Raitt, Fiona

English

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                                                                    University of DundeeCorroboration in cases of gender violenceRaitt, FionaPublished in:Edinburgh Law ReviewPublication date:2014Document VersionPublisher's PDF, also known as Version of recordLink to publication in Discovery Research PortalCitation for published version (APA):Raitt, F. (2014). Corroboration in cases of gender violence: A case for special treatment. Edinburgh Law Review,18(1), 93.General rightsCopyright and moral rights for the publications made accessible in Discovery Research Portal are retained by the authors and/or othercopyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated withthese rights. • Users may download and print one copy of any publication from Discovery Research Portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain. • You may freely distribute the URL identifying the publication in the public portal.Take down policyIf you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediatelyand investigate your claim.Download date: 30. Jul. 2023Vol 18 2014 analysis 93a more lasting victory for the principle of legality than for the principle of open justice,upon which legislative developments continue to trample. Parliament would havehad to pay the political price for the continued expansion of infringements of openjustice but that price, it seems, is not a high one. From the Scottish perspective, thequestion is settled. The 2013 Act, like the 2008 Act before it, applies unambiguouslyto proceedings in the Court of Session and the Rules of the Court of Session havebeen amended in order permit the use of CMP in proceedings under the 2008 Act.31Paul ScottUniversity of SouthamptonEdinLR Vol 18 pp 93-97Corroboration in Cases of Gender Violence:A Case for Special Treatment?Section 57(1) of the Criminal Justice (Scotland) Bill 2013 abolishes the legalrequirement in Scots common law for corroboration of crucial facts in determiningsufficiency of evidence in criminal cases. The section does not apply to statutoryoffences with a corroboration requirement. Abolition was recommended by theCarloway Review,1 and the Scottish Government has made it a flagship reformdespite the degree of opposition voiced in the consultation responses to the CarlowayReport2 and more widely in the media. The proposal has generated an unprecedenteddegree of caustic commentary and polarised perspectives. For example, in support ofthe need for abolition the former Lord Advocate, Dame Elish Angiolini, referring tothe positive obligation on the state to provide an effective remedy in terms of article13 of the European Convention on Human Rights, predicted that “[i]t will not belong before a victim in a case, which is marked ‘no proceedings’, will take the Scottishsystem to the European Court at Strasbourg” on the ground that the corroborationrule meant that “they are unable to obtain effective criminal sanctions in Scotland”.3Opposition to abolition is frequently scathing. Most recently, Alistair Bonningtonclaimed that reform was being driven by “plainly flawed logic” whereby “[i]t isintended that the entire law of evidence should be altered to meet a perceivedproblem in sex cases”.4 The burgeoning academic literature reflects a broad range31 Chapter 96, inserted by the Act of Sederunt (Rules of the Court of Session Amendment No 6) (Counter-Terrorism Act 2008) 2008.1 Carloway Review, Report and Recommendations (2011).2 J Fawcett and S Mulholland, Reforming Scots Criminal Law and Practice: The Carloway Report.Analysis of Consultation Responses (2012), available at http://www.scotland.gov.uk/Resource/0041/00410913.pdf.3 “Angiolini warning over corroboration”, The Herald, 21 July 2013.4 “Corroboration law - why it should stay”, The Times, 26 September 2013.94 the edinburgh law review Vol 18 2014of views, the majority of which are critical both of the concept of abolition and ofthe process by which the decision to abolish was reached.5 Amongst the myriadcomplaints it is argued that the proposal lacks a sound rationale; is grounded in adubious research base; is a populist gesture towards the victim-orientated agenda;and will inevitably increase miscarriages of justice.6 Even commentators who do notconsider that abolition will have an apocalyptic effect have been critical of aspectsof the process leading to section 57.7 Some academics, even if opposed to abolition,have considered the scope for types of evidence which may form an exception toabolition.8 This brief article takes up the theme of partial abolition by consideringthe relationship between the corroboration rule and the acknowledged difficultiesin investigating and prosecuting rape and domestic abuse. As this potentiallyincorporates a very