Category: Corroboration

Criminal Justice (Scotland) Bill: Stage One Debate

Yesterday the Scottish Parliament had its Stage One debate on the Criminal Justice (Scotland) Bill, and the quality of the contributions from certain members was depressingly poor; some contributions are worthy of note because they were of a standard which should be seen from all members: John Finnie (IND) and Patrick Harvie (Greens) to name two.

Like many, I am of the view that corroboration does represent an important safeguard against wrongful conviction; however, I am not so wedded to the idea that I cannot see life without it. I do have a number of concerns though.

Firstly, there has been a lot of talk about cases not getting to court because of corroboration and how that limits access to justice for Complainers. There are two important factors to consider here: (1) it also limits access to justice for suspects. Even an arrest/detention (especially for something like rape) can be enough to permit a ‘bad smell’ to hang around the accused. (2) There will always be cases that do not proceed to trial because of a lack of sufficiency in the evidence. Removing the requirement for corroboration will not suddenly mean that every single case will proceed. Trials, especially High Court trials, are expensive and while justice ought not to be about money, it would be naïve to think that money doesn’t play a part – on a financial basis alone it would be impossible to have every case prosecuted.

What about this brave new world post-corroboration in Scotland? A lot has been mentioned in the debate about complainers in sexual offences and domestic violence cases; corroboration does provide assistance to these Complainers (although this point is almost never mentioned). It ensures it is never the case of the Complainer’s word against that of the accused. Where things get tricky in terms of rape complaints is around consent. There has to, as the law stands today, be corroboration of a lack of consent. Where does that come from? Lots of places: changes in behaviour by the complainer or third party evidence of the Complainer’s distress for example. In such cases where evidence of distress is not available it would place even more stress upon the Complainer as it will be down to no more than who the jury believes more: the complainer or the accused.

Now, so far I’ve yet to deal with why I am actually against section 57. My main opposition to it passing in this Bill is the outstanding Bonomy Review. The purpose of this is to work out the additional changes that will need to be made to the law of Scotland following the removal of the requirement for Corroboration. Let’s be clear this isn’t a minor technical change to the law of Scotland; it is absolutely fundamental. As such it is only right and proper that the Scottish Parliament knows what it is changing the law of Scotland to before they vote on such a fundamental proposal. Also, the very existence of the Bonomy review shows that the Parliament are voting on a partially thought-out proposal. The setting up of a review to fix problems with legislative provisions, before they’ve even been voted on for the first time by the Scottish Parliament, should cause alarm bells to ring in the minds of every single Member of the Scottish Parliament.

Image credit: Scottish Parliament website licensed under the Open Scottish Parliament Licence v1.0

During the debate yesterday Sandra White MSP made the preposterous suggestion that not abolishing the requirement for corroboration in this Bill was kicking the matter into the long grass. She was concerned that there would be insufficient time to deal with the matter before the next election, due in May 2016. The Bonomy review is due to report early next year, giving the Government and Parliament up to 15 months to draft a Bill and pass it; hardly a shortage of time! Furthermore, the Cabinet Secretary has said he won’t be enacting section 57 until such times as additional safeguards are introduced. The reality is; it’s probably going to be at last a further 18 months before this section is actually enacted. Whether it is passed now, or in 2015 will make little difference, it’s unlikely to be fully enacted before late 2015 or early 2016 anyway. Therefore, there is no good reason as to why Parliament cannot consider the full package (i.e. abolition and the full package of safeguards together). Indeed, passing legislative provisions which Parliament knows are incomplete and not fully thought through is not what MSPs are paid for. This is not how a serious Parliament in a mature democracy ought to function.

What has struck me most about this debate is the way in which highly emotive cases have been used as the justification, and this has polarised the debate. This has lead to deplorable suggestions by some, such as Christina McKelvie MSP, that those opposing the move to abolish the requirement for corroboration were against victims of rape and domestic violence. Her exact wording was:

There is a significant number of victims of sexual violence and domestic abuse whose cases do not go to court. In the past two years, that has affected 2,800 cases of domestic abuse and 170 rape cases. The Tories, the Liberals and—astonishingly—the Labour Party might be happy with that, but I will not have that on my conscience.

