MORTON v HM Advocate is one of those cases that every law student in Scotland has studied for almost a century. For 87 years, the case has structured how corroboration has been understood and applied by every layer of our criminal justice system.
In their essays, generations of undergrads have dutifully trotted out Lord Justice Clerk Aitchison’s judgment from the case that corroboration “has proved an invaluable safeguard in the practice of our criminal courts against unjust conviction, and it is a rule from which the courts ought not to sanction any departure”.
Generations of defence lawyers have tested the evidence led against their clients against Morton’s thresholds.
Generations of police officers and procurators fiscal have marked criminal cases “no proceedings” – all because there was no corroboration in the terms that Morton demanded.
Generations of judges and sheriffs have either thrown out prosecutions – or quashed convictions on appeal – when the available evidence fell short of this Morton standard.
And last week, the Lord Advocate asked a full bench of the High Court of Justiciary – a full nine judges – to overrule the better part of a century of legal practice.
Dorothy Bain KC argues the 1937 decision represented a “wrong turning” in Scots law.
She’s asking Lord Carloway and his colleagues to take us back to the future by endorsing a looser idea of what kind of corroboration is needed for criminal cases to be put in front of a judge or jury, particularly sexual cases.
If she’s successful, it will be one of the most radical changes Scots law has seen in decades, all without a single politician being consulted or a single vote being cast.
Contested area
In essence, the law gives the chief public prosecutor the opportunity to ask the High Court to clarify a contested area of criminal law.
In the academy, most of us thought these references were effectively a dead letter – useful before devolution, with Westminster largely neglecting Scots criminal law – but superseded once........