The law and historic cases: sensible or bizarre?

It has been reported by the BBC today that president of the ‘Association of Child Abuse Lawyers’ has said the way in which Rolf Harris was sentenced was ‘bizarre’. He is referring to the fact that in historic cases the judge passing sentence is limited to the maximum sentence that was available at the time of the offence. In the Harris case this was 2 years (or 5 years in the cases where the victim was under the age of 13).

There are a lot of historic sexual assault and abuse cases trundling their way through the justice system. It is right that, no matter how many years later, the perpetrators of these crimes face justice. However, there is a significant issue in such cases; whether it is a sexual offence or not. As time progresses and as Government’s change, the law too goes through change. If you’re prosecuting an individual 20 or 30 years after the offence was committed it is highly likely that the law has undergone several significant changes: that is true with the law surrounding sexual offences. In all cases historic offences will be prosecuted according to the law at the time the offence was committed. The other alternative is to prosecute them under the law at the time they are prosecuted.

Why do we prosecute historic cases at the time they were committed? Well, it’s about what is fair and just. Justice is not just about the victim, but it must equally be about the offender. It would be oppressive if the law were to treat offences committed decades ago as if they were committed today. It is a general principle of law in democratic countries around the world, especially in the realm of criminal law, that the law is not retrospective. That means that current changes in the law should not affect future consequences of past conduct. In other words, if you did something that was a particular criminal offence which attracted a particular maximum penalty, but by the time you are prosecuted the law has changed, you should be treated (as far as is reasonably practicable) as you would have been when you committed the crime. The same would be true if you committed a crime today, but the law changed substantially tomorrow: you would be dealt with as the law was today and not as the law changed tomorrow – even if there was no substantial delay in arresting, charging and prosecuting you.

In the Rolf Harris case he was prosecuted for the offences that he committed at the time. As such, the maximum penalty that was available to the court was that which would have been available at the time the offence was committed (2 years, or 5 in the case of offences relating to children under the age of 13). Specifically, in the case of Rolf Harris his sentence of 5 years and 9 months was made up of a mixture of concurrent and consecutive sentences for the various charges that he was convicted of. The sentencing remarks of Mr Justice Sweeny are available online and detail what the charges were and what the sentence was for each charge (and whether it was to be served concurrently or consecutively). You can read the sentencing remarks here.

When it comes to sentencing cases like this one where there has been such a delay in bringing the offender to justice, it is not the job of the court to try and fix the sentence that would have been given at the time. The judge must have regard to the sentencing guidelines that are currently in place; however, they cannot pass a sentence which would exceed the maximum available at the time the offence was committed. I blogged in this issue last year looking specifically at the law of England and Wales, you can read that blog here.

Sentencing is always a complex matter, but it is even more complex in these cases. While there will, quite understandably, be no sympathy for people like Rolf Harris; the law must be fair and it must be just. That applies to victim and offender and so the law must not be oppressive by prosecuting people for more serious offences than what they committed (while under the current law they may well have committed the more serious offence, they did not actually commit that offence because they offended at a time when the law was quite different) or by giving them a sentence that is in excess of the maximum that was available at the time they committed the offence.

I won’t make any comment on whether I think the sentence Rolf Harris received was too harsh, too lenient or about right. I understand that the sentence has been referred by someone to the Attorney General and it is now for him to decide whether he thinks that it is unduly lenient and whether it ought to be referred to the Court of Appeal. When he is doing so he will have regard to the sentences passed, the law as it was at the time the offences were committed the present sentencing guidelines and no doubt the totality of the sentence passed. My understanding of the law is that the Attorney General has 28 days to decide whether he is going to refer it to the Court of Appeal. Even if the Attorney General decides to refer it to the Court of Appeal they may refuse to hear the case or decide that the sentence should remain the same: a referral does not mean that the sentence will increase or that it was unduly lenient.

Another blog on Corroboration

Corroboration has been part of the law of Scotland for many, many centuries.  The corroborative requirement used to apply in civil cases, and not just criminal cases.  The requirement for corroboration in civil cases was abolished on 3 April 1989 when section 1 of the Civil Evidence (Scotland) Act 1988 entered into force.  The Criminal Justice (Scotland) Bill currently before the Scottish Parliament will see the end to corroboration in criminal cases as well.

The abolition of Corroboration in Scottish Civil cases came following a lengthy process; it began with Memorandum 46 on the Law of Evidence published by the Scottish Law Commission in 1980, which resulted in two reports.  The first was report number 78 (published in 1983), entitled “Report on Evidence in cases of Rape and Other Sexual Offences”.  That report resulted in Sections 141A, 141B, 346A and 346B being inserted into the Criminal Procedure (Scotland) Act 1975 (later replaced by the present statute governing criminal procedure in Scotland: the Criminal Procedure (Scotland) Act 1995) by virtue of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.  The second report was number 100, which was published in 1986, entitled “Evidence: Report on Corroboration, Hearsay and Related Matters in Civil Proceedings”.   There was also a research paper by Sheriff I D MacPhail (chapters 1-5; 6-15; 16-19 and 20-25) which considered in detail the Law of Evidence in Scotland at that time.

In essence, the major reform to the Law of Evidence in Civil cases through the Civil Evidence (Scotland) Act 1988 followed an intense and lengthy period of scrutiny by the body established by law to look at reforms to the Law of Scotland.  The abolition of corroboration in Scottish criminal cases is a major reform.  It was inserted into a Government Bill following a brief review by a judge and a number of short consultations on Criminal Evidence and Practice (the Carloway Review).  A process frequently described as an “emergency” by the Cabinet Secretary for Justice, Kenny MacAskill MSP, following the Supreme Court’s decision in Cadder v HM Advocate.

