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Justice redefined

16 September 13

Comment on some key provisions of the Criminal Justice (Scotland) Bill, in which corroboration is not the only significant reform

by James Chalmers

Hooded man with handcuffs on 

The Criminal Justice (Scotland) Bill represents the most significant package of reforms to the Scottish criminal justice system for many years. It largely implements the recommendations of Lord Carloway’s Review of Scottish Criminal Law and Practice and Sheriff Principal Bowen’s Independent Review of Sheriff and Jury Procedure, along with a small number of additional proposals brought forward separately by the Government.

The most controversial proposal contained in the bill (s 57) is that the requirement of corroboration be abolished, and there is a danger that discussion of this particular change may overshadow all other considerations of the bill. The valuable and careful – but rather less controversial – work which formed the basis of Sheriff Principal Bowen’s review may go almost unnoticed, as may some aspects of the Carloway review.

That said, there are good reasons why the proposal to abolish corroboration will attract the bulk of the attention focused on the bill, given the consequences of that change. This article will therefore examine that proposal in more depth, but it is first worth noting some other key aspects of the bill.

Detention, arrest and charge

The structure of detention, arrest and charge under Scots law as it stands is problematic. Although it appears to operate successfully in practice, the boundaries between the different stages are unclear. Given how central the power of arrest is to any criminal justice system, it is embarrassing that the discussion of this power in Renton & Brown’s Criminal Procedure has (rightly) to begin with the sentence “It is difficult to state clearly the common law regarding arrest without warrant”. Even identifying what basic test is to be applied in exercising the power to arrest is difficult, something which was made painfully clear during oral argument at the Supreme Court during the “Sons of Cadder” cases.

Based on Lord Carloway’s recommendations, ss 1 and 2 of the bill will rationalise this system. A constable will have a power to arrest a person if he or she has reasonable grounds for suspecting that the person has committed or is committing an offence. It is this power – rather than the old statutory power of detention – which will provide a basis for a suspect to be questioned. At that stage, the arrested person will be regarded under the bill as a person “not officially accused”. If charged, they will become a person “officially accused”, and a statutory duty to bring them promptly before the court will then apply. Overall, the new system should make the rights and powers of all those concerned much clearer than they are under the current law.

Time in custody

Following the Supreme Court’s decision in Cadder v HM Advocate [2010] UKSC 43 that suspects in police custody must be permitted access to a lawyer, emergency legislation passed by the Scottish Government allowed a detained person to be held for questioning for up to a maximum of 24 hours, as compared to the previous six. The bill (s 11) will reduce that maximum to 12 hours. Although this remains higher than the pre-Cadder rule, it can be in part justified by the need to allow extra time for a solicitor to attend at the police station where their presence is requested.

A 12-hour maximum remains remarkably strict in comparison to England & Wales, where suspects may be detained for 24 hours initially (and 36 in the case of indictable offences), with a possibility of detention up to 96 hours where authorised by the magistrates’ court. For all that the Carloway review has been criticised for weakening the protection offered against wrongful conviction at the trial stage, it must be acknowledged that it has recommended a robust set of protections at the investigative stage, of which this is one example. The mandatory provision of advice for children under 16 is another example of this approach.

Scottish Criminal Cases Review Commission

The Scottish Government was understandably fearful of a wave of appeals based on the right of access to a lawyer reaching the appeal court in the aftermath of Cadder. While many suspects who had been denied access to a lawyer at the police station, and later convicted, would have been out of time to lodge an appeal, given the strict statutory time limits, they could have applied to the Scottish Criminal Cases Review Commission to have their case referred back to the appeal court.

The emergency legislation passed in the wake of Cadder therefore made two changes to the SCCRC’s role. First, it required that in deciding whether it was in the “interests of justice” to refer a case to the appeal court – a question which the SCCRC had always been required to ask itself – the SCCRC should “have regard to the need for finality and certainty in the determination of criminal proceedings”. Secondly, it gave the High Court the power to decide that it was not in the interests of justice that any case referred to it by the SCCRC should proceed to an appeal.

