On 1 November 2012 I sent the following letter to the Cabinet Secretary for Justice, Kenny MacAskill MSP.  I will post any reply that is received.

Mr Kenny MacAskill MSP
Cabinet Secretary for Justice
The Scottish Government
St. Andrew’s House
Regent Road
EDINBURGH
EH1 3DG

Dear Mr MacAskill,

Justice in Scotland

I am writing this open letter to you regarding the vitally important topic of Justice in Scotland.  As an observer and law student it appears to me that there is a sustained attack on Justice by the Scottish Government, especially in the sphere of the criminal justice system.

One of the first major concerns is the apparent lack of independence of the Law Officers from Government.  Over the years the Lord Advocate and Solicitor General are appearing more to be an extension of the arm of Government rather than office holders independent of the Executive.  The decision taken by the First Minister in 2007 to stop the Lord Advocate attending Cabinet on a regular basis appeared to be an affirmation of the independence of the Law Officers.

For centuries the Lord Advocate has performed a dual function.  The Lord Advocate heads up the sole prosecuting authority in Scotland, the Crown Office and Procurator Fiscal Service, and also acts as the Government’s most senior legal adviser.  This dual function appears to have worked well in previous times.  However, in a modern democracy having the head of the prosecution service as a member of the Executive doesn’t support the need for a separation of powers; essential to any democracy.  The fact that the First Minister also has the power to appoint the head of the prosecution service is also at odds with the thought that the prosecution service should be independent and separate from Government. The position of the Lord Advocate as the holder of both offices has, in my view, become untenable and the Government should be looking to split this role.

Another important matter is the issue of corroboration in our legal system.  You have recently indicated that you intend to continue with the removal of corroboration in Scotland despite the fact that there is a large portion of those involved in the criminal justice system that are not in favour of such a move.  You cite there being splits in opinion.  However, those splits are not as significant as one would have thought from your statements.  All but one of the Senators of the College of Justice have given evidence in support of retaining the requirement of corroboration.  There remains only one Senator of the College of Justice who supports the removal of the requirement; Lord Carloway, the author of the report which recommended its removal in the first place.  It is significant that the remaining Senators disagree with Lord Carloway; it cannot have been easy for their Lordships to so publically disagree with one of their number, especially one as senior as Lord Carloway.

Another important group who have come out in favour of retaining Corroboration is the Police Federation.  The Police Federation represents rank and file police officers; the ones who are on the ground every day investigating crime and assisting victims of crime to obtain justice.  If there was one group of individuals who one would have thought would support such a move it is them.  Removing the requirement for corroboration would make criminal investigations much less complex, a lot quicker and a lot easier to bring a suspect before the Courts.  Yet, rank and file police officers are against the removal of corroboration.  That, I suggest, gives a great weight to its value in the criminal justice system.  It is not just lawyers who are opposed to its abolition.

Personally I am a supporter of corroboration.  I am of the view that it has served Scotland’s justice system well and that the argument that it’s out-dated and archaic is not strong enough to consider its removal from our system.  Corroboration gives credibility to witnesses who on their own might be less credible.  Corroboration, gives weight to testimony rather than detracting from it.  If a witness presents a version of events that is supported by other evidence independent from the witness then it strengthens that testimony.  The removal of corroboration could conceivably lead to fewer, rather than more, convictions.  As we begin to remove the independent supporting evidence (perhaps not because it doesn’t exist, but because it’s not required it is not found) juries and Courts might find it harder to convict on the testimony of a sole crown witness who may not appear credible.  That is as much of a miscarriage of justice as an innocent person being wrongly convicted.

There is, of course, the argument that removing corroboration that more innocent people will be convicted a criminal offence.  That should concern anybody, especially the Cabinet Secretary for Justice.  Credibility of the justice system is essential and if we see a decrease in convictions and an increase in wrongful convictions the credibility of the system is severely harmed.  Witnesses lie on the stand, they make mistakes while giving evidence and their testimony can be clouded by long delays between the offence and trial.  The passage of time can affect a person’s recollection of events.  In the same way that the passage of time can cause a person to become less sure of events, they can also become surer of events which did not actually occur.  Without corroboration, a witness whose memory is so affected will appear confident and that could result in an innocent person to be convicted.

Despite the previous paragraphs in support of corroboration I am not wedded to it.  I don’t take the view that it would be the end of the world if it were to be abolished.  However, if it were abolished with no other amendments made to the system then there is a real risk that the trial process will become unfair and weighted too heavily in favour of the Crown.  If we are to abolish corroboration it is necessary, in my view, to consider whether it is still appropriate to accept, for example, an 8-7 split on a jury and whether we can continue to have three verdicts in our criminal justice system.  There are other systems which do not operate corroboration, but they do have other safeguards built into their system.  Scotland would need to consider what other safeguards would be required at the same time as abolition.  We must avoid another Cadder situation where Scots law is found wanting and we have to rush through emergency legislation which cannot be properly scrutinised prior to its enactment.

While I accept that Scots law can survive without corroboration I see no reason for removing the requirement.  Simply because something has been around for centuries doesn’t mean that it no longer has a place in our system.  I am a firm believer of the “if it isn’t broken don’t fix it” approach.

I am concerned in the way that the debate around corroboration is being presented.  The constant focus on sexual offences and domestic violence is, in my view, preventing a proper and considered debate on this matter.  It is not right or proper that when considering removing a fundamental element of our criminal justice system that the debate focuses on a small number of offences, particularly ones which are as emotive as sexual offences and domestic violence.  Removing corroboration will affect every single criminal situation; from the drunken person at the weekend committing the most minor of breaches of the peace all the way through the homicide.  As it affects the whole system, it must be debated in a way that considers the whole system.  Reforming the justice system should not be about placing victims and perpetrators against one another.  The criminal justice system exists for the wider public interest.  The need for retribution by a victim is an important part of that public interest, but only one part of it.  The protections of our system exist to protect those who are wrongly accused of a crime as much as, if not more than, those who are rightly accused of a crime.  Ignoring this group of people in any consideration of reform of the justice system is entirely wrong.

There are matters in our criminal justice system that are much more pressing and require the attention of Government and the time of Parliament.  I would urge the Scottish Government to give consideration to those (such as the independence of the Law Officers) ahead of a massive shake-up of our system that could do much more harm than it does good.

I look forward to receiving your considered reply to the matters raised above.

Yours sincerely,
Alistair P Sloan

• Carloway Review
• Corroboration
• Criminal Justice
• Criminal Law
• Politics
• Scots Law