Can the Scottish Parliament block ‘Brexit’?

There has been some suggestion in the days since the EU Referendum, in which a sizable majority of Scottish voters voted to stay while a smaller majority of voters across the UK as a whole voted to leave, that the Scottish Parliament can in some way block the UK’s exit from the European Union.  That suggestion is, in my view, wrong; the Scottish Parliament cannot block the UK’s exit from the European Union.

Since Devolution there has been a convention operating whereby it has been understood that Westminster would not exercise its power as the sovereign and supreme legislative body for the United Kingdom to legislate in an area for which competence over has been devolved to the Scottish Parliament, without first obtaining the consent of the Scottish Parliament.  This convention is known as the Sewel convention.

Following the 2014 referendum on whether Scotland should become an independent country, a Commission was established by the UK Government to look at the Scottish devolution settlement.  That Commission, the Smith Commission, recommended that the Sewel convention was given legislative force.  Section 2 of the Scotland Act 2016 amends Section 28 of the Scotland Act 1998, which confirms in subsection (7) that Westminster can still legislate on areas of devolved competence, to add a subsection (8) which gives effect to that recommendation.  Section 28(8) provides that “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

What this means is that Westminster will not normally legislate on a devolved area without first obtaining the consent of the Scottish Parliament.  However, it can still legislate on an area of devolved competence without the consent of the Scottish Parliament (for example, in a time of emergency and where it wouldn’t be practical to obtain the Scottish Parliament’s consent).

What relevance does this have to blocking the UK’s exit from the European Union?  It would appear to me to be of no relevance whatsoever.  Firstly, we are not in a situation where the UK Parliament is going to be legislating.  The UK’s withdrawal from the EU is an exercise by the Executive of the prerogative power to conduct foreign affairs.  The Executive might well seek a vote in the UK Parliament on exercising the prerogative power (in the same way that appears to be becoming convention with the prerogative power to declare war), but that is not a legislative act by the UK Parliament.  Secondly, the United Kingdom’s relationship with the European Union is a specifically reserved matter in Schedule 5 to the Scotland Act 1998.  We are not, therefore, dealing with a devolved matter; we are dealing with a reserved matter.  Section 28(8) of the Scotland Act 1998 only relates to devolved matters.

It might be the case that, when the UK Parliament comes to give legislative effect to whatever relationship the UK is to have with the EU in the future, the Scottish Parliament may be able to invoke Section 28(8) of the Scotland Act 1998.  If that legislation were to affect a devolved area the Scottish Parliament could very well refuse to consent to the legislation; however, that would not necessarily equate to it being blocked.  The UK Parliament might have to rely on the word “normally in section 28(8) to legislate anyway so as to give effect to, what will be by then, the UK’s international law obligations.

The Scottish Parliament is still free to debate and vote on any issues that it chooses to do so.  We could therefore see in the coming days or weeks a debate and vote in the Scottish Parliament on whether the Parliament agrees with the UK’s withdrawal from the European Union.  However, it cannot invoke what is now Section 28(8) of the Scotland Act 1998 in relation to this issue.  Moreover, even it if it could invoke Section 28(8) of the Scotland Act 1998, that would not necessarily have the effect of blocking the action it refused to give consent to.

Data Protection and the #EUref

Data Protection is not an area that people generally get especially excited about, but the rights contained in the Data Protection Act 1998 (“the DPA”) are important.  They enable individuals to find out (mostly) what information companies and organisations hold about them, where they got it from, what they do with it, who they give it to and what it says.  It also enables people to take a degree of control over what companies and organisations do with that information; including the ability to prevent a company from using their information for marketing purposes, forcing them to correct inaccurate information and forcing them to stop “processing” their information where the processing causes substantial damage or distress that is unwarranted.

The DPA implements an EU Directive into domestic law.  Data Protection law in the UK has its roots in European law.  However, it’s not just the DPA that has its roots in European law; the connected Privacy and Electronic Communications Regulations 2003 (the full name of which is actually the Privacy and Electronic Communications (EC Directive) Regulations 2003) also implement European law into domestic law.  These Regulations relate to the use of personal data and are the regulatory regime that governs the use of electronic communications (such as E-mail, phone and text) to market directly to individuals.  These are the regulations which help deal with those annoying and unsolicited PPI and accident claims telephone calls.

