A Phony Consultation? Corroboration on its Way Out, Despite the “Divide” in Legal Opinions?

A fine example of the openness to differing opinions and the advantages of the Scottish system of consulting about legislative plans comes from the debate regarding dramatic changes to the Scottish criminal justice rules, including the abolition of corroboration, as recommended by Lord Carloway, in his recent review.

From the Law Society of Scotland Journal Online:-

Justice Secretary Kenny MacAskill has hinted that the Scottish Government is likely to proceed with its plans to abolish the corroboration rule in Scots law, despite the opposition of many in the legal profession.

In his speech to the SNP conference at the weekend, Mr MacAskill acknowledged the opposition to the change, which was recommended in Lord Carloway’s review of criminal evidence and procedure published late last year but has recently been opposed in submissions by the other Scottish judges, the Faculty of Advocates and the Law Society of Scotland, as well as local bar associations.

The Scottish Police Federation has also come out against the move, although it is supported by the Association of Chief Police Officers in Scotland.

Opponents of abolition fear that it would lead to an increased risk of miscarriages of justice, and have called for a wider review that would also look for example at changing the rule that eight out of 15 votes on a jury are enough for conviction.

Supporters of the proposal include organisations supporting victims of sexual crimes and domestic violence, the offences that can be the most difficult to prove when supporting evidence is required.

Mr MacAskill said it was “hardly unprecedented for there to be a divide in legal opinions amongst learned friends”. He said he would give “significant weight” to opposing opinions, but the issue was not just about the legal profession or law enforcement agencies. “It’s also about those who are victims of crime – especially women who have suffered injustice in private and behind closed doors”, he stated.

So we have a “divide in legal opinions”.

On one side we have the following:-

The Faculty of Advocates

The Law Society of Scotland

The local Bar Associations

The Scottish Judiciary

And on the other, we have:-

In addition, whilst the Association of Chief Police Officers in Scotland approves of the changes, the Scottish Police Federation does not. The reaction of the body representing the rank and file police officers to proposals which, on one view, make it far easier to obtain convictions, is a telling one.

As MSP Graeme Pearson, and former head of the Scottish Drug Enforcement Agency, said during the debate in Committee regarding the Offensive Behaviour Bill last year “When do the police ever reject new powers?”

Yet here, in the interests of justice, they are doing so.

Despite all that however Mr MacAskill states:-

“It’s also about those who are victims of crime – especially women who have suffered injustice in private and behind closed doors”.

“Hard cases make bad law” is a saying law students hear at an early stage, and the making of dramatic and wholesale changes to the entire criminal system of criminal justice in Scotland, including the bulwark of the system and symbolic of its separate and distinct nature, corroboration, simply to improve conviction rates in a narrow band of cases seems ridiculous.

However, Mr MacAskill has cleverly cast those opposing the changes as being against the “victims of crime” and the hint given to the public and the media is that, whilst all these lawyers are bending over backwards to protect the criminals, only the SNP, Crown Office and Lord Carloway are standing up for the victims.

That message is entirely wrong, and I am sure that, if pressed, Mr MacAskill would deny that was his intention, yet how else are we to take his comments.

And this couples with my post yesterday regarding the double jeopardy rule, and the ongoing investigation into the man acquitted of the Lockerbie bombing. After all, the Scottish Law Commission, when giving a guarded welcome to the proposal regarding the lifting of the double jeopardy restrictions recommended it should not have retro-spective effect, meaning that those already acquitted prior to the passage of the new law should not face the ordeal off being brought back to court.

Mr MacAskill rejected this and insisted that the law be retro-spective, meaning that any number of historical cases, where the Crown considered that there had been wrongful acquittals, could potentially be re-opened.

Let us jump forward a few months. Let’s imagine that the Carloway proposals have passed through Parliament, undiluted, and indeed “enhanced” to “protect victims”.

Is it not inevitable that the requirement for corroboration will go, and at the same time a suitable amendment to the Double Jeopardy Act will be passed, ensuring that a case can be re-raised simply on the grounds that there is no longer a need for corroboration?

After all, we want to do everything to catch the criminals, and protect victims, even where the “criminals” have already managed to “get off”.

I hope I am wrong, but I see the long-established and unique qualities of the Scottish criminal justice system disappearing down the plug-hole of populist politics.

Posted by Paul McConville

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23 Comments

Filed under Cadder v HMA, Criminal Law, Double Jeopardy, General Scots Law Rambling, Politics, The Scottish Ministers

23 responses to “A Phony Consultation? Corroboration on its Way Out, Despite the “Divide” in Legal Opinions?

  1. I am learning everyday on your site Paul, I wish had got stuff like this at school instead of French, art and such like. This is stuff everyone should have at least some education in, without having to break the law first.
    By the looks of it a brand new Independent Scotland is going to be quite a draconian society. The double jeopardy thing as you point out is going to be open to all kinds of abuse, but this no corroboration thing is a real attack on innocent until proven guilty ethic. Although my heart goes out to victims of crimes that cannot be prosecuted for lack of corroborating evidence, Scotland as a society cannot afford to let this situation to come to fruition. How many miscarriages of justice will it take to reverse this way of thinking? Since it is being introduced under a change for the better banner, but looks like political point scoring, it is something that should worry us more than ‘does Green have the readies to run Sevco’?

