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 (Hume ii at p 385)
There has been a definite shift in policy at the Crown Office and Procurator Fiscal Service. Over the last five years there has been a definite reduction in its independence from Government. As the years have passed the Crown Office has become more and more an arm of the Justice Directorate. The current Lord Advocate and the Solicitor-General are very much in the media, something which one might not have seen so much in the past.
It is often thought that the prosecution is on the side of victims and in recent years the prosecution service in Scotland has aligned itself with a “victim’s agenda”, championing the rights of individual victims. In doing so they have wrapped up their arguments for the abolition of the rule of corroboration in emotive subjects (sexual offences and domestic violence) which makes it hard for people to try and oppose their arguments. Politically it could be painted that someone against the abolition of corroboration is against convicting rapists and those responsible for abusing their spouses/partners. It stifles debate and proper consideration of the facts, including what would need to be put in place to replace a safeguard if it were removed.
The decision in Cadder v HMA Advocate has been a good opportunity for the newly politicised Crown Office and the Government to argue that there needs to be a re-balancing of the system because the balance had went too far in one direction. That is an argument that I do not really accept, but won’t examine here. There seems to be a clear agenda to make it easier for the Crown to obtain convictions and harder for the defence to defend the accused. Of course, society wants to see more people who have committed crimes convicted. For a guilty man to walk out of court free is frustrating, but that is the nature of our criminal justice system. Sometimes the prosecution can’t produce the necessary evidence to convict someone. There are two responses to this situation. First (and it’s my preferred response) is to simply accept that as a consequence of the system and that it can’t get it right every time. The second is to effectively move the goalposts making it easier for the Crown to get a conviction. This has its own consequence and it is one that I would much rather avoid: a greater number of innocent people are likely to be convicted.
The nature of criminal law is such that it ought to be difficult for the prosecution to convict the accused. Convicting a person of a crime is more than a simple finding of fact. When a person is convicted of, for example, murder, it is not simply saying that the victim was killed by the accused, but that the accused is guilty of murdering him. In other words, the accused is deserving of punishment. The accused could be guilty of killing the victim, but not guilty of murder. For example, if the accused was an armed police officer and shot the accused because the accused had been shooting a gun in the direction of him and his colleagues; the police officer is guilty of killing the accused, but is probably not guilty of his murder (in simplistic terms). The criminal law is about delivering punishment. I suspect most people have at some stage in their life been punished for something that they have not done or been punished unjustly. Those who have been in that position might remember what it was like to be punished for something that you knew that you had not done. While, we have done away with the ultimate sanction (death) in our criminal justice system, the punishment that can be dished put by the system is still severe. For example, a person wrongly convicted of murder will be given a sentence of life imprisonment. Such a person is unlikely never to be released because the parole board would never consider someone still protesting their innocence as being of low enough risk to release on licence. Perhaps we don’t like to see the fallibility in our system because we do not want to consider the consequences of it?
Contrary to popular belief, prison is not a nice place. While prisoners have three meals a day, access to education and most have a television in their cell, they are still in prison. Their freedom has been removed from them. Outside of prison we make decisions all the time that you take for granted: to have a take-a-way for dinner, to go out to the cinema, to meet friends, to spend an extra hour in bed and so on. The issue here is not that everyone in prison is innocent, but rather that prison is a punishment and it is wrong to lock away innocent people, perhaps for lengthy periods of time, simply to satisfy the demands of some victims and victims’ groups. The very fact that a guilty verdict might result in a person going to prison, perhaps for the rest of their life, is a strong reason as to why it ought to be difficult for the Crown to convict a person.
There seems to be a worrying shift in public perception of persons accused of committing a crime. Whether this is a reality or simply a perception created by certain media outlets is another matter. That perception seems to be that people are beginning to believe that if a person is on trial they must be guilty (and if not of what they are accused certainly something else and should be punished anyway). This challenges a presumption which is at the heart of our system: that a person is innocent until they are proved guilty by evidence in a court of law. The presumption accepts that the police (and everyone else involved in the justice system) are human and make mistakes. They miss evidence or become so focussed on onlyone line of enquiry that they convince themselves that a particular person is guilty, regardless of the truth (sometimes even to the point that they make the evidence fit their version of events). The presumption recognises the inherent fallibility of the system.
