My sources close to Crown Office and the Justice Department have been able to locate for me the working draft of Mr MacAskill’s latest press release, designed to accompany the next stage of his proposals to “modernise” and “improve” Scottish criminal law.
After all, this follows a week where the Bill bringing to an end the need for corroboration in Scottish prosecutions has been published, despite the united opposition of the judiciary, the Faculty of Advocates and the Law Society of Scotland and where the future of the “not proven” verdict has again been placed under scrutiny, with the clear intention that it disappear too.
The draft below might never see the light of the day, and there are clearly a few parts for the Minister to tidy up. Maybe the Justice Secretary will decide that the latest proposals might be far enough to go.
Or maybe we will wake up soon to see the following in our morning papers…
Now, over to Mr MacAskill with the latest statement. You will see from the various strike throughs that it is a draft, and I suspect some civil servant has tried to tone down the Minister’s triumphalism.
Justice Secretary Kenny MacAskill said: “All recent crime figures show that recorded crime in Scotland is now lower than the last time it was higher. I announced in June that we were determined to have a justice system that is efficient and streamlined and the changes we put forward then were designed to move towards that goal.
“You will recall that I said that those reforms were targeted to strike a balance between strengthening the powers available to police and prosecutors, while protecting the rights of the accused. No one laughed when I said that, to my astonishment.
“You will also recall that I have said often that I believe that the requirement for corroboration had to be abolished as it can represent a barrier to justice. I decided that this rule was outdated. Just because Scots law had it for hundreds of years and even though it was seen as the cornerstone of Scotland’s unique legal system, these were not reasons for retaining it. After all, would we still rather use a horse and cart or a sports car, or live in a croft fuelled by peat or in a mansion powered by gas and electricity?
“You will also recall that I viewed the corroboration rule as one which can deny victims the opportunity to see those responsible for serious crimes brought to justice. Basically you see it means that guilty people get away with it.
“I also announced that removing the need for corroboration represented a move towards focusing on the quality of evidence rather than quantity. And remarkably nobody laughed at that either!
“The changes I am announcing today are a further part of our Making Justice Work programme. This aims to create a justice system fit for to a modern democratic society – one that contributes positively to a flourishing Scotland, helping to create an inclusive and respectful society in which all people and communities live in safety and security, where individual and collective rights are supported and where disputes are resolved fairly and quickly.
“I have therefore taken the issues mentioned above and moved them to their logical conclusions.
“We abolished the need for corroboration because, to be frank (and I am not referring to the Lord Advocate), it allowed the guilty to go free. How can victims’ rights be respected where people who are criminals can be released? Any acquittal is a slap in the face for a victim – and adds insult to their injury. After all, nobody, except for criminals, ever tells less than the whole truth to the police.
“As I mentioned, the rejection of the need for corroboration came about because of the desire to look at the quality of evidence rather than quantity. It was well known that two witnesses, especially of police officers, were almost always believed, without the courts considering if that evidence was truthful. However, sometimes the evidence of the two witnesses or more contradicted itself leaving Sheriffs and juries confused about how they could convict the criminal guilty person crook accused.
“We therefore decided that we would eliminate this confusion by only choosing the best witness for the prosecution – as there will be no need for corroboration, we can prevent sneaky defence lawyers trying to show that there is reasonable doubt.
“After all, how can there be doubt? Our fine national Police force would not report anyone to the Fiscal unless they were guilty, and our Crown Office, led as it is by career prosecutors who know that getting convictions upholding the interests of justice is their goal, would not bring proceedings against an innocent person.
“Indeed, as recognition of the fact that we only prosecute guilty people, we restricted rights of appeal to the Supreme Court and allowed the High Court to reject cases sent to it by the Criminal Cases Review Commission if this might undermine the certainty of a verdict, even where the verdict was argued by lily-livered do-gooders as wrong.
“As well as the intention therefore to abolish the verdict of not proven, we have also decided to abolish the verdict of not guilty. Juries therefore will be directed to return a guilty verdict in any case where a plea of not guilty is tendered. This will act to uphold the rights of the victims, whilst also reducing the financial pressures on the court system. No longer will we need to devote days and weeks to long and boring trials. No longer will Police witnesses have to sit drinking tea in court waiting rooms. No more will we need to inconvenience hard-working members of the public by dragging them to court as witnesses and to face lawyers who will accuse them of telling lies. Instead the combination of our Police and Prosecution agencies will provide all the safeguards an innocent person will need.
“We are also answering those who say that we are tilting the playing field against the accused by saying that of course we are. After all, the accused is a criminal! But we have agreed to provide more resources to the Duty Solicitor scheme so we don’t get picked on by the European Court of Human Rights.
“Therefore I can announce that I have appointed Horace Rumpole, a 25 year old solicitor from Stirling, to be the Duty Solicitor for Scotland. He will be provided with a phone allowing him to speak to every police station in the country, and any criminal we arrest will be entitled to see the Duty Solicitor. The Duty Solicitor will be given Legal Aid to represent any client in any court although we will not allow him to farm out cases to anyone else, as this would dilute the high standards we will require of Horace. So, if he is in court in Ayr and a murderer is in Aberdeen, we will provide that villain with a card saying ‘Horace the Duty Solicitor says plead guilty’ thus complying with our obligation to provide free legal advice.
