Our next item is our second evidence session with the Cabinet Secretary for Justice on the Criminal Justice (Scotland) Bill. The cabinet secretary will give evidence on corroboration and related reforms, such as the jury majority, admissibility of statements, and sheriff and jury proposals. Those provisions are contained in parts 2 and 3 of the bill.
Thank you.
I thank the cabinet secretary, although I have to say that I do not think that anybody on the committee considers that the abolition of corroboration is a game. I think that we take it very seriously indeed, which is why we are taking trouble over this very important issue.
Good morning, cabinet secretary. The Scottish Human Rights Commission described corroboration as being a legal safeguard. Similarly, the Lord President described it as being
I just put it on the record that the term “game” actually came from Derek Ogg QC in a programme on corroboration, and I think that it is referred to in a letter to the committee from Colette Barrie. She said that it is not a game to her but part of the suffering that she sustained. I think that that letter will be part of the committee’s evidence.
If that is one way of addressing the removal of corroboration that applies to solemn procedure, what additional or alternative safeguards have you put in for solemn procedure?
Do you mean summary procedure?
For summary procedure. I beg your pardon.
For summary procedure, that should be considered by the shrieval bench. We are happy to consider any additional safeguards. For example, it was suggested to me in discussions with the Faculty of Advocates that we should consider dock identification. That issue is long overdue for consideration. We are open to considering any such suggestions. The other suggestion is to consider whether matters should be removed from the jury. Obviously, that does not apply to summary procedure.
You have put a proposal in place in relation to solemn procedure, but you have not put any alternative proposal in place in relation to summary procedure.
No, because those are the safeguards on which we went out to consultation. They were approved by the senators of the College of Justice. I met Shelagh McCall and Alan Miller, who are not so much looking for additional safeguards. I think that where they are coming from is how the system operates in the new landscape, if I can put it that way. Some of that would be down to judicial training through the Judicial Institute for Scotland.
But the reason why safeguards are mentioned is that it is frequently said that the Scottish system is the only one in which corroboration is retained. Other systems, where corroboration does not necessarily apply, have alternative safeguards. Is that the case?
No. Again, I have been looking at potential safeguards and discussing the issue with academics. I think that the Lord Advocate wishes to get to the system in the Netherlands, where there requires to be additional evidence. That is why an additional safeguard that may be suggested—it has not been, but I would be open to it—would be to put the prosecutorial test in legislation.
The police staff associations’ position seems to support you, cabinet secretary. It has clearly taken reassurance from the Lord Advocate about the protection that would be afforded its members prior to any prosecution being instituted. It is the same for the teaching and social work professions, and quite rightly so. What protection can the Lord Advocate give the unemployed labourer?
There are specific consequences for those professions, given the other organisations involved and other challenges in their employment when parallel investigations are going on.
Do we take from your response that the Scottish Government will propose amendments in the form of additional safeguards?
It has always been our intention to lodge amendments to update the system and ensure that safeguards are in place. We have made clear our commitment that corroboration must go because it is denying access to justice for not tens or hundreds but thousands of people each year. That is unacceptable. I give the commitment that we must have the scales of justice properly calibrated. On that basis, it has always been our intention that there would be amendments to provide greater safeguards. We are discussing those safeguards and looking to have those confirmed or clarified, and I am looking to hear from the committee what additional safeguards you wish to suggest. I give you a commitment that we would be happy to look very favourably at them. That is also why we are engaging with other stakeholders. It is through those discussions that, for example, dock ID has been raised as a matter in which there must be some change.
In solemn procedure, do you favour allowing submissions of no case to answer, with the judge able not to refer the matter to the jury?
I am perfectly comfortable and relaxed about that. That was the situation before, but it was changed. I can see some good reasons why it should be in the power of the judge to take a matter away from the jury if he or she believes that there is an insufficient case to go forward with.
What would your understanding be—
Can I just interrupt, John? I want to let other committee members in. I will let you come back in. In fairness, I have given you quite a long whack at it—you have had about quarter of an hour.
Okay.
Elaine Murray has some questions.
I start by saying that I and all other committee members, irrespective of our views on the abolition of the requirement for corroboration, are equally concerned about the lack of delivery of justice to people who are victims of sexual crimes and domestic abuse.
I am satisfied with where the Lord Advocate is coming from. It will be inadequate simply for one officer to say that a crime has been committed. Additional supporting evidence will always be required before a case is brought. The need for additional supporting evidence provides some backstop along with any other safeguards. The requirement is for two or more witnesses—indeed, if there are two or more, they will be brought—but, as I say, no case will be brought without additional supporting evidence.
The problem is that that is the word of the current Lord Advocate and it does not tie any future Lord Advocate. It would no longer be in legislation, so it would tie nobody; it is only a desire of the current Lord Advocate and you as cabinet secretary.
That is a fair point and that is why I am perfectly happy to lodge an amendment to include it in the bill.
In the instance that Elaine Murray gave of someone on a picket line and a police officer what would supporting evidence be as opposed to corroboration?
That would ultimately be for the Crown to decide. It could be closed-circuit television, for example. All these things depend on context. Normally, there would be more than one officer present at any melee, whether that is at a picket line or a football game. What any additional evidence would be would depend on the context or the circumstance. However, what you have an assurance of from the Lord Advocate and me is simply that the word of one individual will not, on its own, be enough.
Surely that is what corroboration is—it is supporting evidence and not necessarily a second witness.
The difficulty is that we do not know what corroboration is. I met two of our most senior academics and I asked them whether they could give me a one or two-page synopsis of the law of corroboration. They admitted that they probably could not get one on which they would agree. It is quite clear that the judiciary find it difficult to agree what corroboration is. If the committee can tell me what corroboration is and agree to it, that will probably mean some progress.
Could there not have been an alternative to abolition of the requirement for corroboration? You mentioned in your opening statement that the corroboration rules are complex and that they have been stretched, eroded and circumvented. Would an alternative have been to ask a body such as the Scottish Law Commission to draw up a definition of what counts as supporting evidence? It could include the distress of the victim and special knowledge, for example, as contributing towards corroboration. Would it have been an alternative to abolishing the requirement to have a stricter, recognised definition of what counts as corroboration?
