Report and Recommendations - Scottish Government

Consideration7.3.18 There is a view that a judge at first instance should be entitled to acquit anaccused in a solemn case if he/she considers that it would be “unreasonable”for a jury to return a verdict of guilty on the evidence adduced at trial. This isa paternalistic, perhaps even patrician, approach to the criminal justice system.It pre-supposes, erroneously in the Review’s mind, the superiority of thesingle judge over the fifteen person jury in the skill of converting evidenceinto findings of fact. If the system is to continue to put its faith in juries, as theprimary finders of fact in serious cases, it should not permit a single judge tooverride, ab ante, the conclusion of a jury on the crucial facts in situationswhere there is some evidence, no matter its perceived quality, describing thosefacts. On that basis, it is appropriate that, at trial level, the test for thestatutory “no case to answer” and common law “insufficiency” submissionsshould remain that of pure legal sufficiency.7.3.19 If the requirement for corroboration were to be abolished, there is no need forany further change to the existing law on sufficiency of evidence at the trialstage. The issue for the trial judge would be the same as it is at present, exceptthat there would be no need for corroboration. The trial judge should not bepermitted to sustain a “no case to answer” submission or a submission made atthe conclusion of all the evidence on the basis that he/she does not consider it“reasonable” for the jury to return a verdict of guilt because of the quality ofthe testimony adduced. It should be enough, therefore, that there has been298