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Reforming Scots Criminal Law and Practice: Additional Safeguards Following the Removal of the Requirement for Corroboration: Analysis of Consultation Responses


6 Submission From Accused For The Judge To Withdraw The Case

6.1 The final section of the consultation looked at whether the trial judge's power to rule that there is no case to answer should be widened.

6.2 Respondents were asked to consider whether, after all the evidence has been led and following an application from the accused, judges should have the power to rule that considering the evidence in totality, no reasonable jury could convict. At present, a judge can only allow an application that there is no case to answer in the absence of corroborated evidence of the essential facts.

6.3 Question 7 asked: 'Do you think that the circumstances in which the accused can apply to the judge to have the case withdrawn from the jury should be expanded to include circumstances in which the judge is of the view that no reasonable jury could convict the accused on the basis of the evidence led during the trial?'

Table 6.1 Whether circumstances in which accused can apply to have case withdrawn from jury should be expanded

Respondent group Yes No No response
Legal/ academic individuals (13) 9 1 3
Other individuals (5) 3 - 2
Advocacy (6) 2 2 2
Enforcement (2) 2 - -
Legal (5) 3 - 2
Other organisation (1) 1 - -
Total (32) 20 3 9

6.4 The table above shows that far more respondents agreed with this suggestion (20) than disagreed (three). Advocacy groups were split on this question, with two saying yes, two saying no and two who said they were undecided.

6.5 There were comments on this subject from 25 respondents, some simply stated their agreement.

The main themes to emerge from responses were:

  • That the appeal court already uses a similar test.
  • That this is similar to the 'no case to answer' test that is no longer allowed.

6.6 A number of respondents, especially from the legal/ academic group, pointed out that the Appeal Court already uses the 'no reasonable jury' test and saw no reason why the trial judge should not do the same.

6.7 Another main theme was the issue of 'no case to answer' which, respondents said, had been altered to remove from the judge the power to direct a jury to return a not guilty verdict on any charge on the ground that no reasonable jury would convict. One legal organisation explained:

"We consider that if the corroboration rule were abolished, the present formulation of the no case to answer submission would have little if any practical application. That is because the present test, which is whether there is a sufficiency in law, means in effect a decision as to whether there is sufficient evidence corroborating the crucial facts, and not whether the evidence would be accepted."

6.8 Allowing a trial to go ahead based on poor evidence means it may not be a fair trial. An advocacy respondent pointed out that a judge has to ensure proceedings are fair and protect the rights of accused. Another from the same group described the power to allow a judge to withdraw a case from the jury on the reasonableness text as "a good procedural safeguard. It is a safeguard that addresses the quality of evidence, which in the absence of corroboration, is particularly important."

6.9 A number of respondents disagreed with a suggestion in the Carloway Report that a judge should not be able to override a jury. For example, one legal/ academic respondent said:

"With respect, it is suggested that overlooks that while the jury is primary fact finder not all relevant evidence is admitted to the jury, on the basis of fairness to the accused and other public policy goals. Extending the ability of the judge to withdraw a case is an expansion of the usual rules of evidence."

6.10 Another legal/ academic respondent said: "If the requirement for corroboration were to be abolished, there is no need for any further change to the existing law on sufficiency of evidence at the trial stage. The issue for the trial judge would be the same as it is at present, except that there would be no need for corroboration."

6.11 Other comments from those supportive of this power included:

  • That this should also be allowed earlier in the trial, for example after the Crown has led its evidence.
  • That the Scottish Government should find a way to embed relevancy in the trial process.
  • That there is no guarantee the Appeal Court will overturn an erroneous conviction.
  • That this proposal should also apply to summary cases.
  • That this feature is already a safeguard in countries with no corroboration.
  • That allowing judges this power could prevent miscarriages of justice.
  • That preventing such cases going to trial could save time (for the courts and for jurors) and money.

6.12 Comments from those opposed to allowing judges this power commented that:

  • A single judge should not have the power to overturn a jury.
  • This could be used as a stalling tactic by the defence, which would delay proceedings and prolong the ordeal for the victim.
  • That the respondent is persuaded by the consultation that there is no evidence to support the need for this power.

6.13 An advocacy respondent was undecided in relation to cases involving children or young people. On one hand, they felt it would lead to better collection of forensic evidence in order to prove a case. On the other hand, they were concerned that in cases that rely on the testimony of children "their credibility could increasingly be called into question in terms of providing sufficient, good evidence on which to convict." They asked for guidelines on the credibility of witnesses and that all involved in cases involving children are fully trained in their needs and interests as both victims and witnesses.

6.14 Another from the advocacy group was concerned that this proposal could be used by lawyers to prolong a case and therefore prolong "a very difficult experience for the complainer."

6.15 Comments from a legal respondent included that many judges think trial judges should not have the power to take a case away from the jury. They also felt that this power might lead some judges to "apply his or her own personal, and perhaps idiosyncratic, view as to the quality of the evidence rather than leave the question to the jury." They also said that a minority of judges do support this proposal.