As I have already mentioned, the abolition of corroboration in Scotland is a significant piece of reform.  Many areas of Criminal Evidence depend, entirely or significantly, upon there being a requirement for Corroboration.  For example, in Holland v HM Advocate, the existence of the requirement for corroboration was an important factor in the Court’s determination that dock identification did not breach Article 6 of the European Convention on Human Rights.  With Corroboration playing such a significant role in the Law of Evidence in Scotland, it is important that the effects of its abolition are properly considered.  It is also essential that all the necessary changes to the Law of Evidence that require to be made, are made at the same time and not in various bits of emergency legislation like the disaster that was the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, or thorough piecemeal reforms which are required following the identification of yet another problem with criminal procedure arising out of the abolition of corroboration.

While I believe Corroboration is an important aspect of our system that ought to be retained, I could foresee it being removed without any real problem to the procurement of a fair trial.  However, I can only see that if it is done in the context of a properly considered report that doesn’t just look at changes that could be made to the system, but one which has also adequately considered what other changes might have to accompany those changes to ensure that the system remains fair and balanced.  Removing corroboration from Scottish criminal procedure has the capability of reducing the conviction or acquittal of a person down to nothing other than the credibility of the complainer against the credibility of the accused.  That is an unsatisfactory position when a conviction can result in the loss of a person’s liberty for a very long time.

We cannot allow another ‘Cadder’ situation to, which undoubtedly had a significant impact on the ability of complainers to obtain justice because of the procedural errors in the Scottish justice system.  If we are to make such a fundamental change to our justice system, we must ensure that it is done in a way that ensures any consequential changes are also made to protect the rights of both complainers and accused persons.

Abolition of Corroboration: where is the case?

Last night Cabinet Secretary for Justice Kenney MacAskill MSP was on Scotland Tonight defending his plan to abolish Corroboration.  His arguments, as ever, simply do not stack up to scruity.

Right at the outset of his interview he said:

 “We’re not going to have people convicted on one single evidence from one single witness.  That’s been made quite clear by the Lord Advocate; there will always require to be additional evidence.  That’s been made clear it’s not just a quantitative, but a qualitative test so the evidence of one person on its own will not be sufficient; there will require to be additional evidence to be led”.

This all sounds very good, the lawyers are screaming about innocent people being convicted on the evidence of one individual but the Cabinet Secretary has said they’re wrong.  Well, it’s the Cabinet Secretary that is wrong.  Under the Law of Scotland as it stands today, the essential facts of the case (those are that a crime was committed and that it was committed by the accused) need to be proved by corroborated evidence.  That is each piece of evidence that goes towards establishing those two key things must be supported by another source of evidence independent to it.  For example, that could be the evidence of an eye witness together with DNA evidence.  What the Cabinet Secretary said last night is that the Lord Advocate, the person responsible for the prosecution of all crime in Scotland, will continue to require evidence from an additional source.  However, that will be nothing more than guidance to prosecutors with no legal standing at all; it could not be founded upon in the Appeal Court as part of an appeal against conviction to show that there was insufficient evidence to allow a conviction; there would be no legal requirement for corroboration following its abolition.  If the Crown were to decide to progress a case without corroborating evidence, they would be entitled to do so.  Furthermore, the guidance of the Lord Advocate would be subject to change at the whim of the Lord Advocate without any consideration or scrutiny by anyone.  The Cabinet Secretary’s assurances are meaningless and the Lord Advocate’s requirements are meaningless in law as well.

The Cabinet Secretary went on to discuss the safeguards that his Bill contains to address the loss of Corroboration as a safeguard.  The only safeguard mentioned was the increase of the jury majority required for a conviction from 8 to 10.  Is this really an adequate safeguard?  The requirement for corroboration applies in all cases: summary and solemn cases.  Juries are only present in Solemn cases and those cases represent a significant minority of cases which are progressed by the Procurator Fiscal in Scotland.  How does increasing the jury majority safeguard those who are prosecuted before a Justice of the Peace, a stipendiary magistrate or a Sheriff on his own?  It doesn’t.  Therefore, it’s not an adequate alternative to the requirement for Corroboration.

Furthermore, on the question of jury majorities, the Scotland Tonight presenter compared the size of the Scottish majority to that required in England where ordinarily a unanimous verdict is required, but can be reduced upon the discretion of the judge to a 10-2 majority (i.e 83.33% of the jury require to be convinced beyond reasonable doubt of a person’s guilt before conviction).  Under the Scottish Government’s proposals, only 66.66% of the jury would require to be convinced of the accused’s guilt before a conviction.

The Cabinet Secretary made much of the requirement of corroboration being archaic and pointed to advanced in evidence such as DNA as forms of evidence that make corroboration redundant.  I will look specifically at DNA evidence; I feel that too much emphasis is placed on DNA evidence in our modern justice system.  A lot of DNA evidence is not conclusive.  A cigarette but at the scene of a murder with the DNA of the accused on it is not conclusive that the accused was even at the scene of the murder, let alone was there when the murder took place.  The cigarette but could have arrived there by other, innocuous means (that is not necessarily placed there deliberately as part of a “fit up”).  If the scene of the crime was at the bottom of a hill the cigarette but could have been discarded at the top of the hill some hours before the murder and  arrived at the scene of murder through the effect of gravity.  An item of clothing left at the scene of a Housebreaking accidently by the offender containing the DNA of the accused might not be conclusive either.  Consider the situation where two people have similar, or identical, pieces of clothing.  The innocent accused picks up the offenders by accident when they were earlier in the same public place while the offender picks up the innocent accused’s and subsequently leaves the item of clothing at the scene of the crime.  Again, not part of a “fit-up” and an entirely plausible situation that could occur.  In almost all cases; DNA evidence will require corroboration to give it the effect that it needs to have to secure conviction.

