Case proved?

It takes a brave lawyer to propose the outright abolition of one of the most cherished tenets of his system. In the view of many, Lord Carloway’s recommendation to end the corroboration rule in Scots criminal law would open a veritable Pandora’s box. But this was only part of a much wider focus for his review. So what is that bigger picture, and what scenarios are being painted for the way ahead?

The UK Supreme Court decision in Cadder, in October 2010, held that purported checks and balances in Scottish criminal procedure, said to guarantee fairness in the trial process, did not compensate for the disadvantage caused to an accused who made a self-incriminating statement during an initial interview in police detention without access to legal advice, and that such interviews infringed the ECHR article 6 right to a fair trial. One of those checks and balances is the corroboration rule, and it was specifically mentioned among the matters to be reviewed in the light of Cadder, in Lord Carloway’s terms of reference.

Did Cadder really make it necessary, however, to re-examine such pillars of our system? Questions to that effect, challenging the need for the emergency legislation passed in the wake of Cadder, went unheeded in Holyrood at the time, but are still being raised.

Need for action?

“There was no emergency and many found it incongruous that article 6 rights were to be upheld by an extension in police detention powers,” says John McGovern, a former President of the Glasgow Bar Association. “There is a further contradiction in that evidential burdens are now being relaxed as a result of procedural requirements.”

I put the point to Lord Carloway, in an interview secured during press time on the morning his report was published. His response: “The Cadder decision had wide implications across the board, because it said to us that our system was out of kilter with the European Convention. Even though the decision itself dealt with a particular point, that was an indication that we really ought to look at the whole range of activities, from detention of the suspect right through to the determination of their appeal, to see what else required examination. Because there was no point in waiting for another Cadder decision to cause disruption in the system – we had to get it right now.”

Equally, although he recommends the reversal of the provision that introduced a “gatekeeping” role for the appeal court in relation to references from the Scottish Criminal Cases Review Commission, he does not criticise the hasty passing of the legislation.

“As a result of Cadder I have no doubt that immediate legislation was required to allow the system to operate in a reasonable way, to allow the continued effective and efficient prosecution of crime... It was recognised at the time of the Act that it was emergency legislation, that there would be this review, matters would have to be re-examined over time; and we’ve decided some changes are necessary.”

Counting the hours

Another point on which the review draws back from the emergency Act is in the periods of permitted initial detention. The Act raised the limit from six hours to 12, with a possible extension to 24; Carloway recommends no more than 12, with a senior officer (inspector or above) requiring to review further detention after six hours. In support of this he cites police data showing that since the 2010 Act, the average period remains well within six hours, but while 15.7% of cases have run to between six and 12 hours, fewer than 0.5% have exceeded 12 hours.

Carloway emphasises the presumption of liberty, in line with his explicit intention of rebasing Scots law on the Human Rights Convention. He believes, for example, that a maximum of 36 hours should be spent in police custody prior to appearance in court, with courts sitting on Saturdays if necessary to achieve this. His focus has been welcomed by the Scottish Human Rights Commission, as commissioner Shelagh McCall told the Journal.

“At the time of the emergency legislation we invited MSPs to vote against the 24 hour maximum as unnecessary and disproportionate, so we’re pleased to see that repeal being recommended,” she said. “We would have preferred I think a return to six hours with an extension to 12, so that you had a focus on the six-hour rather than the 12-hour point, but we’ll see how that plays out in practice.”

How to draw the line

On the point at the heart of the Cadder decision, the respective rights of police and suspect during initial questioning, Carloway recommends a considerable recasting of the law. Arrest should be the sole general power to take a suspect into custody, with detention as a distinct legal status being abolished; it should be on stated grounds and on a threshold of reasonable suspicion of commission of a crime, but not necessarily accompanied by a charge; further detention should be on statutory grounds, and normally confined to imprisonable offences; and the police should be expressly empowered to continue questioning after arrest and detention. They should also have power to grant liberation for up to 28 days pending further investigations; any unused part of the initial 12 hours’ detention may then be exercised.

As for the suspect’s rights, a line is drawn depending on whether they are detained (in the non-technical sense of the report) in a police station. If not so restrained, Carloway believes it sufficient that the standard caution prior to interview be amended to add that they have the right of access to a solicitor if they wish. Those detained, however, should have access to a lawyer – meaning an enrolled solicitor – regardless of questioning, as soon as practicable. Professional guidance should be formulated in relation to provision of advice; no change in practice is required as respects attempting to secure the solicitor of the suspect’s choice.

“We have made different recommendations depending on different circumstances”, Lord Carloway explained, “the thinking being that the person who has not been arrested and detained is free to consult a lawyer if he wishes to do so.”

