A woman alleges she was raped by a man she met at a party. She says he forced his way into her flat after walking her home. He claims she invited him in and that the sex was consensual. There are no witnesses to the incident and there is no medical evidence supporting her claim.
In Scotland at present, unlike almost all other legal jurisdictions, the man should escape prosecution. This is because of the corroboration requirement, which says that a criminal conviction requires at least two independent items of evidence establishing each element of the crime.
Motivated by cases like this, the Scottish government has included a controversial provision in the Criminal Justice (Scotland) Bill abolishing the requirement. Abolition is supported by organisations campaigning on sexual and domestic violence against women; many (but by no means all) police officers and prosecutors; and at least one judge (Lord Carloway, whose 2011 Carloway Review first recommended the reform). They argue that victims who are attacked in private should not be denied access to justice by this technical evidential rule. Instead, as in other “modern” legal systems, it should simply be left to judges and juries to decide on all the relevant evidence whether charges have been proved beyond reasonable doubt.
Others, however, including the remaining senior judiciary, the legal profession, civil liberties groups and most legal academics are unpersuaded. They regard corroboration as a necessary safeguard against miscarriages of justice. As a concession, the Scottish government recently set up a review, headed by Lord Bonomy, to consider what alternative safeguards might be required instead. The Scottish parliament’s justice committee recently recommended that the corroboration requirement be retained until this review has concluded. However at the end of last month MSPs voted by a narrow margin to retain the abolition provision after Kenny MacAskill, the cabinet secretary for justice, promised it would not be implemented until after Lord Bonomy reports in 2015.
Undoubtedly the corroboration requirement makes it difficult to prosecute certain types of offences successfully. But I doubt whether abolishing it will provide a panacea for the victims of domestic and sexual violence. As campaigners admit, the high standard of proof in criminal cases means it would still rarely be satisfied without corroborating evidence. If convictions can be secured on the word of the victim alone, there is also a risk that defence lawyers will resort even more frequently to character assassination to undermine the complainant’s credibility.
Arguably the reasons for low conviction rates for crimes of violence against women go far deeper than the corroboration requirement. Campaigning to have it abolished may be a distraction from more fundamental efforts to gain more convictions and to end such violence occurring in the first place, such as tightening up on questioning of complainants or launching educational campaigns.
Burden of proof
Focusing only on potential injustices to victims ignores the risks of convictions based on unreliable evidence. Suppose a man is stabbed to death in a public toilet. There are no witnesses to the stabbing, but several people see someone running from the scene with a bloody knife, which is never found. A man loosely fitting witness descriptions and with previous convictions for assault is arrested and identified by one but not all of the witnesses. He claims, truthfully, to have been with his mother at the relevant time. Without a corroboration requirement, he can be convicted if, as often occurs, his alibi is disbelieved.
As many miscarriages of justice attest, the risk of wrongful conviction in this kind of situation is high. Psychological research shows how unreliable witnesses are in identifying the faces of strangers, particularly if seen only briefly and when holding a weapon and that people generally have little more than a 50% chance of detecting when others are lying. Even a confession is not necessarily a reliable indicator of guilt. Unfortunately, we know from experience that many people can be induced to confess to crimes that they did not commit.
Clearly if the corroboration requirement is retained, some victims of crime will be denied justice. But if it is abolished, it is likely that more accused will be unjustly convicted. What is ignored by the abolitionists is that in Scotland, as in all other Anglo-American legal systems, we do not weigh equally the injustice caused by wrongful acquittals with those of wrongful convictions. As the venerable legal guide Blackstone’s famously put it, “It is better to let 10 guilty men go free than to convict one innocent.”
The Bonomy Review may come up with alternative means of upholding this principle, but the lessons of psychological research should make us sceptical. While it may be possible to reform some contributing factors to unsafe convictions, such as tightening the rules around confession or identification evidence, there is little that can be done to remedy our inherently weak human abilities to witness events accurately and assess witness accuracy. The corroboration requirement is a legal principle that is the envy of many people in other countries. It is ironic that a nationalist government is seeking to abolish it.