How much evidence do you need for a knife crime conviction? Is photographic proof not enough?

Published on Friday 11 February 2011 14:12

NINO Young, 20, and Daniel Wignal, 17, stand back to back and thrust their knives towards the camera. The image, which was posted on the social networking site Bebo, is a sickening reminder of the obsession young Scottish men still have with blades. They hold them aloft like trophies as Young sneers at the camera and Wignal bares his chest.

When police saw this picture they naturally believed the East Kilbride pair should be prosecuted for possession of a bladed weapon in a public place. They could also have faced breach of the peace charges.

It comes at a time when the tragic consequences of Scotland's knife culture are being keenly felt following the death of Blantyre teenager Reamonn Gormley.

From the people of Blantyre who turned out in their hundreds to honour Reamonn, to the policemen and politicians who lined up to call for a clampdown, it seemed the country was united in the war against the insidious evil of knife crime.

And then last week it was revealed that the Crown Office had taken the extraordinary decision to drop the case against Young and Wignal, saying there was insufficient evidence to proceed.

It was one of 867 cases dropped by the Crown Office as a result of a Supreme Court ruling that suspects must be offered legal assistance during police interviews, or anything they say is automatically inadmissible in court, but few cases will shock the public more. Could the evidence have been more compelling? What do Scottish criminals need to do before they face justice if taking pictures of themselves in the act is not enough?

• Knife crime: sharp facts

The very fact the photograph was taken and then posted on a popular website for the world to see was two fingers up to the Scottish justice system and any pretence of a crackdown on knife crime. And the fact that prosecutors then dropped the case will be seen as a green light for other young thugs to carry knives and a kick in the teeth for campaigners and victims.

John Muir, 71, has campaigned for tougher laws since his son Damian, 34, was stabbed to death in Greenock by Barry Gavin, who had twice previously avoided prison after being caught carrying knives.

"This is where the law is an ass," he said. "We have got to do more to support police in this. These two boys have done this with bravado, for street credibility, and everything else they think goes with knife crime. It portrays nothing other than a complete disregard for the law. They're essentially saying to the police and justice system: 'Come and try and get us if you can.' And we didn't.

"It's disgusting that they are able to flout the law like that, and it's going to fuel other young men's desire to do likewise.They will say: 'Don't worry about the police, they can't do anything to us.' It's the justice system gone mad."

Muir, who has repeatedly addressed MSPs at the Scottish Parliament, added: "Nearly four years ago when my son was stabbed to death, the majority of people who got in touch acknowledged that, but for the grace of God, it could have been their child.

"It's great to have that support, but it seems nothing is being done to stop it happening again."

At a time when knife crime is seen as one of the great scourges of Scottish society and politicians promise clampdowns, it seems inexplicable that no case was brought against these youths.

So why did a seemingly cast-iron case, in which the perpetrators were arrogant enough to provide the cast-iron evidence on their own websites, fail to result in a conviction?

The answer lies in the so-called Cadder verdict that has thrown the Scottish legal system into turmoil as a result of the ruling that police can no longer question suspects without a lawyer in order to comply with European human rights laws.

In the case of Young and Wignal, the Crown had to be able to prove that the two youths were brandishing their knives in a public place. Had they been mucking about with their weapons in a private place, then it would not have been a crime.

Scotland on Sunday understands that one of the youths admitted during a police interview that they were, in fact, in a public place. Before Cadder, that would have been strong enough evidence to corroborate the photograph, which, in any case, bears no resemblance to a private garden.

Looking at the photo, would a jury really have doubted whether it took place in public? More than a dozen trees can be seen in the background, which is the size of a football pitch, with more land almost certainly existing outside the camera shot. Just how big a back garden are these boys supposed to have?

Since the Cadder verdict, however, an admission made to police officers without a lawyer being present is no longer admissible in court.

Scotland on Sunday understands that the fiscal sent the case papers back to the police, who - apart from what was said in the interview - were unable to provide corroborating evidence that the offence occured in a public place.

"That was the only reason it was dropped," a legal source told Scotland on Sunday. "The police could not preclude that it could have been a private garden or a private wood. The Crown's hands were tied and that was the end of the case."

Perhaps that difficulty offers some explanation as to why a busy prosecuting system, which has to judge each case on its likelihood of conviction, came to the conclusion that it did.The main problem thrown up by the Peter Cadder ruling in the Supreme Court, is that evidence from interviews already carried out is no longer admissible as corroboration.

Corroboration is a pillar of Scots law, carrying more weight than in other jurisdictions, and admissions in interview have often been used as the second piece of evidence needed to secure the conviction.

In the 867 cases dropped by the Crown Office as a result of Cadder, the problem was that that evidence was no longer admissible.

The fear is that in future, if lawyers advise suspects to remain silent under questioning, then such evidence may never be gleaned in the first place.

Because of this, both corroboration and the right to remain silent in interviews with no inference of guilt being taken as a result, are under the microscope.

The Lord Carloway review, set up in response to the Cadder ruling, will make recommendations to the Scottish Government on whether they should remain as staples of Scots law.

However, the reference group set up to advise the judge contains a number of people who would appear likely to back both principles.

One of them, Peter Duff, professor of criminal justice at Aberdeen University, said: "Corroboration is a very valuable safeguard against miscarriages of justice. When you think an identification in the dock counts as evidence - to convict the accused on that alone would be very risky.

"There may be scope for requiring corroboration for some offences and not others. That will be something for Lord Carloway to think about."

But even though that legal debate continues, there are still some observers who will say there is mounting evidence that checks and balances in the legal system to try to ensure justice have swung too far in favour of the criminal, and society is now suffering for it.