His recommendations are not so expressed, but Lord Carloway’s report does acknowledge the effect of the “sons of Cadder” Supreme Court decisions in Ambrose v Harris and its sister cases (6 October 2011), that if a suspect has been restrained in some way, with a “significant curtailment of his freedom of action”, he has to be regarded as if in police custody and afforded the right of access to a lawyer.

How all this would work in practice is the subject of differing views. Martin Morrow, of Falkirk firm MTM Defence Lawyers, claims it means that “if you’re the police, don’t restrict your suspect’s movement, just tell them to sit down, and get the kettle on and have a wee chat”, whereas it’s in the suspect’s interest to get themselves taken to the station – meaning that only the stroppy ones will end up getting a lawyer? With its reluctance to go beyond anything laid down by the Human Rights Court in Strasbourg, he adds, “Ambrose is a retreat from the general idea that you have a right against self incrimination, and to be a practical and effective right you must get access to a lawyer. It’s not much use getting access to a lawyer after you’ve made some admission on your own.”

Cameron Ritchie, President of the Law Society of Scotland and a member of the Society’s working party on Carloway, isn’t convinced it’s quite as black and white as that. Welcoming many aspects of the review, he says: “I think that in attempting to simplify the concepts of arrest, detention etc, he’s attempting to get back to the basis of what’s in Salduz v Turkey and Cadder, that once people are taken into custody, whatever custody happens to be, they have specific rights of access to legal advice. I don’t take the view, though I may have to read it again, that you specifically have to be in a police station. The key factor is whether you are under a compulsitor from the police.”

He adds that the recommendation for a letter of rights for every arrested and detained suspect, something the Society has suggested over a number of years and which is currently in a draft EU directive on the right of access to a lawyer, is a good idea.

Shelagh McCall says the SHRC shares the concerns over the possible creation of a grey area as to when you are entitled to a lawyer. For those not in police custody, she explains, “we would have liked Carloway to have gone slightly further: we gave him an example of New Zealand practice where if the police come out to see or interview someone, under caution, they tell them of their right to legal assistance and they hand them a mobile phone to be able to phone a lawyer, so the police facilitate access in that situation.” This, she adds, would help ensure observance of article 8 as well as article 6 rights.

But who?

Morrow has further very practical concerns about how it is all supposed to work: who is actually going to provide the advice, and how will it be paid? “The report is very quiet about funding”, he observes. “That struck me as very odd. The Scottish Legal Aid Board has indicated that they are taking time to consider the report. But you would think the report might have interacted with them to see what the funding position was.”

He believes Carloway is proceeding on the basis that practitioners can avoid being on call 24/7 by sending out junior lawyers or second year trainees, for example. “But there aren’t any. I don’t know about Glasgow, but in Falkirk there has been one criminal law trainee in the past 12 years. There are only 12 criminal lawyers in Falkirk. We’re all in court. And then we get phoned through the night. So if they want access to a solicitor, how do we get up and do a jury trial at 10am?” Such is the effect of years of frozen legal aid pay rates, on top of which came the recent 20% cut. If we get Saturday courts on top, he adds, “you’d have to massively expand the PDSO. Or pay out the money to train somebody.”

The case against

Inevitably, our commentators have most to say on the corroboration issue. It is worth first of all outlining Carloway’s reasons for proposing to abolish the “archaic” rule, which on paper appear to have weight. Founded in Romano-canonical rules, the requirement was modified or abandoned in the English and continental systems from about the 18th century onwards, but for some reason not in Scotland. Here, instead, alterations to the rule in an attempt to prevent technical acquittals “led to a situation in which the modern law of corroboration became difficult to understand by anyone not schooled in the law of evidence… even the judiciary may disagree on what it means and how it is to be applied in an individual case”.

Tackling the principal justification for the rule, that it prevents miscarriages of justice, the report maintains that the real protection against miscarriage is the standard of proof. It claims: “There is nothing to suggest that Scotland has a lower miscarriage of justice rate than any other jurisdiction in the civilised world.” Further, it could be said to be a miscarriage if a prosecution cannot be brought because there happens to be insufficient to support a single credible and reliable witness: the report cites research findings commissioned from Crown Office that between half and two thirds of 600 solemn cases not proceeded with in 2010 due to insufficient evidence, could have been prosecuted with a “reasonable prospect of conviction” without a corroboration requirement.

Arguing that the focus should be on quality rather than quantity, there are many circumstances, it says, where the testimony of a single independent witness is much more persuasive than a multiplicity of witnesses who may have been involved in an incident.

