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Abolishing corroboration – where are we now?

When Justice Secretary Kenny MacAskill announced that he intended to abolish the requirement for corroboration in criminal trials, he started a controversial debate that is still being hotly contested today.

A barrier to justice

The need for corroboration in Scots law means that each piece of evidence against an accused must be backed up by another piece of evidence, such as a witness or forensic evidence. But it has been criticised as archaic and an unnecessary barrier to justice for many victims of crime.

These concerns caused Lord Carloway, in his 2011 review of Scots criminal law, to recommend that corroboration should be removed and provisions to do just that are contained in the Criminal Justice (Scotland) Bill, which was published last June.

Announcing the Bill, Kenny MacAskill explained that:

“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 It is an outdated rule, which can deny victims the opportunity to see those responsible for serious crimes brought to justice.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.”

Support from victim’s organisations

The proposal has been supported by a number of different groups, including Police Scotland, the Crown Office and a range of victims’ organisations, such as Rape Crisis Scotland and Scottish Women’s Aid.

These organisations believe that corroboration disadvantages victims of sexual crime or domestic abuse, where often there is only the victim and perpetrator present when the crime is committed, making it very difficult to obtain the second source of evidence necessary to satisfy the corroboration requirement.

This view is supported by research conducted for the Carloway Review, which looked at 141 cases reported to the National Sex Crimes Unit over six months in 2010 where no action was taken. It found that 95 of those cases – 67% – would have had a reasonable prospect of conviction without the corroboration test.

Opposition from the legal profession

However, other organisations are opposed to the abolition of corroboration. The Law Society of Scotland is concerned that if it is abolished without alternative safeguards being put in place it will lead to an increased risk of miscarriages of justice, and will ultimately threaten the reputation of Scotland’s criminal justice system.

Some safeguards are already contained within the Bill, which outlines that the jury majority for conviction will be changed from a simple majority of eight to two-thirds (10 of 15). The Government believes that this will maintain an appropriate balance between protection for accused persons, protection for victims and witnesses, and public protection.

However, the Law Society is not convinced that this is sufficient, and has called for a further review of corroboration to look in more detail at whether it still has a place in today’s justice system.

Many senior members of Scotland’s judiciary have also expressed their opposition to the proposals, including former high court judge Lord McCluskey.

Recent developments

While the debate continues, there have been a number of recent developments in the progress of the proposals.

Last week the Scottish Parliament’s Justice Committee published its Stage 1 report on the Bill, revealing that it is not convinced that the case has been made to abolish the requirement for corroboration.

It called for an independent review of what other reforms may be needed to ensure that the criminal justice system as a whole contains appropriate checks and balances.

“This Bill includes major reforms of the criminal justice system, including police powers of arrest and holding suspects in custody,” said Justice Committee Convener Christine Grahame MSP. “In the main, the Bill has not been contentious. However, the proposal to abolish the corroboration requirement is a reform which has divided opinion on the Committee.”

At the same time the Scottish Government announced that it had appointed former High Court Judge Lord Bonomy to head up a reference group to consider what additional safeguards and changes to law and practice may be needed when the corroboration requirement is abolished.

The group is expected to take around a year on its deliberations, and the Scottish Government has said that any legislative changes resulting from its recommendations will be taken forward alongside the Criminal Justice (Scotland) Bill.

This is expected to take place in 2015/16.

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