Abusing Corroboration

The Solicitor General of Scotland has recently put back on the table the idea of the abolition of corroboration in Scots Criminal law. The reason given to the Press is that this might lead to more convictions in domestic abuse cases.

I have dealt with victims of domestic abuse as a practising lawyer for more than a decade. I am delighted that the government would like to do more to stop abuse. As well as encouraging the continued good work of Women’s Aid, much more needs to be done about the almost invisible cases of abuse against males. Abuse against males is often treated as a joke, and it is only recently that any form of support organisation has been set up1. Victims are often reluctant even to disclose the facts to their solicitor in confidentiality; many will accept the stigma of being claimed to be the abuser in the relationship as a price of ending the abuse against them rather than admit the truth.

Also in rural Scotland, victims of abuse in same sex relationships are very reluctant to report for fear of publicising their sexuality; despite all the legal equalities they still seem to feel they will be subject to some social stigma.

My experience is that very few females, and even fewer males, want a prosecution against their abuser, they just want the abuse to stop. Generally, this is done through the civil courts using an interdict. If the goverment is serious about assisting abuse victims, I would strongly commend the reversal of the decision stopping automatic “emergency legal aid” in such cases thereby allowing an order to be obtained immediately when required, instead of waiting days or even weeks for a decision.

Perhaps it is in the public interest that prosecutions should be carried out against the will of the victim – for that very reason in Scotland we have independent prosecutions carried out by the Crown Office and Procurator Fiscals. However from a practical point of view, with a victim who still has feelings of affection or love towards their abuser, who will refuse to give evidence against him or her, who will minimise their faults or even lie to protect them, it will be extremely difficult to succeed in a “hidden” assault within the home with or without corroboration.

But let us consider exactly what corroboration is and why we have it. Corroboration is the rule that no conviction can be obtained on a single piece of evidence, there must be another piece of evidence that supports the first. Where a crime consists of various steps or elements, each element must usually be evidenced from two sources.

So for example, Police officers in Scotland usually patrol in pairs, so that two people can speak to having seen an event. Alternatively a single person’s testimony can be backed up with CCTV footage which corroborates what they say.2 Likewise, what one person says can be backed up by physical or forensic evidence, or indeed if there were no witnesses a case can be established purely from other evidence.

This brings us to the other rule in corroboration, known as the Moorov doctrine. The essence is that corroboration can take place across multiple similar events, proving what might be called a “course of (criminal) conduct”. The original case involved sexual assault against a number of victims, but subsequent cases have involved e.g. a serious of razor attacks against different people.3 Technically each individual act is not wholly corroborated but “the whole thing” is. Now this is an area which could benefit from some legislation to tighten the rules up and make them more certain. If the Scottish government would like to propose this type of improvement to the rule of corroboration, I am sure many lawyers would be delighted to make suggestions how this might be achieved.

However, why do we have corroboration? Arguably it grew out of the Enlightenment era, and the idea of scientific proof. In science a mere assertion that something is true, no matter how eminent the authority making that assertion, is not acceptable as proof. In most cases science requires any claim needs to be repeatable and verifiable; if you describe that a certain sequence of events has a certain outcome, others have to get the same results copying those events. Now how does this match with criminal offences, which one cannot repeat? Well certain fields of science have the same problem: if you are an astronomer reporting on seeing a particular event, it is possible that someone else sees it , or no-one else does. If two people independently observe the same thing (or if there is photographic evidence to back up the “eye-witness”), this will be accepted into the record ; if no-one else does, subsequent observations will be carried out to “back-track” the later observations to confirm that there is evidence supporting the original observation.

So in the same way the “science” of Scots criminal law demands that claims be verified by multiple pieces of evidence, to demonstrate the case “beyond reasonable doubt”. It is worthwhile remembering that in a Scottish criminal case, we do not open in court with a statement by the prosecution about what they think happened, they open straight away with the evidence. The idea is that the facts, as proven by the evidence, spell out the story themselves. The role of prosecutor in Scotland is a very skillful one, in which like many other arts the greatest skill of the artist is to hide the skill involved. The voice of the prosecutor, like that of the scientist, is almost unnoticable compared to the corroborated facts which spell out their own conclusion to the exclusion of any other reasonable interpretation.

