Lord McCluskey, a former Senator of the College of Justice, Scotland, cogently berated Nicola Sturgeon and the SNP government for their part in the legislation which abolished corroboration as “a means of demonstrating the truth” in criminal cases (Letters, 7 April).
He said “those who practise in the justice system have always understood” the crucial importance of corroboration. We were also informed that this “unwise departure from our centuries-old, and tried and tested rule of evidence flew in the face of the opposition from the vast majority of those who had day-to-day experience of criminal cases”.
Sturgeon, given her problems with the uncorroborated leaked memo, should now, he contends, “realise that others have need of access to this instrument of justice”.
The courts are clearly a crucial “instrument of justice” but a “centuries-old, tried and tested rule of” immunity has ensured that clients who incur the consequences of their lawyers’ negligence in court will be denied access to justice, thanks to an 1876 Court of Session judgment: Batchelor v Pattison.
This decreed that lawyers could not be sued, however negligent their performance was.
Access to the courts as a “means of demonstrating the truth” is denied to the beneficiaries of that negligence. Those “who practise in the justice system have always understood” that, and are clearly very grateful for the protection they receive from the “principle” of immunity – ergo they have never questioned it, but have always supported it.
Clearly immunity “flew in the face” of the very concept of justice. However, this “instrument of justice” is not available if the professional negligence of lawyers is confined to the court, and any pre-court work linked to that negligence.
Despite extensive searches, no evidence can be found of any members of the legal establishment standing up for the concept of justice and the benefits of modernity by calling for the abolition of immunity for lawyers. Immunity is a greater affront to the very essence of justice than the abolition of corroboration – but not if you’re a lawyer.
I read with interest Lord McCluskey’s letter relative to the subject of corroboration.
Nicola Sturgeon submitted her case on this occasion by presenting the best evidence available.
This is what is expected in a court of law, and would continue to be the case even with the abolition of the requirement for corroboration in criminal cases in Scotland.