Laying down the law

Anyone reading this in the hope of an erudite explanation of the Scots law rule requiring corroboration of important evidence in legal proceedings is in for a disappointment.

I am no legal scholar, having relied solely on what was taught to me while a cop, along with extensive reading of the legal advice section of the Sunday Post over several decades – not exactly sufficient to allow me to hold my own among m’learned friends. However, I find the proposed changes somewhat disturbing.

In short, and with some exceptions, you currently can’t be convicted of a crime or offence in Scotland on the evidence of one witness, although that in itself is an over-simplification. You need corroboration, that is to say additional supporting evidence from another witness or more, with circumstantial and forensic evidence playing their part as well, if available.

It is a sad fact there is a erroneous widespread public belief gained from fiction and television, suggesting that evidence leaps out of the woodwork at every crime scene, with detectives armed with some divine ability to deduct the solution to a crime in a manner good ol’ Sherlock would have approved. Another hard truth is that not everything that is found at a crime scene and reported is admissible as evidence, but that’s another matter.

Back to corroboration. The current SNP government wish to abolish it, loading their argument with claims that sex crimes would have a better conviction rate if they did. Fair enough that might happen, but given the legal and historic precedents, all that would follow is a huge rise in appeals that could bog down the legal system for years. That would also apply across the whole range of crimes until even more hasty legislation curtails the right to appeal.

So who started the abolition of corroboration ball rolling? The bold McCaskill, he of Megrahi’s return fame, seems to be the front man for the Scottish Government on this issue.

The legal trade is still divided, but marginally against the move. What about the cops?

Well, yes, the police are now all for the abolition of corroboration, even though the new Scottish Police Service howled against it at first.

However, after what seemed to be a sharp word from their political master, they meekly fell into line with the government in a shift that possibly demonstrates the level of political control over the police in Scotland.

One thing is clear; the argument for and against retaining corroboration will rumble on for some time, masking the unasked question of what new measures will spring up to fill the legal vacuum after one the major pillars of Scots Law is removed.

I suspect if the process for the removal of corroboration is bulldozed through the Scottish Parliament, for a while it will all fade until a very high miscarriage of justice case comes along when corroboration would have saved the day.

You see, abolishing the need for corroboration does not mean that corroborative evidence will no longer be admissible in court; it’s just that its absence will no longer be an automatic bar to conviction, which sounds a bit dangerous to me. In general, all admissible evidence is led to allow judges and juries a decent chance to reach the right verdict on the “beyond all reasonable doubt” basis, so it stands to reason the big bust-up will occur when the only real evidence is the word of one person, and that typically and, indeed, sadly tends to be in cases where there is a sexual element. Brace yourselves for a lengthy period of tedious debate in which senior legal egos will sound off in big style.

In those circumstances there is a certain degree of commonsense in moving the corroboration goalposts a little, rather than staging an across-the-board abolition. More to the point, I often read articles by legal big-hitters who suggest it is high time we had a full review of all sex crime with a view to reducingthe necessary points to prove in order to gain a conviction.

That will not find great favour among the faction campaigning for more action on rape cases, as there will often be times when allegations of rape are not genuine, a detail that in some circumstances may go some way to explain why the conviction rate is so abysmally low.

It also highlights the important detail that in cases where there is real doubt about the truth of any rape allegation the rights of any person so accused are preserved, and that should also include anonymity unless convicted.

We need to look at the way other countries deal with sex crime and study their methods. There has long been an undercurrent of thought that our judicial system is the best in the world. In some respects it is; in others it is hopelessly out of date, bogged down by ill considered, often obsolete laws and shackled by practices bound up in an impregnable barrier of legal “Aye been”. Surely we can do better than that in the 21st century?

So who will gain and who will lose? I think the police will gain; reducing the need for corroboration will enable them to charge more offenders, resulting in more cases labelled as detected and thus their crime stats will improve.

The courts, already overloaded and severely cut back on staff will see an increase in workload, while the public might well see themselves increasingly vulnerable to conviction by allegation.

It will be very interesting to observe the effect of the new move over a few years. Of one thing we can be sure, taking away the requirement of corroborative evidence might well be the thin end of a very large wedge. Perhaps the next move will be to abolish the not proven verdict – all in the name of reform but in truth yet more economic cut-backs.

What price justice in an independent Scotland?