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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