There are two arguments there. One is that we should not abolish corroboration, but I think that the case against corroboration is made. When not tens, not hundreds, but thousands of people every year do not get access to justice, it is a clear impediment. It is not simply about rape and sexual offences. As the Solicitor General for Scotland has commented, and as has been raised by Sandra White, whether we are talking about elderly and vulnerable people who are victims of assault in their own home or a care home, an elderly person who is a victim of a scamming offence, or child victims, people are being denied access to justice. That is why every victims organisation that appeared before the committee, such as Scottish Women’s Aid, Victim Support Scotland and Rape Crisis Scotland, was quite clear. I think that the case against corroboration is made, and I cannot see how we can tweak it.
I do not know, cabinet secretary. I might just be a simple-minded scientist rather than a lawyer, but I do not understand the difference between the supporting evidence that the Lord Advocate requires and the supporting evidence that is required for corroboration. They sound to me as if they are the same thing.
I do not want to put my own interpretation on that, but a view will be required from the very beginning right through the whole case. At present, two forensic scientists have to speak to a sample and two police officers have to speak to the collection of a CD-ROM from London. All that has to be done because such evidence is part of the integral thread of the case. The Lord Advocate is talking about the principal evidence that goes to court and how that happens in the Netherlands, for example. If people can tell me why we have to have two forensic scientists sign off on a label when the issue is not being challenged, I am open to being persuaded, but according to the rules of corroboration that is what is necessary when such evidence is part of the fundamental aspects of the case. That is why, as I say, corroboration cannot be tweaked or altered. We have to get rid of corroboration, but, in doing so, we must make sure that the safeguards, checks and balances, and the operation of the system, are appropriate.
The two police officers or the two forensic scientists are not the issue in domestic abuse and rape cases. It is the supporting evidence and the definition of the supporting evidence that will corroborate statements.
Yes, but that is not the law of corroboration, which requires not simply what happens in the court case—
We appreciate that, and I understand your argument about the threads that lead up to the court case. However, to focus on what happens once a case is in court, I and others are concerned about the discretion or flexibility that exists for corroboration, and I think that the same thing will happen in relation to what is, or is not, supporting evidence. The judiciary will continue to make the same decisions. I agree with Elaine Murray: in the court context, I cannot see that there is a huge distinction, if any, between supporting evidence and what is now admitted as corroboration, in the widest sense, in the circumstances of each individual case.
That is probably because we have difficulties with the definition, and academics and the judiciary have difficulty with announcing what corroboration is.
Will the same issues not also pertain to what the judiciary concludes is sufficient supporting evidence in the case? It seems as if we are changing labels to some extent.
No. What we are looking to do is start afresh, which is why we looked at the safeguards. Let us remember that when corroboration was brought in, it was meant to be evidence from two people. It has since been ameliorated and watered down. Is it evidence from two people? No. What is it? It depends on the circumstances. It has been ameliorated, understandably, for the right reason—to provide flexibility, whether in relation to Moorov or a variety of other things.
Yes. We understand that.
In the first supplementary written submission from the Crown Office—CJ46a—paragraph 4 states:
Conviction and detection rates are for the police and, ultimately, the courts. I agree with the Lord Advocate that this is about access to justice.
But you will accept that as far as conviction rates are concerned what will happen is really a matter of speculation.
Absolutely. We have no control over that—and rightly so. However, we have some control over whether such cases get to court. Even in cases such as the five examples that the Lord Advocate gave, a jury could come back and say that something was just happenstance—for example, that the wee girl who was mentioned earlier knew what that individual’s underwear was. Such things happen, but they are for the jury. The jury could come back and say that a woman who was raped might have known the man in question or invited him in or that the act had been consensual. I do not know what defence the accused would run but, as I have said, as legislators we have control over allowing access to justice. We cannot make a decision on guilt or innocence, because that rests with the judiciary—clearly, we need that separation of powers. However, if we do not give access to justice we are not giving victims the opportunity to have closure.
Moving on to the question of—
Before we move on, Mr Campbell, I note that the cabinet secretary referred to the people in question as victims. We have to be very careful with our language because, notwithstanding some of the horrors in the examples that have been highlighted, they are not victims until the case itself is proven. What of concerns about access to justice for the accused? You have talked about balances and recalibrations but there have been false accusations and one concern might be that, if those accusations come to court, there will be trial by media. Notwithstanding what happens at the end of a case and whether the person in question is acquitted or indeed the verdict is not proven—if that verdict is kept—their life will have been ruined.
We simply have to ensure that adequate safeguards are in place. That issue has been raised by Mr Finnie and I have already mentioned discussions that I have had with other bodies. My door is open to suggestions about additional safeguards and I will welcome any comments that the committee makes on the matter.
I welcome your comments this morning about safeguards but I am slightly troubled by Lord Carloway’s view that, if the requirement for corroboration was abolished, there would be no need for any rebalancing through the introduction of further safeguards. Moreover, in his evidence to the committee on 20 November, the Lord President said:
I am happy to accept that there have to be additional safeguards. We are perfectly comfortable with and think there are good reasons for, as Elaine Murray suggested, enshrining the prosecutorial test in statute and protecting it from political changes. I do not think that the issue is necessarily the number of safeguards that are in place but how things operate collectively once we remove corroboration.
Why do you think that it is important for the reform to take place now?
The reform must take place now because, as I said, Lord Carloway was asked to go away and carry out a review following the Cadder decision, he has done the review and he has given us the opportunity to draft the Criminal Justice (Scotland) Bill, which covers the point of first suspicion through to the point of final appeal. We have the benefit of seeing that process laid out in one bill.
We shall hear from Graeme Pearson next, followed by Christian Allard, John Pentland, Sandra White, Alison McInnes and Margaret Mitchell. After that, John Finnie can come back in if he has supplementaries.
Cabinet secretary, you mentioned the Cadder decision, which was taken by the Supreme Court, of which Lord Hope was a member. Lord Hope gave the judgment and has recently gone public in indicating that he thought that the current Administration’s approach to corroboration and its abolition as a principle is wrong. His voice and his view are joined by those of the Lord President and many other significant people in our community. Even Miscarriages of Justice Organisation Scotland has come on side, indicating its concerns. It is a controversial issue and one that causes concern.
There is time to get the new system of evidential requirements and the other aspects that you mentioned right, but I do not think that there is any time to delay in getting rid of corroboration. The view that it is archaic came not from me but from Lord Carloway. I know that there are other senior members of the judiciary who disagree with him, but let us be clear about the fact that Lord Carloway is the only judge who went away and spent a year investigating the issues. None of the others did. He came back persuaded of the need for abolition.