  2. Marching on Together

    This is nothing to do with the victims of crime but all to do with the fact that the SNp and supprot for independence have lagged amongst women compared to men. The calculation the SNP make is that they give the feminist wimmin what they want in terms of locking up any man on the say so of any vengeful woman alone, then that will help sway the female vote when the time comes.

    If Thatcher had proposed any of this, she would have been crucified in Scotland for it. That is always a useful test to apply to proposals like this.

    Expect shortly to see legislation proposed to make it a criminal offence to insult Scotland, its government or its leaders, as that is the way we are heading under this illiberal regime.

  3. Marching on Together

    MacAskill is clearly of the view that better ten innocent men go to jail than one guilty man go free. If he is still a member of the Law Society of Scotland, he should be struck off.

  4. diaryofafailedhuman

    When it comes to the Justice brief, MacAskill is fond of saying that he will listen and engage with the experts/practitioners. Clearly this is only the case when they agree with the position he’s already fixed upon. His record of engagement with the legal profession is, quite frankly, laughable.

    With regards to allowing double jeopardy rules to apply retrospectively – this sets a dangerous precedent. If we follow this example, what’s to stop a government from criminalising actions which are currently legal and then retrospectively prosecuting previously law-abiding citizens? Far-fetched? Perhaps, but I do not trust this government on legal issues. Their strategy on Scottish criminal justice was laughable. There was no strategy – merely a glossy PR document.

  5. Brian J

    It seems to me that there is a great deal of scaremongering afoot by those who oppose these changes. I think that Lord Carloway went to some length to explain the rationale behind his view. He explains that the requirement is virtually unique in western judice prudence whereby all of the others are content to give due weight to the credibility of evidence and not just to the number of sources of it. Additionally we still have the additional protection of “that bastard verdict” of not proven. I can also say that the views of the Scottish Police Federation may well be reported as the views of the rank and file but I can tell you that it cannot be said to represent the views of the rank and file because the rank and file were never asked.

  6. I think it is all too easy to get a bit carried away with this. Suggesting that it is all part of some SNP plot to win votes or even just to stick two fingers up at the legal profession undermines the seriousness of the issues at stake.

    Try looking at it another way.

    Scotland does not lead the world on the corroboration rule. Rather, it now lags behind almost all developed countries in maintaining it. It could be argued that corroboration was essential where the quality of policing, courts and the legal profession were not nearly as high as they are now. In circumstances where the police, judges and solicitors let defendants down regularly, corroboration can be seen as a hurdle to miscarriages of justice either through corruption or incompetence. With better and more professional policing, judging and solicitoring, not to mention better educated juries, do we really need the added safeguard of corroboration?

    Then there is the argument that it is a fundamental-principle-of-a sledge-hammer to crack the nut of difficult-to-prove crimes like sexual assault and child abuse. Who are we trying to protect here? It seems pretty obvious that there have been significant changes regarding what is socially acceptable in the last two or three generations. Crimes against women and children, especially, are probably no more prevalent these days; but they are certainly much less tolerated. The Savile business shows that up perfectly. Something has clearly changed in recent times and the criminal justice system must change with it. However much cherished the rule clearly is by those in the legal profession, I would suggest that the rights of the weak and vulnerable are more important in a society like ours, especially where we have the wherewithal to build in other safeguards against the miscarriages of justice that abolishing corroboration might make more likely.

    I am tempted to counter your ad hominem argument, Paul, with stuff about crusty old men in wigs guarding their turf, and that of previous commenters with stuff about anti-independence activists not missing an opportunity. But I won’t.

    • Marching on Together

      “With better and more professional policing, judging and solicitoring, not to mention better educated juries” Have you been asleep for the past 30 years? None of this can be shown to be the case, in fact much the opposite in some respects.

      “the rights of the weak and vulnerable are more important in a society like ours” There is no-one more weak and vulnerable in our society than someone who has been accused by the state of a crime which they did not commit. Tell you what, let’s not bother with trials at all, and just let The Sun decide the sentence based on how photogenic the victim was.

      • Finding out how bad people were in the past does not mean they are getting worse. It means it is getting harder for them to be bad. Not quite the same as better and more professional, granted, but reasonably easy to deduce even for someone asleep.

        We can agree to disagree on who needs our protection most. My point is that with the corroboration rule, the weak and vulnerable sometimes do not even get the chance to face their accuser in court and where they do, the judicial system places an inadvertent obstacle in their way with the corroboration rule. Innocent people facing reasonable or malicious charges have a greater prospect of justice without corroboration than do abused women or children without separate sources of evidence with it.

      • Brian J

        These proposals do not suggest that the police or the crown will no longer be required to seek the best evidence at all times. All that is proposed is that when the best evidence is credible but not corroborated the Crown can still rely upon it as part of their overall case. There will still be a sufficiency test whereby the crown will require to satisfy a jury that sufficient credible evidence has been presented to convince them beyond a reasonable doubt that an accused is guilty before they convict.

