Corroboration in Scots law
The importance of corroboration is a unique feature of Scots criminal law. 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. 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.
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’. A similar statement appears in Alison. 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’ - 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’. 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.
Following the Cadder ruling in 2010, Lord Carloway was appointed to lead a review of the 'corroboration rule' - The Carloway Review. In this review, Lord Carloway gave the following proposal – the current requirement for corroboration in criminal cases should be abolished.
Corroboration in Modern Policing
Corroboration is a key element of modern policing, in that Scottish law requires a sufficiency of evidence to be presented, in other words; "There must be sufficient admissible evidence, to prove beyond all reasonable doubt, that the accused committed the crime or offence libelled"
This involves the principle of corroboration which means that one piece of evidence must be backed up by another piece of evidence.
It is the responsibility of the police to gather all available evidence and present it to the court.
The most common form of corroboration in regards to criminal offences is the two or more eyewitnesses scenario. 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'.
This is known as 'best evidence' and should always be led first at court. Thereafter, further points of corroboration can be raised to the court.
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
- 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
There are many more examples of corroboration, and these are a few of the key ones most commonly presented to the court.
The court will not normally accept the testimony of a single witness, no matter how credible, as being the truth unless there is further evidence via corroboration. It is worth noting that not every witness presented to the court must have the same story, or be believable. Even if you have ten witnesses with eight of them presenting contradicting stories, if two witnesses provide a similar version of events which ties in with the related offence, guilt can be found based on the two witnesses alone. It will make the prosecution harder for the Procurator Fiscal as the defence will utilise this contradiction to sway the Sheriff, but otherwise this is acceptable evidence. Commonly this can be found in colours of vehicles, where many witnesses will have a distorted recollection of the actual colour.
Contrary to popular belief, there are several occasions where corroboration is not required. Road traffic offences such as obstruction, excise and failure to obey traffic signs or signals are some examples of this.
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.
Again, 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 unit 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 sufficiency circumstantial evidence and corroboration through sufficiency.
Corroboration Broken Down
If one person says, “this is what I intended by the action I took,” and his friend agrees that his actions could have looked like what they intended. Then it can be generally agreed that is what happened.
If one person says, this is what I meant by what I said,” and his friend agrees that was their understanding of what was meant. Then it can be generally agreed that is what was meant.
Think of this like backing up your mate in the playground no matter what they did or said.
Example of Corroboration
First person walks in turns and looks back the way they had come; this allows a person to say I had a clear view of another person that enters later. Second person walks in and on some pretext starts shouting, suddenly raising arms in the air and shaking them, who notices if fists are open or closed when the eye is on the action of the arm; this can look threatening and causes added stress in already tense circumstances. This can provoke an already bad situation into violence and can be used when people need to justify their actions or their presence. We made a mistake but look what happened someone was assaulted. Later it can be said I had a clear view of the other person and my friend raised their arms in supplication or in surrender and can demonstrate this with arms raised slowly, hands open and palms out. This involves two people, is premeditated, threatening, causes fear and alarm and is also used to make corroboration work against anyone. Common line afterward whether you were baited or goaded you still did it. This works well if both people have authority and in a position where they are commonly accepted to be of good character. There is other variations on this and is often used to provoke criminal action where there has been no other disorderly conduct.
Field of study
- Rights of the Accused Pre-Trial Scotland
- Corpus delicti
- Criminal procedure
- Evidence (law)
- Legal technicality
- Rose, Gareth (2 October 2011). "The corroboration rule, unique to Scots law". Scotland on Sunday. Edinburgh. Retrieved 2 October 2011.
- "Consultation issued on Scots law after Cadder ruling". BBC News Scotland. 2 October 2011. Retrieved 2 October 2011.
- BD Hume, ii p.385 (241)
- AJ Alison, Principles and Practice of the Criminal Law of Scotland, 1833, p.551
- The New Testament, 2 Corinthians, 13 verse 1
- XX Concerning Witnesses, Book IV, 334 AD
- JH Langbein, Torture and the Law of Proof, p.6
- Scottish Police College Initial Training Course - Module 2
- Corroboration at Hingston's Law,