Before Graeme Pearson goes any further, I note that you said that Lord Carloway took a year out. Did the rest of his review panel take a year out as well? Were they out doing the work, too?
They were a reference group, so—
The reference group spent a long time on the work too, did it not?
I do not know. The reference group was there to engage with Lord Carloway, whereas he was doing nothing but the work.
We were told that the vast majority of the reference group opposed the abolition of corroboration. It was not a one-man operation; there was a team as well. I mention that just for clarification.
Lord Carloway took the year out. He was a member of the bench at that time and has since been promoted to his current position. We have a huge number of people with similar experience to Lord Carloway—some might argue that there are people who have far more experience of the administration of justice in Scotland—who take an alternative view. That causes concern to people like me, who are trying to come up with the right way forward.
We are building on Lord Carloway’s review. This was not done by officials—
The justice system is not Lord Carloway’s system. We are talking about Scottish justice, and we have a community of people who have said that they are very concerned about the issues. They too seek justice for victims—as we all would.
First, let us deal with the question of justice. I cannot comment on the cases that you mentioned south of the border because I do not know them. Other aspects of the system there might be relevant. I do not think that you could say necessarily that they were all related to corroboration, although it is not for me to comment on them.
I am conscious that I am a guest of the committee. Can I ask one last question?
We are very good to guests.
You have said that you will take time. Would the Government accept an amendment to the effect that if it gets its way on the future of the requirement for corroboration, it will not enact the change until a group had reported on the appropriate checks and balances to be put in place when the change occurs?
Of course. We cannot go from the old regime to the new regime without ensuring that we have got it right. I am saying that if we have to ensure that we get it right, we have to give that time.
Yes, but before that training can take place that new landscape must be clarified and understood. Whether it be through the Scottish Law Commission or some other structure, it needs to be clear to us how you would do that.
We are happy to take the time to get it right and we are conscious that we cannot start training people until we have decided on that. We are also conscious that this is a busy year, with strain on the police from the Commonwealth games and so on, so we have never anticipated that police training would begin until a considerable period had passed.
Can you clarify what you are actually saying? You have come out with a lot of substantive but not firm proposals—tests about other tests that you would put in place if the requirement for corroboration were to go. I, for the life of me, cannot see how we can deal with those at stage 2 or stage 3, because we would have to take further evidence, certainly at stage 2.
No.
You are not.
I am saying that the requirement for corroboration has to go. We believe that its removal must remain in the bill and we must trigger that. Graeme Pearson made a perfectly valid point, but we never anticipated that when the bill received royal assent we would immediately go live. The likelihood is that royal assent would be given before training and so on had taken place.
I am concerned about the phrase “got right”. Would there be a role for the committee? Perhaps I should be asking not you, but the clerks. I appreciate that you say that the change would come later, but if it will not be enacted right away, is there a way that the committee or Parliament could look at it again? It would be in the bill and in the act as passed, but in suspended animation until such time as further evidence came back to the committee. That would allow us to say, “Okay. Now we have taken our time, which was better than trying to do it at stage 2.” Maybe I am asking the wrong question; I do not know.
I think that such matters will be triggered by subordinate legislation but they can come back before the committee and Parliament through, say, the affirmative and super-affirmative procedures. Indeed, from my discussions with various people, including academics, I think that such a method would provide for greatest scrutiny.
Do you want to come back on that, Graeme?
In the light of that particular thought process, is it your intention that the bill will contain not only a commitment to discarding corroboration as a basic requirement but a safeguard that that discardation or whatever you might call it—
Discardation? That is a new word.
I am glad that I have invented it, convener. Do you intend that the bill will contain a safeguard to the effect that discarding will not occur until a committee or some other vehicle proposes safeguards with which the committee is satisfied?
Yes. We are perfectly comfortable with that direction of travel.
I want to ask a wee supplementary because, again, I am getting a little bit confused. Part of your argument for having to do this in the bill was that thousands of victims are not getting access to justice, even if the bill might not deliver justice for them. However—I have to say that I am, to a certain extent, reassured by this—you are now arguing that you would suspend such a move until the various safeguards had been interrogated, which might well put it off for a couple of years.
We never intended to bring the new regime into place until 2015 anyway, because the police had made it quite clear to us that with the Commonwealth games, the Ryder cup and so on, officers would simply not be able to undertake training either online or at Tulliallan in 2014. Although the bill will go through and receive royal assent, it has always been our intention that the changeover would not to be triggered until 2015 or whenever. As with many bills, things can come in at different stages; we have that window of opportunity.
So, your argument about the urgency of the move was actually irrelevant.
No. There is urgency to get this done as quickly as possible, but this is as quick as it can be done. It cannot be done any quicker than that. I cannot ask the chief constable to take officers away from carrying out necessary orders during what will be a busy time for Scotland, but they will have to be trained up. As a result, the measure was never going to come in until 2015. In fact, the period before it would come in had not even been considered, although it will happen in 2015. That gives us a window of opportunity to get it right. Does that mean that some people will suffer from lack of access in 2014? Well, yes—but we were never going to be able to do this in that time. We need to get this done as quickly as possible and, indeed, that is what we have discussed with Victim Support Scotland, which supports that position.
Having spoken to Victim Support Scotland and others about corroboration, I am concerned about the timescale. Are you saying that the measure will come in no later than 2015? Given the reference to the Scottish Law Commission, my great concern is that we could be talking about two, three or even four years before something is put in statute. Can you confirm that, if this process has to go ahead, it will not take any longer than a year?
The Lord President himself said that it should not take longer than a year. Given that we did not, in any case, think that the police could be trained in less than a year, we think that we can use this dead time—if I can put it that way—to get this right. We want to get the balance of the scales of justice right between doing this as quickly as possible and having sufficient time to get it right, but at this juncture we can carry out a further review. The principle that will be enshrined is that corroboration will go, and that will be triggered as soon as possible to end the manifest injustice that so many victims face.
Forgive me, but I was just checking with the clerk, because you have thrown in mention of the super-affirmative procedure. The committee will have to find out exactly what that does to primary legislation. I do not think we have done that before, but I know that the process allows us to take evidence and take a matter back to Parliament. However, I do not know what the procedure would do to a measure that is already enacted. As you say, cabinet secretary, the provision is coming in, but whether corroboration is abolished or not depends on Parliament; the committee will have to keep its finger on the pulse of that change.
