Down with corroboration (I say)!

Photo by Andy T on Unsplash

Who’s ‘I’? Amanda Pinto – that’s who, but more about her later.

In Scottish criminal procedure, we place a great deal of emphasis on the principle 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 and, in Scotland, the prosecution achieves this standard by corroborating 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.

Not every legal system places such importance on the principle of corroboration: some of our English brethren seem (very) disinclined to follow us.

This week, distaste for corroboration has been voiced somewhat forcefully by Amanda Pinto QC, the incoming Chairperson of the Bar Council of England and Wales (the English equivalent of the Faculty of Advocates). Ms Pinto represents some 16,000 barristers and her views are therefore not to be dismissed easily.

Of particular concern to Ms Pinto seems to be UK Government proposals to introduce an element of corroboration into English criminal legal practice. Speaking to Jonathan Ames of The Times (of London), her main objection to the introduction of corroboration appears to be in relation to rape trials:

We’ve rightly come away from requiring corroboration [in England and Wales],” she says. “Because if you require corroboration in something that is typically between two people, then you restrict access for justice for some victims entirely.

Several years ago in Scotland, we also had a discussion on the merits of the continued use of corroboration in criminal proceedings. Lord Carloway (now the Lord Justice General), Police Scotland and the Crown Office and Procurator Fiscal Service were of the opinion that this requirement should be abolished. Significantly, the Faculty of Advocates and the Law Society of Scotland were opposed to this development. Warnings of possible miscarriages of justice were raised if this was allowed to happen. Corroboration was retained.

Nore recently (in 2019), groups representing survivors of sexual abuse made powerful and emotional submissions to the Scottish Parliament arguing that the requirement of corroboration be abolished. We still have the principle in place in Scotland.

Responding to these submissions by abuse survivors, Brian McConnochie QC, a senior member of the Faculty of Advocates went on record defending the current evidential requirement:

I know that some people consider that corroboration is something which we ought to abandon or abolish, and as often as not the argument is given that it should be abolished because nobody else has it. I’ve never been convinced by that argument. We went through a process where it was discussed at significant and considerable length, and at the end of that process the decision was taken that it should go no further.”

James Wolffe QC, the current Lord Advocate (head of the Scottish prosecution service) has openly stated that a review of corroboration could be on the cards, but Gordon Jackson QC, current Dean of the Faculty of Advocates has voiced the Faculty’s continuing opposition to such a development:

https://www.scottishlegal.com/article/lord-advocate-hints-at-renewed-attack-on-corroboration

Related Blog Articles:

https://seancrossansscotslaw.com/2019/04/22/scrap-corroboration/

https://seancrossansscotslaw.com/2019/03/01/corroboration/

https://seancrossansscotslaw.com/2019/12/28/alexa-theres-been-a-murder/

Copyright – Seán J Crossan, 9 January 2020

Alexa, there’s been a murder!

Photo by Grant Ritchie on Unsplash

Technology: blessing or curse?

The law has always had to deal with technological advances and these developments are often presented in a way which shows the legal system all too often playing catch up. The chronic problem of identity fraud is a case in point.

What if, however, we look at things from a different angle? Could the law use technology to its advantage?

Alexa, there’s been a murder!

Recently, I was intrigued by a story from the American State of Florida. In November 2019, it was widely reported that the Police in Florida had been able to solve a murder. Nothing particularly unusual about that, but it was the circumstances surrounding the murder which I found striking.

Adam Reechard Crespo was accused of murdering his girlfriend, Silvia Galva when she sustained a knife wound to her chest. Broward County Sheriff Department led the investigation into Ms Galva’s death and Crespo was the prime suspect.

The Sheriff’s Department was particularly anxious to obtain access to Crespo’s Amazon Echo speaker (which is connected to Amazon Alexa). It was believed that the transcripts of the recordings would shed vital evidence on the circumstances of the crime and the relevant search warrants were duly obtained by the officers of the law.

Interestingly, Crespo’s defence lawyers were also keen to have access to the Alexa transcripts in the belief that they might establish his innocence.

