Category: Criminal Law

Is it the case that the complainer clearly lied?

In Scotland, there can be three conclusions to a criminal trial: (1) the accused is found guilty, (2) the accused is found not proven and (3) the accused is found not guilty.  This seems fairly straight forward, (1) means they did it (2) means nobody is sure whether they did it and (3) means they didn’t do it.  Only that’s not really how it works; it is a great deal more complicated than this.

Let’s start with numbers (2) and (3), although they look different they are identical in law: the Crown has failed to prove its case against the accused beyond reasonable doubt, and as such the accused is acquitted.  Historically, this meant that the accused could never be tried again for the same crime.  However, following fairly recent changes to the ancient double jeopardy rule (the rule that said no person may be tried twice for the same crime), it is now possible for the Crown to have a second go at prosecuting an individual for a crime for which they have already been acquitted in a set of strict and limited circumstances.  On the whole though, an acquittal means that the person leaves court innocent in the eyes of the law (exactly how they arrived at court) and free from the threat of a further prosecution in connection with the same matter.

Our system is extremely simple in respect of a person’s standing in law when accused of a crime:  all persons are presumed innocent until found guilty in a Court of law.  That finding of guilt may be as a result of the accused’s own guilty plea, or it may be following a trial.  An acquittal following a trial does not necessarily mean that the complainer has told lies or has not been the victim of a crime.  What it means is that the Crown failed to put before the Court (a Justice of the Peace, Sheriff or Jury depending on the forum in which the trial is held) to convince the Court that the accused is guilty of the charges alleged by the Crown.  It is for the Crown to prove the charge, and to prove the charge that it alleges.  Certain aspects of charges can be deleted if the Crown has failed to prove them, but has overall proved the offence.  For example, an ‘aggravation’ can be deleted from the charge where the evidence does not support the aggravation, but where it supports the basic offence.  Other things can be deleted from a charge as well.  For example, if the Crown alleges assault to severe injury and permanent disfigurement, but the evidence only proved assault to severe injury, the permanent disfigurement aspect to the charge could be deleted.  Another example could be where the charge alleges that the accused assaulted the complainer by punching and kicking the complainer, but the evidence only proved that the accused punched, rather than punched and kicked, the word ‘kicked’ could be deleted from the charge.

These deletions can be made by the Crown itself, or they can be made by the finders of fact (e.g. a jury could remove an aggravation from the charge where it finds the basic offence proved, but not the aggravation alleged).  The onus is on the Crown to prove the essential elements of the case though.  Where it fails to satisfy the finder of fact (in the case of a jury trial that would be the jury to a majority of 8 to 7) that the accused committed the crime alleged, the accused is entitled to be acquitted; he or she is free to go with the law viewing them to be innocent.

Of course, not every single case that results in an acquittal has arisen out of the lies of the complainer.  We have a system that requires the Crown to bring sufficient evidence before the Court to prove beyond all reasonable doubt that the accused committed the crime alleged.  The standard of proof is extremely high and the burden largely falls on the Crown, and for very good reason.  A finding of guilt could allow the State to deprive an individual of their liberty for a very long time.  Furthermore the state has far more resources at its disposal when bringing a prosecution against an individual.

In recognising that some guilty people do walk away from court, it is not an invitation to treat those who are acquitted with suspicion.  The law is clear: they were innocent before the trial and they remain so after the trial.  There is no presumption of guilt and nor should there be.  It is an effect of our system of justice that some guilty people will walk free after a trial, just as some innocent people will be convicted. Both are unfortunate, but doing as much as possible to avoid the latter results in the former.

There certainly should not be a jump to the conclusion that the complainer(s) in a case where the accused is acquitted have perjured themselves.  Where there is evidence that this is the case it should, of course, be investigated and a prosecution brought where it is in the public interest to do so.  However,due process has to be followed just as much in that case as in the case that went before it.