Now, the principle of corroboration is attacked on various grounds. One is that it is “old fashioned”. Many things are old, or even ancient; this does not mean they need to be replaced, they may be kept so long because they are so valuable or useful.

A second is that Civil cases no longer require corroboration. There are however significant differences between civil and criminal cases. In a civil case the test of evidence is “on the balance of probability” compared with the criminal “beyond reasonable doubt”. That is in the civil case the judge (and jury) are deciding on the two stories presented by both sides of the case. There is not need to look at any other option. In a criminal case, they are looking at the case put by the prosecution against any other conceiveable alternative (the “reasonable doubt”), and there is a presumption of innocence for the accused.  It is therefore right that the criminal court should look for the same standard of evidence that the scientific community looks for “proving” a fact rather than when picking between only two alternatives.

Another objection is that “it prevents getting convictions”. Well forgive me if I an wrong, but I thought the purpose of the court case was not to convict the accused but to convict the guilty accused. If the whole point is merely numbers of convictions, why bother with trials at all?

Further the requirement for corroboration avoids both injustices and unnecessary trials. I have been involved in two cases of false allegation of rape at different times. In both cases the Police took the reports, and as they should, accepted the allegations on the initial evidence.  However, because of the requirement for corroboration, they carried on investigating to gather the additional evidence to secure a conviction. As they did so, they found discrepancies, and pieces of evidence just didn’t add up, then evidence contradicted the original claim, until they came to realise that the allegations were unfounded, and the charges dropped with the men exonerated4. Neither now have any great animosity against the Police, because at the end of the day the Police did their job and proved them not guilty.

But if there was no requirement of corroboration, these stories would have ended very differently. Would the Police continue to invest valuable, and ever more rationed, resources in investigating more once they had enough evidence to take the case to trial? Unlikely. So the cases would have gone to trial. At best the defence would be able to gather the contrary evidence and thousands of pounds per day of public funds would be wasted in a High Court trial. At worst, the defence not having the unique facilities available to the Police to gather and process evidence, these men could have been wrongfully convicted. But as it was, public money was saved and those involved have been left satisfied that, despite great personal inconveniences they suffered, the system works and justice is done.

Now in our neighbouring jurisdiction of England, there have been several high profile cases of miscarriage of justice based on confessions of accused, which Scots have happily pointed at and said “that could never happen here since we have corroboration”. Now the English will respond that they have made legal changes to reduce the possibility of a repeat of those circumstances, and that the fault lies largely on the part of corrupt (or “over-zealous”) individuals dealing with the cases. Fair enough, but it is a simple fact that corroboration would have stopped those cases happening. I have no doubt that corrupt or over-zealous people in Scotland can, even do, cause miscarriages of justice missed under some gap or other in our legal rules but I would prefer to root out and block those gaps rather than open a whole floodgate of potential abuse.

Is the current Scottish Criminal System perfect? Of course not. Will the abolition of corroboration make it better. Absolutely not. It will squander resources which could otherwise be better targeted while at the same time causing miscarriages of justice that would otherwise have been avoided. Yes.

There is certainly a case to be made for looking at the precise operation of the rules of corroboration; if there is to be a proper consultation on the subject there are various technical adjustments which could well help the smooth administration of justice. However the basic principle of corroboration is sound, is a major cornerstone of the Scottish system, and must stay in the interests of Justice.

1. See http://www.mensadviceline.org.uk

2. Which of course means that it would legally be feasible to replace pairs of Police Officers with single Officers with personal mounted video cameras. Of course a camera isn’t so handy assisting with lifting some ned intent on smashing your face in.

3. HMA v McQuade. I’m old enough to also consider the Howden principle to be merely an extension of Moorov.

4. One case the accuser was found to have mental health issues, the other had fabricated the story for revenge and was subsequently convicted of attempting to pervert the course of justice.

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