Justice Committee

Meeting date: Tuesday, December 10, 2013

Official Report 508KB pdf

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Criminal Justice (Scotland) Bill: Stage 1

Item 3 takes us back to the workface again. We are back to talking about corroboration and related provisions in the Criminal Justice (Scotland) Bill.

I welcome our panel of academics. Professor Peter Duff is from the University of Aberdeen; Professor Pamela Ferguson is from the University of Aberdeen—

Dundee.

Dundee? How dare I? Oh, heavens. Am I forgiven? No. There was a look that shows that I am not forgiven.

Professor Fiona Raitt is from the University of Dundee; Professor James Chalmers is from the University of Glasgow—not Edinburgh; and Professor John Blackie is from the University of Strathclyde.

I welcome you all to the meeting and thank you for your written submissions. We will go straight to questions from members.

Good morning. I would like to clarify something that we talked about last week. I am pleased that Assistant Chief Constable Malcolm Graham came back with clarification, which I would like you to hear and compare with the written evidence that some of you have given. He said:

“I am conscious that those who oppose the proposal often appear, perhaps conveniently, to abbreviate it, simply referring to the ‘abolition of corroboration’. I hope that my evidence to the committee assisted in dispelling this popular misunderstanding and clarified that the proposal is to abolish the absolute requirement for corroboration, not corroboration itself.”

He added:

“Corroboration will continue to have a place in Scots Law and feature within court proceedings. It is simply that our law currently requires that certain particular facts must be technically corroborated before any proceedings can be commenced”.

Some of the written evidence that we have received from you uses the abbreviation of “removal of corroboration”. You will know your own evidence, but the first line of the written submission from the University of Dundee says:

“We are not satisfied that the case for abolition of corroboration has been made.”

It goes on:

“The argument that other jurisdictions do not have corroboration, and therefore Scotland is ‘out of line’, also adds little; there is no corroboration requirement as such in England, but it is our understanding that prosecutors routinely look for corroboration and do not generally prosecute without it.”

That is exactly what the prosecutors of Police Scotland are saying: corroboration will not be removed, but they are happy to have the requirement for corroboration to be removed and for the situation to be as it is in England. Corroboration will still be used.

10:30

First, I have to correct you: the police are not prosecutors and I do not think that they would be happy to be called that. That was a long question. I was asking for short questions and Christian Allard has set the bar. Witnesses know that they should self-nominate and indicate to me if they wish to respond. I think that we should take Dundee before Aberdeen.

I acknowledge that the legislation intends to abolish corroboration as a formal requirement. However, I fail to see why we are having this debate at all if we are saying that it will be business as usual because prosecutors will still look for it. In that case, why not keep it as a formal requirement?

I also acknowledge the fact that many jurisdictions look for corroboration. A couple of weeks ago Professors Duff, Raitt and I were in the Netherlands at a conference about the presumption of innocence. During coffee and lunch breaks, we asked academics about corroboration in their jurisdictions and, generally speaking, they said, “Oh no. We have no such thing as corroboration. Scotland is bizarre in having its corroboration requirement.” However, when we probed a bit more deeply, they all said, “But of course no prosecutor would go ahead without what you call corroboration or two pieces of evidence” and that judges would not find someone guilty beyond a reasonable doubt just on the witness of one complainer. Even if it is not called a formal requirement, corroboration operates unofficially, if you like, in many jurisdictions.

So you agree that we are not talking about the removal of corroboration.

Professor Duff will enter the fray.

Just a quick point first—the answer will depend on the practice of the prosecution.

That is the problem. As a commonsense rule of thumb, we all use corroboration in our everyday lives. We are more likely to act on confident information and we are more likely to have confidence in that information if it has come from two sources. As a matter of practice or an everyday rule, corroboration will still exist.

The important point about corroboration being a formal requirement—and the reason why I think that Malcolm Graham’s response is somewhat disingenuous—is that, at the moment, a prosecutor will not prosecute and a judge or jury cannot convict when there is no corroboration. That is the precaution. The bill will allow a judge, jury or prosecutor to go ahead when there is no corroboration and there is the possibility of conviction with no independent evidence.

Furthermore, we all know—and prosecutors complain—that the pressure on prosecutors in sexual assault and domestic violence cases is very great. They are under great political pressures to prosecute every case. What will happen, and what the justice minister envisages will happen, is that in cases in which there is only one witness to that sexual violence or domestic violence, the prosecution will go ahead. Prosecutors will be instructed to do that.

That brings with it a danger of miscarriages of justice, so having the formal requirement does make a difference. As Pamela Ferguson says, if we take the words in Police Scotland’s supplementary submission literally, there is going to be no change anyway, so why bother with it? That is not the message that we have been given.

I want to hear from Professor Chalmers on the point because he said:

“While we express no view on the desirability of abolishing corroboration, we do not support the case made by the Carloway Review to justify this proposal.”

Again, you are talking about abolishing corroboration, but it is clear that that is not what we are talking about.

Well, we know that we are not talking about abolishing corroboration per se; the issue is that, at the moment, it is a mandatory requirement. That particular comment is, I think, just shorthand. We do not need to go through all this again, but I ask Professor Chalmers simply to confirm that he objects to the removal of the mandatory requirement for corroboration.

The idea of removing corroboration itself makes no sense; indeed, it cannot be done. Police Scotland’s supplementary submission seems to suggest that there will be the possibility of corroboration and that it is not going to be abolished. It cannot be abolished unless we introduce a rule that prosecutions have to go ahead on the basis of one source of evidence. The defence that the bill does not propose the remove of corroboration itself is simply nonsense and the committee should pay no regard to it.

I am—

Please let Professor Blackie speak, Mr Allard.

I want to make two points. First, in civil cases, in which the requirement for corroboration was abolished in 1998, there have been all sorts of changes in practice. One could not have predicted what those changes were going to be when it was introduced.

Secondly, it is important that requirements with regard to evidence—for example, the use of hearsay in criminal law—are stated as such because they then become part of what is sometimes called in academic literature the protections for an accused. There is a complete difference between practice—after all, you will not go ahead with cases that you do not think that you will win—and requirements. I have not yet said what I mean about that requirement or indeed what is desirable in that respect, but practice and requirements are different things.

I am glad that Christian Allard has mentioned this new and rather strange defence that has been flying around for the past week and which I think simply plays around with words and attempts to obfuscate the quite significant change in the law that is being proposed.

Last week, Shelagh McCall of the Scottish Human Rights Commission told us about concerns about miscarriages of justice, given that, once corroboration is removed, there are very few other safeguards in the system to allow a case to be thrown out of court. Does the bill contain enough additional safeguards to avoid miscarriages of justice?

This is going to sound like a circular argument, but I think that the requirement for sufficiency of evidence is much more important than people have recognised or commented on.

Given the tendency of the legal profession and the judiciary to be quite conservative, they will not need to look very far in their interpretation of sufficiency to find that corroboration would actually provide it. Given the discussion that we have had, I suspect that we will come full circle on this matter and that, in cases involving sexual offences, domestic abuse, children and vulnerable witnesses in general, prosecutors and, in particular, juries will seek the security of something equivalent to corroboration to achieve sufficiency. Juries will be charged by the judge to find sufficiency of evidence, which can usually be found in two sources.

