In his first interview since becoming leader of the Scottish bar, James Wolffe QC compared the seismic law change to a medieval confidence trick.
He told Scotland on Sunday that MSPs should not debate or vote on ending the corroboration requirement – two independent pieces of evidence backing up key parts of the prosecution case – without first knowing what alternative safeguards would replace it.
He also warned that the Criminal Justice Bill, as it currently stands, would leave Scotland with “fewer safeguards against miscarriages of justice than any other comparable legal system”.
Speaking from his office in Parliament Square, Wolffe said: “As far as corroboration is concerned, that is the most significant proposal for changing the criminal justice system in Scotland, certainly in our lifetime.
“I do find it a curious proposition that parliament is being asked to pass legislation abolishing corroboration on the basis that a review will be carried out, when we don’t know what the outcome of the review will be.
“I think Parliament has been invited to buy a pig in a poke. The right thing for the government to do is take up the Lord President’s proposal to drop corroboration from the bill so that the issue could be discussed further.”
He warned additional safeguards must be put in place against wrongful conviction, beyond raising the number of jurors required to convict from eight to ten, out of 15, which the government has suggested.
“If that’s all there is in the bill, Scotland will have a justice system that has fewer safeguards than any other comparable legal system”, Wolffe said.
“Two things need to be looked at. One is increasing the jury majority even further – I don’t have a particular level in mind. The other is the power of the trial judge to remove cases from the jury if he takes the view that the evidence does not meet appropriate standards.”
MacAskill’s plans have come under fire from the majority of judges, QCs, the Law Society of Scotland and, most recently, the parliament’s justice committee, whose members include many of his own MSPs.
MacAskill’s failure to secure the support of the SNP-led committee, which published a critical report last week, has piled the pressure on the beleaguered justice secretary. In response, he announced last Wednesday that Lord Bonomy, a former High Court judge, has been asked to lead a review group looking at safeguards. That review is not expected to report until early 2015, after the bill has been passed though potentially before it’s enacted as law.
Last night, MSPs urged MacAskill to listen to Wolffe’s concerns.
Scottish Liberal Democrat justice spokeswoman Alison McInnes MSP said: “A pig in a poke is an accurate description. It is nothing short of a disgrace that the minister in charge of our justice system should propose that we legislate in this sloppy way..”
Margaret Mitchell MSP, Scottish Conservative justice spokeswoman, added: “This significant intervention highlights just how ludicrous a position we are in. We are being asked to vote something through, then trust the SNP to sort out the woeful shortcomings at a later date. It is impossible for Kenny MacAskill to continue ignoring these respected voices on this very serious matter.”
Graeme Pearson MSP, Scottish Labour’s justice spokesman, said: “Kenny MacAskill is struggling to convince his own MSPs. True reform requires proper consideration to ensure protection for victim’s interest and justice for the accused. I will be bringing forward amendments to move forward on this shortly.”
Last night a government spokeswoman said: “We believe the case for abolishing the corroboration requirement has been made. It needs to go to give victims access to justice. We will not commence the reform until parliament has approved secondary legislation which is brought forward in light of any recommendations made by the group.”