Ends of justice?

At time of writing, we await the Scottish Government’s decision on the shape of the promised Criminal Justice Bill, following its consultation on proposals contained in Lord Carloway’s review. The major point of interest for many will be whether it has been persuaded to step back from its stance in the consultation that the Carloway recommendation for abolition of the corroboration rule in criminal cases will be enacted, with the only question still open for discussion being what, if any, safeguards should accompany that move.

However, although the impression is sometimes given that corroboration is the one major point of controversy, an examination of some of the leading submissions shows that each has found some recommendations with which it disagrees, and some find fault with quite a large proportion. This article attempts to assess the level of consensus, or otherwise, to be found on these other matters in the submissions of the Senators of the College of Justice, the Faculty of Advocates, the Law Society of Scotland, the Glasgow Bar Association, and the organisation JUSTICE Scotland. The panel on page 12 provides some illustrative, and illuminating, quotes from the judges’ submission on corroboration; extracts from the other bodies are reproduced online.

Necessary inquiry

It is worth beginning with a flavour of the general comments introducing the submissions, where these are offered.

In the Faculty’s view the matters considered, particularly corroboration, are fundamental to the administration of justice in Scotland and should be the subject of full consideration by a royal commission before change is attempted. Pointing to the Scottish Law Commission’s further proposals on similar fact evidence, and the attempt to abolish the “not proven” verdict, it adds: “The implementation of any one of these proposals would have significant consequences for the criminal justice system. The Faculty does not accept that our criminal justice system is so defective that it needs radical change on all these fronts. But if there really is a case for wholesale reform, the system should be reviewed as a whole by a body with the widest remit to consider all these issues together.”

The Society also expresses concern that the Government does not intend to commission a further independent review of the law, and maintains that the Government’s position on corroboration, consulting only on what additional measures might be needed on abolition, is “an entirely inappropriate way forward”. The SLC should be asked to consider the question in the same way as it has that of similar fact evidence.

And JUSTICE comments: “A fully independent commission of inquiry is necessary to consider each area proposed in the Carloway review with a proper degree of scrutiny. It seems that this will not happen. Such a step is unprecedented in substantial law reform.”

Fairness test

It is part of Lord Carloway’s scheme that existing common law rules on admissibility of evidence should be repealed in favour of the simple test in article 6 of the Human Rights Convention, which guarantees a fair trial before an independent and impartial tribunal. But where rules of admissibility of statements are concerned, the responses surveyed are almost unanimous that such an approach is inadequate. (The GBA notes that its membership “has many mixed views on the matter which prevents a specific recommendation one way or the other”, while adding that the area “has been appropriately dealt with by the courts to date”.)

The judges note that while article 6 provides an overarching test, it would be difficult to apply in considering particular issues of admissibility: “it does not contain the ‘tried-and-tested’ examples recorded in Scottish case reports and legal textbooks. We would prefer the common law and article 6 to work together and to complement each other in this context”.

Indeed, as JUSTICE points out, “The ECtHR has been reluctant to create an admissibility test with regard to evidence and has left this complex issue to the national courts to evaluate under national law”, applying the subsidiarity principle. For its part, JUSTICE would favour a statutory test similar to ss 76 and 78 of the Police and Criminal Evidence Act 1984.

The charge test

Interestingly, while views are mixed on the subject, it is the judges who take the clearest line against the proposal to allow the police to question a suspect once charged. The charge marks an important stage, they say, and “Once someone has in reality become the accused (and not a mere suspect) he should be protected from further police questioning.”

The Society also believes that the stage of arrest (with or without charge) should mark the point at which questioning stops, and JUSTICE questions the value of further questioning from this point. While recognising that there already exist certain exceptions, such as under the terrorism legislation, it considers it important to retain the general prohibition, (a) to prevent unfairness and oppression (and the existence of a charge is a factor taken into account by the ECtHR), and (b) to ensure the proper supervision by the courts of the post-trial process.