In 2018 the Directive that underpins the DPA is being replaced with a new EU Regulation on Data Protection and the Directive underpinning the 2003 Regulations is currently being reviewed in light of the new EU Data Protection Regulation (the European Commission is consulting on this issue until 5 July 2016).

The DPA replaced the Data Protection Act 1984.  The 1984 Act was introduced to give protection to individuals in relation to the automatic processing of their personal data and was based upon the Council of Europe’s (the same Council of Europe behind the European Convention on Human Rights and Fundamental Freedoms) 1981 Convention for the protection of individuals with regard to automatic processing of personal data.

Now that there has been a brief account in respect of the history of Data Protection law in the United Kingdom, it is possible to thrust into the main purpose of this article; that is to consider Data Protection in the context of the EU Referendum.

If the UK votes to remain in the European Union then in May 2018 the United Kingdom will have to comply with the General Data Protection Regulation (which, being a Regulation, will have direct effect regardless as to whether the UK Parliament enacts a new Data Protection Act or not) together with the associated Directives; including whatever eventually replaces the 2002 e-Privacy Directive.  The associated Directives, together with some of the fudges in the new Regulation, will likely mean that there will be a new Data Protection Act to replace the current Act (probably towards the end of 2017).

If the UK votes to leave the European Union what happens is a bit more uncertain.  A vote to leave the EU will not mean that there is a complete end to the UK’s relationship with the EU, and that will have an impact on Data Protection.

The first thing to note is that a vote to leave will not mean an instantaneous split.  There currently isn’t really a process for an EU Member State to leave the Union so some time will be spent working out how that happens and there will inevitably be a time spent negotiating a new relationship with the EU; whether that is inside of or outside of the EEA.  It seems quite likely that we will still be in the EU come May 2018, which might mean that the GDPR will automatically apply – but that is entirely dependent upon what happens in terms of negotiations between the vote to leave and May 2018.

If the United Kingdom simply becomes part of the EEA then the result, insofar as Data Protection is concerned, will be identical to a vote to remain; the GDPR applies to the EEA countries (presently being Iceland, Liechtenstein and Norway) as well as to EU Member States.

If the United Kingdom leaves the EU and doesn’t join the EEA there will be bit more freedom in respect of Data Protection.  However, the requirement for Data Controllers within EU Member States not to transfer personal data to a country outside of the EU/EEA, unless there is an adequate level of protection for personal data, will mean that we will continue to have some form of Data Protection law.

It is possible that the UK could meet the adequate level of protection requirement with rights that are substantially lower than those afforded by the DGPR (when it enters into force) and so the UK’s Data Protection law will not necessarily be all that similar to the GDPR – especially if the government of the day is one that favours light-touch regulation and a lack of “red tape”.  That means that even if the UK is forced to comply with the GDPR initially, Data Protection law in the UK could change dramatically to something that affords much less protection than the GDPR.  What the law will look like though will not only depend upon the ideals of the government of the day, but what they think would be politically acceptable; over the last 30 or so years people have become much more wary about what governments, public agencies and businesses do with their personal data; so while the political will might be to substantially lower the level of protection afforded to individual’s personal data, the public will might not let them go quite as far as they wish!

In short, the future of Data Protection law in the UK will be very much influenced by the result of the Referendum and the eventual relationship with the EU in the event of a vote to leave.

Statutory Judicial Directions in Sexual Offences Cases

In all democratic countries there is a very clear separation of powers between the Executive, Legislature and Judiciary.  This is important so as to ensure that there are proper checks and balances on power and is really quite fundamental so as to ensure an effective democracy.  It is so fundamental that when the Scottish Parliament embarked upon a programme of restructuring the judiciary, it set out in section 1 of the Judiciary and Courts (Scotland) Act 2008 that the judiciary are to continue to be independent of the First Minister, the Lord Advocate, the Scottish Ministers, Members of the Scottish Parliament and others.