Asked what he would say to lawyers concerned at his proposal, Carloway assured me that the review had taken the numerous representations into account, “but ultimately we were not convinced – in fact, we concluded the opposite – that corroboration actually serves a useful function so far as the course of justice is concerned”. Accepting that he is proposing to place greater trust in the good sense of juries, he added: “The system has to have trust in its decision makers. If we did not, the system would have to be changed. But in recent research done into this question in the Edinburgh Law Review, [14, p225 (2010)] somebody asked judges how many times they disagreed with juries. The results of that were relatively startling: very seldom.”

Knock-on effects?

Such reasons have not persuaded the Journal’s other interviewees, who believe that a full in-depth study is needed before we take any step towards abolition.

Prefacing her remarks with the caveat that the SHRC wants to study the report and produce a considered response, McCall accepts that the presence or absence of a corroboration rule does not in itself raise human rights issues, the key point being whether the article 6 right to a fair trial is made effective, but comments: “Our main concern and the thing we want to think about a bit more, is the proposal that you just abolish corroboration simpliciter without putting in place any other changes or safeguards to protect accused people, and also protect victims and witnesses, so there’s a potential danger for both sides of a criminal case if I can describe them in that way.”

The current rule, she suggests, may prevent some unjustified attacks on credibility and reliability: if evidence is supported by some DNA, or an independent eyewitness, the defence is likely to be presented in a different way. Whereas groups such as Women’s Aid say that complainers in sexual offences are still currently subject to groundless unjustified attacks on their character, “We need to think about whether that will be helped or hindered by abolishing corroboration, because it’s a situation that needs to improve from the complainer’s point of view,” McCall says.

Ritchie also believes that Crown witnesses could be in for more of an ordeal: “The defence would spend a great deal more time attacking the quality of the Crown witnesses that are coming forward. Dare I suggest that we would possibly begin to Americanise the system. Because it would all be about finding out about the backgrounds of witnesses and the detail of the case in a great deal more depth… That would make it an awful lot harder for people to come forward and give evidence in cases if they knew that personally they were about to be attacked.”

While he can accept that the rules need to be modernised and simplified, the principle still serves a purpose. “What I am saying, and we as a Society are saying, is that if you are going to take this step, you really need to do it in the context of the whole of criminal procedure and evidence. There needs to be good justification for a radical change, especially if you’re talking in terms of abolition. What else are you going to look at to balance it up? Do you look at jury verdicts, the majority rule?”

Morrow certainly thinks so, looking to the different English jury system. “I remember my dad telling me about a capital murder trial, and somebody was sentenced to death 8-7. An 8-7 verdict for believing her over him? We’d have to change that for certain.”

He has another defence perspective: “You very often find that the first witness in a case is credible, and you tend to find it’s the second witness on the Crown side, when you ask them questions, that the discrepancies come out. And sometimes the whole thing unravels.” He goes on to argue that the Crown will be under cost pressures to lead only the one witness.

Ritchie however points to the Crown duty of disclosure, which would enable the defence to lead any witness they think would show the case in a different light. And cost concerns might point the other way: “I think there will be implications in the sense that one-witness cases will likely always go to trial. I can’t imagine anybody properly advising their client to plead guilty on the basis of the testimony of one unsupported witness.”

Morrow, as does John McGovern, regrets the dilution that has already occurred of the strength of the doctrine as a safeguard for the innocent, as expressed in Morton v HM Advocate in 1938. “I think that corroboration now barely reflects its classic Morton definition,” McGovern says, “but it is still an important tenet. Privately, police officers will confide that they do not want to see corroboration go – for reasons of established procedures and officer safety – but they suspect that their superiors see its removal as a cost saving measure. If that view were to have any weight in the decision then it would be a sad day for our democracy. Politically, however, its removal is an open goal. Lord Carloway’s review has removed the goalkeeper.”

System needs saving

Whatever the outcome, and for all Lord Carloway’s fine words about “re-establishing Scotland at the forefront of law and practice of human rights in general”, Martin Morrow fears that we are watching over “the destruction of our system”, through lack of political will to ensure new practitioners come through as the older ones retire.

“The best analogy I can think of is that we’re running it as you would run a hospital, with only the consultants”, he says. “The consultants are doing 12 or 13 things simultaneously, which is why the system continues to work, but we don’t have any GHOs, SHOs, registrars, behind us.

“In Falkirk, of the 12 practitioners, five are in their 50s and five are in their 40s. What happens in 10 years’ time? Where are the people we’re meant to have trained? I’ve no idea.”

