Lord McCluskey writes that it would be a serious and historic mistake for the Scottish Parliament to brush aside concerns over proposals to end the requirement for corroboration in serious crimes
ALMOST unanimously, the higher judiciary in Scotland, and the retired Lord justice generals, have strongly opposed the bizarre proposal to end the requirement for corroboration in the proof of serious crime in Scotland. Having had a lifetime of experience in the criminal law in Scotland, I add my voice to theirs.
I practised in the criminal courts – at every level – for half a century: for the defence for 15 years, and, for 12, conducted High Court prosecutions. I was solicitor general for Scotland for more than five years. I was a judge of the High Court for 20 years (and previously sheriff principal), sitting in numerous criminal trials and appeals. I also played a substantial part in preparing and assessing legislative proposals in the House of Lords. My hands-on experience of the merits and values of Scottish criminal laws governing procedure and evidence is not surpassed by those whose advice the justice secretary cites in favour of this ill-thought out change.
Judges have no axe to grind in this matter. They speak from long, close experience. Many served for years as Crown prosecutors. It would be a serious and historic mistake for Scottish ministers, and the Scottish Parliament, to brush aside their judgment on the basis of the arguments of policemen, prosecutors and organisations representing victims of sexual assault.
I will not repeat the arguments advanced by others, such as the Faculty of Advocates and the Law Society of Scotland. But I wish to point to the weakness and the bias of the advice on which the justice secretary relies: he himself has no experience of conducting trials in the High Court.
Consider the position of the police. Their perspective is stated by Chief Superintendent O’Connor in The Scotsman on 16 December: “The police will continue to conduct thorough investigations, gathering all the evidence and reporting the full facts and circumstances to the Crown Office and Procurator Fiscal Service.” Believe that if you will: but policemen are not saints. On 6 January, The Scotsman reported that more than 100 serving officers stand accused of crimes, including rape, sex attacks, violence, theft, abduction and more.
But, leaving aside Scottish experience, just think of how the police south of the Border fabricated evidence in the Hillsborough disaster inquiry and the Birmingham Six case – only one of several cases in which the police fabricated or concealed evidence in order to secure conviction of people that they believed to be guilty.
The Lawrence case is another in which, at best, the police did an extremely poor job of investigating inconvenient truths. The police practice of manipulating the evidence to get round the restrictions of the law governing admissibility and sufficiency was publicly described by one of the highest ranking police officers in the country as “noble cause perjury”.
There have been numerous cases in which the police neglected to report “the full facts and circumstances”. Just think of the Jimmy Savile saga – countless cases in which the police, often on friendly social terms with Savile, turned a blind eye to the evidence. And that was in England where the Scottish rules on corroboration do not apply.
Anyone with daily experience of our courts will have encountered cases in which the police have fabricated incriminating evidence. PC Wallis of “Plebgate” fame is another recent example.
So, one of the main reasons why we need corroboration is that the law’s requirement of supporting evidence compels the police to investigate the background before presenting the evidence to the fiscal. Anyone with experience knows that, in sexual assault cases, an alleged victim, however plausible, has sometimes been shown – by defence investigations – to be lying about the central facts. On 7 January, The Scotsman reported the case of Natalie Mortimer, who was jailed in Aberdeen “for falsely accusing own grandfather of rape to claim cash”.
Most policemen do an honest, competent job; but the courts are not there to support the police. Their purpose is to do justice according to law. Within that principle, a fundamental concern of the courts is to ensure that injustice is not done as a result of the too-ready acceptance of claims by alleged victims: their evidence needs to be independently tested.
In the fiscal service, lawyers spend their entire careers co-operating with the police and seeking to secure convictions. They work at a personal level with the police and accept most police recommendations for prosecution. That “teamwork” experience inevitably creates a biased mindset.
The Crown Office used to be constitutionally independent; but the law officers are now recruited from the middle ranks of the fiscal service to what is, in effect, a promoted post. The government’s “director of justice” is a civil servant with no experience of prosecution. Decisions in rape cases were never taken by the fiscals: they were taken by independent Crown counsel; it was disingenuous of the Lord Advocate to suggest on television that judicial critics had little experience of the background to these decisions.
A vital point has not been properly addressed. In rape cases, for centuries, it was essential to prove that the sex had been forced by means of violence or the threat of violence. Proof of that inevitably required evidence of injury, or damage to clothing or the like. But the courts recently abolished the violence requirement: it was enough to prove “no consent”. But the absence of consent still had to be corroborated. If corroboration now goes, it becomes a simple case of believing one person’s evidence against another’s. So, if a relationship ends badly and the parties fight about custody of children, the mother can accuse the father of rape. If she is believed, he goes to jail: she gets custody. Anybody with experience knows that in bitter custody disputes, truth is the first casualty: any lie that serves the purpose will do.
There are other ways of dealing with the problems that the Lord Advocate suggested to the justice committee. I urge the Scottish Parliament to make the government think again.