Taking the broad view, I know that the five of us are not of one mind about whether corroboration should be abolished. I am on the fence myself.

Are you finely balanced on it or tipping one way or the other?

I am teetering at the moment.

Which way?

I do not know. It depends on the breeze. [Laughter.]

Coming back to the previous question, I think that this issue should be looked at. Indeed, the majority of the Carloway expert group, of which I was a member, said that the issue had to go to the Scottish Law Commission for a balanced consideration—

That is an interesting comment. Were any of the rest of you on that group?

No.

No.

No.

No.

Perhaps your membership should have been declared at the beginning of the session.

I am sorry, convener—

It is no fault of yours, Professor Duff—I believe that this is the first time we have heard about the group. Can you tell us a bit more about it?

I know that the group’s minutes have been made public because a student of mine found them on the web and wrote about them in their dissertation.

The vast majority of experts in the Carloway reference group wanted the issue referred to the Scottish Law Commission. I make that point because safeguards were the kind of thing that we wanted to be considered if corroboration were to be removed. Some of the people in the group were against the removal of corroboration per se; others, including me, were ambivalent. However, we all thought that, if we are to remove corroboration, we have to have a very good think about it and about what all the other safeguards are.

We have that one view and, of course, all the other judges disagree with it and again want the issue bumped to the Scottish Law Commission. I think that it is precisely what the Scottish Law Commission should be looking at—what kind of safeguards we will have if we get rid of corroboration. Could we get rid of it? Should we get rid of it? Most other countries do not have corroboration; that is fair enough, but what other safeguards are there? We have to come up with the right balance.

The suggestion that has been made at the last moment—which seems to be rather plucked out of thin air—is that the required jury majority be changed from the bare majority, with no evidence to support whether that would make any difference and no detailed consideration of it. It is a suggestion that goes back to the Thomson committee in the 1970s, but there has never been any research on it or on its likely impact.

If the issue were to go to the Scottish Law Commission, it could have a detailed look at what other safeguards we might want, including the one that Fiona Raitt mentioned—would sufficiency ensure that someone would be protected from the very credible but lying witness?

I agree with Professor Duff. If we think about why we are where we are today, it is because we ended up with the Cadder case, which led to the police having to have solicitors present when interviewing suspects. As a knock-on effect, it was then mooted that we should abolish corroboration, and as a knock-on effect of that, we are now thinking about changing jury majorities. It seems to me that this is piecemeal reform. No one is stepping back and taking a broad view of the criminal process, looking at the checks and balances and doing a proper comparative study with other jurisdictions.

We know that there are some wrongful convictions—there are wrongful convictions in any system, however perfect it is. However, we do not know how many there are, and nor do we know how many wrongful acquittals there are, by which I mean people who have committed an offence that cannot be proved.

One thing that is greatly lacking in Scotland is empirical evidence, which exists in other jurisdictions. In America, there is a mass of literature on the impact of various protections and non-protections being in place, on the ability of juries to detect unreliability in evidence—which is very low, according to psychological work—and on witnessing as well.

Here we are in Scotland, not having addressed any of that interdisciplinary research, and we have come up with one thought—that we get rid of something—when what is needed is to look at the system holistically. It may be that we would then come up with many other changes, which might include the removal of the requirement for corroboration.

To add to that, I was struck by a comment that the Lord Advocate made when he gave evidence. I did not read the comment in the Official Report, so I hope that this is correct.

The Lord Advocate gave the example of two women who, when they were young girls, were very seriously abused. The prosecution went ahead but, when it came to the moment of appearing at trial, one of the women simply could not do it. The Lord Advocate commented that that is the problem with corroboration. I was very struck by that, because that is nothing to do with corroboration. The question is: why did a woman not wish to give evidence in court? The answer is to do with the adversarial process rather than anything else.

That point adds to the case for a broadening out of what we are looking at to consider all the issues that feed into where corroboration plays a role in the system.

We are also at stage 3 of the Victims and Witnesses (Scotland) Bill this week—that bill will have an impact on court process and on how victims and witnesses feel within the court process.

We have heard the cabinet secretary stress quite a lot that he wants to widen access to justice—that is how he explains it. What is the panel’s view on whether the change on corroboration will result in more prosecutions but not necessarily more convictions?

We have seen evidence—at least in the financial memorandum—from Police Scotland and from the Crown Office that suggests that they believe that there would be additional prosecutions. However, we know from evidence in other jurisdictions that it is difficult to get a conviction when there is no corroboration, so the ultimate number of convictions is unlikely to go up in that situation.

The danger with abolishing corroboration is unlikely to be that you would create a significant number of additional wrongful convictions; it is that you would let cases through the net that are really too risky to get to that stage. However, the effect on numbers is likely to be small.

10:45

I raised a point with witnesses from Scottish Women’s Aid about a risky prosecution failing and the accused being acquitted, and they took the view that the women would rather go to court. What do you say about that? I did not see court as therapy—if I can put it that way—but they felt that it would be better that women got to tell their story and that there would perhaps be a culture change in the judiciary and in juries. Did you read that evidence? I would be interested in your comments.

I cannot add anything to your own comments. There is difficulty with seeing court as therapeutic. That is not a view that is often expressed by people who have been through the court process.

Does anybody else want to comment? Did you feel that there was merit in that suggestion?

I have certainly heard people from Rape Crisis Scotland say that, although for some women getting the accused into court is a big part of it, the vast majority are really looking for a conviction. The danger with the bill is that expectations will be raised and people will go to the police and say, “I know it’s just my word against his, but that’s good enough now because there’s no corroboration requirement,” but it will not be good enough because juries will not convict.

The conviction rate for rape is poor. It is about 50 per cent, I think—I will just check that by looking at a recent parliamentary question that I asked. The answer shows 41 per cent of rape cases result in a verdict of acquitted not guilty or acquitted not proven.

Those are figures for cases that have already got—

They are figures for 2011-12. I wanted to find out the difference. I think that there are more successful prosecutions in domestic abuse and sexual abuse cases, but rape has a poor conviction rate.

Those are figures for cases that have already got over the corroboration threshold, in the view of the Crown Office at least, because they have been taken to court. Abolishing corroboration could not raise that figure at all. It might raise the number of cases taken to court, but it is impossible to see any way in which it could raise the proportion of convictions that result.

I will carry on with the theme. The rationale behind the proposal to abolish corroboration is the lack of ability to take certain one-on-one crimes, such as sexual and domestic abuse, into court. It has also been said that there could be a case for retaining corroboration but with some reform—for example, inclusion of the distress of the victim as corroborating evidence—or indeed that a definition of what might be considered corroboration would be helpful in assessing whether or not cases should be taken to court. What are your views on that? Should we be recommending further investigation of the case for reform of corroboration?

Lord Carloway rightly identified one of the problems, which is that the law on corroboration is very complicated at the moment. The reason why it is complicated is that judges have, on occasion, tried to find a way around it so that they can open the way to conviction for those who they think are guilty. In fact, a victim’s distress already can corroborate.

As Lord Carloway says, the problem is that the law has become so complicated that nobody really understands it properly. Judges continually try to define it and then finesse their definitions, so I do not think that defining it in statute would actually help. It would be almost impossible anyway, given how complicated the situation is. All that would happen is that the definition would get overlaid with another layer of case law and matters would come back to where they are now, with nobody knowing where they stand and it being difficult to predict whether there is corroboration.

