Lord Advocate set to win long battle against corroboration wrong turn

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MORTON v HM Advocate is one of those cases that every law student in Scotland has studied for almost a century. For 87 years, the case has…

MORTON v HM Advocate is one of those cases that every law student in Scotland has studied for almost a century. For 87 years, the case has structured how corroboration has been understood and applied by every layer of our criminal justice system.

And last week, the Lord Advocate asked a full bench of the High Court of Justiciary – a full nine judges – to overrule the better part of a century of legal practice.She’s asking Lord Carloway and his colleagues to take us back to the future by endorsing a looser idea of what kind of corroboration is needed for criminal cases to be put in front of a judge or jury, particularly sexual cases.

Although largely unnoticed by the Scottish media – because it has been largely untrumpeted and unexplained by the Crown itself – a significant number of disposals have been referred back to the Appeal Court, ­resulting in some significantly enhanced sentences where “judge’s errors caused them to under-estimate the seriousness of the offence”.First, the Scots law for Numpties ­version. The basic requirements of ­corroboration are fairly straightforward.

This is part of the reasons why the ­police send officers on the beat in pairs. In Scots law, two police officers can ­mutually ­corroborate one another’s ­evidence that the unfortunate citizen they’ve huckled had committed a breach of the peace.Corroboration doesn’t always require a second witness – an impossibility in many cases where domestic abuse or ­sexual ­offending takes place behind closed doors.

Arrested, charged and ­prosecuted – the jury convicted Henry Morton and the Sheriff handed him 12 months’ imprisonment. His lawyers ­appealed. Their argument? Where’s the corroboration here?While the ­victim and the witness on Annbank Street could both confirm the victim was assaulted – the court only had the ­complainer’s direct evidence that Henry Morton was the man who attacked her. The independent witness couldn’t say Morton looked like the man she’d seen.

 

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