Opinion: John Scott QC

 Yes, it’s that time of year again. Darkness and dropping temperatures. The John Lewis Christmas advert on the telly. And another major consultation on the future shape of our criminal justice system. And yet, wasn’t it only last year that we were responding to another consultation on additional safeguards to deal with the hole to be left when corroboration is abolished? Of course it was.

In what can be seen as a perfect example of how not to review a system and effect necessary modernisation, the process of getting to where we are now has involved repeated consultations, almost identical warnings from a range of organisations(including the senior judiciary in Scotland), and a slow-dawning realisation that grasp had exceeded reach.

The review set up under Lord Bonomy early this year was a belated acknowledgment that pulling out a cornerstone is not a procedure to be attempted without checking that sufficient support can be found elsewhere, or at least with the addition of some substantial buttressing.

And so it was that the Scottish Government published a consultation paper arising from the work of “The Post-corroboration Safeguards Review”. It was published on 14 October and the consultation is open for responses until 28 November. This is an extremely tight timescale for addressing the fairly substantial areas covered in the consultation document. I am sure that it will prove challenging to organisations who may need to put together a sub-group to prepare their response. Some work may have been carried out already, thanks to the earlier, rather more basic, consultation on the same area. Nonetheless it is absolutely essential that the work be done and responses submitted on time. This is largely because of the extremely demanding timetable imposed on Lord Bonomy for coming up with suggestions as to the best means of avoiding miscarriages of justice in the absence of corroboration. If you think we’ve got it tough in preparing our submissions in six weeks, just bear in mind that Lord Bonomy has only until April 2015 to prepare his final report.

At the same time as issuing the consultation document, the Government issued the report by the academic expert group assembled to look at some of the issues, including a review of safeguards in other jurisdictions. While the consultation document is of manageable length (34 pages in total), the report by the academics runs to 378 pages, albeit it includes an appendix with a 79 page report on Independent Legal Representation for Complainers in Sexual Offence Trials (2010) by Professor Fiona Raitt. Notwithstanding the length of the fuller report, it is very important to consider it in detail before replying, if you can find the time. Otherwise, and as responding is essential for all of us with an interest in the future shape of our criminal justice system, there is a 12 page summary of the expert group’s report in the consultation document itself.

Topics covered include:

• eyewitness identification evidence (with the question posed as to whether it should generally be inadmissible in the absence of an acceptable pre-trial identification under tighter rules);
• confession evidence (where there is discussion as to whether corroboration may still be required to avoid false confessions and miscarriages, and whether “special knowledge” should be more special than at present in self-corroborating confessions);
• evidence of accomplices and informers (with discussion of greater warnings to the jury and a power for the judge to exclude such evidence if unreliable or unfair to admit it, as can happen in England);
• hearsay evidence (with discussion of the ECHR “sole and decisive” test and the need for additional supporting evidence to avoid findings of violation at Strasbourg, as well as power for the judge to exclude such evidence);
• jury directions in cases with such potentially problematic evidence (with discussion of a written copy of directions being provided, and research into the effectiveness of various forms of wording for jury understanding);
• recording of all police interviews (although not specifically included in the terms of reference, the reference group suggested its inclusion and the issue is considered in some detail, with discussion of the merits of a detailed code of practice and the admissibility of interview evidence if the code is breached);
• a statutory sufficiency test for prosecutors;
• the “no case to answer” submission is considered in detail (it is suggested that, in the absence of corroboration, it would offer a fairly weak protection, leading to discussion of introducing a power for a judge to uphold a submission that a properly directed jury could not reasonably convict the accused, and in summary procedure if, on the evidence led by the prosecution, he or she could not find the offence proved beyond reasonable doubt);
• jury size, majority and verdicts (detailed discussion of uniquely Scottish aspects of criminal procedure).

The experts' report demonstrates the folly of the Government’s previous thinking, that corroboration could be removed safely with only a little tinkering round the edges (perhaps increasing the jury majority to 10 from eight). Reading the report might even cause some to question whether the Government is wise to proceed with its plans to abolish corroboration, given the complexities and uncertainties exposed in the report.

Corroboration is not what it once was. Indeed, as a safeguard, it is likely that it operates only in a relatively small number of cases (albeit it may well have prevented prosecution in cases which could have led to miscarriages), and it cannot really address some of the known problems with our system. On the other hand, it undoubtedly offers some protection against miscarriages, and to simply abolish it without this sort of detailed analysis would have been the height of recklessness.

The experts' report and consultation paper offer us the sort of safeguards which many thought we should have, even with corroboration. I have little doubt, for example, that our system would be much improved with greater care in the use of eyewitness evidence and recording of police interviews. That much can be said based on experience elsewhere. However an unquantified (unquantifiable?) problem remains. The purpose of any safeguard in trials is to prevent miscarriages of justice, mainly in the form of the wrongful conviction of the innocent. As has been pointed out, we have no idea of the extent of miscarriages of justice in Scotland at the moment. We have no idea as to whether, and, if so, to what extent, corroboration helps us to avoid miscarriages. We have no real idea as to how safe our system will be when it is transformed in a radical manner in a period of time which is too short to allow us to understand the dynamics and interlinking of the new safeguards.

The report and consultation paper are extremely thorough, and they go beyond the strict terms of reference for the review. Nonetheless, bearing in mind what was said by the appeal court in the case of Hainey v HM Advocate, I wonder whether some thought should be given to the question of safeguards in prosecutions which rely on expert evidence when corroboration goes.

Replies can include suggestions which go beyond the terms of the consultation document.

In any event, whether replying only to the specified questions or going further, I urge you to respond in as much detail as you can, and to do so soon. Helping to ensure that our system avoids miscarriages of justice may depend on you.