Under cross-examination

Members of the Justice Committee were this week due to begin consideration of amendments to the Criminal Justice (Scotland) Bill. Instead, MSPs have spent the last few days fumbling around trying to find what to fill their next month-and-a-half’s worth of meetings with. This, after the Scottish Government’s sudden announcement that the legislation would be shelved for up to a year. After all, rarely has a bill reached Stage 2 in the parliamentary process with as big a cloud hanging over it as the suite of changes to the criminal justice system being proposed.

In the two-and-a-half years since Scotland’s second most senior judge, Lord Justice Clerk, Lord Carloway, recommended abolition of the requirement for corroboration in criminal cases, the fault lines have grown into fissures. On one side, the Cabinet Secretary, a parliamentary majority – based on a narrow show of support at Stage 1 – prosecutors, police and victims groups; on the other, judges – excluding the aforementioned Lord Carloway – the Law Society of Scotland, and the Faculty of Advocates. MSPs remain a group that is harder to read, the vote at Stage 1 perhaps saying more about the power of party whips than their genuine feelings on the Bill.
Intended to redress the balance between the complainer and accused, dispensing with corroboration had been pitched as a means to open up the criminal justice process to those excluded at present.

“It’s an access to justice issue for a group of victims, complainers, in three key areas, which are sexual offences, including rape, domestic violence, and other types of crimes which are generally committed without witnesses present other than the victim, such as bogus workmen, frauds where the elderly are preyed on – it is really these kind of areas of offending,” Lord Advocate Frank Mulholland QC tells Holyrood.

The numbers are “pretty stark”, says Scotland’s top prosecutor, citing the 2,803 domestic abuse charges that could not be taken up in 2012-13 because of insufficient admissible evidence, in addition to the 170 or so rape charges in the last two years affected by the requirement for corroboration.

“These are pretty significant figures and these are real people, these are people who have reported it to the police. We’re always told that these categories, these areas of criminality, have significant under-reporting, which I agree with. What kind of message do we send out when people are brave enough to report these and we can’t take them up because of the rule requiring corroboration?”

Mulholland has said from day one that his support is not in any way tied to conviction rates. In fact, they could fall across the board as a result of more cases reaching court, he intimates. Failure to abolish corroboration leaves Scots law “vulnerable” to challenge at the European Court of Human Rights in Strasbourg where a seam of jurisprudence, essentially relating to access to justice, is building, he claims. Allusion to access to justice and what this entails has prompted further questions, however.

“[Access to justice] is just a meaningless phrase because if politicians or anybody else seriously thinks that someone who is making a complaint of rape just simply wants their day in court and doesn’t care whether the person is convicted or not, they’re living in cloud cuckoo land,” says Brian McConnachie QC, chairman of the Faculty of Advocates’ Criminal Bar Association. “That is not what it is about.”

According to Detective Superintendent Louise Raphael, head of the national rape taskforce at Police Scotland, it often is. “An awful lot is said about conviction rates and I’m not saying that they are not important. Actually, if you ask rape victims [and] you talk about better outcomes for rape victims, you’d be quite surprised at the number for whom a conviction in court is nowhere on their radar – that is not what it is about.

“It is about getting the support that they require, being respected, being understood, not being judged, and [that] those who are charged with the responsibility of investigating those crimes actually discharge that responsibility in the manner that they should.

“By and large, victims just want to be treated properly and treated fairly. And that conviction at the end of the day, I am not saying it is incidental, but it is not the most important thing that they consider. All your support organisations will tell you the same thing.”

Such an overwhelming focus on these specific crime categories to begin with is somewhat misplaced, though, suggest critics. Arguments in favour of removal have been “very narrowly focused” on sexual offences and domestic abuse, says Ian Cruickshank, convener of the Criminal Law Committee for the Law Society of Scotland. “It has been observed by many this is something that is going to affect the whole criminal justice system and you’ve got to bear in mind that the vast majority of prosecutions in Scotland are at summary level, they are not before a jury, they are before a sheriff sitting as the judge of law and of fact.

“I have some difficulty in accepting that there are not going to be that many more prosecutions brought. I think various figures have been given, perhaps 1,000 to 1,300 more cases a year. I don’t see that when you spread it across the whole system, across all of the crime that is prosecuted in the courts of Scotland. Ultimately, I think there will be a resource issue because in these times when courts are being closed, when there is restriction on the amount of shrieval hours available, shrieval manpower available, I just think the system may have difficulty coping.”

