On 27th February 2014 the SNP majority forced through the Scottish Parliament the first stage of the Criminal Justice [Scotland] Bill by 64 votes to 5 – with 57 abstentions.
The figures are alone proof of widespread concerns about the ability of these legislative proposals, which include one particularly contentious measure – the abolition of the requirement for corroborating evidence to support conviction. An amendment to the motion before parliament from Conservative Justice Spokesperson, Margaret Mitchell – that the Bill proceed following the removal of Section 57 which proposes [to drop corroboration] was defeated by 64-61.
The SNP Convener of the Scottish Parliament’s Justice Committee felt compelled to abstain on both votes. Patrick Harvie of the Green Party and John Finnie, half-way house SNP, both voted for Margaret Mitchell’s amendment.
This skin-of-teeth majority was achieved by hard line whipping of the vote by the government, against the background of an impassioned performance by Justice Secretary Kenny MacAskill which owed a lot more to testosterone than it did to reason.
He asked the chamber to pass the Bill, in the knowledge that the critical Section 57 on abolishing corroboration was unsustainable without further work. He promised to add to Lord Bonomy’s review a remit to look at supplementary damage-limitation measures which might be introduced to cover the vulnerabilities to the security of convictions opened up by the loss of corroboration. He effectively asked members to trust him and, as Labour Justice Spokesperson, Graeme Pearson put it, ‘ … to write a blank cheque, with the promise that they will receive the goods some time in the future’.
What Mr Pearson did not say was that the nature of the goods to follow the advance issuing of the blank cheque could not even be specified. All that has been promised is that Lord Bonomy will ‘look at’ supplementary measures and will deliver something, sometime. On that feeblest of bases – the proverbial ‘pig in a poke’ – the herd did as the whips demanded and voted the Bill through intact. That herd included Argyll’s two SNP MSPs, constituency MSP Michael Russell and Highands & Islands List MSP, Mike Mackenzie.
There are other reasons – including matters relating to policing – why this is a poor Bill and one potentially dangerous to the stability of Scots law in its ability to deliver justice.
However the crux of the damage that would follow the proposed abolition of corroboration has the capacity to make many wholly innocent people vulnerable to prosecution and then to conviction – because the dropping of corroboration will impact upon the bringing of cases to court as well as upon the outcomes arrived at in court.
One reason for this consequence is a point raised in a forensic response to the proposal from the Law Society of Scotland. Only one single judge is in favour of the proposal to drop corroboration – the government appointee who recommended it in a report that does not sustain interrogation, Lord Carloway.
The Law Society says: ‘As a consequence of the removal of the requirement of corroboration, the Committee remains of the view that cases will be less likely to be thoroughly investigated by procurators fiscal taking into account resources used and that there will less evidence presented at trial.’
In other words, if all you need to take a case into court is the word and the statement of one complainant or of a single police officer, why waste time and money on more detailed investigation? The Bill sets no standards for the sufficiency of evidence.
Anyone who sees this threat to personal freedom and reputation as unlikely to impact upon themselves is advised to reflect on another conclusion of the Law Society. It says: ‘The Committee further notes that the removal of the requirement for corroboration will expose a large cross section of the public who deal with individuals on a one-to-one basis, to the possibility of inappropriate prosecutions. What prosecution policy will apply in the case of an individual alleging that he was assaulted by a police officer or a prison officer? Or a pupil alleging that a teacher or social worker acted inappropriately?’
Indeed. Or a babysitter, a personal tutor, a sports coach, a travelling salesperson, a therapist, a neighbour, a driver, a driving instructor… ?
The Law Society succinctly reminds us that: ‘… the requirement for corroboration is an essential evidential safeguard. Its purpose is to protect against miscarriages of justice.’
Dr Tiffany Jenkins, writing in The Scotsman on 12th March, usefully focused on the deception of the rhetoric around ‘victims’ that was deployed to get Section 57 left intact in the Bill in its approved passage through Stage One.
She pointed out that, until it can even be established that a crime has been committed and who has committed it, there is no such thing as a ‘victim’, only a complainant.
