The Criminal Justice (Scotland) Bill 2013 currently going through parliament proposes a number of changes to the criminal justice system. The Stage 1 debate will be held in the Parliament on Thursday the 27th of February.
One of the key changes is the removal of the requirement for corroboration in criminal cases. We are calling on MSPs to support the removal and improve access to justice for survivors.
This briefing intends to address some of the key questions and concerns which have been raised as part of this debate.
What is Corroboration?
Why should it go?
What will the removal mean?
Issues and concerns
· ‘There could be a lower conviction rate – with higher numbers going through’
What is Corroboration?
Dictionary definitions of “corroborate” include “to make strong” or “to strengthen”; “to confirm”; “to support with other evidence”; and “to make more certain”. These definitions and explanations of what constitutes corroboration appear straightforward to apply.
However in Scots Law this means every essential element of the key charges must be corroborated i.e. have 2 different forms of evidence. So in a rape case you need 2 forms of evidence that penetration took place, 2 forms of evidence that there was no consent, 2 forms of evidence of mens rea (1.) i.e. that the accused knew there was no consent and acted with malintent and 2 forms that it was the accused who committed the crime.
Corroboration as a legal principle in Scots law is different from the application of evidence which supports the credibility of the allegation. Support can be found in evidence that does not at present amount to the legal definition of corroboration, but is none the less highly persuasive. Currently this narrow technical meaning can be difficult to interpret and is not found in any other legal system anywhere in the world, including the international criminal courts.
This means there are often cases where there is a significant amount of quality supporting evidence, but yet not enough to corroborate every element and thus the case cannot proceed. This is particularly the case for crimes of domestic abuse and sexual violence which in the main happen in private, without witnesses.
Why should it go?
Since the Cadder ruling (which means that the Police cannot question the accused without legal representation there) it means that there is even less chance of obtaining admission and relevant information from the accused. This had a major effect on outcomes in sexual crime cases. Following Cadder there was a 31% drop in proceedings from the previous year.
In the past there may have been some admission of intercourse/sexual contact so at least some evidence has been obtained. Increasingly more accused persons are being advised by their lawyer to make no comment so gathering evidence from the accused person has been negatively affected.
The law is constantly changing. As it changes so we need to evolve.
This move takes into account in particular the experience of domestic abuse and sexual violence cases which are disproportionately affected by the requirement for corroboration. Crimes which are in the main committed in private and involve fear, shame and secrecy which often prevent prompt disclosure. For many other crimes it is likely to have less of an impact.
Currently there are a significant numbers of victims of sexual violence and domestic abuse whose cases do not get to court - 2800 cases of domestic abuse in the last 2 years and 170 rape cases.(2)
The Lord Advocate stated in his evidence to the Justice Committee that “COPFS consider that this provision will allow proceedings to be raised in a number of cases where at present the Crown cannot proceed due to a technical lack of corroboration but where otherwise the available evidence is of high quality and supports the victim’s version of events.” This is a move supported by Police Scotland.
What will the removal mean?
The removal will mean that some cases, where there is a significant amount of high quality evidence, but which currently could not proceed, would proceed to court. Some examples of the kinds of cases which currently can’t proceed are included later in this briefing.
If the requirement goes there will still need to be an assessment before proceedings are taken comprising of:-
a. a quantitative assessment– is there sufficient evidence of the essential facts that a crime took place and the accused was the perpetrator?
b. a qualitative assessment – is the available evidence admissible, credible and reliable?
c. on the basis of the evidence, is there a reasonable prospect of conviction in that it is more likely than not that the court would find the case proved beyond reasonable doubt?
The number of cases affected is likely to be relatively low. A review undertaken by the Carloway Review, The Crown Office and also Police Scotland indicate similar findings in terms of what corroboration would mean for proceedings.(3)
The numbers may be low but they are not insignificant, both for those victims affected and for the wider public safety concerns. This is about holding to account those who have committed serious crimes.
This means that cases where there is a significant amount of credible supporting evidence, but where not all aspects of the case are corroborated can proceed to court. The process in court; the weighing up of the evidence by the Sheriff and/or the jury will not change. It will still remain that to secure a conviction the case needs to be proven beyond reasonable doubt.
