Setting the safeguards

It is curious how quickly a topic can drop out of the headlines, especially if something else emerges to grab our attention instead.

After all the sound and fury about legal aid, it was almost a surprise to be reminded that until recently the main bone of contention between the legal profession and the Scottish Government was the proposed abolition of the corroboration rule, as recommended in the Carloway report. But this past week, up has popped the latest consultation on the subject.

The Government's previous consultation on implementing Carloway made clear its position that corroboration should be abolished, and asked for views on whether other changes should be made to the criminal justice system as a result. Changes to majority verdicts, or the verdicts that might be returned, were suggested by way of example.

After the quite lengthy submissions that were made (outlined in our November feature) on the subject, many of them calling for a full review of the potential effects of doing way with the rule, it is surprising that ministers have now launched a second consultation directed to much the same points as were mentioned in the previous one. Quite likely they have been taken aback by the strength of opinion from the legal profession against their position; but their current course does not seem designed to reduce the level of opposition.

It may be that they are looking for some degree of consensus over, say, the size of majority verdict that might be thought a reasonable safeguard, and guidance on what power a judge might have to withdraw a case from a jury, with a view to presenting provisions to the Parliament that they can say command a level of support. That is hardly a satisfactory way of proceeding when, as Appendix A to the consultation records, various other measures have also been suggested as desirable safeguards, and many weighty submissions have been made that a full review of the law should be carried out first.

As for the future of the not proven verdict, one suspects it has been included as a possible counterweight to additional safeguards. Certainly it is difficult to see how abolishing that option is likely to work in the accused's favour. Strictly speaking its effect should be neutral, so it does not really belong in this consultation at all, and we do not at present have the ability in law to research jury decision-making to find out one way or the other whether that is so.

Accepting once again that Scotland is unique in requiring corroboration, it is nevertheless so ingrained in our system that it is really not a responsible approach to promote its removal without a full exploration of the likely effects. Ministers are anxious to enable prosecutions that, they say, would have good prospects of success in other systems. Are there really so many that would result in a verdict of guilty beyond reasonable doubt, that cannot be achieved at present? Does that justify the rush to legislate, against the risk of injustice in other contexts? I suggest not.