A link to the story on the Sky News website can be found below:

https://news.sky.com/story/amazon-echo-may-have-been-a-witness-to-a-suspected-murder-11852886

Before we get carried away, it’s useful to remember that forward thinking legal professionals (the police; defence and prosecuting lawyers) have always been keen to use technological advances in support of their work.

Photographic evidence

Some years ago, I was reading an article in The Derry Journal from Northern Ireland which recounted the story of the first murder trial in British legal history where photographic evidence was used. The accused was Father James McFadden, a Roman Catholic priest who was suspected of involvement in a conspiracy to murder William Martin, a Royal Irish Constabulary Inspector, in Gweedore, County Donegal in February 1889 (the locality was still part of the United Kingdom of Great Britain and Northern Ireland).

The murder took place against the backdrop to the so called Donegal Sheep Wars where wealthy landowners were driving their tenants off their estates in order to prioritise sheep farming. In this way, the situation was very similar to what happened in Scotland during the Highland Clearances. Father McFadden was a prominent supporter of the Irish Land League which was a political and social movement which campaigned against the actions of the landowners.

Anyway, back to Father McFadden’s fate: he was eventually acquitted of murder by the Court thanks, in no small part, to photographs which had been taken by the Glasgow born, James Glass (now residing in Derry). The priest’s defence lawyers had approached Glass to take a series of pictures of rural life in County Donegal. Their intention in doing so was to provide context to the case i.e. the harshness of day to day living for many people in that part of the world. Father McFadden eventually agreed to plead guilty to the far lesser charge of obstructing Police officers (for which he served 9 months in total in Derry Gaol).

A link to the article in The Derry Journal about Father McFadden’s trial can be found below:

https://www.derryjournal.com/lifestyle/a-derry-photographer-a-murder-and-a-court-case-1-5468222

Fingerprint evidence

Fingerprint evidence was first used in a criminal trial in the United Kingdom in 1902 where it was used to convict Harry Jackson who had been accused of the theft of billiard balls.

That said, in 1858, Sir William Herschel, a senior Magistrate in British ruled India was the first European who had allegedly compiled the first fingerprint register to assist him in his work.

A link to an article about the historical importance of fingerprint evidence can be found below:

https://www.oldpolicecellsmuseum.org.uk/content/learning/educational-programmes-and-tours/first-convictions-uk-based-fingerprint-evidence

The Telegraph system

In 1910, Dr Harvey Hawley Crippen was attempting to flee English justice. The doctor had murdered his wife and had taken passage on the liner, Montrose, which was sailing to Canada.

Crippen was travelling under a false name and had attempted to disguise himself. The Captain of the ship recognised Crippen and his lover (who was disguised as a boy in order to pass herself as the doctor’s ‘son’).

Captain Kendall ordered the ship’s telegraphist to send a message with this intelligence to Scotland Yard. This was fortunate because the ship had not yet left the telegraph range of the British Isles. Had the Captain made the discovery later, the story might have had a very different outcome.

Upon receiving this news, Chief Inspector Dew, who was leading the murder investigation, boarded a faster liner, SS Laurentic, which arrived in Canada before the Montrose. The good Chief Inspector boarded Montrose as it came into the St Lawrence River (he was disguised as a river pilot). The Captain of the Montrose had, by now good reason to believe that the fugitives would be caught. He invited the pair to meet the pilots as they were boarding the vessel. At that point, Chief Inspector Dew revealed his true identity. Dew was able to effect Crippen’s arrest because Canada was, at this time, still a Dominion of the British Empire.

Doctor Crippen was sent back across the Atlantic to England where, following his trial at the Old Bailey, he was executed by hanging at Pentonville Prison.

DNA samples

DNA evidence was first used in 1986 to convict Colin Pitchfork of the rape and murder of two girls (which had occurred 3 years earlier in the Leicestershire area of Narborough). Sir Alec Jeffreys, a genetic scientist, had made the fortuitous breakthrough that DNA could be used to solve crimes as part of his research. Crucially, the test which Jeffreys developed helped to clear the name of an other suspect in the investigation (Richard Buckland).

