Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
more persuasive than a multiplicity of witnesses. The obvious example iswhen the judge or jury is considering the testimony of a single independent orimpartial eye-witness, whose character cannot be impugned, as distinct fromlistening to members of a rival gang in a street fight or feuding neighbours in apublic order debacle.7.2.44 A third argument is that requirement for corroboration is frequentlymisunderstood by lay persons and lawyers, not least judges. It is an artificialbar to prosecution and conviction because of its restrictive method of lookingat the quantity of the evidence without reference to its quality. The system isskewed by prioritising quantity over quality.7.2.45 As outlined above, elaborate legal theories, unique to Scotland, have beendevised over recent years in an attempt to fit an archaic requirement intotoday’s reality. These have included the division of facts into differentcategories, viz.: crucial or essential, evidential and procedural so that only theformer require to be corroborated. They include the idea that distress iscorroborative of the use of force or a lack of consent in sexual offences. Thisis not only difficult to explain clearly to a jury in the context of a real case, itis highly doubtful whether a jury, even with its collective intelligence, canfully grasp the legal nuances of the judge’s directions.7.2.46 The application of the principle in Moorov is yet another example of where thelaw has become stretched. It becomes highly artificial where the events are280
years apart 72 . Furthermore, especially where there are several differentincidents involving different complainers and, quite possibly, differentcategories of crime over prolonged periods, it is very difficult to give a jurydirections which are both comprehensible and comprehensive. This isparticularly so where an acquittal on one or more charges must result, as amatter of law, in acquittal on some but not all others.7.2.47 Different judges have different approaches to corroboration. This problemmay have become particularly acute since the abolition of corroboration incivil cases. Since most judges and sheriffs are appointed after many years ofpractice as advocates or solicitors, they may, if they practised solely in thecivil law, be applying a rule of law of which they have had little or noexperience and little knowledge at all beyond the content of long forgottenlectures at University or newly read academic texts and precedents.7.2.48 It is by no means apparent that the requirement provides any more consistencythan an alternative approach, based on quality, would bring. Althoughcorroboration can provide an objective minimum “baseline” for judgesconsidering whether to sustain a “no case to answer” submission, at the risk ofunnecessary repetition, it remains the position that judges can have verydifferent views on what constitutes corroboration or sufficiency in general in aparticular case 73 .72 AK v HM Advocate [2011] HCJAC 5273 hence the introduction of Crown appeals in the Criminal Procedure (Scotland) Act 1995 ss 97A etseq and 107A et seq following the “World’s End” murder trial (HM Advocate v Sinclair, unreported,High Court, 10 September 2007; on the criticism of which see Di Rollo: “Legitimate Inference vIllegitimate Speculation” 2008 SCL 151) and Mackintosh v HM Advocate 2010 SCCR 168 and O’Harav HM Advocate 2009 SCCR 629281
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years apart 72 . Furthermore, especially where there are several differentincidents involving different complainers <strong>and</strong>, quite possibly, differentcategories of crime over prolonged periods, it is very difficult to give a jurydirections which are both comprehensible <strong>and</strong> comprehensive. This isparticularly so where an acquittal on one or more charges must result, as amatter of law, in acquittal on some but not all others.7.2.47 Different judges have different approaches to corroboration. This problemmay have become particularly acute since the abolition of corroboration incivil cases. Since most judges <strong>and</strong> sheriffs are appointed after many years ofpractice as advocates or solicitors, they may, if they practised solely in thecivil law, be applying a rule of law of which they have had little or noexperience <strong>and</strong> little knowledge at all beyond the content of long forgottenlectures at University or newly read academic texts <strong>and</strong> precedents.7.2.48 It is by no means apparent that the requirement provides any more consistencythan an alternative approach, based on quality, would bring. Althoughcorroboration can provide an objective minimum “baseline” for judgesconsidering whether to sustain a “no case to answer” submission, at the risk ofunnecessary repetition, it remains the position that judges can have verydifferent views on what constitutes corroboration or sufficiency in general in aparticular case 73 .72 AK v HM Advocate [2011] HCJAC 5273 hence the introduction of Crown appeals in the Criminal Procedure (Scotl<strong>and</strong>) Act 1995 ss 97A etseq <strong>and</strong> 107A et seq following the “World’s End” murder trial (HM Advocate v Sinclair, unreported,High Court, 10 September 2007; on the criticism of which see Di Rollo: “Legitimate Inference vIllegitimate Speculation” 2008 SCL 151) <strong>and</strong> Mackintosh v HM Advocate 2010 SCCR 168 <strong>and</strong> O’Harav HM Advocate 2009 SCCR 629281