Justice Committee

Meeting date: Tuesday, November 26, 2013

Official Report 632KB pdf

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Criminal Justice (Scotland) Bill: Stage 1

Good morning. I welcome everyone to the Justice Committee’s 34th meeting in 2013. Please switch off mobile phones and other electronic devices completely, as they interfere with the broadcasting system, even when they are switched to silent.

No apologies have been received.

Under agenda item 1, we will continue to take evidence on the Criminal Justice (Scotland) Bill. This is our sixth day of evidence at stage 1. We will hear from our panel of witnesses on corroboration and related items.

I welcome to the meeting Robin White, who is vice-chair of the Scottish Justices Association; Raymond McMenamin, who is a solicitor advocate and member of the criminal law committee of the Law Society of Scotland; James Wolffe QC, who is vice-dean of the Faculty of Advocates; and Mark Harrower, who is president of the Edinburgh Bar Association. Good morning and thank you for your written submissions.

We will go straight to questions from members.

Last week, we heard from the Lord Advocate that he is very supportive of the abolition of corroboration on the basis that, post Cadder, it is now very difficult to get corroboration, particularly in rape cases—even corroboration that intercourse had taken place, whether it was forced or not. What is your response to the concern that Cadder has changed the landscape and that we now need to think about removing corroboration in order to protect rape victims?

Good morning. Thank you for allowing me to give evidence.

The landscape has changed in that, now that suspects have the right to legal advice before formal police questioning, they are more likely to exercise their right to silence. I understand the concern that a rebalancing of the evidential layout as a result of Cadder is needed, but my concern is that the removal of corroboration is not really the right place to look. I think that we are starting in the wrong place.

It is true that, if fewer people confess, there will be corroboration in fewer cases from that source, but that does not mean that there will not be corroboration from other sources. Cadder is a development in that line but, as we have heard, methods of sourcing DNA evidence are always improving, and we are able to get evidence from other sources in many more cases that we possibly could not have got in days gone by.

Do we need to remove corroboration because there will be fewer instances in which penetration is corroborated? That would be a dangerous way to go. The rates of conviction by juries in such cases are notoriously among the lowest rates of conviction in jury trials that go ahead. It is too simple to say that juries take that approach because there is not enough supportive evidence. I think that juries are hesitant to convict in all serious cases, and there are many reasons why they acquit in rape and attempted rape cases. We need to look at the whole picture.

The removal of corroboration across the board would certainly be a massive step simply to get at crimes that are committed in private, as it is recognised by Lord Carloway as one of the pillars of our system at the moment. We need to be a bit more imaginative if we want to assist the Crown in finding ways to support complainers’ evidence rather than removing corroboration across the board.

I, too, am grateful to be giving evidence on the proposal, which, in respect of its systemic impact on the criminal justice system as a whole, is perhaps the most significant that the committee will have had to consider.

Like Mark Harrower, I would respond to the question in a number of ways. The first point is the one that he made. In circumstances in which one might be less likely to get an admission at police interview, one answer is to look harder for other sorts of evidence. In many cases of the sort that we are talking about, DNA evidence is a realistic option.

The second point is that the proposal to abolish corroboration will affect every case across the whole criminal justice system. As I suspect that we all appreciate, the rule reflects, at root, the practical common sense that if there is evidence from more than one source there can be a degree of confidence that the case is well made. At root, there is a serious policy question to be asked. Is that rule—as a safeguard against miscarriages of justice, which is fundamental to the operation of the justice system—a good rule, which we should hold on to, or is the particular issue that has been identified in relation to the cases that we have been talking about of such significance that the rule needs to be changed?

If one is going to change the rule, there are a number of things to look at. Are there alternative approaches, short of abolishing corroboration across the board? Should one be looking at modifications of the way in which corroboration operates in particular types of case? In any event, given the systemic and fundamental nature of corroboration at every stage of our system, one must look very hard at what one is putting in its place, and one must ask whether one is getting the right balance between safeguards against miscarriages of justice on the one hand, and a reasonable system for prosecuting crime on the other.

Fundamentally, that is why the faculty supports the recommendation that Lord Gill made to the Justice Committee last week—that is, that the issue ought to be examined looking at the whole criminal justice system in the round. Indeed, the faculty’s position from the outset has been that the issue is of such fundamental importance to our criminal justice system that, if we are going to look at it, we must give it to a body such as a royal commission or the Scottish Law Commission, with the widest possible remit to consider the implications right across the system.

Thank you for the invitation to give evidence on behalf of the Law Society of Scotland, convener.

It is important to remember that Cadder was nothing to do with corroboration. Cadder was to do with the rights of individuals in police stations and what should apply in that particular set of circumstances. The Carloway review opened up the issue of corroboration and how it might fit into the bigger picture. The Law Society of Scotland welcomes the wider debate; the society thinks that there should be a debate about the whole thing, which should not simply focus on how one can get people convicted following Cadder and how one might apply evidential rules in order to get convictions. I would go so far as to say that if the motivation for the bill is to have people convicted in certain classes of case, that is wrong and indeed quite shameful.

There must be a degree of deliberation about where we are starting from in all this and where we wish to go, because if the bill passes into law in its present form we will be in danger of having a system of justice in which the safeguards against wrongful conviction are so minimal as to be capable of being described as basic—and, indeed, compared with other jurisdictions, primitive. Commentators and lawyers from other jurisdictions will look at Scotland and wonder why we are going backwards in this area. They will wonder whether we have learned nothing at all from the Cadder experience.

The Law Society takes the view that we have a great opportunity to widen the debate to look at corroboration and other safeguards that might apply, and at how those might fit into our system. To that end, the Law Society has invited a number of parties, for and against the retention of corroboration, to a debate in January next year. For the moment, however, we have to consider the initial starting point, which is Cadder and the rights of individuals, not the issue of how we can convict people.

I have four points to make that, to a large extent, underline what has been said already.

The Lord Advocate’s observations are powerful, but they seek to extrapolate from a limited range of examples. Rape is an appalling crime, but it is not clear to me that one should, from the difficulties of convicting in such cases, extrapolate to every criminal case that there is. It is easy to forget that, according to much of the literature on the issue, more than 90 per cent of all criminal cases are summary cases. There is a heavy emphasis on juries in much of the debate, but they are involved in a narrow range of cases. They are important—quantity is not the only dimension—but they are involved in only a tiny proportion of all cases, and, of course, sexual assaults and rapes are a tiny proportion of jury cases. I am not suggesting that those cases are not important; I am pointing out that the effects of abolishing corroboration would be felt enormously more widely than that.

The second point, which has been touched on and has been referred to in written evidence, is that there has never been an easier time to get corroboration, because of the scientific and medical advances of the past few decades. In some senses, therefore, it is a strange time to be talking about abolishing the requirement.

The third point, which is slightly more fundamental, concerns the balance metaphor that is explicit or implicit in much of the debate. I have trouble with the balance metaphor because it assumes that there are only two interests to be weighed—a set of scales or a chemical balance is obviously the idea behind it—whereas there are frequently more than two. It assumes that there is some sort of unit of account that allows you to say, “I have put more on that side of the balance, so I must put the same amount on the other side.” However, there is no unit of account that can be applied. It assumes that you can tell when the balance is in balance—you may recall that a chemical balance has a little indicator that shows when that is the case, but there is no such indicator in this debate. The use of that metaphor leads to an infinite debate whereby one change is argued to require another change somewhere else, which is argued to require another change, and so on. That infinite continuation of debate is, perhaps, unfortunate.

My fourth point, again, reiterates what others have said. The essential issue is that corroboration, like cross-examination, is a means of testing the quality of evidence. Much of the debate has been about corroboration as quantity. There is clearly a quantitative aspect, but one should not forget that there is also a qualitative aspect: it improves the case if there is corroboration. Therefore—as others have said; this is hardly novel—there is a need to consider everything in the round. I notice that the not proven verdict has been sent off to the Law Commission. That is an interesting and quite important issue but I suggest that it is of enormously less importance than the corroboration question, so why should corroboration also not be sent off to the Law Commission or some other body to be considered, as well as the alternative safeguards that would be put in place if it were to be abolished?

The Lord Advocate has also argued that the proposed prosecutorial test, which, I presume, is similar to the test that exists in England, would act as a safeguard against prosecutions that were based on flimsy evidence, as it is based on a reasonable prospect of conviction.

I was therefore quite interested in Mr McMenamin’s comment about other jurisdictions, because we have been told by supporters of the proposal that very few jurisdictions across the world use corroboration and that, because we have it, we are somehow behind the times.

