Michael Kelly: Case against corroboration not proven

The problem is the approach to necessary reforms has been piecemeal from the start. Picture: Robert Perry

IT IS astounding that Kenny MacAskill should declare to Holyrood’s Justice Committee that the case for the abolition of corroboration has been made. It has not. At the very least it is not proven. The argued opposition from across the legal profession to his proposal to remove a fundamental pillar of Scottish criminal justice has been so widespread, lucid and persuasive that he should immediately take it off the table, go home and think again.

His compromise offer to the committee was nothing less than an insult. He insists that the principle of abolition be accepted while some “expert” group looks into possible safeguards. But the whole argument is one of principle. To suggest that the other side let him have his way by ditching their principled opposition and then help him scramble around for new safeguards that he now concedes are necessary is the wriggling of a party politician. He is trying to extricate himself from the tight legal corner where he has been trapped by the evidence. This is not how someone interested in objectively modernising our justice system should behave.

His problem is that the approach to necessary reforms has been piecemeal from the start. First, the Supreme Court in the Cadder case destroyed the unfair advantage Scots law gave the police who led evidence obtained from a suspect who had no legal representation. There immediately followed emergency legislation to make the law compliant with the European Convention on Human Rights – an embarrassment the Scottish government had to end. After that Lord Carloway was asked to examine the law in relation to the practice of the criminal justice system. From these roots of concern for the individual’s rights vis-à-vis police interrogation came the explosive suggestion that the principle of corroboration on which much of the theory of Scots criminal law had evolved over centuries be abandoned.

And this is where MacAskill made the wrong decision. He did recognise that the change was “monumental”. That should have been sufficient reason to pause and reflect. This was the moment when a complete review of the system and particularly the consequences of making such a fundamental change should have been soberly considered. Instead he rushed ahead and incorporated Carloway’s bald recommendation into proposed legislation. A better lawyer might have recognised that corroboration is the keystone of Scottish criminal legal practice. It is an essential part of a complicated jigsaw. As a result of the requirement for this vital safeguard, unique to Scotland, a system has evolved, almost organically, to provide the balance necessary between the rights of the accused and the complainer. Remove this central plank and that balance is disturbed to such an extent that the system cannot function fairly. It is not too late for the proposal to be withdrawn and the totality of the situation examined, with Lord Carloway – who had his own good reasons for making the suggestion – as part of that process.

However, in face of opposition from a politician determined not to lose face, we instead are staggering on bit by bit, dreaming of incorporating safeguards that exist in, and are consistent with, foreign judicial systems where corroboration plays no part. The only safeguard proposed in the bill is the need for better than a majority verdict of guilt. Changing the size of juries has not been proposed. And the most farcical part of Scots criminal law – the existence of three verdicts which only offer a choice of two results – has been excluded from the bill. Carloway has been ignored here. He said he was not asked to look at juries but if he had done so he would have considered the three-verdict anomaly. The Justice Secretary has never consulted on this. It has been left to opposition back-bencher Michael McMahon to bring forward his own bill of reform, which looks like either being considered further by the Justice Committee or being referred to the Scottish Law Commission. There could hardly be a better example of the cack-handed way this issue is being treated. In fact, does the right hand know what the left is doing?

That MacAskill is diverting attention from principles to fairly trivial semantics is further evidenced by his letter to The Scotsman last week following my diatribe against anonymity for the accused – an issue raised by the Justice Committee, not his bill. He disagrees with my statement that his bill increases police powers of arrest and prefers to look upon it as a simplifying change. To me it is a change in favour of the police, as it makes it simpler for them to arrest people. I cite the Law Society of Scotland’s response to that part of the bill: “The Committee believes the current system is working well and there is no requirement to move to a system of arrest on the basis that a constable has reasonable grounds for suspecting that the person has committed or is committing an offence.”

MacAskill constantly refers to the fact that most other Western jurisdictions do not incorporate the requirement for corroboration. This isolated emphasis ignores the fundamental flaw at the heart of his proposals. These other systems have evolved in their own way, building in the safeguards necessary. By failing to take an overview he is now thrashing around looking for safeguards to tack on to his already decided position. The latest contender for excellence is the Dutch model – not one endorsed by the Celtic supporters recently tried in Amsterdam for being beaten up by the police.

There is a case for examining the role of corroboration in a limited number of crimes such as rape and domestic violence. But no informed person can be happy with the proposals as they stand. If the government wants to bring Scotland in line with other jurisdictions then instead of the current tinkering, it should simply import as a whole any of the systems that it so admires – from The Netherlands, say. Or better still, the system that we all fully understand from so many TV crime series – that of England and Wales.