My question is about the change. You have shared a new approach with us today, cabinet secretary, saying that you would set up a review group. Have you thought about who would lead on that group? Would it be the Law Commission, with a timescale set to report back by a certain date, or do you see it being led by some other body?
I do not think that the Law Commission would be appropriate. It does not currently have the resources for that. We have some thoughts, but we are open to views from the committee. As I said, the principle that the Government is enshrining is that corroboration will go, and we will take time to get the safeguards and related matters correct, after which we will implement the change. We are happy to discuss other matters with the committee and, indeed, with other parliamentary groups.
On that point, I would like to know more about the training of police officers. Do you think that we need to wait for all the safeguards to be debated before we start to train police officers?
Not necessarily, but it would probably be better. I would have to leave that to the police; it is a matter for them. The only discussions that we have had with the police were about the fact that, after the Commonwealth games, the referendum, the Ryder cup and the homecoming, police officers will probably need time off, as I am sure John Finnie and the Scottish Police Federation will agree. It would be difficult to organise in 2014 the training that is required, so we gave the police a commitment that we would not proceed with it this year. I am happy to leave that to the good offices of the police and the federation. What matters is that they get the training and get it right. They could probably start doing some training, but it might be easier to leave it until everything is sorted. However, that is a matter for the police and their staff.
So it is a question of timing, and we have room to make sure that it starts as soon as possible, if we all agree that the removal of corroboration is the way forward, which now seems to be the view of the committee—everybody is talking about timing as opposed to whether we should remove the requirement for corroboration. I will go against the committee on that and go back to the suggestion that the requirement for corroboration could be abolished only for some cases, although when Lord Gill gave evidence he said that, if the requirement for corroboration were removed, it should be removed across the board. Did you think about the possibility of removing it only for some cases? How would you address that situation?
We thought about it, but there is a good reason why the law of evidence should apply to all cases. Although the Lord President did not use the terminology that I would normally use about different categories, I understand where he is coming from. Why should I have to find myself telling people whose son has been murdered that the case could not proceed because corroboration was required, yet if I was speaking about a rape offence, it could be that that case proceeded?
It was just an alternative to your proposals. Is there any other alternative to your proposals?
The alternative to our proposal to abolish the law of corroboration as a routine requirement is to ensure that we have the appropriate safeguards, that the system fits together and that there are checks and balances. That is how all other regimes operate. Reference has been made to the fact that the Netherlands has corroboration, but it does not—the Netherlands has something much more akin to what the Lord Advocate is advising, which is that there should always be supportive evidence. I am comfortable with that. It does not need to be provided at the beginning or require two officers to go and collect a CD-ROM, for example. No other country has gone there.
Let us take the particular example of the Netherlands. We heard evidence from the University of Dundee—
Before you go on to that, other members want to ask supplementary questions.
On the law of evidence?
Yes.
Cabinet secretary, if you had listened to Lord Gill you would have heard him make it clear that corroboration has evolved over the centuries to where we are now. In your evidence this morning, you seem to be suggesting that every single fact in a case should be corroborated. The sad fact is that that is the way in which the prosecution has often looked at cases. What needs to be looked at is the law of evidence and how fiscals apply it in the courts. There is not a high threshold for evidence; all that is required to establish corroboration is that the essential facts of a case—first, that a crime was committed, and, secondly, that the accused did it—are backed up by two sources. Half the concern about the prosecutorial test that you are talking about relates to the fact that, in practice, the law of evidence is not applied properly in the courts just now.
I have to say that I do not know about that. Are you suggesting that the Lord Advocate has got it wrong, that his predecessor, Elish Angiolini, did not apply the law correctly, that Lord Hardie was incompetent and that Lord Boyd did not get it right? I practised law for 20 years and have always understood the position to be as it was articulated in the committee by the Lord Advocate. The committee took evidence from Assistant Chief Constable Malcolm Graham that it is not simply about what happens in the court but runs right through the system. It is for those reasons that we have two officers going to London for a CD-ROM and two forensic scientists. If we did not, there would be no case to answer in relation to a challenge that a matter had not been corroborated. That is not simply about the sexual assault aspect but about aspects further down the line.
The interpretation of the law of evidence is a skewed one.
Stop a minute. Margaret Mitchell is on my list to ask about the tests for two different cases and the question whether there could be no need for mandatory corroboration in certain cases. Is that what John Finnie is going to ask about?
I wanted to ask a question that follows on from the investigation of crime and Romano-canonical law, which was referred to.
I will let you back in later to ask about that. I thought that you wanted to ask about the specific suggestion that whatever happens has to happen across the piece rather than there being different approaches in relation to separate categories of offence.
I would like to go back to the position in the Netherlands. We heard from Professor Pamela Ferguson and Professor Fiona Raitt, both from the University of Dundee, who told us that Scotland was bizarre in having the corroboration requirement. However, when they thought about it, they said that, in the Netherlands, although there is no requirement for corroboration, there is a system of corroboration that operates unofficially, as is the case in many jurisdictions. That leads me to think that removing the requirement for corroboration will be a lot more seamless than was first expected.
I think that you are right. I disagree with Margaret Mitchell’s view of the current law of evidence, and the Procurator Fiscal Service has always operated as it does. What she suggests is unnecessary.
We are now in our 11th evidence-taking session on the matter and I am still unsure whether the Mexican stand-off will be avoided. However, from your opening remarks, I wonder whether you are softening in your pursuit of an all-or-nothing approach to the issue, given that you talked about taking on board suggestions or reaching compromises. On that point, bearing in mind that conflicting evidence exists, it is interesting to note that Lord Cullen and Lord Hamilton have said that limited exclusions from the requirement for corroboration would be better than its complete removal. Might that be one of the compromises that you would be prepared to reach?
No. I have the greatest respect for Lord Cullen and Lord Hamilton and was grateful for their contributions. However, their suggestion regarding limited change was rebutted by others.
You have emphasised that we really need to get access to justice for victims of rape, sexual assault and domestic abuse. I certainly support that. However, have you looked at any alternative to the removal of corroboration?
Corroboration is not sacrosanct. The point has been made that when corroboration first came in it required two eye-witnesses to speak to an incident. It came in in a world that did not have CCTV, forensic science, 3 million-to-one certainty or professional legal defence teams. However, all those aspects have come about. The world has changed in that respect.
