News In Focus

"Too much, too soon" says JUSTICE of Carloway

24 October 2012

The reforms to Scottish criminal evidence and procedure proposed by the Carloway review are "too much, too soon", according to JUSTICE Scotland.

In its 130-page response to the Scottish Government consultation on implementing Lord Carloway's proposals, the campaign group argues that whilst there is much to welcome in the report, such as retaining the privilege against self incrimination, the treatment of children and vulnerable suspects, and proposals relating to the Scottish Criminal Cases Review Commission, detailed analysis is badly lacking to justify many of the proposed changes.

JUSTICE has particular concerns in relation to police bail, appeals and High Court powers over miscarriage of justice cases. It also joins the Senators of the College of Justice and the Scottish Police Federation against the proposed abolition of the corroboration rule. In its view, the case for abolition has not been made out and many of the recommendations would benefit from a full inquiry.

Contrary to Carloway, JUSTICE believes that common law rules on admissibility are needed to supplement the general test of fair trial under article 6 of the European Convention, this being an issue the Strasbourg court has left to national courts to evaluate under national law.

It also believes that the proposal to leave all evidence to the jury without direction will not provide sufficient safeguards to satisfy article 6.

In relation to corroboration, which takes up 25 pages of its submission, JUSTICE says the requirement "is so deeply embedded in our law that the historical survey and search for its genesis and justification should not cloud its almost universal acceptance amongst those who practise in the criminal courts". Calling for a "thorough exposition of the purposes and consequences" of change, it states that the review has not produced sufficient evidence to justify this.

"In any event," it adds, "it is impossible to divorce the question of abolition of corroboration from the changes that would require to be made to ensure safeguards remained in place to preserve the fairness of the proceedings."

JUSTICE believes that 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", the paper states. "What is left in the wake of abolition may well not be fit for purpose." It further expresses surprise and concern that ministers should be calling for evidence from those opposed to change, when it should be for those in favour of such "profound" change to show that it will command public confidence that the guilty will be convicted and the innocent acquitted.

Tony Kelly, the chair of JUSTICE Scotland, said: "Absent from the report is recognition of the need for safeguards in the trial process to ensure that it is fair. In fact, the suggestion is less direction to the jury on how to approach evidence. Time and again the UK has been praised by Strasbourg for having safeguards in place to ensure that trials are fair. If these changes are imposed without further thought, we risk creating miscarriages of justice."

Click here to access the response.