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Preventing Miscarriages of Justice in Scottish Criminal Law

The Post-corroboration Safeguards Review has recently published its proposals to help prevent miscarriages of justice following the abolition of corroboration – the requirement for two different and independent sources of evidence in support of each crucial fact before a person is convicted of a crime – in Scotland. The group, led by former High Court judge Lord Bonomy, was appointed by Justice Secretary Kenny MacAskill after Parliament backed his push to abolish corroboration by only a small majority.

The Justice Secretary has been met with severe criticism from those who believe there will be a rise in miscarriages of justice by obtaining criminal convictions based on only one piece of evidence. On the other hand, Mr MacAskill and supporters of the abolishment strongly believe that in cases where there is often one person’s word against another – for example sexual assault and domestic violence in particular – the rule obstructs successful prosecution and, as a result, prevents justice being done for these vulnerable victims.

In order to reduce the risk of miscarriages of justice, the review has recommended that there should be certain exceptions where the corroboration rule should still be applied, and has also suggested new rules for juries including changes to their size and majority voting.

A spokesperson for the Criminal Law Committee, commenting for the Law Society of Scotland, said: “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.

“The consultation is a critical part of the current reform process and offers an opportunity to shape the criminal justice system for the future… We must also ensure there can be no scope for an increased risk of miscarriages of justice within any proposals for reform” he added.

The key suggestions from the Post-corroboration Safeguards Review include:

  • Replacement of dock identification in favour of a pre-trial visual identification procedure;
  • In cases where a confession would otherwise be the sole piece of evidence, corroboration should still be required. The same should also apply to make it impossible to convict on a single piece of hearsay evidence;
  • Reform of the rules involved in a no case to answer submission should be considered;
  • Convictions based on a simple majority jury verdict should no longer be possible;
  • There could be advantages to moving jury size from 15 to 12; and
  • Although no view was expressed, the question of the ‘not proven’ verdict was also raised.

It will now be for Parliament to consider the review’s recommendations, after the Justice Secretary promised the abolition provision would not take effect until scrutiny of Lord Bonomy’s report had taken place.

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