Corroboration rules in criminal law

Scotland: a general rule

The Scottish Government describes corroboration as a unique feature of criminal law in Scotland for hundreds of years ¹. The basic principle is that an accused can be convicted only if the main facts are established by evidence from at least two independent sources ¹. The first main fact the government lists is that the crime was committed ¹.

A clear admission by an accused is only one source and needs corroboration. The exception is an admission containing special knowledge that only the offender could have, such as where a body is concealed ¹. The rule shapes investigation. A suspicious death involves a two-doctor post mortem, and DNA or fingerprint reports are in most cases produced jointly by two experts ¹.

• Prosecutors may act only if there is corroborated evidence of the main facts ¹.
• A judge may end a case at the close of the Crown case if the evidence is not sufficient in law ¹.
• Since July 2020, jurors receive written directions, which can include directions on corroboration ¹.
• An appeal may be brought on the ground that there was not corroborated evidence of the main facts ¹.

Mutual corroboration and the reform debate

Under the Moorov doctrine, the evidence of single witnesses to different incidents can corroborate each other where the incidents are sufficiently similar in time, character and circumstance ¹. Independent evidence of a complainer's distress attributable to an assault can corroborate lack of consent ¹.

The Carloway Review, published in 2011, recommended removing the requirement ¹. The government proposed abolition in the Criminal Justice (Scotland) Bill in 2013 ¹. In April 2015, on publication of Lord Bonomy's review of safeguards, the Cabinet Secretary for Justice announced the corroboration provisions would be removed from the Bill ¹. The government's later consultation asked again whether to keep, reform or abolish the rule ¹.

Rules for particular offences

Abolished warnings in England and Wales

Section 32 of the Criminal Justice and Public Order Act 1994 abrogated any requirement that a judge must warn a jury about convicting on the uncorroborated evidence of a person merely on the ground that the person is an alleged accomplice, or the complainant in a sexual offence case ⁴. It amended the 1988 provision on child evidence ⁴.

What journalists and researchers can take from this

The legal tests share one idea with newsroom two-source rules: the second source must be independent. Scotland's rule asks for two independent sources ¹. The Washington Post's newsroom policy asks for two sources independent of each other in stories that depend on confidential informants ⁷. Repeated accounts that trace back to one witness do not meet either test.