Such suggestions are utterly unacceptable in Parliament by MSPs; in making that statement Ms McKelvie demeaned herself and demeaned Parliament. Quite simply it was shameful and completely indefensible behaviour. She is not alone, some vocal people connected with various womens’ charities have been similar suggestions.

MacAskillKenny — Image credit: Scottish Parliament website licensed under the Open Scottish Parliament Licence v1.0

Finally, I turn to Mr MacAskill’s equally shameful closing statement in which he painted the opposition to section 57 as a ‘Better Together’ pact against the SNP. This ignores that Christine Grahame abstained on both votes, and that Patrick Harvey and John Finnie (both ardent supporters of ‘Yes Scotland’ and the later a former SNP member) both voted for the amendment proposed by Margaret Mitchell after also speaking against the Cabinet Secretary’s position in the debate. The Cabinet Secretary’s suggestion that everyone not with him is against Victims of crime was another outrageous slur; indeed I heard not one speech in the debate that could have been characterised as being against victims. Everyone speaking in favour of Margaret Mitchells amendment was essentially saying this: we need to ensure that we retain an acceptable balance in the justice system that ensures safe convictions. That brings us to the nub of the issue: we must ensure that when people are convicted of crimes, especially ones that will inevitably result in lengthy custodial sentences, that those convictions are safe. It is not good for a victim to see someone convicted of an offence against them just for the Appeal Court to come along and quash that conviction.

We have to ensure that balance remains in the system, and the Cabinet Secretary’s position does not allow for that. It is not acceptable for Parliament to vote on such fundamental matters when they are incomplete with only a promise that sufficient safeguards will be introduced (by way of Secondary legislation which bypasses the full and rigorous scrutiny of Parliament) in due course. The Cabinet Secretary’s position is untenable on this issue, and he must remove section 57 from the Bill re-introducing it in Primary legislation alongside whatever other reforms Lord Bonomy proposes.

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.

Abolition of Corroboration: where is the case?

Last night Cabinet Secretary for Justice Kenney MacAskill MSP was on Scotland Tonight defending his plan to abolish Corroboration. His arguments, as ever, simply do not stack up to scruity.

Right at the outset of his interview he said:

“We’re not going to have people convicted on one single evidence from one single witness. That’s been made quite clear by the Lord Advocate; there will always require to be additional evidence. That’s been made clear it’s not just a quantitative, but a qualitative test so the evidence of one person on its own will not be sufficient; there will require to be additional evidence to be led”.

This all sounds very good, the lawyers are screaming about innocent people being convicted on the evidence of one individual but the Cabinet Secretary has said they’re wrong. Well, it’s the Cabinet Secretary that is wrong. Under the Law of Scotland as it stands today, the essential facts of the case (those are that a crime was committed and that it was committed by the accused) need to be proved by corroborated evidence. That is each piece of evidence that goes towards establishing those two key things must be supported by another source of evidence independent to it. For example, that could be the evidence of an eye witness together with DNA evidence. What the Cabinet Secretary said last night is that the Lord Advocate, the person responsible for the prosecution of all crime in Scotland, will continue to require evidence from an additional source. However, that will be nothing more than guidance to prosecutors with no legal standing at all; it could not be founded upon in the Appeal Court as part of an appeal against conviction to show that there was insufficient evidence to allow a conviction; there would be no legal requirement for corroboration following its abolition. If the Crown were to decide to progress a case without corroborating evidence, they would be entitled to do so. Furthermore, the guidance of the Lord Advocate would be subject to change at the whim of the Lord Advocate without any consideration or scrutiny by anyone. The Cabinet Secretary’s assurances are meaningless and the Lord Advocate’s requirements are meaningless in law as well.