Raising what would, in practice, become a highly contentious feature of conviction without corroborating evidence, she said, in relation to Police Scotland’s unequivocal support for the measure: ‘Of course the police want to abolish corroboration. The chance of getting such cases to court and maybe even a conviction will be improved, making them look more active in this cause. But the police are as not as reliable as we would like them to be. Remember Plebgate, Hillsborough or the Birmingham Six?’
The current context of policing sees:
- a controversial reorganisation of the Scottish police force into a far less publicly accountable unified body, Police Scotland;
- this body is led by an energetic cohort recruited from the reputationally crippled and, shall we say, ‘pragmatic’, Metropolitan Police;
- it is driven by cost cutting [with its head, Sir Stephen House, boasting only this week that he would meet Police Scotland's cost cutting targets early and in excess of the £1.1 billion he was set. His success involves the loss of key supervisory rank officers - including here in Argyll; the closure of front desks at police stations; and the reduction of major incident control centres across Scotland;
- and it is working to 'performance' targets set by government.
As Dr Jenkins says, of course the police support the dropping of the requirement for corroboration. It will be very much easier to get more cases into court and to get more convictions once they get there. This, however will not necessarily mean that more guilty people face trial; or that more guilty people are convicted.
Such concerns are not only external to the police force. For Argyll contacted Fred Hall, former Chief Inspector of Police for Oban, Lorn and the Isles, as a known and informed campaigner on justice issues. We asked him for his perspective on the issue of corroborating evidence.
He said: 'There is a substantial difference between an allegation and proof. The corroboration rule ensures that the prosecution has to prove a case. In these days of DNA etc, Police Scotland has the forensic science and investigative capability to solve and prove cases. It is arguably the economics of available resources rather than lack of capability that prevents a sufficiency of evidence being gained in some cases. In other words a lot of investigations are limited on cost and resource availability grounds.
'Section 57 of the Bill means that confessions will no longer have to be corroborated. It will be sufficient for the prosecution to state that the accused made the following confession to the police. It could result in the evidence of a single officer sufficing from road traffic offences right through the whole gambit of offences.
'We now have a single police force in the command of one Chief Constable answerable only to the Justice Secretary and the unelected quango that is the Scottish Police Authority. A justice system where cost savings (£1.1 Billion is the police target) are arguably the primary driving factor behind changes in procedures and legislation that detrimentally impact on the democratic accountability of our justice system and the civil liberties of all of us. Now more than ever we need MSP's of all parties to vote on the evidence of the argument and not on party lines, Justice and civil liberties are to important to be left to a party whip system.'
At heart, the loss of corroboration will mean that the age-old stalwart of justice, the presumption of innocence until proven guilty, will be replaced by a presumption of guilt. The declared aim of this reduction of the burden of proof is to see more prosecutions and more convictions particularly in sexual crime and domestic violence cases. This means that the judicial system intends to see those taken to trial as presumed to be guilty.
The presumption of guilt will have to be resisted in legal circumstances which will often be no more than what the Law Society describes as 'a contest of competing statements'. Where can there be security in convictions born of such a system?
In some cases, one of those statements will be from a police officer. Are such statements to be awarded the undeserved automatic status of 'the gold standard' of evidence in a post-corroboration Scotland?
In other cases, one of those statements will be from a complainant in an alleged rape or domestic abuse case - both notoriously unstable areas of law for proof at the best of times.
What the Justice Secretary is doing here is removing the security of the delivery of justice from the entire spectrum of case law in order to make it easier to ensure trials and convictions in what is a small percentage of that case law - sexual crime and domestic abuse.
In doing this, he is effectively pressing the law into the role of a casting director in the theatre the courts will become - with all women cast as 'victims' from the outset and all men legitimate suspects of sexual crime and domestic violence.
There is a final risk from this vacuously dangerous proposed revision to Scots law - and its identification came from Dr Tiffany Jenkins, who pointed out: 'Despite the rhetoric of placing the victim at the centre of the justice system, moves in this direction [Ed: loss of the requirement for corroboration] usually end up empowering the state against the people.’
Note: We will shortly publish an example of the difficulty for a jury in deciding between two competing statements to court, with one from a police officer. We will also be returning to an examination of issues of policing in relation to this and other aspects of this Bill.
