Report and Recommendations - Scottish Government
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Report and Recommendations - Scottish Government

Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government

lx.iriss.org.uk
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12.07.2015 Views

7.2.49 Corroboration is more likely to exist in relation to some offences than others.This is exactly the same consideration as prompted reform of the civil law.Where crimes are usually committed in private, the only potential evidencemay be from the testimony of a complainer. There may be nothing else, orvery little, in the absence of statements made by suspects at interview.Equally, with minor assaults or thefts, where there may also be little evidenceother than that of the complainer, it may simply not be cost effective to put thelevel of effort into investigating such cases, and thereby finding corroboration,as is appropriate to more serious offences.7.2.50 Finally, it is of some note to recognise the role which the requirement ofcorroboration has in the advice given to suspects. There is little doubt that inScotland it plays a major part in the solicitor’s decision to advise his/her clientto say nothing for fear of his/her inadvertently corroborating other evidenceand thereby creating a sufficiency, which would otherwise not exist. Thesituation is, in all cases and in itself, an oddity because it may mean in practicethat whether a person is prosecuted for and convicted of an offence, whichwould be inevitable in other jurisdictions, is actually entirely dependent onwhether he/she elects to respond to questioning. Be that as it may, the advicetendered can place a suspect in a difficult position. It may be felt that a judgeor jury would be more likely to accept his/her account as credible if it wereraised at the earliest opportunity. Yet, the suspect would almost always bewell advised not to speak, at least in situations where there was no obvioussufficiency of evidence.282

Corroboration and the civil law7.2.51 Until relatively recently, the requirement for corroboration was an equallysignificant cornerstone of the civil law. It was one of many rules of evidence,including the requirement of proof by writ or oath, hearsay and variousprescriptions concerning the need for writing, which have almost all beenswept away in recent years. Its demise began with its abolition in personalinjuries litigation 74 . In that class of case, the requirement came to be regarded,at least by some, as a bar to justice, especially in cases where an employee hadbeen alone, or in darkness, when he/she suffered his/her injury 75 . Abolitionwas met with considerable resistance within the senior judiciary 76 . This tookthe form of pronouncements concerning the importance of corroboration in theestablishment of fact, despite the statutory abolition. Thus, it was said, a factcould only be found on the basis of uncorroborated testimony if it weredemonstrated that no corroboration could have been made available 77 .7.2.52 Abolition was ultimately, and this time successfully, extended to all civil casesin 1988 78 . At that time, the Civil Evidence (Scotland) Act eradicated many ofthe other prescriptive rules and the Requirements of Writing (Scotland) Act1995 abolished several others. The Scottish Law Commission had expressed74 Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 s 975 Scottish Law Commission: “Proposals for Reform of the Law of Evidence Relating toCorroboration” para 5; this paper recommended abolition in all civil cases but that recommendationwas not then adopted76 Morrison v J Kelly and Sons 1970 SC 65; See Macphail: Revised Research Paper on Evidence para23.13 et seq77 McGowan v Lord Advocate 1972 SC 68; cf McLaren v Caldwell’s Paper Mill Co 1973 SLT 15878 Civil Evidence (Scotland) Act 1988 s 1283

Corroboration <strong>and</strong> the civil law7.2.51 Until relatively recently, the requirement for corroboration was an equallysignificant cornerstone of the civil law. It was one of many rules of evidence,including the requirement of proof by writ or oath, hearsay <strong>and</strong> variousprescriptions concerning the need for writing, which have almost all beenswept away in recent years. Its demise began with its abolition in personalinjuries litigation 74 . In that class of case, the requirement came to be regarded,at least by some, as a bar to justice, especially in cases where an employee hadbeen alone, or in darkness, when he/she suffered his/her injury 75 . Abolitionwas met with considerable resistance within the senior judiciary 76 . This tookthe form of pronouncements concerning the importance of corroboration in theestablishment of fact, despite the statutory abolition. Thus, it was said, a factcould only be found on the basis of uncorroborated testimony if it weredemonstrated that no corroboration could have been made available 77 .7.2.52 Abolition was ultimately, <strong>and</strong> this time successfully, extended to all civil casesin 1988 78 . At that time, the Civil Evidence (Scotl<strong>and</strong>) Act eradicated many ofthe other prescriptive rules <strong>and</strong> the Requirements of Writing (Scotl<strong>and</strong>) Act1995 abolished several others. The <strong>Scottish</strong> Law Commission had expressed74 Law Reform (Miscellaneous Provisions) (Scotl<strong>and</strong>) Act 1968 s 975 <strong>Scottish</strong> Law Commission: “Proposals for Reform of the Law of Evidence Relating toCorroboration” para 5; this paper recommended abolition in all civil cases but that recommendationwas not then adopted76 Morrison v J Kelly <strong>and</strong> Sons 1970 SC 65; See Macphail: Revised Research Paper on Evidence para23.13 et seq77 McGowan v Lord Advocate 1972 SC 68; cf McLaren v Caldwell’s Paper Mill Co 1973 SLT 15878 Civil Evidence (Scotl<strong>and</strong>) Act 1988 s 1283

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