The Cabinet Secretary went on to discuss the safeguards that his Bill contains to address the loss of Corroboration as a safeguard. The only safeguard mentioned was the increase of the jury majority required for a conviction from 8 to 10. Is this really an adequate safeguard? The requirement for corroboration applies in all cases: summary and solemn cases. Juries are only present in Solemn cases and those cases represent a significant minority of cases which are progressed by the Procurator Fiscal in Scotland. How does increasing the jury majority safeguard those who are prosecuted before a Justice of the Peace, a stipendiary magistrate or a Sheriff on his own? It doesn’t. Therefore, it’s not an adequate alternative to the requirement for Corroboration.

Furthermore, on the question of jury majorities, the Scotland Tonight presenter compared the size of the Scottish majority to that required in England where ordinarily a unanimous verdict is required, but can be reduced upon the discretion of the judge to a 10-2 majority (i.e 83.33% of the jury require to be convinced beyond reasonable doubt of a person’s guilt before conviction). Under the Scottish Government’s proposals, only 66.66% of the jury would require to be convinced of the accused’s guilt before a conviction.

The Cabinet Secretary made much of the requirement of corroboration being archaic and pointed to advanced in evidence such as DNA as forms of evidence that make corroboration redundant. I will look specifically at DNA evidence; I feel that too much emphasis is placed on DNA evidence in our modern justice system. A lot of DNA evidence is not conclusive. A cigarette but at the scene of a murder with the DNA of the accused on it is not conclusive that the accused was even at the scene of the murder, let alone was there when the murder took place. The cigarette but could have arrived there by other, innocuous means (that is not necessarily placed there deliberately as part of a “fit up”). If the scene of the crime was at the bottom of a hill the cigarette but could have been discarded at the top of the hill some hours before the murder and arrived at the scene of murder through the effect of gravity. An item of clothing left at the scene of a Housebreaking accidently by the offender containing the DNA of the accused might not be conclusive either. Consider the situation where two people have similar, or identical, pieces of clothing. The innocent accused picks up the offenders by accident when they were earlier in the same public place while the offender picks up the innocent accused’s and subsequently leaves the item of clothing at the scene of the crime. Again, not part of a “fit-up” and an entirely plausible situation that could occur. In almost all cases; DNA evidence will require corroboration to give it the effect that it needs to have to secure conviction.

If we do away with the requirement for corroboration, it will be up to the jury to make an almost impossible determination as to how the DNA evidence arrived at the scene of the crime. Programmes such as CSI have skewed society’s view of DNA evidence and resulted in it being considered the “golden bullet” it so often is not (“he must have done it; his DNA was there”). It is entirely possible that innocent people will be convicted as a consequence of uncorroborated DNA evidence.

The Rational of the requirement for Corroboration that stands today was set out by Barron David Hume, one of Scotland’s “institutional writes” in the following way:

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.

The words of Barron Hume are as true today as they were when he wrote them in the early 19th Century. It cannot be the genuine desire of the Scottish public to see innocent people convicted for crimes that they did not commit simply because one convincing witness said in court that the accused was guilty of the crime.

The fact is that Corroboration does not hinder prosecutions; it helps prosecutions (and this is a view shared by many within the prosecution service). If the statement of a witness is supported independently by other evidence it strengthens the testimony of the witness; a witness who might otherwise come across as unbelievable is instantly strengthened by the existence of corroborative evidence.

The Scottish Government has not, in my view, made out the case for such a substantial change to the Criminal law of Scotland. If we are going to make such a fundamental change it would be useful to do so following a thorough consideration of the issues, perhaps by the Scottish Law Commission. Lord Carloway’s review was brief and followed what the Scottish Government describe as an “Emergency situation”. There is something quite ironic about the Government proposing to change the law of Evidence with little or no relevant evidence.

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.