Judicial independence and impartiality flows from the doctrine of the separation of powers which is so fundamental to democracy.  It is important that the judiciary is totally independent from the Executive and the legislature.  Although judges in Scotland are appointed by Her Majesty the Queen, they are done so after having been selected by a body independent of the State, the Judicial Appointments Board for Scotland.  Neither the legislature nor the Executive play any role in the appointment process, other than by setting out the qualifications required to be a judge (see Chapter 3 of the Judiciary and Courts (Scotland) Act 2008).

This independence means that neither the Scottish Ministers nor the Scottish Parliament should seek to interfere with the independence of the Judiciary.  Parliament serves two primary functions: to make laws and to hold the Executive to account.  The Judiciary interprets and applies the laws made by Parliament and also holds Ministers to account.  Finally, Parliament holds the judiciary to account by having the power to change laws when the Judiciary interpret either the common law or statutory provisions in a way that Parliament considers is wrong.  It is rightly difficult to remove judges from post, their independence would be threatened if it was far too easy to remove them; it might make judges less able to perform their important function of holding the Executive to account, for example.  These three parts of the State work together (not always harmoniously, but that is to be expected) to ensure that the State does not over exert its powers and that no part of the State becomes too powerful.

The impartiality is also of huge importance and two-fold.  Firstly, the judiciary must be politically impartial.  It is for this reason that when lawyers become judges they must sever ties with any political parties that they may well have had connections to.  They should not be seen to make political comments, whether in the press, in speeches or in their judgments; especially if such comments align themselves with a particular political position or party.  Their impartiality also extends to the parties before them.  They must be careful not to be seen to be supporting one side or the other in any way.  That is not an easy task.

There is currently a proposal before the Scottish Parliament that may impact, in a negative way, both the impartiality and independence of the judiciary.  Section 6 of the Abusive Behaviour and Sexual Harm (Scotland) Bill seeks to insert a section into the Criminal Procedure (Scotland) Act 1995 that would require judges to give specific directions in certain sexual offences cases.  Those directions are undoubtedly well-meaning and seek to address common misconceptions about complainers in sexual offences cases, especially around any perceived delay in making the allegation to the police and how they react during the alleged offence.  However, simply because they are well-meaning and seek to serve a wholly commendable purpose does not mean that they should not be enacted or questioned.  In my view the potential constitutional difficulties that they present far outweigh the benefits, especially when there are other ways to achieve the same aim that do not impugn upon fundamental constitutional principles.

Independence

These statutory provisions would require Judges to include specific information in their charges to juries in sexual offences cases.  This is something that clearly crosses the line in the separation between Parliament and the Judiciary.  This is wholly different to Parliament telling judges that they have come to the wrong conclusion as to what the law is by passing substantive statutory provisions.  It is Parliament expressly dictating to judges how they should do their job.  We should always prevent Parliament from taking such steps.

Impartiality

The Directions which Parliament proposes judges should make in their charges are well founded in evidence.  However, what they seek to do is bolster the credibility of the principal crown witness in a sexual offences claim (i.e. the complainer).  It is entirely appropriate that we seek to remove any myths about complainers in sexual offences cases; only when we do so can we move towards a position where those who have suffered at the hands of a sex offender can get a proper shot at receiving justice.  When a judge is giving their charge to the jury they set out plainly what the law is in respect of the offence(s) contained in the Complaint/Indictment, explain to the jury the three possible verdicts open to them, the concept of reasonable doubt and finally that a majority of the jurors must be satisfied beyond reasonable doubt of the accused’s guilt before they can convict the accused.  In a jury trial the judge is there to deal only with matters of law and procedure; they are there to ensure that both the prosecution and the defence act and are treated in a fair manner, as well as making rulings on issues of law and procedure and setting out the law to the jury that they need to apply to the evidence they have heard in court.

One of the factors that jurors need to weigh up in reaching their verdict is the credibility of not just the complainer, but every other person who has given evidence before them.  Only once they have assessed the credibility of a witness can they decide whether to believe them and how much weight to accord their evidence.  It is clear therefore that the credibility of the complainer in any case, including a sexual offences case, is of central importance to the jury.  In my view it therefore follows that any comment by a judge that seeks to bolster the credibility of a witness (regardless as to whether they are the complainer or the accused) impugns upon their impartiality from the parties to the case (in this situation, from the Crown).

