Abolition of requirement for corroboration could expose members of public to inappropriate prosecutions
Abolishing the requirement for corroborative evidence in criminal proceedings could expose a large cross-section of the public who deal with individuals on a one-to-one basis to inappropriate prosecution.
The Law Society of Scotland has said that the Criminal Justice (Scotland) Bill in its present form means there is no prosecution policy to apply in the case of an individual who has alleged that he or she was assaulted, for example, by a police officer or a prison officer, or a pupil who has alleged that a teacher or social worker acted inappropriately.
The Law Society believes there should be a test which police would have to apply before reporting a case to the Crown, and a separate test for the Crown to proceed to the prosecution of a case if there is no longer a requirement to obtain corroborated evidence of an allegation by the police.
Raymond McMenamin, a member of the Law Society's Criminal Law Committee, said: "We want to see a modern and effective justice system in Scotland and it is important to all of us as solicitors and as members of the public, that those who commit crime are convicted and that victims of crime are supported and protected.
"There are many positive aspects of the Bill, particularly concerning vulnerable or young suspects, however corroboration has been a cornerstone of the Scottish justice system for centuries and remains a fundamental safeguard against miscarriages of justice today.
"The Bill currently offers no alternatives to the requirement for corroboration which would provide the same level of safeguards against wrongful conviction and we risk moving from a criminal justice system which has strong safeguards for the accused, to one with weaker procedural safeguards.
"There also appears to have been little consideration of the potential knock-on effects of abolishing the requirement for corroboration - such as the use of dock identification.
"Routine reliance on dock identification of an accused person, sometimes years after an alleged offence, is a distinctive feature of the Scottish criminal justice system. In the past, the requirement for corroboration has been used to justify this procedure. Without corroboration, continued reliance of dock identification of an accused by a single witness is likely to increase the risk of mistaken identification leading to a miscarriage of justice.
"There hasn't been a full scale review of our criminal justice system for some time or any research into juries and by taking a piecemeal approach we risk major failings in our criminal justice system. We believe that there needs to be full and informed public debate on the prosecution policy and criteria in respect of cases in which there is no corroboration."
The Law Society's Criminal Law Committee has also called for research into the jury system in Scotland. The committee has questioned the Bill's proposal to move to a two-thirds majority (ten out of 15 jurors) required for a jury to return a guilty verdict, as being the only proposed additional safeguard in the absence of the requirement for corroboration.
While two-thirds is higher than the current requirement for a simple majority of eight out of 15 jurors, the committee believes that at least 12 of the 15 jury members should be in agreement before returning a guilty verdict. It has also suggested a move to having 12 jurors as is the case in many other jurisdictions rather than the traditional 15 which would bring significant savings.
The Law Society has supported proposals in the Bill to introduce procedural safeguards concerning vulnerable suspects, that child suspects under 16 will not able to waive their right to legal representation and the reduction of the maximum detention period in custody without charge to 12 hours.
Note to editors
The Law Society's response to the Criminal Justice (Scotland) Bill is published on the website.
The Society has also responded to the Scottish Government consultation paper, Reforming Scots Criminal Law and Practice: Carloway Report, in October 2012, Reforming Scots Criminal Law and Practice: Additional safeguards following the removal of requirement for corroboration, in March 2013, and Reforming Scots Criminal Law and Practice: Reform of Sheriff and Jury Procedure (the Bowen Report) in March 2013.
FOR FURTHER INFORMATION:
Please contact Val McEwan on 0131 226 8884 or Julia Brown on 0131 476 8204
09 September 2013