The first of these changes did little harm but was unnecessary: the importance of finality is always something which the SCCRC could and would have taken into account where appropriate. The second is rather more objectionable: why can the SCCRC not be trusted on this point? Lord Carloway’s recommendations on this are somewhat odd: he suggested that it was wrong for the High Court to have a “gatekeeping” role, and so its power to prevent a case from proceeding to an appeal should be removed. But, at the same time, he suggested that the test for determining an appeal following from an SCCRC reference should be made different from every other sort of appeal, so that the High Court would allow the appeal only if there had been a miscarriage of justice and it was in the interests of justice that the appeal be allowed. As the chief executive of the SCCRC said in giving evidence to the Justice Committee about this recommendation, this “is not to remove the gatekeeping role of the High Court at all, but instead to dismantle the gates at the bottom of the driveway and reassemble them at the entrance to the front door”.

Although the Scottish Government has included this recommendation in s 82 of the bill, it is difficult to see what value it has – the High Court has found little to fault in the work of the SCCRC since its creation. It seems almost symbolic: a legislative declaration that the SCCRC should know its place below the High Court in the hierarchy (but why?). And in requiring court time – as the emergency legislation already has done – to be wasted on unnecessary reconsideration of the interests of justice point, it simply squanders resources for no clear benefit.

Corroboration: worth fighting for?

Corroboration is a difficult rule to defend. Scots law is at least unusual and probably unique in maintaining a general rule that corroboration is required in all criminal cases. Any attempt to defend corroboration as a necessary safeguard against miscarriages of justice is therefore doomed to failure, unless we are prepared to make the argument that every other country in the world has got this wrong. Some might be prepared to make that argument, but they should not be surprised if they failed to persuade many of their case.

Moreover, there is much to be said for the view that corroboration has become an unhelpfully complex and confusing area of the law, riddled with exceptions, contradictions and inconsistencies, to the point that it may not even offer a meaningful safeguard against wrongful conviction in many cases. The case made by the Carloway review for corroboration’s abolition is far from convincing, but the positive case for its retention is difficult to make.

There is nothing magical about corroboration: it is simply one possible rule which might be employed as a safeguard against wrongful conviction. (One problem with the thinking underlying the Criminal Justice (Scotland) Bill is that there is little acknowledgment that safeguarding against wrongful conviction should be a core value of any criminal justice system.) The key point is that Scots law has avoided developing other safeguards because of the existence of corroboration, and we have consistently justified this lack of safeguards on the basis that the corroboration requirement does the trick.

So, for example, we do not require juries to be unanimous or near-unanimous in order to return verdicts of guilty. We have practically no judicial supervision of jury verdicts, because trial judges cannot withdraw a case from the jury on the basis that the evidence is too weak to allow any reasonable jury to convict. On top of that, the appeal court will almost never quash a conviction on the basis that the verdict was unreasonable, unless perhaps the jury has done something which amounts to self-contradiction, such as returning a verdict which implies that A acted along with B but that B did not act with A. Juries do not give reasons for their verdicts, and we have relatively liberal evidential rules allowing rather flimsy evidence to be admitted against an accused person.

Real safeguards?

But none of this matters, we have always said, because corroboration is perhaps a little magical after all; it cures many things that might be regarded as defective in another system. This is not simply nationalistic sentiment. Just as the Scottish Government was gearing up to abolish corroboration, the European Court of Human Rights handed down its decision in Al-Khawaja v United Kingdom (2012) 53 EHRR 23, expressing concern at the prospect of an English defendant being convicted solely on the basis of hearsay testimony from an absent witness, and gesturing towards the safeguard offered to accused persons in Scotland by way of the corroboration rule.

The Scottish Government did issue a second consultation on the Carloway report, dealing specifically with the question of safeguards against wrongful conviction. But this envisaged, at the very most, requiring 10 votes from 15 for a jury to convict, and empowering a trial judge to withdraw a case from the jury where the evidence was inadequate. Only the first of these possibilities has made it into the bill (s 70).

