Common Law and Corroboration: Scottish Criminal Law Vs. English Criminal Law
Scotland’s existence as part of the United Kingdom has always been a somewhat awkward and uncomfortable situation for all involved. With an unwieldy doubling of parliaments and other aspects of government under the world’s most successful (and permanent) personal union, Scotland has been in a unique position for centuries. This unique position has allowed Scotland to preserve its own systems over the years, not the least of which is its criminal law system.
The criminal law system in Scotland has many features that are quite distinct from the way criminal law is handled in both England and Wales.
Whereas the origin of most English criminal law stems from statutory origins – that is, Acts of Parliament or other documentary and legislative sources, however modified over the years – most of Scottish criminal law stems from a Common Law tradition that looks to the traditional decisions of past authorities for guidance in future decisions. However, over the course of time Scots criminal law has evolved to include more and more statutory elements, with an increasing number of crimes and associated punishments being defined by statute as opposed to precedent. Most “major” criminal offences in Scotland – such as Murder, Rape, and Robbery – all remain Common Law offences, with the Scottish criminal court authorised to issue punishments according to precedent and the legal writings of Institutional Writers. In most other countries these crimes have become defined by legal codes – in other words, codified.
One of the most unique aspects of Scottish criminal law is the concept of corroboration, which requires that the facts of a case be supported by one or more corroborating facts. The facts of a case under this requirement include the stated fact of a criminal offence itself, and the stated fact (by the prosecution) that the accused committed the crime.
Corroboration has enjoyed some controversy over the years, and many seek to reform or remove the concept from modern Scots criminal law, seeing the over-zealous application of corroboration as resulting in many criminals escaping punishment for want of unnecessary and unreasonable standards of corroboration. Others view the requirement as a necessary protection against unlawful or abusive prosecution.
In England, a refusal to respond to questions when being interviewed and then later answering those questions in court can result in an “adverse inference” by the jury or judge. However, under Scottish criminal law no adverse inference can be taken from a refusal to answer, similarly to the concept in the United States of a right to not incriminate yourself. This allows suspects to answer “no comment” in interviews without jeopardising their fate in the courts.
There are many other small differences between the criminal law systems of Scotland and England, owing to their lengthy history as separate kingdoms divided by both culture, geography, and warfare. While a movement to bring Scot criminal law closer to England’s occasionally rises up into the public’s consciousness, so far Scotland has maintained its system and seems like to do so going forward.