If you were to simplify the definition greatly, there is a risk that fewer cases would get through the net. I am not sure what should be done about that, but again that is something that the Scottish Law Commission could perhaps look at.

Can I disagree with that?

You would not be academics if you did not disagree. In fact, you would not be lawyers if you did not disagree—and we would not be politicians if we did not disagree. [Laughter.]

Students complain that we do not tell them the right answer because we do not agree.

The committee has before it supplementary evidence from the Crown Office giving a number of case examples. It gives five examples, although there are really only four, because number 3 is not an example at all.

What is significant about the examples is that none is a case in which there is no supporting evidence at all; there is always some supporting evidence thrown into the mix. I am surprised that in at least some of those cases the Crown Office does not believe that that evidence meets the legal requirement for corroboration, but that appears to be its view.

For the record, what is the difference between corroboration and supporting evidence? You are saying that, in some of the cases, the supporting evidence could have been corroboration.

Corroboration requires supporting evidence on all the essential elements of the crime and the fact of the accused being the perpetrator; it requires supporting evidence across the board. In some of the examples that the Crown Office gave, I am not sure why it took the view that such evidence was not there.

What is significant about the examples is that the Crown Office is not seeking to persuade the committee that it really wants to bring single-witness cases; it appears to be seeking to persuade the committee that it wants to bring cases where there is supporting evidence. That might be achieved through clarification of the law on corroboration.

Professor Duff mentioned distress as corroboration. One of the problems with that, which is flagged up in one of the examples, is that the extent to which distress can corroborate is limited; it can corroborate certain things but not others. That issue could be looked at.

The second thing I wanted to pick up on is the argument that corroboration is complex and that that might be a legitimate reason for thinking about abolishing it. We ought to remember that systems that do not have corroboration will safeguard against wrongful conviction through a wide range of different measures that are designed to prevent it. In the aggregate, those measures might turn out to be as complicated and confusing as corroboration itself. It is not clear that a system without corroboration is necessarily simpler.

Professor Duff, do you wish to retaliate?

No. I agree with much of what James Chalmers said. To try to define corroboration absolutely would be very difficult, although it could perhaps be defined more simply. As James said, once you start putting in place other mechanisms, you would get arms and legs growing and you would probably end up with as complicated a system.

I would not say that corroboration should be abolished just because it is complicated; it is complicated, but all evidentiary doctrines are complicated. I am not sure that one can really address it in an atomistic way—that goes back to Professor Blaikie’s point about a holistic view—without looking at the overall context.

Is it Professor Blaikie or Blackie?

It is Blackie. Blaikies live in the north-east of Scotland; Blackies live in the south.

Sorry.

I got the University of Dundee wrong earlier, so you can get something wrong as well, Professor Duff. [Laughter.]

There are complexities and the explanation given is absolutely correct that judges have acted to water down corroboration in cases where it has got in the way. I rather suspect that the routine cases that come up day to day do not feel terribly complex. The complexity is perhaps with circumstantial evidence, rather than the paradigm of two witnesses.

On thinking about tweaking corroboration, there are quite a lot of jurisdictions around the world that have half-way houses. For instance, in South Africa there has to be corroboration of confession evidence. In some places, the requirement applies to an extraordinary range of different crimes, ranging from perjury through speeding to feigned marriages. I am not terribly keen on those examples.

More important are examples of jurisdictions where warnings are given. The difficulty with that, however, is that, if the warnings are discretionary, they depend on the judge’s understanding. Also, they only bite at the end of the trial, so they have no effect on the wider criminal justice process that starts with police work.

Those examples simply have not been looked at, and I do not have a firm view on them, either. I can see a ground for applying corroboration to certain serious crimes or crimes that are tried before juries only. There are all sorts of permutations, which is a reason in itself for having a holistic, wide, in-depth look at the whole system. The Scottish Law Commission is the obvious place to do that.

Professor Chalmers, you referred to the examples that the Lord Advocate gave and said that you were surprised that some of them had not made their way through to the courts. The Crown Office and Procurator Fiscal Service has recently rearranged how it deals with some cases and has specialist markers. Would not that assist in understanding? Professor Duff said that the process is very complicated, but a specialist marker for particular types of cases would make the process more efficient and easier to understand.

Yes. I am absolutely sure that that is correct. My understanding of the examples that the Crown Office provided is that they are not real examples in that they have been anonymised and some details have been changed, so they might not really be cases that did not go through. In fact, it is clear that they are not cases that did not go through in that form.

I am concerned that we are not getting examples of real cases—albeit with anonymisation—and that details are having to be changed. That might be being done only for the purpose of anonymity, but it is impossible to tell.

I agree that specialist markers might well help, and they might be able to spot that there is a possibility of corroboration when a less experienced marker would not. However, the danger, as I alluded to earlier, is that there is a great deal of political pressure on the Crown Office to prosecute all sexual offence cases. However specialist the markers are, they will be aware of the pressure that they should prosecute all rape cases. They are already aware of the pressure in respect of domestic violence cases. They complain constantly about having to prosecute what they regard as minor, trivial cases. They might be wrong or they might be right, but that is the pressure that they feel. I think that if corroboration goes, they will feel the pressure to prosecute all sexual offence cases regardless of whether supporting evidence or corroboration exists, which brings with it the danger of miscarriages of justice.

The change in the jury majority was mentioned earlier. Was there a debate in the round at the Law Commission about what would have to be done if the requirement for corroboration is abolished? What other factors should be taken into the discussion? What other safeguards, if you like, ought to be considered in conjunction with any consideration of abolishing the requirement for corroboration?

I think that we are asking you to write the remit.

Just briefly.

Yes, a brief remit; a few bullet points.

I think that the committee has already had some written evidence on that from Professors Ferguson and Raitt, as well as from me. A possible remit for the Law Commission might be for it to consider generally what safeguards would require to be put in place if corroboration is abolished, and possibly whether a package of such safeguards would be preferable to corroboration or whether retaining corroboration would be preferable.

The Law Commission or another body could consider conviction on particular forms of evidence, such as dock identification, anonymous witnesses or hearsay evidence; the majority jury verdict; and the power or lack of power of a judge to withdraw a case from the jury. That is not a comprehensive list, so there might be other things to consider.

The Law Commission might want to look at the educational side of it. One thing that has been mooted is that experts could assist in instructing juries on the dangers of eye-witness identification evidence. There are problems with that and the courts are currently not happy about it. There is also the issue of police practice; for instance, in England, under the Police and Criminal Evidence Act 1984 codes of practice, the whole process of questioning suspects and other people is much more regulated than it is here. I am not saying that that is necessarily a good thing, but there is a big agenda there as well.

That is the Scottish Law Commission tied up for five years already.

Lord Gill told us that it would be a year, tops.

11:00

A difficulty that some people have alluded to in other papers is how evidence is or is not gathered in cases in which corroboration is difficult, such as sexual and domestic abuse cases. I know that the women’s groups often feel that, especially when they have been working with women who have survived an attack, a lot more evidence could have been or might still be capable of being accessed that is not always followed up. That is very much a police practice issue and might not be one that you want to explore, but it should not be ignored. If the evidence is not gathered early on, it will not be there at a later stage.

