Police leader attacks evidence controls

• Picture: TSPL

Assistant Chief Constable George Hamilton, secretary of Crime Business Area for the Association of Chief Police Officers in Scotland (Acpos), has called for a national debate on reducing the importance of corroboration in rape and sexual assault cases, because in practice police officers are finding it too difficult to secure convictions.

Scotland has Europe's lowest rape conviction rate, at just 3 per cent, and corroborative evidence is more important in Scots law than other legal systems. In rape cases, where the question is often not whether sex took place, but whether consent was given, finding corroborative evidence can be extremely difficult unless the victim also suffered physical injuries.

Mr Hamilton said: "I'm not suggesting we should get rid of corroboration completely, but that may need to be revisited along with time for detention.

"Maybe, if we've got other safeguards coming in, we should move to corroboration carrying less weight in certain cases, with rape and sexual offences being prime examples.

"The solicitor general (Frank Mulholland) opened up the debate last Thursday – does corroboration in rape and serious sexual offences need to be revisited? In rape, very often intercourse is not contested – it's the issue of consent. It's actually quite difficult to corroborate the crime, although not impossible if there is physical injury.

"We are all concerned about conviction rates in rape and sexual offending. We would support that debate being opened up; we are trying to balance our needs with the rights of suspects."

In one case, Peter Cadder, of Glasgow, appealed to the Supreme Court after being found guilty of two assaults and a breach of the peace, in part as a result of his answers in an interview without counsel. His case led to Lord Advocate Elish Angiolini issuing interim guidance in lieu of the court's decision in October that suspects should have access to a lawyer immediately after arrest.

That brings Scotland in line with most other legal jurisdictions, but the significance of corroboration and the maximum of six hours that people can be detained without charge are human rights safeguards peculiar to Scots law.

Police want to see the maximum time period for detention extended to up to 24 hours, and then reviewed at the six-hour, 15-hour and 24-hour marks.

Mr Hamilton said: "Our view is the interim guidance is very sensible and pragmatic. However, if you have so many safeguards in place – six hours, corroboration, solicitor access – it becomes restrictive. We need a balanced system that upholds human rights, but also realises justice needs to be seen to be done.

"I don't know of any other legal systems that have a detention period of six hours and such tight rules around corroboration. We have to have a debate about an extension to six hours, whether it's 12, 18, 24, whatever. Six hours is a very short period of time to get someone back to the police station and give them access to legal advice.

"The police have a job to do and we need be very careful that these safeguards are balanced."

Mr Hamilton's views are supported by Professor Peter Duff, an expert in criminal justice at Aberdeen University, who believes the need for corroboration might be reduced in all types of cases.

"I think that should be done regardless of the Cadder case," he said. "Certainly in sex offences cases, but I would look at it across the board."

Bill McVicar, convener of the Law Society of Scotland's criminal law committee, said: "The law of corroboration in Scotland is a fundamental tenet, and it would need a great deal of discussion and examination before we would think of making changes."

The Scottish Government, Acpos, the Scottish Legal Aid Board, the Law Society of Scotland and the Crown Office are in discussions about the possible impact of the Cadder case and how they should respond.

Changes to detention or corroboration would require legislation passed in the Scottish Parliament. Although discussions are ongoing, no announcement is expected until after the Supreme Court judgment, due in October.

"The case has arisen as a result of the Salduz v Turkey decision by the European Court of Human Rights in November 2008.

"The Crown is taking steps to minimise risk to any prosecution, pending the outcome of the appeal, and has issued interim guidance to the police.

"The Crown will continue to liaise with SLAB, the Law Society and colleagues in Scottish Government to ensure contingencies are in place for all possible outcomes of the Supreme Court ruling.

"As appeal proceedings are live, it would be inappropriate to comment further at this stage."

Scottish Government spokesman said: "There are a range of issues currently being considered within the context of the live Cadder case.

"The obligation of government is to find solutions that protect the rights of the accused but also the rights of victims and communities." "I think that should be done regardless of the Cadder case," he said. "Certainly, in sex offences cases, but I would look at it across the board."

The Scottish Government, Acpos, the Scottish Legal Aid Board (SLAB), the Law Society of Scotland and the Crown Office are currently in discussions about the possible impact of the Cadder case and how they should respond.

Any changes to detention or corroboration would require legislation passed in the Scottish Parliament.

Although discussions are ongoing, no announcement is expected until after the Supreme Court's judgemnt, which is expected in October.

A Crown Office spokesman said: "The Crown has made submissions to the Supreme Court in the appeal of Cadder v HMA. The case concerns the ECHR compatibility of Scottish law on access to legal advice in relation to the police questioning of detained suspects. The case has arisen as a result of the Salduz v Turkey decision by the European Court of Human Rights in November 2008.

"The Crown is taking steps to minimise risk to any prosecution pending the outcome of the appeal and has issued interim guidance to the police.

"The Crown will continue to liaise with SLAB, the Law Society and colleagues in Scottish Government to ensure contingencies are in place for all possible outcomes of the Supreme Court ruling.

"As appeal proceedings are live, it would be inappropriate to comment further at this stage."

He added: "Many factors affect rape conviction rates. In Scotland, the legal definition of rape is narrow, though it is set to widen with the introduction of the Sexual Offences (Scotland) Act 2009 later this year.

"Scots law also requires corroboration, which is often difficult to achieve in rape cases as there are often no other witnesses.

"The Scottish Law Commission are currently looking at aspects of corroboration, but the Law Officers believe that there should be a review of the law of evidence in relation to sexual crime more generally, whilst of course recognising that this is a matter properly for Parliament to consider."

A Scottish Government spokesman said: "There are a range of issues currently being considered within the context of the live Cadder case.