Lord Carloway tenet ‘lacks rigour’

Depending on your sense of history, over the subsequent two years there has either been an Eric Liddellesque sprint by the Scottish Government, head back and arms flailing, to abandon ancient and distinctive Scottish legal principles, or a tortured marathon to modernise procedures against the forces of inertia.

Either way, the finishing line is in sight, with, it appeared last week, Scotland’s senior judges jostling for the lead with the Scottish Government.

Within days of the UK Supreme Court ruling, the Scottish Government passed emergency legislation in the shape of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act that seemed to hold the rights of the suspect line drawn in the Cadder decision.

Justice Secretary Kenny MacAskill also commissioned Lord Carloway to conduct a broader review of the contingent changes that might be required, including the status of child suspects, extending the time during which police could question a suspect before charging, scope for continuing investigation while a suspect is in interim liberation, the prospect of holding courts at weekends, and clarifying the role of the Scottish Criminal Cases Review Commission. Most controversial was his instruction to consider whether the unique Scottish requirement for corroboration of evidence by two independent sources should be retained.

Critics immediately questioned the implication that the new hurdles placed in front of the prosecution by the Cadder decision should be “balanced” by making things easier for them elsewhere in the process.

Lord Carloway invited views on these matters and reported in November 2011. Many of his recommendations were broadly welcomed. By far his most controversial recommendation was, in spectacularly blunt terms, that corroboration was based on “medieval” thinking, was wasteful of time and effort, and appeared to be no guarantee against miscarriage of justice compared to other jurisdictions that do not have it. If it is doing no demonstrable good, he argued, why persist with it? His perspectives were quickly endorsed by the prosecution authorities.

Lord Carloway laid down a specific challenge to those who disagreed with his recommendations that they should come up with evidence, not just debate, if they wished to challenge his conclusions.

In July 2012 Kenny MacAskill announced that he was minded to accepted the Carloway recommendations and launched another consultation posing 41 specific questions focused on the practicalities of implementation. Again, critics wondered what the point might be of running a consultation after the Justice Secretary had already announced that it was going to happen anyway.

The consultation period ended at the beginning of this month, with more than 50 submissions lodged by the deadline. A few late submissions have been straggling in since, including last week the views of the Faculty of Advocates and the Senators of the College of Justice, Scotland’s senior judges.

The Faculty of Advocates reiterated in particular its concern that it makes no sense to abolish corroboration without addressing the issues of Scotland’s other unique practices such as the 15-person jury, the acceptability of verdict delivered by a simple majority, and the availability to the jury of three possible verdicts.

There is a member’s bill in the Scottish Parliament pipeline aiming to abolish the not proven verdict which itself acknowledges that would have consequences for continuing with the simple majority.

The faculty called for a royal commission to consider all these matters rather than legislate in haste to abolish corroboration and repent at length when the courts unpick the collateral damage that follows. Royal commissions have rather fallen out of favour with governments on the grounds of being time consuming, expensive and not always helpful.

Similarly, the submission lodged by the senior judges (minus Lord Carloway) accepted most of the proposed changes, including the extension of the definition of child up to the age of 18 – and the added protections that will surround them when suspected of committing a crime – that may not have been noticed in the quarters where criminal justice is customarily derided as too soft, but they fiercely opposed the abolition of corroboration.

In the past, their lordships have not always been politically adept but, as a Parliament House insider observed: “It isn’t credible that the opposition to abolition of corroboration would have been set out so clearly without the agreement of Lord Gill. It’s a definite challenge to the government.”

Their lordships found their opposition to abolition on “experience”. They assert that “the Scottish courts have on many occasions been grateful for the requirement of corroboration” and “the evidence we have to support our position is experience of many trials”.

Along with most of the opponents of the proposal their lordships have not accepted Lord Carloway’s two-year-old invitation to produce evidence that confounds his conclusions.

Was that possible? To some extent. Lord Carloway was proud of basing on “research” his further assertion that the need for corroboration has impeded prosecution of some offences, and in particular sexual offences. The research comprised a review conducted within the Crown Office of a number of cases that had been dropped for lack of corroboration.

Freedom of information enquiries by The Scotsman asked for details of the research protocols, such as methodology on how the cases for review were selected; how the reviewers were selected; whether there were controls put in place to check the assessments of the reviewers; and what the understanding of the reviewers was of the test of “reasonable prospect of conviction” they purported to apply.

The responses indicated that the Crown Office has only a vague notion of what is meant by research protocol. There were no controls in place and no definition of methodology beyond a description of how they went about it. From an academic perspective the research – and the claims it apparently underpins – are wobbly.

Professor Fiona Raitt of the University of Dundee said: “My sense is that there was not enough evidence about the study to assess its conclusions, or the validity or reliability of its methods. For example, the two main researchers, two procurators fiscal, were apparently applying the English test of reasonable prospect of conviction for launching a prosecution, a test by definition they have never applied. It would have been more revealing to ask experienced English prosecutors to look at the files.”

Richard Sparks, professor of criminology at the University of Edinburgh, added: “I really welcome any effort in a report of this kind to be both systematic and open about the evidence on which its conclusions rest. Until quite recently lawyers, and perhaps especially judges, were not particularly committed to this approach. Perhaps this was because it was generally their own expertise that gave authority to the inferences – what some people call ‘eminence-based policy’ as distinct from ‘evidence-based policy’.

“The annexe is not a very detailed or methodologically precise document. We know that the fiscals made these judgments but not exactly how.

“And we don’t know how exactly they came to an agreement or what happened if they didn’t – a criterion generally known in some analogous research tasks as ‘interrater reliability’. I think there is probably a need for more detail, more explicit methodology, more training in research methods and frankly, well, more corroboration.”