Changes to corroboration herald a quiet revolution of our legal system

What began with penny dreadful tales about the mad decisions of unelected ­Euro-judges in Luxembourg and Strasbourg, predictably enough evolved into domestic complaints from Tory politicians about any and all adverse decisions made by unelected British judges, on everything from Boris Johnson’s prorogation to High Court decisions confirming the Home Secretary was acting in flagrantly unlawful ways.

These objections are often dressed up as being concerned about “parliamentary sovereignty”, but scratch that argument, and what you really find is an over-mighty executive, impatient with and intolerant of any ­external check on its powers, however rarely these checks are exercised, however expensive they are for ordinary people to access.

READ MORE: Nicola Sturgeon describes Janey Godley as a 'force of nature' in emotional tribute

All of which is interesting because for most of the UK’s recent political history, it was the left rather than the right of our politics who were leery about the potential to achieve positive change through courts.

JAG Griffith’s seminal 1977 book The Politics Of The Judiciary took aim at ­comfy liberal assumptions about the rule of law and who it benefits in practice. Look who our judges are, he argued. Look at their social class position, their gender, their ­experience of work, their approach to trade union cases, and you will quickly ­identify unlikely and unreliable allies for the left. But recent experience suggests this ­outlook has taken a political twist in recent years.

Liberal delusions about the emancipatory potential of courts have evolved since Griffith’s analysis, but fantasies that the judges will save us from our dysfunctional politics seem in ruder health than ever, even as the American fairytale ­supporting this heroic vision of the law crumbles in front of our eyes.

But these dynamics are dynamic. ­With power having flipped to the Labour Party at the last Westminster election, it seems equally likely that their opponents – the losers they create through their Budget ­decisions, the special interests they decide not to service – will suddenly find a new appetite for the resolution of their political disputes through the courts. Change the government, and the people suing the government inevitably change too.

Scottish politics has its own parallels. People who have lost their political fight in Holyrood have frequently tried to ­litigate their way towards more congenial outcomes. Having failed to persuade a majority in Edinburgh of their cases for and against law reform, since 1998, ­landlords and property owners, gender critical ­activists, tobacconists, fox ­hunters, ­religious groups and big ­insurers have turned to law to relitigate their ­losing arguments in Holyrood. Some have been extremely successful.

(Image: Newsquest)

Against this complex political ­backdrop, anyone taking a pop at Scottish judges tends to cause a bit of an intake of breath – however modestly or mildly expressed the disagreement may be. It still isn’t the done thing. In the legal world – at least in public – misplaced deference still rules – but this insecurity about how much criticism of the courts is too much criticism extends to the wider media and politics too.

In recent years, we’ve seen judges ­appointed to chair public inquiries walk out on them, and nobody is impolite enough to ask what went wrong, or how much the botched job cost. Some academics will only criticise judgments they think reached the wrong decision behind closed doors, as if dissent represented some kind of disloyalty to the rule of law, or saying you think a court made the wrong call in a case constituted some kind of contempt.

Parts of Scottish political culture ­remains extremely unrelaxed about ­surfacing some kinds of ­disagreement. This attitude is unhealthy for our ­democratic culture. It’s hypersensitive, hypercautious, and risks losing the ­wholly legitimate space for us all to question how the court system functions.

I say all this because last week offered a powerful case in point of what should be an interesting controversy in our shared public life. And it isn’t because it happened in a court, and we aren’t really talking about it.

Thirteen years ago, Lord ­Carloway ­recommended that the Scottish ­Parliament should abolish corroboration. This is the longstanding rule which says that for

anyone to be convicted of a ­criminal offence in Scots law, there needs to be two independent pieces of ­evidence for the essential facts of the case. The ­essential facts are that the crime was ­committed, and the accused person ­committed it.

For decades, Scots lawyers have ­described the corroboration rule as an ­invaluable safeguard against ­wrongful ­convictions. You can’t be convicted in Scotland, the argument ran, on the ­evidence of a single witness, however ­superficially plausible or reliable they may seem. But not everyone agreed. ­Corroboration can be difficult to find in crimes which take place behind closed doors. Crimes predominantly affecting women and girls are often particularly challenging to prove.

The doctrine is also complicated. It takes me a couple of weeks to take my ­students through it, including all the ­fiddles, fudges and exceptions succession generations of Scots judges have written into the law. Back in 2011, Lord Carloway argued that corroboration is “an archaic rule that has no place in a modern legal system”, criticising the law as too technical, potentially baffling to juries, and in some cases, the cause rather than the ­corrector of miscarriages of justice.

Despite the Scottish Government’s enthusiasm for corroboration repeal, there was a significant backlash from the legal profession, in parliament, and in Parliament House to the idea. While Lord Carloway’s proposal was dropped, survivors’ groups continued to argue corroboration should be revisited without much success, and Carloway himself was promoted to serve as Lord President of the Court of Session and Lord Justice General of the High Court.

In this role, over the 13 years which have followed, the requirements for ­corroboration have changed significantly under Lord Carloway’s leadership. In a succession of cases, the Appeal Court has gradually dismantled almost all those technical distinctions, disapproved and overruled earlier decisions, always making corroborating evidence easier to achieve and enabling more cases to be prosecuted.

Last year, judges concluded that proof of a victim’s distress in the aftermath could corroborate the fact they’ve been the victim of a crime. Last week, the court held the same principle extends to disclosures where the victim doesn’t seem upset.

This is more consistent with what we know about trauma responses, and the fact that human beings adapt to and communicate about their experience of traumatic events in different ways, which may or may not include immediate distress.

But the court also held that a victim’s disclosure in the aftermath of an ­incident – identifying the alleged perpetrator – could corroborate both that the crime ­happened and that the accused committed it. It isn’t melodramatic to say this is a ­wholesale departure from the law taught in law schools across Scotland for the ­better part of a century.

(Image: MArtini)

How you will interpret this change in Scots law will depend on your ­perspective. If you oppose these developments, you might say corroboration has been ­indefensibly watered down by the High Court, with no democratic mandate to do so, raising chances innocent people are convicted for crimes they did not do, particularly in cases of mistaken identity.

For people who share the Lord ­President’s sense that ­corroboration had become too arid, too technical, too ­difficult, a barrier to justice – ­corroboration has now been transformed. It is simpler now, and easier to get. Many cases that were previously thought to have insufficient evidence will now be ­capable of being prosecuted.

Either way, the evolution in what counts as corroboration in Scots law will rank as one of the outgoing Lord President’s most far-reaching achievements in office, only made possible by patient development of the law over decades, coalition-building at the top of the Scottish judiciary and strategic messaging to prosecutors.

READ MORE: 'Best left in hands of UK': What Tory leader Kemi Badenoch has said about Scotland

But these aren’t the kind of skills you ­ordinarily associate with senior judges, who are always keen to stress that their job is to interpret and apply the law ­faithfully, rather than make it. There are good ­reasons why judges are ­anxious about being perceived as legislators. ­Legal processes are exclusive, expensive, ­untransparent, and often badly covered in the press. Parliament – in principle at least – is much more open and accountable.

But with corroboration, under the ­radar, unreflected in much media ­coverage and undiscussed in Holyrood, Lord Carloway and his colleagues have worked a quiet revolution.