10:15

A lot of people are under the apprehension that corroboration does not exist in other jurisdictions when, in fact, it does. The English have it; the Police and Criminal Evidence Act 1984 contains provision for requiring corroboration of confessions made to the police by persons with mental handicaps. If our bill passes into legislation, we will not have the same safeguard that is built into the English system, which will mean that vulnerable people will be better off in England than in Scotland by virtue of corroboration. The Dutch system, too, uses corroboration for confession evidence. A lot of people are therefore wrong to think that we are the only country that applies corroboration.

It is true that our application of corroboration is more widespread and that we rely on it more than any other country, but other countries also apply it. I have cited the English and Dutch jurisdictions but I know that the United States uses corroboration a lot and, indeed, research will show that other jurisdictions think that corroboration must be considered in many cases. In England, the system contains certain safeguards whereby judges in certain cases can caution juries regarding corroboration and prosecutions based on single-source evidence.

I am not saying that that is right or wrong but it is different from our system, which we have developed in a different way. We are now about to see that aspect disappear and, unlike in many other countries, corroboration will simply not feature. I agree with my colleagues that it is the main safeguard that will go if the bill goes through; as Mark Harrower has pointed out, the minimum that could be done in solemn cases is to increase the votes on a jury by two. Some will say that we still have the not proven verdict but no research has been carried out on its impact as a safeguard; all we know is that it is a verdict of acquittal. We cannot look into the minds of juries—indeed, we are prevented from doing so.

My point is the same as that made by the Lord Justice General. This has not been thought through, and it needs to be thought through a lot more thoroughly than it has been. We need to do more research into other jurisdictions, into what systems might apply here in Scotland and into whether we entirely abandon corroboration or—as is a distinct possibility—retain it in part for certain cases. That approach might well work but it has not been looked at. If we simply throw corroboration out altogether, we will be in danger of throwing the baby out with the bathwater.

As you have rightly pointed out, how juries think about cases and come to their decisions is an unknown quantity but Mr Harrower said that he thought that there were reasons why juries do not convict. What are those reasons? What are your thoughts based on?

Juries find it very difficult to assess cases involving crimes, particularly of a sexual nature, that are committed in private. They go into court not looking to acquit people but wanting to do their job properly, and I think that the jury system is probably the fairest method of trying someone that can be used.

As a defence lawyer who over the years has represented a number of people accused of rape, I know that such complaints come out of emotionally charged situations in which alcohol is often present and in which the people involved very often know each other and have history between them. More than any other type of case, juries find it very difficult to assess cases of rape and other such allegations because they see a witness—and indeed the accused, if they give evidence—for only a short time in the witness box. Moreover, when witnesses give evidence in court, they find it an unnatural environment; for example, they might be giving evidence via a television screen as a result of special measures. A person—this applies both to the accused and to the complainer—may not perform well on the day because of the pressures of being in court.

Although some contributors of evidence on the bill have referred to certain preconceptions in Scotland that need to be tackled—regarding how women dress, for example, or other things that have in the past been identified as problems—modern juries nowadays are hesitant to convict in rape cases because, even with corroboration, the case very often boils down to one person’s word against another’s. Even if the case gets to court with corroboration of penetration, the question comes down to whether there was consent or not, and that is still a very difficult assessment for juries to make.

That assessment will become even more difficult if we put cases into court where there is no corroboration. At present, as the Lord Advocate said, there needs to be some support for the three essentials in order to prove rape: penetration, lack of consent, and mens rea on the part of the accused. Currently, the cases that go to court have that element of additional evidence. What is proposed is that we put cases into court where that additional element is absent. How can we expect juries to be more sure when that evidence is not there?

With regard to the qualitative test that Elaine Murray mentioned, we need only look over the border to a very recent case that involved a very high-profile prosecution for rape based solely on the evidence of a complainer. That resulted in a unanimous acquittal of the person who was accused, but we must consider what effect the case has had on the system. Whether that was a miscarriage of justice depends on one’s definition of the term; I know that Lord Carloway says that the cases of people who are not brought to court qualify for the same definition.

When someone is acquitted in a high-profile case such as the one in England, it is equally damaging for the criminal justice system if we are left wondering why the case ever got to court in the first place. In the newspaper reports about the Le Vell case, commentators were asking how on earth that case got to court in the first place. The case would never have made it to court in Scotland, because of corroboration. The result of the Le Vell case is that the accused’s life is ruined, and there is a lot of rebuilding to be done. In addition, we must consider the effect on the complainer in future, as she has been disbelieved and will have to deal with that.

We need to make difficult decisions in our justice system about which cases we put into court. It is not simply a question of just putting witnesses in and letting them get on with it. The rules that we have established over a very long time have—as Lord Gill said—served us extremely well. We have very few miscarriages of justice in this country because we have set the bar quite high and said that we will not put cases into court unless we can be sure that, if a conviction is returned, we have got the right person.

I will take Margaret Mitchell first, followed by John Finnie, Roderick Campbell, Sandra White, Alison McInnes and John Pentland. All the questions are on corroboration, so there is no such thing as a supplementary. I see that Christian Allard wants to come in too.

We have heard quite a lot of evidence this morning, and I want to be clear about three things. First, do panel members agree that other jurisdictions’ not having corroboration is not a reason to abolish corroboration in Scotland?

Secondly, the Carloway report examined two options: to abolish and to retain corroboration. The third option is to retain corroboration and to improve the law of evidence in order to make corroboration easier. That option seems to be viable, but it was not considered. Would the panel favour consideration of that option? I am thinking in particular of the Law Society of Scotland’s upcoming debate, which will address the options of retention and abolition but, perhaps, not the third option, which might usefully be added.

Thirdly, Lord Gill made another suggestion which—for the avoidance of doubt—two of the panellists have already indicated would be good. The committee is very worried about pressure of work and the fact that we are considering the very lengthy Criminal Justice (Scotland) Bill, which has many other provisions with which abolition of corroboration is slotted in. Given the importance of corroboration to the criminal justice system and Scots law, and the weight of opinion against abolition, would the panel favour taking the provisions out of the bill and giving them to a royal commission, for example, so that the issue could be properly examined?

On that last point, yes—the Law Society of Scotland would favour the provisions on corroboration coming out of the bill and going before a royal commission. We think that the matter is so important that we need that wider debate. We also need wider research, as I have already mentioned. I agree entirely with the suggestion.

What about the options?

At present, it would be premature, given the need for wider research and discussion, to say that one thing should happen over another. However, at the moment, corroboration should not go; we have nothing to put in its place that would provide the safeguard that corroboration currently provides.

Could I ask you to look at it another way—to look at retaining corroboration but improving the law of evidence to make corroboration easier? As Mr White already said, with new technology and with more DNA evidence, we should be able to use the law of evidence to try to make corroboration easier.

I think that we already do that, because corroboration has in various respects been whittled down—for want of a better expression—to the bare minimum. For example, in cases where there is scientific evidence, there is now statutory provision—there has been for some time—for only one scientist to be called to give evidence for the Crown, and notice is given by the Crown, in the service of an indictment, that that is to happen. Only one person is needed to speak to scientific evidence.

Lord Carloway, whom I have heard speak on corroboration on a number of occasions, has stated that in his view, corroboration has been reduced in various areas to almost nothing, which is one of the reasons why he advances his argument for its abolition. It is correct that it has been reduced; in our evidential rules, it does not take much at all to corroborate a confession. For example, special knowledge confessions basically mean that if somebody makes in a confession a reference that suggests that they may have been the perpetrator—that they have knowledge of how a crime was committed—that is enough. We already apply a very much-weakened rule regarding corroboration in many respects.

I think that we are looking at this in different ways. I am looking to strengthen corroboration and to see how it could be improved and more easily established, and not just as it relates to DNA and new technology but in terms of what happens in court at the moment—for example, the Moorov doctrine and the timescales that are applied in practice, which could be relaxed a little to improve things. Those are just two propositions that we are bringing to the panel today, which I think rather proves the point that there is an argument for a third way, which is at least to consider retention while improving the law. I do not think that either of us—

I caution you about using the word “we”. I have no problem with what you are saying, but you need to speak for just yourself—as does everyone else.

Yes—okay. It is something to consider.

On the third point, with regard to what other jurisdictions do, Lord Gill made the point in his opening statement at last week’s meeting that what other jurisdictions do is not a reason in itself to retain or abolish corroboration.

We have had Mr McMenamin’s answer; do other witnesses concur? Mr Wolffe?

