Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
two “guiding principles” which it considered ought to be followed in relationto the reform of the law of evidence 79 :“(1) The law should be simplified to the greatest degree consistentwith the proper functioning of a law of evidence;(2) As a general rule all evidence should be admissible unless there isgood reason for it to be treated as inadmissible”.7.2.53 This view is consistent with that of this Review and with modern thinking thatit is a hindrance, rather than an advantage, to have to apply rules whichprohibit a judge or jury from reaching a just conclusion based upon a liberalconsideration of all relevant testimony. Were that thinking to be transferred tocriminal cases, it would amount to an endorsement of Professor Wilkinson’sopinion that the need for corroboration 80 :“is at odds with the rejection of other safeguards formerly employedand goes against the modern emphasis on the free assessment ofevidence unencumbered by restrictive rules”.7.2.54 It is worthy of comment that the ultimate abolition of the requirement forcorroboration in all civil cases, along with the general admission of hearsayevidence quantum valeat, has not met with any substantial adverse comment.Conclusion7.2.55 The Review is in no doubt that the requirement of corroboration should beentirely abolished for all categories of crime. It is an archaic rule that has noplace in a modern legal system where judges and juries should be free to79 100th Report para 1.380 Wilkinson: Evidence 204 referring to the precept “testimonia ponderanda non numeranda sunt”; andsee Gordon: “At the mouth of two witnesses…” (supra) p 39284
consider all relevant evidence and to answer the single question of whetherthey are satisfied beyond reasonable doubt that the accused person committedthe offence libelled. The argument is not that such a reform would bringScotland into line with the rest of Europe and the Commonwealth. It is that itwould bring Scots law into line with modern, and almost universal, thinkingon how to approach evidence in criminal, and indeed all other, cases.7.2.56 The particular arguments in favour of abolition are set out above and it is notnecessary to repeat them. However, there are certain highlights. First, inpractice, there is no evidence or even anecdote to support the idea that theformal requirement for corroboration reduces miscarriages of justice. Inparticular, there is nothing to suggest that Scotland has a lower miscarriage ofjustice rate than any other jurisdiction in the civilised world. Secondly, therequirement creates miscarriages of justice by preventing cases, where there isonly one witness to speak to the crime being committed or the suspectcommitting it, from being prosecuted. This is unjust. If a person is the victimof a criminal act and is capable of identifying the perpetrator, that person’scase should be judged on the quality of the testimony and its progress shouldnot depend on a formal requirement, compliance with which is often matter ofchance. Similarly, it may be that the complainer can speak to none of thesematters by reason of the effects of the crime upon him/her, yet there is a singlecredible and reliable witness who can. A system of justice, which does notpermit the prosecution of the alleged offender in such circumstances is, puttingthe matter mildly, an imperfect one. Thirdly, the requirement has developedinto a series of rules which, realistically, are not capable of being understood285
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consider all relevant evidence <strong>and</strong> to answer the single question of whetherthey are satisfied beyond reasonable doubt that the accused person committedthe offence libelled. The argument is not that such a reform would bringScotl<strong>and</strong> into line with the rest of Europe <strong>and</strong> the Commonwealth. It is that itwould bring Scots law into line with modern, <strong>and</strong> almost universal, thinkingon how to approach evidence in criminal, <strong>and</strong> indeed all other, cases.7.2.56 The particular arguments in favour of abolition are set out above <strong>and</strong> it is notnecessary to repeat them. However, there are certain highlights. First, inpractice, there is no evidence or even anecdote to support the idea that theformal requirement for corroboration reduces miscarriages of justice. Inparticular, there is nothing to suggest that Scotl<strong>and</strong> has a lower miscarriage ofjustice rate than any other jurisdiction in the civilised world. Secondly, therequirement creates miscarriages of justice by preventing cases, where there isonly one witness to speak to the crime being committed or the suspectcommitting it, from being prosecuted. This is unjust. If a person is the victimof a criminal act <strong>and</strong> is capable of identifying the perpetrator, that person’scase should be judged on the quality of the testimony <strong>and</strong> its progress shouldnot depend on a formal requirement, compliance with which is often matter ofchance. Similarly, it may be that the complainer can speak to none of thesematters by reason of the effects of the crime upon him/her, yet there is a singlecredible <strong>and</strong> reliable witness who can. A system of justice, which does notpermit the prosecution of the alleged offender in such circumstances is, puttingthe matter mildly, an imperfect one. Thirdly, the requirement has developedinto a series of rules which, realistically, are not capable of being understood285
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