Report and Recommendations - Scottish Government

punishments than those exigible on full proof 36 . The continuing influence inScotland of Romano-canonical rules of evidence remained considerable at thattime 37 . In Europe, with society no longer regarding torture as acceptable, andit becoming recognised that the requirements of proof were too high indifficult cases, the half proofs became sufficient on their own for convictionsin all but capital crimes 38 . For reasons which are not entirely clear, Scotlanddid not follow this route. Rather it seems to have become stuck, so far as thegenerality is concerned, with the law as stated by Hume at the end of theeighteenth century.7.1.14 The modern systems of Europe in the 18th and 19th centuries developedfurther. Instead of expecting the judge to apply the objective criteria of the iuscommune as an automaton, advances in thinking changed the approachentirely. Provided society could ensure that its judges were learned,reasonable and impartial, the essence of proof of guilt would involve thesubjective persuasion of the trier of fact. The test would become, in French,“l’intime conviction” and, in German, “freie Beweiswürdigung”. This is theantithesis of a system with formal rules of evidence, including a requirementfor corroboration. Instead, there are no rules of proof and conviction dependsupon the view of the judge, or subsequently a jury 39 , having heard all relevantevidence placed before the court.36 Hume ii 383 referring to Bisset and Currier, July 1705 and Clarke, June and July 170537 see Jackson : The Memorials in Haggart and HM Advocate v Hogg and Soutar, 1738 in 35 StairSociety 221, memorial for Hogg at p 250 under reference to Julius Clarus at p 254, and ProsperFarinatius at p 25538 Constitutio Criminalis Theresiana (1769), also referred to in Langbein (supra) p 5039 see, e.g. the direction to a Belgian jury about being “inwardly convinced” in Taxquet v Belgium 16November 2010 (no. 926/5) para 29248