Thank you, madam convener. I agree with all three propositions that have been put to me. On that last point on comparison with other jurisdictions, it is perhaps a mistake to look narrowly at the question of corroboration and what other systems have in relation to the rule of corroboration. You have to look at a system in the round. A much better informed authority than me, the regius professor of law from the University of Glasgow—along with his colleagues—has submitted written evidence to the committee that states that if

“the Criminal Justice (Scotland) Bill as it now stands”

were to be enacted, it would

“reduce the level of protection against wrongful conviction offered in Scotland below that offered in any other comparable jurisdiction.”

That statement is by three distinguished academics from the University of Glasgow; I suggest that it must be taken seriously.

The other point that perhaps is worth making in relation to the contrast between Scotland and other jurisdictions is that, over the years, a variety of options that form part of the suite of safeguards in other jurisdictions have been looked at in Scotland, but have been rejected on the basis that we have, among other reasons, the protection of corroboration. I can give the examples of dock identification and the picking out in court of the accused by a witness. Many systems regard that as an unfair procedure, but it is regarded as being acceptable in our law, within limits. One of the reasons why it has been found to be acceptable in our system is that we have corroboration.

10:30

If we are to abolish corroboration across the board, we have to look again at a variety of the rules that we apply routinely in our courts, and to decide whether they should remain an acceptable part of a modern criminal justice system that does not have corroboration. I suggest that it is therefore important to look at corroboration not in isolation, and I have given a number of reasons why. The Faculty of Advocates does not suggest that there is no issue to be examined. We welcome the debate on such a serious and important issue. However, if corroboration is to be examined, we should look in the round at all the structures and rules of our criminal justice system.

If the system were unique, that would look like a very good reason for abolition: “They’re all out of step except our Johnny”. However, the common objection is not that that is not an argument but that it is a burden of proof issue. That is to say that it is an argument, but no more than an argument. If you like, it is not a knock-down argument, hence the suggestions that the matter needs to be looked at more fully.

The proposal to abolish corroboration should be taken out of the bill. I do not think that I have spoken to a single solicitor in my jurisdiction who supports abolition. You might think that my profession would be the one to benefit most from more cases going to court, but we do not want it.

Every solicitor who has been doing the job for a long time, running trials week in and week out, will be able to talk about a handful of cases—I hope only a handful—in which he or she genuinely believes there have been miscarriages of justice. Most such miscarriages of justice are below the radar because they happen at summary level; as we have heard, the majority of prosecutions in Scotland are at summary level. In 2011-12, 96 per cent of people who were convicted were convicted in the sheriff summary courts and justice of the peace courts, and the so-called safeguard of the majority raising jury will not even touch that because juries never go near the sheriff summary courts or JP courts. The majority of convictions in this country have nothing to do with jury voting. That is one of our main concerns. Nothing in the bill is proposed as an additional safeguard on summary business.

Apart from that, most solicitors will be able to tell you that they have dealt with a number of cases in which people were convicted, and most decisions on guilt were based on questions of credibility and reliability, which means who the judge or jury believed and who they rejected. When a judge or jury comes to a decision that goes against a solicitor’s client, there is not much that the solicitor can do about it: that is the end of the line. You only get one shot at a trial in Scotland and you only really get one appeal. Appeals against conviction generally have to be based on errors in law. You cannot ask the appeal court to revisit all the evidence and come to a different decision about who the sheriff or jury believed.

We have a one-stop shop, which is why we in Scotland have been so determined to ensure that we get it right first time around. That is why the formula at which we have arrived has produced very few miscarriages of justice. During the past few decades in England, a number of high-profile miscarriages of justice have been overturned in the appeal court. Many of those convictions were based on single sources of evidence—primarily confessions—whereas we in Scotland always look for an independent check. We have avoided what has happened in England by virtue of the formula at which we have arrived over a long period. To change that suddenly and to take one part of that equation away without looking at what we need to replace it with would be a big mistake.

As far as evolution of the law of evidence is concerned, it would be possible to look more at what we could do in particular cases to assist the Crown to get cases to court. However, we need to look at that very carefully because the law of corroboration would need to be watered down in respect of crimes that were committed in private if we are to get more of the cases that the Lord Advocate talked about into court. Is that what we really want to do, though? Do we want to create a special class of case in order to get cases involving one against one into court so that juries can make a decision?

We can look at the options. The law of corroboration has managed to evolve over the years; in recent times we have managed to bring home two convictions for murder in cases in which no body was recovered. That happened in a system in which we have all the challenges that corroboration puts in front of the Crown. I think that we can say that our justice system actually serves this country very well in respect of such difficult cases.

I agree with everyone else that we cannot just rush to judgment on this matter. We need to look at the whole system because all the elements are interdependent. I have heard sheriffs say many times that they have found proof beyond reasonable doubt in corroboration. Sheriffs, of course, will give reasons for their decisions in a conviction case, but juries cannot do that. Perhaps we need to look more closely, too, at how juries arrive at their decisions before we can safely say that a jury majority of 10 is a safe margin.

I have raised previously the issue of how juries arrive at decisions. I put it to you that you would say what you said about corroboration because you are a defence lawyer, so if we were to get rid of corroboration, fewer of your clients would get off. How do you answer that?

Many solicitors start off on my side of the fence as defence lawyers, but quickly become prosecutors or go to other parts of the system. We all have an interest in the system working properly. As I said earlier, we can all think of cases—we do not really forget them—in which we know deep down that there have been miscarriages of justice.

I can think of a case from a few years ago of a rape conviction that was returned against a man in his early 20s who had no previous convictions. After a night’s drinking he met a young woman in the town and they got together; there was evidence on video of their being together. Later on, intercourse happened in a public place and according to the complainer it was non-consensual, but according to him it was consensual. Without going into all the details of the case, I remain convinced to this day that that young man was innocent and nobody will ever convince me otherwise. He was very well represented by someone who was a defence solicitor, and is now one of the top prosecutors in Scotland, who will not be convinced otherwise, either. Because it was a decision that was based purely on credibility and reliability, there was nothing I could do. I had to sit and tell him and his mother that because our law is that all questions of credibility and reliability are exclusively for the jury or the judge, his case was at the end of the line.

I do not want to see an increase in cases like that, which is the reason why all my colleagues and I are opposed to the abolition of corroboration. We believe, as does Lord Gill, that abolition will mean an increase in miscarriages of justice. It stands to reason that if we lower the standards that are required, we will convict more innocent people.

As professional lawyers, we are fundamentally interested in the proper administration of justice both in securing convictions against the guilty and in acquittal of those who are not guilty. In looking into the matter, the Faculty of Advocates convened a committee that included advocates with considerable prosecution experience as senior advocate deputes, as well as those with experience from the defence side. It is important that the committee understands that it was that body that put together the response from the Faculty of Advocates.

The faculty’s fundamental concern with the bill is that if the provision in relation to corroboration is enacted with the ancillary provision that would increase the jury majority from eight to 10, we would be left with a system that fundamentally runs an unacceptable risk of an unfair trial in Scotland.

I thought that it was important to get that on the record because one of the issues that will be raised is that you are speaking from the defence side alone. It gives an opportunity for that to be challenged elsewhere.

Good morning, panel. I have a question about the phrase “access to justice”, which keeps cropping up in evidence. The argument that is being put is that the requirement for corroboration is denying people access to justice. I would appreciate your comments on that, along with issues around sufficiency of evidence and what the rationale for prosecution is in relation to the public interest.

Prosecution should always be in the public interest. That must be the starting point.

There is an issue with our system of corroboration in that when certain persons make complaints and there is no corroboration or back-up evidence, they are not in a position to give evidence. A prosecutor will decide that the case cannot go to court because of a lack of corroboration. That may well have to be looked at.

In considering that, we must have a system that is robust and fair to all—that is, to witnesses and accused persons. It is a difficult thing to reconcile, but at present the Law Society—whose members, I hasten to mention, consist of defence lawyers, prosecutors and those who represent the interests of people who have been victims of crime—feels that there is now a great opportunity to look at all that and to come up with a system that will serve us well in the future. However, it is a difficult issue and I accept totally that in our corroborative system, there are some people who will make complaints who will not have the chance to give evidence.

Perhaps one needs to look at it this way. One ought to be concerned about access to effective justice. We do not serve anyone’s interests by bringing a prosecution that does not have a reasonable prospect of success. It is not in the interests of a complainer to be put through a trial in which the jury will only acquit. To put an accused person through a trial when there is not a reasonable prospect of conviction is not only a waste of public resource but deeply unfair to that accused person.

If one is going to talk about prosecution in the context of access to justice, it is important that we are talking about access to effective justice and not simply the airing of an allegation in the abstract.

Given the remarks that “Defence lawyers would say that, wouldn’t they?”, I have the advantage of being disinterested in this matter, being neither a prosecution nor a defence lawyer—

That was a correct use of “disinterested”. That is one of my bugbears.