There is—I think that everyone will subscribe to this—excellent practice in the sexual assault referral centres. There is a SARC in Glasgow, and one was to be set up in Dundee, but I do not think that it has got off the ground yet. They have a clinical, medical method of collecting evidence, which makes the process of the medical examination much more conducive, and women are more willing to consent to it happening. A great deal of therapy can go on with that at the same time, which would not happen in a usual examination at a police station. There are lots of small things that could make a difference.

That is interesting. The Victims and Witnesses (Scotland) Bill also deals with gathering medical evidence and determining the sex of the doctor who will examine a person, in so far as that is practicable.

Yes.

We have heard little bits from everybody, apart from Professor Ferguson. Do you wish to say anything? You do not have to.

The more we discuss the issue, the more we seem to be saying that the consequences that we are hoping for are unlikely to be achieved. In those sexual offence cases in which it is the word of the complainer against that of the accused, getting rid of corroboration will not help. Moreover, doing so will be dangerous in cases involving confession evidence and fleeting-glance eye-witness identification, which are notorious in every jurisdiction for miscarriages of justices.

If a witness is positive in their identification of the person who attacked them, it is very hard for a jury to ascertain whether they are correct. The witness might genuinely believe that they have identified the correct person, but they could well be mistaken. The Innocence Project in the United States of America has found that the major source of miscarriages of justice in that jurisdiction is a witness who is convinced that they have pointed to the perpetrator but who is shown later to have been quite wrong about that.

Perhaps the panel can assist the committee by providing a general view of the time between a crime and when a case goes to court. The time between a crime and when the alleged victim identifies someone might be very long, and is even longer by the time they get to court. Will you give us some idea of the difficulties regarding the timeline for identification of the accused, which I think can be substantial?

I am looking for help and I am not getting any.

A criminal trial can take place, especially in a summary case, well over a year after the incident took place. The committee can judge itself how difficult it is to remember faces a year after the event. We cannot offer special assistance on that.

A few moments ago, I referred to evidence from Professors Ferguson and Raitt when I should have said that it was from Professors Ferguson and Davidson. I mention that to be fair to Professor Davidson, who is not here.

A lot of psychological work has been done—principally in America, but some has been done in England and there is some foreign language stuff, too—to try to structure those issues, which we all feel intuitively. Broadly, in the first place, there are problems about the perception of one’s witnessing, remembering—the storing of the memories—and recall. At each stage, there is a danger of distortion. Although that is common sense, it is structured common sense, and plenty of evidence exists about that. The American literature is quite striking on the high levels of inaccuracy. After a year, it is as high as 40 per cent in some cases.

The issue is compounded in our jurisdiction because we allow dock identification, which many jurisdictions do not. It is perfectly possible for a witness to say to the police that they think that they might know the person again in court, assuming that they will be asked to point the finger in a couple of weeks. However, as James Chalmers said, when, a year down the line, they are in court giving evidence and at the end the prosecutor asks them whether they can identify the person whom they have spent the past hour and a half telling the court about, there is huge pressure on the witness to look at the person in the dock and say, “It must be him.”

That definitely occurs. I was briefly a prosecutor about 20 years ago and I have seen, first hand, witnesses who, when asked to identify the accused, say, “It’s that person there,” and point to the person who happens to be sitting in the dock.

Mercifully, they do not point the finger at the judge. That would be intriguing.

It has happened.

Usually, with a bit more probing—

Has it happened? Excuse me a minute, Professor Ferguson. This is interesting.

It happened to me. I was an advocate for a very brief period, donkeys years ago, and it happened.

Was the judge convicted? [Laughter.]

It was a sheriff, and no.

So when asked to identify the person, the witness pointed to the judge. Oh, heavens. Did the judge acquit himself?

The case fell apart. [Laughter.] I was prosecuting, in the new Kilmarnock sheriff court.

Professor Ferguson, please go on. I am sorry.

I was just saying that usually, with careful probing, it is possible to get the witness to admit that they are pointing the finger at an individual because that individual is sitting in the dock. However, when the accused is unrepresented, it is easy to take what the witness says as ticking the identification box and then just to move on to the next witness.

John Blackie is right to point to the wealth of social psychological research on the matter and the results of that research. What is striking is that although our common sense tells us that identifications that happen two, three or six weeks later, or indeed three months or a year later, are bad—we know that—the research indicates that the situation is much worse than a commonsense approach would suggest. We are much less reliable than we think we are, even when we think about the matter sceptically and objectively. That is often not realised.

That means that when we sit as juries or, indeed, judges—as fact finders—we come from an overoptimistic view about identification.

I got a bit distracted by your story about the judge being identified, I must admit. We will not identify the judge in the case—that would not be appropriate. It was an interesting diversion for us though. We will move on.

The motivation for the proposed change seems to be to address low conviction rates for certain interpersonal crimes such as sexual assault and rape, on the basis that corroboration is the barrier. As we heard from Professor Chalmers, that does not explain why cases that pass the corroboration threshold are not resulting in convictions.

It seems to me that we should be looking more at court practice. I am interested in Professor Raitt’s suggestion that the complainer in a rape or sexual assault case should have legal advice. Women’s groups have told us that there is sometimes a problem with inbuilt prejudice in juries, which must be overcome. In the current financial climate, the prospect of that is nil. However, as the convener said, the Victims and Witnesses (Scotland) Bill is going through the Parliament, and an amendment to the bill has been lodged in advance of stage 3—

Is this a trail? Is it your amendment?

Yes, it is.

Ah, there is a surprise.

The idea is that rape victims would be given legal advice about whether to give permission for their medical records to be used, to ensure that victims are a bit more careful about exactly what they give permission for. Very often, the whole medical record is accessed, and things that are totally irrelevant are brought up in court, to discredit the complainer. Would the approach that I have proposed help with conviction rates? It could be piloted relatively cheaply and put in place pretty soon.

Professor Raitt, I think that Margaret Mitchell is looking for a quotation in support of her amendment—I can see that you know that; it is written all over your face. I think that we can talk more broadly about court process and procedures.

I will not comment on the specific model that Margaret Mitchell suggested—

I knew that you would not do so.

I have written about a possible model. The approach builds on the type of model that is available on the continent and, most important, is available in other adversarial jurisdictions. Ireland and Canada are the two main examples, but I suppose that England is also an example to some extent, because it has piloted voluntary sexual violence advisers—I think that Rape Crisis Scotland is trying to do the same thing. Of course, voluntary advisers are not legally qualified.

It is thought that women who know their rights in relation to access to their medical and sensitive records and in relation to sexual history evidence, and who therefore do not just assume that the Crown will defend their privacy rights, are in a much stronger position in respect of the evidence that they are able to give when they are cross-examined on what is in their records or on the facts of the case that is being prosecuted.

The evidence from the large studies that have been done, mostly in European countries, shows that women feel a lot more confident and are more willing to discuss intimate and difficult matters in court if there is someone there whom they know, who has been supporting them and who will object if anything inappropriate is mooted.

The difficulty is that although we always hear that judges have a role in intervening when witnesses are being pushed and they feel that they are being given a really hard time, judges are reluctant to intervene. Some time ago, I did a study with judges and when I asked about that, they all said, “We have to be very careful if we intervene because it could lead to an appeal.” They are put in a difficult position. Without that, we only have the Crown trying to do all the things that it has to do—to ensure a fair trial, look after the rights of the accused, prosecute in the public interest and, somewhere, look after the complainer’s rights.

