Kenny MacAskill must take blame for shambles over corroboration says Dani Garavelli
WERE it not for the morally superior tone Kenny MacAskill adopted as he pressed ahead with plans to abolish the requirement for corroboration, it might have been possible to feel sorry for him as he announced his humiliating U-turn last week. After all, the Scottish justice secretary is trying to improve the lot of victims of domestic violence and rape who are failed by a system ill-equipped to deal with offences so often committed behind closed doors. And the decision to shelve the Criminal Justice Bill until after Lord Bonomy’s report on alternative safeguards to protect against potential miscarriages of justice has been published is the right one, even if it is clear that it should have been taken much earlier.
However, given MacAskill has repeatedly cast those who oppose his plans as Better Together plotters or enemies of the oppressed, his climb-down was greeted with schadenfreude. In Holyrood, Ruth Davidson and Johann Lamont took pleasure in reminding MSPs of his past crimes to civility and baiting Alex Salmond to stick the knife in, a temptation he was obliged to resist given the impending referendum.
But nowhere was the glee more unrestrained than among lawyers whose objections have been dismissed as a knee-jerk attachment to an outdated concept rather than a concern for the proper administration of justice. On Twitter there was a degree of gloating.
Arguably, the polarisation of the argument has been part of the problem. With one side exaggerating the potential benefits of the move and the other exaggerating the potential risks – and each side impugning each other’s motives – the atmosphere has become increasingly rancorous and less conducive to negotiating a compromise.
In the pro-camp, campaigners have continually overstated the positive impact of abolition, implying it would increase the number of rape convictions (though our conviction rate is broadly similar to that in England where there is no requirement for corroboration) and more or less dismissing concerns over false allegations (they’re not as common as the Daily Mail would have us believe, but they do exist).
They have also played down the fact that jurors tend to look for corroboration even if the law does not demand it and that most other systems which do not require two separate and independent sources of evidence have radically different jury systems and a guilty/not guilty verdict (whereas we also have Not Proven).
Meanwhile, the anti-abolition camp has stoked fears that, without corroboration, cases based on the flimsiest of evidence will reach court and police officers will no longer bother looking for other potential sources of evidence. On the first count, we have already been assured that cases will be brought only if there is a reasonable prospect of conviction. And, on the second, the reluctance of juries to convict in rape cases means prosecutors will continue to strive to build the strongest possible case.
It is MacAskill’s obduracy which has brought about this state of mutual hostility. It was clear to most people from the moment the Cadder ruling made changes to the Scottish criminal justice system inevitable that a piecemeal approach to overhauling it would cause more problems than it solved. Yet when Lord Carloway’s report came out in favour of abolishing corroboration, the Scottish justice secretary seized on the idea despite opposition from the legal fraternity. Provisions contained in the bill to change the jury majority required for conviction from 8/7 to 10/5 were not enough to convince the majority of High Court judges, the Law Society of Scotland or the Faculty of Advocates of the wisdom of the move, yet he charged on regardless.
It took until January this year – more than six months after the bill had been passed in principle – for MacAskill to announce a review of alternative safeguards, and even then he refused to countenance a delay, insisting that even if the bill became law in the interim, the abolition of corroboration would not take effect until the recommendations had been delivered. MacAskill continues to insist “the case for abolition has been made” yet he has done little to clarify how it will work in practice. For example, what precisely will the “quantitative and qualitative test” which is to be applied to ensure “sufficiency” of evidence in the absence of corroboration entail? Justice Scotland wants to see clear rules established, but, as things stand, all we have is vague pledges.
Putting the bill on ice at this stage is not ideal – not least because it deals with a series of other unrelated matters – but at least it allows for a more holistic overhauling of the system. Although there is a risk Lord Bonomy will recommend measures that would be unacceptable to anti-rape campaigners – such as a requirement for a unanimous verdict, which would reduce rather than boost conviction rates – there is also a chance he will come up with a set of proposals that will see rape victims gain greater access to the court system without a concomitant increase in the potential for wrongful conviction.
This would be a win-win situation because, despite MacAskill’s suggestions to the contrary, most of his opponents do want to see more rape and domestic cases to come to trial; they just want to be sure this goal can be achieved without undermining the basic principles of justice. «