Cadder, Carloway Review, Corroboration, Criminal Justice, Criminal Law, Evidence, Legal System, Scots Law

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.

Cadder, Carloway Review, Criminal Justice, Criminal Law, Legal System, Scots Law

Initial views: Lord Carloway’s report

Lord Carloway today published his report into criminal procedure and evidence in Scots law following a review of around 12 months.  The recommendations made by Lord Carloway were mostly expected, but one has caused particular controversy within the legal sector already: the recommendation that the requirement for corroboration be abolished in Scots law.

The report is in excess of 400 pages in length and it would be foolish to comment in any great detail or come to a definitive position on the content of the report at this stage.  There is a lot to take in and digest.  However, there are some things that can be said initially about some of the recommendations that have been made in the report.

Arrest and Detention

It is certainly a good idea to move away from the idea of detention an arrest being separate.  Providing a constable with a general power of arrest where reasonable suspicion exists is probably the way forward in terms of Scots law.  The move to reduce the maximum period of detention from 24 hours to 12 hours is also welcome.  There was no real evidence at the time the Scottish Parliament passed the emergency legislation last year following the Cadder case to increase the maximum period of detention to 24 hours.  The recommendation to require a custody review to take place at six hours is also welcome.  The evidence coming from the police is that in most cases post-Cadder detention has been less than six hours anyway.

The recommendation to allow the police to liberate a person from custody either pending further investigation or while waiting to go before the court after charge or report is something that also appears to be a sensible recommendation.  The recommendation that the maximum a person can be conditionally liberated from police custody pending investigation to 28 days appears to be immensely sensible.  Looking south of the border to England the lack of a maximum period to which a person can be bailed pending further enquiries is resulting in some people (albeit a very small number) being on police bail for many months, even as many as 12 months.  That represents a significant burden upon a person who may not have committed the crime being investigated and is, as far as the law is concerned, an innocent person.

The recommendation that periods of detention broken by periods of conditional liberation by the police should not exceed the twelve hour maximum does appear to be a sensible recommendation initially.  This would certainly prevent any abuse of detention by the police and ensure that they are only detaining a suspect when it is absolutely necessary and they have a purpose for doing so.  It does seem rather odd that currently a person is kept in custody while investigations are ongoing in what are relatively minor offences.

A route of appeal to a Sheriff against any of the conditions imposed by the police on a person whom they are liberating is an important safeguard to ensure that a suspect who may not have committed any crime, and is innocent in law, is not overburdened by restrictions upon their liberty.

Investigation

The recommendations made in the report that relate to waiver, vulnerable adults and children appear, initially, as sensible.  A statutory framework for waiver would ensure that a standard procedure is applied across the country would appear to be a sensible proposition.

Evidence

At a first glance the recommendation to abolish the requirement for corroboration appears to be an unsupportable suggestion.  Throughout the day the Law Society of Scotland as well as individual solicitors have come out against such a move citing it as an important safeguard in the Scottish legal system.  The fact that it is an “archaic” rule and that Scotland is in a minority by retaining the rule are not, I submit, strong enough arguments for its abolition.

Appeals

The recommendation to repeal the power granted to the High Court if Justiciary last year to be able to refuse to hear an appeal following a reference by the SCCRC is to be welcomed.  The provision was not properly considered before being enacted during the passing of the emergency legislation last year and fundamentally undermined the role of the SCCRC.

The above are by no means detailed or settled points of view on the content of Lord Carloway’s report.  It will no doubt take several weeks to properly read and digest the content of the report so expect more on this issue in the weeks and months to come.

Cadder, Carloway Review, Criminal Law, Legal System, News, Scots Law

Cadder round 2: Judgment applies beyond the Police

It has been reported that Sheriff Murphy has delivered a judgment at Glasgow Sheriff Court that could potentially through Scottish Criminal Procedure into total chaos again.  Sheriff Murphy has ruled that the protections afforded to suspects being interview by the Police following the case of Cadder v HMA in the UK Supreme Court last year extend beyond the police.  Effectively the judgment covers all agencies interviewing persons where criminal charges might result.

