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Scottish law of evidence
One of the key aspects of the Scottish law of evidence is that no person may be convicted of a criminal charge on the evidence of a single witness. Analyse how the courts have interpreted this requirement in light of the practical problem of the lack of witnesses to sexual offences.
This essay is clearly focusing on the aspects of the Scottish Law of evidence, and its fundamental principle, that no one can be convicted for any offence on the bases of single witness evidence. Although the rules of law of evidence are required to all crimes but the main concern of this essay is, that it will consider the two main topics of scot law evidence corroboration and sexual offences. To prove a crime there has to be more than one witness. In simple words corroboration strengthen and support the required evidence in relation to sexual offences. There are other two areas which will be discussed in this essay are the two important doctrines, which are very crucial and are the backbones of corroboration in sexual offences. Distress corroboration, and Moorov doctrine, When we talk about distress corroboration, it is the evidence of a third party which states that complainer or the alleged victim was distressed after the incident rape or sexual assault, itself corroborate her evidence that there was no consent and the accused used force. Moorov doctrine is law which is used where the accused is charged with more than one separate offences, which comes from the famous case of Moroov V HM Advocate.
Corroborating Evidence And Sexual Offences
The beauty of the Scottish criminal law is that no person can be found guilty of any crime and offence on UN sustained evidences or to say it bluntly it does not allow someone to be convicted on a single witness alone in most circumstances no matter how strong the evidence may be. Any proof concerning to the importance and or indispensible truth and reality of a crime must be corroborated and at least originated from two independent sources. In simple English the attestation and testimony of the single witness has to be accompanied and also to establish the accuracy by a second independent source. It is worth noted that any proof and evidences in both sources do not have to incriminatory which lead to undesirable situation.
Corroboration is not required with two witnesses when the evidence is strengthened or supported with other evidence but what it needs is to produce two sources of evidence and it is that different sources which matter and not the kind of testimonies and evidences. Any evidence from witnesses could be oral who saw or heard something or the accused him/her self admitting or any other evidence like fingerprints etc.
In the perfect circumstances the two important facts and truth in criminal cases are the act of committing a crime secondly followed by the identity of the accused has to be proven by direct evidence of two or more eye witnesses. If the above evidence is not provided to the court of law, then the court has to rely on the circumstantial evidence, it means, that direct proof and evidence is not provided to the court. Although, evidence not bearing directly on the fact in dispute and does not establish important facts but from which in different circumstances the judge and jury believe that there is circumstantial evidence exist against the accused. Corroboration is very important in the Scots law of evidence for the following reasons. Firstly the witnesses can be mistaken for different reasons or will misunderstand what is happening around them so checks should be made whether the witnesses are reliable, accurate whilst providing testimonies and evidence to the court. The next evidence will be definitely circumstantial but the evidence has to be consistent with the complainer's direct evidence and it is capable of corroborating that evidence.
In any rape trail the crown must prove without any doubt (beyond reasonable doubt) that accused is guilty of a crime. To do this the evidence must be corroborative to be able to show that the accused had sexual intercourse with the complainer by force and without her consent.
The Two Important Doctrines That Are Very Crucial And Are The Backbones Of Corroboration In Sexual Offences.
The problems that relate to private offences (sexual offences) it is really hard to prove, so therefore, this doctrine is developed to satisfy the law of evidence to support the corroboration rule in circumstances where there is no enough evidence or no evidence. The main points of corroboration are important to practice their significance in relation to sexual offences. Distress corroboration is the evidence of a third party which states that complainer or the alleged victim was distressed after the incident rape or sexual assault, itself corroborate her evidence that there was no consent and the accused used force. Here are some examples which show the distress corroborations.
For example the complainer, C, said that she was raped by the accused, A, around 11pm where she invited A back to her room in a student dormitory for a cup of tea. C maintains that A threatened to kill her and have forced her for sex. C's friend D who lives in same dormitory give evidence that she witness and saw A leave C's room at certain time. This corroborates C's evidence that A was present in her room. A medical examination is carried out after the incident and confirms that sexual intercourse has taken place at that night or time. This is confirms what C has testified and A had sexual intercourse and was present in the room. E, who is living next door to C, testifies that she heard SCREAMING at particular time and that C was very distress when she visited E's room at certain time. This corroborates C's evidence that she was the victim of force and everything was done against her consent to have intercourse with D. The claim of the victim and the distress was enough to corroborate the evidence that the accused did not consent to sexual intercourse. To show further corroboration C's clothes were torn and this clearly shows that A forced himself to have sex with her.
Although there are all circumstantial evidence to corroborate the direct evidence of C that she was raped by A. All the requirement of corroboration are met but the most importantly guaranteed that it warrant a conviction for the accused. The jury may not believe the evidence of C and D that it was A that was present in the room at time of alleged offence and the accused might just walk free and a verdict of not guilty.
