Beyond Reasonable Doubt: An unfair advantage to the accused?

In the wake of the dismissal of the case against Shrien Dewani in South Africa, Dan Hodges has written a piece on the Telegraph website questioning the criminal standard of proof.  I will write this blog post from a Scottish perspective, but the general points will apply equally to most ‘western’ legal systems.

There are two burdens of proof recognised before the courts: the criminal standard, which is “beyond reasonable doubt” and the civil standard, “on the balance of probabilities”.  What we are concerned here with is the criminal standard of proof, and particularly whether it weighs the system too heavily in favour of the accused.

Before going further, it might be helpful to set out what beyond reasonable doubt means.  In his comment piece, Mr Hodges, asserts that in order for the prosecution to secure a conviction against an accused they “must prove beyond question the guilt of the accused.”  This is not the case, and overstates the standard of proof.  The criminal standard of proof does not require there to be no doubt at all, only that there is an absence of reasonable doubt.  What this means is that the accused is entitled to the benefit of any doubt which is based upon reason and commonsense following a careful and impartial consideration of the evidence (and the lack thereof) presented to the court.  The doubt, as Lord Justice-Clerk Cooper put it in Irving v Minister of Pensions, should be something more than “a strained or fanciful acceptance of remote possibilities”; Lord Justice-Clerk Thomson said in McKenzie v HM Advocate  that it is something “more than a merely speculative or academic doubt”.  The finder of fact (the jury or the sheriff/Justice of the Peace) doesn’t have to be convinced beyond doubt that the accused perpetrated the crime alleged, only to the point where he has no reasonable doubt.

There are a variety of reasons as to why there is such a high standard of proof in criminal cases.  One of those reasons is the consequence of a guilty verdict in a criminal trial.  As Jones and Christie put it in Criminal Law (4th Edition), “conviction certainly entails more than a mere finding that, e.g. “A killed B”.  This in itself is a legally neutral statement…The Prime function of the criminal law is that of articulating the circumstances under which it is justifiable to hold a person punishable for his conduct.” (para 1-13).  In other words, with the criminal law we are going beyond a situation where we are simply ascribing liability to concluding that a person’s conduct renders them liable for punishment.  That punishment can be severe, it could result in a person being deprived of their liberty for a lengthy period of time.  A finding of liability in a civil case does not generally result in the liable party being punished; there may be a requirement to compensate the party that they have wronged to try and place them back into the position they were in before the wrong occurred (or to place them in the position they would have been in had the wrong not occurred), but that is manifestly different from punishment.  The stakes are much higher and as such it has been the position that the standard of proof must also be higher as a consequence.

It seems unjust to punish someone, in the severe ways open to the criminal justice system, on the basis that it is merely more likely than not that they committed the crime alleged.  A system whereby an accused person could be convicted merely on the balance of probabilities would inevitably result in the entire criminal justice system being brought into serious disrepute as individuals would routinely be convicted where there are sensible and logical alternatives to their guilt based on the evidence which was heard in court.

It has long been the case that the justice system has preferred to see guilty men walk free than an innocent man be unjustly punished.  This is not some ‘liberal, leftard, hand-wringly nonsense’; it is a centuries old principle and can be found in times where liberal principles were about as far away from the justice system as was possible.  We’re going back to the times of gruesome public executions for the most minor of crimes, to where transportation was still a sanction open to judges and to where prison conditions were probably more horrible than even the most right-wing member of society would care to suggest today.  Moreover, is it’s a principal which is a recognised international standard and features in what most people would consider to be “decent” legal systems.  This principle is another reason for the high standard of proof in criminal trials and is linked closely to the idea that a finding of guilt in a criminal trial opens up legitimate punishment upon the offender.

We’re probably all familiar with the concept of an accused person being innocent until proved otherwise (even if, as a society, we don’t always hold to that with our quick condemnations upon those suspected or accused of crimes).  The burden is placed squarely upon the State for a number of reasons, not least an equality issue.  The State is vastly better resourced than an individual and it can call upon those resources when trying to prove that someone “did it”.  The State has professional investigators in the form of the police, and teams of specialist lawyers to prosecute the case in court in the form of the public prosecution service.  While those services, in the UK at least, are suffering from a considerable cut to their funding, those resources continue to vastly outstrip the resources of the accused who has only his (small) defence team to counter the might of the State.  Lowering the Standard of proof would inevitably lead to the accused having to prove things that he does not currently have to prove.  Of course, it is presently the case that an innocent accused facing an overwhelming case against them would be sensible to offer evidence as to why the State is wrong; however, in a system where the standard of proof was merely whether it was more likely than not that the accused had committed the crime it would almost always be the case that the accused would have to be disproving the States case (or, to put it another way, prove his own innocence).  It would eat away at the presumption of innocence and would result in a great inequality between the State and the accused.