Some examples of agencies that would be included are the UK Border Agency, Customs, the DWP and local authorities.  This could have huge ramifications in everything from those entering the UK through Scotland’s ports and airports illegally to the person claiming housing benefit to which they are not entitled.  Even being interviewed by the TV Licensing authorities for not having a TV licence would be covered.

Last year the Scottish Government introduced emergency legislation to the Scottish Parliament to give suspects being interviewed by the police the right to access following the judgment of the United Kingdom Supreme Court in the case of Cadder v HM Advocate.  In that case the court held that the ability of the police to detain and question a person for up to six hours without the option of consulting a solicitor breached their right to a fair trial guaranteed by the European Convention of Human Rights.  The concerns related to self-incrimination and the Crown using confessions in evidence where the suspect had not been able to seek legal advice.

The decision of the Sheriff today is not a binding upon other Sheriffs.  However, it is likely to have persuasive authority.  Indeed, it would be foolish of the Scottish Government not to further amend the Criminal Procedure (Scotland) Act 1995 to extend the right of access to legal advice beyond those being questioned by the police.  There is no discernable reason as to why, in light of Cadder, the High Court of Justiciary or the UK Supreme Court would decide any differently.

This right is one that has existed in England and Wales since 1985 and covers other agencies such as the UK Border Agency and Customs.

The decision of the Sheriff could potentially harm thousands of prosecutions for offences such as benefit fraud being brought in Scotland by the COPFS.  It is hoped that the Government’s response will not be as rushed or as flawed as it was last October.

The Scottish Information Commissioner should be issuing a decision in the near future regarding the provision of documents and material used by the Government during the decision making process that resulted in the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.

Lord Carloway is currently conducting a review of criminal procedure and evidence in Scotland following the judgment from the UK Supreme Court last year.  More information on the Carloway Review can be found at http://www.carlowayreview.org

A copy of the Sheriff’s Judgment and the Commissioners Decision Notice will be linked to from this site when they are made available.

Cadder, News, Scots Law

Police Station Duty Scheme in Cahos

Following the decision of the UK Supreme Court in the case of Cadder v HM Advocate which held that the process in Scotland of detaining people for up to 6 hours in police custody without giving them access to a Solicitor was in contravention of Article 6 of the European Convention of Human Rights the law was changed to provide those held in custody with a right to consult a solicitor if they wish.  The rushed manner in which the Scottish Government responded to the judgment of the Supreme Court has resulted in a significant number of problems, concerns and questions which were simply not dealt with in the legislation passed.

Over recent months problems have arisen in the provision of Solicitors to those detained in police custody.  The Scottish Legal Aid Board (SLAB) is responsible for providing legal aid funding in Scotland for Civil and Criminal matters.  The legal profession in Scotland has overwhelmingly refused to join the duty scheme brought into place by SLAB to provide sufficient coverage to ensure suspects can have access to a Solcitor.  This has come amidst accusations that the SLAB system is “unfair” and “unreasonable”.  Figures suggest that as many as 90% of the private criminal bar have refused to enter into the scheme.  It has also been alleged that th eonly incentive to join the scheme is the threat that if not part of the scheme Solicitors would be unable to provide state funded legal advice at a police station for their client.

If a scheme is not in place that ensures that solicitors are readily availble to provide advice to suspects who request it then there could be a situation whereby Scotland is still failing to comply with its obligations under the ECHR.  It is time that the Government got involved in the resolving of this row to ensure that anyone in custody who wants access to a solicitor can access one whether they can afford to pay for one or not.

Other problems that have been highlighted with the emergency legislation relate to the way in which the system works for children and vulnerable adults as well as if, when and how suspects can waive their right to having a solicitor.  Some enormous issues that were not addressed as Parliament rushed the legislation through in one day in October 2010.

The Cadder debacle is likely to rumble on for months to come as the police station duty row continues and while we await the publication of Lord Carloway’s review into criminal procedure and evidence in Scotland.

