Scotland's top judge Lord Gill warns Holyrood Justice Committee against scrapping corroboration of evidence justice safeguard

Lord President Brian Gill – ‘good rule’ of corroboration should be retained. SCOTLAND’S top judge the Lord President, Lord Brian Gill, appeared before Holyrood’s Justice Committee yesterday, warning against supporting plans by the Scottish Government to remove the long held safeguard of Corroboration, where evidence in a court of law is needed from two separate sources for a conviction.

Speaking to MSPs on the Scottish Parliament's Justice Committee, 20 November 2013, Lord Gill, the Lord President of the Court of Session, said the rule - which requires that evidence against an accused person must come from more than one source - was one of the "finest features" of the country's justice system.

He told MSPs that only one judge in Scotland, the Lord Justice Clerk Lord Carloway - who recommended abolishing corroboration in his review of criminal law and practice - supported getting rid of the rule, with all other judges opposed to the move.

Lord Gill told MSPs corroboration justice safeguard should be retained (Click to watch)

Giving evidence to msps on the intentions of the Scottish Government to remove corroboration to help the Crown Office secure higher prosecution statistics, Lord Gill told the committee: "I don't think this will improve the quality of justice in Scotland in any way.

"I think there is a very serious risk there will be fewer convictions and I also think that if you make this change in isolation, without looking at the wider picture, there are consequences that at the moment are unknowable but could be very adverse to the system."

He added that scrapping corroboration "might increase the number of prosecutions" but said he was "certainly not convinced it will increase the number of convictions".

Lord Gill argued getting rid of the requirement would mean defence lawyers would be able to "go to the jury and say 'would you convict my client on the word of one person, with nothing else to support it?'".

He went on: "That could be a a very powerful line to take with juries and if corroboration is abolished I am not persuaded it will increase the conviction rate."

He stressed: "We've got to think very carefully about what the consequences of this could be. It's a major change which has consequences, many of which are unknown at this stage.

"It's not just a piece of law reform in the narrow area of the law of evidence, this affects the whole approach of our society towards justice and it could have consequences which could be very, very serious.

"By and large we do not have many miscarriages of justice in Scotland and when they are discovered we put them right. There are very few. My fear would be there will be many more if corroboration is abolished."

"I think we should be very proud of the fact we have something that other jurisdictions do not have, it is one of the great hallmarks of Scottish criminal law.

"I take the view we are all privileged in Scotland to live in what is a just society, and the reason for that is our criminal system is rooted in the idea of fairness and corroboration is, in my opinion, a critical element in that.

"So, I'm not here to apologise for the fact that we've got corroboration, I think we should be very grateful that we do."

Lord Gill told MSPs this was the "general view of the judiciary", adding: "I asked every judge to express their view individually to me. With the exception of my colleague the Lord Justice Clerk, all the judges were opposed to the abolition of corroboration."

Lord Gill added corroboration was "not some sort of legal relic from antiquity", saying: "We didn't get where we are by accident, the fact that we have this rule in our law, which I regard as one of its finest features, is a result of centuries of legal development and legal thought.

Concluding his testimony, Lord Gill told MSPs : "It has been found to be a good rule and I would say listen to the wisdom of the ages, it has a lot to tell us.”

All of Scotland’s High Court judges have announced their support for the retention of corroboration : Judges respond to public consultation on Carloway Report

On 3 July 2012, the Scottish Government launched a public consultation seeking views on how best to reform areas of Scottish criminal law and practice. This consultation was based on the recommendations set out in Lord Carloway’s Report on criminal procedure which was published in November 2011.

The Judges of the High Court of Justiciary, other than Lord Carloway, have now submitted their response available online here : Response by the Senators of the College of Justice to SG consultation : Reforming Scots Criminal Law & Practice  to proposals in the present consultation paper.  While their response provides support for the majority of the Carloway Review proposals, they unanimously agree that the rule of corroboration should not be abolished.

The full Carloway Review can be read online here: Carloway Review Report & Recommendations 2011 along with the Executive Summary and Lord Carloway's statement

It should be noted Scottish Law Reporter supports the retention of corroboration, and has reported on the issue in previous coverage HERE

Selective Evidence : Lord Advocate demands MSPs remove corroboration of evidence justice safeguard to give Crown Office 'a better conviction rate'

Desperately seeking prosecutions - Lord Advocate prefers dirty evidence for a result. SCOTLAND’S top law officer, Lord Advocate Frank Mulholland who heads the Crown Office & Procurator Fiscal Service (COPFS) has told MSPs on the Scottish Parliament's Justice Committee that Corroboration, a long held safeguard in Scots law requiring evidence from two separate sources for a conviction should be removed from the justice system to give Prosecutors a better chance of securing convictions, even if the evidence is dodgy and cannot be trusted.

While claim & counter claim rage over the debate about corroboration and whether it should remain or stay in the justice system, it is now generally accepted by all with a clear legal head and understanding of the pros & cons that the Lord Advocate and Crown Office and want corroboration scrapped due to mounting evidence Prosecutors are just not up to the job of catching criminals.

