Category: Criminal Justice

Criminal Legal Aid Contributions, Professional Representation and Justice in Scotland

Yesterday evening the Scottish Parliament voted by a majority of 9 to pass into law the Scottish Civil Justice Council and Criminal Legal Assistance Bill into law.  The Bill will now be submitted to the Queen for Royal Assent.  It was a disappointing end to a hard fought campaign by a wide range of people to try and prevent Part 2 of that Bill being passed.  However, it was always going to be an impossible task with the Government having a majority in Parliament.

The first part of the Bill; the establishment of the Scottish Civil Justice Council, was generally uncontroversial and was the result of a lengthy piece of work submitted to the highest levels of scrutiny.  The Scottish Civil Justice Council came as a consequence to the review of civil justice in Scotland carried out by the now Lord President, Lord Gill.  It is a shame that this element of the Bill was overshadowed by the second part of the Bill.  Had the two been separate it is likely that the Scottish Civil Justice Council part would have received unanimous support in the Scottish Parliament.

The significant expansion of contributions to criminal legal aid as a result of this legislation will have a profound impact on justice in Scotland.  I’m not going to write at great length on the merits of the Bill as I have done that in a number of posts (and others have written elsewhere much more eloquently than I have).  The proposals will undoubtedly lead to a number of appeals under Article 6 of the European Convention on Human Rights (the right to a fair trial).  The Government and Presiding Office (presumably with legal advice) are both happy that the contents of the Bill are compliant with the European Convention on Human Rights; however, there is the very real possibility that the contributions system will begin to give rise to “devolution minutes” once it begins to take hold in the system.  That will certainly be something to keep an eye out on to see what happens in that respect.

It is clear from speaking to practitioners in person and through social media that there is a very real anger over yesterday’s result.  It is just one of many things to have arisen over the last few years that have caused anger.  Some of that anger is directed towards the Law Society of Scotland; particularly in their representation of the profession in these matters.

It has been reported that there was to be a challenge lodged to the Society’s position as the sole representative body of Solicitors in Scotland which will be founded upon Article 11 of the European Convention on Human Rights.  I am not a solicitor and I have not had many dealings with the Law Society of Scotland.  I only know what others have told me (and I’m not inclined to make my own decision purely upon the basis of third party complaints).  However, it has always been something that has intrigued me about the legal profession.  I’m a supporter of Trade Unions and the representative functions that they undertake.  However, I’m equally supportive of a person’s right to choose their representative body (and to elect not to belong to such a body).  That goes not just for lawyers, but for others who have a single statutory representative body with no choice as to who they have representing them.

I think it is only right that if people want a different representative body that this is a choice that they have.  It will be interesting to see if this case goes ahead and what the outcome of it might be; it could have a profound effect on the United Kingdom extending beyond the legal profession.

The fight to ensure justice in Scotland will no doubt continue as the programme for reform of the criminal justice system continues over the coming years.  There are proposals in the pipeline that will likely gain similar; if not greater, reactions from the legal profession (corroboration and contracting to name two).  It’s an unsettling time in the criminal law for Scotland; but it’s an equally interesting one.

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.

Why #ProtestForJustice really does matter

So much excellent writing has been produced on the ‘Protest for Justice’ movement that has taken hold of Scotland’s legal profession.  The movement is in response to the Scottish Government’s plans regarding criminal legal aid.

The concern from the legal profession is that the proposed changes to legal aid will harm access to justice for the poorest and most vulnerable in our society.  They are the people who are working and contributing to society, but are low earners who are living on the breadline.  They can ill afford the costs of living let alone significant contributions towards legal aid should they find themselves in the unfortunate position of requiring the services of a defence lawyer.

I have written before on just why criminal legal aid matters to everyone in society and not just those that people consider to be ‘criminals’.  It provides a few examples of how everyday situations can result in an otherwise law abiding person requiring the services of a criminal defence solicitor.  There are many more such situations where something a person does every single day of their life can suddenly result in finding themselves in a living nightmare facing, sometimes very serious, criminal charges.

