of practice should be devised for police investigations, including that as a general principle, all questioning or interviewing of a suspect should be recorded by audio visual means – with what consequences for a breach?
• The rules providing for the making of a submission of no case to answer need to be reconsidered.
• Jury verdicts should no longer be by simple majority – but that leaves a range of possibilities from a unanimity rule to different sizes of qualified majority. It also raises the question whether the same number of jurors required for a guilty verdict should also be required to return an acquittal verdict.
• There is merit in moving to a jury of 12 rather than 15.
• While no view is expressed at this stage, the question is raised whether there should continue to be alternative acquittal verdicts of not guilty and not proven.

The paper concludes with general questions about other issues that consultees might want to raise.

Commenting for the Law Society of Scotland, Colin Dunipace of the Criminal Law Committee said the review group had done "very thorough work".

He continued: “We are pleased to see that concerns we, and others, raised in relation to abolishing the requirement for corroboration are to be addressed as part of the consultation. These include the size of the jury and majority required to return a guilty verdict, dock identification, and whether a judge should be able to remove a case from a jury, on the basis that no reasonable jury could be expected to convict on the evidence before it.

“The consultation is a critical part of the current reform process and offers an opportunity to shape the criminal justice system for the future. It is vital that all those involved in the criminal justice system, whether they are part of the legal profession defending or prosecuting those accused of a crime, are part of the judiciary or represent victims of crime, continue to be part of the dialogue on improving and modernising our criminal justice system. We must also ensure that can be no scope for an increased risk of miscarriages of justice within any proposals for reform.”

Click here to view the consultation paper. The deadlline for responses is 28 November 2014.