Herald on Sunday, Sunday National, 2nd July 2023.
Last week in Parliament House, the Lord Advocate proposed that seven judges should do something dramatic: Dorothy Bain KC wants them to change the law.
She’s invited the Appeal Court to overrule a decision made by five judges 25 years ago, and which has been applied ever since. If they do so, the implications are huge – not only for access to justice for victims of sexual crime, but for the Crown Office’s workload.
But until Thursday afternoon, unless you work in the closed circle of legal Edinburgh, you wouldn’t have known the case was happening.
To understand what the Lord Advocate was arguing, you need first to understand what we mean by corroboration in Scots law. And once you understand that, you need to understand how it works – or more often than not, doesn’t work – in the prosecution of sexual crime.
The basic principle in our law is that a complainer’s evidence must be corroborated. Whether someone alleges that they were robbed, or assaulted, or the victim of sexual crime – you cannot be convicted on the evidence of a single witness.
Scottish police and prosecutors need to find a second, independent source of evidence which “strengthens, confirms or supports” the testimony the witness has given.
Prosecutors don’t need to corroborate every single fact at play in a criminal trial. Juries, for example, may be interested in the defendant’s motive for committing homicide – but this doesn’t need to be established on corroborated evidence.
Instead, Scottish prosecutors need to corroborate only the essential or crucial facts. These are generally pretty simple: that a crime was committed, and it was the accused person who committed it. That, in a nutshell, is corroboration.
Corroboration partly explains why Scottish police officers go on their patrols in pairs – two pairs of eyes being the minimum required in law successfully to huckle one of the lieges for breaching the peace – but you don’t need two eyewitnesses to corroborate a case.
Corroboration is often provided more indirectly, by facts and circumstances, by circumstantial evidence which is consistent with guilt, but which might admit other, innocent explanations.
The victim’s blood being found on your clothing might mean you stabbed them, or it might mean you cradled their body as you waited for an ambulance having found them in distress.
Either way, the physical evidence could back up the story that you were at the crime scene and may have been involved. Ultimately, it’s for the jury in serious cases to decide what they may of the evidence. Some cases are more difficult to corroborate than others. Most homicides leave behind them a wealth of circumstantial physical evidence to draw on.
How do you explain the accused person’s fingerprints on the haft of the knife? How do you account for the DNA match connecting the blood on the blade to the victim?
Forensic examiner, did you find any significant bloodstaining on the accused person’s clothes? Let’s turn now to the CCTV evidence.
Crimes that take place behind closed doors present greater challenges. The rigours of corroboration have been the subject of criticism by rape campaigners for decades.
Understandably so. Perpetrators don’t generally commit sexual violence surrounded by inconvenient witnesses. Like domestic abuse, sexual crime is likely to take place in private.
The foundation of a case is normally the complainer’s evidence that they were sexually assaulted by the accused. But how can we corroborate their story? In many cases, we can’t.
As things stand, in serious sexual offence cases, we need to corroborate that sexual contact between the victim and the perpetrator occurred, and occurred without the victim’s consent.Corroboration for one or other of these essential facts is often missing.
Forensic evidence may be available, but only if an assault is reported in the immediate aftermath.
We know that many – even most – victims of sexual crime don’t respond in this way. Sometimes the accused admit having intercourse with the complainer, but insist they consented.
This corroborates the first part of the complainer’s story – but leaves us with the task of corroborating lack of consent.
That’s where last week’s Lord Advocate’s reference comes in. Bain is asking the Appeal Court to overrule a decision handed down by five judges 25 years ago. The case is Smith v Lees. It’s a grim story.
The setting was a camping trip, involving a group of children accompanied by two adults. One of these adults entered a tent and, said prosecutors, indecently assaulted a young girl sleeping inside. The girl emerged from the tent visibly upset. The girl disclosed what happened and the alleged perpetrator was prosecuted and charged.
The second man told the jury about the state he saw her in, but he didn’t see what happened with his own eyes, only its aftermath.Convicted at trial, the man appealed – and successfully.
The High Court quashed his conviction on the grounds there was insufficient corroboration. In 1997, the judges held that evidence of distress could corroborate that something bad had happened – but couldn’t prove the girl had been indecently assaulted.
Evidence of distress could negate consent, they said, but not that any sexual contact actually occurred. Bain argues this approach is all wrong. Distress, she says, should be able to corroborate both elements of the crime.
This argument may sound technical. Its implications are anything but. If the Lord Advocate persuades the Appeal Court that five of their predecessors got it wrong – and most criminal practitioners believe she will – the practical implications are huge.
In a trice, hundreds – perhaps thousands – of sexual cases now dropped for insufficient corroboration could be prosecuted. The resource implications alone are immense.
When the law is made in Parliament, it is subject to an open process. The price for entry into the debate is low. The government publishes a policy memorandum explaining the thinking behind the proposals.Cost implications are published.
Civil servants draft explanatory notes to make sense of the legislative language. You can write to your MP or MSP. You can submit written evidence. The contrast with judicial law-making couldn’t be starker. If you ask court and prosecution officials about the dearth of media coverage and the challenges of getting hold of primary materials, they’re quick with excuses and justifications.
It is a question of ownership, they say. Everything is done ad hoc. In some cases, judges give the nod to share material. But you need everyone’s permission.
Then there’s GDPR considerations. And don’t forget the question of resources. Who takes charge of redaction? And who pays for it?
Some cases raise privacy issues. In criminal cases, it makes sense that the courts exercise caution about broadcasting intimate details of people’s private lives, identifying people who say they’ve been victims of sexual violence, or exposing witnesses to national attention.
As Lord Pentland observed last week, “courts aren’t entertainment”.
But this legitimate concern for privacy is no excuse to hoard court documents like buried treasure in cases raising real public interest issues.
Even the media are often left in the dark. The Crown and court service still make journalists do old-fashioned legwork to get hold of basic information.
Journalists are entitled to come along to court hearings, but if lawyers spend their submissions referring judges to a document nobody has seen, this makes gobbledygook of their arguments as they pull out chapter and verse.
How can you explain a case to the public which is made almost impossible for you to understand?
Last week, the court service launched a new livestreaming service – Court of Session Live – dipping its toe in the water by broadcasting a mannered legal appeal about which company should pocket over a million pounds. High value the claim might be. Blockbuster stuff it wasn’t. It is a good start – but only a start – in opening up public justice in Scotland.
Other jurisdictions manage to be more open. Cast your eyes across the Atlantic and courts there grapple with similar issues.
But when judges decide court documents should be unsealed, any member of the public can access screeds of information about a case, be it the details of the latest Trump indictment, or a note of argument in a big constitutional case running in front of the Supreme Court.Contrast that with litigation in our supreme courts.
Here, making justice accessible still doesn’t feel like a serious priority.
The court is a public service – but too often litigation in Scotland is treated like a private affair.Court documents – produced by public officers, using public money, to be considered in public, by the publicly-funded justice system – are treated like nuclear secrets.
The fact a case is the talk of the steamie in Parliament House doesn’t mean the public interest has been nearly adequately informed.
If Scottish justice wants to shed its image as insular and elitist – there’s still a lot more to do.
Andrew Tickell 