I suspect that most legal practitioners would feel, like me, that Lord Carloway is wrong to abolish the requirement for corroboration.
The logic underpinning his analysis is hard to follow.I reject the notion that Scotland should align itself with other legal systems and that their way of doing things is necessarily better than ours. The fact that Scottish criminal law sets such store by corroboration has, for centuries, been one of the benefits of our system, ensuring, as far as possible, that there is a proper level at which guilt must be established.While it is certainly true that cases are not coming to court, because there is a lack of corroboration, Lord Carloway should be open about the consequences of his reasoning. You have to say that the price you may pay for abolishing this rule is that more innocent people will be convicted. In the simplest terms, the evidence of a single duplicitous, lying, skilful witness would be sufficient to put a person in prison for the rest of his life. That is where you have to test it.The report provides statistics which show that more cases ? including sexual offences ? would be prosecuted if the corroboration rule was removed, and it suggests there would be a ?reasonable prospect of conviction? in many of these cases.I disagree. Indeed, in the longer run, the review?s recommendations could work to the detriment of rape victims. If it is one person?s word against another, juries may find it very difficult to convict and that could have a knock-on effect on the number of convictions.And again you run the risk that people are convicted on the say-so of just one witness who is convincing in court, perhaps testifying against an accused who is not good with words or makes a mess of it on the day.It is true that there are criminals who are not convicted because prosecutors cannot find corroboration and that must be very frustrating for the victims. But I approach the question from an unequivocal standpoint: it is better that 99 guilty people walk free than one person be convicted of a crime they did not commit.Then there is the wider impact of these recommendations. If you seek to abolish corroboration, that reinforces the need to keep the ?not proven? verdict, and to assess the size of a majority verdict required to convict. If it is to be effectively only one witness in a case, and seven of the 15 people on a jury do not believe that witness, surely that is reasonable doubt?Lord Carloway?s proposals should be discussed. Discussions are harmless, but a rush to frame an act, with little consideration, will inflict real damage on the legal system.