I am glad that it will appear in the Official Report.

Yes. I love it.

I am pleased to have given you pleasure.

I am not saying that you did not know what you were saying, but so many people use it in the wrong way. Miss Campbell taught me how to use it.

We must keep up standards.

As a minor member of the judiciary, I speak with a degree of disinterestedness. On access to justice, I take it that that was, in effect, a reference to victims. I am concerned by some aspects of the view that is being taken of victims in the criminal justice system. Victims and witnesses tend to be collapsed into one group. There are clearly very important issues about witnesses; they are not infrequently victims. In the past, the criminal justice system has been very remiss in treating them simply as prosecution fodder—or defence fodder, as the case might be.

We have to distinguish the interests of victims as victims, from the interests of witnesses who may be victims. The significance of that is that there is a danger of losing touch with—I think it is uncontroversial to say it—the underlying purpose of the entire criminal justice system, in so far as it is a system, or with criminal law and criminal procedure. Criminal law is that part of the law that identifies behaviours that are to be punished—I will use that word—and for which sanctions are to be applied. Criminal procedure is the means by which rules for identifying those people are laid down. The underlying purpose of the criminal law is to identify those who have done a category of wrong that we will punish.

10:45

Another part of the law is entirely concerned with compensation of victims of one sort or another—the law of delict. There is masses wrong with the law of delict, just as there is masses wrong with the criminal law, but we have to be careful not to trespass out of the criminal justice system into the delictual system and assume that the function of the criminal law is to provide a remedy for victims. If it does that, that is all well and good, but I hope that it is uncontroversial to say that that is not its fundamental function. If we are going to try to change the criminal justice system’s fundamental function, we should know that we are trying to do that and not do it by a side wind.

I have a second point on sufficiency and public interest. The prosecutor’s test for prosecution has already been mentioned, and I think that we are coming back to it. I am certain that I am correct in saying that, in the Carloway report, there was no discussion of what that test might be if corroboration were to be removed. I see that the written evidence from the Crown Office mentions what it thinks the test should be, but I think that it is accurate to say that there has been little discussion of that. What the Crown Office writes might be sensible, but it is not something on which there has been general debate. If the nature of the decision to prosecute is to change, as it must, there will have to be considerable debate about what the test will be.

We have to remember that our system, like all systems of justice, is a human system that is never going to be perfect. We can never convict everyone who is guilty and we cannot protect everyone who is innocent every day of the week. All that we can try to do is achieve a balance whereby we properly and fairly process as many guilty people as possible while keeping miscarriages of justice to a minimum. I think that we have managed to achieve that.

The phrase “access to justice” implies opening up the courts to those who have complaints and who want to see the person whom they perceive has wronged them brought to justice and convicted and punished. We have to remember that not everybody who makes a complaint is telling the truth. Unfortunately, because it is a human system, although many people come to court to do their best and tell the truth, a number of people come to court to lie. It is difficult for a human system, especially if it deals with witnesses in a short space of time, to ascertain who is telling the truth and who is lying.

We ask juries to make those decisions, and we recognise that it is difficult to do. In Scotland, we have given them some assistance by saying, “Look for something else—an independent check.” That is true not just for juries but for sheriffs, and it has worked very well for us. By lowering the standard of proof, you will open the doors of the court to more complainers and increase the risk of convicting more people on lesser evidence, which will increase the risk of miscarriages of justice.

With regard to the crime of rape, the three elements that you mentioned—consent, mens rea and proof of penetration—were alluded to last week by the Lord Advocate, who said that, before Cadder, we had a situation where an accused may have previously admitted to consensual intercourse and one of the elements had then been proved. If one of the catalysts for the removal of the requirement of corroboration is to improve the conviction rate for heinous crimes including rape, do you think that there will be an alteration to the three elements, or are there other consequential effects of that? It would seem that, if you do not prove penetration, you are talking about another heinous crime, potentially.

As I said earlier, even with corroboration, juries find it difficult to decide who they think is telling the truth in such situations. I do not know how you are going to corroborate penetration other than by an admission from the accused or forensic evidence. It is just not going to happen unless you can find some compelling supporting evidence.

The supplementary Crown submission provides a number of examples that I think are powerful arguments but which do not amount to corroboration as we know it. Either you have corroboration or you do not and if you get rid of it, it will be possible to convict someone of rape who might never have met the person in question. I know that the Crown intends to apply a qualitative test and look for supporting evidence, but I have not heard it say, “We’ll definitely not prosecute if there is no supporting evidence.” We need look only at the Le Vell case down south, which, despite the lack of supporting evidence, was prosecuted all the way. We should seek to avoid such a situation in Scotland, however difficult such choices might be and however difficult it might be to tell someone you think might make a very good witness, “I’m sorry but this is the rule.” We need such rules to ensure that we maintain the balance that has been struck here.

Have you concluded, John?

No, convener. I have one final question on Mr Harrower’s point about the two recent murder convictions in cases where no body had been found, which showed that, with corroboration and sufficient investigation, a conviction could be obtained. That would often require a Crown Office direction to the police service and the availability of dedicated police resources. Do you think that, as presently configured, our system has sufficient resources for the Crown to ensure that that would happen in every case?

Although we are discussing fundamental principles with the committee, one cannot ignore the resource question. Indeed, the Faculty of Advocates has made a response to the bill’s financial memorandum. On its own analysis, the Crown predicts an increase of between 3.5 and 12.5 per cent in the number of solemn prosecutions if corroboration is abolished, which equates to 220 to 760 additional cases prosecuted on indictment each year, and a much greater number of additional summary prosecutions. We have sought in our written comments to address the various assumptions that the Crown has built into its approach to resources, but the bottom line is that, as a result of the measure, significant additional costs have been identified as being required at all stages of the criminal justice system, particularly in the Crown Office and the courts. Indeed, the estimate for the courts is £3.25 million in staff resources and about £900,000 in training.

A striking feature of the financial memorandum is its statement that the additional costs to the Crown and the courts system will be absorbed without any increase in funding. Of course, if this is the right thing to do, one will have to find ways of resourcing it, but with such a systemic change one needs to take a clear-eyed view of the practical consequences for the system. We must be concerned that, first of all, a system that one might already regard as stretched will become overstretched and, secondly, any investigation that does not have to be carried out might not be. I say that, of course, without suggesting any want of integrity on the part of the police or prosecutors.

We will move on. I call Roderick Campbell.

I refer to my entry in the register of members’ interests; I am a member of the Faculty of Advocates.

As it says in the submission from the Crown Office and Procurator Fiscal Service, the second part of the new test for prosecution, which requires a prosecutor to make an assessment about the public interest, is no change from the current situation. However, the first part—the evidential test—will be made up of three elements. As the Crown said, those will be:

“(i) a quantitative assessment—is there sufficient evidence of the essential facts that a crime took place and the accused was the perpetrator?

(ii) a qualitative assessment—is the available evidence admissible, credible and reliable?

(iii) on the basis of the evidence, is there a reasonable prospect of conviction in that it is more likely than not that the court would find the case proved beyond reasonable doubt?”

To what extent will the new test provide safeguards against potential miscarriages of justice when prosecutions go forward? How much of an improvement will it be?

It might not provide any safeguards. That is largely speculative. There are assessments that a professional prosecutor will have to make, based on his or her experience, but within that there are no real safeguards.

That is especially the case given the point that has just been made. There is a widespread perception in the legal profession that the Crown is struggling with its workload, which is a concern. That might not be something that the Lord Advocate will readily accept or admit to, but I am a practising defence lawyer and can confirm that there is such a view of the Crown. We are talking about beleaguered procurators fiscal marking cases—and Crown counsel perhaps less so. If the prosecution system is under stress, our chances of having prosecutors think about safeguards as they mark cases are diminishing all the time.

As I said, I do not for a moment doubt the integrity with which prosecutors will seek to apply the test. However, there is a constitutional point. In looking at the bill, the Parliament is looking at the statutory structures within which a trial will take place and the safeguards in that regard, but the Lord Advocate’s guidance to prosecutors is not to be enshrined in statute and has as yet been the subject of relatively little debate, as Mr White said.

Lord Advocates come and go and may change their guidance. I note that the Lord Advocate has acknowledged that for certain classes of individual, which are identified in paragraph 33 of the Crown Office’s supplementary submission,

“proceedings ... would not be taken up without strong supporting evidence.”

One understands why the Lord Advocate said that in the context of those particular cases. However, that is an example of how the guidance that will be provided will result in the test being applied in different ways to different classes of case, in ways that are, as yet—and in saying this I am not being critical of the Crown’s written evidence—unclear and unknown.