Response from Scottish Government

Earlier this month I wrote a letter to Kenny MacAskill primarily on Corroboration in Scots law. That letter was an open letter and can be read here. Today, I received a response from the Scottish Government and in the name of openness and transparency here is the response:

Dear Mr Sloan

Thank you for your email of 1 November to the Cabinet Secretary for Justice. I have been asked to reply.

The Scottish Ministers are aware of the concerns that have been raised by members of the legal profession regarding the potential removal of the requirement for corroboration. An analysis is currently being undertaken of all responses received. The Cabinet Secretary for Justice believes that it is important to consider all views expressed as part of this consultation process. This not only includes the views of the judiciary and legal professionals but also academics, individuals and the views of the Third Sector including those who support the victims of crimes.

Changing something so synonymous with Scots law has, quite rightly, led to a considerable debate on this topic. This debate has ranged from whether the rule should be abolished to identifying possible safeguards that may need to be considered if it is removed The Cabinet Secretary has made clear that he is fully committed to listening and reflecting upon these responses and considering how the reforms recommended by Lord Carloway can best be achieved.

The responses received are currently being analysed and we hope to be in a position to issue a report on the consultation exercise before the end of 2012.

Your comments with regard the role of the Lord Advocate have been noted.

Your sincerely

PATRICK DOWN

Letter to Kenny MacAskill MSP

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

Judges unite in support for retaining corroboration

Yesterday the Senators of the College of Justice, excluding Lord Carloway, published their response to the Government’s consultation paper arising out of Lord Carloway’s report into reforming Scottish criminal law and practice.

Lord Carloway was asked by Justice Secretary Kenny McAskill MSP to investigate and report the ways in which Scottish criminal procedure could be reformed. This followed the UK Supreme Court’s controversial decision in the case of Cadder V HM Advocate. That case, as I’m sure readers will know, held that the Scottish practice of detaining suspects without access to a lawyer breached their article 6(1) right to a fair trial. As a result emergency legislation was introduced to the Scottish Parliament which provided for the right of suspects to receive advice and representation from a solicitor while in police custody. Lord Carloway’s report considered some of the issues that had arisen as a result of that legislation; issues which had not been properly considered because of the speed at which the Government pushed the amendment through Parliament.

The most controversial aspect of Lord Carloway’s report was his recommendation that the ancient requirement for corroboration be abolished. Since the publication of the Carloway Review; the Justice Secretary has made his position clear on the matter (that he supports Lord Carloway’s recommendation) and both the Lord Advocate and Solicitor General have gone into a political drive in support of its abolition.

Much concern about the proposal of Lord Carloway has been noted since the publication of his report. Many in the legal profession have come out in support of keeping corroboration and referring to it as an essential safeguard. Some have suggested the desire of the Government and the Crown to abolish corroboration is about trying to making it easier for the Crown to obtain a conviction. Others have suggested that the abolition of corroboration wouldn’t be a bad thing, but that other changes would be necessary to ensure that the right of the accused to a fair trial was not placed in jeapordy.

For what it is worth I am of the opinion that corroboration is absolutely essential to the criminal law in Scotland and that any attempt to abolish it would likely have severe consequences for the accused. I am also of the opinion that the move to abolish corroboration may, in part, be supported by the government with a view to increasing the number of convictions the Crown can obtain. That, in my view, would (if indeed it is part of the motivation) make it a very bad idea because it distorts justice (see this earlier post from me on Justice published on this blog).

The consultation response from the Senators of the College of Justice provides a glimmer of hope for the continued existence of corroboration in Scotland. All of Lord Carloway’s colleagues have united in support for corroboration leaving him on his own among the senior judiciary in Scotland. The weight and authority of the Senators should also cause the Justice Secretary to reconsider his position on the future of corroboration. When almost all of Scotland’s senior judiciary (who are responsible for upholding the law) you certainly be foolish to ignore them.