large number of offences, subsequent references to rape anddomestic abuse are intended to encompass all serious sexual offences and domesticviolence and other seriously abusive behaviour from intimate partners or ex-partners.The analysis is centred on a single question: can special treatment for cases of rapeand domestic abuse be justified? The article assumes that it is generally acceptedthat rape and domestic abuse raise particular difficulties for prosecutors due totheir tendency to affect already vulnerable women in locations where independentwitnesses are a rarity. However, it is argued here that such difficulties are not inthemselves justification to dispense with corroboration. Rather, it is argued thatregardless of conviction rates, hurdles to prosecution, or public perceptions ofblameworthy victims, there is a principled basis of inequality that warrants specialtreatment for rape and domestic abuse cases. This is so, irrespective of whetherabolition of corroboration for such offences made a difference to the number oroutcome of prosecutions.A. JUSTIFYING ABOLITION IN CASES OF RAPEAND DOMESTIC ABUSEIn 2009 Lord Hope famously explained the emergence of distress as corroboration inrape cases as a necessary development without which it appeared that certain crimesin Scotland were “beyond the reach of the criminal law”.9 More generally, the rulesof evidence have gone some way to accommodating cases of rape and domestic abusein which women are disproportionately the victims. It is this disproportionality – its5 E.g. J Chalmers and F Leverick, “‘Substantial and radical change’: a new dawn for Scottish criminalprocedure?” (2012) 75 MLR 837. For a helpful round up of the literature see F P Davidson and P RFerguson, “The corroboration requirement in Scottish criminal trials: should it be retained for someforms of problematic evidence?” (2014) Int J of Evidence and Proof (forthcoming).6 D Nicolson and J Blackie, “Corroboration in Scots law: ‘archaic rule’ or ‘invaluable safeguard’?” (2013)17 EdinLR 152.7 P Duff, “The requirement of corroboration in Scottish criminal cases: one argument against retention”[2012] Crim LR 513; F E Raitt, “Carloway: a view from the academy” (2012) SCOLAG 9.8 Davidson & Ferguson (n 5).9 Rt Hon Lord Hope, public lecture in Edinburgh, 12 June 2009. See now D Hope, “Corroboration anddistress: some crumbs from under the master’s table” in J Chalmers, F Leverick and L Farmer (eds),Essays in Criminal Law in Honour of Sir Gerald Gordon (2010) 13.Vol 18 2014 analysis 95gendered nature and the statistical evidence of its prevalence – that provides thejustification for a specific tailored response from the state. Each of these factorsmight be contested. After all, men can be raped too, and can be violent towards malepartners; some women are violent towards intimate partners. However, it is submittedthat violence perpetrated by women (whether towards men or other women) is of awholly different character to the nature of a heterosexual man’s violence towards aheterosexual woman.10 The latter type of behaviour cannot escape from its patriarchalroots no matter how much some prefer to cloak rape as misconstrued consent,or suggest that the commission of domestic violence is moving towards genderequivalence.11 The gendered nature of the continuum of violence against womencannot be avoided or neutralised.12In considering abolition of corroboration, with one notable exception,13 the casefor special treatment of rape and intimate partner violence has had little attention inthe literature. This is surprising given the scathing accusations from opponents thatabolition is primarily about pleasing the victims’ lobby.14 One might have expectedcritics to have examined more thoroughly the merits of the case made by supportersof victims’ rights before being so dismissive of their claims. Cairns has rightly queriedwhether the removal of corroboration would make much practical difference, and hasexamined some of the unintended consequences of abolition.15 The corroborationrule has been criticised for its flexibility, but apparently it is not flexible enough, andthus must be abolished. Yet, there is often ample corroborative evidence of offendingif only imaginative efforts were made to detect and interpret it and if time werepermitted to case-build.16 In the context of the physical, financial and psychologicaltraps engulfing many victims of violence the idea that abolishing the corroborationrule may, on its own, improve their lot will be unconvincing. On the contrary, abolitionmay give false hope. It may result in the launch of more prosecutions, but given theevidence of negative public attitudes towards rape victims it is far from certain howjuries will react to uncorroborated accounts of violence, sexual or otherwise.17 Unlessprosecutors