Corroboration in Scots law : "archaic rule” or “invaluable safeguard”?

Nicolson, Donald and Blackie, John (2013) Corroboration in Scots law : "archaic rule” or “invaluable safeguard”? Edinburgh Law Review, 17 (2). pp. 152-183. ISSN 1364-9809

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    Abstract

    In 2010 in Cadder v HM Advocate the Supreme Court held that Article 6 of the European Convention on Human Rights (ECHR) entitles all suspects to consult a solicitor before and during police questioning, as well as to be informed of this right. It immediately caused ripples in the Scottish criminal justice pond which may grow to tidal wave proportions, with some worrying that the decision may even leave criminal suspects worse off than before. Thus the legislation responding to Cadder doubled the existing six hour period of detention allowed for police questioning and empowered the police to apply for a further twelve hours. Potentially more significant are the recommendations of the Carloway Review, commissioned to “review key elements of Scottish criminal law and practice in the light of [Cadder].” A year later it reported on a wide variety of issues, including the law on arrest and detention, custody periods, the giving of legal advice, police questioning, child suspects and other vulnerable witnesses, the general test of evidential sufficiency, “mixed” statements, drawing adverse inferences from reliance on the right to silence, as well as issues relating to appeals. Many of the Report’s recommendations have been received positively, notably those to limit detention to 12 hours, and to retain a robust right to silence. By contrast, a veritable storm of controversy has met its recommendation to abolish the requirement of corroboration on the basis that it is “an archaic rule that has no place in a modern legal system where judges and juries should be free to consider all relevant evidence and to answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled”. Fairly predictably, this was welcomed by Government lawyers and some police organisations who were joined by women’s groups and more tentatively by some academics. But, as Gordon predicted almost twenty years ago, and Lord Carloway expected, the requirement has been “defend[ed] religiously [as] one of the most notable and precious features of Scots criminal law” by lawyers, judges, academic and human rights campaigners, who have questioned whether abolition will in fact save costs and have the predicted positive impact on conviction rates in sexual and domestic violence offences. Instead, they warn that removing such a “cornerstone” of the law will lead to many unintended problems, take years to bed in and, most crucially, threaten civil liberties. Nevertheless, despite the overwhelming view that such a momentous step requires greater consultation and consideration, and a far more convincing case than that provided by Lord Carloway, the Scottish Government declared itself persuaded and, although setting up a consultation process, later announced its intention to introduce a bill to give effect to the Carloway Review including its recommendation to abolish the corroboration requirement. This article seeks to evaluate whether it should have been so easily persuaded by Lord Carloway, and, if not, whether a convincing alternative case for abolition could have been made. We will also consider whether, as the Scottish Government seems now to have accepted, that Lord Carloway was wrong to dismiss the need to replace the requirement with safeguards compensating for the loss of the protection against miscarriages of justice that it supposedly provided. In doing so, we will aim to go beyond the often highly rhetorical and sometimes misleading, unfounded and even illogical arguments seen on both sides of the debate, and, by adopting a multi-disciplinary approach, ground the debate in a more theoretically and empirically informed understanding of the criminal justice process.