09 Jan 2013

Radical change proposed to Scottish Criminal Law

Radical change proposed to Scottish Criminal Law

Peter Shepherd Criminal Court Partner at Aberdein Considine expresses concern at Scottish Government proposal to abolish requirement for corroboration in criminal prosecutions.

Peter Shepherd Criminal Court Partner at Aberdein Considine expresses concern at Scottish Government proposal to abolish requirement for corroboration in criminal prosecutions.

The Scottish Government are proposing the most radical change to Scottish Criminal Law in 300 years.  A Review of the Scottish Legal system was carried out by Lord Carloway and his most radical recommendation is that the requirement for corroboration be abolished in Scottish Criminal Prosecutions.  

At the moment the law is that no person can be convicted on the say of one person, there must be independent corroboration supporting the charge or allegation.  

The argument is that this brings us in line with other legal systems.  The problem however is that the “other legal systems” have all got other built in safeguards to ensure against erroneous convictions.  As Scotland had the requirement for corroboration no such safeguards have ever been built into their criminal justice system.  Sadly Lord Carloway does not state what safeguards will be built in and indeed the Scottish Government have openly stated that they intend abolishing corroboration and whilst they are putting the matter out to Review they are not prepared to change this proposal.  The change has been advocated by the Prosecution Services in Scotland who argue that it will be especially important in domestic abuse cases where there is often a lack of corroboration. 

The net result of course is that a wife will say that her husband assaulted her – now enough evidence but of course the husband will reply, no he didn’t, he was assaulted by the wife – of course there is now enough evidence.  The law states they cannot be sexist and the obvious difficulties have not as yet been addressed.

In other serious cases the scope for compensation claims arising out of wrongful convictions is about to become enormous. 

Lord Carloway had researchers working on his behalf who all astonishingly worked for the Prosecution Services.  The only other supporters of the abolition of corroboration were the Police and Rape Crisis Scotland.  Lord Carloway also consulted with The Scottish Law Society, The Scottish Law Agents Society, Faculty of Advocates and all Scottish Bar Associations who without exception were strongly opposed to the abolition of corroboration.  It is ironic that the Scottish Government who are advocating separation from England appear to want to change Scottish Criminal Legal System to incorporate the English Criminal Legal System.

Peter Shepherd, Partner

Read more: http://www.scotland.gov.uk/About/Review/CarlowayReview


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