still continue to seek corroboration in practice to ensure that there issufficient evidence to satisfy a jury beyond reasonable doubt, the number of notproven verdicts or not guilty verdicts is likely to increase, sending a perverse messageto potential complainers.10 R P Dobash and R Eerson Dobash, “Women’s violence to men in intimate relationships. Working on apuzzle” (2004) 44 Br J Criminol 324.11 B Dempsey, “Gender neutral laws and heterocentric policies: ‘domestic abuse as gender-based abuse’and same-sex couples” (2011) 15 EdinLR 381.12 L Kelly, Surviving Sexual Violence (1988); World Health Organization, Global and Regional Estimatesof Violence Against Women: Prevalence and Health Effects of Intimate Partner Violence and Non-Partner Sexual Violence (2010).13 I M Cairns, “Does the abolition of corroboration in Scotland hold promise for victims of gender-basedcrimes? Some feminist insights” [2013] Crim LR 540.14 For example, Bonnington (n 4).15 Cairns (n 13).16 L Ellison “Witness preparation and the prosecution of rape” (2007) 27 Legal Studies 171.17 Scottish Government, Domestic Abuse 2007/08: Post-Campaign Evaluation Report (2008).96 the edinburgh law review Vol 18 2014Space prevents more fundamental questions being addressed here, but abolition ofcorroboration alone will not cure one of the most pernicious ills affecting a majorityconstituency in modern Scottish society. Much more could be done to convert theknowledge derived from decades of evidence-based research into sustained effectivepolicies. That would require an approach that placed more emphasis on the systemicqualities of forms of violence towards women and attached less weight to theindividual pathology of an offender.B. HOW COULD ABOLITION MAKE A DIFFERENCE?Abolition of corroboration will only make inroads on gendered crime if it isaccompanied by a raft of transformative measures that demonstrate leadership fromlegislators and induce attitudinal change. Examples of such transformative practicesexist, such as the establishment of the National Sex Crimes Unit as a specialistbody, the existence of which is a precondition of effective case building; and theinnovative health-led Sexual Assault Referral Centres (SARCS) in Glasgow andDundee. Likewise, the Lord Advocate’s Domestic Abuse Protocol18 is an effectivetool which implements research based policies to make informed risk assessmentsin every domestic abuse case where release from detention is considered. Thereare success stories in other areas where robust corroboration can be hard to find,such as suspected child abuse cases. The development of the joint investigativeforensic interview used with children was a major breakthrough. The evidence isthat provided the protocols are rigorously followed,19 the methodical approach itdemands is capable of an impressive success rate in producing high quality video-recorded evidence.20 This shows that careful planning in design and execution ofpolicies can deliver results that were previously elusive. Irrespective of whethercorroboration is retained or abolished, and in regard to which types of evidence,the justice system needs to develop more preventative policies and mechanisms suchas SARCS to achieve improved outcomes for complainers. Progressive and effectivepre-trial mechanisms operate in other jurisdictions, and could be imported to Scotslaw.21 For example, greater attention could be devoted to the support afforded tocomplainers in preparing them for trial. Other adversarial jurisdictions have beenless resistant to introducing policies such as the proactive prosecuting programmeused in New York.22 Such a programme appoints a prosecutor to a complainer forcontinuity and support and to facilitate the complainer to achieve best evidence,whereas in Scotland an arms-length arrangement between prosecutor and complainer18 Joint Protocol Between Police Scotland and Crown Office and Procurator Fiscal Service,In Partnership Challenging Domestic Abuse (2013), available at http://www.crownoffice.gov.uk/images/Documents/Prosecution_Policy_Guidance/Protocols_and_Memorandum_of_Understanding/Joint%20Domestic%20Abuse%20Protocol%20-%20Oct%2013.pdf.19 D La Rooy and S Block, “The importance of scientifically analysing the quality of joint investigativeinterviews (JIIs) conducted with children in Scotland” 2013 SLT 77.20 J Spencer and M E Lamb (eds), Children and Cross-Examination: Time to Change the Rules (2012).21 L Ellison (n 16).22 Ibid.Vol 18 2014 analysis 97is the norm. Adoption of this programme in Scotland was rejected in the Crown OfficeReview in 2006, lest it was interpreted as coaching complainers.23 Of course, coachingis a legitimate concern, but it cannot be beyond the collective wit of reformers todevise suitable protocols to allay that fear. Otherwise, fear of change