Legislators who are looking at the bill must ask, “Are we putting in place a system that adequately secures the conviction of the guilty and the acquittal of the innocent? Will the structure that we put in place provide adequate assurance in that regard?” Of course the prosecutor’s role is important, but it is not a legislative safeguard, and precisely how the test will be applied remains to be seen.

Does anyone else want to comment?

11:00

On the ground, in the courts, the bar is seeing prosecutors who are under increasing pressure. They have big workloads nowadays, and there seem to be categories of case that they are on instruction to proceed to trial with, come what may. That rather counts away from the tradition that we have always had in which prosecutors have had the discretion to discontinue cases if they did not believe that they were in the public interest.

In recent times, certain cases have been highlighted as being of particular concern to society, such as cases with racial or religious aggravations. I have spoken to prosecutors about that. A stalking case was highlighted in the Daily Record as recently as last week. According to the Daily Record, the Crown Office stated:

”pleas of not guilty in such circumstances should not be accepted without evidence being heard at trial.”

Stalking cases under section 39 therefore now seem to fall under the category of cases that have to go to trial.

As recently as this morning, I spoke to a prosecutor to ensure that what I am about to say is right. There is a certain category of cases in which a certain sensitivity is identified, and it is thought that almost all cases of that type should proceed to evidence. Certain cases are therefore prioritised for trial.

The proposed new test will require prosecutors to do a great deal of independent assessment of the evidence and to take on responsibility in those cases, as they will need to assess what supportive evidence there is, the quality of that supportive evidence, and whether it is enough to justify the case going to court. They are expected to make a decision on whether the case could reasonably proceed to a conviction on the basis of what will often be written statements.

A lot of people are prosecuted year on year. In 2011-12, 124,736 people were proceeded against in court and prosecuted. If corroboration did not apply to all of those cases, how would that assessment be made? We do not expect prosecutors to get in the complainers in every single case, so they will need to make the assessment based on written statements. In the smaller cases—the summary cases that I have mentioned, in which people can still get up to 18 months in jail if they are convicted—those written statements will very often be taken by police officers, who will sometimes not be very experienced. They can be taken late at night when those officers are under pressure—for example, in the middle of George Street when a big rammy is going on. How are prosecutors to make a proper assessment of whether the case has a reasonable prospect of conviction, based on statements alone, especially when prosecutors may be subject to the additional influence of having to be careful of cases with particular sensitivity? I worry about how that test will apply and how our prosecutors, who are so used to corroboration, will change their mindset to apply it properly.

You are being delicate but, given the stalking case example, are you implying that, because of the sensitivity, sexual assault, rape and domestic violence cases will be taken to court almost no matter what? Is that where you are going?

I think that we see categories of case going into court in which prosecutors are clearly under instruction to get on with it. For example, just a couple of weeks ago, I saw a domestic abuse case file sitting on a table in court with a big note from a senior prosecutor to the junior prosecutor that said that there was a reluctant complainer in the case, but proceed anyway.

It could be said that it is in the public interest to proceed with all domestic abuse cases, as that is quite rightly an area of concern, but I think that, if we apply that to every single case of a particular type, we will plug up the courts with cases that have to proceed to a conclusion. For example, I had a jury trial in the sitting in Edinburgh last week that was one of nine jury trials that were adjourned out of that sitting. I think that that was the third or fourth trial diet that that case of mine had got to.

As Mr Wolffe said, we have to be able to balance the resources in this country, which are not infinite, with prioritising cases that truly are the most important ones, and we need to guard against imposing blanket directions in cases of a particular type because we are worried about what the Daily Record might say.

I want to move on to another subject: the reasonable jury point, which was in the Scottish Government’s second consultation on safeguards and which is not proceeded with in the bill. What is the panel’s view on that point? Lord Carloway suggested that there were two reasons why the proposal would be inappropriate. One was that, if the judge got it wrong, it would be very late in the day for the prosecutor to try to appeal the decision, and it would be costly in terms of resources. The second was that, if one judge alone made the decision, it would be an opportunity for an idiosyncratic judge to decide, whereas if the decision is restricted to the appeal court with three judges, they are more likely to get it right.

Are there any thoughts on that and on the implications?

As I understand it, Mr Campbell is raising the question of whether the trial judge should have the right to withdraw a case from the jury on the basis that the evidence does not meet the appropriate standard, whatever it is.

First, we have a ground for appeal in our system that allows the appeal court to set aside a conviction on the basis that no reasonable jury would have convicted. Logically, that implies that we recognise that, on occasion, juries bring in verdicts that are unreasonable. It seems odd that we are depriving the one independent and impartial judge, who is highly trained and has seen the evidence, of the power to withdraw a case from the jury in those circumstances.

That ties in with the point about prosecutorial discretion. For example, a prosecution may be brought in good faith on the basis that it is thought that the evidence meets the test, but at trial, when the witnesses appear, the evidence does not meet the test. One would hope that, in those circumstances, the prosecutor would withdraw the case from the jury, but he or she might not. Are we to say that the judge may not say, “I do not take the view that the evidence meets the test that would have allowed the case to be prosecuted in the first place, and I am going to take it away from the jury”? It is odd that such a proposal has not been taken forward.

To meet immediately the objection that the provision would put power in the hands of a trial judge who may exercise it idiosyncratically, the Parliament has recently provided for a right of appeal where a trial judge upholds a no-case-to-answer submission. We have had experience of such appeals, and appeal courts are convened very swiftly—effectively overnight—so that the appeal court can review the trial judge’s decision to uphold the no-case-to-answer submission and remove the case from the jury by that means. The appeal court is convened swiftly so that, if the Crown appeal is upheld, the case can go straight back to the jury and the jury can decide it. The Parliament has already put in place the mechanism that can deal with the concern that Lord Carloway expressed. There is no reason why a similar Crown appeal could not be made available against a decision of the type that we are discussing.

I emphasise again the point about the propensity of trials to be summary. We are discussing further safeguards that are to be introduced, but the discussion has related entirely to jury trials, which—as we know—make up a tiny proportion of trials. It is difficult to imagine how that particular form of safeguard could be operated in summary trials, because the fact finder and the law decider are collapsed into one, so a summary sheriff or a justice of the peace would presumably have to advise himself on the matter.

On the question of the number of jurors in agreement—whether it should be 10 or 12; I will put it that way—the judges collectively seem to be happy enough with two thirds. However, the written evidence from the Faculty of Advocates suggests that, as that would still mean that potentially five people would take a different view, it would not be a safe way of preventing miscarriages of justice. Are there any further comments on that, or is there just a difference between the faculty and the judges?

If a third of a jury have reasonable doubts, does that not raise alarm bells about the conviction, even more so than in the current situation, in which we need only eight out of 15 jurors to convict?

I appreciate that senior judiciary have expressed the view that 10 out of 15 might be appropriate, but where has that come from? Again, no research has been carried out on the matter. For example, we have not looked in detail at other jurisdictions. If we are going to take the English and Welsh system as a template for a system that does not use corroboration in such a widespread fashion, we should remember that the juries in that system are, in the first instance, directed to return unanimous verdicts. Only on the judge’s direction can there be a 10 out of 12 majority verdict for a conviction, which is still a substantially higher standard than 10 out of 15.

Referring, again, to the academic studies that James Wolffe mentioned earlier, I note that the only other system that applies a single straightforward majority is the Russian one. I am not decrying that system in any way, but I understand that it is different; for a start, it relies not on a single verdict but on a kind of questionnaire that the jury has to fill in. Moreover, we know that in other jurisdictions juries sometimes sit with qualified lawyers or others who might advise them.

As I said very early on in this session, the Law Society of Scotland is deeply unhappy with the proposal to simply increase by two the number required for conviction without any background or research.

I agree that insufficient research has been carried out into how juries reach their verdicts. For example, in a jury trial that I conducted a couple of years ago of a nurse accused of assaulting an elderly patient, the nurse was—rightly, in my opinion—acquitted unanimously. However, when I went into the jury room after the case to help the bar officer to clear out all the productions—we had received very voluminous defence productions for the case—we found a piece of paper on the table that said, “10 not guilty, two not proven, one don’t know”. We would never have known how that jury reached its final verdict—if that was, of course, how it reached its verdict—but the fact is that jury deliberations have traditionally been shrouded in secrecy and we do not know how juries arrive at their decisions. All that we can hope is that they can understand in a very short space of time the complex directions that we give them. Sometimes they will come back with questions, to which the sheriff must give concise answers that, again, one hopes they will understand.