In its safeguards consultation, the Government drew attention to the fact that some other juries on the continent can return verdicts by a simple majority. All these instances, however, involve juries composed of a mixture of lay jurors and professional judges, or (in Belgium) a lay jury which can have its verdict overturned by the three judges who presided over the case. Among lay jury systems worldwide, the only major system which seems to allow for simple majority verdicts (in this case, seven out of 12 jurors) is the Russian jury. The proposal that we should now require 10 votes from 15 to convict in Scotland would still appear to leave us out of line with every lay jury system worldwide, other than the Russian one.

Perhaps the Scottish Government considers the Russian jury an appropriate model for reform here? Apparently not, because that system has further safeguards which do not exist in Scotland (rights to question and challenge jurors, a time limit before a majority verdict can be returned, and the verdict being returned in the form of answers to a questionnaire rather than a simple guilty or not guilty verdict). The Scottish Government, in declaring the Russian jury relevant to its consideration of safeguards against wrongful conviction, appears to have concluded that the safeguards offered in the Russian model of jury trial would be excessive for Scotland.

Assessing the safety of any criminal justice system is a difficult task. What we can say, though, is that no other criminal justice system in the world appears to have chosen to experiment with the combination of (a) no corroboration requirement; (b) a near-simple majority requirement within the jury; and (c) minimal judicial supervision of jury verdicts. On what basis, therefore, could anyone feel secure that this is a safe way to run a criminal justice system?


James Chalmers is Regius Professor of Law at the University of Glasgow, and a member of the Law Society of Scotland’s Criminal Law Committee

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Tom Muirhead

Thursday October 10, 2013, 18:28

Hi all,

As regards the Criminal Justice (Scotland) Bill – in my opinion a very important issue arises from its creation. Please let me explain:

1. In the aftermath of "Cadder" the Scottish Executive commissioned Lord Carloway (now the Lord Justice Clerk) to review and report on Scottish criminal law. Lord Carloway involved all of Scotland’s judges in this review and report. He also created a review team that included judges, senior civil servants and members of the Scottish Executive. This can be easily verified by viewing the Scottish Government’s website.

2. This has led to the creation of the Criminal Justice (Scotland) Bill that, as has been discussed in the article above, has now been placed in front of the Scottish legislature by the Scottish Executive.

3. In addition, since devolution every Scottish Executive has been advised on criminal and civil legislation by the Scottish judiciary. See, amongst many others, the "Gill Review", the "Bonomy Report", the "Bowen Report".

4. So, in Scotland’s criminal courts - the Scottish Executive are prosecuting under legislation made by the Scottish legislature in front of judges who "work" with and for the Executive by having been involved in the making of the legislation.

5. I use the verb "work" as the Scottish Executive use the following terminology in relation to these reports: “Lord Carloway has been commissioned by the Cabinet Secretary for Justice, Kenny MacAskill MSP, to prepare recommendations for legislative change and new guidance...” - to me this means that Lord Carloway and the other judges involved in this review are working directly for the Scottish Executive.

6. I hope I am not the only one who thinks this is bonkers.

7. The questions that arise are as follows: in a criminal case can any Scottish judge be seen to be (a) independent of the prosecutor when part of their function now seems to be "working" with and for the Scottish Executive on criminal law legislation?; and (b) impartial in the sense that they have already expressed their opinion on and also helped shape the legislation under which all accused are now being prosecuted?

8. What happens if an accused raises a challenge via a "compatibility issue" to the lawfulness of any of conduct of the criminal process or the legislation that they are being prosecuted under? How can any justice of the peace, sheriff or High Court judge approach any decision on the challenge made in an impartial manner?

9. My opinion is that the answers to all these questions are clear - there is no independent and impartial judge or tribunal available in Scotland and as such, since devolution and the "merging" of the judicial branch of Government with the legislative and executive branches, no accused in any criminal prosecution can or has received a fair trial.

10. I would further add that I hope the Scottish legal profession will seriously consider running these arguments on behalf of their clients and, in addition, they should consider using them in order to secure the release of any of their clients who have been jailed...

Regards, Tom Muirhead of the Scottish Human Rights Union (www.shru.org)