will be a constantbrake on embracing any change, regardless of its merits.C. CONCLUSIONIn a recent public speech Lord Carloway observed: “[T]he system of criminal justicewhich exists in Scotland is one which remains to a large extent geared to thevalues and conditions of the Victorian age.”24 In regard to the proposed abolitionof corroboration, most interested parties have rejected that characterisation of thecriminal justice system and are wary of a modernist agenda. However, it is muchharder to resist the tenor of Lord Carloway’s observation when applied to thephenomenon of sexual and physical abuse towards women and children that stillpervades modern Scottish society. This is not so much a criticism of the institutionalresponse to abuse, as an unavoidable assessment of the social practices and attitudesthat permit it to occur in the first place. If the rancorous debates over corroborationwere to galvanise a broader debate about the levels of gender violence in Scottishsociety, the Carloway Review would have an entirely different legacy.Fiona RaittUniversity of DundeeEdinLR Vol 18 pp 97-104Loose Connections: Matters of the Heartand Delictual LiabilityA. THE FACTSThe recent decision by Lord Pentland in the Outer House case of Shields vCrossroads (Orkney)1 deals with an unusual question in the law of negligence: isthere ever a duty of care not to engage in a love affair? The pursuer had experienceddifficulties in caring for her husband and son, both of whom had serious healthcomplaints. She also had a history of depressive illness and, under the heavy burdenof family responsibilities, felt socially isolated. For that reason her local authorityreferred her in March 2008 to Crossroads (Orkney), a registered charity, whose taskwas to provide her with respite care, information, support and advocacy services. In23 The Crown Office and Procurator Fiscal Service Review of the Investigation and Prosecution of SexualOffences in Scotland: Report and Recommendations (2006) 110.24 “Scots criminal evidence and procedure – Meeting the challenges and expectations of modern societyand legal thinking”, Murrayfield Conference, Edinburgh, 9 May 2013.1 [2013] CSOH 144, 2013 Rep LR 116.

Corroboration in cases of gender violence:A case for special treatment

                                                              University of DundeeCorroboration in cases of gender violenceRaitt, FionaPublished in:Edinburgh Law ReviewPublication date:2014Document VersionPublisher's PDF, also known as Version of recordLink to publication in Discovery Research PortalCitation for published version (APA):Raitt, F. (2014). Corroboration in cases of gender violence: A case for special treatment. Edinburgh Law Review,18(1), 93.General rightsCopyright and moral rights for the publications made accessible in Discovery Research Portal are retained by the authors and/or othercopyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated withthese rights. • Users may download and print one copy of any publication from Discovery Research Portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain. • You may freely distribute the URL identifying the publication in the public portal.Take down policyIf you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediatelyand investigate your claim.Download date: 18. Mar. 2016Vol 18 2014 analysis 93a more lasting victory for the principle of legality than for the principle of open justice,upon which legislative developments continue to trample. Parliament would havehad to pay the political price for the continued expansion of infringements of openjustice but that price, it seems, is not a high one. From the Scottish perspective, thequestion is settled. The 2013 Act, like the 2008 Act before it, applies unambiguouslyto proceedings in the Court of Session and the Rules of the Court of Session havebeen amended in order permit the use of CMP in proceedings under the 2008 Act.31Paul ScottUniversity of SouthamptonEdinLR Vol 18 pp 93-97Corroboration in Cases of Gender Violence:A Case for Special Treatment?Section 57(1) of the Criminal Justice (Scotland) Bill 2013 abolishes the legalrequirement in Scots common law for corroboration of crucial facts in determiningsufficiency of evidence in criminal cases. The section does not apply to statutoryoffences with a corroboration requirement. Abolition was recommended by theCarloway Review,1 and the Scottish Government has made it a flagship reformdespite the degree of opposition voiced in the consultation responses to theCarlowayReport2 and more widely in the media. The proposal has generated an unprecedenteddegree of caustic commentary and polarised perspectives. For example, in support ofthe need for abolition the former Lord Advocate, Dame Elish Angiolini, referring tothe positive obligation