The not proven verdict and related reforms: consultation analysis

The Corroboration Rule

Key Findings

Preferences on use of the corroboration rule in different scenarios with different combinations of the number of verdicts available and the majority required for conviction.

• For each scenario presented, a higher number of respondents supported keeping the corroboration rule than either reforming or abolishing it.
• In each scenario, when reform and abolition numbers are combined, a similar number of respondents supported these, to those who wanted to retain the corroboration rule, although a significant minority of the reform responses wanted the corroboration rule strengthened or retained. Only a small minority of respondents supported abolition of the corroboration rule.
• Regardless of the scenario presented to respondents, broadly the same arguments for and against changes to the corroboration rule were provided.
• Of those wanting to see the corroboration rule kept, a key reason was that corroboration is an essential part of Scots Law and protects the innocent by providing a safeguard against wrongful conviction.
• Of those wanting to see reform to the corroboration rule, the key suggestion was for different requirements for crimes which occur in private, with a greater use of evidence based on qualitative rather than quantitative evidence. Conversely, a few respondents wanted to see reform to strengthen the corroboration rule.
• For the small number wanting to see abolition of the corroboration rule, the key reason was that this was seen to unfairly disadvantage victims of domestic abuse and sexual offences.

Required changes if the corroboration rule is reformed

• A key view raised, often from legal organisations and legal professionals, was that the corroboration rule does not need to be reformed or abolished; some of these felt the corroboration rule needs to be strengthened. However, there were also calls, largely from advocacy organisations and individuals, for the requirements of the corroboration rule to be reduced for sexual offences.

Whether further safeguards are required against wrongful conviction before any changes to the corroboration rule

• A significant minority of respondents (43%) across most sub-groups supported further safeguards against wrongful conviction being in place before any reform or abolition of the corroboration rule, compared to 34% who did not. A majority of legal organisations and legal professionals, those working in another justice system organisation, jurors, families and friends of those charged with a crime and victims and their families felt that further safeguards are required against wrongful conviction prior to any changes to the corroboration rule.
• The key reason for responses either to whether further safeguards are needed or not, was that there is no need to reform or abolish the corroboration rule as it is seen as necessary to provide a fundamental protection against wrongful conviction.
• Across respondents who made suggestions for additional safeguards, there was little consistency.

What can be done to help people understand the corroboration rule better

• A wide range of suggestions were made including information provision via schools, guidance and information to jurors, public information campaigns, information via websites and other online sources; provided using simple explanations in terms that can be understood by the general public.

Preferences for use of the corroboration rule under different scenarios

Q11: Which of the following best reflects your view on what should happen with the corroboration rule in the following situations?

a) If Scotland remains a three verdict system and keeps the simple majority

b) If Scotland changes to a two verdict system and keeps the simple majority

c) If Scotland changes to a two verdict system and increases the jury majority

(options given were for Scotland to abolish the corroboration rule, to reform the corroboration rule or to keep the corroboration rule as it is currently).

Respondents were also asked to give reasons for their answer to each of these scenarios.

131. As the following table demonstrates, significant minorities of respondents supported keeping the corroboration rule across each of these scenarios. However, when reform and abolition numbers are combined, a similar number of respondents supported these to those who wanted to retain, although a significant minority of the reform responses wanted the corroboration rule strengthened or retained.Only a small minority of respondents supported abolition of the corroboration rule.

132. If Scotland remains a three verdict system and keeps the simple majority, 43% of respondents wanted to keep the corroboration rule, 28% supported reform of the rule and 15% supported abolition. In terms of sub-group differences, a majority of legal and justice organisations, legal professionals, those working in other justice systems and academia / research, and those with experience of being a juror supported keeping the corroboration rule as it is currently. A majority of advocacy organisations wanted to see reform to the corroboration rule.

133. If Scotland changes to a two verdict system and keeps the simple majority, 44% wanted to keep the corroboration rule, 31% supported reform of the rule and 11% supported abolition. In terms of sub-group differences, a majority of justice organisations, those who have been a juror and those who are family or friend of someone who has been charged with a crime supported keeping the corroboration rule as it is currently. Conversely, a majority of legal and advocacy organisations supported reform to the corroboration rule, albeit that reform can mean different, and sometimes opposing, things to different respondents.

