Key ‘safeguard’ in Scottish law should be axed, says review
Lord Carloway puts forward his proposal for change yesterday. Picture: David Cheskin/PA Wire
THE centuries old legal safeguard of corroboration should be scrapped, a senior judge has said, as part of the biggest shake up of Scots law in a generation.
Lord Carloway, who sits in the inner house of the Court of Session, the highest in Scotland, said the requirement for two sources of incriminating evidence was “archaic” and had “no place in a modern legal system”.
He has also recommended a new, more straightforward “arrest on suspicion of” status for all suspects taken into custody, which would give them immediate access to a solicitor, whether they are to be questioned by police or not.
However, that could lead to a rise in the Scottish Government’s legal aid bill, with more lawyers needed.
Other recommendations include the retention of no adverse inference being drawn from a suspect remaining silent during police interview, greater safeguards put in place for questioning under-18s and vulnerable adults, and speeding up and simplifying the appeals process.
Police would have 12 hours to either release or charge a suspect – rather than 24 – who should not be held for more than 36 hours in total before appearing in court.
Lord Carloway stopped short of recommending Saturday courts to speed up the justice process, but hinted that would be a possibility if people were regularly being held too long. He also called for “investigative liberalism” – urging against holding suspects in custody, unless absolutely necessary, while police inquiries are ongoing.
The recommendations follow a year-long review by Lord Carloway in the wake of a high-profile human rights decision by the UK Supreme Court. The Cadder ruling found Scots law was not compliant with the European Convention on Human Rights, because suspects were being interviewed by police without first being offered access to a lawyer.
The Scottish Government passed emergency legislation and asked Lord Carloway to carry out an in-depth review on the future of Scots law.
Launching his 400-page report yesterday, he said his recommendations to ministers would create “a modern, fair, effective and distinctly Scottish criminal justice system”.
Lord Carloway argued miscarriages have been caused – rather than averted – by corroboration, pointing to new Crown Office statistics that show 58.5 per cent of a sample of 458 cases dropped by prosecutors had a “reasonable prospect of conviction”.
He called for greater emphasis on quality of evidence, rather than quantity, and for greater trust in juries and judges.
Lord Carloway said: “A majority of persons, especially lawyers practising in criminal law, regard corroboration of testimony as an important aspect of their professional lives. The review is, however, in no doubt that the requirement of corroboration should be entirely abolished for all categories of crime.”
However, his findings will divide opinion in the legal profession, with both lawyers and judges having argued in favour of keeping corroboration during the consultation process.
Cameron Ritchie, president of the Law Society of Scotland, said: “We have grave concerns in respect of the proposal to abolish the requirement for corroboration. Before taking the radical step of abolishing what has been an integral part of Scots criminal law since time immemorial, there would have to be an overwhelming case for that change presented and, in our opinion, the review in itself does not achieve that.”
Paul McBride, QC, backed Lord Carloway. “I’m not sure corroboration ever was a great safeguard, because you can get two unreliable witnesses,” he said. “It does not mean there will be more prosecutions or more convictions. Although, one area it may affect numbers is in sexual offences.”
Corroboration is harder to obtain in rape cases that are rarely witnessed. Despite this, Scottish Women’s Aid admitted to being wary of the recommendation.
“We hope that this will not lead to a situation where only ‘sure win’ cases, where complainers have the most robust testimony, would have their cases taken to trial,” a spokeswoman said.
It will now be up to the Scottish Government to consider the recommendations.
Justice secretary Kenny Mac-Askill described the review as “thoughtful and logical” and something to build on.
“I look forward to considering these significant recommendations in detail as a basis of making further and wide-reaching improvements to Scotland’s distinct justice system,” he said.
A Crown Office spokeswoman added: “The Crown will give careful consideration to the recommendations and will work with criminal justice partners and the Scottish Government in relation to any proposals that arise from the review.”
The cost of the recommendations are not yet known.
Martin Morrow, solicitor advocate at MTM Defence Lawyers, said: “One thing that is not contained in the report is funding.
“Access to solicitor from point of arrest in every case – I’ve no idea how you fund that without a massive extra spend in the legal aid budget.”
A spokesman for the Scottish Legal Aid Board said: “Like others, the board has just received the report. It is too early to estimate what the impact of the recommendations might be.”
Police and victims have welcomed the recommendations.Chief Constable David Strang, of the Association of Chief Police Officers in Scotland, said the recommendations were “significant” and “herald major change”.
Susan Gallagher, of Victim Support Scotland, added: “The recommendation to eliminate corroboration in Scotland is particularly welcome as long as any test applied ensures that it does actually lead to better quality of evidence.”
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Wednesday 22 May 2013
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