The Faculty however “does not oppose” the proposal, on the basis that the suspect would have proper access to legal advice and no adverse inference would be drawn from refusal to answer. Similarly the GBA sees no objection, but “there must be clear and practical limits to this power and they would require to be expressly defined” – and there would have to be access to legal advice.

If post-charge questioning is to be conducted, the majority of the submissions argue that it should take place in court, adapting the judicial examination procedure which, although currently little used, “provides the charged suspect with an opportunity to explain his position in court and subject to the supervision of a judge”, in the senators’ words. The Faculty’s and GBA’s agreement to abolition of judicial examination is predicated on the accused remaining entitled to make a judicial declaration, and in the GBA’s case to further consideration being given to the suitability of Carloway’s recommendation that the Crown seek permission for further questioning.

Police liberation?

Another point on which different views are expressed in principle is on whether the police should be entitled to impose conditions on a suspect on “investigative liberation” – the Carloway proposal for temporary liberation of up to 28 days, interrupting a period of detention. The GBA suggests that the careful wording of a condition to avoid ambiguity is best dealt with in a court environment, or at least that a list should be available from which the police can select, rather than leaving the police with a discretion; and the only condition the Faculty believes the police should be able to impose is when the suspect should return for further interview.

The judges would permit special conditions, subject to a right of appeal to the sheriff within seven days. The Society, however, is concerned about investigative liberation becoming the norm rather than the exception, and sees no justification for a period as long as 28 days. Any conditions should be strictly defined in statute, and should be subject to review. JUSTICE argues that conditions should be open to discussion at the police station, and to review thereafter, and also that seven days would be a more appropriate maximum period, given that current practices appear able to support investigations.

Qualified advice

Regarding the availability of legal advice, the responses not surprisingly agree that this should be by enrolled solicitors, though JUSTICE in particular mentions “concerning reports” of the strain currently being placed on PDSO lawyers being called out when no one else is available, and also the need for special training given the sometimes hostile attitude experienced at police stations if officers are not used to having lawyers present.

Yet JUSTICE alone argues that no questioning should be conducted outwith the police station – unless, that is, at a pre-arranged time so that the suspect can have a solicitor attend if desired. On the recommendation that it is for the suspect to decide on the way legal advice is provided, JUSTICE and the GBA both submit that that decision itself cannot be properly taken without at least initial telephone advice.

Arrest alone?

Lord Carloway recommended that statutory detention and common law arrest be replaced with one single power of arrest, to be exercised on reasonable suspicion of the suspect having committed a crime and provided it is “necessary and proportionate” – tests designed to satisfy article 5 of the Convention. The Society argues that the current system, post-Cadder, works well and that there is no need for change, but JUSTICE believes the change would be a sensible one, as there now remain “only confusing anomalies between which power the police should exercise”. It also supports “a requirement for the arrest to be necessary and in the interests of justice” – there should be a purpose as well as a ground for arrest, such as furthering specific enquiries, or the prevention of personal injury or damage to property.

The judges support the Carloway approach, subject to reconsidering the common law caution, as does the Faculty (while underlining the necessary conditions for arrest); but the GBA expresses concerns that it would result in wider police powers, for example to force entry to premises without warrant, and require the police to take decisions on a wider range of matters. “Safeguards and guidance would be required and would require to be objectively validated for the protection of both the accused and police officers exercising such powers”, they state.

All the bodies, other than the judges (who believe that a caution is sufficient), disagree with the proposal that a suspect not arrested or detained does not require any statutory rights similar to those of arrested persons. “To seek to diminish those rights or introduce categories of suspects is an area fraught with danger and may lead to considerations in terms of ECHR”, the GBA replies, and JUSTICE, the Society and Faculty take similar positions.