If the same person alleges that she was rape by the same accused and this time the accused accepts that sexual intercourse took place but with the victim consent. The admittance of the accused corroborates with the evidence of the victim but maintained that itself which constitutes that the action has taken place. The problem that the victim must prove that she did not consent and the accused knew it. If the accused has forced himself on the victim and apparently there are any bruises, and any other signs of violence on C for example stress, distress after the alleged crime. If any corroborated signs of evidence of abuse are seen this will be called or amount to corroborative evidence from which the complainer did not agreed to. If there is no signs of violence or if no violence is seemed to use or if victim did not consent it can be corroborated by a third party. What this means is the neighbour of victim, or 3rd party, has heard her screaming or the victim came to her room with a distress state of mind after what had happened to her. The case that illustrate this was the Yates case, where the accused was charged with rape, where he admitted that he had sexual intercourse but with consent, however, the victim gave no consent and the victim distress and this was enough to count on corroborated evidence and the accused was convicted. If the third party gives evidence that the complainer was distress shortly after the rape can corroborate the evidence that the victim had experienced the distress even the accused denied the offence.
The Moorov Doctrine:
Moorov doctrine is law which is used where the accused is charged with two or more than two separate offences and there is only one piece of identification for each of the crime, it may be possible that the accused have committed another crime in similar circumstances against someone else and the complainer can corroborate this into her evidence. Moorov doctrine comes from the famous case of Moorov V HM Advocate, where the accused was charged with a series of string of sexual offences. Moorov ran a shop in Glasgow, all of the victims were employees in his shop and the only piece of evidence was similarity between the incidents and there was no other corroborated evidence, it was connected in time and circumstances. All of the incident occurred approximately in three years of period. Moorov doctrine is also called mutual corroboration which applies to situation where there are two or more crimes and for each of the crime there is only one evidence. It allow corroboration that the witness in a crime A if similar circumstances can be witness in crime B and each crime can corroborate another.
To apply moorov doctrine there must be similarity between the crimes and the three required criteria must be met, which is time, Character and circumstances. The time period between the offences, as it is shown in one of the case, where the accused was a male nurse in hospital, and convicted two indecent assaults in hospital wards but in different hospitals, both of the victims were at the age of 11. The gap between both of the assault was two year and two months. It was held although the time period was too long between both of the crimes but was not fatal as both of the crimes were really identical. But from the Moorov doctrine there is no specific rule for the time periods between the crimes but it is depend on the case and the nature of the offence in which the accused had committed. However, Character is the offence that the accused person is charged with. The existence of the crime must be “substantially similar” but does not need to be identical. In the case, where the accused person was charged with two separate charges incest and sodomy and the court refused to apply the Moorov doctrine as there was no similarity between the offences. Lastly the circumstances of the crime is important to consider in to apply Moorov doctrine, that how the accused carried out the task. In the case where, the accused was guilty of two theft charges, where the accused went to the victim and grab what he saw. Therefore, he was convicted as the circumstances for both of the crime were similar. Basically, Moorov doctrine is law which is used where the accused is charged with two or more than two separate offences and there is only one piece of identification for each of the crime. The Scottish law interpret another rule which is called Howden Rule, where there are a number of similar offences but no piece of identification is available for each of the crime. The case which illustrates this is the Howden case, the accused was charged with a robbery of a building society and Bank. There were three people in building society who identify the accused but there was only one week identification for the bank robbery. But the circumstances of both robberies were very similar and it was held that beyond reasonable doubt that both of the crimes were committed by the accused. If it is prove in one crime that the accused convicted the crime than there is no need for positive identification for another.
To conclude the corroboration, and how the Scottish court has interpreted this requirement in light of the practical problem of the lack of witnesses to sexual offences. Scots law is very clear on this and it explains that the basic principle is no one should be charge or convicted of a crime where there is unsupported evidence of one person alone. There is also a danger that a person who has committed a crime may escape prosecution because there is no corroborative evidence of the facta probanda with which he/she is charged with and previous records of the accused do not count in this no matter how small or big the offence may be. The character and credit of witnesses do not count too on his/her single word or inquiry which may damage, affect the liberty. Scot law interpret distress corroboration as the evidence of a third party which states that complainer or the alleged victim was distressed after the incident rape or sexual assault, itself corroborate her evidence that there was no consent and the accused used force. There is further corroboration which is called mutual corroboration this corroboration comes from the famous case Moorov v HM Advocate 1930 JC 68. In moorov doctrine is used where the accused is charged with two or more than two separate offences and there is only one piece of identification for each of the crime, but there is another rule which is called Howden Rule, where there are a number of similar offences but no piece of identification is available for each of the crime, what it need is a corroborated identification evidence for serious charge which can corroborate the other charge, there is no need of identification to prove second charge.
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