The recent decision by the Scottish Parliament to scrap the need for corroboration in criminal trials is designed to solve a longstanding problem: there is a low rate of convictions in rape cases and, correspondingly, a high rate of acquittals.
Scotland’s corroboration rule has been around for centuries. It says that an assertion in a criminal trial can only stand if there are two pieces of evidence that support one another.
That could be two witness testimonies, for example, or a witness testimony and a bloody knife with the DNA of the accused. If Scottish Government plans to change this rule go ahead, one piece of evidence or one testimony will potentially be sufficient in future.
The low convictions problem
We should not conclude that the high rate of acquittals and low rate of convictions for rape cases in present day Britain is necessarily a cause for alarm. It does not in itself mean that the relevant legislation is defective nor that the courts are malfunctioning in their treatment of the crime.
Allegations of rape are difficult to substantiate. Often what is in dispute is not what physically occurred but how the actions relate to the intentions and attitudes of those involved.
One can’t object to making exceptions for certain circumstances in court, per se. For instance, children have long been permitted to give evidence by video link in criminal cases.
And no one is talking about making an exception for corroboration in relation to cases pertaining only to rape and other sex offences. The planned change in the law in Scotland will be applicable across the board. But we are still talking about changing the rules of procedural justice to have an impact on the conviction rate.
Regardless of the type of crime, from rape or terrorism, this is a dangerous approach. We should take it, if at all, with exceptional caution.
The meaning of fairness in criminal trials
The question here is one of fairness. There are some things that we must do regardless of whether it is fair. Governments need to clean up the problems created by the financial crisis. They need to pay particular debts or face the graver consequences of reneging on them.
Or when we went to war with the Nazis, we had to raise an army fairly or unfairly. There is almost certainly not a way of achieving these things that is fair in all respects to everyone involved. An intention on the part of politicians to act fairly will not make any difference.
On the other hand, there are other things where most people would agree that if we can’t do them fairly, we shouldn’t do them at all. A fair trial is the classic example. If we cannot try someone fairly for a criminal offence, particularly one as serious as rape, we should not try them at all.
In the case of sex offences, people make the point that it is not fair to the victims that the conviction rate is low, they are raising a competing need for fairness. Fair trials of alleged rapists will not necessarily be fair in all respects to the alleged victims.
The low conviction rate is not the only unfairness for alleged victims. It is sometimes imagined that, if an alleged rapist is acquitted, the alleged victim who accused him must have lied. This common mistaken belief is very unfair to them.
Neither will such trials be fair in all respects to the accused. Even when accused people are declared to be not guilty, the lingering suspicion can remain in some people’s minds that they actually did what they were accused of doing. Men who have been acquitted of sex offence have commonly complained about this in the past.
Presumption of innocence
There is a further unfairness inherent in fair trials: accused people are not proven to be innocent. Innocence is not established in criminal trials. People are presumed to be innocent unless and until they are found to be guilty. A presumption of innocence is not the same as a certification of innocence.
In short, it is not possible to conduct trials that are fair in all respects to everyone who is involved. That it why the state is responsible for trying those who are accused fairly even if that leads to unfairness in various respects for accused people and alleged victims.
It is understandable that victims of rapes are enraged if the cases are not brought to trial because there is no other piece of evidence to corroborate their testimony. Not giving a victim of such a terrible crime the chance to speak in court about the wrongful things which they know were done to them is obviously going to seem unfair. It is unfair.
But rape trials could hardly be fair if, without corroboration, they dissolved into a judgement about the relative honesty of an accuser and an accused person. In criminal trials, accused people are presumed to be innocent unless and until they are declared to be guilty. Their guilt should be established beyond all reasonable doubt.
It is not the proper role of criminal trials to “send out messages” to society or to be exercises in social engineering. If the laws and procedures are fair and just, we should accept the verdicts of the courts whatever they turn out to be.