We are in a problematic position in relation to the Human Rights Act 1998 if we do not recognise that women may need independent advice. In the particular situation of a rape case, the focus is on them, and it will become more so if corroboration goes. Juries tend to find it difficult to know what to do in a he-said-she-said situation, so independent advice could help.

Margaret Mitchell is right. We have to look at the broader court procedures. We know that the conviction rate in rape trials in other jurisdictions that do not have the corroboration requirement is similarly bad, so it is nothing to do with corroboration. It is about court procedures.

Comparative research could be done to look at what is done elsewhere. I am aware of the cost issue but, if I recall correctly, the number of rape trials in Scotland last year was under 100. There would be a cost, but it would not be huge if you restricted the legal representation to rape trials, as Fiona Raitt has argued elsewhere.

I have the figure. In 2011-12, there were 75 trials.

Okay, so we had an advocate or a solicitor representing the woman complainer in 75 trials. That is a cost, but it is not a huge cost.

I add that it would not be for the whole trial, if we followed the models of other countries.

Does anyone else want to comment? Margaret Mitchell does—good try, Margaret.

I was going to say, “Given the complexity of the matter”, but it is not necessarily complex. On the point about efficiency, I think that the stuff that has been going round about the quality of evidence is a total red herring. If there is more evidence, that will surely only help to prove the case.

Given that there has been such confusion, not least last week, when we heard depressing evidence from the police, is it the panel’s view that the issue should be taken out of the Criminal Justice (Scotland) Bill and looked at either by the Scottish Law Commission or by a royal commission, where a panel of experts could look at it in depth and deliver some findings perhaps faster than the Law Commission could?

Yes.

Yes.

Yes.

Yes.

Absolutely.

Thank you for that.

There was a chorus there, although not in song—well, it is Christmas, after all.

I call Sandra White, to be followed by Roderick Campbell.

Thank you, convener, and good morning—

Oh, wait a wee minute. John Finnie was slow to wake up. He has a supplementary question.

The policy memorandum, which the layperson is perhaps more inclined to go to, states at paragraph 130:

“The policy objective is to remove the requirement for corroboration in criminal cases”.

That is the very clear statement that the Government makes. On the issue that my colleague Margaret Mitchell raised, it states:

“the Scottish Government considers that Lord Carloway’s recommendations are intended to be implemented as a coherent package, and by failing to implement a significant aspect of the recommendations contained in his report, there is a very real risk of undermining Lord Carloway’s stated aim of ensuring the justice system is appropriately balanced.”

That is in the section of the policy memorandum on corroboration. Do you—

You are on camera, Professor Duff, and you are grinning, so you had better answer that one.

My reading of that is that the recommendation to refer that aspect to the Scottish Law Commission puts the rest of the bill in jeopardy. Do the witnesses have a view on that?

My view is that it absolutely does not. It is only one substantive section and two other little sections of the bill. The main thrust of the Carloway report and the main thrust of the bill is to cope with Cadder, new arrest procedures, new representation at police station procedures and so on—that stands alone. The removal of the corroboration part would make no difference to the rest of the bill in my view.

11:15

Given your disclosure that you want the issue of corroboration to be referred to the Scottish Law Commission, were the rest of you on the review panel happy with most of the other issues?

There was more or less general agreement to the rest of the package.

Not only do I not believe that, but I do not believe that the Scottish Government believes it either.

Can you take that past me again? I do not believe that you do not believe that I do not believe? That is one of those—

Yes; exactly.

What exactly do you not believe?

The Scottish Government has not taken forward all the evidential recommendations in Lord Carloway’s review. Lord Carloway made specific recommendations on the admissibility of confession evidence that the Government decided could be left out of the Criminal Justice (Scotland) Bill without destroying the “coherent package” that has been referred to, so the suggestion that the corroboration requirement cannot be taken out because it is all or nothing is not one that the committee should be persuaded by.

I followed that.

The jury verdict change is also not in the package as I understand it. The package is a moveable feast, to mix some metaphors.

A package that is a moveable feast. That does not displace my moment of the day, which was the case of the judge who was pointed at when the witness was asked to identify the accused. I wish I had been there. John Blackie was the defence at the time, I take it.

Yes.

You would not have been very happy. [Laughter.] Anyway, we should get back to business. I digress.

I would like to go over some issues in order to clarify where we are. We have established that the bill is not about abolishing corroboration per se, but is about removing the mandatory requirement for corroboration. We established that in last week’s evidence, when the convener said it.

That is long since gone. We are all clear as a bell about that.

There is a second point that we all seem to agree on. In his submission, Professor Duff said that the corroboration

“requirement has been so ‘watered down’ over the years, principally by judges”

that it is

“not nearly as strong a safeguard against wrongful convictions”

as was previously claimed.

Professor Duff also said—I am quoting; I am not saying this—that

“Additionally, the ‘fiddles’ that judges have created to get around corroboration have led to a confusing, illogical and inconsistent set of evidentiary rules which practitioners, including judges themselves, often have great difficulty in applying.”

If that is absolutely true and if, as Professor Ferguson said, there is a tick-the-box approach to dock identification, why is corroboration so important? Why is it the be-all and end-all? It is not in other jurisdictions, which have other safeguards. Why do academics including you, judges and so on say that we cannot get rid of corroboration? We have talked about victims, people who experience miscarriages of justice and the accused, as Professor Blackie mentioned. Why is there a big difference between academics, judges and lawyers, and victims, who feel that 3,000 cases of domestic abuse, rape and so on are not being heard because they do not meet the specific requirement?

I will go first, because you quoted me. As I said, I am on the fence about corroboration. It is not the absolute guarantee against miscarriages of justice that it is often thought to be, because judges have been forced to water it down in order to secure or to open the door to convictions where they think that that is necessary. However, it still has some value in preventing miscarriages of justice.

I am not against getting rid of corroboration, although some of my colleagues may be. It is an important part of the Scottish criminal justice process—I will avoid the word package—and the collection of protections that are there for the accused.

If you are going to get rid of corroboration—which, as I said, I am quite open to—you have to think more holistically, as John Blackie said, about other protections that you might need to put in place. You need to examine other systems that do not have corroboration to see where to strike the balance between the right of the victims of an offence to expect a prosecution, the rights of the accused and, in fact, the rights of all of us not to be convicted wrongfully of a crime that we did not commit. All I am saying is that one has to have a proper look at this. We are not convinced that the Carloway review looked at the matter in the round.

I do not want to put words in my colleagues’ mouths, but I am not sure that any of us would say that a criminal justice system “requires” corroboration. Clearly it does not; many systems around the world do not use corroboration. However, where the system of protecting people against wrongful conviction has been built around the corroboration requirement, you cannot simply withdraw that requirement and put nothing in its place. It is the foundation of the system that we have built up over the years. I appreciate the concern about victims not having cases brought to court, but it is in no one’s interests—victims or anyone else—to have a system that wrongfully convicts people for crimes of which they are not guilty.

