Chapter 7: Corroboration
PDF version of Chapter 7
(1) A PLURALITY OF WITNESSES
The requirement of a plurality of witnesses is an ancient device which has been traced to Matthew xviii: 6 : “In the mouth of two or three witnesses every word may be established” and the rule that a single witness is insufficient derived from the Latin maxim testis unus testis nullus (one witness is no witness).
The general rule is that the court may act on the uncorroborated testimony of a witness. As Cross rightly observes , this does not mean that the court must act upon the evidence of one witness even if it is irrefutable. However, the unreliability of such a single testimony which may be based on a passing occurrence such as a verbal confession or a fact recalled from the memory of an eye or ear-witness compelled judges to enunciate rules of practice under which juries must be warned of convicting on uncorroborated evidence. There are also statutory provisions which require that evidence should be corroborated before a person is convicted. The pertinent question is: what is the legal meaning of corroboration?
(2) THE LEGAL MEANING OF CORROBORATION
Several definitions have been proffered by textwriters and judges. According to Heydon and Ockleton, “corroboration” is “evidence tending to confirm some fact of which other evidence is given.” For Nokes, it is “confirmatory or supporting evidence on a matter on which other evidence is adduced.” In R v Baskerville Lord Reading CJ defines “corroboration” as follows:
“We hold that evidence in 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 sis, which confirms in some material particular not only the evidence that the crime has been committed, but also the prisoner committed it.”
Lord Diplock in DPP v Hester observed that “an examination of the basic 19 th century cases makes it plain that in judgments ‘corroboration' was not used in other sense than ‘confirmation'.” Finally, Lord Hailsham in DPP v Kilbourne opined:
“The word ‘corroboration' by itself means no more than evidence tending to confirm other evidence. In my opinion, evidence which is (a) admissible and (b) relevant to the evidence requiring corroboration and, if believed, confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration.”
From the foregoing statements, one can safely assert that corroboration means confirmation or support. Corroborative evidence, therefore, means evidence from an independent source which confirms or supports proof of a matter on which evidence has been or will be given and which implicates the defendant in a material particular.
(3) TWO ESSENTIAL REQUIREMENTS OF CORROBORATIVE EVIDENCE
The two essential requirements of corroborative evidence are as follows:
(a) Corroboration must come from an independent source . This requirement is neatly illustrated by three cases. In R v Baskerville it was held that where on a trial of an accused person evidence is given against him by an accomplice, the corroboration which the common law requires is corroboration in some material particular tending to show that the accused committed the offence charged. It is not enough that the corroboration shows the witness to have told the truth in matters unconnected with the guilt of the accused.
Again, in R v Redpath the accused was charged with indecent assault on a young girl. The girl's mother testified that the girl returned home very distressed and immediately complained. The court held that while the girl's distressed condition may in law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little, if any, weight to the evidence because it is all part and parcel of the complaint.
The locus classicus is R v Whitehead. In that case, the accused was charged with having unlawful intercourse with a girl under 16. The girl mentioned the incident for the first time weeks later when she was pregnant. Lord Hewart CJ rejected the argument that her conversation could amount to corroboration saying: “the girl cannot corroborate herself, otherwise it is only necessary for her to repeat her story some twenty-five times to get twenty-five corroborations of it.” Recently in R v Islam the appellant, a medical practitioner, was convicted on three counts of indecent assault on female patients. At his trial, the prosecution adduced evidence of complaints made by the victims to the police or to friends or relatives at or near the time of the alleged assault. The appellant appealed on the ground that the conviction was rendered unsafe by lack of direction on the evidence of recent complaint. The Court of Appeal held, allowing the appeal that (i) self-serving statements were usually inadmissible, and (ii) that it was a perverted survival of an ancient requirements that a woman should make hue and cry as a preliminary to a trial for rape. The Court also added that it could not be an independent confirmation of a complainant's evidence since it did not come from a source independent of her.
(b) Corroboration must implicate the defendant in a ‘material particular' . ‘Material particular' simply means a material fact, that is, “a fact which in the circumstances of the case and the issues raised in it is material to the guilt or innocence of the accused of the offence charged.”
(4) STATUTES REQUIRING TWO OR MORE WITNESSES
In spite of the abrogation by section 32 of the Criminal Justice and Public Order Act 1994 (CJPOA 1994) of the mandatory requirement to give corroboration in cases relating to accomplices or sexual offenders (discussed in section 5), there are still statutes requiring two or more witnesses such as:
The Treason Act 1795, s.1 which penalises the compassing of the death or restraint of the Queen provides that the accused can only be convicted on the oath of two or more witnesses.