Does the criminal standard of proof weight the system in favour of the accused?  I suggest no.  What it does, I suggest, is merely rebalance a system that without it would unfairly favour the State with its huge and specialist resources over the extremely limited resources of the accused.

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Another blog on Corroboration

Corroboration has been part of the law of Scotland for many, many centuries.  The corroborative requirement used to apply in civil cases, and not just criminal cases.  The requirement for corroboration in civil cases was abolished on 3 April 1989 when section 1 of the Civil Evidence (Scotland) Act 1988 entered into force.  The Criminal Justice (Scotland) Bill currently before the Scottish Parliament will see the end to corroboration in criminal cases as well.

The abolition of Corroboration in Scottish Civil cases came following a lengthy process; it began with Memorandum 46 on the Law of Evidence published by the Scottish Law Commission in 1980, which resulted in two reports.  The first was report number 78 (published in 1983), entitled “Report on Evidence in cases of Rape and Other Sexual Offences”.  That report resulted in Sections 141A, 141B, 346A and 346B being inserted into the Criminal Procedure (Scotland) Act 1975 (later replaced by the present statute governing criminal procedure in Scotland: the Criminal Procedure (Scotland) Act 1995) by virtue of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.  The second report was number 100, which was published in 1986, entitled “Evidence: Report on Corroboration, Hearsay and Related Matters in Civil Proceedings”.   There was also a research paper by Sheriff I D MacPhail (chapters 1-5; 6-15; 16-19 and 20-25) which considered in detail the Law of Evidence in Scotland at that time.

In essence, the major reform to the Law of Evidence in Civil cases through the Civil Evidence (Scotland) Act 1988 followed an intense and lengthy period of scrutiny by the body established by law to look at reforms to the Law of Scotland.  The abolition of corroboration in Scottish criminal cases is a major reform.  It was inserted into a Government Bill following a brief review by a judge and a number of short consultations on Criminal Evidence and Practice (the Carloway Review).  A process frequently described as an “emergency” by the Cabinet Secretary for Justice, Kenny MacAskill MSP, following the Supreme Court’s decision in Cadder v HM Advocate.

As I have already mentioned, the abolition of corroboration in Scotland is a significant piece of reform.  Many areas of Criminal Evidence depend, entirely or significantly, upon there being a requirement for Corroboration.  For example, in Holland v HM Advocate, the existence of the requirement for corroboration was an important factor in the Court’s determination that dock identification did not breach Article 6 of the European Convention on Human Rights.  With Corroboration playing such a significant role in the Law of Evidence in Scotland, it is important that the effects of its abolition are properly considered.  It is also essential that all the necessary changes to the Law of Evidence that require to be made, are made at the same time and not in various bits of emergency legislation like the disaster that was the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, or thorough piecemeal reforms which are required following the identification of yet another problem with criminal procedure arising out of the abolition of corroboration.

While I believe Corroboration is an important aspect of our system that ought to be retained, I could foresee it being removed without any real problem to the procurement of a fair trial.  However, I can only see that if it is done in the context of a properly considered report that doesn’t just look at changes that could be made to the system, but one which has also adequately considered what other changes might have to accompany those changes to ensure that the system remains fair and balanced.  Removing corroboration from Scottish criminal procedure has the capability of reducing the conviction or acquittal of a person down to nothing other than the credibility of the complainer against the credibility of the accused.  That is an unsatisfactory position when a conviction can result in the loss of a person’s liberty for a very long time.

We cannot allow another ‘Cadder’ situation to, which undoubtedly had a significant impact on the ability of complainers to obtain justice because of the procedural errors in the Scottish justice system.  If we are to make such a fundamental change to our justice system, we must ensure that it is done in a way that ensures any consequential changes are also made to protect the rights of both complainers and accused persons.

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.