The message is not a new one, but Morrow believes there is still no incentive within the current political cycle to do anything about it. “That’s the real sad indictment on our system at the moment, I think. We are allowing it to fall apart.”

Carloway on:

Protecting the vulnerable

Children (extended to the under 18) and vulnerable adults (to be defined) should have the right of access to an appropriate adult if detained and prior to any questioning, Lord Carloway recommends. Waiver of the right of access to a lawyer should not be permitted for a child (unless aged 16 or 17 and the adult agrees), and should only be permitted to a vulnerable adult if the other adult also agrees.

The role of the appropriate adult should be defined in statute as assisting in ensuring that effective communication takes place, and in the case of a child in providing any moral support and parental care and guidance.

Questioning

“The common law rules of fairness concerning the admissibility of statements by suspects should be abolished in favour of the more general article 6 test.”

Adverse inference

“No change is made to the current law of evidence that prevents inferences being drawn at trial from an accused’s failure to answer questions during the police investigation.”

Appeals

Appeal should be permitted “from any pre-trial decision of a court of first instance, but only with leave of that court. Where the decision has the effect of… acquitting the accused of a charge,… the Crown should have the right of appeal without leave”.
 

Ancient but still of value

John Scott QC offers a personal critique of the proposal on corroboration, and the approach of the report in relation to human rights

Along with several others, I was a member of Lord Carloway’s reference group for his recent review. I was able to see at first hand the energy and enthusiasm which he and his team brought to an enormously challenging task. They can’t be faulted for trying to exhaust the terms of reference. I have an issue, however, with those terms of reference.

As the judges of the High Court said in their submissions to the consultation: "We reject any notion that because the Supreme Court has decided that a suspect must have the opportunity of legal advice before questioning, this, in itself, could justify removal of long-established evidential principles, such as the requirement for corroboration. In our view there is no logical link between the procedural right to legal advice recognised in Cadder and the evidential rules that apply in criminal trials.... We do not accept that the decision in Cadder, to the effect that an accused person has a right to have legal advice before being questioned, should necessarily have any effect on other rules of evidence."

I agree with what they said, and with their suggestion that corroboration could only be considered properly in the context of a much wider review by a Royal Commission or equivalent.

I find the case for abolishing corroboration to be unconvincing. There is much in the report on the history of the rule, leading to a suggestion that it is “archaic”. It may be old, but I believe that it continues to serve a purpose in helping us to avoid miscarriages of justice. That these avoided miscarriages cannot be quantified does not detract from the point.

I also find rather artificial the work done for the review which suggests possibly two thirds of cases being proceeded with which are currently discontinued. As I read the report, it is suggested that we should abolish corroboration but not replace it with anything else. We would have no quality filter to prevent poor cases going to a jury. While we may be unique in the formal demand for corroborative evidence, albeit it is in practice a common and often essential feature in other jurisdictions, I fear that such an approach would leave us isolated at the other end of the spectrum. If corroboration goes, we would surely need to give our judges and sheriffs greater power to withdraw cases from juries in appropriate circumstances. That would bring its own dangers.

It may be hard to say in precise terms what corroboration gives us, but it seems to me that there is something in it for everyone in terms of greater certainty as to how and whether proceedings should be taken. If there are to be changes, my own view is that we might want to reconsider corroboration with a view to tightening it up in some ways, for example, in relation to “special knowledge” confessions, which are scarcely corroborative at all in some instances.

In respect of the wider aspects of the report, I very much welcome the idea of embracing ECHR and simplifying its decisive role in our approach to questions of fairness. There is considerable scope for early and significant improvement, for example, in relation to our treatment of suspects who are children or vulnerable in some way. I would have preferred a return to a maximum of six hours' detention with the possibility of 12 if necessary – in fact the majority of detentions are completed in under six hours – but at least the maximum period has been reduced from that fixed in the emergency legislation. I welcome the recommendation that the High Court should have no gatekeeping role when it comes to the referral of cases by the Scottish Criminal Cases Review Commission, although I think that there is an unhealthy residue from the emergency legislation in relation to the enhanced status of “finality”, which seems to have become more important than rectifying established miscarriages of justice.

The general approach of mainstreaming ECHR considerations should reduce some of the tensions which have seen spatting between the UK Supreme Court and the High Court, as well as allowing for earlier adaptation to likely developments at Strasbourg. After initial enthusiasm for ECHR in some respects, there has more recently been resistance to the idea of learning about fairness from others, despite our historical acceptance of such ideas as our system developed. We are a proud European system of justice and we should aim to be at the centre of developments in ideas of fairness in the future. Rather than sulking at the back of the class, we should be putting ourselves in a position to teach.