134. If Scotland changes to a two verdict system and increases the jury majority, 40% wanted to keep the corroboration rule, 30% supported reform of the corroboration rule and 13% supported abolition. In terms of sub-group differences, a majority of legal and justice organisations, legal professionals and those working in another justice organisation, and those who had been a juror supported keeping the corroboration rule as it is currently. A majority of advocacy organisations supported reform of the corroboration rule.

Q11	Number
	Keep	Reform	Abolish	Not answered
If Scotland remains a three verdict system and keeps the simple majority	85	55	30	30
If Scotland changes to a two verdict system and keeps the simple majority	87	61	21	31
If Scotland changes to a two verdict system and increases the jury majority	80	60	26	34

135. A total of 115 respondents opted to provide additional commentary in support of their initial response.

136. Regardless of the scenario presented to respondents, broadly the same arguments for and against changes to the corroboration rule were provided.

137. The key reason provided by a large minority of respondents who wanted to see the corroboration rule kept as it is currently was that corroboration is an essential part of Scots Law and protects the innocent by providing a safeguard against wrongful conviction.

"Corroboration provides a necessary and reasonable protection against miscarriages of justice." (Scottish Law Agents' Society, legal organisation)

138. Other arguments for retaining the corroboration rule as it is currently and cited by a few or less respondents included:

• The current rule is not broken and works effectively and is well understood. It has been developed over time and can be further refined as it is under ongoing review in the Appeal Courts. There were a small number of suggestions for regular reviews to take account of the changing ways in which evidence can be gathered.
• It is important that evidence does not come from a single source as this can be unreliable; the testimony of a single individual should not be sufficient to convict an accused person.
• The low conviction rate in crimes committed in private such as domestic abuse or sexual offences is not a consequence of a need for corroboration but more due to the way crimes are reported and prosecuted, and this needs reform. Additionally, use of the Moorov doctrine or the Howden principle provides further options for prosecution, as does growth in more sophisticated DNA and digital evidence or the use of dockets.
• A very small number of respondents noted that the corroboration rule has already been 'watered down' but is adequate as it stands.

139. For respondents wanting to see reform to the corroboration rule, the key suggestion was for different requirements for crimes which occur in private; some of these respondents felt that the corroboration rule as it is currently discriminates against certain types of crimes, particularly in domestic abuse and sexual offence cases, and can lead to fewer prosecutions. The respondents putting forward this point of view were largely advocacy organisations or individuals.

"Corroborated evidence for crimes that are usually committed in private provide a barrier to obtaining corroboration, such as domestic abuse, sexual crimes, and abuse that takes place in a private or domestic: abuse of older or otherwise vulnerable people. It is the particular crimes where the evidence should be based on qualitative rather than quantitative evidence." (Manda Centre, advocacy organisation)

140. Linked to this point, there were a few suggestions for the use of evidence based on qualitative rather than quantitative evidence. One advocacy organisation commented that the current evidential bar is so high that in their view only 10% of rape cases can reach it. This organisation also had concerns that corroboration in its current form is overly complex and inconsistently implemented.

141. One advocacy organisation noted that even if corroboration is reformed or abolished, the legal system still retains a number of other safeguards against miscarriages of justice.

142. However, conversely, a few respondents noted that the requirement for corroboration has now been so diluted that it fails to provide an acceptable level of protection to the accused; developments to the Moorov doctrine was given as an example of a change which has diluted the system to too great an extent. As such, there were suggestions from these respondents that the rule should be reformed so as to strengthen it.

143. There were also a very small number of suggestions that if corroboration is maintained, there is a need to aid understanding of it as well as a suggestion that it should be given a statutory footing with a legal definition.

144. For the small number of respondents wanting to see the corroboration rule abolished, the key reason was that the corroboration rule was seen to unfairly disadvantage victims of private crimes such as domestic abuse or sexual offences and is a barrier to accessing justice.

"Of principal concern however is the extent to which the requirement for corroboration acts as a barrier to accessing justice, particularly in the cases of many women and child victims of both sexual abuse and more general domestic abuse." (Senators of the College of Justice, legal organisation)

145. A very small number of respondents commented that the corroboration rule is historical and archaic and should have no place in a modern progressive legal system. A legal organisation noted that corroboration can act as an impediment to bringing cases based on the evidence of a single witness, regardless of the quality of that evidence. They further noted that the requirement for corroboration can act as a barrier to justice and that the rules regarding what might constitute corroboration are not always consistently understood by judges or jurors.