Most of us knew that when the decision to strike was taken that there would be little support from the general public in Scotland.  Criminal lawyers are not particularly well liked by many in society.  They are seen to be earning salaries which often only partners in the bigger commercial firms have the potential to earn and while earning these salaries they are engaging in activities which society appears to find morally repugnant.

I’m not a criminal defence lawyer, but those who know me will know that criminal defence is the area that I want to practice in when I complete my studies in 2014.  When people ask me what type of law I wish to practice I get the same questions that those already practicing in the field get.  These questions are flawed in the presuppositions they make and are based on an understanding of the criminal justice system that is ill-informed and could even be described, on occasions, as prejudiced.

The role of a criminal defence lawyer is multifaceted.   However, the central principle is to ensure that the accused receives a fair trial (and that includes the guilty).  There is absolutely no obligation upon any individual to convict themselves.  A guilty person is perfectly entitled to run a trial and put the Crown to proof.  The burden of proving the accused’s guilt rests with the Crown.  It is for the Crown to prove the accused’s guilt and not for the accused to prove their innocence.  The system is built in this way primarily to take account of the power of the State against the power of the accused.

The State has at its disposal a vast array of resources that an accused person does not.  To begin with; the State has a professional investigation team (the police) to gather the evidence supporting the view that the accused is guilty of an offence.  It then as a professional legal team (the Crown Office and Procurator Fiscal Service) to assess the evidence, build the case and present it in court.  The professional legal team can instruct the investigation team to conduct further investigations, to take statements from particular individuals and conduct further (expensive) forensic examinations.

On the other hand the accused has their single defence lawyer (if the case is going to the High Court that lawyer will often be assisted by Counsel in the same way that the State is often assisted by Counsel in the High Court).  They don’t have an investigative team with the resources and experience of the police.  The knowledge and experience gap between the accused and the State is somewhat filled by the defence lawyer.  They will assess the evidence obtained by the Crown and advise the client based on that evidence.  If the defence lawyer can see no possible or realistic defence to the charges brought against the individual then the advice would be to plead guilty.  However; it is only advice and not an instruction.  The accused might not feel as though they are guilty or they might be able to bring something to the evidence at a later date which casts a different light on the Crown’s evidence.  In both circumstances the accused has the right to put the Crown to proof.

Putting the Crown to proof is simply telling the Crown: ‘you think I’m guilty, so prove it’.  There are incentives built into the system to persuade a guilty accused to enter a guilty plea.  For example, pleading guilty at the earliest opportunity can attract up to a one third discount on the sentence given by the Court.  In serious cases a third can be a considerable amount of time off a prison sentence.  You might argue that it’s not fair to reward an accused person for doing “the right thing”; that reducing their sentence is an injustice to the victim of the crime.  One could view it that way; or one could consider that a guilty plea can save the stress of the complainer having to give evidence to prove that they are a victim of a crime.  It also saves expensive court time and frees up the police and prosecution to focus on other crimes that have been committed.

The role of a criminal defence solicitor is essential in ensuring both the integrity and fairness of the criminal justice system.  It is essential that all those who cannot afford to pay for a lawyer can obtain the specialist services that they offer when facing a criminal charge.  If it was you who was in the dock protesting your innocence you would want someone fighting your corner.  Don’t let the Scottish Government remove that from you and others.

Further Reading

Sarah Prentice: Why I won’t desert the ‘sinking ship’ (Sarah Prentice, Scotsman)
Vulnerable left to count the cost of justice (Aamer Anwar, The Scottish Sun)
Courts face widespread disruption as angry lawyers plan first national strike (Gareth Rose, Scotsman)

Why criminal legal aid matters to everyone and not just ‘criminals’

Some people believe that they will never require the service of a criminal lawyer; they obey the law and just go about life.  Every day when we wake up we do not know what the day will bring.  It could pass quite uneventfully, or something terrible could happen which results in being detained by the police and/or charged with a criminal offence.

