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Abolishing the corroboration requirement in criminal trials

The requirement for corroboration in criminal trials is unique to Scots law. It means at least two different and independent sources of evidence are required before a defendant can be convicted of a crime. It disproportionately affects the victims of crimes where there are unlikely to be witnesses such as rape and domestic abuse.

The Carloway Review assessed the key elements of Scottish criminal law and practice following the decision of the UK Supreme Court in Cadder vs HM Advocate and led to the Criminal Justice (Scotland) Bill which seeks to remove the requirement for corroboration in criminal cases.

Carloway found that the law on corroboration bore no resemblance to its orginal form and there was no evidence or even anecdote to support the idea that the formal requirement for corroboration reduces miscarriages of justice and that the requirement was ‘outdated’ and ‘unjust’.

Lord Carloway’s view was that no additional safeguards are necessary if the requirement is removed. The Scottish Government, however, listened to concerns raised in responses to the SG consultation on Lord Carloway’s recommendations and undertook a further consultation on possible additional safeguards. This consultation considered the existing simple majority (8 of 15) for jury decision-making; the possibility of permitting a trial judge to remove a case from a jury on the grounds that no reasonable jury could convict on the evidence led; and the function of the not proven verdict.

As a result, the Bill will change the jury majority for conviction, from a simple majority of 8 to two-thirds (10 of 15). This additional safeguard is intended to maintain an appropriate balance between protection for accused persons, protection for victims and witnesses, and public protection if the corroboration requirement is removed. The Government has agreed in principle with the Scottish Law Commission to undertake a review of the not proven verdict once the Bill’s changes have bedded in.