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In Chapter 1 of Introductory Scots Law, I discuss the importance of corroboration.  In a criminal trial, the prosecutor must prove that the accused is guilty of a crime beyond  reasonable doubt. This is a very strict burden in that the prosecution must be able to corroborate its evidence against the accused. Corroboration means that there must be at least two independent sources of evidence such as witness testimony and the use of expert and forensic evidence. Reasonable doubt is a nagging doubt which would lead a reasonable person to the conclusion that it would be unsafe and unjust to find the accused guilty. The requirement of corroboration was most recently challenged by Lord Carloway, now Scotland’s Lord Justice General, when he was asked to undertake a Review of the Scottish criminal justice system at the request of the Scottish Government.

On 17 November 2011, Lord Carloway (then the Lord Justice Clerk) controversially suggested in his published Report that the requirement of corroboration be abolished. This proposal did not find universal favour and, although the Scottish Government did attempt to implement this reform by way of the Criminal Justice (Scotland) Bill in 2013, it was abandoned in the teeth of strong opposition and did not form part of the eventual Criminal Justice (Scotland) Act 2016. Notably, Police Scotland, the Crown Office and the Procurator Fiscal Service had all favoured the abolition of the requirement for corroboration.

Recently,  the Appeal Court of the High Court of Justiciary has considered the issue of corroboration. I shall now turn my attention to the Court’s opinion.

Jacqueline Shuttleton v Procurator Fiscal, Glasgow [2019] HCJAC 12 HCA/2019/20/XC

The question before the Appeal Court (regarding a reference from the Sheriff Appeal Court) was principally concerned with whether CCTV footage from the locus of the alleged offence could be regarded as sufficient corroboration to prove the charge against the accused.

The accused (Shuttleton) had been charged with the offence of careless driving under Section 3 of the Road Traffic Act 1988 (as amended). She had been involved in a collision with another motor vehicle. There were no independent witnesses to the incident. A Police officer, PC Birrell, who was part of a mobile unit, came across the aftermath  of the collision. He and his colleague were able to view the collision later on CCTV footage (which a City of Glasgow Council camera had captured). PC Birrell had found the vehicles of the accused and another driver blocking the road. He was soon after joined by his colleague, PC Russell, and by this time the vehicles had been moved to the side of the road.

Upon viewing the CCTV footage, the police officers noted that the accused had been driving her white VW Polo; she indicated to turn right, but then without warning she turned left; this caused a collision with a vehicle behind her.

At the trial in the Justice of the Peace Court, the accused was convicted of the Section 3 offence, but  her defence agent objected to the provenance or authenticity of the CCTV footage. The Justice dismissed this objection and concluded that the footage was real evidence which was then proof of fact.

That said, the Justice found that the case raised an issue of “novelty and complexity”:

Whether the evidence of the two police officers who attended after the collision and viewed the CCTV footage could amount to corroboration or whether it is no more than a descriptive piece of (uncorroborated) real evidence.

The accused was permitted to appeal to the Sheriff Appeal Court which then submitted a reference to the Appeal Court of the High Court of Justiciary.

The Appeal Court was asked to consider the following issues:

(i) In situations where the actus reus (wrongful act) was caught on CCTV footage and was the sole piece of evidence, could the evidence of the two police officers who attended the locus and later viewed the CCTV footage be enough to establish corroboration or should it be regarded as having the status of no more than a descriptive piece of real evidence?

(ii) In situations where the act reus is caught on CCTV footage; is the only evidence of said act; and its provenance has been established, can the footage alone be regarded as sufficient evidence of the actus reus of the offence?

(iii) If the actus reus is caught on CCTV footage; is the only evidence of said act; and its provenance has been established, is the fact finder entitled to establish that the act has taken place based upon his viewing of the footage?

In its submission, the Sheriff Appeal Court made reference to a previous case – Gubinas & Radavicius v HMA [2017] SCCR 463 – that it was “at least arguable that … a corroborated case can be established on the basis of a single piece of CCTV alone, where the provenance of the CCTV is properly established”.

The “Cluedo” Reference

Gubinas & Radavicius contained a very interesting statement (at paragraph 59) which became known as the “Cluedo” reference (after the well known murder mystery board game):

….once the provenance of the images is shown, they become real evidence in causa which the sheriff or jury can use to establish fact, irrespective of concurring or conflicting testimony. Even if all the witnesses say that the deceased was stabbed in the conservatory, if CCTV images show that he was shot in the library, then so be it.

On the basis of the “Cluedo” reference, could it now be interpreted that CCTV footage had some sort of special evidential status?

The Appeal Court Opinion

Lady Dorrian, the Lord Justice Clerk, sitting with Lords Drummond-Young and Turnbull gave the unanimous opinion of the Court.

She made a number of really helpful statements in relation to the use of CCTV footage:

In Gubinas the court made it clear (para 56) that the CCTV footage was but one source of evidence, comparable to a witness speaking to events seen or heard, making it equivalent simply to one source of evidence. This did not suggest that the evidence was available as corroborated proof of fact, rather that further, corroborative evidence was required for sufficiency of proof. That this was so could be seen in the discussion of the role such evidence played in the issue of identification.”

Very wisely, Lady Dorrian went on to make a comparison with the use of fingerprint or DNA evidence. She noted (often) that fingerprint or DNA evidence on their own would not be sufficient grounds for convicting an accused. They would certainly be relevant, but not conclusive for corroboration purposes.

With regard to CCTV images, the authenticity (or provenance) of the footage must be established and then a “further cross-check” must be carried out. In Shuttleton case, the Police officers were able to demonstrate that the events recorded in the footage (i.e. the collison) were accurate. In fact, a nearby shop had a CCTV camera and the officers were able to obtain its footage which had also captured the collision. Although the footage from the shop camera was not shown in evidence at the Justice of the Peace trial, Lady Dorrian stated that this would have provided the “necessary corroboration”.

She concluded by stating that:

Footage from two separate cameras would be sufficient, as long as
these were two systems separate from each other.”

Her Ladyship in response to the three questions posed in the appeal reference (above) arrived at the following conclusions:

(i) No, it was not possible for the evidence of two police officers who arrived at the locus after the actus reus had been committed to provide sufficient grounds for corroboration. The evidence of the officers should be regarded as descriptive only.

(ii) Yes, in the circumstances, the CCTV footage could establish grounds for proving that the actus reus had indeed taken place.

(iii) Yes, in these circumstances, the fact finder (i.e. the police officers) after viewing the CCTV footage would have sufficient grounds for believing that the actus reus had been committed.


The Sheriff Appeal Court was quite correct to refer the issue of the evidential status of CCTV footage to the High Court of Justiciary simply because this was a matter which was routinely raised at many trials.

The High Court was not saying that CCTV footage should have special status for corroboration purposes. Its authenticity or provenance must first be established. It will then be important to determine whether the footage alone can establish evidence of the actus reus; and, finally, it will be up to the fact finder viewing it to conclude that the actus reus has taken place.

Assuming that these requirements are met, CCTV footage will be a very powerful form of evidence which can be used to establish corroboration. The “Cluedo” reference in Gubinas & Radavicius (above) can now be fully understood in the light of the Shuttleton opinion.

A link to the Appeal Court’s judgement can be found below:

Copyright – Seán J Crossan, 1 March 2019

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A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. I am a graduate and postgraduate of the Universities of Dundee, London and Strathclyde. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult a suitably qualified Scottish solicitor who will be able to provide you with the support that you require.

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