If we do away with the requirement for corroboration, it will be up to the jury to make an almost impossible determination as to how the DNA evidence arrived at the scene of the crime.  Programmes such as CSI have skewed society’s view of DNA evidence and resulted in it being considered the “golden bullet” it so often is not (“he must have done it; his DNA was there”).  It is entirely possible that innocent people will be convicted as a consequence of uncorroborated DNA evidence.

The Rational of the requirement for Corroboration that stands today was set out by Barron David Hume, one of Scotland’s “institutional writes” in the following way:

No matter how trivial the offence, and how high so ever the credit and character of the witness, still our law is averse to rely on his single word, in any inquiry which may affect the person, liberty, or fame of his neighbour; and rather than run the risk of such an error, a risk which does not hold when there is a concurrence of testimonies, it is willing that the guilty should escape.

The words of Barron Hume are as true today as they were when he wrote them in the early 19th Century.  It cannot be the genuine desire of the Scottish public to see innocent people convicted for crimes that they did not commit simply because one convincing witness said in court that the accused was guilty of the crime.

The fact is that Corroboration does not hinder prosecutions; it helps prosecutions (and this is a view shared by many within the prosecution service).  If the statement of a witness is supported independently by other evidence it strengthens the testimony of the witness; a witness who might otherwise come across as unbelievable is instantly strengthened by the existence of corroborative evidence.

The Scottish Government has not, in my view, made out the case for such a substantial change to the Criminal law of Scotland.  If we are going to make such a fundamental change it would be useful to do so following a thorough consideration of the issues, perhaps by the Scottish Law Commission.  Lord Carloway’s review was brief and followed what the Scottish Government describe as an “Emergency situation”.  There is something quite ironic about the Government proposing to change the law of Evidence with little or no relevant evidence.

Is it the case that the complainer clearly lied?

In Scotland, there can be three conclusions to a criminal trial: (1) the accused is found guilty, (2) the accused is found not proven and (3) the accused is found not guilty.  This seems fairly straight forward, (1) means they did it (2) means nobody is sure whether they did it and (3) means they didn’t do it.  Only that’s not really how it works; it is a great deal more complicated than this.

Let’s start with numbers (2) and (3), although they look different they are identical in law: the Crown has failed to prove its case against the accused beyond reasonable doubt, and as such the accused is acquitted.  Historically, this meant that the accused could never be tried again for the same crime.  However, following fairly recent changes to the ancient double jeopardy rule (the rule that said no person may be tried twice for the same crime), it is now possible for the Crown to have a second go at prosecuting an individual for a crime for which they have already been acquitted in a set of strict and limited circumstances.  On the whole though, an acquittal means that the person leaves court innocent in the eyes of the law (exactly how they arrived at court) and free from the threat of a further prosecution in connection with the same matter.

Our system is extremely simple in respect of a person’s standing in law when accused of a crime:  all persons are presumed innocent until found guilty in a Court of law.  That finding of guilt may be as a result of the accused’s own guilty plea, or it may be following a trial.  An acquittal following a trial does not necessarily mean that the complainer has told lies or has not been the victim of a crime.  What it means is that the Crown failed to put before the Court (a Justice of the Peace, Sheriff or Jury depending on the forum in which the trial is held) to convince the Court that the accused is guilty of the charges alleged by the Crown.  It is for the Crown to prove the charge, and to prove the charge that it alleges.  Certain aspects of charges can be deleted if the Crown has failed to prove them, but has overall proved the offence.  For example, an ‘aggravation’ can be deleted from the charge where the evidence does not support the aggravation, but where it supports the basic offence.  Other things can be deleted from a charge as well.  For example, if the Crown alleges assault to severe injury and permanent disfigurement, but the evidence only proved assault to severe injury, the permanent disfigurement aspect to the charge could be deleted.  Another example could be where the charge alleges that the accused assaulted the complainer by punching and kicking the complainer, but the evidence only proved that the accused punched, rather than punched and kicked, the word ‘kicked’ could be deleted from the charge.

These deletions can be made by the Crown itself, or they can be made by the finders of fact (e.g. a jury could remove an aggravation from the charge where it finds the basic offence proved, but not the aggravation alleged).  The onus is on the Crown to prove the essential elements of the case though.  Where it fails to satisfy the finder of fact (in the case of a jury trial that would be the jury to a majority of 8 to 7) that the accused committed the crime alleged, the accused is entitled to be acquitted; he or she is free to go with the law viewing them to be innocent.

Of course, not every single case that results in an acquittal has arisen out of the lies of the complainer.  We have a system that requires the Crown to bring sufficient evidence before the Court to prove beyond all reasonable doubt that the accused committed the crime alleged.  The standard of proof is extremely high and the burden largely falls on the Crown, and for very good reason.  A finding of guilt could allow the State to deprive an individual of their liberty for a very long time.  Furthermore the state has far more resources at its disposal when bringing a prosecution against an individual.