Some examples might make this a bit clearer:

Example 1

It’s been a long at work and you get into your car to drive home.  You didn’t sleep too well the night before; the baby kept you awake most of the night.  As a result, you’re rather tired by the end of the day.  You’re driving along the road and you momentarily lose your concentration and before you know it you’ve been involved in a collision.  It’s fine; the insurance will sort it out.  However, a passenger in the car you hit dies as a result of the accident.  Suddenly, you find yourself in the middle of a police investigation.  You’re later detained by the police and suddenly find yourself needing the services of a criminal defence lawyer.  You get one and they steer you through the interview, but the decision is to charge you with causing death by careless driving.  It’s serious; you’re facing a prison sentence.  You‘re going to plead guilty, but you want the shortest sentence possible so you instruct a defence lawyer to represent you.  You’re not particularly well off, but suddenly you’re facing a three figure bill as a “contribution” towards your legal aid costs.  You’ve always tried to live a good life; you don’t steal things and such like.  However, you’re in the middle of the criminal justice system facing a prison sentence of up to 14 years.

Example 2

A lot of people like to go out and have a good time; often drinking far too much and becoming intoxicated with alcohol.  Someone rubs you up the wrong way and you give him a bit of a punch and they fall over hitting his head off a nearby table.  Unknown to you at the time you punched them the victim has a weak skull and dies as a result of your actions.  Thinking everything would be ok, but without checking, you walked away; you didn’t summon any help.  A few days later there is a knock at the door and a couple of police officers are on your doorstep.  They inform you of what had happened and detain you on suspicion of murder.  A little extreme you might say, but entirely possible.  You’re suddenly, out of a drunken shove, facing the most serious charge in our criminal law and the possibility of serving a life sentence.  Suddenly, you need the services of a criminal defence lawyer.   In the end you get charged with Culpable Homicide, but that’s still a serious offence potentially carrying some serious time in prison (up to and including life imprisonment).  You’re now also facing a significant contribution towards your legal aid.

Example 3

A third and final example of how easily it is from your life to turn into a living nightmare where you, an otherwise innocent individual, find yourself caught up in the criminal justice system as the accused.  Some new neighbours move in next door.  You don’t get on with them and a dispute begins between you and them.  Things don’t start off too bad at first, but the quickly escalate.  One day you’ve had a bit too much to drink and you start having an argument in the street with said neighbour.  Another neighbour calls the police who turn up and you end up back at the police station accused of committing a breach of the peace.  You think you’re fine and don’t get a lawyer at the police station.  Things don’t go quite how you expected them to and you’re charged with committing a breach of the peace.  You now consider that you need a lawyer, but when you find out that you’re going to have to make a contribution of your costs you decide you can’t afford to instruct a lawyer and you go it alone trying to represent yourself.  Any decent solicitor will tell you this is a bad idea; not because they lose out on fees, but because it usually ends up badly for the accused.  A non-legally trained individual trying to defend themselves against the might of the state which has money and qualified lawyers at its disposal is a significant imbalance in power and really isn’t going to end well.  Yes, the court will try and assist an unrepresented accused, but there is a limit to what the Court can do.   In this case it goes badly for you and you’re convicted of a breach of the peace.  You now have a criminal record; a criminal record that might have been avoided had you been professional represented by a defence solicitor.  A solicitor might not have got you acquitted, but they could have worked to reduce the level of fine or community service you get.

All of the above three examples sounds farfetched and extreme; “it’ll never happen to me” you might say.  However, they are examples of what could happen to any one of us on any given day (and there are many, many more).  All of them resulting in an otherwise law abiding citizen being caught up in the criminal justice system and needing the professional services of a criminal defence lawyer.  One day it really might be you and you are in need of criminal legal aid.  However, the legal aid has dwindled; it’s almost impossible to get because of government reform and requires you to put up considerable amounts of money that you simply might not have.  If you’ve never thought about it before I challenge you to think of all the things you do in a day which could lead to you needing the services of a criminal lawyer; I’m sure if you really think about it you will come up with many.