The Road Traffic Regulation Act 1984, s.89 (1) provides that a person who drives a motor vehicle on a road at a speed exceeding a limit imposed by or under any enactment to which this section applies shall be guilty of an offence. This section requires the opinion of one witness to be corroborated by another witness.
Perjury Act 1911, s.13: In trials for perjury, what has to be corroborated is the falseness of the statement, not that the accused knew what he said was untrue.
Police and Criminal Evidence Act 1984, s.77 provides that the judge must warn the jury of the special need of care in convicting a mentally handicapped person if his confession is obtained by the police otherwise than in the presence of an independent person.
Affiliation Proceedings Act 1957, s.4 as amended by the Affiliation Proceedings (Amendment) Act 1972 provides that the court shall not adjudge the defendant to be the putative father of a child in a case where evidence is given by the mother unless her evidence is corroborated in some material particular by other evidence to the court's satisfaction.
(5) RULES OF PRACTICE
(A) Accomplices and sexual offenders
(i) What is an accomplice? In Davies v DPP Lord Simonds LC asserted that there was no formal definition in the authorities but suggested that from the cases the following persons have been treated as falling within the category:
(a) Participes criminis (parties to a crime);
(b) receivers in respect of thieves from whom they receive goods ; and
(c) parties to a crime which constitutes similar facts (i.e., crimes which are so similar that they prove system or intent and negative accident).
Lord Simonds, however, entered the caveat that there were witnesses outside the above categories such as witnesses with a purpose of their own. Prior to the enactment of the Criminal Justice and Public Order Act 1994 (CJPOA 1994), it was the duty of the judge to warn the jury that it was dangerous to convict upon the uncorroborated evidence of an accomplice. This practice which had the force of a rule of law was modified by the 1994 Act.
(ii) Corroboration and the CJPOA 1994
Section 32 (1) of the Criminal Justice and Public Order Act 1994 provides:
“32 (1). Any requirement whereby at a trial or indictment it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is:
(a) an alleged accomplice of the accused; or
(b) where the offence charged is a sexual offence , in respect of whom it is alleged to have been committed, is hereby abrogated ”. (emphasis added)
Although section 32 (1) of the CJPOA 1994 abrogates the mandatory requirement for corroborating an accomplice's evidence, the section leaves intact the Turnbull warning and cases of witnesses with purposes of their own to serve instantiated by Lord Simonds in Davies v DPP (above) who are stricto sensu not accomplices.
Since 1953 when Lord Simonds entered his caveat, a category of cases emerged on the need to give corroboration warning to the jury before acting on such evidence. In R v Prater the appellant was convicted of uttering forged documents and unsuccessfully appealed on the ground that the evidence of a co-accused, who gave evidence on his own behalf, required corroboration and that there should have been a warning given by the trial judge. Dismissing the appeal, the Court of Criminal Appeal held that it was desirable that a warning should be given to the jury where a witness (whether a co-accused or a prosecution witness) might have a purpose of his own to serve but that there was no miscarriage of justice.
Again, in R v Beck , A, the Managing Director of a company (S Ltd.) set up in England by an American-owned company (F Ltd.) to finance home improvements entered into various loss-sustaining transactions with B, the owner of a double-glazing business (C Ltd.). After speaking to the directors of F Ltd., the auditors made a claim on F Ltd.'s insurance company in respect of the loss and A and B were charged with conspiracy to defraud C Ltd. and F Ltd. In the course of the trial, A changed his plea to guilty and admitted that he and B had been operating a dishonest system known to the directors of F Ltd. The directors, when called, denied any knowledge of it. B, however, alleged that the directorate had lied to the auditors and, therefore, were unreliable witnesses. The trial judge, in his summing up, advised the jury that they should pay particular attention to the evidence of the directors and the weight, if any, to be attached and warned them of the danger of acting on uncorroborated evidence. B was convicted and appealed, inter alia, that although the directors of F Ltd. were not accomplices stricto sensu , they had a purpose of their own to serve and the trial judge should have given the usual corroboration warning. Dismissing the appeal, the Court of Appeal held that although a judge was obliged to proceed with caution where a witness's evidence might be tainted, he was not bound to give an accomplice warning in respect of that witness's evidence unless there were grounds for believing that he was involved in the crime which was the subject matter of the trial.