There is widespread opposition to the bill, so if it is unsuccessful do you have a plan B?
I do not think that there is widespread opposition to the bill, although I accept that there are concerns about it within the legal profession. However, we should remember that on the other side are Victim Support Scotland, Scottish Women’s Aid, Rape Crisis Scotland, Police Scotland, the Scottish Police Federation and the Association of Scottish Police Superintendents. I do not seek to minimise the legal profession’s understandable concerns about ensuring that whatever system we move to is right. However, I think that the case is made on corroboration, because those who suffer from injustice overwhelmingly seek the change that is the removal of corroboration.
Do you have a plan B if the bill is unsuccessful?
No. I think that we have a plan to deliver access to justice and, as I said, to take the time to get the safeguards and changes to the system.
I concur with what my colleague John Pentland said about the corroboration issue and access to justice for certain crimes that people are victims of. John Pentland and other colleagues have mentioned that most of the judiciary are against getting rid of corroboration. However, a number of members of the judiciary have also said that if they were starting afresh with the justice system, corroboration would not be part of the law. Have you heard that comment, cabinet secretary? Is that a fair summing-up of the position on corroboration?
It seems to me that most of the opposition is not about preserving corroboration, because I think that everyone accepts the difficulties that exist with it because we cannot define it.
The inability to define or describe something does not always mean that it does not exist. For example, people know an elephant when they see one, but it is very difficult to define or describe an elephant to someone who has never seen one so that they know exactly what it is. On the other hand, a judge or, indeed, a jury might well know what corroboration is when they come across it because of the facts and circumstances of a case.
I would accept that argument in many spheres of society. However, in a court of law, when we are talking about imprisonment and justice, we cannot say, “We’ll know this when it comes in the room.” No—we should know what it is and it should be understandable. When we cannot get the academics or the judiciary to agree on the law of corroboration, we are leaving it to individuals to make a decision—probably the right one—about access to justice, and there is something fundamentally wrong with that. Some areas of law, such as those applying to information technology or conveyancing and land and, indeed, certain laws of evidence, are very complex and are not understandable to the ordinary man or woman, but when such a fundamental law—the requirement for two sources of evidence—that superficially appears so simple is, when you get into it, not simple at all, that law is no longer fit for purpose.
I still stick by my elephant example, cabinet secretary, but there we are.
There are actually two types of elephants, convener, not just one. [Laughter.] I am not a lawyer or a member of the judiciary; I might be an MSP but I am also a member of the public and I think that the cabinet secretary is absolutely right: the public should know exactly how the law works. After all, it should be for them, not just for the higher echelons, the intelligentsia or whatever you want to call them.
One would hope so. All the evidence points to an increase in sexual offences and the reason for that is that people feel more comfortable about reporting such matters and believe that they will be dealt with better by the police and the prosecution, that they will be better protected in court and that there will be better outcomes.
Cabinet secretary, over the past couple of years, you have used your parliamentary majority to drive through legislation that has been controversial: I am thinking of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 and the creation of the single police force. On both those occasions, you sat in front of this committee and, in your chirpy, friendly and confident way, told us that everything was fine and there was nothing to worry about. However, as the legislation was implemented, we saw very quickly that it had flaws.
I listen respectfully to the voices of those who are concerned about the removal of the routine requirement for corroboration, but I cannot ignore the fact that not tens, not hundreds, but thousands of people are denied access to justice.
I put it to you that you have an obligation to protect the justice system in Scotland, not to offer false hope to people. There is a real concern that you are raising false hope about prosecutions and convictions. If all you are doing is trading a compromise in the justice system for false hope, that is not a good way forward.
I do not believe that I am raising false hope about access to justice. I return to the point I made about Colette Barrie. She was quite clear about this and I said that it is not for me or anyone else in Government or in politics to impose a conviction; it is about access to justice. She accepts that. She has said that she would be deeply disappointed if there were not more convictions and she believes that there will be more, but she accepts that this is about access to justice, so I do not think that we have ever given false hope. The position of Rape Crisis Scotland, Victim Support Scotland and Scottish Women’s Aid is the same, although—probably because of its strength—Colette's testimony sticks in my mind most of all.
Do you not think that taking a pick-and-mix approach, with members throwing in amendments at stage 2 and other people coming forward with concerns, puts at risk the integrity of the system? Would it not be better to look in the round at all the possible safeguards that we would need and come up with a comprehensive package that assures everyone that there are still strong foundations that will protect everyone against miscarriages of justice?
That is what we seek to do and is where I hope we get to. I do not believe that a royal commission would be appropriate, nor do I believe that the Scottish Law Commission is in a position to accept such a review. However, we have time to make sure that we can give some consideration to ensuring that the system will operate fairly for all—for victims as well as for accused. The issue can be dealt with and we can stay on course. I will take on board the views of committee members about how it can be dealt with.
How will you determine when you have got it right? What test will determine that?
Ultimately, that will be for the Parliament.
I agree with Alison McInnes. It seems that issues are being raised ad hoc about safeguards. I do not know whether the cabinet secretary has actually said that if the committee was to propose the super-affirmative procedure, he would be amenable to accepting that proposal.
I am happy to look at that.
Before I let Margaret Mitchell come in, I will make that point plain because she might want to focus her questions. I have a note from the clerks about what that would mean; I was not too sure myself. If the provisions on corroboration were kept in the bill, they could be subject to the affirmative or the super-affirmative procedure; it would need to be specified in the bill. Affirmative procedure would allow the committee to consider whether the proposed additional safeguards would be sufficient; that would mean three weeks of evidence. The super-affirmative procedure, under which the committee has already considered prison visiting committees, would allow us to take more evidence before final orders were laid. The Government would have to put final, super-affirmative subordinate legislation to the Parliament for it to accept or reject the commencement of the provisions on corroboration. I hope that I have explained that properly. That is how the procedures would work. As the committee is talking about having real concerns about safeguards and so on, that is a procedure that could be used. I just thought that I had better explain it, because it does not come up very often.
It is actually on Alison McInnes’s point about the Scottish Law Commission. The cabinet secretary has been very reluctant to refer the issue to the Scottish Law Commission but the Government has suggested that the third verdict be referred to the Scottish Law Commission, and we heard last week that section 53 of the Title Conditions (Scotland) Act 2003 is to be referred to the Scottish Law Commission, so why the reluctance to refer something as fundamental as the abolition of the requirement for corroboration and what will come in its place?
