In all democratic countries there is a very clear separation of powers between the Executive, Legislature and Judiciary. This is important so as to ensure that there are proper checks and balances on power and is really quite fundamental so as to ensure an effective democracy. It is so fundamental that when the Scottish Parliament embarked upon a programme of restructuring the judiciary, it set out in section 1 of the Judiciary and Courts (Scotland) Act 2008 that the judiciary are to continue to be independent of the First Minister, the Lord Advocate, the Scottish Ministers, Members of the Scottish Parliament and others.
Judicial independence and impartiality flows from the doctrine of the separation of powers which is so fundamental to democracy. It is important that the judiciary is totally independent from the Executive and the legislature. Although judges in Scotland are appointed by Her Majesty the Queen, they are done so after having been selected by a body independent of the State, the Judicial Appointments Board for Scotland. Neither the legislature nor the Executive play any role in the appointment process, other than by setting out the qualifications required to be a judge (see Chapter 3 of the Judiciary and Courts (Scotland) Act 2008).
This independence means that neither the Scottish Ministers nor the Scottish Parliament should seek to interfere with the independence of the Judiciary. Parliament serves two primary functions: to make laws and to hold the Executive to account. The Judiciary interprets and applies the laws made by Parliament and also holds Ministers to account. Finally, Parliament holds the judiciary to account by having the power to change laws when the Judiciary interpret either the common law or statutory provisions in a way that Parliament considers is wrong. It is rightly difficult to remove judges from post, their independence would be threatened if it was far too easy to remove them; it might make judges less able to perform their important function of holding the Executive to account, for example. These three parts of the State work together (not always harmoniously, but that is to be expected) to ensure that the State does not over exert its powers and that no part of the State becomes too powerful.
The impartiality is also of huge importance and two-fold. Firstly, the judiciary must be politically impartial. It is for this reason that when lawyers become judges they must sever ties with any political parties that they may well have had connections to. They should not be seen to make political comments, whether in the press, in speeches or in their judgments; especially if such comments align themselves with a particular political position or party. Their impartiality also extends to the parties before them. They must be careful not to be seen to be supporting one side or the other in any way. That is not an easy task.
There is currently a proposal before the Scottish Parliament that may impact, in a negative way, both the impartiality and independence of the judiciary. Section 6 of the Abusive Behaviour and Sexual Harm (Scotland) Bill seeks to insert a section into the Criminal Procedure (Scotland) Act 1995 that would require judges to give specific directions in certain sexual offences cases. Those directions are undoubtedly well-meaning and seek to address common misconceptions about complainers in sexual offences cases, especially around any perceived delay in making the allegation to the police and how they react during the alleged offence. However, simply because they are well-meaning and seek to serve a wholly commendable purpose does not mean that they should not be enacted or questioned. In my view the potential constitutional difficulties that they present far outweigh the benefits, especially when there are other ways to achieve the same aim that do not impugn upon fundamental constitutional principles.
Independence
These statutory provisions would require Judges to include specific information in their charges to juries in sexual offences cases. This is something that clearly crosses the line in the separation between Parliament and the Judiciary. This is wholly different to Parliament telling judges that they have come to the wrong conclusion as to what the law is by passing substantive statutory provisions. It is Parliament expressly dictating to judges how they should do their job. We should always prevent Parliament from taking such steps.
Impartiality
The Directions which Parliament proposes judges should make in their charges are well founded in evidence. However, what they seek to do is bolster the credibility of the principal crown witness in a sexual offences claim (i.e. the complainer). It is entirely appropriate that we seek to remove any myths about complainers in sexual offences cases; only when we do so can we move towards a position where those who have suffered at the hands of a sex offender can get a proper shot at receiving justice. When a judge is giving their charge to the jury they set out plainly what the law is in respect of the offence(s) contained in the Complaint/Indictment, explain to the jury the three possible verdicts open to them, the concept of reasonable doubt and finally that a majority of the jurors must be satisfied beyond reasonable doubt of the accused’s guilt before they can convict the accused. In a jury trial the judge is there to deal only with matters of law and procedure; they are there to ensure that both the prosecution and the defence act and are treated in a fair manner, as well as making rulings on issues of law and procedure and setting out the law to the jury that they need to apply to the evidence they have heard in court.
One of the factors that jurors need to weigh up in reaching their verdict is the credibility of not just the complainer, but every other person who has given evidence before them. Only once they have assessed the credibility of a witness can they decide whether to believe them and how much weight to accord their evidence. It is clear therefore that the credibility of the complainer in any case, including a sexual offences case, is of central importance to the jury. In my view it therefore follows that any comment by a judge that seeks to bolster the credibility of a witness (regardless as to whether they are the complainer or the accused) impugns upon their impartiality from the parties to the case (in this situation, from the Crown).
How else can this issue be addressed?
As I have already stated, there are many myths around the conduct of sexual offences complainers – including around how quickly they make the allegation official and issues about their actions and reactions while the alleged offender is committing the alleged offence. A complainer who makes their allegation quickly should not automatically be presumed to be more honest that one who waits weeks, months or even years to make their allegation. It should not be relevant whether or not a complainer made attempts to fight the alleged offender off. These are the issues that these proposed jury directions seek to address.
In my view, these can be addressed in ways other than by requiring judges to set out a case bolstering the credibility of the complainer in their charge to the jury. The issue of the credibility of the complainer, or rather the task of presenting the complainer as a credible witness, lies with the Procurator Fiscal Depute or Advocate Depute who is prosecuting the case. Therefore, we ought to be looking at ways to put this evidence before a jury; whether that is by obtaining it through a witness such as a specially trained police officer or an expert such as a psychologist. It wouldn’t necessarily be essential to require a complainer to explain why they didn’t make an attempt to fight of the alleged offender or why they delayed in making the report; although, these matters may well be explored during the complainer’s evidence in either examination-in-chief or cross-examination.
Addressing this issue in the way I have described would ensure that what is essentially a question of fact for the jury (that being, the assessment of the credibility of the witness) is treated as such and is not dressed up as being a matter of law being dealt with by the presiding judge. It would also ensure that points of view that might well be held by the jury, which are not supported by evidence are properly addressed. Finally, it would ensure that the independence and impartiality of the judiciary is properly and rightly preserved.
It is therefore my view that the Scottish Parliament should remove section 6 from the Abusive Behaviour and Sexual Harm (Scotland) Bill.
prout de jure 