Prater and Beck were followed in Nembhard v R and R v Knowlden . In Nembhard , an appeal from Jamaica to the Privy Council, the defendant was charged with the murder of a policeman. The only evidence which implicated the defendant was a dying declaration made by the policeman to his wife that the defendant shot him. The defendant's appeal which was based on the ground that it was dangerous to rely on dying declaration in the absence of corroboration was rejected. In Knowlden , it was held that when two co-defendants made accusations about each other in the witness box it was not incumbent on the trial judge to give a full Prater direction on corroboration. A customary clear warning would suffice.
It must be noted, however, that the aforementioned cases were decided before the CJPOA 1994 came into force. The crucial issues as stated by Lord Taylor CJ in R v Makanjuola, R v Easton is as follows:
“Given that the requirement of a corroboration direction is abrogated in terms of s.32 (1) [of the CJPOA 1994], we have been invited to give guidance as to the circumstances in which, as a matter of discretion , a judge ought in his summing up to a jury to urge caution in regard to a particular witness and the terms in which that should be done.”
In a consolidated hearing of the two appeals – R v Makanjuola and R v Easton – the issue whether it was the mandatory requirement or any requirement of corroboration warning (including the discretionary requirement) that was abrogated was resolved. In Makanjuola , the appellant was convicted of indecent assault of a young girl on 23 February 1995 and sentenced to six months imprisonment. The offence was committed 22 months before section 32 came into force. The appellant's grounds of appeal, inter alia, were that the judge erred in law for failing to exercise his discretion to give a corroboration warning and had unfairly applied section 32 of the CJPOA retrospectively. The appeal was allowed and a community order of 50 hours substituted. In Easton , the appellant was convicted of indecent assault upon a female on 24 February 1995 and sentenced to a probation order for two years and ordered to pay prosecution costs. The appeal was on similar grounds but the Court of Appeal dismissed it.
Cutting away the frills, the three arguments canvassed by counsel for the two appellants are as follows: (i) that the rationale of the corroboration rules developed in case law is that accomplices may have a purpose of their own to serve; (ii) that complainants about sexual offences may lie or fantasize for unascertainable reason or no reason at all; and (iii) that although the statute [s.32 (1)] removes the requirement to give warning, the judge has a discretion to do so. It was also contended that the direction to the jury under the pre-existing law should continue to apply as suggested by the editors of Archbold in the following passage:
“Furthermore if a judge does give a warning, it seems likely that the existing [i.e. pre-1994] law as to what evidence is capable of corroborating a witness will continue to apply. It seems to follow also that if the judge does give warning, he will still need to tell the jury what corroboration is and identify the evidence capable of being corroborative.”
The latter view was soundly rejected because it was contrary to the intention of Parliament which “is partly to escape from the tortuous exercise [the Baskerville direction] which juries must have found more bewildering than illuminating”. The Court of Appeal, however, accepted the argument that it was the mandatory requirement of corroboration warning that was abrogated and that judges still had a discretion to urge caution in case of an unreliable witness or in more extreme cases – where the witnesses are shown to have lied, to have made previous false complaints, to bear a defendant some grudge or to fantasise - give a strong warning but no special warning is required.
In cases relating to section 32 (1) of the CJPOA 1994 , the following guidelines enunciated by Lord Taylor CJ apply:
“Section 32 (1) abrogates the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of a sexual offence simply because a witness falls into one of those categories.
It is a matter for the judge's discretion what, if any, warning he considers appropriate in respect of such a witness, as indeed in respect of any other witness in whatever type of case.
In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon unsupported evidence of a witness.
If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of the jury before final speeches.
Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge's review of his comments as to how the jury should evaluate it rather than as a set-piece legal direction.
Where some warning is required, it will be for the judge to decide the strength and terms of warning. It does not have to be invested with the old corroboration rules.
It follows that we emphatically disagree with the tentative suggestion made by the editors of Archbold in the passage at para. 16-36 … Attempts to reimpose the straightjacket of the old corroboration rules are strongly to be deprecated.
Finally, this court will be disinclined to interfere with a trial judge's exercise of his discretion save in the case where the exercise is unreasonable …”
(iii) Corroboration and similar facts
Although the mandatory requirement for a corroboration warning in trials of sexual offences has been abrogated by section 32 (1) (b) of the CJPOA 1994 and the abolition extends to child victims (s.32 (2)), it is safe to assert that these statutory provisions do not affect the admissibility of similar fact evidence of one complainant as evidence supporting the allegation made by another (a technical corroboration) and giving the jury an appropriate direction on the evidence.