In the judge’s response to the consultation they state:

In our view, it is often difficult to assess the true facts on the basis only of the evidence of one witness. A witness may be credible and plausible, yet not be telling the truth (or the whole truth). The Scottish courts have on many occasions been grateful for the requirement of corroboration, which in our view provides a major safeguard against miscarriages of justice.

There is little to say about this submission from the judges. It will always be the case that a case will be stronger the more there is to verify the evidence. The judges make a good point that simply relying on one witness is not particularly helpful. As they state a witness can appear as though they are a reliable witness, but the truth of the matter is that their version of events are not an accurate reflection of what happened. They state that corroboration acts as a major safeguard against miscarriages of justice. This is something that I would agree with entirely.

We are also concerned that the abolition of corroboration may result in less diligent police investigation pre-trial: knowing that corroboration is not required, there may be a relaxation in the search for supporting evidence (even though such may well exist).

This is an interesting point and is certainly one that is echoed by the few police officers I have spoken to. They state that it wouldn’t necessarily be about being lazy, but it would be a sensible way to use resources (particularly at a time when resources are under pressure). Of course, in the most serious or complex investigations there is unlikely to be much change. The very nature of such investigations is that corroborative evidence would still likely exist. The danger exists in the less complex and serious investigations. While they might be less complex or serious in terms of the gravity; a criminal investigation is sufficiently serious to ensure that a thorough and effective job is done. The effect on the life of a person who is convicted of a criminal offence can be significant: they may lose their job, seeking employment becomes more difficult, there may be financial hardship and the stress of an investigation and trial can cause marital and family problems. We cannot allow a situation to develop where it is more likely that innocent people will suffer the effects of a wrongful conviction. That is, in my view, a much greater injustice than a guilty person escaping conviction.

The judges also raise interesting points on the issue of increasing convictions. Their view is that rather than increasing the number of convictions it might well cause a reduction in the number of convictions obtained by the Crown. They cite a possible reluctance on the part of a jury to convict where it is a situation of one person’s word against the word of another. The senior judiciary have a wealth of experience from which they can draw such conclusions and I wouldn’t want to disagree with them on that point. It does, with a bit of consideration, seem like a conclusion that can be sensibly arrived at.

The judges broadly support Lord Carloway’s other recommendations, which are less controversial and do make sense in light of the line of authority developing as a result of Cadder. Their response can be read here.

Justice

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

Corroboration and rape

I have just watched the Newsnight Scotland piece relating to concerns raised by the Lord Advocate, Elish Angiolini QC, that the current requirement for corroboration in Scots Law in relation to sexual offence cases could be a potential point of challenge under the Human Rights Act. During the course of the piece several matters were raised that cause me great concern. Before I begin on those I wish to explain corroboration for anyone who may not be familiar with it.

In Scotland, the prosecution must prove its case beyond reasonable doubt before a court can convict the accused. That in itself is not a difficult issue and is present in the other UK jurisdictions. In Scots Law, in order for the crown to succeed it must lead sufficient corroborated evidence as to the guilt of the accused in beyond reasonable doubt. Corroboration does not require the crown to produce at least two witnesses; rather it requires the crown to produce evidence from at least two independent sources in order to prove each essential factual element of its case (i.e. the factual elements that relate to the charge(s) against the accused). The sources are wide and many and include oral evidence from a person as to what they witnessed or heard, forensic evidence (fingerprints, blood etc.), CCTV and the list continues.

A simple admission from the accused is not enough to convict them in a Scottish Court. The admission of the accused would be one source of evidence, but it must also be corroborated by another source of evidence. It is entirely irrelevant how many times the accused makes their confession or how many different people that confession is made to as the evidence still originates from one source (the accused). There is, however, an exception to this and that is where the accused’s confession contains details that only the perpetrator of the offence would know. The police tend to be a lot less forthcoming with information about a crime in Scotland than their colleagues south of the border as the more information that exists in the public domain the harder it becomes to corroborate a confession. Even the worst defence agent in the country would be able to destroy a prosecution that relied solely on a confession containing only details available to the public!