Over the years it has become clear that Scotland’s overfunded Crown Office which soaks up over £100 million each year in taxpayer funds, regularly fails to secure convictions in rape cases because of poor presentation of evidence, poor interviews with victims and poor quality investigations into rape and abuse cases.

Lord Advocate demands removal of corroboration safeguard (Click to watch)

With the Justice Committee scrutinising the Bill, the Lord Advocate Frank Mulholland explained to MSPs he supported abolishing corroboration because it could make it easier to prosecute offences such as domestic abuse, sexual abuse and rape, where often evidence only comes from the victim.

When asked for his view on the proposal, the Lord Advocate said: "I support it and I support it for quite a particular reason. Prosecutors see the effect of the rule of corroboration on certain areas of criminal offending, in particular sexual offending, including rape and domestic abuse."

Mulholland claimed : "I have never said the abolition of corroboration was all about increasing the conviction rate, I see it as access to justice for the victims of domestic abuse, rape and sexual offending. It seems to me that is something any modern criminal justice system should have."

Mr Mulholland said that in 2012-13 there were 2,803 charges of domestic abuse which could not be taken to court because there was insufficient admissible evidence.

He told MSPs: "That I would suggest is a matter of real concern, that we are not giving the possibility of access to justice for a sizeable proportion of victims in those charges."

He also said that over the last two years about 13% of rape cases - approximately 170 - reported to the Crown could not be proceeded with because of the requirement for corroboration, although there are claims & counter claims over how the Crown Office have manipulated the figures & statistics on these cases to use in their fight to remove what are long held legal safeguards against miscarriages of justice.

Citing an example of an abuse case which COPFS failed to prosecute, Mulholland told the Justice Committee : "I had a case where two sisters had been horrifically sexually-abused as children over a period of many years by a relative, a member of the family. The girls were told no-one would believe them if they spoke up, that no-one would love them if they spoke up. So, they didn't speak up. But eventually as adults they got the courage to speak up and make a complaint to the police.”

Mulholland continued : "We took the case up, we indicted the case in the High Court and we were prepared to proceed to trial. But one of the complainers, one of the victims, mentally could not go ahead with it.We tried to support that victim through the process, give her as much support as was necessary. But at the end of the day we couldn't force that woman to give evidence. The effect of that meant the whole case fell. That, to me, is something this Parliament, the committee, the public at large, should be concerned about."

However, critics of the Lord Advocate rounded on his claims the Crown Office supported victims of abuse, pointing to other abuse cases Prosecutors are alleged to have failed to act on, such as in the case of Hollie Greig, a downs syndrome victim who reported incidents of abuse to authorities and received compensation payments on account of evidence presented, yet strangely no one was prosecuted for the abuse.

In the case of Hollie Greig, which involved allegations against Scotland’s former Lord Advocate now Dame Elish Angiolini DBE QC (born McPhilomy), Prosecutors decided to jail the journalist and campaigner Robert Green for handing out leaflets questioning the Crown Office decision not to go ahead with a prosecution of persons accused of child abuse.

Countering arguments put forward by the legal profession for the retention of corroboration, Mr Mulholland said: "I respect people in the legal profession, their views, I respect judges' views. Everyone involved in the criminal justice system has an opinion on this. But they are not seeing the cases which cannot be taken up because of the requirement for corroboration. It's police and prosecutors that are seeing this."

Justice Secretary Kenny MacAskill has pledged to press ahead with the proposal to abolish corroboration, which is included in the Government's Criminal Justice (Scotland) Bill. In an attempt to cover up for persistent failures of Prosecutors and the Crown Office to engather evidence of crime and prosecute cases in a competent manner, MacAskill said last month the requirement to have evidence from two separate sources resulted in "the inability to prosecute offences and the denial of justice for too many".

While most of the legal profession and the judiciary are opposed to the removal of corroboration, Justice Secretary MacAskill insisted: "Laws are made by parliament, not one profession. This is about justice in our communities, not a debate between learned legal friends."

Speaking for Justice Secretary Kenny MacAskill, a Scottish Government spokeswoman said: "We remain committed to abolishing the requirement for corroboration, as recommended by the Lord Justice Clerk, Lord Carloway, in his wide-ranging review of Scots law and practice.

"Our proposals are supported by the Crown Office, Police Scotland and a range of victims' organisations including Victim Support Scotland, Scottish Womens' Aid and Rape Crisis Scotland, and are designed to make our justice system fit for the 21st century.

"As the Lord Advocate said at the Justice Committee today, abolishing the requirement for corroboration is about ensuring access to justice for victims. He gave compelling and real-life experiences of the negative impact the rule of corroboration currently has on victims. This is a barrier to justice that does not exist in any other jurisdiction in the western world.

"There is no evidence that other legal systems have an issue with miscarriages of justice due to the absence of this rule. The high standard in criminal cases of proof beyond reasonable doubt will remain."

