Corroboration and rape

I have just watched the Newsnight Scotland piece relating to concerns raised by the Lord Advocate, Elish Angiolini QC, that the current requirement for corroboration in Scots Law in relation to sexual offence cases could be a potential point of challenge under the Human Rights Act.  During the course of the piece several matters were raised that cause me great concern.  Before I begin on those I wish to explain corroboration for anyone who may not be familiar with it.

In Scotland, the prosecution must prove its case beyond reasonable doubt before a court can convict the accused.  That in itself is not a difficult issue and is present in the other UK jurisdictions.  In Scots Law, in order for the crown to succeed it must lead sufficient corroborated evidence as to the guilt of the accused in beyond reasonable doubt.  Corroboration does not require the crown to produce at least two witnesses; rather it requires the crown to produce evidence from at least two independent sources in order to prove each essential factual element of its case (i.e. the factual elements that relate to the charge(s) against the accused).  The sources are wide and many and include oral evidence from a person as to what they witnessed or heard, forensic evidence (fingerprints, blood etc.), CCTV and the list continues.

A simple admission from the accused is not enough to convict them in a Scottish Court.  The admission of the accused would be one source of evidence, but it must also be corroborated by another source of evidence.  It is entirely irrelevant how many times the accused makes their confession or how many different people that confession is made to as the evidence still originates from one source (the accused).  There is, however, an exception to this and that is where the accused’s confession contains details that only the perpetrator of the offence would know.  The police tend to be a lot less forthcoming with information about a crime in Scotland than their colleagues south of the border as the more information that exists in the public domain the harder it becomes to corroborate a confession.  Even the worst defence agent in the country would be able to destroy a prosecution that relied solely on a confession containing only details available to the public!

The requirement of corroboration provides an important safeguard in Scottish criminal prosecutions.  It significantly reduces the chances of an innocent person being wrongly convicted.

Now I do not propose to spend huge amounts of time considering the wider issue of corroboration that will probably come in a future post.  I will say however that in my view the requirement of corroboration in Scots Law is something that must be kept if we are going to retain a criminal justice system where we can have confidence that those convicted are guilty (of course mistakes do still happen, no system is perfect).

This post is looking at a complex and emotive subject: Rape.  The whole thrust of the Newsnight item was to do with the low conviction rate in cases of rape and in particular the barrier that the requirement of corroboration puts up in relation to those cases.

The constant push to increase the number of rape convictions does not sit particularly well with me.  I admire much of the work that Rape Crisis do, but I do find myself getting more than a little annoyed with them over their constant desire to see more people convicted of rape.  I am sure we are all in agreement that rape is an utterly abhorrent offence and those who commit such an offence should be punished for it.  However, I am concerned that many campaigners (and even those in a position of power) are advancing the idea that more convictions are obtained for rape at any cost: even the reputation and life of an innocent person accused of rape.

I have previously argued on this blog that those accused of rape should be kept anonymous until such times as they are convicted.  I have formed such an opinion based on the damage that is done to a person’s life who is wrongly accused of rape.  Partly, I suggest, this is down to the mantra that is pushed by the likes of Rape Crisis that too many rapists are getting off.  Even once acquitted there is a certain stigma that remains, a “no smoke without fire” idea clouds the judgement of people and those people’s opinions of the accused.   It is for these reasons that I am cautious about how we go about increasing the number of rape convictions.  The conviction of an innocent person for any crime is deplorable, but when the crime is of such a serious nature and the effect of such a conviction (even after acquittal on appeal) can completely ruin the life of the individual concerned we must be ever more careful.

Like most people in society I would like to see those guilty of rape be convicted and punished for their deed.  The impact their crime has upon their victim is enormous and can significantly impede their life.  The emotional and psychological problems that can come after being subjected to such an abhorrent and degrading act warrant the severe punishment that exists for rape within our legal system.  However, I would not wish to see this at the expense of innocent people.

The idea that the protection of corroboration should be removed from rape cases is not something I would wish to see, it may well increase the number of convictions for rape; however, I would be concerned that the increase of convictions included a significant number of people who are innocent.  The increase in the number of convictions may please the Lord Advocate, Rape Crisis and others but may have a significant detrimental impact on the overall confidence of the criminal justice system.

Rape (and indeed most other sexual offences) is notoriously difficult to prosecute as the evidence can be very ambiguous.  Forensic evidence alone cannot prove rape and indeed the complainer’s and the accused’s version of events may equally explain and be supported by the forensic evidence.  A significant amount of corroboration is needed in order to secure a conviction for rape.  However, the central issue (as I see it) with the difficulty in obtaining a conviction for rape cannot be solved by getting rid of the need for corroboration, as it then simply comes down to who the jury believe more: the accused or the complainer.  That is not, by any means, an objective test and Scots Law requires an objective test to be satisfied for a conviction.  Corroboration may actually serve to help establish which version of the same facts presented in court is the truth.  Issues around ambiguity can be resolved by leading evidence that corroborates what one side is saying over the other.

One final matter I wish to raise in this post is what Paul McBride QC had to say on the matter in the Newsnight Scotland studio.  The number of convictions can be somewhat misleading.  His examples included a person convicted of 20 rapes over a number of years would only be recorded as one conviction (despite there being 20 separate charges to the indictment) and that a person convicted of rape and murder would have their conviction recorded as a murder conviction (presumably because Murder is the more serious charge on the indictment).  When debating the issue of the low numbers of rape convictions, and I believe we should as it is a matter of public interest, there must be an effort made to get accurate statistics as to just how many rape complaints result in a person being convicted rather than just the number of indictments (which can contain several similar charges or a huge number of different charges) which result in a conviction.

5 thoughts on “Corroboration and rape

  1. Just to be quibble, but it isn’t quite right to say that corroboration is required to prove “to prove each factual element of its case”. The factual elements of a *case* might be much broader, while the requirement for corroboration only attaches to the facta probanda, the essential facts of the charge. I’m sure you know this, but those without a background in evidence might have understood the way you put it as imposing a much bigger corroborating duty on the Crown than is in fact the case.

    On the actual outcome of cases once they get into Court, you may be interested in the following data:

    http://www.scotland.gov.uk/Publications/2011/01/20092640/7

  2. I’m glad I stumbled across your piece. I found it very interesting and informative.

  3. Pingback: Law Society of Scotland & SHRC respond to Carloway Review | ScotsLawBlog

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