Michael Kelly: Considering rule of corroboration
CORROBORATION is a fundamental part of a fair justice system. The principle means that at least two different and independent sources of evidence are required before a defendant can be convicted of a crime. So self-evident and basic is this principle that it is surprising Scotland is one of the few countries to retain it. But it has been part of our system even before David Hume, possibly Scotland’s greatest thinker, pronounced that “… no-one shall in any case be convicted on the testimony of a single witness”. Our law, to a much greater extent than that of England, is based on Roman practice, and the Code of Justinian read: “We plainly order that the evidence of only one witness shall not be taken.” It is doubly puzzling that a government allegedly dedicated both to defending the unique culture and traditions of Scotland and to civil rights should want to abolish such a safeguard against wrongful conviction.
The driver to making this abrupt break with Scottish tradition arose from the Cadder case, in which a UK Supreme Court ruling put an end to police being able to question suspects for six hours without their lawyers being present. If ever there was an abuse this was it, but it had not been corrected either by the judiciary or the Executive. Yet after a change enforced by European legislation and interpreted in London, the Scottish Government commissioned a review of the law of corroboration and accepted Lord Carloway’s proposal that it should be abolished.
The suggestion was immediately opposed by most of the rest of the Scottish judiciary. The senators of the College of Justice argued that the Scottish courts had on many occasions “been grateful for the requirement of corroboration, which in our view provides a major safeguard against miscarriages of justice”. Even rank and file police officers came out against the proposed change. The Scottish Police Federation stated: “We certainly don’t believe that anything should be done that makes it easier to convict anyone of anything,” adding that the rule provided “fundamental safeguards”. This week, Lord Hope, a most senior and authoritative legal voice, added his specific concerns.
The road to this change has been paved with good intentions. Too many rape accused have been able to avoid conviction because, by the very nature of the offence, witnesses are rarely present. But hard cases make bad law. Bleeding hearts over the number of rapists who appear to have got away with their crimes have overridden the hard-headed necessity to create a just law.
There is an exceptional problem with rape and it should be tackled by addressing principles and procedures applying to those particular cases, not by discharging a shotgun to blow holes in a system that has stood Scotland well since time immemorial.
The dangers are too great. If the proposal passes through Holyrood, then an alleged perpetrator’s confession will be enough to convict. We have seen enough miscarriages in England due to fabricated or extracted confessions to reject a step towards its inferior system. Plebgate and its continuing fall-out show how easily it is for suspicions to arise that the police might lie, not just to oust an unpopular Cabinet minister, but to promote their dispute over threats to their working conditions. Police evidence on its own is always unsatisfactory, even when one officer backs up another. What would you expect them to do when a case has come as far as court? Now one officer’s evidence will suffice. The Crown Office promises that the prosecuting authorities will continue to look for supporting evidence. But that has now become a search at their discretion rather than a demand of the system. The government’s stated aim is to make conviction easier – not surely the most important goal of a legal system where protection of those wrongly accused has always been the priority. With that political imperative the Crown Office will be expected to hit higher targets and is unlikely to want to make it more difficult for itself to do so.
This government has a poor record when it comes to the administration of justice. Abdelbaset Ali Mohmed al-Megrahi was released on the same bleeding heart excuse before his appeal against conviction might have revealed his innocence – and a failure of the Scottish justice system over his conviction in the first place. You will remember he had to withdraw his appeal as a condition of his release.
The introduction and implementation of the Offensive Behaviour at Football Matches Act is a current example of this government’s contempt for civil rights. First, the act curbs freedom of speech in the political arena. Second, it does so under legislation that does not clearly define what is “offensive behaviour”. Fans go to matches in the limbo normally associated with totalitarian regimes, of not knowing what the offence is until the police decide to tell them. Due to the heavy-handed way in which the police operate, there is now a perception of intimidation spread by the special unit set up to deal with these offences. Yet, given these widespread and generally accepted criticisms, the government has refused to order an early review of this law.
The SNP drew a lot of votes over its voluble opposition to dawn raids on illegal immigrants due to be deported. Yet dawn raids are occurring every week. Early Tuesday morning, in true secret police style, is the time for our constabulary to swoop on the homes of those they have videoed at their leisure on Saturdays and Sundays.
Even fans who are not yet convicted are, by the bail conditions insisted on by the police, banned from attending games until their cases are heard – punished until proven innocent.
It is into such a mess of undemocratic law and obscured collaboration between the government and its enforcers that we are asked to accept a further weakening of the accused’s rights. Given the monolithic police force we now have, its powers must be even more securely checked and balanced. Now is certainly not the time to hand even more power to the state.