In recognising that some guilty people do walk away from court, it is not an invitation to treat those who are acquitted with suspicion.  The law is clear: they were innocent before the trial and they remain so after the trial.  There is no presumption of guilt and nor should there be.  It is an effect of our system of justice that some guilty people will walk free after a trial, just as some innocent people will be convicted. Both are unfortunate, but doing as much as possible to avoid the latter results in the former.

There certainly should not be a jump to the conclusion that the complainer(s) in a case where the accused is acquitted have perjured themselves.  Where there is evidence that this is the case it should, of course, be investigated and a prosecution brought where it is in the public interest to do so.  However,due process has to be followed just as much in that case as in the case that went before it.

In essence, while an acquittal does equal innocence in the eyes of the law; it is realistic to accept that it does not always equal what might be termed as ‘true innocence’.  However, whether the person is innocent or not is quite frankly irrelevant beyond the trial.  In legal terms they are innocent and as a consequence society has an obligation to judge them as innocent, and to treat them as such.  The court that heard the case and acquitted the accused heard all of the available evidence and decided that it was insufficient to allow for a conviction.  The accused is entitled to put the episode behind them and to move on with their life.  Equally, complainers are entitled to support to move on from the crime of which they have been a victim.  In a lot of cases the fact that they have been the victim of a crime is not in doubt, the police and the Crown have just been unable to show that it was the accused that perpetrated the crime (and it may very well be the case that it was someone other than the accused that committed the crime, hence the right of the accused to have society treat them as innocent).

I hope that this makes sense.  If not, here is what I have been trying to say distilled down into five small points:

  1. When a person is acquitted it does not automatically follow that the complainer wasn’t telling the truth
  2. Equally, it does not follow that simply because the complainer may not have been lying that the accused got away with their crimes.
  3. The acquitted accused is entitled to move on from the episode and obtain support as required.
  4. The complainer is also entitled to move on from the episode and obtain support as required
  5. Where there is evidence to support that the complainer wasn’t telling the truth, it should be investigated and prosecuted where such a prosecution would be in the public interest.

A quick defence of legal aid

The debates around legal aid in Scotland earlier this year and in England over the last year have been characterised by a number of clear misconceptions by the public at large.  There is a view that legal aid exists only to make ‘lawyers rich’ and that the vast majority of those receiving legal aid are in some way ‘undeserving’.  These views are of considerable concern as the simply enable Governments in Edinburgh and London to press ahead with legal aid ‘reforms’ that will substantially damage the country.

Legal aid seems to get lumped in with job-seekers allowance, housing benefit, council tax benefit and such like (I have even, on more than one occasion, seen comparisons drawn between legal aid and the NHS); these comparisons are illogical and ignore fundamental aspects of legal aid which set it apart from any other government spending.

Equality before the law is fundamental to ensuring access to justice.  The ability of all (and not just the rich) to access the legal system is of fundamental constitutional importance.  The ability of individuals to defend themselves against the power of the state (whether in civil or criminal proceedings) and to challenge the state through Judicial Review are essential to our constitution.  Without this ability we are not a liberal democracy.  The issue of access to the law isn’t only confined to making it possible to bring or defend a claim, but it has to create a realistic ability to access the law.  That means providing good quality representation (and importantly permitting those bringing or defending a claim to select their own law agent).  Without client choice you are left in a situation where the State is selecting the representatives of those who it is brining a claim against or whom it is defending a claim against.  If you were suing your mobile phone provider and had to use the solicitor that they selected for you, you would instantly see a conflict of interest.  However, that same conflict does not seem to be as apparent when the State is involved (although it is there and just as important).  There has to be equality between the parties in the legal system and for those who cannot afford to pay their own legal fees it is left to the State to ensure fair access to legal representation.

In criminal cases, it is about defending yourself against serious accusations made by the State.  The consequences of conviction are, quite rightly, serious.  Conviction can lead to a loss of employment and a loss of liberty.  Not everyone who gets legal aid in criminal cases is guilty, a great many people are innocent and it is important that they are able to robustly challenge the State who has to prove their allegation.  It’s about ensuring fairness in the system; an individual against the might of the State (with the police and a professional prosecution service for back-up) is not a fair fight.  Legal representation is essential to ensure fairness (whether they are guilty or not).  It might be unpopular to see guilty people get vast sums of public money to defend themselves, but isn’t that a price worth paying to ensure that we have a fair and balanced system ensuring that, as far as is possible, only the guilty are convicted?

Judicial Review is very much disliked by the Government, as should be expected.  Judicial Review is the citizen challenging a decision made by the Government; it’s about ensuring that the Government only takes decisions which are legal.  It is an area under attack by the Government and it is vitally important.  Without effective access to judicial review, the State can go unchecked and be able to take decisions which are illegal.

The need for access to legal aid does not just extend to cases which involve the State.  Individuals seeking to enforce their contractual rights against a company or gain compensation when a company is at fault and they have lost out as a result or to enforce their consumer rights need to have the ability to seek recourse in the courts when pre-litigation action fails to achieve a result.  Without the ability to go to Court and seek a legally enforceable court order to enforce their rights, the rights that they have are effectively meaningless.  The threat of litigation can prevent litigation.  The knowing that an individual can seek recourse to the Court in order to give effect to their rights can be enough to make people comply with their obligations.  Without that effective recourse, people will be free to ignore their obligations with impunity.