Occasionally you will get a verdict from a jury that you cannot understand but, by and large, juries do their best. Nevertheless, before we reach any view on whether 10 out of 12 is safe, it might be that we should take more of a look at how juries arrive at their verdicts in the first place.

As I understand it, the norm in common-law systems is unanimity or near unanimity. Moreover, the very difference of opinion on this one issue shows that we need to look at the system at large and all its elements so that we can secure a system that strikes the right balance between prosecuting crimes effectively, including those sexual crimes and crimes of domestic abuse that rightly raise public concern, and avoiding miscarriages of justice.

As time is pressing, we will move on.

Good morning. I am glad that Mr Wolffe has mentioned crimes of domestic violence, because last week we were given figures that showed that hundreds of domestic violence and rape crimes do not reach the courts. Obviously that was a matter for concern and we considered those figures alongside the issue of corroboration. I mention that simply because Mr Harrower has constantly referred to one miscarriage of justice down south; I would argue that those figures show that there are hundreds more miscarriages of justice. After all, justice is also for victims, which is indeed the issue that we are considering in the round in this bill.

The Lord Advocate has said that because of the corroboration requirement, he is unable to prosecute many crimes that have been committed, simply because they happened in private, the victims of which, of course, could be children and elderly people. Although the supporting evidence might be persuasive, the cases cannot be prosecuted because the corroboration rule has not been met. If corroboration remains, what do you as experts in the justice system suggest we put in place to ensure that victims in such cases receive justice?

11:15

First, there is understandable public concern about those categories of cases, which are rightly ones to be taken extremely seriously. Secondly, as I recall, the Lord Advocate gave statistics to the committee on the number of cases in those categories that were marked for no prosecution on the basis that there was insufficient evidence. Alison McInnes then asked a very pertinent question, which was how many of those would be prosecuted by applying the new test. It is important to recognise that, at least on the Lord Advocate’s view of his own test, not every case in which a complaint of sexual crime or domestic abuse is brought would be prosecuted. So, I think that one has to be slightly careful about the numbers that one looks at.

Thirdly, it is important to understand that abolishing corroboration is not a panacea for the difficulties that those cases raise. Mark Harrower has already identified some of the difficulties that I suspect any of us who have prosecuted serious sexual crime will recognise. Fourthly, those of us who have prosecuted those crimes recognise the value of corroborating evidence in supporting a complainer’s evidence and in persuading a jury to accept that evidence. Further, the corroborating evidence might be extremely important if the complainer is, for a variety of reasons, a difficult witness. It is therefore very important that we do not end up with a system in which there is a diminution in the efforts that are put into ensuring that all investigations are carried out and evidence obtained.

I do not suggest that there might not be room for examining the way in which corroboration works. If I understand it correctly, Lord Hope has suggested that one might look again at the role that distress plays in corroborating the different elements of a sexual crime. One might look at the corroboration of crimes by reference to facts and circumstances that are consistent with the complainer’s account. I do not wish to commit the faculty to a view on those points, but—

They are just observations.

I do not suggest that there is not a case for examining the way in which corroboration works in relation to sexual crimes, nor do I for a moment suggest that the issues in relation to those crimes do not create a case for examining whether corroboration is a doctrine that we should retain. Our fundamental concern is that if we are going to take away corroboration—ultimately, there is a serious policy question about whether to do that or not—then we must appreciate that the whole system will look completely different at every stage: the investigation stage, the prosecution stage, the trial stage and the appeal stage. One must look very hard at whether we will leave ourselves with, as the academics from Glasgow say, a system that fundamentally runs an unacceptable risk of unfair trials taking place in this country.

Thank you very much for that, Mr Wolffe. I agree with your point about the number of cases not coming to court because of a lack of corroboration. The Lord Advocate was very honest in saying that it is still high compared with the number in respect of some other crimes.

I want to pick up on some of Mr McMenamin’s comments about corroboration and no one having said what could be put in its place. We talked about corroboration being removed from other countries’ judicial systems. Mr McMenamin said that in England there is a provision for vulnerable people under the Mental Health Act 2007 and that there is similar provision in Holland. You also said, Mr McMenamin, that we rely on corroboration more but that it has been whittled down to almost nothing.

When we talk about corroboration as a separate issue, you say that it has been whittled down even more, but we use it more. Will you elaborate on that? Why do we need to keep corroboration as it stands if we rely on it too much and it has been whittled down to almost nothing?

Over the years, there have been a number of cases before the appeal court that have addressed corroboration in various areas of law. I will not go into the detail of those particular cases but suffice it to say that not everything has to be corroborated. The essentials of a criminal case—that a crime was committed and the identity of the person who committed the crime—have to be corroborated, and we have corroboration of those essential matters in such cases as a check and a system of safeguarding against miscarriages of justice.

It is correct that corroboration has diminished in that what is today being called the corroboration doctrine does not apply as strongly to certain evidential aspects as it does to others. However, if you are going to convict someone in a court of law, you need a system of checks and balances to avoid miscarriages of justice, and at the present time we have corroboration; we have nothing else of any substance. It is important to acknowledge that. Until we can come up with something to replace it—although we might never come up with something that will satisfy everyone—I suggest that corroboration has to stay.

You say that corroboration has been whittled down, but the Lord Advocate said in committee last Wednesday:

“Can I tell you what effect corroboration has? We have to corroborate the taking of buccal swabs from alleged offenders, so two police officers are required for that. We have to corroborate the taking of intimate swabs from a complainer in a rape case ... In the case of child pornography, we need to corroborate that children are under the age of 16, so that must be done by two witnesses. We have to corroborate forensic analysis, so two forensic scientists have to speak to the results of forensic examination”.

That does not sound to me as if the use of corroboration is being whittled down. Would you care to address that?

As I mentioned before, in certain areas, such as forensic science evidence, the Crown can serve notice that it is going to call only one forensic scientist although that might mean that it needs to call two forensic scientists during the course of the case, or have two forensic scientists prepare a report. When it comes to the service of indictment, the Crown is entitled to give notice that it intends to call only one witness.

I accept that that is true for the collection of evidence. Should any alleged inquiry into or review of corroboration look at the requirements of corroboration in the collection of evidence as well as in court proceedings?

Yes. There is scope for looking at the application of corroboration throughout the evidential procedure and perhaps in relation to the classes of cases in which it might apply. That is worthy of debate.

I am sorry to have interrupted but no one else had raised that point, and I know that the Lord Advocate said:

“That is where I am coming from.”—[Official Report, Justice Committee, 20 November 2013; c 3745-46.]

The point seemed to be a substantial one for him when he was giving evidence last week, and you have addressed it.

Sorry, Sandra.

No, that is fine. I was going to go a wee bit further but you have clarified some of my points, convener.

Mr McMenamin, you said that we do not have anything else apart from corroboration. I asked previously whether anyone had any ideas about what we could have as guidelines. There are the proposed jury changes—which some say are fine and some say are not—and the judge being able to take the decision away from the jury. Do you agree with those aspects of the bill? I am not just speaking to Mr McMenamin—

Mr McMenamin is giving you the eye.

Yes. These are ideas that have been proposed and there are areas in which I probably have a lot of confusion. We are looking at the Criminal Justice (Scotland) Bill in the round and, as Mr Wolffe has said, there is not just one part to it; it has lots of different parts. If we were to take the corroboration issue out of the bill and look at it separately, what knock-on effect would that have? What would be the effect if we passed the rest of the bill without including the abolition of corroboration?

The question is whether that would sabotage the bill. Could the bill proceed without that in it?

The position of the Law Society is that all matters that are subject to the bill should have been subject to consideration on a wider scale than has been the case. However, we are where we are. As has been suggested, if the provisions concerning corroboration and jury numbers are taken out of the bill, we would support that. We would also support further consideration being given to those aspects.

I think that the term that I was struggling for is “wrecking amendment”. Would the bill still function without those provisions?

It seems to me that the only provision that is linked—in practical terms, if not logically—with the abolition of corroboration is the increase in the majority that is required for the jury.

I should say, as the committee will appreciate, that the Faculty of Advocates broadly supports many parts of the bill. In particular, although we have made some observations about them, we support the provisions in part 1 relating to arrest and custody. We would certainly welcome the removal of the specific provision dealing with corroboration and the one associated provision that deals with jury majority, precisely so that those other parts of the bill can proceed swiftly to enactment.

I refer members to my entry in the register of members’ interests and the fact that I am a member of the council of Justice Scotland.

I want to return to a couple of points and then, if I have time, touch on one new thing.

Yes, I want us to touch on something new.