In essence, while an acquittal does equal innocence in the eyes of the law; it is realistic to accept that it does not always equal what might be termed as ‘true innocence’.  However, whether the person is innocent or not is quite frankly irrelevant beyond the trial.  In legal terms they are innocent and as a consequence society has an obligation to judge them as innocent, and to treat them as such.  The court that heard the case and acquitted the accused heard all of the available evidence and decided that it was insufficient to allow for a conviction.  The accused is entitled to put the episode behind them and to move on with their life.  Equally, complainers are entitled to support to move on from the crime of which they have been a victim.  In a lot of cases the fact that they have been the victim of a crime is not in doubt, the police and the Crown have just been unable to show that it was the accused that perpetrated the crime (and it may very well be the case that it was someone other than the accused that committed the crime, hence the right of the accused to have society treat them as innocent).

I hope that this makes sense.  If not, here is what I have been trying to say distilled down into five small points:

  1. When a person is acquitted it does not automatically follow that the complainer wasn’t telling the truth
  2. Equally, it does not follow that simply because the complainer may not have been lying that the accused got away with their crimes.
  3. The acquitted accused is entitled to move on from the episode and obtain support as required.
  4. The complainer is also entitled to move on from the episode and obtain support as required
  5. Where there is evidence to support that the complainer wasn’t telling the truth, it should be investigated and prosecuted where such a prosecution would be in the public interest.

A quick defence of legal aid

The debates around legal aid in Scotland earlier this year and in England over the last year have been characterised by a number of clear misconceptions by the public at large.  There is a view that legal aid exists only to make ‘lawyers rich’ and that the vast majority of those receiving legal aid are in some way ‘undeserving’.  These views are of considerable concern as the simply enable Governments in Edinburgh and London to press ahead with legal aid ‘reforms’ that will substantially damage the country.

Legal aid seems to get lumped in with job-seekers allowance, housing benefit, council tax benefit and such like (I have even, on more than one occasion, seen comparisons drawn between legal aid and the NHS); these comparisons are illogical and ignore fundamental aspects of legal aid which set it apart from any other government spending.

Equality before the law is fundamental to ensuring access to justice.  The ability of all (and not just the rich) to access the legal system is of fundamental constitutional importance.  The ability of individuals to defend themselves against the power of the state (whether in civil or criminal proceedings) and to challenge the state through Judicial Review are essential to our constitution.  Without this ability we are not a liberal democracy.  The issue of access to the law isn’t only confined to making it possible to bring or defend a claim, but it has to create a realistic ability to access the law.  That means providing good quality representation (and importantly permitting those bringing or defending a claim to select their own law agent).  Without client choice you are left in a situation where the State is selecting the representatives of those who it is brining a claim against or whom it is defending a claim against.  If you were suing your mobile phone provider and had to use the solicitor that they selected for you, you would instantly see a conflict of interest.  However, that same conflict does not seem to be as apparent when the State is involved (although it is there and just as important).  There has to be equality between the parties in the legal system and for those who cannot afford to pay their own legal fees it is left to the State to ensure fair access to legal representation.

In criminal cases, it is about defending yourself against serious accusations made by the State.  The consequences of conviction are, quite rightly, serious.  Conviction can lead to a loss of employment and a loss of liberty.  Not everyone who gets legal aid in criminal cases is guilty, a great many people are innocent and it is important that they are able to robustly challenge the State who has to prove their allegation.  It’s about ensuring fairness in the system; an individual against the might of the State (with the police and a professional prosecution service for back-up) is not a fair fight.  Legal representation is essential to ensure fairness (whether they are guilty or not).  It might be unpopular to see guilty people get vast sums of public money to defend themselves, but isn’t that a price worth paying to ensure that we have a fair and balanced system ensuring that, as far as is possible, only the guilty are convicted?

Judicial Review is very much disliked by the Government, as should be expected.  Judicial Review is the citizen challenging a decision made by the Government; it’s about ensuring that the Government only takes decisions which are legal.  It is an area under attack by the Government and it is vitally important.  Without effective access to judicial review, the State can go unchecked and be able to take decisions which are illegal.

The need for access to legal aid does not just extend to cases which involve the State.  Individuals seeking to enforce their contractual rights against a company or gain compensation when a company is at fault and they have lost out as a result or to enforce their consumer rights need to have the ability to seek recourse in the courts when pre-litigation action fails to achieve a result.  Without the ability to go to Court and seek a legally enforceable court order to enforce their rights, the rights that they have are effectively meaningless.  The threat of litigation can prevent litigation.  The knowing that an individual can seek recourse to the Court in order to give effect to their rights can be enough to make people comply with their obligations.  Without that effective recourse, people will be free to ignore their obligations with impunity.