“Why should we have Duty Solicitors in every court district in the land, being paid literally tens of pounds for acting for criminals? The safeguards we have introduced mean that only guilty people will need the Duty Solicitor, so even if Horace is on holiday, it won’t stop justice being done and victim’s rights upheld.
“As for those who will bleat and moan about the damage this will cause to lawyers, then I don’t care. I got out of the legal profession years ago and if my former colleagues were daft enough to stay, then that is their fault. (Minister, perhaps that strikes the wrong tone?) However criminals will still be allowed to choose and pay their own lawyers but on conviction we will arrest their lawyers as receiving proceeds of crime. After a very short time we will not see any desire on the part of the lawyers to risk their own freedom just to act for criminals.
“So all in all, what will we have?
“We will have ONE verdict – guilty – thus upholding victims’ rights and avoiding confusing juries.
“We will save millions of pounds spent on defending criminals under Legal Aid. For too long hard pressed criminal lawyers have had all the advantages of working for less than £50 per hour to defend the crooks they represent as opposed to the burdens that our thousands of Police and hundreds of Prosecutors have worked under.
“We have strengthened the Duty Solicitor, and have even provided Horace with an answerphone so he can receive messages when on the phone.
“Having abolished the need for corroboration, we have taken the next step and abolished the need for evidence.
“We have listened to the people whose judgement we respect and acknowledge – the press – and ignored the special interest groups, like the judiciary, the advocates and the solicitors, all of whom have been involved in finding criminals not guilty in the face of a police officer saying that they were guilty. And, as all of these posts are of hundreds of years standing, the next step will be to consign them too, like the need for corroboration, to the dustbin of history.
“As I said this Government is proud to be creating a criminal justice system which is fit for the sixteenth century the twenty first century.”
**Please note, that what is written above is NOT a genuine statement by Mr MacAskill. It is my attempt at humour/satire. After all, no respectable or responsible government would consider acting in such a manifestly unjust manner.
On a serious note, what this Government has shown, and which is replicated in Westminster, is a desire to treat an accused as guilty and to make the chances of acquittal, which are not high anyway, even lower.
Expanded rights of appeal for the Crown, combined with the abolition of the age-old rule against double jeopardy mean that a man, or woman, who walks free from a court “without a stain on their character” can no longer treat the episode as over. They will frankly never know if, at some indeterminate point in the future, some “new evidence” will appear and the Crown will attempt to have a second, or third or fourth bite at the cherry!
At the same time restrictions on the rights of a guilty person to appeal, including tightening up of time limits for doing so, will mean that almost certainly we will have more innocent people languishing in Scottish gaols than we already have.
I was at a local Sheriff court last week – most of the lawyers who do criminal defence work were the same ones who were doing it ten years or more ago. Apart from the hair being a wee bit greyer, and the waists a wee bit bigger, and the faces a bit more wrinkled, it could have been 2003 or even 1993. But the optimism of the criminal solicitor seems to have long gone, as they face ever greater difficulties in getting paid for the work they do, at the minuscule rate offered. At the same time the pressures on them get greater and greater and the responsibilities to clients ever more onerous. Their focus is, as it always has been, on doing the best job for the client. But resources to do so are stretched ever thinner. And if they do not do the work, then the Public Defender will do so, or else we will be on the fast track to contracting, where in each Sheriffdom one or two firms will get the contract to do the work, cutting costs to the bone to keep people in work.
Or else some organisation like Eddie Stobart will try to move in to get the contracts (and that is NOT a joke – Stobarts see themselves as poised to take over a major chunk of the English legal market).
Graeme Pearson, the Labour MSP who was formerly Head of the Scottish Drug Enforcement Agency, and who has consistently shown himself to be, in my opinion, one of the few outstanding Members of the Scottish Parliament, made a very telling comment in the Committee Stages of the Offensive Behaviour at Football Bill. A fellow member of the Committee had asked the Police representative who was giving evidence to the Committee whether or not the police wanted the new powers which came with the Bill.
After the Assistant Chief Constable had answered that the police would welcome them, Mr Pearson pointed out that, in his experience the police NEVER turned down new and additional powers.
In the same way, neither the Police nor Crown Office can be expected to reject changes which will make their jobs easier, even where it would be right to reject them.
The need for corroboration is not some ancient traditional relic kept for the sake of history (such as the robes judges wear or the wigs on their heads) but something which was an integral part of the system and a protection against miscarriages of justice.
We are not on the brink of a police state. But changes in the Scottish system in recent years are not designed to protect the rights of the accused – after all, only the guilty need lawyers. (And let’s ignore the fact that, should Mr MacAskill ever be prosecuted for anything, he would seek the very best legal representation to defend his freedom rather than rely on a lawyer chosen for him because his employer put in the lowest tender – but that would be OK because Mr MacAskill is clearly not a criminal).
And finally, Mr MacAskill’s statement about the changes proposed this week can be read here. That is the real statement.
Now, can anyone read it and work out what on earth he meant about focussing on the quality of evidence and not the quality? Would it be unfair to accuse him of mouthing meaningless sound-bites?
A politician – talking nonsense? Heaven forfend!
Posted by Paul McConville