This is why criminal legal aid matters to everyone (it’s also why the right to a fair trial matters to everyone).

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.

Professional Juries…not a chance

Yesterday the Justice Committee of the Scottish Parliament took evidence on the role of the media in criminal trials.  During the session Ian McKee, justice campaigner, made a number of references in support of the idea of introducing professional juries into the Scottish Courts.  This is a very bad idea.

The jury was, rightly, described by Aamer Anwar during the session as the “jewel in the crown” of the criminal prosecution system in Scotland.  It has featured as a fundamental part of our system for centuries.  It is important that people facing serious criminal charges are judged by their peers.  The idea of having professional jurors is a repugnant one.

Professional jurors would not resemble the system we have today where local people are drawn at random to sit on a jury and decide on issues of fact placed before them.  They would in effect be state employees and would be reliant upon the state for the money that feeds their children and keeps a roof over their head every single month.  Yes, jurors currently get reimbursed for losses incurred as a result of sitting on a jury, but this is quite different to relying on the state to pay your wages every single month for sitting on a jury permanently.  There is a risk that the independence of the jury from the State is jeopardised.  If no actual prejudice occurred, at the very least there would be the appearance of prejudice in the process.

Some of the reasons advanced by Mr McKee for the introduction of professional juries was quite frankly insulting to anyone who has ever sat on a jury.  I have very little experience of the court system and certainly none as a practitioner.  However, I have (as a fair few law students will have) sat in courts during trials.  While I have been sitting watching proceedings juries have always struck me as a largely diligent bunch of folk who are genuinely interested in hearing and understanding the evidence.

There is also a risk of corruption.  When you reduce the jury pool to a small number of people rather than everyone in a given area it becomes easier to locate and corrupt jurors.  This would undoubtedly be bad for justice.

Any advantages there may be to a system of having professional jurors are undoubtedly outweighed by the disadvantages to the system.  The jury system may not be perfect, but no system ever is.  However, the system largely works and has done so for centuries.

Offenders, ex-offenders and society’s attitude

There seems to be a desire in this country to endlessly punish those who have previously committed crime.  Society seems to largely place “criminals” (and especially “prisoners”) into a category of their own that is not recognised as being human.  Yes, some people commit despicable crimes and are deserving of a severe punishment.  However, they are still human and still deserve to be treated with dignity.

One argument that is often banded about when discussing the issue of the rights of prisoners/offenders/accused persons is that they had no thought or respect for the rights of the victim of their offences.  While that may be true, it does not mean that, as a society, we should disregard the rights of those who commit crime; at least not if we are a decent society.

There are a number of things that really frustrate me when discussing criminal justice with people, particularly around those who are serving or have served a prison sentence (although not exclusively).

The first of those relates to prison itself.  Fyodor Dostoyevsky said: “The degree of civilisation in a society is revealed by entering its prisons.” Prison is a punishment; it is the most severe form of punishment that we have at our disposal in this country.  As such, it really ought to be reserved for the most dangerous in society (including those who persistently offend).  The removal of a person’s liberty is a serious matter.  Think of all the decisions you take on a daily basis which rely on your freedom; there are a lot of them.  These decisions are removed from prisoners as part of their punishment.  An individual’s time in prison ought to be productive with those who are acting responsibly and complying with the rules of the prison being rewarded for that.  There does need to be some form of ‘carrot and stick’ approach in prisons; after all there is a far greater number of prisoners than there are prison officers at any given time.  Take televisions as an example.  There appears to be a great deal of upset by members of the great British public that prisoners have access to a television in their cell.  Normally, a television comes as part of the “standard” level of the Incentives and Earned privileges (IEP) Programme within a prison.  It doesn’t feature in the “basic” bracket.  Therefore, a prisoner who doesn’t comply with the prison authorities is liable to lose access to their television until such times as they are put back on the “standard” grade of the IEP scheme.  Prisoners usually have to pay for the privilege of having a TV in their cell as well (normally around £1 per cell with the cost being split between prisoners where there is more than one in a given cell).   There are other “issues” that many in society have with what prisoner’s get, but I’ll not address them in this post as I would like to look at some wider issues that go beyond just those incarcerated for their offences.