McConnachie sounds a similar warning. “I think a lot of people have really lost sight of the fact that the abolition of corroboration will affect every type of offence and will affect cases which are currently prosecuted before sheriffs, before magistrates, as well as the very serious cases which are prosecuted in front of juries, whether it be sheriff and jury or in the High Court. And the idea that without really thinking things through, in my opinion, we are going to proceed to a system where you can be convicted on the say-so of a single individual of any crime from shoplifting to murder, I think must increase at the very least the possibility of there being miscarriages of justice.”

Mulholland disagrees on two counts. Firstly, the requirement for corroboration is not a problem in the vast majority of criminal cases because these tend not to take place behind closed doors, forensic evidence is easier to obtain, and counterintuitive behaviour is less common. Secondly, he fails to see how a quantitative test –“it’s like a Monopoly board: have you got enough to get past ‘Go’” – could have such a sizeable impact in the face of other protections within the trial process.

Neither he nor Lord Carloway has yet been presented with the name of a case where the requirement of corroboration has prevented a miscarriage of justice, says Mulholland. McConnachie, however, points to the fact that upon returning a verdict of acquittal rarely is the reason given, particularly in cases before a jury. In one such instance where a reason was provided – a dangerous driving charge heard by Sheriff Jamie Gilchrist QC at Inverness Sheriff Court last August – the statement of a second witness prompted a not-guilty verdict despite the complainer, on the face of it, being a credible and reliable witness, McConnachie points out.

The Lord Advocate has sought to temper a highly polarised debate by stressing that the requirement, not the concept, of corroboration is to be scrapped. “Our approach to enquiries is not going to change if the requirement for corroboration is abolished, we’ll still look for corroboration if it is at all there,” adds Raphael.

“The public need to have the confidence in that; that we’re not overnight going to change the way we investigate rapes, quite the contrary. We have come so far, we have achieved so much up until this point [and] it would be very reckless for us to change that.

“We are not going to be lazy about our investigations, we are not going to be reckless about our investigations; we are not going to be all of a sudden not as thorough as we previously were. None of that is going to change.”

Senior judicial figures such as Lord Hope of Craighead, former Lord Justice General and Lord President of the Court of Session, and former Solicitor General, Lord McCluskey, have questioned whether that will continue to be the case long term given resources are stretched.

“I just don’t accept that the Crown would deliberately take a weaker case to court because it doesn’t need to and it doesn’t want to secure further evidence to make your case stronger. I’m sorry, I don’t agree with that,” counters Mulholland.

Corroborative evidence will still exist while proceedings will not be taken up without supporting evidence. Instead the nature of corroboration will change. “It is not that each crucial fact requires corroboration. It’s [that] you are corroborating the truth of the account of the complainer,” he adds.

Currently, for instance, essential facts must be corroborated. In the case of domestic violence, that includes the assault and identification of the perpetrator. In the case of rape, that includes penetration, which, if reported inside seven days, is achieved via forensics. Incidents reported outwith this time previously relied on accused persons admitting consensual intercourse had taken place. Following the Cadder judgment handed down by the Supreme Court, however, immediate access to solicitors is leading to ‘no comment’ interviews. Lack of consent, meanwhile, tends to be corroborated through recent distress.

Under a requirement for supporting evidence, recent distress would be sufficient in rapes, while injuries sustained would be enough to prosecute a domestic. Asked if a situation might arise, then, in which a rape suspect could be put on trial when the victim is the only person placing the accused at the scene of the crime, Mulholland says: “Yes, of course it could, because, for example, it may include recent distress – she goes and sees her mother, ‘I was raped’ [and is] absolutely distraught.

“Now that is supporting evidence which supports the truth of her account that she was raped, but it’s not evidence that places him at the scene, so yes,[it’s] supporting evidence.

“But you either have a system which requires corroboration of each crucial fact, including him as perpetrator, and say there is a raft of rape cases we’ll never be able to take up because behaviour, normative or counterintuitive behaviour of victims is such that it will delay the reporting of it, you accept that as a price worth paying to keep the requirement of corroboration.

“Or you say no, it is not a price worth paying, we want to give access to justice, we have got the protections – whatever the [Lord] Bonomy review comes up [with] – to allow these cases to be considered by the jury.”

A degree of confusion still exists, however, as to how the test of supporting evidence will work in practice across the board. “I’ve heard Kenny MacAskill say… that no one will be prosecuted on the say-so of a single witness, I don’t understand what that means,” says McConnachie, who spent over seven years in the Crown Office, including a spell as Principal Advocate Depute where he had overall practical responsibility for the prosecution of High Court crime in Scotland.

