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Post-Corroboration Safeguards Review Report of the Academic Expert Group. Project Report n Chalmers, J., Leverick, F., and Shaw, A. (2014) Post-Corroboration Safeguards Review Report of the Academic Expert Group. Project Report. Scottish Government, Edinburgh. Copyright © 2014 The Scottish Government A copy can be downloaded for personal non-commercial research or study, without prior permission or charge Content must not be changed in any way or reproduced in any format or medium without the formal permission of the copyright holder(s) http://eprints.gla.ac.uk/99080/ Deposited on: 07 November 2014 Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk Post-Corroboration Safeguards Review Report of the Academic Expert Group August 2014 1 Post-Corroboration Safeguards Review: Report of the Academic Expert Group Post-Corroboration Safeguards Review Report of the Academic Expert Group August 2014 Editors: James Chalmers, Fiona Leverick, Alasdair Shaw (University of Glasgow) Members of the Academic Expert Group: James Chalmers, Fraser Davidson (University of Stirling), Peter Duff (University of Aberdeen), Pamela R Ferguson (University of Dundee), Fiona Leverick, Findlay Stark (University of Cambridge) Additional Contributors: Ingeborg Braam (Utrecht University), Leonie van Lent (Utrecht University), Fiona Raitt (University of Dundee), S J Summers (University of Zurich) i Post-Corroboration Safeguards Review: Report of the Academic Expert Group Post-Corroboration Safeguards Review Report of the Academic Expert Group August 2014 CONTENTS EXECUTIVE SUMMARY ____________________________________________________________ x 1. INTRODUCTION _______________________________________________________________ 1 PART A: BACKGROUND TO THE REPORT 2. CORROBORATION: CONSEQUENCES AND CRITICISM __________________________________ 5 3. THE EXISTING LAW OF CORROBORATION __________________________________________ 19 4. CAUSES OF WRONGFUL CONVICTION _____________________________________________ 30 PART B: ANALYSIS 5. EYEWITNESS IDENTIFICATION EVIDENCE __________________________________________ 44 6. CONFESSION EVIDENCE ________________________________________________________ 67 7. EVIDENCE OF ACCOMPLICES AND INFORMERS ______________________________________ 87 8. HEARSAY EVIDENCE ___________________________________________________________ 93 9. JURY DIRECTIONS ____________________________________________________________ 101 10. RECORDING OF POLICE INTERVIEWS ____________________________________________ 118 11. SHOULD THERE BE A STATUTORY SUFFICIENCY TEST FOR PROSECUTORS? _____________ 124 12. THE NO CASE TO ANSWER SUBMISSION _________________________________________ 132 13. JURY MAJORITY, SIZE AND VERDICTS ___________________________________________ 140 14. ALTERNATIVE APPROACHES TO EVIDENTIAL SUFFICIENCY, AND RESIDUAL ISSUES _______ 164 15. INDEPENDENT LEGAL REPRESENTATION FOR COMPLAINERS IN SEXUAL OFFENCE CASES __ 185 PART C: APPENDICES 16. EVIDENTIAL RULES IN CRIMINAL TRIALS: AN INTERNATIONAL COMPARISON ___________ 190 17. ARTICLE 6 ECHR AND THE DEVELOPMENT OF CRIMINAL EVIDENTIAL RULES IN EUROPE ___ 240 18. THE DUTCH UNUS TESTIS, NULLUS TESTIS RULE ___________________________________ 250 19. INDEPENDENT LEGAL REPRESENTATION FOR COMPLAINERS IN SEXUAL OFFENCE TRIALS * * This is a copy of a research report written by Fiona Raitt for Rape Crisis Scotland in 2010 and appears, separately paginated, at the end of this document. We are grateful to Rape Crisis Scotland and Fiona Raitt for permission to include this report. ii Post-Corroboration Safeguards Review: Report of the Academic Expert Group DETAILED TABLE OF CONTENTS EXECUTIVE SUMMARY ____________________________________________________________ x 1. INTRODUCTION 1.1 Background __________________________________________________________________ 1 1.2 The membership of the academic expert group _____________________________________ 2 1.3 The scope of the report ________________________________________________________ 2 1.4 The structure of the report ______________________________________________________ 3 1.5 Acknowledgments ____________________________________________________________ 4 PART A: BACKGROUND TO THE REPORT 2. CORROBORATION: CONSEQUENCES AND CRITICISM James Chalmers 2.1 What practical effect does a corroboration rule have? _______________________________ 5 2.2 Why has England and Wales not adopted a corroboration rule? _______________________ 7 2.3 Criticisms of the Scottish corroboration rule before Cadder v HM Advocate ______________ 9 2.4 Criticisms of the Scottish corroboration rule following Cadder v HM Advocate ___________ 12 2.5 Corroboration and positive obligations ___________________________________________ 15 3. THE EXISTING LAW OF CORROBORATION Peter Duff 3.1 Introduction ________________________________________________________________ 