Once a person is convicted of a crime the court will sentence them to a punishment that it, with the help of statutory and non-statutory guidance, considers appropriate based on the particular circumstances of that offence.  No two cases are ever the same and as such seemingly similar offences may attract very different sentences.  That sentence might be a fine, a community order or a custodial sentence (there are many more sentences and combinations of sentence, but three will do for the purposes of this post).  The offender will serve the sentence handed down by the court.  They will receive a criminal record which will follow them for the rest of their life (although they may not have to continue to disclose their convictions once certain criteria are met).  That’s all fine and good and the individual should be entitled to go about their life.  However, in this country we seem to favour continually punishing offenders.  Employment all of a sudden becomes harder to gain, insurance premiums rise and it is assumed by many that a criminal record (no matter how old) means they will commit offences again.

There have been some very good examples of ridiculous situations arising because of criminal records that are decades old.  In England and Wales they will soon be electing Police and Crime Commissioners who will take on an important role in holding the local police to account throughout England and Wales.  A number of candidates for this office have had to withdraw from the campaign because of crimes they committed as teenagers; often 40-50 years ago.  It seems quite ridiculous that people who have overwhelmingly been law abiding citizens save for a “blip” half a century ago are still feeling the effect of that today.  What good does it serve society if, after such a long period of time, we are going to continue to judge a person by mistakes they made in the past?  Does such a situation not provide a disincentive to people to go “straight”?  Why stop committing crime if the crimes you have committed are going to continue to haunt you for the rest of their natural life?  The Rehabilitation of Offenders Act 1974 was supposed to prevent such situations from occurring.  However, there is an enormous list of posts which are exempt from its provisions and the periods set out in the Act which must pass before an offence becomes “spent” are ridiculously long in some cases.  I’m not saying that there should be no exceptions.  Of course a known paedophile should not be permitted to work with children.  However, the exemptions and the “rehabilitation periods” should certainly be tightened up a lot more.  Former Justice Secretary Ken Clarke had suggested doing this in England and Wales.  However, his party was not really behind him and as such it was never going to happen.

Another recent proposal, announced by Ken Clarke, which is an example of never-ending punishment, is to remove those with unspent serious convictions from eligibility to receive criminal injuries compensation.  If a person is given a custodial sentence of more than thirty months (2.5 years) then the Rehabilitation of Offenders Act 1974 does not provide a period after which the conviction is spent (i.e. it never becomes spent).  Such persons may, under this proposal, never be entitled to criminal injuries compensation.  Let’s consider a person sentenced to four years imprisonment when they are 16 for assaulting someone using a bladed article.  They are released from prison and live a law-abiding life from their release.  They go through life and in their fifties are seriously assaulted.  They continue to have an unspent conviction and would not be entitled to criminal injuries compensation.  Is that really fair? It’s nothing other than treating someone differently because of something they did decades prior to being the victim of a serious crime.  It’s simply prejudiced.

I firmly believe in and support the rights of those in prison and those convicted of crimes.  They may have transgressed the rules of society, but they are punished for that at the time.  However, I do also believe in offenders taking responsibility for their offences.  That should rarely mean being continually punished for the rest of their life because, for example, they stole when they had no money or did something reckless when they were younger.

I believe that we need a sensible, level-headed debate around criminal justice in this country.  Far too often punishment and rehabilitation are pitted off against one another when the two need to be looked at together, as part of the one system.  Punishment is essential as a way of ensuring those who commit crimes take responsibility for their actions, but at the same time we should be encouraging offenders to change and not putting brick walls in their way when they do try and change.  There are some excellent examples of people who have committed offences in the past, but have managed to turn their life around and make a success of it.  We should not place unnecessary barriers in the way of others who want to do the same.  Employers need to be more open-minded as does society as a whole.  We need to stop treating offenders and ex-offender like second-class citizens (or worse, as sub-human) and start engaging properly and effectively with them if we are to have a decent society.  Fyodor Dostoyevsky was correct.