How else can this issue be addressed?

As I have already stated, there are many myths around the conduct of sexual offences complainers – including around how quickly they make the allegation official and issues about their actions and reactions while the alleged offender is committing the alleged offence.  A complainer who makes their allegation quickly should not automatically be presumed to be more honest that one who waits weeks, months or even years to make their allegation.  It should not be relevant whether or not a complainer made attempts to fight the alleged offender off.  These are the issues that these proposed jury directions seek to address.

In my view, these can be addressed in ways other than by requiring judges to set out a case bolstering the credibility of the complainer in their charge to the jury.  The issue of the credibility of the complainer, or rather the task of presenting the complainer as a credible witness, lies with the Procurator Fiscal Depute or Advocate Depute who is prosecuting the case.  Therefore, we ought to be looking at ways to put this evidence before a jury; whether that is by obtaining it through a witness such as a specially trained police officer or an expert such as a psychologist.   It wouldn’t necessarily be essential to require a complainer to explain why they didn’t make an attempt to fight of the alleged offender or why they delayed in making the report; although, these matters may well be explored during the complainer’s evidence in either examination-in-chief or cross-examination.

Addressing this issue in the way I have described would ensure that what is essentially a question of fact for the jury (that being, the assessment of the credibility of the witness) is treated as such and is not dressed up as being a matter of law being dealt with by the presiding judge.  It would also ensure that points of view that might well be held by the jury, which are not supported by evidence are properly addressed.  Finally, it would ensure that the independence and impartiality of the judiciary is properly and rightly preserved.

It is therefore my view that the Scottish Parliament should remove section 6 from the Abusive Behaviour and Sexual Harm (Scotland) Bill.

The Black Spider Letters – Part IV

This is the final in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General.  The first post went through the background to the case, the second post focused on the Court’s decision in respect of section 53 of the FOIA and the third post looked at the Court’s decision in respect of Regulation 18(6) of the EIRs.

This was a significant decision for a number of reasons.  It significantly restricts section 53 of the FOIA and in essence makes it virtually impossible for the Executive to make use of it.  While this might seem, on the face of it, really good for transparency; it comes with a serious warning.  In 6 weeks time the UK will have a new Government and undoubtedly one of the first things that this new Government will want to do is address the decision of the Supreme Court in this case.  The current Government, which may be in its final hours, has previously hinted at making changes to the FOIA that would have a devastating effect on the effectiveness of FOI in the UK.  While addressing this issue the Government might be tempted to make other changes to FOI at the time.

While I fundamentally disagree with the principal that the Executive should be able to veto a decision made by the judiciary in respect of a cause in which it was a party, we do live in a system where Parliament has supremacy.  It is clear that Parliament intended that the Executive should be able to, in certain cases, veto a decision by the Tribunal that information should be disclosed.  For that reason, I disagree with the interpretation given to section 53 by Lords Neuberger, Kerr and Reed.  I find the position of Lord Mance and Lady Hale more in keeping with the intentions of Parliament.  It is my opinion that they struck the right balance between the intention of Parliament and the Rule of Law given the system in the UK and the wording of the statute.

The Regulation 18(6) issue is more problematic for the Government, and here I do think that the 6 Justices of the Supreme Court who held that Regulation 18(6) was incompatible with EU law got it correct.  The wording in Article 6 of the Directive clearly does not envisage the situation where the Executive, who will be the public body holding the information in question, is able to veto the decision of the Court.  It also seems clear from the wording of the Directive that it being open to a requester to judicially review the decision of the Executive to issue a certificate is not sufficient to comply with the review requirements therein.  Part of being a member of the European Union is to accept that EU law has supremacy, in passing the European Communities Act the UK Parliament agreed to have EU law take precedence over Acts passed by it.  Ultimately the UK Parliament is still supreme and would only need to repeal the European Communities Act (which would also necessitate the UK leaving the European Union, but that’s a whole other blog) in order to deal with the Supreme Court’s decision in respect of Regulation 18(6).

