Corroboration has been part of the law of Scotland for many, many centuries. The corroborative requirement used to apply in civil cases, and not just criminal cases. The requirement for corroboration in civil cases was abolished on 3 April 1989 when section 1 of the Civil Evidence (Scotland) Act 1988 entered into force. The Criminal Justice (Scotland) Bill currently before the Scottish Parliament will see the end to corroboration in criminal cases as well.
The abolition of Corroboration in Scottish Civil cases came following a lengthy process; it began with Memorandum 46 on the Law of Evidence published by the Scottish Law Commission in 1980, which resulted in two reports. The first was report number 78 (published in 1983), entitled “Report on Evidence in cases of Rape and Other Sexual Offences”. That report resulted in Sections 141A, 141B, 346A and 346B being inserted into the Criminal Procedure (Scotland) Act 1975 (later replaced by the present statute governing criminal procedure in Scotland: the Criminal Procedure (Scotland) Act 1995) by virtue of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. The second report was number 100, which was published in 1986, entitled “Evidence: Report on Corroboration, Hearsay and Related Matters in Civil Proceedings”. There was also a research paper by Sheriff I D MacPhail (chapters 1-5; 6-15; 16-19 and 20-25) which considered in detail the Law of Evidence in Scotland at that time.
In essence, the major reform to the Law of Evidence in Civil cases through the Civil Evidence (Scotland) Act 1988 followed an intense and lengthy period of scrutiny by the body established by law to look at reforms to the Law of Scotland. The abolition of corroboration in Scottish criminal cases is a major reform. It was inserted into a Government Bill following a brief review by a judge and a number of short consultations on Criminal Evidence and Practice (the Carloway Review). A process frequently described as an “emergency” by the Cabinet Secretary for Justice, Kenny MacAskill MSP, following the Supreme Court’s decision in Cadder v HM Advocate.
As I have already mentioned, the abolition of corroboration in Scotland is a significant piece of reform. Many areas of Criminal Evidence depend, entirely or significantly, upon there being a requirement for Corroboration. For example, in Holland v HM Advocate, the existence of the requirement for corroboration was an important factor in the Court’s determination that dock identification did not breach Article 6 of the European Convention on Human Rights. With Corroboration playing such a significant role in the Law of Evidence in Scotland, it is important that the effects of its abolition are properly considered. It is also essential that all the necessary changes to the Law of Evidence that require to be made, are made at the same time and not in various bits of emergency legislation like the disaster that was the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, or thorough piecemeal reforms which are required following the identification of yet another problem with criminal procedure arising out of the abolition of corroboration.
While I believe Corroboration is an important aspect of our system that ought to be retained, I could foresee it being removed without any real problem to the procurement of a fair trial. However, I can only see that if it is done in the context of a properly considered report that doesn’t just look at changes that could be made to the system, but one which has also adequately considered what other changes might have to accompany those changes to ensure that the system remains fair and balanced. Removing corroboration from Scottish criminal procedure has the capability of reducing the conviction or acquittal of a person down to nothing other than the credibility of the complainer against the credibility of the accused. That is an unsatisfactory position when a conviction can result in the loss of a person’s liberty for a very long time.
We cannot allow another ‘Cadder’ situation to, which undoubtedly had a significant impact on the ability of complainers to obtain justice because of the procedural errors in the Scottish justice system. If we are to make such a fundamental change to our justice system, we must ensure that it is done in a way that ensures any consequential changes are also made to protect the rights of both complainers and accused persons.