A link to an article in The Guardian reflecting on the 30th anniversary of this momentous effect of DNA profiling can be found below:

https://www.theguardian.com/uk-news/2016/jun/07/killer-dna-evidence-genetic-profiling-criminal-investigation

The Elaine Doyle Murder Case

The contribution of DNA as corroborative evidence was powerfully brought home to me in a fairly recent Scottish murder trial and appeal before the High Court of Justiciary in which a 30 year old murder was finally solved (see Her Majesty’s Advocate v John Docherty [2014]; and John Docherty v Her Majesty’s Advocate [2016] HCJAC 49 HCA/2014/3517/XC).

I have to confess more than a slight interest in the case: my father was a member of the CID team which worked on it during the mid 1980s.

In 1986, Elaine Doyle aged 16, was found murdered near her home in Greenock. Despite an extensive Police investigation, the murderer was never caught. Hopes of a breakthrough to this unsolved murder seemed to dwindle as the years went by.

Until a breakthrough came unexpectedly (and somewhat sensationally) in 2012 when John Docherty was identified as a suspect.

As Lord Carloway, the Lord Justice General, noted crime scene officers at the time of the murder had collected DNA evidence – the value of which would only become apparent nearly 3 decades later:

‘The principal evidence against the appellant [John Docherty] came, first, from matches between the appellant’s DNA, ultimately obtained in 2012, and cells captured on tape applied to the body of the deceased as it lay in the lane shortly after its discovery.’

As Lord Carloway, the Lord Justice General also remarked in the murderer’s appeal against conviction and sentence (in 2016):

‘The protection of the crime scene in 1986 was not as it would be today. By coincidence, an early part of the investigation at the scene was video recorded, in what was then a pioneering experiment. This was in the days before DNA profiling had captured the imagination of criminal investigators; modern processes only having been developed two years later.’

It was during a review of the tape sample in 2008 (when the extraction of DNA from older samples had greatly improved) that the first steps towards a tentative breakthrough arose. In 2011 and 2012, a review of the index of names held by the Police led to John Docherty being traced. In 1986, a friend of Docherty’s had identified him as a person of interest in a statement to the Police. Regrettably, Docherty was never questioned. When this omission came to light during the cold case review in 2011/12, Docherty was asked to provide a voluntary sample of DNA to the Police – along with the hundreds of other local men who were viewed as potential suspects. Docherty actually provided two samples and these matched the cells captured on the piece of tape taken from the crime scene in 1986.

Docherty was finally brought to justice in June 2014 when, after a 52 day trial at the High Court of Justiciary in Edinburgh, he was convicted of the murder of Elaine Doyle. Sadly, Elaine’s father never lived to see this day.

Although Docherty’s defence team challenged the DNA evidence on the grounds that the 1986 sample could have been contaminated and was therefore unreliable, the jury (by majority verdict) clearly was of the opinion that the Crown’s evidence proved beyond reasonable doubt that he was the murderer.

A link to the judgement of the Appeal Court of the High Court of Justiciary can be found below:

https://www.bailii.org/cgi-bin/format.cgi?doc=/scot/cases/ScotHC/2016/[2016]HCJAC49.html&query=(Elaine)+AND+(Doyle)

CCTV footage

Finally, CCTV evidence has been used successfully by the prosecution to obtain convictions. In earlier Blog (Corroboration published on 1 March 2019), I discussed the use of CCTV footage in relation to the appeal of Jacqueline Shuttleton against a conviction for careless driving in terms of the Road Traffic Act 1988 (see Jacqueline Shuttleton v Procurator Fiscal, Glasgow [2019] HCJAC 12 HCA/2019/20/XC).

In the Shuttleton appeal, reference was made to an earlier decision – Gubinas & Radavicius v HMA [2017] SCCR 463.

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.

Related Blog article:

Corroboration

https://seancrossansscotslaw.com/2019/03/01/corroboration/

Conclusion

Although technology can often be portrayed as leaving the Police and the legal profession playing catch up, there can be no doubt that when the potential of these developments is appreciated they can be of great assistance to the cause of justice. In particular, advances in photographic and CCTV evidence and DNA and fingerprint samples have undoubtedly been of great service to criminal law – for both the prosecution and the defence.

Copyright – Seán J Crossan, 28 December 2019

Scrap corroboration?

Photo by Matthew T Rader on Unsplash

Should we scrap the requirement of corroboration in Scots criminal law?