Legal aid and access to justice go to the very heart of our constitution and democracy.  It’s not a benefit; it’s a constitutional right  Legal aid is much more important and serious that housing benefit or job seekers allowance (as important as those are); it’s fundamental to our society.

Anonymity upon arrest

The naming of suspects by police at the point of arrest and charge has become a hot topic.  The Home Secretary has written to Chief Executive Officer of the College of Policing, Alex Marshall, expressing her concern about the different policies operated by different forces in England and Wales.  She wants it made clear to forces that unless there are very good public interest reasons for naming suspects who have been arrested, it shouldn’t happen.  The press have repeated concerns that this amounts to some kind of ‘secret justice’.

I really have little concern about suspects under arrest who have not been charged remaining anonymous.  Far too often we see examples of the press effectively having a trial which convicts the person while that person is still in police station being questioned in connection with an alleged offence.  By the time this person is then released from the police station their reputation has been destroyed, even if they are entirely innocent of any involvement in any crime.

Persons who have been arrested and not named do not fall into some big black hole; indeed millions of people are arrested in England and Wales every single year and very few are named at the point of arrest (in fact very few are named publically at any point, even after conviction).  There are important rights, protected by law, which mean that it is impossible for someone to be secretly arrested.  Those arrested have the right to have someone informed of their arrest and are entitled to legal representation; although both of these can be delayed, they are still rights which have to be exercised eventually if the arrested person wishes to exercise those rights.

It has been argued that naming a suspect at the time of arrest allows further victims to come forward, but so would naming them at the time of charge.  There is nothing stopping the police from arresting the person again in connection with different allegations that come to light after they have been charged.

In effect what a policy of anonymity for suspects under arrest would prevent is the press from publishing endless stories ‘monstering’ a person over something they may or may not have done.  We should perhaps be more than a little suspicious of the motivation of the press on this story; evidently ‘monsetring’ stories are the type of stores that make newspapers (particularly tabloid newspapers) sell.  Such a motivation cannot be ruled out of the press opposition to a move towards anonymity of arrested persons.

The clearest example of this was that of Christopher Jeffries, the man who was wrongly arrested on suspicion of murdering Joanna Yeates.  What followed, while he was still in police custody being questioned, was a press frenzy which painted him as a deviant, gave the impression that he was a nasty individual and by implication that he was clearly Joanna Yeates’ killer.  However, he was later released from police bail (having never been charged) and won substantial damages from eight newspapers for libel.  The Attorney General also prosecuted two newspapers for contempt of court, both of whom were found to be in contempt.  Another mab, Vincent Taback, eventually convicted of her murder and is currently serving life imprisonment.

Charging a person with a crime is a formal process; it is when criminal proceedings begin against a person.  From the point that a person is charged it is clear that the Contempt of Court Act rules kick in.  These rules provide sufficient protection in respect of the person’s right to a fair trial and news stories which are sufficiently prejudicial could even cause the collapse of a trial (although that is rare and it would have to be something of great significance).  The only cases where publishing the names of people who have been charged with an offence which causes me to pause and really think are those accused of sexual offences.  With sexual offences, more than any other offence, there appears to be a guilty until proven innocent mindset amongst general pubic; there is no smoke without fire, so to speak.  However, there are strong arguments in favour of anonymity and disclosure in those cases and it is a finely balanced argument.  Although I have argued in favour of anonymity before, I now believe that the arguments in favour of disclosure are slightly weightier.  However, in sexual offences cases I do feel that the authorities responsible for bringing cases in respect of alleged contempts of court have to be more pro-active.  Perhaps also providing for a possible (short) custodial sentence for editors who are guilty for allowing a seriously prejudicial story to be published (i.e. that type of story that causes or is seriously likely to cause the collapse of a whole trial) might make editors slightly more responsible around high profile cases.