John Finnie talked about access to justice, and I want to pursue whether the panel shares my concern that the issue seems to be driven by a desire to give victims their day in court rather than by the need to secure prosecutions in the public interest, and my worry that that might be a dangerous road to go down.

Mr Harrower made detailed points about the prosecutorial guidance and the decisions to pursue certain cases regardless, in a way, because they were, perhaps, politically sensitive. Beyond the dangers of individual miscarriages of justice, might these profound changes be significant, constitutionally, in the hands of a less benign Government?

Less benign! You could be a minister, the way you are going. I sense a new coalition.

Many solicitors worry about some of the emphases that are being placed on certain types of case in court. All types of case that go to court are important, and the consequences in all cases are important for the people who are affected by them. We seem to be concentrating on certain types of case. I understand the drivers behind that, such as the focus on domestic abuse, which has obviously been a problem in Scotland. The problem is that, when that approach is applied in practice, wide nets are cast and in every type of case that is categorised as, for example, domestic abuse, people are brought into court and there are regular appearances from custody. The numbers in Edinburgh sheriff court have gone up substantially this year as far as prosecutions are concerned. Since April this year, there has been a 50 per cent increase in cases that are registered in the JP court, where we now see fairly serious road traffic cases—of course, there is a policing initiative on road traffic at the moment—and a 38 per cent increase in cases that are registered in the sheriff court, where there are drives on issues such as domestic abuse and the football legislation.

We just worry that there seems to be an ever-increasing desire to cast a very wide net and let the courts sort it out—to put more cases into court and let the judges and juries make their decision. Unfortunately, when you do that, you end up catching all sorts of cases, some of which could be dealt with in other ways.

There is a political drive behind the review and the Government is obviously under pressure from various groups. However, we must remember that we have come across these problems in the past. In days gone by, there was a particular concern about people being robbed on the highways when there were no witnesses. Those crimes were committed in private, but back then we were able to resist the temptation to remove the requirement for corroboration, although that would obviously have dealt with the problem.

Now, we have a similar type of problem, although a different section of society is affected by it. The media highlight the issues and the public, I think, understand the problems. As a justice system, we have to make sure that we do not make rash decisions, because once we get rid of corroboration, it will be gone. In my submission, that would be to the detriment of our system, unless we have properly thought out checks and balances in its place.

11:30

I will address those two points, if I may. I am not sure that I would characterise the first point in precisely the same terms. I repeat that there is a danger of extrapolating from a narrow range of what are, no doubt, dreadful cases. The suggestion is not that the requirement for corroboration be removed from sexual assault and domestic abuse cases but that it be removed from everything—theft, ordinary assaults, breach of the peace and so on.

I turn to the second point, which is the “less benign Government” point. When Mr Wolffe addressed it, he described it as the constitutional point. It is not entirely clear to me why the new test, post-corroboration, should not be put into statute.

The question was about whether the proposal is motivated by the desire to give victims their day in court. To put it bluntly, it should never be motivated by that. In fact, victims are not victims until it has been established in court that they are victims. That is the first point.

Secondly, as I think Mr Finnie mentioned, it should always be a case of prosecution in the public interest. In certain circumstances, it may not be in the public interest to put a single witness in court to give evidence. It may not even be in the interest of that particular witness to stand in a court of law with no back-up evidence, be cross-examined at length and find that the accused is acquitted.

Also, going back to the point that hundreds of cases could be brought to court, I think that it is easy for some people to be swayed by the numbers game here. We cannot approach it on that basis. We have to look at each case individually and decide whether it is appropriate to bring a prosecution and whether it is in the public interest.

I will make an observation on the last part of the question. It is important to have in mind the constitutional significance of what we are doing here. We are considering the way in which the criminal justice system operates, and ultimately we should all be concerned about securing the rule of law in Scotland for the long term. That is why our fundamental focus is on the safeguards that are required to make sure that, notwithstanding changes of Lord Advocate, changes of Government, changes of social attitudes and moral panics about one thing or another, we have a system of criminal justice that secures the liberties of the citizen in Scotland while at the same time ensuring that those who commit crimes can be brought to book.

That is why the Faculty of Advocates welcomes the debate that putting the issue on the agenda has given rise to, but it is also why the faculty cannot support the proposals in the bill and would welcome a much broader review of the criminal justice system.

The new point that I said I wanted to make is that, in tandem with considering the bill, we are considering a petition that calls for the retrospective application of the removal of the requirement for corroboration. It would be useful to have on the record the panel’s views on the implications of such a move.

If I can leap in, I would say that there are almost never any justifications for any retrospective criminal legislation.

In two words, it is unworkable and inappropriate.

It is fundamentally unconstitutional.

I agree with the other contributors.

Thank you. We needed to get that point down.

I call John Pentland, to be followed by Christian Allard. Those will be the last questions, because we have had a long session and time is moving on.

I have not been on the Justice Committee for long, so I am sure that you can understand that my knowledge of the legal system has been severely stretched.

What we have is a proposal for the abolition of corroboration. I find that there are two teams: yourselves and the Lord Advocate. In the Lord Advocate’s submission, he highlights clearly the point that the system needs to be modernised for the reasons that have been outlined, such as that nearly 2,800 potential victims have not had their day in court. I agree that the phrase “their day in court” is not the right terminology; perhaps we should say instead that they have not had their opportunity to see justice done.

This is the second evidence session that we have had on corroboration. While the Lord Advocate came up with ideas, other witnesses last week and the witnesses today have not been helpful to the extent that, although they have said that we need to change, they have not suggested any modifications that would help the people whom we believe are not getting access to justice.

Is it too early for me to ask whether you have any fresh ideas that would help the people whom we think the system is failing? Do you have any ideas about how we could ensure that those people get their opportunity to see justice done? Do you think that, somewhere along the line, consensus could be reached on the proposal that is being made? The grenades that have been thrown into the ring include statements that the prosecutors office may not be up to speed in dealing with all the people who could come to see it. Instead of finding a solution, it seems that we will end up miles and miles apart. I would have found it helpful if you had given us ideas so that I could understand what would be the best way to ensure access to justice.

I heard Mr White say that we could perhaps look at corroboration in particular cases. I think that that was the issue that you were raising. What you said surprised me, because I would have thought that we would be looking at something that would apply in any case. It might help John Pentland if you could expand on that.

I certainly do not deny saying those words, but I have no recollection of doing so.

Oh dear. We will check the Official Report during the week.

Which I will certainly trust.

I did not wish to be understood to be proposing that there be corroboration in some cases and not in others.

No. I thought that the inference was about what constituted corroboration. That would fit in with something that I think Mr McMenamin said. I cannot actually remember who said it—it has been such a long morning—but I think that the expression, “It has gone to almost nothing” was used. It would be helpful to know if there is any way forward that would reconcile the Lord Advocate’s position on corroboration, which we understand, with yours. We understand the difficulty that is posed for domestic abuse and sexual assault cases and for people who genuinely do not have a remedy in the criminal law.

It might have been me who said that it is perhaps worth looking at what categories of case require corroboration.

It might have been. I beg your pardon, Mr White.

The basis for saying that was that I know that in certain jurisdictions in the United States there has been application of corroboration to particular types of case. I am not suggesting that we do that, but it is perhaps worth looking at.

In an overall review.

In an overall review—exactly.

If the committee will forgive me, I am not going to come up with any solutions today, and I would be very surprised if any of my colleagues did so. We are dealing with a very complex situation, and corroboration can at times be a very complex area. It has occupied rather a lot of the appeal court’s time over the past few decades.

However, we must acknowledge that it is a system that has developed here, and that to move away from it would be a seismic shift for Scotland. We must also take into account that, for all that the Lord Advocate has stated his argument for the abolition of corroboration, the people who are against its abolition, certainly at present, include the major legal institutions in this country: the Scottish Law Commission, the Faculty of Advocates, the Law Society of Scotland, the Scottish Police Federation—as I understand it—and almost all of the shrieval bench. If that does not tell you something, frankly it ought to.

To discard corroboration in the light of the opinion of those bodies is a rash act, and perhaps a foolish one. The issue is worthy—as we have all said—of greater debate and consideration.

There is, of course, a perfectly respectable view that the doctrine of corroboration as we have developed it over a long period of time reflects the practical commonsense notion that one wants to cross-check evidence from more than one independent source on the essential facts before bringing a case to court.

However, as I said earlier, I would not for a moment suggest that there is not a case for looking at the way in which corroboration works in certain types of case. I would not immediately be attracted by a system that says that we should have corroboration for some types of case and not for others, although it is interesting that, for some time—as I understand it—in the law of England and Wales, corroboration was required only in sexual cases, precisely because of some of the difficulties that those cases present.