Legal aid and access to justice go to the very heart of our constitution and democracy.  It’s not a benefit; it’s a constitutional right  Legal aid is much more important and serious that housing benefit or job seekers allowance (as important as those are); it’s fundamental to our society.

Abu Qatada and the Rule of Law

The latest episode in the saga that is the case of Othman (Abu Qatada) v the Secretary of State for the Home Department occurred today when the Court of Appeal refused the Home Secretary leave to appeal against the Court of Appeal’s earlier judgment to the Supreme Court.

The facts of this case are well rehearsed so I feel that I don’t need to go over them again.  As one would have expected, the Court of Appeal’s refusal to grant leave to appeal caused an uproar on the internet (and this was probably no doubt replicated in homes, pubs and offices around the country).  Let me be clear, I am no fan of Abu Qatada.  He is alleged to have committed some very serious crimes and it is right and proper than he faces trial in Jordan for those crimes.  However, it is equally right and proper that the United Kingdom upholds the law of the land, international law and its other international responsibilities.

Predictably, a lot of the comments were directed towards the judiciary and their apparent failings.  However, I would suggest that this is the wrong place to direct criticism towards.  The law is clear and it is for the judges to apply the law and to uphold the law.  Judges are not there to make or to change the law; that power lies with the Government and Parliament.  If courts are consistently finding against the Government on the same point of law, it would suggest that any problem that exists does so either with the law or the legal position of the Government.  In both scenarios only the Government, not the judiciary, can change the situation.

The Court is there to apply the law as enacted by Parliament and to uphold the rule of law.  They don’t take sides in any legal debate; they are not on the public’s side, the Government’s side or the side of any other party.  They are an independent tribunal charged with applying the law to a particular set of facts and to determine who, in law, is right and who is not.  The Appeal Courts are there solely to interpret the law which is then to be applied to the facts of each case by the lower courts.  They’re not there to look at whether a Court or tribunal below was right to conclude that a particular fact is indeed a fact or whether it is not; they are there simply to ensure that the lower courts and tribunals are applying the law correctly and to resolve any ambiguities in the law.

The Supreme Court only considers what are termed ‘points of law of general public importance’; those are legal questions and conundrums that affect a wide number of people in society.  They will look at serious legal questions and determine the law so that it is clear for all in our society and so that the lower courts are applying it consistently to all.

The Government is, like each one of us, subject to the law.  It does have a slightly more empowered position than the ordinary citizen has, in that should it lose a case in court it can (with the consent of Parliament) pass legislation to reverse the decision.  In this increasingly global world though, the Government (and Parliament) is somewhat restrained in what changes to the law it can make.  The United Kingdom has signed up to various international treaties, including many human rights ones (although we only ever really hear about the European Convention on Human Rights it’s not the only one we are signatory to) and then there are other principles of international law that the United Kingdom has to comply with as well (see my post on the ECHR, Abu Qatada and international law).

It is quite right that the Government is subject to the law in the same way that ordinary citizens are subject to the law.  If it were not, the Government would be extremely powerful with no real check or balance on its power and it would be impossible to effectively hold the Government to account.  There are countries where the Government is outside of the law (either constitutionally or because of the political situation is effectively outside of the law because the judiciary turn a blind eye).  When you look to those countries you soon realise that such a situation is not one which you want in this country.

Abu Qatada (and people like him) wants to destroy democracy and bring tyranny to the ‘West’; the Rule of law is fundamental to democracy.  If we suspend the Rule of law and start to allow the Government to ignore the law and judges to turn a blind eye to the Government ignoring the law the terrorists have effectively won.  Is that what you really want?

More ill-informed codswallop from the tabloid press

The Sun’s “justice” campaigners are out in force again with their ill-informed codswallop which appears designed to do nothing but misinform the public and create fear, alarm and distress.  It’s an absolute disgrace that editors feel at liberty to misrepresent the law in this way.  If a newspaper editor wishes to argue for the abolition of the Human Rights Act 1998 or the removal of the UK from the European Union (note the European Union is a seperate institution to the Council of Europe and it is the Council of Europe who is responsible for the European Convention on Human Rights and the European Court of Human Rights) then that is perfectly legitimate, but they should use legitimate criticisms and not invent it where none exists.

The Sun’s latest ill-informed piece is in respect of the Court of Appeal’s decision in a number of cases relating to the requirements to disclose convictions.  The system of CRB checks was tightened up after the murders of Holly Wells and Jessica Chapman by Ian Huntley.  However, the Court of Appeal found that the present system breaches the human rights of those who have been convicted of irrelevant and minor crimes in the past.

There is, as I have said before, a legitimate public interest in ensuring that those convicted of sex offences against children or who otherwise genuinely pose a danger to the vulnerable in our society are prevented from working with those groups.  However, there is not a legitimate public interest in forcing people to disclose cautions and convictions for the most minor of offences committed perhaps a quarter of a century or more ago.  Most people will remember the utterly ridiculous situation where people who had devoted their life to public service were prevented from standing for election as a Police and Crime Commissioner in England and Wales because of crimes they committed as children (some as many as half a century ago).  It is this disproportionate effect of criminal record checking that has to be addressed; it doesn’t serve any public interest and it certainly doesn’t protect the public.

In this country there is still far too much prejudice against those who have a criminal record.  Once a person is convicted of a crime they are branded a “criminal” and are forever going to be seen as one.  The prejudice actively harms society because those who are determined to become rehabilitated and live purposefully in society find themselves repeatedly hitting their heads against a brick wall when it comes to getting employment.  For many there is no real incentive to desist from criminal behaviour because there are few willing to give them a chance.