“And he talks about, ‘there will always be supporting evidence’. That is what corroboration is. Corroboration is supporting evidence, it is not two eyewitnesses, it’s not two pieces of evidence which, if you take them individually point to someone’s guilt. All corroboration is evidence which supports your primary source of evidence. I have to say I don’t understand the concept of supporting evidence which is, of itself, not corroborative – it’s difficult to work out what that would be.”

That said, how the long-standing requirement for corroboration operates hardly generates broad consensus. “There has definitely been a misunderstanding as to what requires to be corroborated,” says Cruickshank. “Essential facts require to be corroborated. A lot of the examples given by the Justice Secretary are not examples of essential facts and in the majority of cases what has been referred to are not facts that require to be corroborated. Really, there has to be a full and proper understanding of the doctrine before we should be abolishing it.”

In effect, as Lord McCluskey argued in a lengthy letter to members of the Justice Committee a few weeks ago, the corroboration does not need to be corroborated. Kenny MacAskill’s repeated references to two police officers having to travel to London to collect a CD rom has thus become an example frequently cited by critics of a failure to understand and express clearly what the letter of the law on corroboration actually means. The Lord Advocate has faced similar criticism, Lord McCluskey casting doubt on his assertion, for instance, that the taking of buccal swabs from alleged offenders requires two police officers under corroboration.

“He is wrong,” says Mulholland, “because at the time that the police require two witnesses to get a buccal swab, they don’t know what the end product is going to be, they don’t know that maybe you have corroboration from different sources, they don’t know the importance of forensic evidence at that stage. They’re part of the investigation, so the police will always corroborate these matters because they don’t know how the case will look at the end product, so they have to err on the side of caution. It may be, at the end of the day, that you didn’t need the buccal swab corroborated but you don’t know that at the time that you obtained the buccal swab.

“Now I don’t want to get into a spat with Lord McCluksey, I fully respect him, I know him personally, I have appeared before him on many occasions, and the point I made to the Justice Committee is that it’s prosecutors and police officers that are seeing the cases that you can’t take up. The courts are not seeing them, defence agents are not seeing them, and solicitors are not seeing them. And because of the rule of corroboration, it is the police and the prosecutors that have got to explain it to victims.”

In truth, clarity appears to be some way off. Former High Court judge Lord Bonomy had been charged with heading up an 18-strong reference group – representation from Rape Crisis Scotland and Scottish Women’s Aid was added to the original membership – to look at additional safeguards and other areas of criminal law where changes might be necessary should corroboration be scrapped.

However, the group – which was announced in rather hasty fashion to coincide with the Justice Committee refusing to endorse the change at Stage 1 – is not expected to report until spring 2015. Its recommendations, which could touch on everything from the circumstances in which evidence ought to be excluded through to whether a judge should be able to remove a case from a jury, were then to be enacted via secondary legislation to synchronise with the withdrawal of corroboration from Scots law.

Or at least they were until last week. With just six days to go before the Bill returned to committee, the Scottish Government announced Stage 2 deliberations would be suspended until after Bonomy delivers his findings. “Let’s face it, the secondary legislation could have been a thicker document than the Act itself,” says Cruickshank, a member of the Bonomy reference group.

“If corroboration is something that we can do without and we’re happy to say we can do without it, well, we shouldn’t really have to look at replacement safeguards,” says Cruickshank. “But if you’re saying we have to have replacement safeguards, there is no case to abolish the requirement for corroboration until we know exactly what the safeguards are to be. We were doing it in reverse.”

Included within the Bill, for instance, is a provision to increase the number of jurors required for a majority guilty verdict from a simple 8-7 to 10-5. Yet, jury majority and size had subsequently been included within the remit of Bonomy.

“The idea that you are seeking or kind of forcing, I suppose, your party, which has the overall majority, to vote for something in legislation which nobody can actually know what it means at this stage is farcical,” McConnachie told Holyrood ahead of the timetabling change. “It’s ‘vote to abolish this cornerstone of Scottish justice and you might in due course get something else in its place but we’re not going to tell you what it is’. I don’t understand it – it’s ludicrous.”

From a legal point of view, a review of further safeguards was necessary in going some way to assuage the concerns of judges and some members of the legal profession. From a political point of view, it simultaneously strengthened and weakened the Cabinet Secretary’s case, signalling a willingness to listen while at the same time bolstering critics’ arguments that too much remained unanswered this far into the legislative process and, indeed, would remain so even once the final votes at Stage 3 had been counted.

Last week’s announcement of a delay in the parliamentary process does not signal a black and white defeat for the Justice Secretary given he remains committed to the reform. Indeed, MacAskill said the decision would have “minimal impact” on the overall timetable for the legislation. It remains to be seen whether the same can be said for his reputation.