Report and Recommendations - Scottish Government

persuade the populace of the validity of the system. The Romano-canonicalrules of proof did this by insisting, for proof of guilt, that there be either aconfession or the testimony of two witnesses speaking to the deed alleged.Such a system, which did not permit proof by circumstantial evidence alone,eliminated, to a substantial degree, subjective decision making in favour of thejudicial application of objective criteria 28 .7.1.10 It has been suggested that the requirement, along with the exclusionary rulesrelative to categories of witness, was based on a distrust of juries 29 . But, inmost systems where the rule applied, it was mistrust of the professional judgerather than the jury which was the concern. Yet in Scotland, unusually, it wasnot a judge but the jury that superseded the ordeal in cases of serious crime 30 .Nevertheless, as distinct from the position in England and Wales, where therewere no formal rules on sufficiency of evidence, because the jury woulddecide guilt from their own local knowledge 31 , corroboration, as a formalrequirement of proof, took root.7.1.11 The function of the requirement is well summarised by Langbein 32 :“The Roman-canon law of proof developed in the Middle Ages toserve the needs of the relatively weak governments thenemerging. ...the system of statutory proofs was, for all its rigidity, agreat advance in its day … It permitted the officialization andrationalization of criminal procedure. In place of the ordeals thatpurported to invoke the judgment of God, the Roman-canon procedure28 see Langbein: Torture and the Law of Proof p 629 Gordon: “At the Mouth of Two Witnesses’: Some comments on corroboration” at p 3930 see Cameron: Argyll Justiciary Records Vol 1, 12 Stair Society, p xvii; see generally Willock: TheOrigins and Development of the Jury in Scotland, 23 Stair Society31 this appears also to have been the case in Scotland at one time32 (supra) p 55246