Whether you have a criminal record or not; what would the worst season of your life say about you?  Would you want to be forever judged based on the mistakes you made during that season in your life?  I certainly wouldn’t.  I dare say you wouldn’t either; perhaps most of all because it doesn’t reflect the person who you are today.  Why should it be the case for those who have committed criminal offences in the past that they should forever be judged by them?

I’m not talking about those people who genuinely pose a danger to the public.  A person who is sexually attracted to children or has a history of sexually abusing vulnerable adults should not be permitted to work with those groups in society.  That would be putting the public at risk and infringing upon the rights of children and vulnerable adults.  However, we must move to a system whereby only relevant convictions are disclosed.  The fact that a person stole some stuff twenty years ago is entirely irrelevant if in the intervening twenty years they have not been convicted of theft.

The judgment of the Court of Appeal will not lead to known paedophiles getting work in schools; it won’t lead to known abusers getting work with vulnerable adults.  What it will do is ensure that only those with convictions relevant to the work they seek to undertake will be required to disclose them and that the authorities will only be permitted to disclose those convictions which are actually relevant during the vetting process.

Criminal Legal Aid Contributions, Professional Representation and Justice in Scotland

Yesterday evening the Scottish Parliament voted by a majority of 9 to pass into law the Scottish Civil Justice Council and Criminal Legal Assistance Bill into law.  The Bill will now be submitted to the Queen for Royal Assent.  It was a disappointing end to a hard fought campaign by a wide range of people to try and prevent Part 2 of that Bill being passed.  However, it was always going to be an impossible task with the Government having a majority in Parliament.

The first part of the Bill; the establishment of the Scottish Civil Justice Council, was generally uncontroversial and was the result of a lengthy piece of work submitted to the highest levels of scrutiny.  The Scottish Civil Justice Council came as a consequence to the review of civil justice in Scotland carried out by the now Lord President, Lord Gill.  It is a shame that this element of the Bill was overshadowed by the second part of the Bill.  Had the two been separate it is likely that the Scottish Civil Justice Council part would have received unanimous support in the Scottish Parliament.

The significant expansion of contributions to criminal legal aid as a result of this legislation will have a profound impact on justice in Scotland.  I’m not going to write at great length on the merits of the Bill as I have done that in a number of posts (and others have written elsewhere much more eloquently than I have).  The proposals will undoubtedly lead to a number of appeals under Article 6 of the European Convention on Human Rights (the right to a fair trial).  The Government and Presiding Office (presumably with legal advice) are both happy that the contents of the Bill are compliant with the European Convention on Human Rights; however, there is the very real possibility that the contributions system will begin to give rise to “devolution minutes” once it begins to take hold in the system.  That will certainly be something to keep an eye out on to see what happens in that respect.

It is clear from speaking to practitioners in person and through social media that there is a very real anger over yesterday’s result.  It is just one of many things to have arisen over the last few years that have caused anger.  Some of that anger is directed towards the Law Society of Scotland; particularly in their representation of the profession in these matters.

It has been reported that there was to be a challenge lodged to the Society’s position as the sole representative body of Solicitors in Scotland which will be founded upon Article 11 of the European Convention on Human Rights.  I am not a solicitor and I have not had many dealings with the Law Society of Scotland.  I only know what others have told me (and I’m not inclined to make my own decision purely upon the basis of third party complaints).  However, it has always been something that has intrigued me about the legal profession.  I’m a supporter of Trade Unions and the representative functions that they undertake.  However, I’m equally supportive of a person’s right to choose their representative body (and to elect not to belong to such a body).  That goes not just for lawyers, but for others who have a single statutory representative body with no choice as to who they have representing them.

I think it is only right that if people want a different representative body that this is a choice that they have.  It will be interesting to see if this case goes ahead and what the outcome of it might be; it could have a profound effect on the United Kingdom extending beyond the legal profession.

The fight to ensure justice in Scotland will no doubt continue as the programme for reform of the criminal justice system continues over the coming years.  There are proposals in the pipeline that will likely gain similar; if not greater, reactions from the legal profession (corroboration and contracting to name two).  It’s an unsettling time in the criminal law for Scotland; but it’s an equally interesting one.

Consultation on safeguards after the abolition of corroboration

On Wednesday the Scottish Government issued a consultation document looking at some of the safeguards that might be needed to be introduced to Scots law when the requirement for corroboration is removed.

I have expressed my views on corroboration before on this blog and I do not intend on getting into that issue in any great detail here; it is suffice to say that I am a supporter of the requirement for corroboration and a subscriber to the idea that if something isn’t broken then there is no need to go and fix it.  However, the Justice Secretary is clear that he wants to abolish the requirement for corroboration and that parliamentary arithmetic means that short of a rebellion by his own backbenchers (unlikely) then he will get his way.  It is therefore essential that everyone engages with this consultation to ensure that the protection for the accused in a criminal trial is not diminished.

Corroboration is a fundamental issue to our justice system.  The rule is not, as the media have been saying, that there must be two pieces of evidence before there can be a conviction.  It is rather more complicated than that, but it essentially requires that there are two independent sources of evidence to support each of the material facts of the case.  It applies in all cases before all criminal courts in Scotland.