The Information Commissioner is still considering an application for a decision over a Freedom of Information request sent to the Scottish Government looking at how the Government handled the drafting and passing of the emergency legislation last year.  It has been just over two months since that application was made and hopefully a decision will be reached in the near future.

Cadder, Freedom of Information

Freedom of Information: The Scottish Government

If you are a regular reader of this blog, or indeed follow me on Twitter, you will know that for the last four months I have been seeking information from various public authorities in relation to Cadder v HM Advocate by using the Freedom of Information Acts that are in operation in the UK.

One public authority that I have made a request to information was the Scottish Government.  Under section 10(1) of the Freedom of Information (Scotland) Act 2002 a public authority has a maximum of 20 working days in which to comply with the request.  There are some exceptions to this, such as if the public authority seeks clarification from the applicant or where the public authority is the Keeper of the Records of Scotland.  My request to the Scottish Government was made on 4 February 2011.  The 20th working day came and I was advised that due to staff illness the Government’s response would be slightly delayed.  While in terms of the law the Government has no grounds to delay a response due to staff illness it is something that is out with the hands of the Government so I was patient and waited.  Almost 2 weeks after the original deadline the Government were still unable to provide me with a response.  I got the distinct impression from communications I had had with the Government that this illness only began on or close to the 20th working day.  Certainly, staff illness should not delay the response that long as a decision must already have been taken as to what information they held and what could be released and all that should have remained was for the decision to be communicated to me.

On Thursday 17 March 2011 I wrote the Scottish Government requesting that they reviewed their failure to respond within the statutory 20 working day period and advising them that I considered this not only to be a failure to comply, but a refusal of the request.  Under section 21(1) of the Freedom of Information (Scotland) Act 2002 the Scottish Government had a further 20 working days to respond to this request for a review, yet again they failed to respond within the 20 working days.  On the 21st working day I received an E-mail from them advising me that they were as yet unable to provide a substantive response and would revert to me as soon as they could.  They did not provide a reason as to why the response to the review was delayed or why they had still failed to respond to the request made.  By this stage 51 working days had passed since the initial request.

Under section 47(1) of the Freedom of Information (Scotland) Act 2002 if an applicant remains dissatisfied with the way in which a public authority has handled their request after a review has been carried out or where a Scottish public authority to which a requirement for review was made failed to respond the applicant can apply to the Scottish Information Commissioner for a decision.

On Saturday 16 April 2011 I sent a letter, with copies of all communications between the Scottish Government and I, to the Scottish Information Commissioner seeking a decision from the Commissioner under section 47(1) of the Freedom of Information (Scotland) Act 2002.

I wouldn’t like to publicly speculate exactly why the Scottish Government has not responded to my request for information made under the Freedom of Information (Scotland) Act 2002, although I do have some ideas as to why they haven’t.  It’s not the first time the  Government has been in contravention of the Act.  It was recently reported that they took 9 months to respond to one request.  A quick check through the decisions made by the Scottish Information Commissioner identifies a number of applications made under section 47(1) of the Freedom of Information (Scotland) Act 2002 which are either wholly or partially due to the Scottish Government’s failure to comply with sections 10(1) and 21(1) of the Act.

I will leave it to you, my readers, to draw your own conclusions as to what all of the above means.  However, I will continue to press the Government for a response to the matter as I will continue to do with all of my requests for information made under one of the Freedom of Information Acts.

Cadder, Carloway Review, Criminal Justice, Legal System, Scots Law

Carloway Review: Initial thoughts

Yesterday Lord Carloway published a consultation document as part of the review being conducted into Scottish criminal procedure and evidence following the decision in Cadder v HM Advocate.   It is clear from the decision in Cadder that at least one element of criminal procedure in Scotland had fallen below the standard required to meet our international treaty obligations and it was a sensible decision by the Cabinet Secretary to instigate some form of review to ensure that the system complies with Convention rights.  It is essential that another Cadder situation is avoided.

The review by Lord Carloway is an important step for Scots Law and it gives us an opportunity to ensure that the criminal justice system in Scotland remains world-class.  It’s certainly my view that the Scottish Parliament should invest some time looking at Criminal Justice in Scotland over the next session encompassing the Carloway Review as well as matters such as sentencing.

