Corroboration in Scots law

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The importance of corroboration is a unique feature of Scots criminal law.[1] A cornerstone of Scots law, the requirement for corroborating evidence means at least two different and independent sources of evidence are required in support of each crucial fact before a defendant can be convicted of a crime.[2] This means, for example, that an admission of guilt by the accused is insufficient evidence to convict in Scotland, because that evidence needs to be corroborated by another source. However, testimony from some experts, such as forensic medical examiners or doctors, is accepted by courts on the basis of the expert's report alone, therefore requiring no corroboration.

History[edit]

Corroboration had, in some way, already been established by the time the earliest Institutional Writers had begun to illustrate Scots criminal law. MacKenzie described the ‘singularity’ of witnesses, and their ‘contrariety’, as insufficient proof – subsequently repeated by Hume, ‘…no one shall in any case be convicted on the testimony of a single witness’.[3] A similar statement appears in Alison.[4]

Corroboration can also be traced to Biblical sources. The New Testament stated, ‘In the mouth of two or three witnesses shall every word be established’[5] – although it is unlikely that the requirement is based solely from the Bible. Corroboration also has origins in Roman law. The Code of Justinian read, ‘We plainly order that the evidence of only one witness shall not be taken’.[6] It has been suggested that at this time, the requirement was based on the distrust of juries – however, it is suggested that it was the mistrust of judges instead, which allowed corroboration to take root.[7]

Following the case of Cadder v HM Advocate in 2010, Lord Carloway was appointed to lead a review of the corroboration rule. In this review, Lord Carloway gave the following proposal – the current requirement for corroboration in criminal cases should be abolished.[8]

Corroboration in Modern Policing[edit]

Corroboration is required in Scots law as the evidence of a single witness, however credible, is not sufficient to prove a charge against an accused or to establish any material or crucial fact.[9] There are two prime facts that are deemed to be crucial; the first being that the crime was committed and the second being that it was committed by the accused. Crucial facts must be proved beyond reasonable doubt by corroborative evidence.[10]

It is the responsibility of the police to gather all available evidence and disclose it to the Crown. The Crown will decide what evidence will be led and in which court should a trial be required.

A common form of corroboration in regards to criminal offences is there are two or more eyewitnesses to an offence. Any witness undertaking an oath in court is accepted as being a 'credible witness and as such, their statement to the court must be taken as truth (although a defence lawyer will attempt to prove this not to be the case through cross examination, undermining their character, pointing out inconsistencies, etc.). Therefore, if a reporter of an offence makes a statement saying suspect X hit them, and there is a witness who states in a statement that they saw this happen, this is corroboration and this is sufficiency of evidence, providing suitable grounds for the suspect to be charged by police and have their status changed to 'accused'.

These can include:

  • CCTV – This must show footage relevant to the offence in which the suspect can be identified (usually by police officers or witnesses) – in this instance, it is not the CCTV that is the corroboration, but is it the police or witnesses identifying the suspect on CCTV that are the corroboration;[11]
  • Injuries – Again, the injury in and of itself is not sufficient. A medical statement from a trained person such as a doctor stating; "This injury was caused by blunt trauma to the back of the head, within which there are small fragments of glass" is the corroboration, not the injury;
  • Forensic evidence – Fingerprints and DNA primarily, with again, the Forensic Scientist identifying those pieces of evidence as belonging to the accused being the corroboration
  • Telecomms information – Where an application was submitted and approved to identify the owner of a phone number, it is this information which identifies the phone as belonging to the accused, but again, it is the police officer who corroborates this to be a true document

In instances where there is no direct corroboration, police can still accumulate sufficient indirect or circumstantial evidence to allow a prosecution to be pursued.

Circumstantial evidence can be:

  • Motive – Accused was motivated to commit crime through greed, revenge, malice, etc.
  • Ability – Accused had the skills or strength etc., necessary to commit crime
  • Guilty intent – Accused acted with the intention of committing the crime. For example, a planned armed robbery
  • Identification – Forensic evidence, DNA, fingerprints, fibres, etc.
  • Conduct after the crime – Evidence that the accused has disposed of incriminating evidence, 'laid low' etc.
  • Opportunity – Evidence that the accuse was at or near the locus at the time, or had privileged access, etc.
  • Preparation – Evidence that the accused purchased a weapon or obtained housebreaking tools in preparation to commit the crime, etc.