on the state to provide an effective remedy in terms of article13 of the European Convention on Human Rights, predicted that “[i]t will not belong before a victim in a case, which is marked ‘no proceedings’, will take the Scottishsystem to the European Court at Strasbourg” on the ground that the corroborationrule meant that “they are unable to obtain effective criminal sanctions in Scotland”.3Opposition to abolition is frequently scathing. Most recently, Alistair Bonningtonclaimed that reform was being driven by “plainly flawed logic” whereby “[i]t isintended that the entire law of evidence should be altered to meet a perceivedproblem in sex cases”.4 The burgeoning academic literature reflects a broad range31 Chapter 96, inserted by the Act of Sederunt (Rules of the Court of Session Amendment No 6) (Counter-Terrorism Act 2008) 2008.1 Carloway Review, Report and Recommendations (2011).2 J Fawcett and S Mulholland, Reforming Scots Criminal Law and Practice: The Carloway Report.Analysis of Consultation Responses (2012), available at http://www.scotland.gov.uk/Resource/0041/00410913.pdf.3 “Angiolini warning over corroboration”, The Herald, 21 July 2013.4 “Corroboration law - why it should stay”, The Times, 26 September 2013.94 the edinburgh law review Vol 18 2014of views, the majority of which are critical both of the concept of abolition and ofthe process by which the decision to abolish was reached.5 Amongst the myriadcomplaints it is argued that the proposal lacks a sound rationale; is grounded in adubious research base; is a populist gesture towards the victim-orientated agenda;and will inevitably increase miscarriages of justice.6 Even commentators who do notconsider that abolition will have an apocalyptic effect have been critical of aspectsof the process leading to section 57.7 Some academics, even if opposed to abolition,have considered the scope for types of evidence which may form an exception toabolition.8 This brief article takes up the theme of partial abolition by consideringthe relationship between the corroboration rule and the acknowledged difficultiesin investigating and prosecuting rape and domestic abuse. As this potentiallyincorporates a very large number of offences, subsequent references to rape anddomestic abuse are intended to encompass all serious sexual offences and domesticviolence and other seriously abusive behaviour from intimate partners or ex-partners.The analysis is centred on a single question: can special treatment for cases of rapeand domestic abuse be justified? The article assumes that it is generally acceptedthat rape and domestic abuse raise particular difficulties for prosecutors due totheir tendency to affect already vulnerable women in locations where independentwitnesses are a rarity. However, it is argued here that such difficulties are not inthemselves justification to dispense with corroboration. Rather, it is argued thatregardless of conviction rates, hurdles to prosecution, or public perceptions ofblameworthy victims, there is a principled basis of inequality that warrants specialtreatment for rape and domestic abuse cases. This is so, irrespective of whetherabolition of corroboration for such offences made a difference to the number oroutcome of prosecutions.A. JUSTIFYING ABOLITION IN CASES OF RAPEAND DOMESTIC ABUSEIn 2009 Lord Hope famously explained the emergence of distress as corroboration inrape cases as a necessary development without which it appeared that certain crimesin Scotland were “beyond the reach of the criminal law”.9 More generally, the rulesof evidence have gone some way to accommodating cases of rape and domestic abusein which women are disproportionately the victims. It is this disproportionality – its5 E.g. J Chalmers and F Leverick, “‘Substantial and radical change’: a new dawn for Scottish criminalprocedure?” (2012) 75 MLR 837. For a helpful round up of the literature see F P Davidson and P RFerguson, “The corroboration requirement in Scottish criminal trials: should it be retained for someforms of problematic evidence?” (2014) Int J of Evidence and Proof (forthcoming).6 D Nicolson and J Blackie, “Corroboration in Scots law: ‘archaic rule’ or ‘invaluable safeguard’?” (2013)17 EdinLR 152.7 P Duff, “The requirement of corroboration in Scottish criminal cases: one argument against retention”[2012] Crim LR 513; F E Raitt, “Carloway: a view from the academy” (2012) SCOLAG 9.8 Davidson & Ferguson (n 5).9 Rt Hon Lord Hope, public lecture in Edinburgh, 12 June 2009. See now D Hope, “Corroboration anddistress: some crumbs from under the master’s table” in J Chalmers, F Leverick and L Farmer (eds),Essays in Criminal Law in Honour of Sir Gerald Gordon (2010) 13.Vol 18 2014 analysis 95gendered nature and the statistical evidence of its prevalence – that provides thejustification