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Research Report: The Impact of Corroboration on Prosecution

Data commissioned from and provided by Crown Office and Procurator Fiscal Service

June / July 2011

Aim of the research

The Review wished to gain some understanding of the possible effect of the current requirement of Scots criminal law for essential facts to be proved by corroborated evidence. To aid the Review in this, the Crown Office and Procurator Fiscal Service (COPFS) was asked to consider whether they held data that could be analysed to indicate what effect the abolition of the corroboration requirement might have.

Methodology

COPFS held data on cases where an accused person had been placed on petition and the case had been marked 'no further proceeding due to insufficient evidence'. There were a number of caveats (mentioned below) in using this data. However, it was considered that, in the absence of any other relevant data, this provided the best and most robust route to take in assessing any effect.

COPFS were able to identify 458 such cases, covering the calendar year 2010. COPFS also identified a further 141 sexual offence cases, covering a period of six months from 1 July 2010 to 31 December 2010, which were reported to its National Sexual Crimes Unit, but where the accused was not placed on petition due to lack of evidence.

As this data was both confidential, subject to data protection requirements, and required someone with experience of the prosecution side of the criminal justice system, COPFS identified two procurators fiscal (an experienced prosecutor currently working with solemn cases in COPFS and a recently retired senior District Procurator Fiscal) to assess these cases. This work started on 20 June 2011 and finished 8 July 2011, with the two fiscals taking ten working days over the three week period to complete it. The costs for this work were met by the Review.

The fiscals applied a two-stage test. First, they considered for each case whether there would be sufficient evidence to prosecute if the corroboration requirement were removed. Secondly, they applied a qualitative test to the available evidence. Using the methods applied in England and Wales, they looked at the credibility and reliability of the available evidence and considered whether there was a reasonable prospect of securing a conviction. In reading the tables it is important to remember that the removal of the requirement for corroboration would not guarantee a conviction in these cases.

This research looked at the relatively small number of cases reported but marked for no proceedings. It cannot be determined how many cases the police did not report to COPFS because there was obviously only one source of evidence and therefore insufficient for criminal proceedings.

Table 1 lists the cases, broken down by crime type, where an accused person had been placed on petition but his/her case was subsequently marked 'no further proceeding due to insufficient evidence'. These have then been remarked by the fiscals engaged in the research to determine whether the cases would have proceeded to trial on the basis that there would be a 'reasonable prospect of conviction', were the requirement for corroboration not a factor. These cases cover the whole of Scotland for the 2010 calendar year. Table 1

* Table 1 includes sexual cases where an accused person was placed on petition but then marked for no further proceedings due to insufficient evidence. Table 2 covers cases that have been reported to National Sexual Crimes Unit but where the accused was not placed on petition due to lack of evidence. There are, therefore, sexual offence cases that appear in both Tables 1 and 2 although the numbers are low.

Table 2 provides information, covering the whole of Scotland for a six month period from 1 July 2010 to 31 December 2010, on cases reported to the COPFS National Sexual Crimes Unit but where an accused was not placed on petition. These have then been 'marked' by the researching fiscals to determine whether the cases would have proceeded to trial on the basis that there would have been a reasonable prospect of conviction, were the rule of corroboration not a factor. Of the 46 cases where there would be no reasonable prospect of conviction, this is further broken down by the reasoning, other than insufficient evidence.

Table 2

The Sexual Offences Analysis covers all cases where no proceedings or no further proceedings were instructed by the National Sexual Crimes Unit during the last six months of 2010. The National Sexual Crimes Unit considers all serious sexual crimes cases submitted to the Crown Office and Procurator Fiscal Service by the police.

Caveats

• Apart from sexual offences reported to COPFS National Sexual Crimes Unit, the review was only able to consider cases on petition and then marked "no further proceedings". The numbers of cases marked for no proceedings at all due to insufficient evidence are significantly higher.
• The numbers of cases which are never reported to the Procurator Fiscal by the police due to lack of evidence is unknown. As data is not gathered on this, by either the Police or COPFS, the proportion of cases not reported because of no evidence at all compared to cases with insufficient evidence is not clear.
• Although it is fairly straightforward to establish whether there would be a technical sufficiency in the absence of a requirement for corroboration, applying a qualitative test is a much more difficult exercise. This requires greater use of discretionary and qualitative judgment both by COPFS staff involved in case marking and by police officers investigating cases.
• The test applied in this research was whether there was a 'reasonable prospect of a conviction'.
• All serious sexual offences are reported to the COPFS National Sexual Crimes Unit where they are considered prior to being placed on petition.

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