It takes a brave lawyer to stand up against the views of most of his profession and say that one of its most cherished rules has to change. In proposing the straight abolition of the rule of corroboration in criminal cases, Lord Carloway is, if nothing else, showing commendable judicial independence.
Important though it is - and it dominated press questions at the launch event - the recommendation on corroboration is far from the only matter covered in the 412 page report, commissioned in the wake of the Cadder decision on police detention, albeit with a much wider remit. Its 76 recommendations cover the rules and procedures for obtaining evidence in the form of statements and determining its admissibility, from initial contact with the police right through to methods of appeal.
Some lawyers question why all this should follow from Cadder, given that that decision dealt with a fairly specific issue. When I put that to Lord Carloway, he responded that the decision had had wide implications across the board, and was an indication that it was time to look at that wider spectrum, on the view that it would be better to avoid another disruption such as occurred through Cadder.
Lawyers should certainly applaud his stated approach of seeking to incorporate Convention rights "in larger measure and at greater depth... to re-establish Scotland at the forefront of law and practice of human rights in general". However he does not claim that his proposed reforms comprise a package which ought not to be cherrypicked, and there will be room for argument, for example over whether his proposed addition to the standard caution, to mention the right of access to a solicitor, is sufficient in all cases not involving police custody.
In a further response of some note, he opined, despite the scepticism within the profession, that emergency legislation had been necessary following Cadder, even if he was now advocating a different apporach in some respects.
Free to lead
But back to corroboration. You would not think that generations of Scots lawyers had held the corrroboration rule as one of their most prized assets, from the report's description of it as "an archaic rule that has no place in a modern legal system", where judges and juries "should be free to consider all relevant evidence and to answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence".
Carloway does make a strong case in support of his view, one which sceptical lawyers will have their work cut out to refute. The rule does not in fact, he says, prevent miscarriages of justice: there is nothing to suggest that Scotland has a lower rate of miscarriages than elsewhere. It may equally give rise to miscarriages, in that some hundreds of cases were identified in research for the report that were not prosecuted due to the existence of the rule, but would have met the test of a reasonable prospect of conviction without it. It has also spawned a number of technical rules as to what may be taken to satisfy the requirement in particular situations, rules that are confusing and difficult to explain to juries. Even different judges can have very different views as to what constitutes corroboration.
And despite prior resistance to the idea, he adds, the abolition of the requirement in civil cases, along with the general admission of hearsay evidence, "has not met with any substantial adverse comment".
One might question Carloway's somewhat glib comment that corroboration "concerns the quantity and not the quality of testimony". I doubt that that cases are prosecuted at present on such a basis. Nor would I expect that, if the rule were to go, the Crown would simply bring along its best witness in each case and leave it at that. That would be a high risk strategy given the requirement for proof beyond reasonable doubt.
Again, while a number of legal commentators expressed rather inspecific reservations about the proposed abolition, the Sheriffs Association went one step further and suggested that the move would have consequences for a number of aspects of our procedure. I could not comment on that, but given the short time allowed for preparation of the report, it would be wise to ask the Scottish Law Commission to examine this point in more depth.
At the end of the day, however, if we take a step back, it has to be acknowledged that Scots law is rather out on a limb in maintaining the rule as a general requirement. Not that Carloway uses that point in itself as a justification for reform: rather, "it would bring Scots law into line with modern, and almost universal, thinking on how to approach evidence in criminal, and indeed all other, cases". And he has explicitly attempted to reshape the aw in line with article 6 Convention rights.
Can we resist that? Why should we?