The view is that because of the nature of its staffing at the moment, the Scottish Law Commission is not necessarily best placed to deal with criminal matters. We do not think that the Scottish Law Commission is the appropriate place to go at the moment. It also has a pretty full calendar because of everything that has been put there and its on-going research. It has published its work programme and the difficulty is that it is lacking in the specific criminal skills, and it has limited time and ability.
But that is not the case for the third verdict.
Well, it has some time. We discussed that issue with it and it was going to take it on board. It has a new commissioner going in—Lord Pentland—but its resources in terms of criminal staff are not great, or huge in number.
Roderick Campbell has a supplementary question.
Just to clarify, it is my understanding that, in respect of section 53 of the Title Conditions (Scotland) Act 2003, the Scottish Law Commission could not commence work until 2015 anyway.
It has published its work programme—I cannot remember for how many years, but it is pretty busy. It does do criminal work but, if I recall correctly, Patrick Layden is on his own at present and is having to do everything.
I call Margaret Mitchell.
I think that we should deal with the red herring of the affirmative/super-affirmative suggestion that you have thrown into the pot this morning, cabinet secretary. All that it means is that the Government would use its parliamentary majority to force through a decision on something that is causing widespread concern.
I think that, rather than taking hearsay evidence, you would have been better to ask Lord Carloway that when he was here.
With respect, cabinet secretary, you are saying that the case has been made on corroboration because Lord Carloway has convinced you, yet you are asking me to go back and ask him how long he spent on it. Did you not ask him that?
It is not a matter of going back. You had him here before as a witness. You should probably have asked him the question.
Should you not have satisfied yourself before—
I have to say—
Now, now. Can we not have a barney and talk over each other? Passion is wonderful, but can we have civility?
It was difficult to understand what the question was.
Do you know, cabinet secretary—
I think that the question was what period of time, in the one year in which Lord Carloway carried out his review, he spent on corroboration.
Yes.
I have to give you the answer, Ms Mitchell, that I cannot answer that. I do not know how long he had for coffee breaks or how long was applied to anything else. He was asked to carry out a review. He was appointed not by me but by the Lord President. He took time off from sitting on the bench to go away and investigate—
You have answered the question. You do not know, cabinet secretary.
I do not know. You would need to ask Lord Carloway—
Right. Well, I think that that is material if we are talking about evidence that he has produced that has convinced you overwhelmingly that the case on corroboration has been made. I turn to the Carloway expert review group. Do you know what it recommended?
It was split. Some did not agree and some did agree.
But do you know what the group recommended?
It was a reference group to Lord Carloway. It is Lord Carloway’s report that is put to me.
You do not know what it recommended. I will tell you, then, because we heard evidence on it. It recommended—
It was a reference group.
—that corroboration be put to a law commission. Okay?
It was a reference group to Lord Carloway.
Yes, and that is what it recommended to Lord Carloway.
And Lord Carloway made a report—
It seems that you did not know that, cabinet secretary.
Please do not talk over each other. Please talk one at a time, because I am having difficulty hearing.
Did you know that information?
Lord Carloway made a report to me. I asked the Lord President for a judge to carry out a review after the Cadder decision. The Lord President appointed Lord Carloway, who had a reference group to give him support and advice. Lord Carloway produced the report, which he submitted to me. I am aware that many members of the reference group did not agree with his position on corroboration, but others, including the former chief constable of Lothian and Borders Police, David Strang, did. The report came to me and I support it, as I have said.
Let us not go off at more of a tangent—you are an expert at doing that. You owe it to the hundreds of thousands of people who go through the criminal justice system every year, who expect a fair trial, to take the issue seriously and not go off at tangents.
In fairness to the cabinet secretary, I do not think that he is not taking the issue seriously. I know that you and he are at opposite ends of the spectrum.
He should not go off at a tangent.
The suggestion is most unfair. I accept Margaret Mitchell’s position, but I ask her to test more questions.
The question is about the fact that the cabinet secretary has said that the need is immediate and that we must get justice for the victims now. At the same time, he has said that it is important to take time to get this right.
No.
I did refer to any reasonable person.
I am not having that, please—let us contain our emotions.
I do not think that retrospectivity can be brought in.
Will you develop that a little? That would be helpful, as somebody has taken the trouble to bring a petition to the Parliament on the issue.
Retrospectivity would cause great difficulties for prosecution. I appreciate the sensitivity, because people have suffered injustice. However, there must be clarity and certainty. I say to Ms Mitchell that that comes back to the point that the law must be understandable. People must know whether the law applies to them. Retrospectivity causes difficulties with that. Our position is that retrospectivity would not be possible, although I have sympathy for those who seek to bring it in.
I call John Finnie.
Has Margaret Mitchell finished?
I am finished.
I did not just wade in.
I asked in case you thought that I had a supplementary question, convener.
I did not think that.
My question is about Romano-whatever law—Romano-Greco law?
Romano-canonical law.
Romano-Greco—that sounds like a restaurant.
Cabinet secretary, you said that a lot has changed since people were being charged with horse thefts and the like. That is the case, because we now have CCTV, IT, mobile phones, forensic science, DNA and a record number of police officers—we are able to use all those resources. That is all the more reason to acquire corroborative evidence, many would say.
It is about justice. One of the interesting discussions that I had with the chair of the Scottish Human Rights Commission and his colleagues was on that point. As we know, because of ECHR, a victim might choose eventually to go to Europe to challenge the system because they are not getting access to justice. People have gone to Europe frequently about convictions or whatever.
So the Scottish Government’s position is that Scots law as it stands, with the requirement for corroboration, is challengeable under the ECHR.
It could be challenged, yes.
That point does not feature in any of the previous representations, explanatory notes, policy memoranda and so on that we have had. When did it come to light, cabinet secretary?
I have discussed the matter with past Lord Advocates.
And yet we have nothing in our papers to suggest that and I would have thought that it is of great significance.
The Lord Advocate has expressed concerns. I have certainly had discussions not simply with the current Lord Advocate but with past Lord Advocates about the possibility that, ultimately, we could face difficulties if a challenge was brought.
What changes would there be in work practices and attitudes were the requirement for corroboration to be removed from the Scots law system—in particular with regard to police officers? I asked Mr Graham about the amount of effort a police officer would put in with regard to someone who was the subject of a single witness accusation, perhaps with some CCTV evidence or whatever. Would the police be going out looking for evidence that would support the assertion of the accused that he had not committed the offence?