19 3.2 Dock identification ___________________________________________________________ 21 3.3 Similar fact evidence and Moorov _______________________________________________ 22 3.4 Distress ____________________________________________________________________ 26 3.5 Self-corroborating confessions _________________________________________________ 27 3.6 Related difficulties arising out of corroboration ____________________________________ 28 iii Post-Corroboration Safeguards Review: Report of the Academic Expert Group 4. CAUSES OF WRONGFUL CONVICTION Fiona Leverick and James Chalmers 4.1 Clarifying the terminology: wrongful convictions and miscarriages of justice ____________ 30 4.2 What do we know about the incidence of wrongful convictions in Scotland? ____________ 31 4.3 Research into the causes of wrongful convictions __________________________________ 32 4.4 Conclusion __________________________________________________________________ 42 PART B: ANALYSIS 5. EYEWITNESS IDENTIFICATION EVIDENCE Pamela R Ferguson 5.1 Introduction ________________________________________________________________ 44 5.2 The Scottish approach ________________________________________________________ 45 5.3 The problematic nature of eyewitness identification evidence ________________________ 46 5.4 Potential safeguards _________________________________________________________ 48 5.5 Issues for consideration _______________________________________________________ 64 6. CONFESSION EVIDENCE Findlay Stark 6.1 Introduction ________________________________________________________________ 67 6.2 The current Scottish position ___________________________________________________ 68 6.3 Removing corroboration without replacement ____________________________________ 70 6.4 The risks of false confessions ___________________________________________________ 75 6.5 Judicial directions ____________________________________________________________ 79 6.6 Expert evidence _____________________________________________________________ 81 6.7 Corroboration _______________________________________________________________ 82 6.8 Conclusion __________________________________________________________________ 85 6.9 Issues for consideration _______________________________________________________ 86 iv Post-Corroboration Safeguards Review: Report of the Academic Expert Group 7. EVIDENCE OF ACCOMPLICES AND INFORMERS Findlay Stark 7.1 Introduction ________________________________________________________________ 87 7.2 The current Scottish position ___________________________________________________ 87 7.3 The problematic nature of accomplice evidence ____________________________________ 88 7.4 Mandatory, class-based warnings _______________________________________________ 89 7.5 Overlap with confession evidence _______________________________________________ 89 7.6 Discretionary warnings _______________________________________________________ 89 7.7 Mandatory warnings _________________________________________________________ 90 7.8 Exclusion ___________________________________________________________________ 91 7.9 A corroboration requirement ___________________________________________________ 91 7.10 Conclusion _________________________________________________________________ 91 7.11 Issues for consideration ______________________________________________________ 92 8. HEARSAY EVIDENCE Findlay Stark 8.1 The law of hearsay in Scotland: a brief overview ___________________________________ 93 8.2 The Al-Khawaja case (and beyond) ______________________________________________ 94 8.3 An alternative, problematic view _______________________________________________ 99 8.4 Conclusion _________________________________________________________________ 100 8.5 Issue for consideration _______________________________________________________ 100 9. JURY DIRECTIONS Fiona Leverick 9.1 Introduction _______________________________________________________________ 101 9.2 The experimental evidence on the effectiveness of jury directions ____________________ 101 9.3 What can be done to improve the effectiveness of jury directions? ___________________ 110 9.4 Conclusion _________________________________________________________________ 116 9.5 Issues for consideration ______________________________________________________ 117 v Post-Corroboration Safeguards Review: Report of the Academic Expert Group 10. RECORDING OF POLICE INTERVIEWS James Chalmers 10.1 Introduction ______________________________________________________________ 118 10.2 The concern giving rise to the inclusion of this topic ______________________________ 118 10.3 Some further background: the work of the CPT __________________________________ 118 10.4 Practice in England and Wales________________________________________________
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