The Criminal Justice (Scotland) Bill currently before the Scottish Parliament seeks to abolish the requirement, known as corroboration, that there must always be two separate sources of evidence before a case can proceed to trial. Derek Young weighs up the potential pros and cons for older people.
Justice Secretary Kenny MacAskill’s ambition of removing the requirement for corroboration, which is rare around the world, has stimulated much heated debate. Some MSPs, and most judges and lawyers are opposed, fearing that its abolition will lead to miscarriages of justice. Yet the move is supported by the police and some groups representing victims of crime. So where does Age Scotland stand?
In Scots law, corroboration is the principle that two distinct sources of evidence are needed for all the key elements of a criminal offence before charges are brought and a case proceeds to trial. The principle has been part of Scots criminal law and procedure since time immemorial, and first appears in the Bible. The philosopher and legal scholar, David Hume, wrote: “our law is averse to rely on [a witness’s] single word, in any inquiry which may affect the person, liberty, or fame of his neighbour.” Equally, if an older person is wrongly accused of a crime, s/he may be glad of the corroboration rule so that the evidence of a single witness against them would not be enough to allow a conviction.
But some are not convinced of its value. The police have long-favoured abolishing it. They claim it uses up police resources and denies justice in cases where there is only one witness, and might contribute to under-reporting of crimes which are unlikely to be proved. They also say that this often happens where crimes against an individual are committed in private – such as sexual offences and child abuse.
The law on elder abuse was updated in 2007, following much campaigning by Age Scotland’s predecessor charities. But this aspect of the law was not changed. Elder abuse can take place behind closed doors, and sometimes there may be little or no supporting evidence – especially if it involves ‘hidden harms’ such as mental or emotional abuse, making threats, or withholding food or medicine. Changing the corroboration rule for these cases might help to make prosecutions possible.
However, these prosecutions would rely more than ever on the witness testimony of an older person who may have been abused. In any trial where a conviction depends this, it is likely to be in the accused’s interest to challenge the witness’s credibility or reliability. Judges or juries who see and hear frail or vulnerable witnesses, who may have difficulties hearing, or cannot easily follow complex questions put to them in court, might also doubt the witness’s memory about crucial details because of stereotypes about older people’s abilities. Prosecutors might also be reluctant to bring charges in the first place if they think there’s a real risk that an abused older person could be undermined as a witness.
We think prosecutors and judges should be aware of these risks and be prepared to take appropriate action. The Crown Office and Procurator Fiscal Service produced a welcome new guide for prosecutors on these issues last year. It’s also important that we ensure that courtrooms are not intimidating places for older victims of crime, and judges and juries should also be aware of the risks that they might be susceptible to these stereotypes.
Derek Young is Age Scotland’s Policy Officer