The requirement of corroboration provides an important safeguard in Scottish criminal prosecutions. It significantly reduces the chances of an innocent person being wrongly convicted.

Now I do not propose to spend huge amounts of time considering the wider issue of corroboration that will probably come in a future post. I will say however that in my view the requirement of corroboration in Scots Law is something that must be kept if we are going to retain a criminal justice system where we can have confidence that those convicted are guilty (of course mistakes do still happen, no system is perfect).

This post is looking at a complex and emotive subject: Rape. The whole thrust of the Newsnight item was to do with the low conviction rate in cases of rape and in particular the barrier that the requirement of corroboration puts up in relation to those cases.

The constant push to increase the number of rape convictions does not sit particularly well with me. I admire much of the work that Rape Crisis do, but I do find myself getting more than a little annoyed with them over their constant desire to see more people convicted of rape. I am sure we are all in agreement that rape is an utterly abhorrent offence and those who commit such an offence should be punished for it. However, I am concerned that many campaigners (and even those in a position of power) are advancing the idea that more convictions are obtained for rape at any cost: even the reputation and life of an innocent person accused of rape.

I have previously argued on this blog that those accused of rape should be kept anonymous until such times as they are convicted. I have formed such an opinion based on the damage that is done to a person’s life who is wrongly accused of rape. Partly, I suggest, this is down to the mantra that is pushed by the likes of Rape Crisis that too many rapists are getting off. Even once acquitted there is a certain stigma that remains, a “no smoke without fire” idea clouds the judgement of people and those people’s opinions of the accused. It is for these reasons that I am cautious about how we go about increasing the number of rape convictions. The conviction of an innocent person for any crime is deplorable, but when the crime is of such a serious nature and the effect of such a conviction (even after acquittal on appeal) can completely ruin the life of the individual concerned we must be ever more careful.

Like most people in society I would like to see those guilty of rape be convicted and punished for their deed. The impact their crime has upon their victim is enormous and can significantly impede their life. The emotional and psychological problems that can come after being subjected to such an abhorrent and degrading act warrant the severe punishment that exists for rape within our legal system. However, I would not wish to see this at the expense of innocent people.

The idea that the protection of corroboration should be removed from rape cases is not something I would wish to see, it may well increase the number of convictions for rape; however, I would be concerned that the increase of convictions included a significant number of people who are innocent. The increase in the number of convictions may please the Lord Advocate, Rape Crisis and others but may have a significant detrimental impact on the overall confidence of the criminal justice system.

Rape (and indeed most other sexual offences) is notoriously difficult to prosecute as the evidence can be very ambiguous. Forensic evidence alone cannot prove rape and indeed the complainer’s and the accused’s version of events may equally explain and be supported by the forensic evidence. A significant amount of corroboration is needed in order to secure a conviction for rape. However, the central issue (as I see it) with the difficulty in obtaining a conviction for rape cannot be solved by getting rid of the need for corroboration, as it then simply comes down to who the jury believe more: the accused or the complainer. That is not, by any means, an objective test and Scots Law requires an objective test to be satisfied for a conviction. Corroboration may actually serve to help establish which version of the same facts presented in court is the truth. Issues around ambiguity can be resolved by leading evidence that corroborates what one side is saying over the other.

One final matter I wish to raise in this post is what Paul McBride QC had to say on the matter in the Newsnight Scotland studio. The number of convictions can be somewhat misleading. His examples included a person convicted of 20 rapes over a number of years would only be recorded as one conviction (despite there being 20 separate charges to the indictment) and that a person convicted of rape and murder would have their conviction recorded as a murder conviction (presumably because Murder is the more serious charge on the indictment). When debating the issue of the low numbers of rape convictions, and I believe we should as it is a matter of public interest, there must be an effort made to get accurate statistics as to just how many rape complaints result in a person being convicted rather than just the number of indictments (which can contain several similar charges or a huge number of different charges) which result in a conviction.