Views on necessary changes if the corroboration rule is reformed

Q12: If the corroboration rule was to be reformed, rather than abolished, what changes do you feel would be necessary?

146. A total of 119 respondents provided a response to this question, some of which were diametrically opposed to each other, with those in the legal profession wanting to see a strengthening of the corroboration rule and those in advocacy organisations wanting to see its requirements abolished or weakened.

147. A key theme emerging in response to this question and cited by a significant minority of respondents was that the corroboration rule does not need to be reformed or abolished. This view came largely from legal organisations and legal professionals.

"We consider that the requirement for corroborated evidence is not an antiquated or outmoded legal notion but is a fundamental principle on which the Scottish Criminal justice system has been founded." (Law Society of Scotland, legal organisation)

148. In line with preferences to retain the corroboration rule as it is currently, some respondents – primarily within legal organisations and legal professionals suggested the corroboration rule needs strengthening to a higher standard to reduce the potential for wrongful conviction. There were also a very small number of recommendations to discard the Moorov doctrine.

149. Echoing an issue raised at an earlier question, a significant minority of respondents suggested that corroboration should be unnecessary, or that requirements for corroboration should be reduced in domestic abuse or sexual offences. This issue was noted largely by advocacy organisations and individuals; one of these organisations noted that the requirement for corroboration poses significant obstacles that do not feature to the same extent in other types of crime and that the current system means that there is unequal access to justice for survivors of crimes committed in private.

150. Linked to this point, a small number of advocacy organisations and individuals suggested that all evidence should be considered on a qualitative basis.

"In every other country in the world, evidence of a crime is assessed on the basis of quality. Good quality evidence is the key to securing a safe conviction. In Scotland, however, good quality evidence of a sexual offence does not count unless it ticks the right boxes." (Speak Out Survivors, advocacy organisation)

151. The issue of education or information being provided to jurors was raised by a small number of respondents, so that, for example, jurors understand what types of evidence constitute corroboration and instances when specific types of evidence can be accepted as corroborating evidence.

152. There were also a small number of calls to abolish the corroboration rule; and some respondents were unable to make any suggestions as to what changes would be necessary. A legal organisation suggested that the rule should be simplified and codified and set out in legislation.

The need for safeguards against wrongful conviction if the corroboration rule is reformed or abolished

Q13: Do you feel further safeguards against wrongful conviction should be in place before any reform or abolition of the corroboration rule? Please give reasons for your answer, including what other safeguards you believe would be appropriate and why.

153. As the following table demonstrates, 43% of respondents, across most sub-groups supported further safeguards against wrongful conviction being in place before any reform or abolition of the corroboration rule, compared to 34% who did not feel further safeguards were necessary. There were some differences by type of organisation in that greater numbers of legal organisations and legal professionals supported further safeguards being in place, compared to advocacy organisations. Higher levels of support for the introduction of further safeguards also came from individuals working in another justice system organisation, victims and their families and jurors.

Q13	Number
	Yes	No	Not answered
Organisations (21)
Advocacy (8)	1	4	3
Academic (2) *	-	-	2
Justice (3)	-	1	2
Legal organisations (8)	5	2	1
Individual roles (professional / volunteer) (81)
Worked as legal professional (27)	16	8	3
Worked in another justice system organisation (21)	11	7	3
Worked for third sector organisation operating within justice system (18)	6	7	5
Worked as academic or professional researcher on issues related to justice system (15)	7	6	2
Personal Experience (87)
I have been / I am a victim / complainer / survivor of a crime that was reported to the police (34)	18	10	6
I am a family member or friend of a victim / complainer / survivor of a crime that was reported to the police (51)	20	18	13
I have been charged with a crime (6)	4	-	2
I am a family member or friend of someone who has been charged with a crime (13)	8	4	1
I have been a juror in a criminal trial (30)	18	6	6
Total individuals (179)	80	60	39
Total respondents (200)	86	67	47

* A total of 17 responses were received from academics; 2 from academic organisations and 15 from individuals who work as an academic or professional researcher on issues related to the justice system.

