By Anne-Marie O'Donnell
Lord Bonomy has been named as the head of an expert group that will look at the introduction of safeguards to the Scottish legal system if corroboration is abolished following Justice Committee concerns at the proposal.
Justice Minister Kenny MacAskill put the Bill – which is in its first stage – on hold last month amid concern within Holyrood's Justice Committee about whether scrapping the historic need for corroboration was the right course of action for the criminal justice system.
Corroboration requires two independent witnesses or sources of evidence in criminal cases before a conviction can happen. However, the legal stipulation is cited as a major factor in the low conviction rates for sexual offences and domestic abuse cases.
There has been fierce debate within the Scottish legal sector over the proposal, which critics say heightens the possibilities of wrongful convictions and compromise the right to a fair trial.
"The Committee could not reach agreement on whether removing such a significant and integral part of the criminal justice system would improve 'access to justice' for victims of sexual offences in a meaningful way or indeed secure more convictions,” said Justice Committee Convener Christine Grahame MSP.
"Some Committee members do not believe, in the event that the requirement for corroboration is removed, that concerns relating to the need for further reform can be explored properly during the passage of the Bill and are therefore calling on the Scottish Government to provide much more information on its plans to review additional safeguards before the Stage 1 debate expected later this month.”
Lord Bonomy, a former High Court Judge who has served as a judge of the UN International Criminal Tribunal for the former Yugoslavia, will choose members to form a reference group that will consider if safeguards should be introduced to the Scottish legal system if abolition is abolished to lessen the risk of justice becoming compromised. The group could take up to a year to deliver conclusions.
The group will examine whether judges should be given the right to scrap a case on the basis that no reasonable jury could be expected to convict on the evidence presented, and whether a "formal statutory test for sufficiency based upon supporting evidence and/or on the overall quality of evidence is necessary”. The group will also consider jury size, the admissibility and use of confession evidence and whether any changes should be made to the practice of dock identification.
Victim support groups such as Rape Crisis Scotland and Scottish Women's Aid have been vocal about the need for legal reform to take into consideration the difficulty the current system presents for cases involving violence or abuse which often happens in secrecy. According to Crown Office statistics, only 25 per cent of rape incidents reported to police result in prosecution.
"Due to the nature of sexual crime, particularly rape, there can be significant difficulties in obtaining corroboration,” said Sandy Brindley, National Coordinator for Rape Crisis Scotland. "What this means is that the vast majority of rapes never even make it as far as court. This can have a devastating impact on rape survivors. It also raises the very real possibility of guilty men walking free”
Lily Greenan, manager of Scottish Women's Aid, added: "If a woman who has been so badly beaten that her neighbours fear for her life and who runs into the street with her clothes hanging off her is unable to get into court because there is no corroboration that it was her husband who did it this time, there is something wrong with our system.
"That is the kind of situation that we want to address. Although that evidence is anecdotal, it is fact - that is what happened: the case could not go to court because there was insufficient corroboration in relation to his presence in the house at the time of the assault.”
The Law Society of Scotland, however, and a raft of senior legal officials have warned that removing the need for corroboration could lead to miscarriages of justice, while Scots legal magazine The Firm has been campaigning since last year for the plans to be scrapped.