What is the impact for Scotland?  The decision in R (Evans) v HM Attorney General is technically not binding upon the Scottish Courts.  Section 41(2) of the Constitutional Reform Act 2005 makes it clear that decisions of the Supreme Court on appeal form Courts in one part of the United Kingdom are “to be regarded as the decision of a court of that part of the United Kingdom”; there is an exemption to this which is not relevant here. Therefore, only decisions issued by the Supreme Court in Scottish cases are considered binding in Scotland (although in cases from other parts of the UK will be highly persuasive on the Scottish Courts).  As this was a case on appeal from England in respect of FOIA and the EIRs, it is only binding on the Courts in England and Wales.

Section 52 of the Freedom of Information (Scotland) Act 2002 (FOISA) provides the First Minister a similar power to that contained in section 53 of the FOIA in respect of decision notices served on the Scottish Administration.  The wording in section 52 is almost identical to that in section 53.  The main difference is around timescales, in that the First Minister has longer than the accountable person under FOIA to issue a certificate.  So, section 52 of FOISA is probably in a precarious position following the decision of the Supreme Court.

The Scottish legislation could face further hurdles that the UK legislation did not due to the constitutional position of the Scottish Parliament.  The Scottish Parliament is a creature of Statute, it has only those powers which are given to it by the UK Parliament and cannot do anything which exceeds those powers.  Section 29(2)(d) of the Scotland Act 1998 provides that no Act of the Scottish Parliament may be incompatible with the rights in the European Convention on Human Rights as given effect to by the Human Rights Act 1998.  There could be a viable challenge to section 52 under Articles 6 (the right to a fair trial) and 10 (freedom of expression).  If it were to be found that the Scottish Administration being able to veto the decision of the Commissioner and/or the Courts was incompatible with either or both of those Rights then section 52 would have no effect as it would be outside of the Scottish Parliament’s legislative competence.  It would be much harder for the Scottish Parliament to get round that, and it would probably require the UK Parliament to legislate on its behalf.

Regulation 17(2)(e) of the Environmental Information (Scotland) Regulations 2004 (the Scottish EIRs) has the same effect as Regulation 18(6) of the EIRs in that it applies section 52 of FOISA to the Scottish EIRs.  However, like the EIRs, the Scottish EIRs are designed to implement the 2002 Directive into domestic law.  The supremacy of EU law is further underlined by the Scotland Act 1998, which provides in section 57(2) that the Scottish Ministers have no power to make subordinate legislation (which the Scottish Regulations are) which is incompatible with EU law.  I don’t think that the Scottish Courts would find differently from the Supreme Court in respect of section 52 being incompatable with EU law when related to requests under the Scottish EIRs.  In the event that the Scottish Ministers appealed to the Supreme Court it seems unlikely that it would conclude differently (although it should be noted that at least one Justice would have found that Regulation 18(6) did not violate EU law).

Because of the timing of the Supreme Court’s decision, it means that there is little that can be done to prevent disclosure of the information that the Upper Tribunal decided should be disclosed.  The UK Parliament has now prorogued and dealing with the Supreme Court’s decision will require primary legislation. Parliament will be dissolved as soon as we hit 30 March; that means all of he seats will become vacant and there will be no MPs to pass legislation.  The deadline for the Government to comply with the Supreme Court’s decision expires before the election. Therefore, it seems almost inevitable that we will get to see the contents of these letters.

It should be noted that FOIA has been amended to make the correspondence from the Prince of Wales subject to an absolute exemption.  However, that does not affect the position under the EIRs.  The exceptions under the EIRs are different from the exemptions under the FOIA, although they broadly enable the same types of information to be withheld.  What this means though is that it is possible that further letters written by the Prince of Wales which relate to environmental matters may be disclosed in the future.

It is also worth noting that FOISA has not been amended to make the equivalent exemption in respect of correspondence with the Monarch, the heir to the throne or the next in line (i.e. The Queen, Prince Charles and Prince William) an absolute one.  It had been proposed by the Scottish Government, but was dropped.  Therefore, the full range of correspondence between the Prince of Wales and the Scottish Ministers is theoretically obtainable under FOISA and the Scottish EIRs, subject to the public interest test.

The law and historic cases: sensible or bizarre?