    • carl31

      It seems pretty obvious that there have been significant changes regarding what is socially acceptable in the last two or three generations. Crimes against women and children, especially, are probably no more prevalent these days; but they are certainly much less tolerated.

      Nonsense. Social acceptability has not changed, nor has tolerance – its the perpetrators getting off on the ‘authority ticket’ that’s reduced, and how generally easy it might be to get away with stuff. Secrecy in society is less prevalent, and there is a greater compulsion of those in police and social services to believe, not dismiss, the vulnerable and take claims of wrongdoing seriously.

  7. John Burns

    Typical SNP tripe, and after today’s proceedings – how many other things are they lying about.

    A severe warning to the minority Catholic/Irish population of Scotland, many who frequent this site and who, unbelievably back the SNP, mostly due to their dislike of all things Rangers – can you now believe the SNP liars on anything and importantly on the continuation of Catholic schools? – if they can do an about turn on NATO and lie about Europe – what else are they hiding in their quest to separate Scotland from the UK, at ANY cost.

    The whole independence game is now a bogey – October 23rd is a watershed!!!

    • Brian J

      Ad hominen for sure! Just a political statement… No mention of the topic under dscussion😖😡😟

      • John Burns

        Brian, a lying and duplicitous administration leaves itself open to criticism and ridicule on any subject and undermines their authority on all.

        Salmond’s corroboration for the bogus legal advice on the EU appears to have been his ‘inner circle’ all lying in unison and covering things up by legal procedures to thwart FOI.

        By bringing court action to appeal against revealing information that was never there is tantamount to contempt of court, in my book.

        Ad hominen – just a political statement, you say – no Brian all I say and have said is relevant – remember, as justice minister MacKaskill is involved in all legal situations that affect government – no doubt he was a party to the EU deceit and yet he wants to ride roughshod over other eminent legal minds in the country.

        It is obvious to me that you are a SNP sympathiser – it is a wonder that you did not use their ‘wee-worn’ retort to anyone who disagrees with them – “SCAREMONGERING”

        • Brian J

          Please beleive me when I say that I am not a apologist for Alex Salmond, Kenny MacKaskill or the SNP in general. I have a healthy scepticism (verging on a deep mistrust) for politicians of all persuasions. The point I was making was that you are attacking the veracity of the individuals involved rather than discussing the merits, or otherwise, of the specific proposals. Even bad people (if that is what you believe them to be) can have good ideas.

        • carl31

          By bringing court action to appeal against revealing information that was never there is tantamount to contempt of court, in my book.

          Not quite true. The Scottish FoI Commissioner ruled that the existence of the legal advice should be confirmed or denied, not the contents of any advice, should it exist.

  8. Thomas

    I was proud of Scottish Law until Locharbie, no Jury? Not defendable

  9. Brian J

    Far from perfect but I think that was a pragmatic solution to exceptional circumstances. Absent such a solution the evidence that exists, such as it is, would never have been aired in any court and the victims, their families and the public at large would be much less informed.

  10. Scots

    Although agreeing that corroboration should not be dropped,i will say what Andrew won’t,and that is that i am sick to death of the anti snp(closet unionists) jumping on every article that’s printed here(on any subject).And yes i am an SNP sympathiser John,and you should know about lying and duplicitous administrations if you have supported the previous Scottish ones.
    John Burns,Alex Salmond has these pygmy labour politicians tied in knots.Listen to the interviews he gave,he may indeed be implying what his opponents want to hear,but when he states repeatedly that he cannot talk about advise or wether he has even received any,then their assumptions are only that,mere speculation.As for people being on here and supporting the SNP being unbelievable,your rabid unionist stance is way more unbelievable to find on here,imo.

  11. mick

    Marks back in top form as ever well done how can we thank him what a guy the small creditors must be well happy there is some1 fighting there corner

  12. mick

    @brian j ,is there a criminal charge of perjure am not sure of legal terms of lying to a lord of the court but surely the police should step in as the courts have been mislead here and rfc fans the blue knight would have had the newco at the heart and want good for them while green just wants to fleece them its all mucky now and creditors and fans that lost shares have been conned am wondering what else was said and what will whyte reveal next lol it was a quiet week as well

    • Brian J

      Mick
      To deliberately mislead the court would be a contempt for which stern sanctions are available. Lord Hodge has already ordered an enquiry into the Duff and Phlops administration and in particular whether there was a conflict of interest. His Lordship will no doubt already have received written submissions from D&P defending their position. If these latest reports give His Lordship reason to believe that D&P have lied to him there could be serious repurcussions far beyond the simple witholding of their entire £3m+ fee. They could face criminal sanction.
      I don’t know enough about the civil law or about insolvency law in particular but I suspect that it may be open to the court, if it saw fit, to set aside the entire adminisistration process and start it all afresh. Perhaps Paul or some of the other more informed posters to this site can offer a view on that.

  13. Proud Scot

    Change of subject – apologies ! But I’m surprised you haven’t picked up on this interesting article on BBC website. Although I expect you’re probably dissecting it as I type !!!

    http://www.bbc.co.uk/news/uk-scotland-glasgow-west-20074388

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