To illustrate some of the things that might be examined, I mentioned earlier the question of the role that distress plays, which at present is quite limited. It can corroborate certain elements of the crime, but not others. That could, along with the question of corroboration of mens rea, be considered, although—as I said earlier—I would not wish to commit myself to a view on them.

You also mentioned facts and circumstances.

Indeed, and there is the question of whether one needs to have an independent source of evidence that positively incriminates rather than simply providing a cross-check of consistency. There may well be ways in which the doctrine itself could be adjusted. As I said, I do not come with a menu, or a prescription that those suggestions are necessarily the right way to go.

It is interesting to note that the Lord Advocate, in his guidelines, does not by any means suggest that the cross-check is unimportant or not useful. Ultimately, the question that is before you as legislators is the abolition of corroboration, and you have to look at that in the context of the other things that have been done by way of adjusting and compensating in a system that has until now—in ways that cannot be overemphasised—been fundamentally based on that doctrine being at the heart of our criminal justice system.

The end point for the Faculty of Advocates is not that there are certain things that one might not wish to look at or that there is no debate to be had, but that the proposal in the bill to abolish corroboration with the very limited adjustment to the jury majority and no additional safeguards in summary cases is not one that the faculty can support.

11:45

I do not want us to go over old ground. However, I thought that John Pentland asked a good question. It is certainly the issue that the committee has to consider.

It is just a pity that with regard to any suggestion that modifications or solutions be found, Mr McMenamin’s mind seems to be made up. I might have picked him up wrongly but I note that in response to Sandra White, for example, he said that it was unlikely that the Law Society would support any change and that he thinks it rash for this proposal to be in the bill in the first place. If we are going to try to help victims who do not get any justice in court, Mr McMenamin might have to open up his mind a bit.

The Law Society’s position is that it is prepared to look at the overall situation; after all, we have invited people to debate the matter with us. We just think it utterly illogical to approach the issue by saying, “What’ve you got to replace corroboration? Nothing? Well, let’s get rid of corroboration then.” That is the situation in which we find ourselves just now.

In essence, Mr Pentland’s point is that last week, the committee heard evidence that corroboration ought to be abolished entirely; this week, it has heard evidence that such a course of action is not appropriate. He is asking whether there is no middle point. At the risk of going over old ground, I would respond by pointing out, first, that there was a further consultation paper on safeguards, which, in mentioning only two or three things about juries, seemed a little perfunctory. Secondly—this is the main point that many people at this end of the table have made this morning—the distance between those positions is the very reason why the matter should be referred to the Scottish Law Commission, a royal commission, a departmental committee or whatever. There might be a number of middle points but no one has looked for them.

We move on to a final question from Christian Allard. Members should bear in mind that this session has lasted nearly two hours and we still have more work to do.

Good morning—or is it afternoon?

It is nearly afternoon.

I seek some clarification on what we have heard this morning and what we heard last week from Lord Gill. As I understand it, we are talking about removing the requirement for corroboration but, this morning, we have heard that it will be taken out of the system altogether and simply discarded with nothing to replace it. Is it not the case that in other jurisdictions and judicial systems where there might be no requirement for corroboration it is still used extensively in many cases? Surely if in removing the requirement for corroboration we can still retain it in the system the evidence that Lord Gill gave last week does not make sense. After all, he made it very clear that the legislation must apply across the board. Do you agree with that view? From what I have heard this morning, it seems that some of you might not.

It will be difficult to create different classes of case, some of which will require corroboration and some of which will not. Moreover, cases very often come to court with a number of different charges. If a complainer has alleged a number of different types of crime against the same person, how do we explain to a jury that charges 1 and 2 do not require corroboration but charges 3 and 4 do? Juries have to absorb a lot of directions in a short space of time; it is sometimes difficult for them to get their heads around them but they do their best. It will make things very complicated if we create certain classes of case in which corroboration is not required.

So that the committee and the public understand the point, can you give an example of the kind of complaint that would have those different elements to it?

If a complainer alleged rape at knife-point, there might be a charge of rape for which the evidence could come from the complainer alone, irrespective of evidence of penetration, if the requirement for corroboration was removed. However, if there was an accompanying charge of possession of a knife in a public place, perversely we might need a witness to state that the man had a knife in a public place. In practice, the Crown would probably not be too bothered about the additional charge. However, it would have to be explained that two witnesses were needed for that charge but that only one was needed for the rape charge. There might also be a charge for an act by the accused to try to destroy or get rid of evidence; again, we would have to decide whether such a charge would require two sources of evidence or just one.

Lord Gill’s point is that creating different classes of case, some of which would require corroboration and some of which would not, would be a very complicated exercise. To go back to Mr Pentland’s question, if there is a determination to remove or weaken evidential requirements—in effect, that is what getting rid of corroboration would do—in order to improve access to justice and give witnesses their day in court, we must understand that more cases going to court would not be the only consequence. What else would be achieved? I do not think that any of the contributors to the consultation that I have heard, including Lord Carloway, can say that more convictions would be achieved. In fact, Lord Gill quite clearly believes that a decrease in the conviction rate would be achieved. It stands to reason that if we weaken the rule on the amount of evidence that is needed, we are even less likely to get convictions in the type of cases in which juries are already reluctant to convict.

If more and more people were acquitted of sexual crime, what would be the knock-on effect for the system? That would not increase public confidence in the system at all. If one or two high-profile miscarriage of justice cases were produced as a result of the evidence change, that would be very costly for the system financially because appeals to the Scottish Criminal Cases Review Commission are very costly and compensation must be paid if convictions are overturned. In addition, many years down the line when some people come out of prison, the public sometimes wonder what went wrong. Miscarriage of justice cases are very costly for the system in terms of both money and public confidence. Until now, we have managed to avoid them for a reason and, to me, corroboration is the main reason.

I want to press you on what you just said about the rate of conviction. I pressed Lord Gill on that subject and asked him:

“On access to justice, would abolishing corroboration increase the number of cases that would be brought to prosecution?”

He answered, “No.” When I pressed him further by saying “Definitely not?”, his answer was:

“It might increase the number of prosecutions, but I am not convinced that it would increase the number of convictions.”—[Official Report, Justice Committee, 20 November 2013; c 3727.]

What do you think?

That is Mr Harrower’s point.

I agree with Lord Gill on that. If we are going to have more cases in which there is deemed to be enough evidence, we will increase the number of cases that go to court. All the additional cases that the Lord Advocate talked about could end up in our courts. However, I do not see how the conviction rate, or the percentage of cases in which we achieve a conviction, can do anything other than stay the same or fall.

I have figures for 2011-12 that show that for rape and attempted rape cases, 20 were “Acquitted not guilty”, 16 were “Acquitted not proven” and 50 were “Charge proved”. So, 36 were acquitted and 50 were charge proved; an additional eight people had pleas of not guilty accepted or the case was deserted. The conviction rate is about 50:50 at the moment.

Those figures are for what year?

They are from the statistical bulletin “Criminal Proceedings in Scotland 2011-12”, which the Scottish Government produced on 27 November 2012. There is a table on page 23 that shows how many people were proceeded against in court and a breakdown of the outcomes.

That is fine. We have the reference for the Official Report. The figures are interesting.

Nobody is saying that juries are not doing their job properly or that they are going into court and trying to find ways of acquitting people. Juries are going into the court at the moment and hearing corroborating evidence, but they are not being convinced. How do we expect to increase how often they are convinced if we take away one of the major checks on the proof of the allegation that is put to a jury?

I will stop now unless anyone else wants to come in. It seems that Mr Wolffe does.

May I make two brief observations? First, like Mr Harrower, I am not attracted by having different rules for different types of crime, which is why I am pretty diffident about offering possible modifications. The issue is well worth looking at, but one would have to look very hard at possible modifications.

Secondly, on the consequences for the conviction rate, our real problem is that we just do not know what they will be. Lord Gill talked about as yet unknown consequences and he was right to do so, because at first flush one might expect the rate of conviction for sexual crimes to decrease, because one is prosecuting crimes with a lesser evidential basis, but at the same time we are removing a requirement for corroboration across the board—judges will no longer uphold no-case-to-answer submissions, and juries will no longer be told that they must find corroborated evidence—so for all that we know there might be an increase in the conviction rate, not in sexual cases but across the board. Whether that will be so, and what the implications for the system and its resourcing will be, are anyone’s guess.

I am looking at the clock and thinking that this has been a long evidence session. I thank the witnesses very much. We will have a five-minute break. I apologise to our witnesses for the next agenda item, who are waiting to give evidence.

11:56 Meeting suspended.

12:03 On resuming—