It has been reported by the BBC today that president of the ‘Association of Child Abuse Lawyers’ has said the way in which Rolf Harris was sentenced was ‘bizarre’. He is referring to the fact that in historic cases the judge passing sentence is limited to the maximum sentence that was available at the time of the offence. In the Harris case this was 2 years (or 5 years in the cases where the victim was under the age of 13).

There are a lot of historic sexual assault and abuse cases trundling their way through the justice system. It is right that, no matter how many years later, the perpetrators of these crimes face justice. However, there is a significant issue in such cases; whether it is a sexual offence or not. As time progresses and as Government’s change, the law too goes through change. If you’re prosecuting an individual 20 or 30 years after the offence was committed it is highly likely that the law has undergone several significant changes: that is true with the law surrounding sexual offences. In all cases historic offences will be prosecuted according to the law at the time the offence was committed. The other alternative is to prosecute them under the law at the time they are prosecuted.

Why do we prosecute historic cases at the time they were committed? Well, it’s about what is fair and just. Justice is not just about the victim, but it must equally be about the offender. It would be oppressive if the law were to treat offences committed decades ago as if they were committed today. It is a general principle of law in democratic countries around the world, especially in the realm of criminal law, that the law is not retrospective. That means that current changes in the law should not affect future consequences of past conduct. In other words, if you did something that was a particular criminal offence which attracted a particular maximum penalty, but by the time you are prosecuted the law has changed, you should be treated (as far as is reasonably practicable) as you would have been when you committed the crime. The same would be true if you committed a crime today, but the law changed substantially tomorrow: you would be dealt with as the law was today and not as the law changed tomorrow – even if there was no substantial delay in arresting, charging and prosecuting you.

In the Rolf Harris case he was prosecuted for the offences that he committed at the time. As such, the maximum penalty that was available to the court was that which would have been available at the time the offence was committed (2 years, or 5 in the case of offences relating to children under the age of 13). Specifically, in the case of Rolf Harris his sentence of 5 years and 9 months was made up of a mixture of concurrent and consecutive sentences for the various charges that he was convicted of. The sentencing remarks of Mr Justice Sweeny are available online and detail what the charges were and what the sentence was for each charge (and whether it was to be served concurrently or consecutively). You can read the sentencing remarks here.

When it comes to sentencing cases like this one where there has been such a delay in bringing the offender to justice, it is not the job of the court to try and fix the sentence that would have been given at the time. The judge must have regard to the sentencing guidelines that are currently in place; however, they cannot pass a sentence which would exceed the maximum available at the time the offence was committed. I blogged in this issue last year looking specifically at the law of England and Wales, you can read that blog here.

Sentencing is always a complex matter, but it is even more complex in these cases. While there will, quite understandably, be no sympathy for people like Rolf Harris; the law must be fair and it must be just. That applies to victim and offender and so the law must not be oppressive by prosecuting people for more serious offences than what they committed (while under the current law they may well have committed the more serious offence, they did not actually commit that offence because they offended at a time when the law was quite different) or by giving them a sentence that is in excess of the maximum that was available at the time they committed the offence.

I won’t make any comment on whether I think the sentence Rolf Harris received was too harsh, too lenient or about right. I understand that the sentence has been referred by someone to the Attorney General and it is now for him to decide whether he thinks that it is unduly lenient and whether it ought to be referred to the Court of Appeal. When he is doing so he will have regard to the sentences passed, the law as it was at the time the offences were committed the present sentencing guidelines and no doubt the totality of the sentence passed. My understanding of the law is that the Attorney General has 28 days to decide whether he is going to refer it to the Court of Appeal. Even if the Attorney General decides to refer it to the Court of Appeal they may refuse to hear the case or decide that the sentence should remain the same: a referral does not mean that the sentence will increase or that it was unduly lenient.

Another blog on Corroboration

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

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

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

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

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

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

Abolition of Corroboration: where is the case?

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

Right at the outset of his interview he said:

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

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

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

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

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

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

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

No matter how trivial the offence, and how high so ever the credit and character of the witness, still our law is averse to rely on his single word, in any inquiry which may affect the person, liberty, or fame of his neighbour; and rather than run the risk of such an error, a risk which does not hold when there is a concurrence of testimonies, it is willing that the guilty should escape.

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

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

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