Sexual Offences and the Sex Offenders’ Register

On Saturday new rules came into force in England and Wales which gave the right to those placed on the sex offenders register for life to seek a review of that position.  Those who find themselves having to register with the police as a sex offender for life will have been sentenced to a term of imprisonment of at least 30 months.   An individual who is placed on the register for an indefinite period can after a period of 15 years following their release seek a review from the police.  If the police decide that the individual continues to pose a threat to society then the requirement that they continue to register with the police will continue.  However, should the police decide that the individual no longer poses a threat to society they requirement for registration will no longer apply.

Firstly it is important to point out that the term “sex offenders register” is somewhat of a fallacy.  There is not a long list of names of people who are sex offenders.  What being placed on the sex offenders register means in practice is that an individual must register with their local police force and provide them certain details such as their address.

I have written on this topic before, but what has spurred me to write about it again was a piece on Radio 5 Live involving John Cooper QC.  The person he was discussing the issue with, a victim’s campaigner, seemed to either not understand the system or was deliberately misleading in order to support her chosen point of view.  One issue that I wish to take issue with was the way in which she continually referred to sex offenders as “him”.  It is shocking that in this day and age that people still do not consider the fact that women do also commit sexual offences and can therefore also be subject to being registered as sex offenders.  I do not have statistics to hand, but it probably is the case that the majority of known offenders are male.  That does not mean that women cannot and do not commit sexual offences.

Some of her other comments as well appeared to demonstrate a poor understanding of the legal system.  It should be made very clear that there is a great deal of difference between an individual’s criminal record and them being subject to the registering requirements as a sex offender.  A person convicted of a sexual offence and who is sentenced to a period of 30 months or more in custody will have to declare their conviction for life.  Currently sentences of 30 months or more never become spent.  Those of less than 30 months will also continue to show on CRB checks where a convicted sex offender applies for certain types of work (e.g. working with children or vulnerable adults).  There is no shirking of responsibility as was suggested on Radio 5 Live.  All that being removed from the register means is that the intense level of scrutiny is removed where that is no longer appropriate or necessary; it does not mean that the fact a person has been convicted of a sexual offence is removed.

The fact that it is the police and not the courts who are considering these applications is another issue.  I noted at the time of the Supreme Court’s decision that the police are not likely to be an independent and impartial tribunal.  It is also putting the police in the position of reviewing the decision of a court which is, I would suggest, not a great idea.  This is not out of some dislike of the police, but rather is about keeping the roles of the police and the courts separate and defined.  It should be the Courts, as it is in Scotland, who conduct these reviews rather than the police.

There is an important point to all of this though.  These sorts of debates are often framed as victim v offender.  However that is, I would suggest, an unsatisfactory way of looking at these issues.  Victims want to see justice and they can seek that through the courts.  If an offender is convicted the court decides upon the punishment.  Punishment should not, except in the most exceptional of circumstances, be continual and never-ending.  As I listened to the piece on Radio 5 Live on this matter I got the distinct impression that the victims’ campaigner was founding her arguments upon punishment and responsibility rather than on public protection.  Keeping an offender on the sex offenders register for an indefinite period where there is no real reason to does nothing at all to increase public protection.  Yes, there will be those who continue to pose a risk to the public and there is no doubt at all that they should remain closely monitored by the authorities to ensure that the public are protected.

One final matter that I wish to address is the comments the victims’ campaigner made regarding cautions and rape.  The campaigner speaking on Radio 5 Live said that it was a matter of fact that rapists were being cautioned.  Anyone who admits rape or is convicted of rape will go to prison and will serve a significant sentence in prison.  It is conceivable that there might be cases where an individual originally accused of rape might be issued with a caution.  Let’s be clear though, these persons were only ever accused of rape; they were never convicted and if they are receiving a caution then it will be for a very minor sexual offence.  Where there is evidence that rape or any other serious sexual offence has occurred then it will be put before the court to determine whether that individual is guilty of rape or not.  To suggest otherwise is nothing other than scaremongering.

