Corroboration law change ‘will protect children and the elderly’

Solicitor General defends proposal to end centuries-old need for corroboration

Controversial plans for an overhaul of Scots law need to happen to convict more criminals who target the elderly.

That’s the view of police and senior prosecutors who insist the current requirement for evidential corroboration is hindering their ability to bring cases to court.

A bill put forward by Justice Secretary Kenny MacAskill would abolish the need for two sources of evidence to be obtained before a case can proceed to trial.

But the proposal has been branded “bloody-minded” with some top judges warning it will lead to miscarriages of justice.

Last night Solicitor General Lesley Thomson rounded on critics of the plan.

In an exclusive interview with The Sunday Post she said: “Many elderly people, women and children who have been victims of crime are currently being denied access to Justice in Scotland because of the centuries old requirement for corroboration. By their nature, crimes against women, children and older people are often carried out behind closed doors.

“Cases of rape, domestic violence, child sex abuse, neglect or abuse of elderly people rarely have witnesses, which often means the victims’ accounts cannot be corroborated.

“The victims of these types of crimes are also those who are the least likely to come forward, fearing because they are older or they are children that they will not be believed and that the court process will be too traumatic for them to face.

“The current requirement for corroboration places an added hurdle in their way.”

According to Police Scotland more than 3,000 victims every year are not having their cases presented to prosecutors. The Solicitor General added that even many seemingly solid cases given to them don’t see the inside of a court room.

She said: “On a daily basis, Scottish prosecutors are being forced to tell victims that despite the existence of strong, credible, reliable evidence which supports their case it will not meet the hurdle of the requirement for corroboration. That does not happen in any other European country and it should not be happening in Scotland in 2014.

“I completely respect the views of those in the legal profession who fear that abolishing the requirement for corroboration will lead to miscarriages of justice.

“However, prosecutors would not simply take the word of one person against another as has been suggested. We would always look for supporting evidence.

“The current corroboration law means too many victims are denied access to justice and that is a situation no modern legal system should tolerate.”

Police Scotland have also given their backing to the proposals and branded the current legal requirements “inconsistent”. Assistant Chief Constable Malcolm Graham said: “One of our key concerns is the law as it stands is potentially discriminatory against particular vulnerable groups such as the elderly.

“We consider the maintenance of such a technical barrier, and the devastating effect we see it having on the lives of those affected by it, is inconsistent with those efforts and our core values of fairness and respect.”

However, despite the unity of opinion between the police, prosecutors and the Scottish Government, the plans have been widely attacked by those in the legal profession.

Former High Court Judge Lord McCluskey said the plans were “bizarre”.

He went on to cite instances in England where a lack of corroboration allowed a string of corrupt police investigations, including the fabrication of evidence into the Hillsborough disaster and the Birmingham Six case.

Lord McCluskey also pointed to the failure of the Metropolitan Police to properly investigate inconvenient truths in relation to the Stephen Lawrence case.

Criminal defence Advocate Lewis Kennedy also believes the Scottish Government’s plans are poorly thought out.

He said: “Lawyers are scratching their head at the latest utterings from our Justice Minister. He tells the Justice Committee he wants to abolish corroboration, but he says a prosecution won’t be brought on the word of just one witness and that there will have to be ‘additional supporting evidence’. What exactly does that mean? Is that not what we have now?

“He goes on about victims and access to justice. But in criminal procedure it should be remembered that, before conviction, there is no such thing as a victim because we still have the presumption of innocence.

“In any event, I think you’ll find that frontline police constables aren’t terribly keen on this development. Senior officers will be able to send them out on their own, as they no longer need to go round in pairs for evidential reasons.

“What’s old-fashioned, if you’re charged with a criminal offence, with being tried before a jury, and the prosecution having to establish its case beyond reasonable doubt on corroborated evidence?

“How is that unsuited to the modern age? Why assume our ancestors got those things hopelessly wrong?

“It’s not right that a government with only a temporary majority can ignore seriously informed opinion and dispense with the common law and the accumulated wisdom of centuries.

“Legislation should not be done in this stubborn and bloody-minded way.”

The Scottish Government’s proposals were welcomed by charities for the elderly. However, they insisted more needed done to ensure courts were better equipped to receive their evidence.

Doug Anthoney, of Age Scotland, said: “Elder abuse can take place behind closed doors and sometimes there may be little or no supporting evidence. In many cases this involves ‘hidden harms’ such as mental or emotional abuse, making threats or withholding food or medicine. Changing the corroboration rule for these cases might help to make prosecutions possible. However, these prosecutions would rely more than ever on the witness testimony of older people who may have been abused.

“We should also make sure courtrooms are not intimidating places for them.”

Justice Secretary Kenny MacAskill said on Tuesday he would delay plans for the abolition of corroboration so a review into how the proposals could impact on Scots Law could take place. However, he made it clear he had no intention of giving any ground.

He said: “Do not doubt my commitment to seeing the corroboration rule abolished. The provision of justice is not a game. This is about getting it right for everyone, society, victims, and accused. I repeat that I remain open to constructive suggestions.

“But I will not stand by and allow our system to perpetuate its reckless disregard for those being denied access to justice.”