Judge warns against SNP’s corroboration changes

Kenny MacAskill: 'Netherlands has it that there should always be supporting evidence.' Picture: PA

Writing in The Scotsman today, former solicitor general and High Court judge Lord McCluskey questioned whether police officers would fully

investigate cases in a fair and balanced way without the need for corroboration before a criminal case could be brought to court.

The intervention by Lord McCluskey came as the justice secretary, Kenny MacAskill, revealed that, even if the legal reforms were successfully passed in parliament this year, corroboration will not be scrapped before 2015.

Mr MacAskill said the delay would give more time to assess the potential impact the reforms might have on Scots law and whether further safeguards needed to be introduced to protect against wrongful conviction.

He also said the Lord Advocate, Frank Mulholland, wants to replace corroboration with a Dutch model, which requires a minimum standard of supporting evidence.

The majority of judges, lawyers and opposition politicians are against the abolition of corroboration, one of the foundations of Scots law, with many fearing the move will lead to a rise in wrongful convictions.

Lord McCluskey – who was asked by the Scottish Government last year to consider how Lord Justice Leveson’s recommendations on Press reform could be applied in Scotland – cited a series of cases from England, warning that police cannot be trusted in a jurisdiction which does not have a requirement for corroboration.

Senior police have said they will continue to gather all the evidence in cases, but Lord McCluskey said: “Believe that if you will: but policemen are not saints.

“Leaving aside Scottish experience, just think of how the police south of the Border fabricated evidence in the Hillsborough disaster inquiry and the Birmingham Six case – only one of several cases in which the police fabricated or concealed evidence in order to secure conviction of people that they believed to be guilty.

“The [Stephen] Lawrence case is another in which, at best, the police did an extremely poor job of investigating inconvenient truths.”

But Assistant Chief Constable Malcolm Graham said: “We would strongly rebut any suggestion that the quality, depth or intensity of police investigations will be somehow diminished.”

Police Scotland has been one of the strongest supporters of abolishing the requirement for corroboration.

David O’Connor, president of the Association of Scottish Police Superintendents, said it was unfair to judge officers north of the Border on cases in England. “We are talking about cases going back decades and they are not all similar cases,” he said.

“I would not want to comment on police south of the Border, but those working north of the Border have a great deal of public confidence.

“And I don’t see abolishing the requirement will change the way we conduct our business.”

Lord McCluskey joined former Lord Presidents, Lords Hamilton and Cullen, and the current incumbent Lord Gill who have previously spoken out against abolishing the requirement for corroboration, with their chief concern being miscarriages of justice.

However, Mr MacAskill was yesterday clear that the Scottish Government still intends to press ahead with the move.

He said it was an “essential and long overdue reform” but added that other changes to the law could be introduced to protect people against wrongful conviction.

Mr MacAskill was appearing at the justice committee at Holyrood as part of an inquiry into the Criminal Justice (Scotland) Bill which includes the abolition of corroboration.

MSPs on the committee accused him of being deaf to concerns over the abolition of corroboration while taking a “pick and mix” and “ad hoc” approach to alternative safeguards.

During a heated evidence session Mr MacAskill was repeatedly urged to consider appointing a Royal Commission or the Scottish Law Commission to look at a comprehensive range of measures designed to compensate for the removal of the centuries-old requirement for two corroborating pieces of evidence to prove guilt.

Mr MacAskill insisted the case for abolition had been made, but he said the Scottish Government was “happy” to consider suggestions for additional safeguards. He said he was also “happy” to look at a move which would allow the justice committee to take evidence for several weeks on whether additional legal safeguards are sufficient and take this back to the full parliament for a vote on whether to accept or reject the commencement of corroboration.

He added: “The system in the Netherlands, where I think the Lord Advocate wishes to get to … has a requirement for additional evidence.

“The Netherlands does not corroborate every strand of evidence, but there does have to be additional evidence and there is a qualitative and quantitative test. So an additional safeguard would be to put that on the face of the legislation.”

Both Christine Grahame, SNP, the committee convener, and Labour MSP Elaine Murray questioned the difference between corroboration and the Dutch model of requiring a standard of supporting evidence.

Graeme Pearson, Scottish Labour’s justice spokesman, said he had counted 62 miscarriages of justice in England and Wales over 40 years, but such incidents were “few and far between” in Scotland. Urging caution, he said: “Is it really the Cabinet secretary’s view that we can be as cavalier as this.”

Mr MacAskill responded: “I think we should recognise that corroboration has not avoided miscarriages of justice here.”

Lawyers welcomed the review looking at alternative safeguards, but said they still opposed the abolition.

Ian Cruickshank, convener of the Law Society of Scotland criminal law committee, said: “Whilst the Cabinet secretary has announced what is a welcome concession, our view remains that corroboration, given its centrality in criminal proceedings, should be looked at comprehensively before legislation is passed that abolishes it.”

Alison McInnes, Scottish Liberal Democrat justice spokeswoman, said: “The SNP are not proposing a superficial cosmetic change to Scotland’s justice system; they are proposing major surgery.”

Scottish Conservative justice spokeswoman Margaret Mitchell MSP added: “On the one hand the SNP seems to be arguing that corroboration is an archaic rule which should go, yet today it conceded that additional safeguards against miscarriages of justice are necessary.”

The Crown Office backed the Dutch justice system as one Scotland can learn from. “The Dutch legal system is one good example of a jurisdiction that does not require corroboration of essential facts,” a spokesman said.

“Whilst it is a completely different legal system, it is interesting to note that in the Netherlands you cannot be convicted on one single source of evidence. Supporting evidence is required to support the allegation made.

“The Lord Advocate has indicated that in Scotland, should the requirement for corroboration be abolished, the Crown would not take up a case without supporting evidence.”

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