‘Domestic abuse is possible because women and men are not equal in Scottish society… the abolition of corroboration is an essential and long overdue reform which prevents justice for all in strong cases’. So said the Justice Secretary Kenny MacAskill recently as he reflected on the long journey to abolish corroboration in Scots law, emphasising its role in preventing miscarriages of justice for domestic abuse victims. Lined up in support of abolition are agencies representing victims such as Rape Crisis Scotland, Scottish Women’s Aid alongside the heavyweights of criminal law enforcement, Police Scotland, the Crown Office Prosecution Service’s and its new National Domestic Abuse Prosecutor.
Some facts: Police Scotland are called to a domestic abuse incident every 9 minutes (yes – every 9 minutes) and 11 women were murdered by a partner or ex-partner in Scotland last year. This is not about fisticuffs between warring couples. This is dangerous criminal behaviour involving threats and abuse, stalking, harassment, attempted murder, serious assault, rape, attempted rape or sexual assault. Weapons, fire-raising and vandalism are commonly involved. Some cases involve serial perpetrators who have committed offences against a number of ex-partners sometimes going back years – one perpetrator was responsible for offences against 20 previous partners. Domestic abuse accounts for 15% of all violent crime in Scotland and takes up 20% of police time. Domestic abuse is serious business for Scottish police.
Whilst on average over three quarters of domestic abuse incidents are reported to the Procurator Fiscal, a great many – 60% in one sample taken by the Crown Office – went no further due to the lack of corroboration. According to the most recent Scottish Crime and Justice Survey, most of the adults who had been seriously sexually assaulted were women assaulted by partners or ex-partners. Although almost 8,000 sexual offences were reported last year almost a quarter resulted in no proceedings because of lack of corroboration. A great many cases are slipping through corroboration’s closely woven net. The message from those supporting abolition is that we should not have a system or a society where a whole category of witnesses and victims are denied access to justice. A society where groups of criminals and perpetrators wait until there are no witnesses before committing their crimes and are confident of getting away with it.
There is no getting away from the reality that in many of the crimes which fail the corroboration test the victims are women and others such as young people, the elderly or disabled. They are made vulnerable by an unfair criminal justice system which demands corroboration and gives perpetrators and predators carte blanche to offend with a low risk of being caught. No witnesses. Victims feared reprisals from the perpetrator as well as the challenges of an intimidating court system. As the figures show, many victims are denied their day in court and perpetrators carry on as normal. Repeat victimisation is rising and accounts for over 60% of all reported domestic abuse incidents.
The requirement for corroboration in criminal proceedings is unique to Scotland and has been around since the middle ages. It has become so tightly woven into the DNA of those warring but deeply co-dependant bedfellows, the criminal and legal fraternities, that the prospect of its removal is threatening to ca’ the feet from underneath them. Two sides of the same coin, the criminals and their legal agents are a conservative bunch overall and the latter are not happy bunnies. Domestic and sexual crimes carried out behind closed doors are an outmoded but remaining legacy of the age-old male entitlement to undertake the correction and control of ‘their’ women and children. The legal profession is hanging on to its strongly vested interests in maintaining the status quo. It is all so 19th century and has no place in a just and heading-for-equal society.
The recent legislation permitting equal marriage in Scotland was a great achievement. That drive towards a more equal society faced opposition from vested interests keen to maintain an unequal status quo. Similarly, many victims of the most violent crimes in our society are excluded from a justice system which is now effectively colluding with some of society’s most dangerous and predatory offenders. This ambiguity inherent in the current system should be removed. Large numbers of Scottish citizens, victims of ‘private’ crimes committed out of sight, are being denied the freedoms enjoyed by victims of more public crimes. Abolishing corroboration will not reduce the standard of evidence required in trials involving ‘private’ crimes but would allow the quality of that evidence to be tested in court – the role of the National Domestic Abuse Prosecutor and the proposed new safeguards built into the trial process are crucial here. There is no evidence that there are more miscarriages of justice in jurisdictions where corroboration is not required. Change sometimes requires a leap of faith – a leap which could land in a future which is fairer for all.