Tiffany Jenkins: The innocent have rights too

Justice Secretary Kenny MacAskill. Picture: Neil Hanna
Justice Secretary Kenny MacAskill. Picture: Neil Hanna
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There is little justice in ending corroboration. In fact, the accused could end up paying the price of an unfair legal system, writes Tiffany Jenkins

IF WE took recent developments at face value, it would appear that the voice of the victim is finally being heard. Giving Victims a Voice is the title of the first report of Operation Yewtree, set up in the wake of the Jimmy Savile revelations, and currently rumbling on.

Closer to home, the Victim and Witnesses Act, passed in Scotland last year, means for victims, in the words of justice secretary Kenny MacAskill, “greater protection to their rights” and “ultimately, gives victims and witnesses confidence that their voices will be heard”.

The Victim and Witnesses Act is a move towards a system of restorative justice and makes it easier for victims to testify: criminals have to pay into a fund to support victims of crime, victims of sexual assault are able choose the gender of their interviewer, and they have the right to use measures such as screens in court and a CCTV link when giving evidence.

This week, the Criminal Justice (Scotland) Bill, narrowly passed through the stage-one vote in the Scottish Parliament. The bill, in MacAskill’s words, again, “is about bringing fairness to those who fall victim of criminal acts, including greater access to justice for victims by ensuring cases can go forward based on the overall quality of evidence”.

Among other things, it will mean the ending of the requirement for corroboration – the need for evidence in Scottish criminal trials to come from two sources to bring a criminal case to court. For centuries the accused could not be taken to court on the word of just one person with no supporting evidence. Now, it looks like this safeguard will be scrapped.

Another victory, supporters of the bill claim, for victims.

But the Criminal Justice (Scotland) Bill is controversial. MacAskill had to rely on the SNP’s majority to get it through. After a stormy debate, it was approved in principle by only 64 votes to five, with 57 abstentions. That’s hardly a resounding success. And there are many important critics. Senior legal professionals and MSPs are lined up against the removal of corroboration.

Are the proponents of the bill right, when they accuse those who voted against it of “selling out victims of crime”? No, they are wrong. It is critics of this bill whose voices should now be heard.

When powerful politicians tell you they are changing ancient rules of law in the name of the victims, we have to interrogate their case. I don’t doubt the motivations of those that include the Scottish Government, the Crown Office, Police Scotland and campaign groups – it’s just that good intentions don’t always mean justice.

The problem with removing corroboration, as pointed out by the Law Society of Scotland, is that for any conviction to be safe it needs to be based on more than the testimony of the complainant alone. It has to be more than one person’s word against another. It should not simply be a case of he or she did this to me, now put them on trial because I said so.

Getting more cases to court, making it easier to do so, is not necessarily a good thing. Court is no picnic. It’s not there to make people feel better. It is difficult for everyone, and rightly so – the stakes are incredibly high: a person’s liberty, as well as the reputation of the accuser. The accuser and the accused are placed under tremendous strain, as they should be. The case has to stand up. It has to be tested. If a crime has been committed, it is relived in some form. That many cases are not solid enough to go to court is frustrating and upsetting, I understand that, but it is vital to make sure that they are – there has to be sufficient evidence.

For all the talk of victims, we do not know for certain that the person bringing the charge is a victim. At the early stages of the process, the victim is a complainant. They may turn out be a victim, but these facts have to be established, and with rigour. This isn’t to deliberately give complainants a really hard time or to go easy on the accused, to be weak on crime, it is to ensure that a crime has been committed and to work out who has committed it. A legal system that refrains from testing witness credibility and corroborating their claims has not done this.

Currently there is huge political pressure to increase the convictions for rape. Of course the police want to abolish corroboration. The chance of getting such cases to court and maybe even a conviction will be improved, making them look more active in this cause. But the police are as not as reliable as we would like them to be. Remember Plebgate, Hillsborough or the Birmingham Six?

Despite the rhetoric of placing the victim at the centre of the justice system, moves in this direction usually end up empowering the state against the people. Most changes to the law in the name of the victim make it easier for the state to put people on trial and possibly to convict them. But the power to put people on the stand and to deprive them of their freedom must come with checks and balances.

The Lord Bonomy review group has been set up to review the need for additional safeguards and changes to law and practice if corroboration is removed. It is not reassuring that this bill is already acknowledged to warrant safeguards. That the bill is going through Holyrood before the group has published their review throws up questions about how seriously their recommendations will be taken.

The desire to help victims of rape is a cause with which I sympathise, but it is spiralling out of control. In the name of victims rights’, rights that apply to everyone are about to be lost, putting innocent people at risk – that could mean you, it could mean me; not some anonymous villain who should be tried, charged and banged up. Taking a case to court should happen only where there is a balance of proof that a crime has been committed and that the named person has committed it.

Removing corroboration removes that proof. Corroboration should remain.

I rest my case.