Lord Hope – removal of corroboration is potentially dangerous LORD HOPE, who previously served as Lord Justice General of Scotland and Lord President of the Court of Session, and until June was deputy president of the UK Supreme Court has criticised plans by the Scottish Government to remove the long held safeguard of corroboration in criminal trials, where evidence is needed from two separate sources for a conviction.

In an interview for Holyrood Magazine, Lord Hope described the proposal contained in the Criminal Justice (Scotland) Bill, to abolish corroboration, as “potentially dangerous”.

The drive to remove corroboration primarily comes from the Crown Office & Procurator Fiscal Service (COPFS) who are hungry for increasing their statistics of successful prosecutions, whether the accused is actually guilty of a crime or not.

Speaking further to Holyrood Magazine, Lord Hope went on say : "I just express concern that the proposal seems very far-reaching and, potentially, quite dangerous if you have a situation where somebody is at risk of being convicted on his own confession which I would have thought was absolutely fundamentally wrong in Scots law.

"It may be that the number of cases that go to trial now on confessions are comparatively few, but we developed our law of corroboration initially as a barrier against people being taken to court on a confession which had been extracted by torture.

"This is in the early 18th century when things were very, very different, and people reacted against this, and I'd be very sad to see that kind of protection go."

It should be noted Scottish Law Reporter supports the retention of corroboration, and has reported on the issue in previous coverage HERE

What now for Crown Office plan to skew justice in prosecutors favour, as senior judge Lord Hope brands removal of corroboration “potentially dangerous”

Lord Hope – removal of corroboration is potentially dangerous LORD HOPE, who previously served as Lord Justice General of Scotland and Lord President of the Court of Session, and until June was deputy president of the UK Supreme Court has criticised plans by the Scottish Government to remove the long held safeguard of corroboration in criminal trials, where evidence is needed from two separate sources for a conviction.

In an interview for Holyrood Magazine, Lord Hope described the proposal contained in the Criminal Justice (Scotland) Bill, to abolish corroboration, as “potentially dangerous”.

The drive to remove corroboration primarily comes from the Crown Office & Procurator Fiscal Service (COPFS) who are hungry for increasing their statistics of successful prosecutions, whether the accused is actually guilty of a crime or not.

Speaking further to Holyrood Magazine, Lord Hope went on say : "I just express concern that the proposal seems very far-reaching and, potentially, quite dangerous if you have a situation where somebody is at risk of being convicted on his own confession which I would have thought was absolutely fundamentally wrong in Scots law.

"It may be that the number of cases that go to trial now on confessions are comparatively few, but we developed our law of corroboration initially as a barrier against people being taken to court on a confession which had been extracted by torture.

"This is in the early 18th century when things were very, very different, and people reacted against this, and I'd be very sad to see that kind of protection go."

The Crown Office led campaign to remove corroboration was eagerly joined in its infancy by Justice Secretary MacAskill, who was apparently persuaded by senior COPFS officials that the change would give the Scottish Government glowing conviction rates to announce and help bolster the SNP’s record on justice issues.

MacAskill then commissioned Lord Carloway, the current Lord Justice Clerk to write a report agreeing with the removal of corroboration. This report, is known as the Carloway Review Report & Recommendations 2011

Meanwhile, the changes to corroboration have been opposed by just about anyone with a clear legal head, many solicitors, advocates, QCs and many in the judiciary who signed their own joint response against the Carloway proposals in an earlier announcement made by the Judiciary of Scotland,here :

Judges respond to public consultation on Carloway Report

On 3 July 2012, the Scottish Government launched a public consultation seeking views on how best to reform areas of Scottish criminal law and practice. This consultation was based on the recommendations set out in Lord Carloway’s Report on criminal procedure which was published in November 2011.

The Judges of the High Court of Justiciary, other than Lord Carloway, have now submitted their response available online here : Response by the Senators of the College of Justice to SG consultation : Reforming Scots Criminal Law & Practice  to proposals in the present consultation paper.  While their response provides support for the majority of the Carloway Review proposals, they unanimously agree that the rule of corroboration should not be abolished.

Speaking to Scottish Law Reporter earlier today, one senior solicitor castigated the planned law changes, saying : “MacAskill’s plan to remove corroboration is a cave-in to assist the Lord Advocate and various ‘usual suspect’ pressure groups along with Police Scotland, all of whom have an interest in skewing prosecutions in their favour regardless of the evidence.”

Criticising the current debate on the law change, he continued : “The public debate on corroboration has itself been skewed by campaign groups who attack, even personally harass anyone or any profession criticising their motives.”

“What is now needed is that the Justice Committee of the Scottish Parliament realise the vested interests of those involved in this appalling law change, and throw it out in the interests of justice & a fair trial, before we end up with a situation where the Lord Advocate simply needs to proclaim someone guilty and sentence them without even the need of a trial.”

The full Carloway Review can be read online here: Carloway Review Report & Recommendations 2011 along with the Executive Summary and Lord Carloway's statement

It should be noted Scottish Law Reporter supports the retention of corroboration, and has reported on the issue in previous coverage HERE