Two cases are worthy of note. In R v H , D was convicted of sexual offences carried out against his adopted daughter and stepdaughter. The trial judge directed the jury that if they found similarities between the girls' accounts and there was no evidence of concoction, the evidence of one girl was capable of corroborating the evidence of the other girl. D appealed. The Court of Appeal, dismissing the appeal, held that if there was a risk of contamination the evidence could not be used as corroboration but it did not follow that the evidence became inadmissible. Provided the jury received appropriate warnings and direction from the judge they had to assess the dangers of relying on it.
Again, in R v Whitehouse W was convicted of indecent assault on the evidence of two boys, R and D who attended his karate class. The two boys testified to the fact that W took Polaroid photographs of them in various karate positions and that other incidents occurred in a van and in a classroom. The trial judge directed the jury that it would be dangerous to convict on the evidence of the boys without corroboration and that each of the boys was capable of corroborating the other. W's appeal that the evidence was not capable of corroboration and that, if it was the direction was inadequate was dismissed by the Court of Appeal.
Section 107 (1) of the Criminal Justice Act 2003 allows a judge to stop a trial, direct the jury to acquit or order a retrial if the evidence is contaminated in the manner proscribed in section 107 (5).
(B) Claims against estate of deceased persons
The general rule is that a claim against the estate of a deceased person will not be allowed on the uncorroborated evidence of the claimant but there is no rule of law against admitting it.
(C) Other possible causes
The categories of circumstances and special types of case which call for directions and warnings from a trial judge cannot be considered as closed. Two examples are worthy of note: (i) that a court should look for corroboration of the evidence of a complaining spouse who alleges a matrimonial offence ; and (ii) where evidence of visual identification is adduced the trial judge must adhere to the Turnbull guidelines discussed in Chapter 9.
(6) CAN LIES IN COURT CONSTITUTE CORROBORATION?
In R v Chapman the trial judge warned the jury that false evidence was capable of amounting to corroboration. He was rebuked by the Court of Appeal. In Tumahole Bereng v R , Lord Macdermott delivering the opinion of the Board said:
“Corroboration may well be found in the evidence of the accused person; but that is a different matter, for there confirmation comes, if at all, from what is said, and not from the falsity of what is said. It is, of course, correct to say that these circumstances – the failure to give evidence or to give false evidence – may bear against an accused and assist in his conviction if there is other material sufficient to sustain a verdict against him. But if the other material is insufficient either in quality or extent they cannot be used as a make-weight …”
There is, however, a dictum in DPP v Boardman that a lie may constitute corroboration. The doubts and uncertainties about lies constituting corroboration were dispelled in R v Lucas where Lord Lane CJ expressed the opinion that subject to the same four safeguards as he required as a condition of out-of-court lies being acceptable as corroboration, a lie told by the accused during his evidence at trial might also be regarded as potentially corroborative of evidence called for the prosecution. However, Lord Lane made it clear that he did not intend to question the decision in Chapman on its own facts, but that “properly understood, it is not authority for the proposition that in no circumstances can lies told by the defendant in court provide material corroboration of an accomplice.” The four safeguards are as follows:
“(i) The lie told out of court must be deliberate.
(ii) It must relate to a material issue.
(iii) The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause or out of shame or out of a wish to conceal disgraceful behaviour.
(iv) The statement must be clearly shown to be a lie by evidence other than that of an accomplice who is to be corroborated, that is to say by admission or evidence from an independent witness.”
In two leading cases – R v Dowley and R v Barber - the above safeguards were adhered to. In Dowley , the accused was convicted of the rape of a woman to whom his marriage was in the process of being dissolved, a decree nisi of divorce having been pronounced but not yet made absolute. The complainant's evidence clearly amounted to evidence of rape, and required a corroborative warning. The accused at first denied having seen the complainant on the relevant occasions, but later admitted that he had seen her, had driven out of town, and that some sex-play had taken place between them. The accused maintained, however, that no rape had occurred and that he had lied only because he was afraid of the other woman he had been seeing since the break-up of his marriage might be offended by what had happened. The trial judge failed adequately to draw to the jury's attention the possibility that the motive for the accused's lies might be something other than guilt and fear of the truth. The appeal against conviction was allowed, since it was not clear that jury should have accepted the out-of-court lie as corroboration of the complainant's evidence, and the jury's decision to acquit the accused on a related charge of kidnapping arising from the same incident showed that the jury were not entirely satisfied with the complainant's evidence.
In Barber where the only evidence which went to prove that the accused way lying when he gave evidence that he had never had sexual intercourse with his daughter, the complainant, was the daughter's own evidence and the judge left the purported lie to the jury as corroborative evidence, the conviction was quashed.