The first thing to note about the Government’s consultation document is that it focuses almost exclusively on cases where a jury is involved.  Not everyone in Scotland is tried by a jury and there is no right to a trial by jury in Scotland.  The decision as to whether you are tried with or without a jury rests with the prosecutor (which has to be decided within the confines of certain rules; for instance some offences fall within the exclusive jurisdiction of the High Court of Justiciary where there is always a jury).   The Government’s almost exclusive focus on jury trials means that only those accused persons who are indicted benefit from the additional safeguards introduced post-corroboration.

The vast majority of criminal cases in Scotland are prosecuted on a summary complaint.  This means the cases is heard by a sheriff sitting alone in the Sheriff Court or by a lay Justice of the Peace in the Justice of the Peace Court (or if in Glasgow a legally qualified Stipendiary Magistrate).  There is no jury involved and as such the vast majority of criminal accused persons in Scotland are going to miss out on additional safeguards to reflect the lack of corroboration.

The very fact that the Government has issued this consultation is a recognition by them that corroboration is so fundamental to the justice system in Scotland that to abolish it means that additional safeguards need to be introduced to ensure that the accused is not disadvantaged.  If that is accepted by the Government then it applies equally to summary and solemn criminal cases.  It recognises that a lack of corroboration makes it somewhat easier to convict and that something needs to be done to address the balance to ensure that it is not too easy to convict.

The specific proposals contained in the consultation document are interesting.  The first is to increase the number of jurors required to be convinced by the Crown that they’ve proved their case in order to convict.  Currently, the system permits a simple majority of 8 out of 15 jurors to convict.  The consultation document suggests increasing this to 9 or 10.  I don’t see how increasing it by one or two is sufficient.  Having given it some brief thought I would think that something along the lines of 12 out of 15 would be more suitable.  There needs to be at least 12 jurors for there to be a quorum in Scotland.  If the number of jurors falls below 12 then that jury cannot reach a verdict.  If the number was fixed at 12 this would mean that losing three jurors would require a unanimous verdict.  That doesn’t seem suitable either, so as I’ve given it some thought.  My (brief) thoughts have resulted in a proposal which would see the number of jurors required to convict decrease proportionally in line with the number of jurors available; ensuring that at least three-quarters of the jurors were convinced by the Crown’s case.  That would mean in cases where there are 15 jurors that 12 would be required and where the jury falls to just 12 members the number required to convict would be 9 jurors.

I consider that this proposal is fair for both the accused and the prosecution.  It means that the prosecution always has the same task: to convince at least three-quarters of the jury that they have proved their case beyond reasonable doubt.  A fixed number would mean that in cases where jurors are lost (for example through illness) the crown’s task doesn’t get easier (for example only having to convince 60% of the jurors in one case and 75% in another).  It also avoids unfairness to the Crown because they will not be in the position where they find themselves having to seek a unanimous verdict in one case and a majority verdict in another.

The other proposal in the Government’s consultation is that where a jury fails to reach a verdict that the Crown could be able to seek a re-trial of the accused.  I would not support such a proposal.  It is the Crown’s job to prove a case beyond reasonable doubt.  If a jury fails to reach a verdict then the Crown has failed in that task.  There is such a procedure in England and there have been cases where the defendant has been tried three times before the Crown finally got the verdict it was seeking.  Is this fair?  Should the Crown be able to repeatedly prosecute someone until it gets the verdict it wants?  No, it’s not.  It is simply placing too much power in the hands of the State.  If the Jury fails to reach a situation whereby the required number of jurors cannot be convinced of the Crown’s case the accused should be acquitted.

In serious cases the Crown now has the opportunity of seeking a fresh trial under the Double Jeopardy (Scotland) Act 2011 where certain conditions are met.  If the only reason a person hasn’t been convicted is because of the ineptitude of the Crown I don’t see why the Crown should be able to repeatedly prosecute someone.  It will mean, of course, that guilty people will likely get away with their crime.  However, the solution to that is for the Crown to ensure that they have the strongest possible case before prosecuting someone.  Where the Crown has been unable to secure a conviction because evidence was genuinely not available to them at the time then the 2011 Act permits them to go back to the Court and seek permission to charge the accused with the crime again.  Had the 2011 Act not been passed then there might have been an argument to allow a retrial procedure as proposed by the Government.  However, with the existence of the 2011 Act there is no real argument for it.

The final proposal looked at in the consultation is the question of the “Not Proven” verdict.  I have for along time considered that having three verdicts in Scotland serves little useful purpose and we should move to a system of having only two verdicts.  Derek Ogg QC said on Newsnight Scotland (Wednesday 19 December 2012) that he had been persuaded that we should return to “Proven” and “Not Proven”.  I find this persuasive; although I do consider the arguments favouring “Guilty” and “Not Guilty” to be strong.  I don’t see the role for a third verdict which has the same practical meaning and effect as another.  Unless the third verdict were to mean something different to the aquittal verdict there seems little point in keeping it.  In my experience, what the public consider it to mean bears no reflection on the reality and it could be argued that a third verdict is simply confusing to those without an understanding of the criminal justice system.  Again, I’ve explored my views on the three verdict system on this blog before in detail so I will say no more on the question here.

As I have argued before on this blog it ought to be difficult for the Crown to secure a conviction.  That is not to say that it should be impossible; but the system should be weighted in such a way so as to ensure that the Crown is faced with some difficulty in securing a conviction.  A conviction in a criminal court is more than simply a finding of fact; it signifies that the offender has broken society’s rules and that he/she is deserving of punishment for that offence.  That finding could have a significant impact not only on the accused, but also on their family.  A conviction might result in a loss of liberty or a loss of employment.  Both of these situations might well have a profound effect on the family of the accused who are entirely innocent and will be indirectly punished by a loss of liberty or employment.  The stakes are so high that it is essential that the State cannot easily convict people.

