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Law of Evidence - Lecture 6 - Sufficiency of Evidence
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Lecture notes for the Law of Evidence module linked to Raitt on Evidence. Author achieved a first-class grade for the module.
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Lecture 6 – Sufficiency of Evidence1. Definitions / Reform Information:
Sufficiency is a question of LAW, rather than FACT. Only once sufficient (‘enough’) evidence in law has
been produced can the Court proceed to consider whether that evidence is, factually, of good enough
quality to reach the standard of proof.
See Scottish Law Commission report 229 on ’Similar Fact Evidence and the Moorov doctrine’,
published online, here, on SLC website). Reference is also made to the Carolway report (link available
below).
• In current law (as at Aug 2020), corroboration is still a requirement, meaning evidence from
two independent sources. It is said that courts adopt a TWO step process to sufficiency:
1. LAW: Is there sufficient evidence in law to merit the court considering the matter? Is there
corroborated evidence on the key facts in issue? It is an issue of quantity, are there at least two forms
of evidence. E.g. eyewitness account, a murder weapon.
If there are deemed to be enough pieces of evidence, then the sufficiency threshold has been reached.
2. FACT: If so, the court begins the factual exercise of weighing/ testing whether that evidence can
persuade as to the appropriate standard of proof begins. This is the point where the jury gets involved,
if it’s a jury case, because its not about quantity as the threshold has been passed.
It’s about quality: do we believe the witnesses? Is the evidence strong enough to justify reaching a
particular conclusion? In criminal cases what that means is whether the evidence is quantitively strong
enough to justify a conviction on the requisite standard of proof, which is beyond reasonable doubt.
2. Civil and Criminal Cases:
Civil cases will be considered later (see Handout 10 ‘Civil Evidence’)
Criminal cases CURRENTLY require, in law, corroboration of evidence. This means that evidence must
come from more than one source before it will be deemed ‘sufficient’ to merit the Court’s
consideration of the matter.
o N.B. on 3 July 2012, the Scottish Government launched a public consultation (‘Reforming Scots
Criminal Law and Practice: The Carloway Report’) following various recommendations made by Lord
Carloway in his highly publicised report (the Carloway Report), published on 17 November 2011. These
recommendations were extensive and, inter alia, included abolishing the need for corroboration in
Scots Criminal Law.
Abolishing the requirement of corroboration had been the most controversial recommendation made
by Lord Carloway in the field of Criminal Evidence for decades (if not for centuries).
On 20 June 2013, a bill to reform criminal evidence in Scotland was introduced to the Scottish
Parliament. The bill (the Criminal Justice (Scotland) Bill 2013) contained clauses in line with the
Carolway proposals. The bill was placed ‘on hold’ at Stage 2 in the Scottish Parliament so that Lord
Bonomy’s Review Group could consider what additional safeguards should follow the abolition of
corroboration. The group made recommendations in Spring 2015 (link here). Following this, the
,Scottish Government announced that it would not proceed with the proposal to end the requirement
for corroboration in criminal trials in Scotland during the current Parliament.
The proposals concerning corroboration were removed from the bill, which became the Criminal
Justice (Scotland) Act 2016.
Where does this leave corroboration? Still – currently – part of Scots Law… whether it eventually goes
remains to be seen.
3. CRIMINAL Cases – ‘No case to answer’:
What is a ‘no case to answer’?
It can be made in a solemn case, which are the very serious cases before juries, or it can be made in a
summary case, which is less serious criminal offences.
The Criminal Procedure (Scotland) Act 1995, section 97 which is the solemn provision that does
involve juries (& see also s 160 for summary proceedings):
‘(1) Immediately after the close of the evidence for the prosecution, the accused may intimate to the
court his desire to make a submission that he has no case to answer both—
(a) on an offence charged in the indictment; and
(b) on any other offence of which he could be convicted under the indictment.
In other words, the accused through his solicitors/advocates, is intimating to the court that there is
insufficient evidence to merit any case being brought against him in a criminal court. The
corroboration sufficiency threshold has not been met.
The submission can be made in respect of all charges brought against an accused person if there are
a number of charges, or one or two charges from a whole group of charges that are brought against
an accused.
Generally speaking, it is made ‘immediately after the close of the evidence for the prosecution’, which
means that the accused has not even begun to lead his evidence yet. The accused can also instruct his
solicitor / advocate to make that submission at the end of the whole evidence of the case as well. The
accused can intimate to the court his belief that he has no case to answer.
What happens at that point? The court will hear from both parties, and by that, I mean both parties'
lawyers. If there is a jury, because this is a legal issue, not a factual issue that the jury is being asked
to consider, then the jury will be asked to leave the court while these technical legal discussions and
debates are taking place (4). The jury leave because they are finders in fact. They weigh up the quality
of the evidence. Its not their job to decide whether certain evidence should be admitted or not and
whether it is sufficient.
(2) If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution is
insufficient in law to justify the accused being convicted of the offence charged in respect of which
the submission has been made or of such other offence as is mentioned, in relation to that offence, in
paragraph (b) of subsection (1) above, he shall acquit him of the offence charged in respect of which
the submission has been made and the trial shall proceed only in respect of any other offence charged
in the indictment
, If the court is satisfied that the evidence that the prosecution / the Crown has put forward is
insufficient, then in fact, the court acquits the accused person. And that's the end of the case. It just
stops right there.
(3) If, after hearing both parties, the judge is not satisfied as is mentioned in subsection (2) above, he
shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and
call witnesses, as if such submission had not been made.
If the court is not satisfied, then the trial proceeds as if the legal discussion and debate has never
happened and the accused is being entitled to give evidence and call witnesses if the submission was
made at the end of the prosecution evidence.
(4) A submission under subsection (1) above shall be heard by the judge in the absence of the jury.’
Criminal Justice and Licensing (Scotland) Act 2010: e.g. amendments to the Law –s 97A of the Criminal
Procedure (Scotland) Act 1995
R v Abbott [1955] 2 QB 497 (English Case)
This case is a good illustration of the impact that a submission of no case to answer can make. There
was a similar provision allowing this to happen in English cases.
Mr Abbott and his lady friend had been charged and were being tried for forgery offences. During the
course of the trial, Mr Abbott’s lawyers got up and made a submission of no case to answer on his
behalf, essentially arguing that there was not enough evidence, very little evidence, that had been led
at all about him to merit the case proceeding any further.
The judge wrongly repelled that submission. The trial continued and during the course of the rest of
the trial his co-accused actually said something that incriminated him and the jury convicted him. He
appealed against his conviction.
This is what the court said on appeal (per Lord Goddard CJ at 505 and 506):
‘In our opinion the judge ought to have said at the end of the case for the prosecution that there was
no evidence against the appellant Abbott, and therefore he was wrong in law in giving the decision he
did.’
‘For these reasons the court has come to the conclusion that the verdict cannot stand on any standard
that it can apply. Therefore, the appeal is allowed, the conviction is quashed and the prisoner is
discharged. We shall order that there be no further prosecution on this indictment.’
Even though evidence later came into the court showing that he was actually guilty – he was
incriminated – the fact is, at the time he made the submission at the correct time of no case to answer,
there was not a sufficient amount of evidence and that submission ought to have been successful.
McCracken v HMA [2016] HCJAC 28 (Scottish Example)
This was a case involving a submission of no case to answer which was correctly repelled.
It was a case involving historic sexual offences against young girls.
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