Yes—if we accept the position of the Lord Advocate, the police would always look for additional evidence. Probably the easiest way, once they had heard from one witness, would be to try to get a second or third witness. It would only be in cases where the police were restricted in terms of witnesses that they would not try to get that evidence from witnesses and they would look for additional evidence.
Can I stop you a minute because everybody is chipping in again? I will let the discussion be exhausted but, just for enlightenment, I will tell members who is waiting to ask questions. Alison McInnes is indicating that she has only a small question, but I have a lot of members doing that. I have questions from Roderick Campbell, Sandra White, Elaine Murray, Christian Allard and now Alison McInnes. I am happy to take you all, but let us not go over old ground—let us pick up new things. I ask John Finnie whether he has finished. I see that he is perched and ready to go.
I have a question on one further issue.
Okay—as long as it is new.
It is regarding domestic violence. There has been a welcome change of approach, certainly since I was in the constabulary a long time ago. As I understand it, following the Lord Advocate’s guidelines, perpetrators, who are overwhelmingly male, can be arrested on uncorroborated evidence and detained in custody, only for the case not to proceed to court when the fiscal gets the papers in the morning. I understand that another dimension is the growing practice of counter-accusations through which the initial alleged victim finds themselves the subject of an accusation, and both parties are arrested. Under Cadder, both parties summon solicitors, who give advice that it would be inappropriate to say anything, which results in a logjam. That is in no one’s interest. Were we to remove corroboration, do you fear that there would be more counter-accusations? That is happening with corroboration.
No. The issue that you raise relates to the policy that is operated by the Crown and the police. That relates to a zero tolerance policy and to better training for police officers in relation to what they are looking for. I do not think that the law of corroboration makes any difference to that, so I do not think that the change would affect police policy.
Just for good order, I refer to my entry in the register of interests, which shows that I am a member of the Faculty of Advocates.
What did she say?
She talked about the risk of challenge under the ECHR if corroboration was not abolished.
That is helpful.
Again for good order, I want to refer to a comment by Lord Gill, who said:
Yes. Some of those aspects might be for other reviews, but all of them would at least have to be considered initially as to whether they would be appropriate. It is becoming clearer to me that the issue is not simply about safeguards and the number of them; it is also about the operability of the systems and other aspects, such as those that the Lord President raised, which you have correctly touched on. We are happy to take the appropriate steps to ensure that we consider those.
I have a small point of clarification that is similar to the point that Rod Campbell made earlier. Perhaps the clerks could check this, but I seem to recall that, in evidence to the committee, Lord Carloway said that he was protecting the Scottish Parliament against someone taking a case to the European Court of Human Rights, which could happen if we still had corroboration.
In considering our report, we can go back to look at the evidence.
John Finnie said that he had not seen any evidence on that, but I am almost certain that it was part of the evidence.
If that is the case, I accept that.
We will deal with that issue when we look over the evidence that we have received. Members are beginning to exchange with one another and we are getting evidence from members.
Sorry—I just wanted to point that out.
I return to the possibility of the requirement for supportive evidence being put into the bill. That would change it from being a bill that abolishes the requirement for corroborative evidence to one that replaces it with a requirement for supportive evidence, which is quite different.
We consulted on safeguards. It is becoming clear to me that the issue is not only safeguards but the operability of the system. We seek to get as much consensus as possible. Sometimes, it is not possible to get consensus. We have, on one side, those who say that corroboration can never go and, on the other, those who think that it has to.
Would that be incorporated in the prosecutorial guidance that, if I have kept my bearings during the discussion, you are now considering putting into the bill?
The prosecutorial test would go into the bill. Prosecutorial guidance is a matter for the Lord Advocate.
I understand that; sorry, that was my mistake. The prosecutorial test—
That could go into the bill.
Would that be a place to put something like that?
Yes, that would be the place to do it.
Before I get any more confused, I call Christian Allard to be followed by Alison McInnes. After that I want to have a suspension before we move on to the next set of questions, if that is all right with members.
Thank you, convener. I do not want you to be more confused about that matter, but I am confused about something that I heard. It concerns the number of prosecutions and convictions that there will be if we remove the requirement for corroboration.
I do not think that Lord Gill said that it would increase the number of convictions. Do you have that in front of you?
He said:
That is correct.
That does not add up to many more unsafe convictions.
The issue is the number of cases in which there might be a miscarriage of justice, not the number of convictions per se.
Yes. The evidence from the SCCRC was that it thought that there would be more unsafe convictions and, therefore, that more appeals would go to it. That was another point, so there were two points there.
Nevertheless, my question is on the number of convictions.
I do not believe that there would be an increase in the number of miscarriages of justice, as Lord Carloway made clear, and certainly not when the appropriate safeguards are in place. We already have an SCCRC, unlike many other countries, excepting England and Norway.
We will move on. Alison McInnes will have the last word.
Mr MacAskill, you said in response to John Finnie’s question about police practice following the abolition of the corroboration requirement that there would not be many changes apart from a reduction in the duplication of resources. Have you quantified the savings that might be made in police and forensic services if they did not need to have all those double resources?
Her Majesty’s inspector of constabulary was going to do some work in that area, but he has not yet reported on the costs of duplication, which are hard to quantify. The abolition of duplication will not create financial savings as such, but it will mean that two officers who have to go down to London to pick a CD-ROM—
We do not need to hear about two officers and a CD anymore; I think we all know about that by now.
I got the example from the federation—
I know—forgive me, cabinet secretary. We accept the example of the two officers and the CD, but I think that the point has been made.
To conclude, rather than having two officers going to London—I do not need to expand on that—perhaps one officer will go while the other will stay on the beat in Aberdeen, Glasgow or wherever. That is replicated so that, in future, rather than two forensic scientists doing something, one of them could get on with some analysis. They would be able to do the work that they are paid to do rather than simply having to sign a chitty to say, “I was there too.”
I appreciate that. I am beginning to wonder what was on that CD-ROM, but we will park that subject.
We are back, refreshed and energised, and we move to the second set of questions, on the sheriff and jury proposals in part 3 of the bill. The cabinet secretary and his officials are still with us. I seek questions from members, although I do not see the flurry of hands that we had in the previous session—I do not know why.