There have been a couple of examples recently, granted they have come from England, that underline the way in which the presumption is being disregarded by some in society. I’ll look at the John Terry example. John terry, an English premiership footballer, said some nasty things. That is a fact; he admitted such in his evidence. However, he was found not guilty by the Court and there was a complete outrage on Twitter, on Facebook and in pubs up and down the country. Some of my friends some of those who were part of the “angry mob”. The outburst failed to recognise that simply because he admits having said the nasty thing in question doesn’t mean he was guilty of the offence charged. There was, demonstrably, a great deal of misunderstanding about exactly what Terry was charged with. People focussed on the racist aggravation and as a result appeared to conclude that because he admitted saying the racist things he must be guilty. That is not how the criminal law works though. For a person to be guilty of an offence there are certain things that the Crown must prove to the required standard. If the Crown fails to do that, as they did in the John terry and Simon Harwood cases, then the accused must be acquitted of the charges.
The criminal courts do not exist simply to satisfy the needs and desires of the public. They exist to look at matters in a more objective way, to consider the evidence and to make a finding based on the evidence. Simply moving the goalposts to obtain more convictions doesn’t mean that justice is being achieved anymore than it was before. When victims leave court believing they have had justice when the reality is an innocent person has been convicted, they have not received justice but have been cheated by the system. I do not want to see more victims cheated by believing that they have had justice when the true perpetrator still walks free. That is not fair on either the innocent person or the victims.
Put simply, more convictions does not always equate to better justice. It is necessary to have safeguards in place to ensure that, so far as is reasonably practicable, only the guilty are convicted. Having those safeguards in place will mean that guilty people walk free from court, but that is preferable to a greater number of innocent people being punished. Many of the safeguards in our criminal justice system are there to protect the innocent, not the guilty. Yes, the guilty will benefit from them, but that is a consequence of the system. However, it is a necessary one.
I started this blog post with a quote from Barron David Hume’s commentaries. It is effectively saying that it is better that some guilty men escape punishment in order to reduce the likelihood that an innocent man suffers punishment. It is framed very much around corroboration and how corroboration acts as a level of protection. Of course, no system is perfect and even under the current system some innocent people are convicted. However, it is clear that its abolition is all about increasing the number of convictions to satisfy some victims, some victims’ groups and some others in society. Many of the arguments advanced for its abolition are, in my view, weak. The idea that we can abolish corroboration and leave the rest of the system as it is quite frankly is dangerous. It demonstrates fully the real reasons for abolishing corroboration: convictions, not justice. If we’re going to abolish corroboration and replace it with something else, why bother with the upheaval if the reality is the situation isn’t going to be much different? Not much has changed since Hume wrote the words quoted right at the outset of this blog. Justice demands that obtaining a conviction be hard. Those victims who have not seen the offender in their case convicted deserve sympathy and help to rebuild their lives. However, we cannot simply create more victims in order to try and help them find closure and move on or to satisfy what they have in their mind. When we convict innocent people we create more victims and the original victims are victims for a second time. The support for those wrongly convicted and then later exonerated is all but absent. It’s as if the system doesn’t accept that it makes mistakes.
We need a proper debate about justice in Scotland. It must be one that doesn’t simply pit the guilty against their victims. Those innocently caught up in the system wrongly accused must be considered too. It is largely for their benefit that defence protections exist. Of course, they exist for the guilty to: it is necessary that punishment is proportionate to the offence. It also needs to be an objective debate that isn’t wrapped up in emotive cases or offences. The results of such a debate are likely to weaken, not strengthen, the justice system in Scotland. The corroboration requirement came into existence in Scots law at a time when it was arguably far more vengeful than it is now, but yet we seem to be willing to trade in essential protection for innocent people in order to appease the needs of some for vengeance. That’s not justice