We were talking earlier about the conviction rate in sexual offence cases. However, the bigger social problem is not the conviction rate but that many, many more sexual offences do not go to court. It might be thought that by abolishing the corroboration requirement, that will change. In my view, it will not, and there are other matters that we probably ought to be looking at urgently with regard to that whole area. The situation is deplorable, and I would be very worried if abolition of corroboration was being seen as a quick fix—which it would not be—to a serious social and justice problem.

Thank you for your comments. Professor Chalmers mentioned wrongful conviction. However, it is wrongful for victims, too, if evidence does not meet the criterion.

Safeguards have been mentioned, and the committee has been considering that issue. The panel mentioned a number of them, such as jury size and the issue of distress. Have any of you, as academics, been asked by the Government, the Law Society or anyone else what safeguards you would put in place?

We have been asked here to give some ideas.

I asked for a remit.

As I said, I was on the Carloway expert reference group. One of the reasons, among many others, why I was there was to talk about that issue.

To follow up Professor Blackie’s point, there is another side to the coin. We are perhaps focused unduly on wrongful convictions—we talked about it earlier. The problem is that if a lot more prosecutions fail, we do not know what will be the impact on the victims; they may be very disappointed. We all appreciate that court can be a terrible ordeal for victims but, as we have seen, removal of corroboration would do nothing about that. They may go through that terrible ordeal and end up with the accused getting an acquittal, which the victims might see as a slap in the face—the jury not believing them—which would make their situation worse. One of the problems is that an increase in prosecutions—which clearly the Crown wants—may result in an increase in acquittals and more unhappiness on the part of victims so, rather than resolving the problem with a quick fix, the Government would have succeeded in making the problem worse.

I do not think that I have a right to tell a victim that they cannot be heard in court and that their case cannot go forward. I cannot see into the future and know whether victims will feel better or worse. We should not assume that if there is an acquittal, every victim will feel bad about it. We should perhaps look at some of the positives. Rape Crisis Scotland and others said that it might be worse for victims, but others said that victims might feel better.

We should get this right and make it clear that going to court is not always a negative thing. People’s experience can be positive, because they feel able to tell their story. They might not be believed, but at least victims would feel that there had been some justice.

I am sorry, convener. That was a statement rather than a question.

The simple point is that we do not know. As we have thoroughly aired the issue, we shall move on. Roderick Campbell is up next.

Good morning. What are your views on the new prosecutorial test and the evidence that was given by the Lord Advocate on 20 November on the Crown’s general approach to evidence and the need for supporting evidence before reaching a view as to whether there would be a reasonable prospect of conviction?

The test that is outlined in the Crown Office’s evidence is sensible; indeed, it is probably the only test that could have been proposed in the absence of corroboration and is consistent with what happens south of the border in England, where corroboration is not required. However, it would be wrong to suggest that it offers additional safeguards. All it does is ask the question that the prosecution would have to ask in the absence of the requirement for corroboration.

As for the need for supporting evidence, I do not understand the position that there should be no requirement for supporting evidence but that, without it, prosecutions will not go ahead. That is simply incoherent.

Incoherent. That is a wonderful word. Does anyone else wish to comment?

I agree entirely with Professor Chalmers. Just as people have objected to the removal of corroboration without its being given sufficient thought, those who are in favour of retaining it keep changing their arguments and have found themselves in some very inconsistent positions. As we have said, we are not clear about the difference between corroboration and supporting evidence. If we do not need corroboration but need supporting evidence, one has to ask what that supporting evidence is. Actually, it is simply corroboration by another name, which is the position in most other jurisdictions. In short, therefore, my answer is yes—the position is incoherent.

The bill makes no provision for any additional safeguards, for want of a better word, in relation to summary cases—which of course make up the majority of criminal cases—if the mandatory requirement for corroboration were to be removed. Do you have any comments about that?

One might argue that if corroboration is to be abolished it should be done for summary cases; after all, although they form the bulk of the work of the courts, the stakes are not as high as under solemn procedure. I find it more worrisome that someone could be convicted of a very serious offence under solemn procedure without corroborated evidence. Again, a law commission or expert body could consider whether there is an argument for taking a more nuanced approach and saying that some crimes or forms of evidence need corroboration, instead of its simply being abolished across the board.

As Professor Ferguson said, the stakes in summary cases are not as high. The other point to make is that decisions about guilt or innocence in such cases would be made by sheriffs, who are experienced lawyers and who will—we assume, perhaps without justification—be well able to see the failures in witness testimony and realise that witnesses who have come across as being credible are actually not. Because sheriffs will be more aware of such dangers, the real danger is that a jury will be taken in, as it were, by a very plausible witness who presents well in court but who is simply not telling the truth. A sheriff is less likely to be taken in by that sort of witness.

Of course, not all summary cases are presided over by sheriffs; some are presided over by justices of the peace. One might consider whether, in such cases, it would be better to have three justices instead of one.

The other issue is the use of resources in small cases. As the Carloway report points out, the police do not devote a lot of resources to getting corroboration in summary cases for the very obvious reason that, as has been pointed out, there is such a huge number of them. That, again, might be an argument for taking a different approach to summary cases.

Anecdotally, a number of sheriffs have said—I think that one went to print with an example—that they have heard summary procedure cases in which they found a first witness’s evidence to be persuasive and convincing and would have been prepared to convict based on that evidence. Only when a second witness gave evidence did they realise just how shaky and unreliable the prosecution case was, and that the standard of proof beyond reasonable doubt had not been met. If corroboration were abolished, I would be surprised if the Crown would continue to call such second witnesses.

11:30

I am conscious of the time, so I will move on to a question about the Scottish Law Commission’s role. I recently took the opportunity to review my book collection and came across Professor Raitt’s excellent book on evidence—I think that it is a 1990s edition. In it, you refer to the background to the abolition of corroboration for civil cases and the fact that a 1965—I think—Scottish Law Commission report recommended abolition of corroboration across the board for civil cases. However, there was a political row that led in 1968 to the abolition of corroboration only in personal injury cases. Can we deduce from that that reference to the Scottish Law Commission is not necessarily the answer to all our problems?

I suppose that that must be true. The composition of the Scottish Law Commission changes, and most people have quite firm views, one way or another, on corroboration. Perhaps Peter Duff and I are no different; I, too, feel pretty much that I am on the fence in that I do not think that a great deal will change if corroboration is abolished. I may be completely wrong about that, but I think that the pull of relying on familiar culture will mean that we will not see a great change. However, I may be wrong; let us not put any money on that.

To answer the question a bit more fully, I think that the Law Commission would welcome the matter being referred to it. I am sure that it must feel that it was extraordinary that its “Report on Similar Fact Evidence and the Moorov Doctrine” came out at the time when the Carloway report came out. I suppose that the two had not really been speaking to each other because of events, but it seems to me that that very important Law Commission report got buried in respect of the media attention that it received and of attention to it in literature. A referral back so that the matter could be opened up in a wider context seems to me to be a much more sensible way forward.

I recently read the Hansard debates on that early legislation. Things have changed a great deal. That was the first-ever piece of work by the Scottish Law Commission. In its preliminary work—it was called “the memorandum” in those days—it recommended abolition of corroboration in personal injury cases but in the report, which was extremely brief, that suddenly changed to abolition of corroboration in everything. The proposals were introduced in the House of Lords, and Lord Reid was a Scottish judge there—they were political in those days, of course. Basically, the proposals were ripped apart because of that. All the research on the suggestion had been done in relation to personal injury. I honestly do not think that that example is a good guide as to what would happen today.

