Kenny MacAskill move puts not proven verdict in the dock

In a consultation launched yesterday, ministers set out a series of proposals that includes abolishing the legal ruling branded “that bastard verdict” by the novelist Sir Walter Scott.

The proposals follow a recommendation by Lord Carloway to scrap the need for corroboration, a move opposed by the majority of the legal profession.

However, Justice Secretary Kenny MacAskill remains in favour of ending the requirement for two independently incriminating sources of evidence to bring a case and are now considering further changes to balance the system and protect accused from wrongful convictions. The consultation paper published yesterday said the Scottish Government is now seeking views on:

• whether the not proven verdict should be abolished,

• increasing the jury majority required to return a verdict,

• widening trial judges’ power to rule that there is no case to answer.

The Scottish Government believes that judges should have the power to dismiss a case if they believe the prosecution is relying on a single piece of evidence, or witness testimony, which is unreliable.

Ministers also believe that if increasing the majority of jurors needed to return a guilty verdict from eight, to nine or ten, out of 15 is to be considered, then so should the not proven verdict.

However, Scotland’s judiciary remains unconvinced by the safeguards of scrapping corroboration, with one of the country’s most senior lawyers branding the proposals an attempt to “anglicise” the Scottish system. Brian McConnachie QC, chairman of the Faculty of Advocates Criminal Bar Assocation, said: “If corroboration is to be scrapped then, absolutely, there requires to be safeguards.

“You would have to give the judge power to withdraw a case where a single witness testimony was not justifiably reliable to make the conviction safe.

“As for juries, I would have thought that somewhere in the region of at least 12 to three, but even that would not make sense.

“It never ceases to amaze me that a Scottish Government, fighting for independence, is trying to anglicise our system.”

In England and Wales, juries initially seek a unanimous decision. If they cannot agree, a judge has the option of asking them for a majority, where at least ten out of 12 are needed to return a guilty verdict.

The Scottish Government’s proposal of nine or ten out of 15 – potentially just one more than the eight currently required – is a less stringent test.

Mr MacAskill has already clashed with lawyers over proposed changes to legal aid.

He wants accused people with £68 or more disposable income a week – although this could be raised to £82 or more – to make a contribution to defence costs, and law firms to be responsible for collecting those contributions. The proposals have led to lawyers taking industrial action, with further protests planned for the new year.

“The way things are going at the moment, I don’t think justice is in safe hands,” Mr McConnachie said.

“We’ve a government intent on altering the fundamentals of our legal system, without any real thought about the knock-on effects of that, and clearly creating a situation where there will be more prosecutions going to court and less money for people representing those accused.”

Bill McVicar, convener of the Law Society’s criminal law committee, added: “No evidence to demonstrate that the abolition of corroboration will not result in miscarriages of justice has been produced.

“In the absence of such evidence, the society believes that the abolition of the requirement for corroboration without other safeguards will simply result in a contest between two competing statements on oath and therefore have the potential to result in miscarriages of justice.

“We all want a criminal justice system that is modern, fair, effective and which remains distinctly Scottish.”

Despite lawyers’ protests, the Scottish Government insists corroboration should be scrapped.

Mr MacAskill said: “I agree with Lord Carloway’s recommendation that the requirement for corroboration should be abolished.

“The rule stems from another age, its usage has become confused and that it can bar prosecutions that would in any other legal system seem appropriate. I am confident that in a system without a requirement for corroboration we would continue to see police and prosecutors striving to find the best evidence that can practically be made available to the court.”

He was backed by Victim Support Scotland. Susan Gallagher, deputy chief executive of VSS, said: “VSS supports the removal of the requirement for corroboration, while retaining the ‘beyond reasonable doubt’ test required for a conviction.

“We believe this would enable more cases to be prosecuted in court on the basis of quality of evidence, as opposed to only those which pass the current quantitative test of the evidence. For many victims, particularly those where sexual crimes have occurred, corroboration has caused great difficulties in securing cases and belief that a crime has taken place.

“This adds to the stress and trauma many victims go through and we believe has contributed to the number of rape cases being reported and the low numbers coming to courts in Scotland.

“This consultation considers safeguards that could be in place should the removal of corroboration be accepted and we welcome the opportunity to comment on these.”