There remains one pertinent question: When is a Lucas direction required? Kennedy LJ in R v Burge and Pegge identified the four situations in which a Lucas direction was required:
(1) cases involving alleged false alibi;
(2) cases where there is a need to look for corroboration or other supporting evidence;
(3) where the prosecution allege that a specific untruth, which is either proved or admitted to be a lie, is in turn evidence pointing to guilt ;
(4) where the prosecution have not adopted the approach in (3) above but the judge reasonably envisages that there is a real danger that the jury may do so.
It must be noted, however, that a Lucas direction is not required because the jury rejected the evidence of an accused about a central issue in the case covered by the general direction on the burden and standard of proof as in R v Hill or where the lies were not relevant to guilt but to credibility as in R v Landon .
G.D. Nokes, An Introduction to Evidence (London: Sweet & Maxwell, 1967), at 500-501.
Sir Rupert Cross, Cross On Evidence (London: Butterworths, 1967), at 162.
J.D. Heydon Evidence: Cases and Materials (London: Butterworths, 1984), at 67.
G.D. Nokes, Cockle's Cases and Statutes On Evidence (London: Sweet and Maxwell, 1970), at 382.
 2 KB 658.
Ibid., p.667. For a critique of this definition, see S. Bronitt, “Baskerville revisited: The definition of corroboration reconsidered”  Crim LR 30.
 AC 296.
 1 All ER 440.
(1962) 46 Cr App R 319.
 1 KB 99.
 Crim LR 575, (1998) 162 JPR 391. see also R v K (1999) The Times, 16 July where a complaint of indecent assault elicited from a young child by the mother's questioning was held not to be an independent support of the allegation because of the danger of suggestibility of a young child.
R. May, Criminal Evidence (London: Sweet and Maxwell, 1990), at 330, n.46.
See Brighty v Pearson  4 All ER 127, Burton v Gilbert  RTR 162 and Crosland v DPP  3 All ER 712. Cf Nicholas v Penny  2 KB 466.
R v O'Connor  Crim LR CA.
R v Lamont  Crim LR 813, R v Cox  Crim LR 276 and R v Campbell  1 Cr App R 522.
Holland v Roberts (1938) 158 LT 313, Moore v Hewitt  KB 381, Jeffrey v Johnson  2 QB 8 and Archer v Rogers  1 NZLR 570.
 AC 378,  1 All ER 507.
R v Jennings (1912) 7 Cr App R 242 and R v Dixon (1925) 19 Cr App R 36.
R v Farid (1945) 30 Cr App R 168.
See Chapter 9.
See I. Dennis  Crim LR 4 at 7.
 2 QB 464.
 1 All ER 807.
 1 All ER 183, PC.
(1983) 77 Cr APP R 94. See also R v Spencer (1986) 83 Cr App R 277, R v Lovell  Crim LR 111 and R v Cheema  1 WLR 147.
 3 All ER 730, CA.
Ibid., p.732 (emphasis added).
J. Richardson, et al. , Archbold's Criminal Pleadings, Evidence and Practice (London: Sweet & Maxwell, 1995), Vol. 1, para 16-36.
 3 All ER 730 at 732.
There was no evidence adduced in Easton supra showing that the complainant was fantasising.
For articles and comments on s.32 (1) of the CJPOA 1994, see D. Birch  Crim LR 524 and  Crim LR 45; I. Dennis  Crim LR 4; and P. Mirfield  Crim LR 448.
 3 All ER 30 at 733.
 2 All ER 881, CA.
 Crim LR 50, CA. For further discussion, see Chapter 12.
Re Hodgson, Becket v Ramsdale (1885) 31 Ch D 177.
People (A-G.) v Casey (No. 2)  IR 33 at 38 (Supreme Court of Eire), per Kingsmill-Moore J.
Alli v Alli  All ER 480.
 QB 774,  2 All ER 624, CA.
 AC 253, PC.
 AC 421 at 428-9, per Orr LJ
 QB 720.
 Crim LR 168.
(1988) The Times, 29 July. In R v Sharp  3 All ER 225, R v Goodway  4 All ER 225, R v Genns and Britton  Crim LR 502 and R v Robinson  Crim LR 417 the appeals were allowed because the Lucas direction was not given to the jury.
 1 Cr App R 163 at 173 D-F.
See R v Liacopoulos  10 Arch News 1 and R v O (A)  Crim LR 617.
 Crim LR 419.
 Crim LR 338.