There have been a number of issues and concerns raised about this move. We will explore these in more detail here.
It is a long standing practice and unique to the Scottish Justice System
Is that a reason to retain it?
There are many aspects of law which have been here for hundreds of years. Sometimes we need to reflect and change to ensure we are the just society we aspire to be. Our justice system needs to be fit for purpose.
In Scotland until 1982 you could not be raped in marriage. Gay Marriage was agreed only recently by the Scottish Parliament – Sometimes we need to be bold in the face of opposition to do what is right to ensure equality and justice.
If it is unique then maybe we need to ask why – why does no-one else feel that it is the only way to ensure a fair trial?
Very little of the legal profession's criticism of the Government's proposal to remove the requirement for corroboration has had anything to say on how else the situation could be improved. Almost none of it raised any concern about those who are victims of these crimes. The clamour for the status quo does nothing to address the serious concerns that dangerous and abusive individuals are not being held to account.
What about miscarriages of justice?
This has been repeatedly stated – but there has yet to be presented any evidence that legal systems without corroboration have any higher rates of miscarriages of justice.
When this phrase is used the miscarriage of justice being referred to is for the accused. But what of the miscarriage of justice for the victim?
The continued strengthening of the rights of the accused has not been matched by corresponding concern for the rights of the victim. Only now with the new Victims & Witnesses Bill will a victim have an automatic right to special measures such as a screen so they do not have to see their attacker in court – that it has taken until now for even this most basic of facilities to be agreed speaks volumes as to whose rights are being protected within this system. Still the victim has no representation; no-one there with the specific purpose of ensuring their rights, concerns and privacy are respected.
We absolutely support everyone’s right to a fair trial. We just believe that the process should be fair for the accused AND the victim.
As the Lord Advocate stated in his evidence –“As a modern, 21st century society, Scotland must ensure that its criminal justice system is human rights compliant not only for suspects and accused but also for victims and witnesses, a fact that Lord Carloway recognised in his report”
It will be one person’s word against another
This has been repeatedly stated – this is misinformation, without any basis in fact.
All cases will be reviewed by the Crown Office.
The abolition of the requirement for corroboration will require the introduction of a new test for prosecution, as outlined above, which will focus on the quality of the evidence not just the quantity.
What will remain unchanged is that only cases which have a reasonable chance of conviction will proceed.
What about the other safeguards which need to be in place?
Let us be clear here. The basis of the verdict will not change. The case still has to reach a high threshold to secure a conviction: that the case has to be proved beyond reasonable doubt. That will not change and this is the mainstay of the safeguard against miscarriages of justice.
There are currently a range of protective safeguards for the accused including the right to silence with no negative inference, the right to legal representation from the very outset, no access to medical or personal records is allowed and no previous convictions (with the exception of the rarely used provisions in the Sexual Offences (Criminal Procedure) (Scotland) Act 2002) can be referred to. None of which are available to the victim whose whole life is scrutinised as part of their experience in court.
In the court setting where the majority of sexual crimes are heard in front of a jury, the jury is still the main decider of the outcome. The Bill is also looking at a change to the Jury majority – proposing a change in numbers from a simple majority out of 15, to 10 out of 15.
We do have some concerns about the impact this might have. Research commissioned by the Scottish Government (4) shows that nearly a quarter of the Scottish public think women are at least partly responsible for rape if they have been drinking, 27% of people blame women if they are wearing revealing clothing at the time of the attack, 29% if she has been flirting, 15% depending on the number of her previous sexual partners.
Juries are made up of members of the public and at least some of them are likely to hold these kinds of attitudes. We have real concerns about what this means for jury decision making in rape cases, and particularly so where a larger majority is required to reach a decision.
Often these are the factors which play out in the court room – prejudicial views that blame women and hold them responsible for rape – and attitudes which are exploited by the defence.
One young survivor in contact with Rape Crisis Scotland spoke about her experience. Her attacker was convicted, but the jury was not unanimous in its verdict. Despite all the evidence outlined below some people still did not believe a conviction was justified.