for a specific tailored response from the state. Each of these factorsmight be contested. After all, men can be raped too, and can be violent towards malepartners; some women are violent towards intimate partners. However, it is submittedthat violence perpetrated by women (whether towards men or other women) is of awholly different character to the nature of a heterosexual man’s violence towards aheterosexual woman.10 The latter type of behaviour cannot escape from its patriarchalroots no matter how much some prefer to cloak rape as misconstrued consent,or suggest that the commission of domestic violence is moving towards genderequivalence.11 The gendered nature of the continuum of violence against womencannot be avoided or neutralised.12In considering abolition of corroboration, with one notable exception,13 the casefor special treatment of rape and intimate partner violence has had little attention inthe literature. This is surprising given the scathing accusations from opponents thatabolition is primarily about pleasing the victims’ lobby.14 One might have expectedcritics to have examined more thoroughly the merits of the case made by supportersof victims’ rights before being so dismissive of their claims. Cairns has rightly queriedwhether the removal of corroboration would make much practical difference, and hasexamined some of the unintended consequences of abolition.15 The corroborationrule has been criticised for its flexibility, but apparently it is not flexible enough, andthus must be abolished. Yet, there is often ample corroborative evidence of offendingif only imaginative efforts were made to detect and interpret it and if time werepermitted to case-build.16 In the context of the physical, financial and psychologicaltraps engulfing many victims of violence the idea that abolishing the corroborationrule may, on its own, improve their lot will be unconvincing. On the contrary, abolitionmay give false hope. It may result in the launch of more prosecutions, but given theevidence of negative public attitudes towards rape victims it is far from certain howjuries will react to uncorroborated accounts of violence, sexual or otherwise.17 Unlessprosecutors still continue to seek corroboration in practice to ensure that there issufficient evidence to satisfy a jury beyond reasonable doubt, the number of notproven verdicts or not guilty verdicts is likely to increase, sending a perverse messageto potential complainers.10 R P Dobash and R Eerson Dobash, “Women’s violence to men in intimate relationships.Working on apuzzle” (2004) 44 Br J Criminol 324.11 B Dempsey, “Gender neutral laws and heterocentric policies: ‘domestic abuse as gender-based abuse’and same-sex couples” (2011) 15 EdinLR 381.12 L Kelly, Surviving Sexual Violence (1988); World Health Organization, Global and Regional Estimatesof Violence Against Women: Prevalence and Health Effects of Intimate Partner Violence and Non-Partner Sexual Violence (2010).13 I M Cairns, “Does the abolition of corroboration in Scotland hold promise for victims of gender-basedcrimes? Some feminist insights” [2013] Crim LR 540.14 For example, Bonnington (n 4).15 Cairns (n 13).16 L Ellison “Witness preparation and the prosecution of rape” (2007) 27 Legal Studies 171.17 Scottish Government, Domestic Abuse 2007/08: Post-Campaign Evaluation Report (2008).96 the edinburgh law review Vol 18 2014Space prevents more fundamental questions being addressed here, but abolition ofcorroboration alone will not cure one of the most pernicious ills affecting a majorityconstituency in modern Scottish society. Much more could be done to convert theknowledge derived from decades of evidence-based research into sustained effectivepolicies. That would require an approach that placed more emphasis on the systemicqualities of forms of violence towards women and attached less weight to theindividual pathology of an offender.B. HOW COULD ABOLITION MAKE A DIFFERENCE?Abolition of corroboration will only make inroads on gendered crime if it isaccompanied by a raft of transformative measures that demonstrate leadership fromlegislators and induce attitudinal change. Examples of such transformative practicesexist, such as the establishment of the National Sex Crimes Unit as a specialistbody, the existence of which is a precondition of effective case building; and theinnovative health-led Sexual Assault Referral Centres (SARCS) in Glasgow andDundee. Likewise, the Lord Advocate’s Domestic Abuse Protocol18 is an effectivetool which implements research based policies to make informed risk assessmentsin every domestic abuse case where release from detention is considered. Thereare success stories in other areas where robust corroboration can be hard to find,such as suspected child abuse cases. The development of the