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.

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