Report and Recommendations - Scottish Government

neither a statutory nor a common law submission is concerned with the qualityof the evidence (e.g. the credibility and reliability of witnesses). Both areconcerned solely with whether there is corroborated evidence available,whatever its quality, to prove the case 10 . Despite the efforts of some defencecounsel and agents, and the apparent belief of some judges and sheriffs, it hasnever been competent at common law or under the statute to argue that a caseshould be withdrawn from a jury on the basis that no reasonable jury couldconvict on the evidence.The contrary view developed from anuncharacteristically loose ex tempore dictum from the Lord Justice General(Emslie) in Reilly v HM Advocate 11 to the effect that evidence of identificationcan be insufficient in law to corroborate if it did not reach a certain level ofcharacter, quality and strength. The dictum was rapidly departed from 12 . Theposition has now been made clear in statute, whereby 13 :“A judge has no power to direct the jury to return a not guilty verdicton any charge on the ground that no reasonable jury, properly directedon the evidence, could convict on the charge”.This is in contrast to the powers of the High Court in its appellate capacity toquash a conviction on the basis of “unreasonable verdict” 14 .7.3.5 At present, therefore, the law is that, in solemn cases, if there is sufficient, thatis to say corroborated, evidence that a crime has been committed and the10 Williamson v Wither 1981 SCCR 24111 1981 SCCR 201, LJG (Emslie) at 20412 “explained” in Rubin v HM Advocate 1984 SLT 369, Lord Cameron at 373, approved in Robertson vHM Advocate 1990 SCCR 14213 1995 Act s 97D, introduced by the Criminal Justice and Licensing (Scotland) Act 2010 s 73; theview of Orr: “No reasonable jury” 2011 SLT (news) 9 is correct14 1995 Act s 106, see AJE v HM Advocate 2002 JC 215 , see below290