joint investigativeforensic interview used with children was a major breakthrough. The evidence isthat provided the protocols are rigorously followed,19 the methodical approach itdemands is capable of an impressive success rate in producing high quality video-recorded evidence.20 This shows that careful planning in design and execution ofpolicies can deliver results that were previously elusive. Irrespective of whethercorroboration is retained or abolished, and in regard to which types of evidence,the justice system needs to develop more preventative policies and mechanisms suchas SARCS to achieve improved outcomes for complainers. Progressive and effectivepre-trial mechanisms operate in other jurisdictions, and could be imported to Scotslaw.21 For example, greater attention could be devoted to the support afforded tocomplainers in preparing them for trial. Other adversarial jurisdictions have beenless resistant to introducing policies such as the proactive prosecuting programmeused in New York.22 Such a programme appoints a prosecutor to a complainer forcontinuity and support and to facilitate the complainer to achieve best evidence,whereas in Scotland an arms-length arrangement between prosecutor and complainer18 Joint Protocol Between Police Scotland and Crown Office and Procurator Fiscal Service,In Partnership Challenging Domestic Abuse (2013), available at http://www.crownoffice.gov.uk/images/Documents/Prosecution_Policy_Guidance/Protocols_and_Memorandum_of_Understanding/Joint%20Domestic%20Abuse%20Protocol%20-%20Oct%2013.pdf.19 D La Rooy and S Block, “The importance of scientifically analysing the quality of joint investigativeinterviews (JIIs) conducted with children in Scotland” 2013 SLT 77.20 J Spencer and M E Lamb (eds), Children and Cross-Examination: Time to Change the Rules (2012).21 L Ellison (n 16).22 Ibid.Vol 18 2014 analysis 97is the norm. Adoption of this programme in Scotland was rejected in the CrownOfficeReview in 2006, lest it was interpreted as coaching complainers.23 Of course, coachingis a legitimate concern, but it cannot be beyond the collective wit of reformers todevise suitable protocols to allay that fear. Otherwise, fear of change will be a constantbrake on embracing any change, regardless of its merits.C. CONCLUSIONIn a recent public speech Lord Carloway observed: “[T]he system of criminal justicewhich exists in Scotland is one which remains to a large extent geared to thevalues and conditions of the Victorian age.”24 In regard to the proposed abolitionof corroboration, most interested parties have rejected that characterisation of thecriminal justice system and are wary of a modernist agenda. However, it is muchharder to resist the tenor of Lord Carloway’s observation when applied to thephenomenon of sexual and physical abuse towards women and children that stillpervades modern Scottish society. This is not so much a criticism of the institutionalresponse to abuse, as an unavoidable assessment of the social practices and attitudesthat permit it to occur in the first place. If the rancorous debates over corroborationwere to galvanise a broader debate about the levels of gender violence in Scottishsociety, the Carloway Review would have an entirely different legacy.Fiona RaittUniversity of DundeeEdinLR Vol 18 pp 97-104Loose Connections: Matters of the Heartand Delictual LiabilityA. THE FACTSThe recent decision by Lord Pentland in the Outer House case of Shields vCrossroads (Orkney)1 deals with an unusual question in the law of negligence: isthere ever a duty of care not to engage in a love affair? The pursuer had experienceddifficulties in caring for her husband and son, both of whom had serious healthcomplaints. She also had a history of depressive illness and, under the heavy burdenof family responsibilities, felt socially isolated. For that reason her local authorityreferred her in March 2008 to Crossroads (Orkney), a registered charity, whose taskwas to provide her with respite care, information, support and advocacy services. In23 The Crown Office and Procurator Fiscal Service Review of the Investigation and Prosecution of SexualOffences in Scotland: Report and Recommendations (2006) 110.24 “Scots criminal evidence and procedure –Meeting the challenges and expectations of modern societyand legal thinking”, Murrayfield Conference, Edinburgh, 9 May 2013.1 [2013] CSOH 144, 2013 Rep LR 116.

Scots criminal evidence and procedure –Meeting the challenges and expectations of modern society and legal thinking”, Murrayfield Conference,

society, the Carloway Review would have an entirely different legacy.

https://discovery.dundee.ac.uk/files/3892199/Pages_from_elr.2014.0188_FR.pdf

Corroboration in cases of gender violence:A case for special treatment

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