The Government’s consultation is open until 15 March 2013.  I would encourage everyone to respond and engage with it in a meaningful way; regardless of your view as to whether corroboration should stay or go.  The likelihood is that it will go and it is important that properly considered safeguards are put in its place to ensure fairness in our criminal justice system.

Judges unite in support for retaining corroboration

Yesterday the Senators of the College of Justice, excluding Lord Carloway, published their response to the Government’s consultation paper arising out of Lord Carloway’s report into reforming Scottish criminal law and practice.

Lord Carloway was asked by Justice Secretary Kenny McAskill MSP to investigate and report the ways in which Scottish criminal procedure could be reformed.  This followed the UK Supreme Court’s controversial decision in the case of Cadder V HM Advocate.  That case, as I’m sure readers will know, held that the Scottish practice of detaining suspects without access to a lawyer breached their article 6(1) right to a fair trial.  As a result emergency legislation was introduced to the Scottish Parliament which provided for the right of suspects to receive advice and representation from a solicitor while in police custody.  Lord Carloway’s report considered some of the issues that had arisen as a result of that legislation; issues which had not been properly considered because of the speed at which the Government pushed the amendment through Parliament.

The most controversial aspect of Lord Carloway’s report was his recommendation that the ancient requirement for corroboration be abolished.  Since the publication of the Carloway Review; the Justice Secretary has made his position clear on the matter (that he supports Lord Carloway’s recommendation) and both the Lord Advocate and Solicitor General have gone into a political drive in support of its abolition.

Much concern about the proposal of Lord Carloway has been noted since the publication of his report.  Many in the legal profession have come out in support of keeping corroboration and referring to it as an essential safeguard.  Some have suggested the desire of the Government and the Crown to abolish corroboration is about trying to making it easier for the Crown to obtain a conviction.  Others have suggested that the abolition of corroboration wouldn’t be a bad thing, but that other changes would be necessary to ensure that the right of the accused to a fair trial was not placed in jeapordy.

For what it is worth I am of the opinion that corroboration is absolutely essential to the criminal law in Scotland and that any attempt to abolish it would likely have severe consequences for the accused.  I am also of the opinion that the move to abolish corroboration may, in part, be supported by the government with a view to increasing the number of convictions the Crown can obtain.  That, in my view, would (if indeed it is part of the motivation) make it a very bad idea because it distorts justice (see this earlier post from me on Justice published on this blog).

The consultation response from the Senators of the College of Justice provides a glimmer of hope for the continued existence of corroboration in Scotland.  All of Lord Carloway’s colleagues have united in support for corroboration leaving him on his own among the senior judiciary in Scotland.  The weight and authority of the Senators should also cause the Justice Secretary to reconsider his position on the future of corroboration.  When almost all of Scotland’s senior judiciary (who are responsible for upholding the law) you certainly be foolish to ignore them.

In the judge’s response to the consultation they state:

In our view, it is often difficult to assess the true facts on the basis only of the evidence of one witness.  A witness may be credible and plausible, yet not be telling the truth (or the whole truth).  The Scottish courts have on many occasions been grateful for the requirement of corroboration, which in our view provides a major safeguard against miscarriages of justice.

There is little to say about this submission from the judges.  It will always be the case that a case will be stronger the more there is to verify the evidence.  The judges make a good point that simply relying on one witness is not particularly helpful.  As they state a witness can appear as though they are a reliable witness, but the truth of the matter is that their version of events are not an accurate reflection of what happened.  They state that corroboration acts as a major safeguard against miscarriages of justice.  This is something that I would agree with entirely.

We are also concerned that the abolition of corroboration may result in less diligent police investigation pre-trial:  knowing that corroboration is not required, there may be a relaxation in the search for supporting evidence (even though such may well exist).

This is an interesting point and is certainly one that is echoed by the few police officers I have spoken to.  They state that it wouldn’t necessarily be about being lazy, but it would be a sensible way to use resources (particularly at a time when resources are under pressure).  Of course, in the most serious or complex investigations there is unlikely to be much change. The very nature of such investigations is that corroborative evidence would still likely exist.  The danger exists in the less complex and serious investigations.  While they might be less complex or serious in terms of the gravity; a criminal investigation is sufficiently serious to ensure that a thorough and effective job is done.  The effect on the life of a person who is convicted of a criminal offence can be significant: they may lose their job, seeking employment becomes more difficult, there may be financial hardship and the stress of an investigation and trial can cause marital and family problems.  We cannot allow a situation to develop where it is more likely that innocent people will suffer the effects of a wrongful conviction.  That is, in my view, a much greater injustice than a guilty person escaping conviction.

The judges also raise interesting points on the issue of increasing convictions.  Their view is that rather than increasing the number of convictions it might well cause a reduction in the number of convictions obtained by the Crown.  They cite a possible reluctance on the part of a jury to convict where it is a situation of one person’s word against the word of another.  The senior judiciary have a wealth of experience from which they can draw such conclusions and I wouldn’t want to disagree with them on that point.  It does, with a bit of consideration, seem like a conclusion that can be sensibly arrived at.

The judges broadly support Lord Carloway’s other recommendations, which are less controversial and do make sense in light of the line of authority developing as a result of Cadder.  Their response can be read here.