The Saturday question

Carloway also made much of the desirability of bringing an accused held in custody to court no later than 36 hours after initial arrest. There is general support for such a principle, but all sides recognise the major resource implications, in particular that it would require Saturday courts. The judges would accept the accused appearing no later than the first court day after charge (or notification of intention to report); the Faculty simply a detention period “as short as practicable”. The GBA comments that “The current four day limit, while lengthy, is appropriate given current funding regimes”: there would be “profound difficulties” in achieving a 36-hour period.

JUSTICE, however, argues strongly for Saturday courts as preferable to late sittings on Mondays: “The avoidance of personnel having to work on a Saturday cannot justify detaining people for 48 hours longer... Thirty six hours, inclusive of investigative detention must be the maximum justifiable period of detention having regard to what other systems are able to achieve.”

There are fewer points of difference over other parts of the consultation, dealing with children, other vulnerable witnesses, and appeals. But even this necessarily brief survey, focusing on a few, albeit extensive and well informed submissions, will indicate that ministers need to tread very carefully, quite apart from the corroboration issue, if they are not inclined to follow the calls for a fuller expert study of the whole picture ahead of any legislative action.

Corroboration – the weight of opinion

The proposal to abolish the corroboration rule has attracted sustained public comment, much of it critical, though it has been defended by the Law Officers and by victim support groups working in the areas of domestic violence and sexual offences. However it has been attacked from nearly all sides in the legal profession in a series of weighty submissions to the Government. Here are extracts from some of the submissions.

The Senators of the College of Justice

“The Scottish courts have on many occasions been grateful for the requirement of corroboration, which in our view provides a major safeguard against miscarriages of justice. We acknowledge that the requirement of corroboration has been removed in civil cases; but we consider that there are significant differences between civil and criminal cases….

“We are also concerned that the abolition of corroboration may result in less diligent police investigation pre-trial: knowing that corroboration is not required, there may be a relaxation in the search for supporting evidence (even though such may well exist). Furthermore the court or jury, faced with the dangers of one person’s word against another’s, may be reluctant to convict. In our experience, juries have always found corroborative evidence of great assistance.

“The current perception may be that the conviction rate in certain types of crime (for example, sexual offences) is low. It is our considered view that if corroboration were to be abolished, that would lead to decreasing confidence in the legal system, and to lower rates of conviction generally.”

“If a court or jury has to decide a case on the basis of one witness’s evidence (without corroboration), consideration may have to be given to the importance of seeing and hearing that witness in person, as CCTV can distort the jury’s perception of a complainer, a witness, or an accused.”

“...if the requirement of corroboration is removed, consideration may have to be given to adopting the type of majority required in England, namely 10 out of a jury of 12. This would certainly require to be the case if the 'Not proven' verdict were to be abolished.”

“In our view, if the requirement of corroboration were to be abolished, it would reinforce the case for retaining the 'Not proven' verdict to allow a jury a principled third option where they found it impossible to work out which of the complainer or the accused was telling the truth.”

Faculty of Advocates

In general comments to open its submission the Faculty states:

"The requirement of corroboration is central to the current operation of the criminal justice system in Scotland. If that requirement were to be abolished, an accused person could be convicted of the most serious crime on the uncorroborated evidence of a single witness whom seven out of 15 jurors do not believe. The proposition only has to be stated to be seen to be unacceptable in any modern system of criminal justice.

"The proposal to abolish corroboration requires a number of questions... to be addressed. A central question is the alternative criterion which is to be applied by prosecutors when they are deciding whether or not to prosecute cases. Corroboration cannot be abolished without dealing with this issue. This criterion is of such public importance that it should be the subject of informed public debate and be articulated in statute."

"The Faculty does not accept that our criminal justice system is so defective that it needs radical change on all these fronts [including other proosals of the Scottish Law Commission and Michael McMahon MSP]. But if there really is a case for wholesale reform, the system should be reviewed as a whole by a body with the widest remit to consider all these issues together."

In its particular submissions on the issues raised the Faculty adds:

"The requirement for corroboration is not a rule which can be considered in isolation. It is at the heart of the day-to-day operation of the criminal justice system in Scotland."

