Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
y many outside the world of criminal legal practice. They are applieddifferently by courts, depending upon their own experience in that practice.7.2.57 If corroboration were to be abolished, it might reasonably be anticipated thatthere will be some judicial resistance in line with that experienced when itceased to be a requirement in personal injuries cases. This may take the formof the court taking the view that, in certain categories of case, or in all caseswhere there is no corroboration, a special warning requires to be given tojuries about the dangers of conviction. Such a warning would be similar tothat currently given in cases of eye witness identification. It will be important,following especially the experience in the other jurisdictions referred to, tomake it clear that, although a trial judge may, at his/her discretion in aparticular case, give a jury such assistance, by way of warning or otherwise, asis appropriate in relation to the assessment of the credibility and reliability ofwitnesses 81 , the law does not require that a warning be given in any casesimply on the basis that there is a lack of corroboration.RecommendationI therefore recommend that:⎯ the current requirement for corroboration in criminal cases beabolished; and⎯ in solemn prosecutions where there is no corroboration of testimony,there should be no requirement on the judge to warn the jury of anydangers perceived purely as a consequence of the absence of suchcorroboration.81 see Practice Note, 18 February 1977, issued by LJG (Emslie)286
7.3 SUFFICIENCY OF EVIDENCEIntroduction7.3.1 The test of what amounts to “sufficient evidence” for a person to be convictedof a crime is a matter of law. It is not concerned directly with whethertestimony is truthful or reliable. There may be sufficient evidence, yet thejudge or jury may elect to acquit an accused because of the quality of thatevidence. In Scotland, sufficiency is intimately, if not quite exclusively,bound up with the requirement for corroboration. As has already been noted,because it is a legal requirement in almost all cases, corroboration isconsidered by police officers as essential before deciding whether to report allbut the most serious of cases. It is considered by the procurators fiscal indetermining whether to serve a complaint or to request the sheriff to commit aperson to prison on petition. It is assessed by the Advocates Depute indeciding whether to authorise an indictment. However, none of theseprocedures normally involve any judicial scrutiny. The first decision which acourt is likely to take in relation to corroboration occurs when a submission ismade to it, at the end of the Crown case in either summary or solemnproceedings, that there is “no case to answer” because of a lack of sufficiencyof evidence in a formal sense 1 .7.3.2 Were the requirement for corroboration to be abolished, the considerations tobe taken into account by the police officer and the Crown authorities may be1 1995 Act ss 97 and 160287
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7.3 SUFFICIENCY OF EVIDENCEIntroduction7.3.1 The test of what amounts to “sufficient evidence” for a person to be convictedof a crime is a matter of law. It is not concerned directly with whethertestimony is truthful or reliable. There may be sufficient evidence, yet thejudge or jury may elect to acquit an accused because of the quality of thatevidence. In Scotl<strong>and</strong>, sufficiency is intimately, if not quite exclusively,bound up with the requirement for corroboration. As has already been noted,because it is a legal requirement in almost all cases, corroboration isconsidered by police officers as essential before deciding whether to report allbut the most serious of cases. It is considered by the procurators fiscal indetermining whether to serve a complaint or to request the sheriff to commit aperson to prison on petition. It is assessed by the Advocates Depute indeciding whether to authorise an indictment. However, none of theseprocedures normally involve any judicial scrutiny. The first decision which acourt is likely to take in relation to corroboration occurs when a submission ismade to it, at the end of the Crown case in either summary or solemnproceedings, that there is “no case to answer” because of a lack of sufficiencyof evidence in a formal sense 1 .7.3.2 Were the requirement for corroboration to be abolished, the considerations tobe taken into account by the police officer <strong>and</strong> the Crown authorities may be1 1995 Act ss 97 <strong>and</strong> 160287
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