Allan Massie: Why make Scots law more English?

Walter Scott resented and deplored any anglicisation of our legal system. Picture: Neil Hanna

THROUGHOUT the centuries of Union, the independence and individual character of Scots law have been vigorously defended. Along with the Kirk, our universities and distinct system of education in schools, it is one of the pillars of our national identity.

Walter Scott was a Unionist, though what Professor Colin Kidd has called a “nationalist Unionist”, but he resented and deplored any anglicisation of our legal system. Indeed once, after proposals to bring some elements of Scots law into line with English law were discussed in the Court of Session or Faculty of Advocates, he was found standing in tears outside. When asked why he was weeping, he explained that little by little this distinctiveness was being “whittled away” – by reforming Whigs – until nothing of what made Scotland Scottish would be left.

This hasn’t happened, not yet, not quite. But it’s coming, bizarrely, if the SNP government has its way.

There are good reasons for believing that in many respects Scots law is indeed better than English law. Our law of contract is superior, for example. This is manifest in the matter of house purchase. Here a contract is quickly concluded, being binding from the moment a buyer’s offer is accepted by the seller. So there is no prospect – no legal prospect anyway, as I understand it – of the practice of “gazumping” which makes buying and selling property so often a lengthy, painful and difficult business in England.

Our procedure in criminal trials is also superior. In England a criminal trial begins with a speech, often a very long speech, by the Crown prosecutor, in which he (or she) outlines the case and the evidence which he intends to lead. This statement of the case may fix certain ideas or impressions in the minds of the jury, even though they may not actually be subsequently supported by the evidence. Here in Scotland there is no such opening speech, we go straight to the evidence, and this is a much better way of doing things.

Another important feature of our criminal legal system has been the requirement for corroboration. This means that no-one can be convicted on the evidence of a single witness or a single unsupported piece of forensic evidence. The combination of a single witness and a single piece of forensic evidence is of course sufficient, but the principle remains valid that you need two pieces of evidence to convict.

The requirement for corroboration rests on the principle – fundamental to all civilised codes of law – that protection of the innocent, or perhaps innocent, is every bit as important as the conviction of the guilty. This principle may certainly offend victims of crime, who may see an accused of whose guilt they are certain walk free from the dock. Their indignation is understandable. One may sympathise with it. Nevertheless it is monstrous on the part of the state to convict and possibly imprison someone who may be innocent.

Now, after the government set up a committee chaired by the senior judge Lord Carloway, justice minister Kenny MacAskill proposes that we get rid of this centuries-old safeguard, the requirement for corroboration. This would – though Mr MacAskill hasn’t said so – bring Scots law into line with English law by removing one of its characteristic features; a somewhat odd position for an SNP minister to find himself in.

However, Mr MacAskill tells us that the requirement for corroboration “has failed Scotland”. He means, really, that it has failed, as indeed it will have failed, several victims of crime. On the other hand it has protected innocent people accused of crimes which they have not committed, but who might have been convicted if only one piece of evidence was required to send them down.

Obviously there are particular crimes, notably rape, where the presence of a second witness is unlikely, and where quite often there may be no forensic evidence to support an allegation. This is unfortunate and unsatisfactory. Yet it is equally unfortunate and unsatisfactory if an innocent person is convicted, perhaps on the strength of an unsupported allegation.

Most of the legal establishment wish to keep the requirement for corroboration. So, to their credit, do many politicians, including members of the parliament’s justice committee. The case for doing so was well put by the Liberal Democrat MSP Alison McInnes, who said: “I don’t defend corroboration because of tradition” – though this might be a good reason for doing so, since there is always a case for retaining something which has lasted a long time. “I defend it,” she said, “because it protects against miscarriages of justice, false accusations, wrongful convictions and the erosion, I believe, of the presumption of innocence.”

Lord Hope of Craighead, the Scottish judge who is now deputy president of the UK Supreme Court, calls the proposal “far-reaching and potentially very dangerous”. Lord Gill, the president of the Court of Session, calls the requirement for corroboration “one of the finest features of the Scottish legal system” and warns that its abolition may lead to more miscarriages of justice.

It’s all very odd. Here we have a feature of Scots law which has lasted for centuries and which, in the general opinion of Scots lawyers, is desirable and effective as a protection against miscarriages of justice and as an important guard against what Ms McInnes calls “the erosion of the presumption of innocence” – a presumption that is an essential element in any civilised code of law. And here, ranged against this body of opinion, which is evidently well represented in the Scottish Parliament, we have an SNP justice minister who intends to abolish a centuries-old principle of Scots law and, in doing so, accelerate the process of its anglicisation.

In his zeal for modernisation he would make Scots law less Scots, just as his party is arguing that Scotland must be independent because we are a distinct nation with our own distinct culture. You couldn’t, as they say, make it up.