"The requirement of corroboration... permeates the criminal justice system at every stage. The abolition of the requirement would, if no other changes were made, create a system which would look quite different at every stage."

"There is a legitimate concern that if corroboration is not required then, even where it is potentially available, the police will not carry out exhaustive enquiries to discover it and the Crown, in certain circumstances, will simply not lead it. In the current climate where there are significant pressures on resources and pressure by way of time and cost there is a real possibility that only the bare minimum will be done. This could easily have the effect of causing, rather than preventing, miscarriages of justice for complainers as well as for accused persons."

"...it appears to the Faculty that there would be likely to be significant implications for the organization, staffing and resourcing of the prosecution service. If there were to be a material increase in the number of cases reported by the police, this would add to the work of the prosecution service. In any event, a qualitative assessment of the evidence as a whole, if it is
to be done properly, is likely to be a more complex, anxious and time-consuming task than an exercise focused principally through questions of technical sufficiency."

The Law Society of Scotland

General comments:

"The Society believes that [the consultation's approach of simply asking what additional measures are required if corroboration is abolished] is is an entirely inappropriate way forward. If the requirement for corroboration is to be abolished, it has to be set against the background of a wider review into the Scottish criminal justice system in order to ensure compliance with article 6 of the European Convention on Human Rights. No evidence to demonstrate that the abolition of corroboration will not result in miscarriages of justice has been produced. In the absence of such evidence, the Society believes that the abolition of the requirement for corroboration without other safeguards will simply result in a contest between two competing statements on oath and therefore have the potential to result in miscarriages of justice.

"The Society is deeply concerned that on such a fundamental matter, the Scottish Government
has decided not to utilise the expertise and experience of the Scottish Law Commission in the
field of law reform."

Comments in response to the corroboration question:

"The Society... regards the requirement for corroboration an essential safeguard the purpose of which is to protect against miscarriages of justice.

"The Society believes that there requires to be very good reason for the requirement for corroboration to be removed and does not believe that the case has been made."

"The Society believes that, with reference to Annex A of Lord Carloway’s Report, [the research commissioned to ssess the impact of corroboration] was neither independent nor compelling. The Society understands that ‘reasonable prospect of conviction’ is not a standard which has been utilised in Scotland before.

"The Society believes that on such a crucial issue, independent research should be
commissioned by Scottish Government and respectfully suggests that such an issue should
be properly considered by the Scottish Law Commission.

"The Society further notes that other safeguards incorporated in other criminal jurisdictions such as weighted majority verdicts and rules of admissibility of eyewitness identification evidence and the possibility of withdrawal of unreliable evidence by a judge from a jury as safeguards are non-existent in Scottish criminal procedure precisely because there is a requirement for corroboration.

"It is for this reason that the Society reiterates its previously stated position that any change to the law in Scotland regarding corroboration requires to form part of a full scale review of Scottish criminal procedure and should under no circumstances be contemplated in isolation in order to prevent miscarriages of justice from taking place."

Glasgow Bar Association

"Prorogating change without anticipation or measurement of the effect of change is always dangerous. It is stated that there is no anticipation of any sudden flood of prosecutions being brought as the result of a change to remove corroboration. What then is the driving motivation for abolition of corroboration? The natural conclusion is that the removal of the requirement of corroboration makes the proof of crime easier. It follows that it can reasonably be expected that there would be an increase in convictions if the requirement for corroboration for conviction were to be abolished."

"The Scottish system should not be treated in a piecemeal fashion. Selecting only corroboration for a significant change without giving the fullest consideration to other evidential and justice system aspects may lead to unanticipated effects. The danger in the proposed alteration is that possible outcomes of the effect have not and cannot be measured and are therefore unknown. Departing from a long used approach which has a high degree of certainty in law and being subject to development and fine tuning of rules and corroboration over many decades and centuries, is, it is
submitted, a rash and irresponsible approach.... The fact remains that in the abolition of the requirement for corroboration there may well be situations (probably more likely in sexual allegation cases) where a single Crown witness may be all the Crown require to proceed with prosecution through to conviction. The Association does not agree that this would be an appropriate model in a justice system."