It is worth noting that where there are no eyewitnesses or direct corroboration of events, such as a murder, the above list can be used to corroborate through sufficiency and prosecute an accused. So for example, a vehicle being tagged by an ANPR camera on a road that leads to a certain location; fingerprints and DNA being found on the body; the accused being found in possession of a blood stained knife and the DNA from that blood being linked to a victim – all this would provide sufficient circumstantial evidence and corroboration.

Moorov Doctrine[edit]

The Moorov doctrine is a doctrine that deals with similar fact evidence in Scots law, arising from the case of Moorov v HM Advocate in 1930. The Moorov doctrine can be used where a series of crimes have been committed and are closely linked by time, character, circumstance and place of commission as to constitute a course of conduct by the accused.[12] The accused must be positively identified in each case. There may only be one witness to each individual crime who can identify the accused but where the offences are sufficiently similar the witness for one offence can corroborate the account of a witness for another offence.[13]

Howden Doctrine[edit]

The Howden doctrine arises from Howden v HM Advocate.[14] The doctrine is used where the accused is charged with two offences but has only been positively identified for one of the offences. The identification can be made by an eyewitness to the offence or other evidence such as forensic eveidence. Where the jury is satisfied beyond reasonable doubt that the accused committed one of the offences and the other offence must have been committed by whoever committed the first offence then the accused can be convicted of both offences.[15]

Exceptions[edit]

There are some limited exceptions to the requirement for corroboration in criminal cases. Examples include some minor road traffic offences listed under section 21 of the Road Traffic Offenders Act 1988.[16]

Field of study[edit]

As a legal system founded on civil law principles, evidence in Scots law is normally studied as a branch of procedural law.

See also[edit]

References[edit]

  1. ^ Rose, Gareth (2 October 2011). "The corroboration rule, unique to Scots law". Scotland on Sunday. Edinburgh. Retrieved 2 October 2011.
  2. ^ "Consultation issued on Scots law after Cadder ruling". BBC News Scotland. 2 October 2011. Retrieved 2 October 2011.
  3. ^ BD Hume, ii p.385 (241)
  4. ^ AJ Alison, Principles and Practice of the Criminal Law of Scotland, 1833, p.551
  5. ^ The New Testament, 2 Corinthians, 13 verse 1
  6. ^ XX Concerning Witnesses, Book IV, 334 AD
  7. ^ JH Langbein, Torture and the Law of Proof, p.6
  8. ^ "Carloway review says end corroboration in crime cases". BBC News. 17 November 2011. Retrieved 9 March 2019.
  9. ^ The Scottish Beat Officer's Companion (6th ed.). Jane's Police Review. 2010-06-29. p. 10. ISBN 978-07106-2928-9.
  10. ^ Jury Manual (2018 ed.). Parliament House, Edinburgh: Judicial Institute for Scotland. 9 November 2018. p. 5.9. Retrieved 8 March 2019.
  11. ^ Sutherland, Colin (17 November 2011). The Carloway Review - Report and Recommendations. The Scottish Government. p. 262. Retrieved 9 March 2019.
  12. ^ "MR v HM Advocate 2013 SCCR 190". Scotcourts.gov.uk. Retrieved 9 March 2019.
  13. ^ Jury Manual (2018 ed.). Parliament House, Edinburgh: Judicial Institute for Scotland. 9 November 2018. p. 15.4. Retrieved 8 March 2019.
  14. ^ Howden v HM Advocate, 1994 SCCR 19
  15. ^ Report on Similar Fact Evidence and the Moorov Doctrine (PDF). Edinburgh: The Scottish Law Commission. May 2012. p. 78. ISBN 978-0-10-888265-4. Retrieved 9 March 2019.
  16. ^ "Proceedings in which evidence of one witness sufficient in Scotland". Legislation.gov.uk. Retrieved 9 March 2019.

External links[edit]