Okay.

It is interesting that it was thought appropriate, in order to get rid of corroboration in civil cases, to refer the matter to the Law Commission for its due consideration. It has always been accepted that corroboration in criminal cases is more important, which is why it has remained. Therefore, it seems strange that where removal of corroboration would be less important, the matter goes to the Scottish Law Commission for full consideration, but where removal of corroboration is more important, it does not.

Are you finished?

I would like to wrap up generally.

We have touched on the safeguards a couple of times this morning, but no one has really been drawn on the matter. Is that because you feel simply that the bill is misconceived? Why will you not be drawn on the question of what safeguards could improve the bill?

Safeguards could not be dealt with adequately during the passage of the bill. The question is very complex and would require extensive comparative research. That could be done quite quickly—I do not agree with Professor Duff that it would tie up the Law Commission for five years—but the matter could not be dealt with by way of amendment to the bill.

Were you being frivolous, Professor Duff?

I was being frivolous.

Can you amend what you said? How long do you think such work would take?

I renege on my previous comment.

Are we talking about a year? It is a serious point.

How long did the SLC’s report on similar facts and previous convictions take? I think it was a couple of years.

Yes.

I think that a couple of years would be a realistic time.

Do the other panellists agree?

It could possibly be done a little quicker than that, but it would depend on the Law Commission’s other commitments, on which I do not have information.

It struck me when looking at the options on safeguards that that is where we would see the interconnectedness of the rules of evidence unravelling. For example, hearsay evidence might become more important as part of the supporting evidence, which could be a disaster because the rules for hearsay evidence are even worse than those for corroboration.

Yes. I remember doing essays on hearsay way back in the mists of legal time.

Michael McMahon is giving evidence next on his member’s bill. I know that this is the tail end of this evidence session—do not look at the clock. Could the panel comment on the advantages and disadvantages of the three-verdict system, on whether abolition of the not proven verdict should be considered, and on what would be the most appropriate time for such abolition? I know that the Government is considering referring the matter to the Law Commission. Professor Duff is a man who gets into the fray.

I have written about the not proven verdict in the past and said that it should be abolished. That has been considered at least twice in the past 20 years. However, for reasons that are not clear, it has been kept; it is probably because of a historical fondness for the fact that it is very different. To me, though, the presumption of innocence leaves no room for the not proven verdict. In a trial, someone is either found guilty or the presumption of innocence means that they must be found not guilty. There is no room for a kind of second-class acquittal that states “Well, we’re finding you not guilty, but we’ll leave you with a bit of bad press hanging around your name.”

What should be the route for abolishing the not proven verdict?

I would be quite happy for it to stay in the bill, although it has come in by complete accident. However, it has been considered often enough before. Frankly, I do not think that it is important enough to go to the Scottish Law Commission.

That provision is not in the bill.

Is it not?

It is in a member’s bill.

Right—it is in Michael McMahon’s Criminal Verdicts (Scotland) Bill. I thought that it had been put into the Criminal Justice (Scotland) Bill along with the provision on changing the majority verdict, but I acknowledge that it is a separate matter. I would just treat it as an issue on its own merits, then.

I agree that the not proven verdict does not need to go to the Law Commission and that it should be abolished. The biggest problem with the verdict is that jurors are not told by judges what it means specifically. When we talk to first-year law students about what the not proven verdict means, quite a number of them assume that it means that the Crown has not established the case beyond reasonable doubt and that therefore there is a kind of hung trial, which means that the jury could not make up its mind and the Crown could have another bite at the cherry. That is quite wrong. People do not appreciate that the not proven verdict is the same as a not guilty verdict. It is a historical anachronism and we should get rid of it.

I am asking you to consider the impact on abolishing the requirement for corroboration of absorbing into the bill the abolition of the not proven verdict. Is that one of the other things in the mix? Could it be done separately?

It could be done separately; in my view, the two proposals are unrelated.

That is fine.

I agree that the not proven verdict should go because it does not add anything.

If juries are doing what they are asked to do—we must assume that they are; if they are not, we have other serious problems—then they must consider whether a case is proved beyond reasonable doubt. If so, they convict. If not, they do not. If they do not convict there is then the question of what acquittal they reach. On that basis, abolishing the not proven verdict would make no difference whatever. I agree that there is absolutely no reason for it to go to the Law Commission, and I cannot see any rational reason for retaining the verdict.

Another reason for abolishing the not proven verdict is that only about 10 per cent of acquittals are based on not proven verdicts, so it is not very common. Historically, it might have been better that we had the two verdicts of proven and not proven; there was no emotionally loaded language. We have the not proven verdict because that is what we had before the middle of the 18th century.

The number of not proven verdicts is quite high in rape cases.

It is correct that the proportion is higher in rape cases than in others.

It is 20 per cent.

Yes. It is interesting that the percentage is out of line in rape cases, which obviously says something.

Yes.

In my ideal world, we would have two verdicts—proven and not proven—with no emotive language attached. It is has been well charted that the not guilty verdict came about by historical accident in the middle of the 18th century when a jury asked whether it could follow the English approach and bring in a verdict of not guilty, so it is anachronistic. That is particularly the case now that we have abolished the double jeopardy rule, which means that there can be retrials.

Yes. Thank you very much, panel. I am glad that we managed to have that discussion, which Michael McMahon can hear about in the next evidence session.

11:39 Meeting suspended.

11:47 On resuming—

I welcome to the meeting Michael McMahon MSP, who, as members will know, has just introduced his Criminal Verdicts (Scotland) Bill. We will be scrutinising Mr McMahon’s bill at a later date, but there is some crossover between his bill and the Criminal Justice (Scotland) Bill and it will be useful to hear his views.

Given that I do not know how many parts your bill has, Mr McMahon, it would also be useful if you could explain what it does. As you will know, the previous panel endorsed the abolition of the not proven verdict. There you are, then—you start from a very good position.

I certainly welcome that support, which is in line with the support that I received for the bill in general.

The bill, which has two main provisions and runs to only a page and a half, is very simple and will not be the most technically demanding piece of legislation that a committee has ever considered. Section 1 removes one of the acquittal verdicts, while section 2 amends the size of the majority in juries. In the responses that I received on that matter, some pointed out that there was no correlation between juries and the removal of the second acquittal, while others argued that, for a variety of reasons, it was important to take such changes into account. I am happy to explore those issues if members wish to fire questions at me.

Indeed. Questions, please.

Is public perception an important part of your motivation for introducing the bill, Mr McMahon? I should also say that I share your view on the matter.

It is important. We need to have confidence in our judicial system and I believe that the third verdict is illogical and creates confusion. Sheriffs in our courts are not allowed to explain to the jury what the verdict means; in fact, when they have done so, it has led to action being taken against them and cases being reviewed. The verdict itself is set out only in common law, not in statute. That is creating confusion and we need to get clarity into the system so that people can have confidence in it.

That is why section 2 of the bill is so important. People need to have confidence that a jury has considered the evidence and found, one way or another, beyond a reasonable doubt. A simple majority leaves that question hanging. As the responses to my consultation made clear, the fact that very serious cases can be concluded one way or another on a straight majority needs to be looked at.

