Criminal Trials (Corroborated Evidence) (Hansard, 19 March 1986)

§ The Attorney-General

I have received or seen a number of expressions of view on this matter. Many of them have clearly been founded on the quite erroneous belief that there is a difference, as regards the use of accomplice evidence, between the law and practice in Northern Ireland and the law and practice in England and Wales. Since that belief may be held more widely, it is desirable that I should take this opportunity to state publicly and categorically that it is indeed erroneous, to explain once more what the law and practice is on both sides of the Irish Sea, and to put this whole matter in the correct perspective.

As I explained in the answer which I gave on 24 October 1983 to my hon. and learned Friend the Member for Leicester, South (Mr. Spencer)—and I shall repeat the exact words which I used then—the law in England and Wales and Northern Ireland is the same. In both jurisdictions, where an accomplice gives evidence for the prosecution, it is the duty of the judge to warn the jury that, although they may convict on his evidence, it is dangerous to do so unless it is corroborated. This is an old rule, well-recognised and rigidly applied, and it now has the force of a rule of law. A precisely similar rule applies where a judge is trying a case without a jury. The judge must warn himself that, although he may convict on the evidence of an accomplice, it is dangerous to do so unless it is 186W corroborated. subject to these rules, the uncorroborated testimony of an accomplice is admissible in law and the tribunal of fact has the right to convict upon it.

The practice of the prosecuting authorities in deciding whether to mount a prosecution based on the evidence of an accomplice is also the same in Northern Ireland as it is in England and Wales. The practice of the Director of Public Prosecutions for Northern Ireland is as follows.

When the Chief Constable of the Royal Ulster Constabulary has evidence of terrorist offences it is his duty to put that evidence, and the full facts surrounding it, before the Director of Public Prosecutions for Northern Ireland. This is the position irrespective of whether the evidence is that of an accomplice who is willing to testify against his co-participants or whether it is evidence of any other nature.

The director must then consider whether, on the evidence, there is a reasonable prospect of a conviction. That is to say, he must decide whether in relation to an identifiable person there is credible evidence of an offence which the prosecution can adduce before a court and upon which an impartial tribunal of fact, properly directed in accordance with the law, may reasonably be expected to find the offence proved beyond reasonable doubt.

Where the testimony of an accomplice is presented to him, the Director will, in order to decide whether it is a sufficiently credible basis upon which to institute proceedings, look for corroboration. A definition of corroboration in law was given by Lord Reading C.J. in R v Baskerville (1916) 2KB 658 in the following terms: evidence of corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is which confirms in some material particular not only the evidence that the crime has been committed but also that the defendant committed it.

However, the term "corroboration" is often used in a looser sense to mean other supporting evidence which, though not amounting to corroboration in law, may support the testimony of the accomplice in that, while it does not implicate a particular accused, it does tend to show that the accomplice is a truthful witness.

Both in England and Wales and in Northern Ireland the decision of the Director whether or not to proceed in reliance on the evidence of an accomplice is approached on exactly the same basis. Neither Director regards himself as bound by a rigid rule or practice on the matter: his decision depends on the circumstances of the particular case. In respect of corroboration in its strict legal sense, there is no general practice whereby corroboration is regarded as essential. On the other hand, the absence of such corroboration might be a decisive factor against proceedings in a particular case. If there is no corroboration in the strict sense, however, the availability of other cogent supporting evidence becomes an important factor. In a case where there is no corroboration at all, either in the strict sense or in the looser sense of supporting evidence, it is very unlikely that a prosecution will be instituted.

It is sometimes suggested that, whatever may be the formal position as to the caution which a court must exercise in approaching the evidence of an accomplice, the fact that terrorist offences in Northern Ireland are tried by a judge sitting without a jury renders it impossible for that caution to be properly exercised, with the result that the standard of justice which is in fact applied in such cases falls short of the standard which would be applied in 187W comparable cases in England and Wales. Nothing could be further from the truth. The care with which the Northern Ireland judges approach the evidence of accomplices has been demonstrated in numerous cases and was illustrated vividly by the judgment which the Lord Chief Justice, Lord Lowry, gave on 26 October 1983 in the case of R v Gibney and others. That judgment explained and exemplified the scrupulous care taken by the courts to ensure that nobody is convicted except on proof beyond reasonable doubt. I referred to that judgment in the answer which I gave in this House on 14 November 1983 to the hon. Member for St. Helens, South (Mr. Bermingham) and, as I then said I would do, I arranged for a transcript of it to be placed in the Library of the House. I recommend that all those who may be tempted to criticise the attitude of the Northern Ireland judges should read it to see for themselves the care with which accomplice evidence is examined and assessed.

A further illustration of this may be found in the statistics of acquittals in cases involving accomplice evidence. In respect of trials on indictment for scheduled offences where evidence was given by an accomplice the position for the years 1983 to 1985 is as follows:

	1983	1984	1985
Number of trials	4	4	3
Number of persons convicted or pleading guilty	55	26	41
Number of persons acquitted	13	46	41

In addition, the convictions of 14 of the persons tried in 1983 were quashed on appeal to the Court of Appeal in 1984. It should also be remembered that, if a person is convicted on indictment of a scheduled offence, he has an automatic right, by virtue of section 7(6) of the Northern Ireland (Emergency Provisions) Act 1978, to appeal against conviction and sentence to the Northern Ireland Court of Appeal. Thus each case can, in effect, be heard twice and be considered by four judges.

The impression is also sometimes given, and sometimes believed by some persons, that the trial of persons accused of terrorist offences on the basis of the uncorroborated evidence of accomplices is a routine and frequent occurrence in the courts of Northern Ireland. As I have explained, the use of such evidence is perfectly legitimate and it is indeed the duty of the Director of Public Prosecutions for Northern Ireland to have recourse to it whenever he considers that, in accordance with the criteria which I have described, it is in the public interest that a prosecution should be instituted and pursued on that basis. I make it clear that he has my full authority and support for his practice in this respect. But the number of cases in which such evidence has actually been relied on represents a very small proportion of the total number of cases involving scheduled offences which have come before the Diplock courts. The relevant statistics for the last three years are as follows:

	1983	1984	1985
Number of persons tried on indictment for scheduled offences	627	514	725
Total number of persons pleading guilty or convicted in such trials	569	439	574

188W

	1983	1984	1985
Total number of persons tried in such trials where evidence was given by an accomplice	68	72	82
Total number of persons pleading guilty or convicted in such trials where evidence was given by an accomplice	55	26	41

As I have earlier noted, 14 of the 55 persons who were convicted in 1983 in trials where evidence had been given by accomplices had their convictions quashed on appeal in 1984.