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.
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