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  4. Judges change views on not proven, corroboration reform

Judges change views on not proven, corroboration reform

13th July 2022 | criminal law | Criminal court work

A majority of Scotland’s senior judges now favour the abolition of both the not proven verdict and the corroboration rule in criminal trials, their published submission on the recent Scottish Government consultation reveals.

The judges accept that their views have changed over the last decade. After the Carloway report was published in 2011, recommending the end of the requirement for corroboration, most of the judges opposed both reforms. Now, however, with the composition of the High Court Bench having changed significantly as judges have retired and others elevated to take their place, and the types of case prosecuted having seen a large increase in the number of alleged sexual offences brought to court, views have changed even among those who have remained on the bench throughout that time.

The vast majority now take the view that the not proven verdict is inconsistent with the presumption of innocence and the purpose of the trial process. As a matter of law, they state, there is no difference between a not guilty and a not proven verdict, and there is then no purpose in the choice being available. They are also concerned at research suggesting that about one third of jurors wrongly believe that the not proven verdict allows for a retrial, despite being directed to the contrary. 

Only one judge, the response states, takes the view that there is a benefit to retaining a third option which would permit a jury to acquit without affirming the innocence of the accused.

Regarding corroboration, two thirds of the judges (and the same proportion of those who previously opposed reform) now believe that the rule should be abolished. A principal concern, over and above the complexity of the law as to what may comprise corroboration, is the extent to which the requirement acts as a barrier to accessing justice, particularly in the cases of many women and child victims of both sexual abuse and domestic abuse. 

For the minority, the rule still performs an important role and the law has developed in a nuanced way with the result that the requirement is readily satisfied, particularly in cases of sexual assault.

A majority further state that if not proven is abolished, there should be a requirement that at least 10 out of 15 members of the jury should vote for a guilty verdict before the accused can be convicted. If corroboration is to be abolished, the further safeguards previously recommended in a report by Lord Bonomy should be “revisited”, though not all the judges agree with every proposal.

Access the submission here.

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