'I ran away from his home half naked in the snow; immediately after I left people heard me say, “help me, I have been raped”; his neighbour heard my screams; there was blood all over his flat; I had bruises covering my entire body; I had painful vaginal tearing; forensic scientists even showed how my tights had been ripped off, and how much force was used. It was ‘open and shut’. But someone still didn’t believe me.'
A previous consultation on the safeguards which should be considered was carried out (5) and following debate the Government have commissioned Lord Bonomy to review these issues further.
What about false allegations?
The underlying assumption in much of this is that women commonly lie about rape. This is untrue, yet attitudes prevail, including those held by people experienced within the justice system.(6)
Our recent campaign on false allegations (7) debunks many of these myths and has the backing of Sir Stephen House who is clear that “There is nothing to suggest either anecdotally or evidentially that false reporting of rape is prevalent, in fact such cases are very rare.”
Some of those against the change state that arguments such as ours are ‘ill informed’, ‘using emotion and anecdote’ (8)
If by that they means that the push for change is based on the consideration of real experiences, real lives and the impact of being involved in the criminal justice system then we would agree.
Statistics don’t often make sense and effect change. But real people talking about their experience can, and should.
Survivors have waived their anonymity and spoken about traumatic and difficult experiences, hoping that some learning and change might come from the difficulties they have faced.(9)
Victims have often been silenced through rape and abuse.
Most people do not report sexual violence. Reports vary as to the levels of underreporting. At local Rape Crisis Centres on average almost 1 in 4 report (10), however other research has indicated it could be as 1 in 10 (11). Many say they do not report because they feel there is no point, they fear they will not be believed, that court will be too difficult, that they will be judged and their lives exposed.
So the majority of sexual crimes are not reported. Only a very small proportion of cases ever get to court. Is this the justice system we are so proud of?
The 2012/2013 Scottish Government statistics
Rapes & attempted rapes reported to the police: Rapes & attempted: 1,462
Rapes & attempted rapes prosecuted: 138
Convictions for rape & attempted rape: 77
To sideline or diminish the significance of the traumatic story at the heart of so many cases and to insist that this sort of information cannot hold evidential weight is simply wrong.
We have also called for research into jury decision making, as has been done in England, to explore some of the influences and examine how able juries are to deliver decisions that are fair and just, given some of the rape myths which are prevalent in our society and that these play out, and are deliberately played out, in the court room.(12)
None of the legal profession support it
That is not true. Let us not forget we are having this conversation because of the Carloway Review which was prompted by the Cadder Ruling. Lord Carloway (who is currently the 2nd most senior judge in Scotland) is very clear in his belief that it should be abolished, based on his review of the evidence which he outlines clearly in his report.
The Lord Advocate spoke very powerfully about why he supports it. He stated in his evidence that “COPFS consider that this provision will allow proceedings to be raised in a number of cases where at present the Crown cannot proceed due to a technical lack of corroboration but where otherwise the available evidence is of high quality and supports the victim’s version of events.
The Lord Advocate and the staff at COPFS are the ones who review the cases passed from Police Scotland. They see the cases which don’t proceed. They see the evidence which could stand a reasonable chance of conviction but which do not go ahead. They are best placed to make a fair assessment of the need for and rightness of this decision.
Police Scotland are also clear about their support. Assistant Chief Constable Malcolm Graham has stated: “Police Scotland supports the recommendation that the absolute, quantitative requirement for corroboration should be abolished and believes it is the quality of evidence, not quantity that should be taken into account."
If we change it there won’t be the same motivation for the Police to secure evidence
Let us be clear this bill does not aim to take away the need to seek corroborative evidence. The Police will still be looking for all possible aspects of the crime to corroborate the account of what happened.
Since the formation of Police Scotland there has never been such scrutiny of the crime of rape, with each division now having a rape investigation unit with specialist officers trained in this field.
Every single rape reported in Scotland where there are no proceedings is examined by the Rape Review Team and the case and its Policing practice examined.