154. The key response provided by some respondents, including legal practitioners, legal professionals and other individuals who wanted to see additional safeguards against wrongful conviction put in place before any reform or abolition of the corroboration rule takes place, was that there is no need to reform or abolish the corroboration rule as it is necessary to provide a fundamental protection against wrongful convictions. A significant number of respondents who made this comment were legal organisations or legal professionals. A legal professional who had also been a victim of crime commented:

"Corroboration does an important job in protecting accused persons against wrongful conviction, which is essential in a democratic society."

155. While some respondents noted that other safeguards would need to be put in place to avoid miscarriages of justice, they generally did not specify what these additional safeguards should be or did not know what other safeguards would be effective.

156. While a number of respondents made suggestions for additional safeguards, there was little consistency in their recommendations. These included:

• An appeals process for all cases.
• Abolition of the not proven verdict.
• A statutory obligation on the police for two officer teams.
• A larger majority with 10:12 required for conviction.
• Unanimous verdicts required for conviction.
• A test for sufficiency of supporting evidence.
• Any additional safeguards would need to be as onerous as corroboration.
• Implementation of the safeguards recommended by Lord Bonomy's Post-Corroboration Safeguards Review Group, including the retention of corroboration in a narrow range of cases.
• A better qualitative approach at 'no case to answer' stage.

157. A number of respondents who did not feel that further safeguards against wrongful convictions should be in place before any reform or abolition of the corroboration rule, commented that the corroboration rule should not be changed and that current safeguards are satisfactory or that other safeguards are already in place.

158. There were a few comments on the need to focus on safeguarding victims rather than the accused and that the current system prioritising the needs of the accused more than the needs of the victim.

159. Other comments made by very small numbers of respondents who answered 'no' to this question, included:

• There should be a system of specialist courts and judges who can offer appropriate guidance.
• Any reform has to consider corroborative evidence for private crimes and use qualitative evidence.
• Queries as to how frequently wrongful convictions happen.
• Change to a qualified majority.

How to understand the corroboration rule better

Q14: If the corroboration rule was kept or reformed, what else could be done to help people, including those involved in the justice system and the general public, to understand it better?

160. A total of 108 respondents opted to provide commentary in response to this question.

161. A wide range of suggestions were made by respondents, many of which related to the provision of information.

"For victims who make the difficult decision to report an offence to the police it feels like walking blindly into a foreign land for which no map is provided. Whatever conclusions are drawn from the consultation, we hope that better guidance and information for victims at all stages of the criminal justice process will be one of the outcomes." (Speak Out Survivors, advocacy organisation)

162. A significant minority of respondents suggested that there should be some form of information provision via schools or for some basic information on the legal system to be incorporated into the curriculum.

163. Specific guidance and information to jurors was referred to by a significant minority of respondents, with suggestions for additional guidance to be provided when commencing jury service, jury directions provided by a judge or jury classes for all jury members. Two organisations in the justice and legal sectors suggested provision of a route to verdict^[6] for jurors, although these same two organisations noted that jurors are already provided with standard and specific directions about the legal concept of corroboration both in writing and orally. Some of these respondents also noted that information provided needs to be widely available in a range of formats to suit all needs. There were also a small number of suggestions for information to be provided to complainers and those who are accused of a crime and their families.

"The jury research indicated that juries had a lack of understanding around several key concepts, including the threshold of evidence required to prove guilt "beyond reasonable doubt" so guidance and clarification on such matters would be beneficial to juries and the public in general. This could be done as part of the work taking forward the recommendations from Lady Dorrian's review." (Scottish Women's Aid, advocacy organisation)

164. Provision of simple explanations using terms that can be understood by the general public and written in plain English was suggested by a significant minority of respondents across the legal and advocacy sectors and individuals. Allied to this, there were a small number of calls for a statutory definition to be provided.

165. Different types of public information campaigns were suggested by a significant minority of respondents, with references to public information campaigns about the not proven verdict and the corroboration rule, social media campaigns, mail drops and pamphlets provided in community locations such as GP surgeries or hospitals. One individual suggested a press campaign such as that used to inform people about the Domestic Abuse (Scotland) Act 2018.

166. Information via websites and the provision of online information were also cited as useful sources of information.

167. Across all of these potential sources, there were some suggestions not simply for a clear explanation but also for anonymised examples to be provided to help illustrate the explanation.

168. A very small number of respondents noted that corroboration is not a difficult concept to understand, that there is already a good explanation in the Jury Manual or that the general public do not need to understand legal concepts.