Leader: Carloway’s modernisation is based on sound judgment

Published on 18/11/2011 00:00

THERE has always been a danger that the justifiable pride its practitioners have in our distinct Scottish legal system manifested itself from time to time in a prickly reluctance to accept there could be flaws in Scots law, an attitude which, in turn, gave rise to a suspicion of demands for reform.

Some of the reaction to the proposals contained in the 400-page report to the Scottish Government published yesterday by Lord Carloway, which critically examined aspects of our court procedures which have their origins in practice dating back centuries, appeared to reflect such attitudes.

Lord Carloway was charged with taking a dispassionate look at Scots law after the Supreme Court’s judgment in Cadder case last year found it was not compliant with the European Convention of Human Rights. Given this lack of compliance with what has become our ultimate legal jurisdiction, that of Europe, it is not surprising Lord Carloway has recommended substantial change.

The most radical proposal, and the one which attracted the most comment, was his call for the requirement for corroboration in evidence, a Scots legal concept which has been applied for hundreds of years, to be abolished. Human rights lawyers immediately argued that by ending the need for two pieces of evidence, the likelihood of an injustice was increased. Others, notably campaigners for more convictions in rape cases, where corroboration is difficult, welcomed the call.

While the objections have some resonance, it would pay those opposed to this change to study Lord Carloway’s reasoning. He argued the requirement for two sources of incriminating evidence was “archaic”, saying it had “no place in a modern legal system”; he called for greater emphasis on quality of evidence, rather than quantity, and for greater trust in juries and judges. Looked at rationally, it is hard to disagree with this conclusion, provided that convictions are, indeed, based on a better quality of evidence, something which is not always the case in our courts.

Beyond corroboration, many of Lord Carloway’s recommendations accept the European legal realities. So a new, more straightforward “arrest on suspicion of” status for all suspects taken to the police station, which would also give them immediate access to a solicitor whether they are to be questioned by police or not, is inevitable and, on balance, just.

Other recommendations, including the retention of no adverse inference being drawn from a suspect remaining silent during police interview; greater safeguards for questioning under-18s and vulnerable adults; and speeding up and simplifying the appeals process, all make sense if our legal system is to adapt and change. It now falls to the Scottish Government to legislate based on this report. It should do so in a way which allows the best of our tradition to be retained while ensuring the Scots legal system does not ossify.