There is now a case tracking system in place for rapes so that we can get accurate figures about what happens once a report is made – for the first time ever giving us accurate conviction rates.(13)
Rape reports are up at alarming rates. This year there has been a 35% increase in sexual crimes, up on the 16% increase in the previous year – so that now you are more likely to be raped than robbed in Scotland.
Every adult who reports a sexual crime has a referral for support to Rape Crisis Scotland unless they opt out. As part of that process survivors are asked agreed questions about the Police and their response. This information is then shared anonymously with the Police. Never has there been such scrutiny and openness to learning and improvement.
Part of the increase in reporting is about increased confidence in the Police. The Police continue to work hard to get their house in order – there needs to be follow through with the rest of the Justice system.
There will be more plea bargaining/There could be more appeals
How do you know that? There is no basis for this suggestion. If there are outcomes which are unforeseen, which can often happen with legislation, then we address it. This is not a good enough reason to maintain the status quo which is failing survivors.
Clearer data is needed to allow better analysis of what is happening so we can clearly reflect on the impact of changes – something Rape Crisis Scotland has been calling for for a long time.
To make no changes to address current difficulties because of potential future difficulties leaves us with a status quo, which is failing the needs of many, but especially women and children experiencing violence and abuse from dangerous men.
Complainers will face a harder time in the dock
To use as an argument, and several have, that opposition to the removal is done out of a regard for the wellbeing of victims is a very poor argument indeed.
Currently even where there is overwhelming evidence and clear corroboration, do you think this makes the defence counsel less likely to give the witness a hard time? That is not what survivors tell us.
Being a witness in a court case can be a traumatic experience. It is up to us all to ensure that any witnesses, particularly those who are the victims of serious crimes, are as supported and protected as possible. We should all be acting to improve this experience, not to prevent people even reaching court.
This is an issue for the judiciary to address, given it is their responsibility to make sure questioning is relevant, proportionate and reasonable, and it is heartening to see judicial training on sexual violence outlined in the new Government Strategy on Violence against Women and Girls.
Survivors tell us often that questioning goes on for days, much of it questionable/irrelevant and not related to the crime. Survivors tell us their employment, their family, their previous relationships, their mental health, their use of contraception and indeed their whole lives are up for scrutiny.
A lot of relevant information about the accused is not admissible because it would prejudice the jury, but much of the focus of the evidence in sexual crime cases is aimed at prejudicing the jury against the complainer.
Your medical records are not looked at if you are robbed or if someone tries to murder you, but if someone rapes you it is likely that they will be - that private records covering conversations with your GP will be scrutinised, along with potentially other private records including education, Social Work, Health and counselling, any of which can be scrutinised for anything which can be used against you.
What happens in court is often more about the victim than it is about the crime. The use of sexual history and character evidence is often playing into the worst and most prejudicial beliefs in society – eg involving the stigmatising of people with mental health problems.
1 in 4 of us will experience depression – does that mean we are entitled to less justice than others? There is no evidence that people with depression lie more than others – why should that even be in the court room?
That is why Rape Crisis Scotland has called for increased legal protection and representation as part of the Victims & Witnesses Bill – to challenge this practice and improve the right to privacy for rape complainers – on a human rights basis. Article 8 says we have a right to privacy and in line with the European Directive on Victims’ Rights – it appears this is true – unless we are raped.
Revictimising a witness should not be part of any court case, and goes against the European Directive on victims’ rights.
The court culture needs to change – and Rape Crisis Scotland is calling for increased access to legal advice and representation around what information can be used.
There could be a lower conviction rate – with higher numbers going through
Much has been made of this move as being about improving conviction rates.
As The Lord Advocate stated in his evidence “the abolition of the requirement of corroboration is not about improving detection or conviction rates. It is about improving access to justice. It is about changing the law to ensure that criminals are not immune from prosecution, protected by complicated rules of evidence that create injustice. And it is about ensuring that the victims of those crimes do not have to sit in silence but have the opportunity for their voices to be heard”
There has been so much focus on corroboration that it has obscured the fact that this is part of a wider Bill – the Criminal Justice Bill, which along with other changes included in the Victims &Witnesses Bill are looking at a number of changes within the Criminal Justice system including having the choice of a female forensic examiner and automatic rights to special measures; measures which improve the justice system and are a step in the right direction in ensuring those who are guilty are held accountable, victims’ rights and privacy are protected, wider public safety is improved and the justice system is more fair, accessible and accountable.