So, what does this change in the law not mean?  Firstly, it does not mean that after 15 years of being released that sex offenders will automatically be relieve of the requirement to register with the police.  Secondly, it does not mean that a record of a person’s conviction for a sex offence is no longer in existence.  Their criminal record will remain.  All it means is that after 15 years a person can apply to the police to be considered as being no longer a risk to the public and as such no longer required to register with the police.

Of course, those who are victims of a sexual offence require the empathy and support of society.  They will often live with the ramifications of the offence for many years after the event if not for the rest of their lives.  Those who commit sexual offences are deserving of punishment and must accept responsibility for their actions.  They will be punished by the courts, often by serving a prison sentence, and will face what could be considered as continual punishment through the fact that they will be required to disclose the fact that they have been convicted of a sexual offence.  What we must allow for though is those who have served their punishment and do not continue to pose a danger to the public to get on with their lives in society.  Simply because someone has committed an offence (and this goes for any offences) does not mean that they will always offend.  Rehabilitation is possible and where it has occurred it should be recognised.

Contempt of Court

Some crimes attract a great deal of public interest and with almost rolling updates on the progress of investigations through twenty-four hour news channels that interest can be intensified.  There is a risk that comes with this level of publicity in criminal investigations though.  In all of the UK’s legal jurisdictions there exists the presumption of innocence.  That means all persons accused of a crime are, no matter how heinous the alleged crime, presumed innocent until such times as they are found guilty by a court (and of course they may not be found guilty).  A finding of guilt may be as a result of an admission (a plea of guilty) or following a verdict of guilty by the judge/jury.  There exists also, enshrined in the Human Rights Act 1998, a right to a fair trial.  It is essential that if we are to have confidence in both the judicial process and the verdicts of our courts that the process is fair and beyond serious criticism.

In order to ensure that proceedings against a criminal accused are fair there exists the Contempt of Court Act 1981.  Once proceedings against an individual are “live” the provisions of the 1981 Act take effect and restrict the rights of everyone else in society in respect of freedom of speech.  This restriction is absolutely necessary to ensure that trials are not prejudiced by comments made publically.  In the past it was really only newspapers, TV, radio and other such media outlets that had to worry about contempt of court as it was only really them who had the capability of prejudicing a criminal trial.  However, with the advances in technology we have seen everyone becoming a publisher and become affected by the 1981 Act (whether they know it exists, understand it, want to be or care).

Recent high profile cases have demonstrated just how little the general public understand about contempt of court and the risks in publishing potentially prejudicial material.  Cases such as the John Terry public order trial and the PC Simon Harwood trial both resulted in huge discussions on public Facebook groups and on Twitter before and during the trials.  These discussions made clear pronouncments on the guilt or innocence of the defendants in those cases.  The Attorney-General even considered whether to bring proceedings under the 1981 Act in the John Terry case following tweets by another premiership footballer.

More recently, the investigation into the death of Tia Sharp has revealed more issues around Facebook and Twitter, the public and the law.  Some people fail to understand that their posts on Facebook and on Twitter are not like their conversations in a pub or in their living room amongst friends.  Their tweets and Facebook postings have the capability of being seen by literally millions of people as they get re-posted or re-tweeted.  The effect that this can have on a criminal trial is drastic.  It seems as though some people fail to understand, and really need to understand, that if a trial is sufficiently prejudiced it may not be able to continue.  That would mean that the accused is acquitted and walks free from court.  If people really care about justice in these high profile cases as they state they are in their Tweets and Facebook posts then they really should be careful what they Tweet and write on Facebook.  It might seem inconceivable that a Tweet or Facebook post by a “nobody” could have such an effect, but as your friends Re-Tweet/Re-post it and their friends do the same and so on the cumulative effect could be enormous.  How many potential jury members are reading these posts?  While mentioning this case in particular I would like to point out that criminal proceedings are active in this case and that the 1981 Act has now taken effect.  The individual charged and the individuals currently on police bail in this case are entitled to the presumption of innocence and are entitled to a fair trial.