It would be entirely right for the police to move to a system of neither confirming nor denying to the press whether they have a specific person in custody under arrest.  This gives the police the space to conduct that initial investigative phase and it will minimise the reputational damage done to those who are innocent and unfortunately arrested.  Without confirmation from the police of the name of the person in custody it is unlikely that the press will publish any name that they do have.  However, if such a move did not stop the press frenzy that we currently see around arrested persons, I would certainly not be adverse to Parliament passing legislation which specifically prohibits the confirming of names of arrested persons outside of a set of clearly defined circumstances where it really is in the public interest (and that’s not what the public are interested in) to release the name at such an early stage.

We do have a system of public justice and it is important for both the public and those accused of crimes that trials happen in the public eye.  This is not so that the public can gawp and stare and slander individuals accused of crimes, but so that the public can see that justice is being done and to protect those accused of crimes from oppressive state practices.

Sentencing in historic cases

There has been a lot in the news about historic sex offence, particularly in light of the Jimmy Saville investigation.  However, those related investigations are by no means the only circumstances in which historic sexual offences are coming to light, and for which offenders are being convicted. Therefore, it might be worthwhile considering how the Court is to approach sentencing in these (and similar cases).  Historic cases (of all types, not just sexual offences) have had a history of causing concern and outrage to the public as the sentences can sometimes appear to be substantially less than what would be expected if someone was convicted of the same crime today.

In 2011, the Court of Appeal issued guidance specifically relating to the sentencing of historic sexual abuse cases in England and Wales.  The guidance was given in the case of R v H and others [2011] EWCA Crim 2753.  Upon reading that case, it becomes clear that sentencing offenders in cases where they have admitted sexual offences which had occurred a significant time ago is a complex exercise.

The first thing that should be noted is that the maximum sentence which can be given in any case is that which was applicable at the time the offence was committed, not at the time of sentencing.  Where the law has been amended over time to increase the penalty for a particular crime, it is not possible for the Court to sentence in the context of that maximum.  Similarly where the maximum has been reduced over time, the court is still required to sentence in line with the maximum that was in place at the time of the offence.

It should also be noted that the charges brought against an offender whose crimes were committed in the past must reflect the law at the time of the offence, not at the time he or she is charged with anything.  There are some courses of conduct which, historically, would be an indecent assault, which would now be classed as rape (under the Sexual Offences Act 2003).

While the Court has to take account of the sentencing regime that applied at the time of the offence, the Court must also take account of the sentencing regime in place at the time of sentencing.  Therefore, the Court will have to take account of any guidance issued by the Sentencing Council (or its predecessor organisation, where that guidance is still in force).  However, where those guidelines would produce a sentence greater than the maximum permitted at the time the offence was committed, the sentencing court would have to make adjustments to that sentence so as to ensure it was not greater than the maximum allowed.

The Court of Appeal found it to be wholly unrealistic to attempt, at the time of sentencing, to try and pass the sentence that would have been passed had the offender been convicted at the time.  Beyond that, the process of sentencing is rather similar: account must be taken of the facts of the offence, the culpability of the offender at the time of the offence and whether than has been early admission of the offences.

One last thing that the Court of Appeal noted was that the passage of time between the offence and the date of conviction could be an aggravating factor, but that mitigation could also be found in that time.  For example, if it can be demonstrated that between the offence being committed (or last being committed) and the date of sentence there is evidence of an unblemished life, particularly where ‘accompanied by evidence of positive good character’, then there may be mitigation to be found (which presumably could reduce the sentence actually passed).  The passage of time may also be an aggravating factor, the Court stated, where (for example) there is evidence that the offender poses a continued risk to the public, or that he or she continued to offend during that time.

Sentencing is always complex, but when dealing with historic cases it is even more complex.  The Court has to have due regard to the law as it was at the time of the offence.  This is to ensure that the sentence is not harsher than could (not would) have been given at the time of the offence.  When the offence and date of sentence are separated by significant periods of time during which there has been substantial changes in the law, it can appear as though the Courts are being ‘soft’ or too lenient on offenders.  This is especially so where the maximum possible sentence has increased over that period.

The guidance in R v H and Others should be kept in mind when reading about sentences involving those convicted of offences which occurred many years, sometimes even decades, ago.  For a full understanding of just how the Court should appraoch these cases, I would stronly suggest reading the judgment in its entirity.

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

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.