Well … BBC Scotland reported that Speak Out, a group of survivors of sexual abuse think that this is an area ripe for urgent reform. Victims of this type of crime doubtless feel that the requirement of corroboration (a unique feature of Scots criminal law) acts as a barrier or an obstacle to them achieving some sort of justice in the courts.

A link to the BBC Scotland report can be found below:

Abuse survivor calls for end to corroboration

Sex abuse survivors are campaigning for the need for two separate sources of evidence to be scrapped.

 

 

Petition to the Scottish Parliament

A Petition has also been submitted to the Scottish Parliament by Maryanne Pugsley (PE1717: Inquiry into the abuse of children in Scottish state schools) calling for a review of the current requirement of corroboration.

Ms Pugsley addressed a Scottish Parliamentary Committee this week about her experiences of abuse in the 1970s while she was at school and the fact that the requirement of corroboration meant that her abuser was never convicted.

A link to BBC Scotland’s website contains footage of Ms Pugsley addressing MSPs about her experiences:

‘The abuse I suffered in the 1970s affects me to this day’

A link to Ms Pugsley’s Petition can be found below:

https://www.parliament.scot/GettingInvolved/Petitions/PE01717

Prospects for reform?

The prospect of reform is something of a forlorn hope on the part of Speak Out and Ms Pugsley because the Scottish Government has, again, recently ruled out any changes to the law.

Additionally, Brian McConnochie QC, a senior member of the Faculty of Advocates has also gone on record (in the first link to the BBC Scotland website above) defending the current evidential requirement:

I know that some people consider that corroboration is something which we ought to abandon or abolish, and as often as not the argument is given that it should be abolished because nobody else has it. I’ve never been convinced by that argument. We went through a process where it was discussed at significant and considerable length, and at the end of that process the decision was taken that it should go no further.”

In a criminal trial, the prosecutor must prove that the accused is guilty of a crime beyond  reasonable doubt. This is a very strict evidential 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.

In one of my previous blogs (Corroboration published on 1 March 2019), I examined some of the practical issues involved with corroboration by referring to a recent decision of the Appeal Court of the High Court of Justiciary (see Jacqueline Shuttleton v Procurator Fiscal, Glasgow [2019] HCJAC 12 HCA/2019/20/XC).

Mutual corroboration

Just this week, another decision of the Appeal Court of the High Court of Justiciary was reported – Khalid Jamal Her Majesty’s Advocate [2019] HCJAC 22; HCA/2018/330/XC – which concerned the principle of corroboration.

In this decision, which involved an appeal against conviction, the Appeal Court rejected the argument that an act of penetration (in a sexual assault case) does not have to be corroborated by scientific or medical evidence.

The act of sexual violence (rape) could be corroborated by reliance on other facts and circumstances. This approach is, of course, entirely in keeping with that famous Scottish criminal case – Moorov v HM Advocate 1930 JC 68 – which established the principle of mutual corroboration.

Moorov involved a shopkeeper who sexually assaulted at least 19 young women who worked for him over a period of 4 years. There were no witnesses to these incidents – except for the victims. The accused was successfully convicted because the testimony of the various victims was deemed adequate for the purposes of corroboration.

A link to Khalid Jamal’s appeal can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019hcjac22.pdf?sfvrsn=0

Postscript
On a more positive note, on 25 April 2019, John Swinney MSP, Deputy First Minister announced in the Scottish Parliament that child abuse victims who are elderly or terminally ill can make an application for compensation.
This is a simplified scheme and involves completing a very straightforward application form.
Please see a link to the story below:

Advance payment scheme for abuse victims opens

Survivors of childhood abuse who are elderly or terminally ill can apply now for compensation payments.
Copyright Seán J Crossan, 22 & 26 April 2019

Corroboration

Photo by Dorian Hurst at Unsplash

Introduction

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.

Conclusion

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:

https://www.scotcourts.gov.uk/docs/default-source/default-document-library/2019hcjac12.pdf?sfvrsn=0&utm_source=Scottish+Legal+News&utm_campaign=0bf929637d-EMAIL_CAMPAIGN_2019_03_01_08_33&utm_medium=email&utm_term=0_07336e1dbf-0bf929637d-66775629

Copyright – Seán J Crossan, 1 March 2019