It is my intention to answer the questions posed by Lord Carloway on this blog, but before I do that I wish to give some consideration to my own views.  However, as I was skimming through the consultation document yesterday I couldn’t help feel that the questions were suggestive of Scots Law adopting the provisions to be found within the Police and Criminal Evidence Act 1984 (PACE).  This would be a bad idea and is something that should be avoided.

The history of the Scottish Criminal Justice system is quite different from that of England and Wales and the way in which it has developed has been independent of England and Wales leading to different influences.  The fact that the system operates differently is not a bad thing given the distinct independent nature of Scots Law.  Any attempt to simply import PACE into the Scottish system should be avoided.  It may well be the simplest solution, but may not necessarily be the best for Scots Law.

There is, of course, nothing wrong with looking south of the border and studying how they do things down there.  We may very well be able to learn some lessons from our colleagues south of the border, as indeed they have from us in other areas of jurisprudence.  However, we should not solely focus our attention on the system operated in England and Wales.  There are many other jurisdictions out there and we should also be looking at them all when considering how we might improve our system.  It may be that we borrow ideas from PACE as well as other jurisdictions around the world to help produce a world class system that enables the police to do their job while protecting the fundamental rights of those who they police.

We shouldn’t be afraid of the distinct identity of Scots Law; indeed it is something we should celebrate.  We have often led the way for our colleagues south of the border and this is something we should not forget.  I recently had the privilege of hearing Lord Hope speaking at the inaugural SYLA annual lecture on this very subject and His Lordship provided some interesting examples of where Scots Law has lead the way.  His Lordship’s speech is available on the Supreme Court website and is worth a read.

My initial thoughts on the Consultation document are that the questions posed by Lord Carloway are valid and important ones, but we must avoid simply adopting PACE as the easy option.  Let us find the Scottish solution and ensure that we keep the distinct identity of the Scottish system.

More information about the review can be found on the Carloway Review website.

Cadder

The new direction of Cadder

Those of you who follow me on Twitter and read my blog regulalry will know of the work I have been doing in relation to Cadder.  This has not been a persoal crusade, but rather one to for the benefit of the public as there is a significant public interest in certain key elements of this case.

I have, for the last couple of months, being trying to extract information from the Police in relation to the implimentation of the Cadder legislation over the first three months it was in operation.  This has not proved easy and has largly come down to the way in which IT systems used by the Police in Scotland operate (I certainly know more about their operation than I’d ever care to).  It has become clear that it is simply not going to be possible to obtain the information I was looking for in terms of the Cadder implimentation.  Thereore, I am withdrawing all requests for reviews and appeals to the Scottish Information Commissioner in relation to these Freedom of Information Requests (except where agreement has already been reached with the force in quesion and I am simply awaiting the information).  Information was centrally collected until the middle of Decemebr by the Association of Chief Police Officers in Scotland (ACPOS) and this should be getting published this month.  The period data was collected by ACPOS is not going to be significant enough to draw any real conclusions from, so I intend to make further requests to the police later in the year once they have upgraded their systems to take account of the changes to criminal procedure in Scotland resulting from Cadder.

However, a significant aspect is the way in which the Scottish Executive (as the Scotland Act 1998 refers to them) handled the Cadder case in the months between the evidence being heard and the Judgment being issued as well as the actual emergency legislation itself.  This aspect of my Cadder work will continue and I will continue to seek the release of information from the Scottish Executive in relation to this.  A request for an internal review into their failure to respond within 20 working days has been sent to them (which they ahve yet to acknowledge).  This internal review was requested after careful consideration and advice from the lovely people at the Scottish Information Commissioner’s Office.

It does not seem productive for me, the police or the Scottish Information Commissioner to continue exploring an avenue that cannot be explored due to the limitations of information technology and that is my sole reason for suspending the exploration of this aspect of Cadder.

I hope this explains the current position clearly and that those of you who have been following the Cadder tweets and blog posts will get an understanding of where this is going and why this decision was taken.