The failure of some people in society, who often make themselves all too vocal on Facebook and Twitter, to allow due process to take place is concerning.  A lot of people seem to fail (or refuse) to understand that arrest and/or charge does not equate to guilt.  Some people seem to bestow super-human qualities on the police.  Some people take the stance that “there’s no smoke without fire” or that “they must be guilty” once someone is arrested or charged with an offence.  We have seen a number of fairly high profile cases where people arrested, charged and even convicted have later been shown to be completely innocent (and that’s innocent in that they didn’t do it rather than innocent because the Crown couldn’t prove it or because of some technicality, not that there’s any real difference in law).

Last year a young man, Dane Williamson, was arrested and charged with serious offences in relation to the mass public disorder that took place last summer.  The offences with which he was charged carried a potential maximum penalty of life imprisonment.  His name was widely publicised and the usual Facebook groups were set up where abusive remarks were posted about him.  He was abused in prison and lost everything when his flat was set on fire while he was on remand.  Even prison officers, it was reported, were abusing him while he was in custody.  In his own words “I was being treated as if I was already guilty.”  He hadn’t been involved in the riots.  He had been working all day and then indoors in the evening that the offence in question took place.  His case underlines clearly the serious problems we have in our society that threaten to undermine the criminal justice process.

Another case is the more widely reported one of Chris Jefferies.  He was arrested on suspicion of Murder in the Joanna Yates murder investigation.  He was subjected to demonization  by the press and again social media sites were jumping down the process and treating him like he had been convicted of the offence.  The “hang ’em” mob were out in full force more or less from the moment his arrest was made public.  Again, he was innocent of any involvement in that crime.  Another man, Vincent Tabak, was convicted in that case.

There are numerous other examples of such cases which could be given.  They underline the need for the Contempt of Court Act.  They should also be acting as lessons for those who jump to the conclusion that everyone arrested or charged must be guilty of whatever it is they have been charged with.  The 1981 Act exists to protect the innocent, to protect the guilty and to protect the public.  It helps to ensure that those who are accused of a crime face justice in a fair way and it protects the public by trying to ensure that things that substantially prejudice the trial are not put into the public domain.  It would not be in the interest of public safety to have dangerous people walking the streets because their trial had to be stopped on the grounds that it had been so substantially prejudiced as to render it unfair.  Such a scenario means that the victims don’t get justice, offenders go unpunished and the wider public are at risk.

Social media is an excellent tool, but the Contempt of Court Act 1981 was written long before the advent of social media.  The technological advances which mean that we have moved away from companies being the only publishers who can reach large audiences with members of the public regularly publishing material that can reach thousands of people within minutes; this creates a problem for the operation of the law.  How do we ensure that those who use Twitter and Facebook are aware of the 1981 Act and what it means for them?  How do we ensure that everyone understands that Facebook and Twitter are not forms of private communication between their friends?  Twitter and Facebook, contrary to the belief of some, is not just like being down the pub with your mates.  The messages posted on these (and other) social networking sites are mostly capable of being seen by anyone in the world.  There are serious questions and it is essential that these are looked at to protect the integrity of the criminal justice system.  It is my view that this is too serious a problem to react to when it’s too late.  Action is needed before a serious case collapses due to prejudice stemming from Twitter, Facebook or another social media outlet.

Links
Contempt of Court Act 1981
Human Rights Act 1998
Police got the wrong man: Salford teen charged with Miss Selfridge arson during Manchester riots is cleared (Manchester Evening News)
The Lesson of Joey Barton’s tweets (The Guardian)
Contempt laws are still valid in the internet age (Comment is free, the Guardian)

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I have left the comments section open for now.  If any comments are posted below which are (or may be considered as) a contempt of court will be removed.  Please comment sensibly.