On the proposal to increase the majority that is required for a conviction in jury cases, is there not a problem with considering that as a safeguard?
I do not think so.
No, I am not—my apologies.
That issue is related to corroboration, and that moment has passed.
My apologies.
That is okay. John Finnie will go next.
Cabinet secretary, the bill contains some wide-ranging proposals to improve the business management of the court system. In the past, the introduction of intermediate diets was intended to serve a similar purpose. Why would such a change work this time if it has not worked previously?
It has worked in the High Court. We are discussing sheriff and jury cases, and the proposals are predicated not so much on bringing back the intermediate diets that were introduced in the 20th century as on Lord Bonomy’s report at the start of the noughties, on which the changes to the High Court were based. The change has worked remarkably well there and, given the nature of the High Court, it should work reasonably well in sheriff and jury cases. It is different from what has taken place in summary cases, and the changes in the High Court are the main comparator.
I acknowledge that my experience in relation to such matters is from a previous century.
As is mine.
Yes. With regard to the secure email system and the question of ownership that was discussed, will that provide challenges given the additional number of sheriff and jury cases in comparison with the number of High Court cases?
We face challenges with the IT system at present, so we know that there will be challenges, but we have to make those changes anyway, and I am confident that Crown prosecutors and everyone else will be able to resolve the issues. That will take time, but we already know that the IT systems require to be improved across the justice domain. New systems bring challenges, but we are changing the system to get it right.
We heard in our second evidence session on the bill from representatives of the Faculty of Advocates and the Crown Office. There was discussion about whether, under section 46, the written record of the state of preparation should be a joint statement, or whether the prosecution and defence could both sign and prepare their own statements, in which case the bill would require to be amended. Do you have any comments on that?
We are aware of the concerns about who will do what, so we are happy to review the issue and see how we can resolve it.
Secondly, do you have any comments on the resource implications of those proposals?
We have set out those details in the financial memorandum. There will be increased costs through legal aid that we will have to address, but there will also be savings in the systems as a result—it is hoped—of having fewer citations not just for witnesses and jurors but for specialist witnesses. We know that there are issues to be addressed, but we have quantified the costs and worked with the relevant agencies, and we believe that we can manage them.
When you say that you will go away and look at the issue of the written statement about the state of play in a trial, I take it that you are sympathetic to the submission of separate records by the prosecution and the defence. I can recall there being difficulties with a civil minute of agreement, where one party got the blame when it was the other party that was dragging their feet.
I am happy to try to ensure that we get that right. Perhaps Kathleen McInulty can comment on that.
Yes. The issue needs to be considered and given further thought because if there are separate schedules it is likely to take sheriffs longer to assimilate the information. Indeed, because of the volume of cases, it is likely to have a more significant impact on the sheriff court rather than the High Court.
But you take my point that if the Crown or the defence were dragging its feet you would at least know that if each side had to have the schedule in within the appropriate time.
Yes.
I will press the point no further but will simply say that such an approach would be fairer to both parties.
On section 67 and compulsory business meetings, the Government has decided that such meetings could be held by electronic means and—contrary to the Bowen review, which recommended that they be held before indictment—that they should be held after indictment but before the first trial. Why was that decision taken and will the timing make the business management meeting any less effective?
The defence and prosecution both preferred the meeting to be held post service of the indictment because it would give them the opportunity to focus on the matter. I understand that when Sheriff Principal Bowen gave evidence to the committee he indicated that he was happy and content with such an approach. Everyone is happy for the meeting to be held at that point. I can certainly see the logic in that; when the indictment is served, it focuses minds on the charge that is being faced while, prior to that, some edging around goes on. We have simply gone with what all those involved seem to have wanted.
What has the Scottish Government done to ensure that resource pressures do not hamper the reform’s effective implementation?
We seek to fund all the agencies and parties involved from the Scottish Legal Aid Board through to the Crown Office and Procurator Fiscal Service and the Scottish Court Service and each is aware of the challenges. We have taken account of all this; in some areas, there will be savings while, in others, there will be expenditure but we have prepared for all that and believe that we are capable of dealing with it.
Are there any lessons to be learned from the High Court reforms, which introduced something very similar that has worked well?
The lesson to be learned is that the sheriff and jury procedure is much more akin to the procedure in the High Court. We know that the volume of cases in the sheriff and jury system is greater but you are quite correct that there is good practice in the High Court, including the earlier resolution of cases, and that the reforms have worked well. Sheriff Principal Bowen looked at that and we are seeking to expand it. The challenge is that there are more cases in the sheriff and jury system but the principles, such as taking an early focus, minimising what has to be discussed and debated and ensuring that we inconvenience people as little as possible if they do not have to be cited or called, are the same.
Thank you.
I am reasonably content with most of the provisions in this part of the bill but I want to probe the approach taken in section 65, which changes the pre-trial time limits, and the Scottish Government’s analysis of the responses to the Bowen report. For example, some people felt that there was no strong justification for change and I wonder whether you can give us any information on the proportion of sheriff and jury custody cases in which the court agreed to extend the current 110-day limit.
We do not have that information because it is not recorded. However, we know how things are operating in the High Court following Lord Bonomy’s review and that Lord Bonomy himself said that
The limit can be extended at the moment but we do not know how many cases have required such an extension.
No.
Those figures are available for High Court cases but, as I understand it, they are not recorded in the management information systems for sheriff and jury cases. Instead, that information is recorded in the written minute of the court proceedings.
Do we have the figures for High Court cases?
According to the Scottish Court Service’s 2012-13 annual report, it was normal for there to be at least one extension of the 140-day rule in cases.
The 110-day rule.
The 110-day rule.
I am sorry—it was 140 days in the High Court.
Of course.
Of course. [Laughter.] It is like a duet.
Will you consider monitoring the extension of the limit in sheriff court cases to get some idea whether the 140 days is appropriate?
We are happy to do so, but the fact is that High Court cases are by their very nature likely to be more complicated than sheriff and jury cases. However, as we stated in response to Sheriff Principal Bowen, we intend to monitor the implementation of the proposals. When the limit was 110 days, any extension was granted reluctantly and, with the change to 140 days, the situation will have to be monitored to ensure that any extension is granted only with good cause. There are checks and balances and there is, of course, the opportunity to seek bail in some instances.
I am not going to look at the rest of the committee but I do not think that anyone else has put up their hand to ask a question. I therefore thank the cabinet secretary and his officials very much for their attendance.