How would the two new verdicts be styled? I do not know whether you heard Professor Blackie’s comments on the matter.

I did not, but in my consultation I made the point that the original Scots law verdicts were proven and not proven and that it was the not guilty verdict that was added. However, it is only through custom and practice, the common law and common usage that these three verdicts are allowed in Scotland and, as a result, the current system exists by dint of history rather than through any considered decision on the matter. In short, we should bear it in mind that the system was not designed to be this way and, indeed, that is where I think part of the confusion arises.

The not guilty verdict was added to the proven and not proven verdicts and then the guilty verdict replaced the proven verdict. As I said, the system that we have now was not designed, but developed over about 400 years and we need to look at it. In my consultation I suggested that we could either revert to the original verdicts or, given how controversial the not proven verdict has become, move away from it altogether and have only guilty and not guilty. Most people preferred the latter option but I am open to being persuaded that we retain proven and not proven in order to have a distinctive Scots law system. However, the danger is that the confusion about the not proven verdict would be carried over. A clean break might be better.

When we discuss juries, we always hear about the lack of research into their integrity and ability. Have you come up against the same issue with regard to your bill?

It is a very difficult issue. In fact, I could not use a number of responses to my consultation because people are not allowed to comment on what happens within a jury. There are academics who have commented on their own knowledge and experience of the issue but, although I could tell the committee many anecdotes that I heard about people’s experiences of serving on a jury—

You are not allowed to, Mr McMahon.

Exactly. Because that evidence is purely anecdotal, it has not been included in my consultation findings.

Section 2 of your bill is pretty much identical to section 70 of the Criminal Justice (Scotland) Bill on changing jury verdicts, which has been included partly as a safeguard should the requirement for corroboration be removed. Do you feel that the argument with regard to your proposal on jury verdicts is a separate one and that the change is required, even if the proposal to remove the requirement for corroboration is referred back?

When I consulted on the removal of the third verdict, respondents also raised the issue of juries. I think that only one or two academics who responded said that juries should be looked at in terms of the third verdict and corroboration. Most respondents focused on the third verdict and juries. One academic said that, regardless of whether we change the law on corroboration or the third verdict, we should look at juries anyway, because the straight majority requirement raises questions about whether a conclusion has been arrived at beyond reasonable doubt.

The previous panel seemed to suggest that the not proven verdict was being referred to the Scottish Law Commission for consideration. Have you had any discussions with the Government about that?

The matter is reviewed periodically and, in my experience, the conclusion has always been that it should not be addressed. Again, despite the consultations that we have had and the commissions that the Scottish Government has set up—the Carloway commission and others—the not proven verdict has never been addressed. Although it is always a matter for conjecture and discussion, it has never progressed to consideration by a formal commission or by the Scottish Government in any of its consultations.

The Criminal Justice (Scotland) Bill does not refer to the matter at all but focuses on the verdicts—although, as I said, some people have made a connection between the two issues.

The Scottish Government states in the policy memorandum that accompanies the Criminal Justice (Scotland) Bill that, in response to its consultation on whether the not proven verdict should be abolished,

“a significant minority of respondents were concerned that time should be given to allow the impact of implementing Lord Carloway’s recommendations to be assessed before making changes to the three verdict system.”

We may end up with a criminal justice bill that includes the abolition of the requirement for corroboration and a change to juries, or we may instead end up with a bill that leaves out the issue of corroboration and possibly jury size too. That clutters up what you are doing in a sense. I am sympathetic to your position, but I do not know how we can disentangle your proposals from what has been included in the Criminal Justice (Scotland) Bill. Apparently, from the evidence that we received, it seems that there was not a great deal of research behind the proposed change to a majority of 10 out of 15 jurors; that just sort of came about.

I am not saying that your proposal in that regard just came about, but that is what happened with the Criminal Justice (Scotland) Bill. How do you reconcile that? What if the bill addressed just the not proven verdict on its tod, as it were, and did not touch juries? The jury issue is a difficult one for me.

I consulted twice on my proposed bill. The first consultation did not focus much on juries, but the information that I received made me realise that the jury aspect could not be disentangled, so I decided to have a second consultation as I felt that we needed to consider the issue much more thoroughly than had previously been the case.

The original consultation focused purely on the removal of the third verdict, but the issue of juries was a prominent feature in the responses that I received. I took stock of that, and carried out a further consultation on a proposal to introduce a bill in two parts, specifically because of those two issues.

I am aware of the legislation that the Government has introduced on previous occasions, and I have waited on it doing some work on the not proven verdict. However, I felt that it was time to move the issue forward, which means having to address the issue of juries—

I appreciate that.

We will just have to wait and see what impact the Criminal Justice (Scotland) Bill will have.

Taking part 1 of my bill into the Criminal Justice (Scotland) Bill could be considered, depending on the committee’s findings and on whether the Government thinks that there has been sufficient consultation to allow it to incorporate my proposal on the third verdict as we move forward.

Good morning, Michael—it is still morning. I am very supportive of the context around your proposed bill, and I have learned some interesting historical facts from you and Professor Blackie—for example, that our verdicts were proven and not proven until 400 years ago, when we took on the English legal terms of guilty and not guilty. Funnily enough, I have said that we should perhaps just go back to the verdicts of proven and not proven, as you mentioned. We might want to have a wee look at that.

We have discussed the jury issue, and you said that you went back out to consultation on that subject. Was that because it could be part of a safeguard if you got rid of the not proven verdict?

Some people have suggested that that could be considered as a safeguard. If we removed the third verdict and left the simple majority, that would be a concern to a number of people. That was highlighted quite clearly. It was pretty much a response to those questions being posed in the first consultation.

The Government has said that it is supportive and that perhaps it will go to the Scottish Law Commission. Can you give us a timescale for when you would like to see your bill being passed? If the issue went to the Scottish Law Commission would your bill take longer to go through?

That might well mean that it would take longer. However, convener, I am in your hands because the committee’s work programme dictates whether my proposed legislation could be fitted in anyway. I am certainly open to having a discussion about how quickly the bill could be introduced. Whether it would have to wait on a Scottish Law Commission investigation would be worth considering.

We have been here for 14 years and looked at an awful lot of legislation. This is one of the most controversial areas of the judicial system—

12:00

Not quite.

One of.

Close.

It is one of the most controversial aspects of the Scottish judicial system and we have never looked at it. I feel that we have to address the issue of the not proven verdict, one way or another.

I want to clarify something convener, because I do not know whether I have overstepped the mark.

You never do that, do you?

I just wanted to clarify that the Government has indicated that it agrees in principle with the Scottish Law Commission that a review should be carried out.

I think that I said that, but I know that no one ever listens to me so I do not take it personally.

I wanted to clarify the point for Michael McMahon.

I am aware that that is under consideration.

You will understand that if your bill progresses, its second part would change jury verdicts and there is another piece of legislation that does that. The committee might want to consider that when we review our work programme. The jury issue is the main issue for the committee and we are exploring that area in our scrutiny of the Criminal Justice (Scotland) Bill.

However, you had good support, as you know. Do feel free to come to the committee the next time.

I did not want to overstep the mark.

Oh no, no. We are very relaxed in here; too relaxed sometimes. I thank you. You have been very helpful.