This is one important area, but much more remains to be done.
The Appendix to the Lord Advocate's evidence submission to the Justice Committee included several examples of cases where the requirement for corroboration prevents further proceedings. These included:
The victim was at home asleep at night. She woke up to find the accused, who was a complete stranger, standing in her bedroom, brandishing a weapon. He raped her and threatened her, telling her not to report the crime to the police after he left. He also forced her to wash herself to get rid of evidence. She was terrified and did not contact the police. The following day whilst she was out, the accused entered the house again and stole items which may have linked him to the crime had they been forensically examined. A number of witnesses saw the accused taking these items away. The accused was clearly trying to destroy any evidence of sexual activity. The victim is credible and reliable and there was recent distress after the incident and the circumstances are highly supportive of her account. As there is no corroboration of penetration, we cannot prosecute the charge of rape.
The victim is a girl under 12 years of age. She was going to play with friends when she was grabbed by the accused and pulled behind a building. She recognised the accused as he lives near her. The accused unfastened his trousers and she could see he was wearing distinctive underwear. He put his hand under her clothing and indecently touched her. She tried to run off but he stopped her and threatened her. She managed to run away again but tripped over items and was grabbed again. She managed to break free again, ran home and told a family member what happened. She was screaming hysterically and showed where the accused had touched her. The accused was detained a short while later and was found to be wearing similar clothing and underwear as that described by the victim. On going to the locus, the police found a number of items which the victim had described, all of which support the credibility of the account given by the victim. No action could be taken as there was no corroboration in law of the commission of a crime.
In a Moorov case, where the evidence of one complainer to each crime corroborates the other, the failure of one witness to be able to give evidence at the door of the court has resulted in the collapse of the case as a whole. The evidence of the one witness, even if there was for instance evidence to say the accused and the victim were seen together at the time of the offence, would not be sufficient to provide corroboration.
1. (Mens rea, derived from the basic rule of actus non facit reum nisi mens sit rea) - conduct does not make a man guilty unless his mind is also guilty. This essentially means that without malicious intent, under the criminal law of Scotland one it generally not considered guilty of a crime
2. Figures taken from the Lord Advocate’s evidence to the Justice Committee of the Criminal Justice Bill
3. Research undertaken by the Crown Office for Lord Carloway’s Review found that of 141 cases reported to the National Sexual Crimes Unit during the last six months of 2010 which were placed on petition where no proceedings were taken, fiscals considered that 95 - two thirds - would have proceeded to trial had there been no need for corroborative evidence.
The Crown Office have subsequently undertaken a similar review as part of their submission to the finance committee as part of the Bill . From this exercise they estimated an additional 6% increase in solemn proceedings and 1% in summary.
Police Scotland also undertook 2 similar exercises. The first indicated a potential increase in cases which have sufficiency to proceed to COPFS as at 4.77%. The larger scale review concluded that there would be an increase in 1-2% of cases which were reported to COPFS. They conclude “There is no great volume of unreported matters, where a named suspect is known to the police, which would be likely to ‘swamp’ the justice system should the rules on evidence be amended as indicated”
5. Consultation here http://www.scotland.gov.uk/Resource/0042/00425488.pdf Responses here http://www.scotland.gov.uk/Publications/2013/06/7066/0
6. See comments for example http://www.scotsman.com/news/lord-mccluskey-plans-for-reform-ill-judged-1-3268306
11. British Crime Survey 2009/10 only 11% of participants reported a serious sexual crime.
13. There is no current accurate data on conviction rates because the ways in which Police and Courts record crime are different – 2 issues – one of time eg reporting vs going to court and one is by crime and the other by perpetrator so we are not comparing like with like.