Weight of evidence
The Scottish Government appears to be in a hurry to abolish the corroboration requirement in Scots criminal law.
Since Lord Carloway's report last November made its most controversial recommendation, the Faculty of Advocates, the Law Society of Scotland and the Scottish Parliament's Justice Committee have all expressed the view, more or less in terms – as did the Scottish Human Rights Commission in responding to Lord Carloway's consultation – that corroboration should not be regarded as a sacred cow, but it is so deeply entrenched in Scots law that an in-depth study should take place, whether by the Scottish Law Commission or some specially appointed body, of the implications and effects of abolition before we proceed any further.
Not a view shared by Mr MacAskill and his colleagues, as is clear from the consultation published this week on taking Carloway forward. "The focus of the Government is now upon deciding how to best achieve abolition and what, if any, additional measures require to be taken as a consequence", the paper states. And the onus is on those who fear adverse consequences to come up with evidence (what this might consist of is not obvious) to support their assertions.
The worry is that the push for reform is essentially being driven by the difficulty of securing convictions in sexual offence cases. Such was certainly the thrust of a recent speech by the Solicitor General, Lesley Thomson QC. That is a legitimate concern, but so is the point that these cases in particular may consist of one person's word against another's, over the issue of consent. If no supporting evidence is required for conviction, where does that leave the requirement of proof beyond reasonable doubt?
The point has also been made that if the complainer is the single Crown witness, the defence's entire efforts will be focused on discrediting her – will the prospect of such an ordeal encourage victims to come forward?
Ministers make some play in the consultation paper with the "wider system of protections in Scots law" – citing access to legal advice, the right to silence, extensive rights of disclosure, the need for cases to be proved beyond reasonable doubt, the three verdict system and rights of appeal. There are of course ongoing rumblings about the not proven verdict, and Michael McMahon MSP has begun a further parliamentary attempt to do away with it. Other protections not mentioned, the double jeopardy rule and the non-disclosure of previous convictions, are being, or being threatened with, removal. And what of the simple majority rule for a guilty verdict? It is not a matter of evidence but of stepping back and taking a rounded view as to whether such factors in combination might cause an objective observer to doubt the safety of a conviction.
One aim of the Carloway review, somewhat compromised perhaps by the speed with which it was required to be carried out (including only eight weeks of consultation), was to take a more comprehensive look at the criminal procedure system in the wake of the Cadder decision. Even so, its terms of reference were pointed in certain directions and Lord Carloway did not, for example, consider how abolition might sit alongside evidence of criminal record.
The Scottish Law Commission has recently been called into service to examine issues such as double jeopardy and the Moorov rule. Its recommendations have not been to everyone's liking, but it has acted with reasonable expedition while still giving the matters before it a fairly thorough airing. Should it not be asked to do the same for corroboration? Some fear it does not have the resources for this; if so, that only underlines that the subject deserves much closer study than it has so far received.
In other contexts the Scottish Government has been strident in defence of the distinctiveness of the Scottish legal system. The system does not, as Lord Carloway pointed out, have a better record than others in avoiding miscarriages of justice, and no rule is exempt from critical scrutiny. But it is not as if lawyers have a self-serving interest in keeping the rule, and enough questions have been raised as to the effects of abolition, from the profession and elsewhere, that one might have expected a more careful approach from ministers in this instance. It is not too late.