JUSTICE Scotland

(The submissions on corroboration take up 25 pages of a 130 page response)

"Our concern is to ensure that in the search for new rules of evidence there are not caught a number of unsound, unsafe and unjust convictions as occurred in England & Wales. There must be a thorough exposition of the purposes and consequences of such change. The Review has not produced sufficient evidence to justify this alone."

"It is one thing to suggest corroboration does not address the real issue, namely the quality and safeguarding of the quality of evidence, but another to suggest that the rule of corroboration itself somehow distorts the system into disregarding quality. On one view, it is not the existence of the rule of corroboration that has caused a failure to address quality control. Rather, it has been used as an excuse to avoid introducing additional or further reforms to increase the quality of evidence and the fairness of the trial – a clear example being the rejection of safeguards over identification evidence."

"The removal of the requirement of corroboration will not render trials quick affairs, free of complexity and challenging, disputed questions of fact. Not every drawback in the prosecution of crime can be laid at the door of corroboration, and its removal will not lead to a perfected system of
prosecution of crime".

"The precise effect of removing the important safeguard of corroboration upon the number of miscarriages of justice is simply not known. It is important, however, to recognise that, with no real discussion of what should stand in the stead of the corroboration safeguard, the number of miscarriages in this sense, will not reduce."

"The test applied by the researchers – if it be the same one that they as prosecutors in Scotland would be used to applying – is one which has developed hand-in-hand and, one could say, as a direct result of the operation of corroboration in Scotland. It cannot easily be separated from the requirement therefore. If the review research applied the test as understood in England & Wales, different considerations apply. The Code for Crown Prosecutors details the manner in which they approach the question of reasonable prospect of conviction. It is directly linked to the question in that jurisdiction of sufficiency: Is there enough evidence against the defendant?"

"In a brief comparative survey, the report focuses on the issue of corroboration warnings in the law of England, Australia and Canada and correctly notes the abolition of formal requirements for such warnings in those common law jurisdictions. However, the report ignores how the corroboration requirements operates in practice in those systems through corroboration warnings and other safeguards that serve to ensure a fair trial."

"The additional changes which would be required were corroboration to be abolished are many and varied. The abolition of corroboration would represent a significant recalibration of the present system of criminal justice in Scotland. What is left in the wake of abolition may well not be fit for purpose."

"The Review asserts that the police will continue to ingather as much evidence as available – as if the requirement were still in existence; and that there will be no consequential effect in the volume of cases reported, prosecuted and ultimately of persons convicted. This is not based upon any evidence and in our view is a dangerous conclusion to reach."

"It is a matter of some surprise and concern that the Scottish Government should call upon consultees to produce evidence to support their position in relation to proposed changes. It appears to us that those who bring forth such a profound change to our law of evidence and procedure ought to be reassuring legislators that what is proposed to replace it will instil within the public at large a measure of confidence that the guilty will be convicted and the innocent acquitted.... 

"As we have tried to illustrate, a lack of certainty is likely to lead to the deferral of important decisions from and after the commencement of the investigation of a crime right through to the end of a trial process. That is likely to lead to considerable volumes of business at each part of the criminal justice system – in the reporting and processing of crime to the police; in the submissions of reports thereon from the police to the procurator fiscal and the marking of cases to proceed to court. All of these channels need considerable training and clarity about what test would need to be applied to the new environment. No proper assessment has been made as to the effect of any new definition on the practical operation of the system absent the requirement of corroboration and significantly in our view, upon the volume of business through these various parts of the criminal justice system. Clearly defined, evidence based research is required to know the effect of the proposed changes."