LESS than 48 hours after the Scottish Government dropped the scrapping of the requirement for corroboration from the Criminal Justice (Scotland) Bill, former justice secretary Kenny MacAskill wrote a huffy first-person piece in which he continued to blame others for the collapse of his flagship policy.
While expressing some sympathy for the need to build a consensus on the divisive proposals, he presented the controversy as a good-versus-evil showdown between those who support victims of rape and domestic violence (yay) and heartless lawyers with vested interests (boo). This despite the fact Sandy Brindley, from Rape Crisis Scotland, last week welcomed the decision to put the plans on the back-burner until after the Holyrood elections in 2016, saying: “It is probably a good thing they are going to take some time to properly look at the implications.”
That a woman who spends her life campaigning on behalf of the vulnerable could accept such a fundamental overhaul of Scottish law must be subjected to the most rigorous scrutiny, while MacAskill kept bleating about having been thwarted, may explain how the SNP got into this mess in the first place. As an increasing number of legal experts voiced misgivings over the proposals, MacAskill tried to railroad his plan through the Scottish Parliament, distorting the arguments to suit his agenda and lashing out at everyone who disagreed with him; in one intemperate exchange, he even suggested his opponents were part of a unionist plot. This arrogant monomania, which saw him ignore criticism to push ahead with other unpopular plans, such as the building of a new women’s jail in Inverclyde (now also overturned) and the release on compassionate grounds of Lockerbie bomber Abdelbaset Ali Mohmed al-Megrahi, was a hallmark of his tenure, and a reason why his legacy is now taking a battering.
The original decision to reassess the principle of corroboration (which requires two independent pieces of evidence for the essential facts of the case only) was well-intentioned. This ancient tenet of Scottish law was seen as an obstacle to getting rape, domestic violence and other cases which, by their nature tend to take place behind closed doors, into a courtroom. With a stubbornly low rape conviction rate in Scotland, there was a concern those who had experienced sexual and domestic violence were being failed by a legal system which placed more emphasis on the rights of the defendant than the rights of the victim.
It was quickly apparent, however, that the abolition of the requirement for corroboration could not take place in isolation. Though it is true Scotland is the only jurisdiction which demands it, it is also the only jurisdiction with a not proven verdict and the only one in the English-speaking world in which a jury can convict on a simple (8/7) majority, so legal experts were asked to explore other changes – such as a move to a minimum 12/3 majority – which could act as safeguards against possible miscarriages of justice.
Soon, the debate began to polarise, with both sides overstating their claims. Proponents of the proposals spoke as if the move would guarantee justice for victims – though juries often demand corroboration, even where the law does not – while critics tended to overplay the role of juries, given less than 1 per cent of cases in Scotland are heard by them.
Academic lawyer (and leading nationalist commentator) Andrew Tickell highlighted another flaw in the plan: Scottish courts were already struggling to deal with existing cases. Unless more resources were made available, or an alternative mechanism for limiting the number of prosecutions was introduced, they wouldn’t be able to cope with the increase in their workload.
Previous reports had already highlighted the pitfalls, but it was Lord Bonomy’s review last week which led the Scottish Government to apply the brakes. As Bonomy recommended corroboration should still apply where evidence is obtained by hearsay or confession, MacAskill’s replacement Michael Matheson finally accepted a more considered and holistic approach was necessary.
The whole debacle raises serious questions about the SNP government and feeds into a growing sense that it often acts impetuously and without proper rigour. Speaking after the U-turn, former solicitor general Lord McCluskey said the party squashed concerns within its own ranks in the run-up to the referendum and that the way the affair was dealt with should ring alarm bells for democracy. The Scottish Government should have acted earlier, but perhaps Matheson’s climbdown represents a recognition of previous high-handedness and a willingness to proceed in a more measured manner; if so, such a shift is welcome. With no second chamber, it is doubly important every new piece of legislation that passes through Holyrood is checked and rechecked and that all constructive criticisms are taken on board.
Looking to the future, I hope the delay will not be used to quietly drop a policy which has proved to be a thorn in the SNP’s side. The existing proposals were ill-thought out, but this does not mean the requirement for corroboration should continue to exist in its current form indefinitely, or that the system isn’t due a radical overhaul.
Some leading lawyers, including Tickell, have suggested an alternative way forward may be to allow the courts to decide that it is possible to proceed without corroboration of the essential facts, on a case by case basis, although the criteria on which such decisions should be based would have to be thrashed out.
The poor handling of the scrapping of the requirement for corroboration means there is no choice but to shelve it for the moment. Given time, however, and a climate of co-operation rather than mutual antagonism, there is no reason why a means of ensuring greater access to justice for victims of rape and domestic violence could not eventually be found. «