Criminal Law and Practice (Carloway Review)
The next item of business is a debate on motion S4M-01450, in the name of Kenny MacAskill, on Lord Carloway’s review of criminal procedure.
14:56
I put on record my thanks to the Opposition spokespeople for agreeing the tenor of the motion. That shows that the status quo is not tenable; we have to make significant changes to the law of Scotland.
I do not think that there is any point in arguing over why we are here or apportioning any blame at this juncture; it is a matter of recognising that there has to be change, which is why we instructed Lord Carloway to carry out his review. It is important that we should go forward in an open and constructive manner, not only here, but outwith the parliamentary chamber. Some of the changes are fundamental and are causing great debate. Therefore, it is important that we debate the substance of matters on the basis of what is the right legal reform for our communities, and not on the basis of party dogma. I assure the Opposition spokespeople that that is the position that the Government intends to take, and I am grateful for the reciprocity that we see in the agreement on the motion.
Today we mark the start of an historic reform. Lord Carloway’s report on criminal procedure, which was published on 17 November, promises to remould our system for the investigation and prosecution of crime. I am grateful to Lord Carloway and his team for the report, which was produced in just under a year. I know that he consulted extensively, travelling throughout Scotland and beyond in order to research the issues and test opinion.
It is 13 months since I introduced emergency legislation to this Parliament, on the day of the United Kingdom Supreme Court’s decision in Cadder v Her Majesty’s Advocate. That decision, which overruled the decision of Scotland’s highest criminal appeal court, effectively changed decades of police practice when questioning suspects. It required us to ensure a clear right of access to a lawyer and adequate time to arrange advice before questioning, and to protect historical convictions.
I recall the debate when we sat late into the evening to discuss the emergency legislation. I made it clear then that we had to act swiftly, but I promised that the bill and related matters of law and practice would be extensively reviewed. The steps taken before and after Cadder have stood us in good stead and I am grateful for the committed response of police, prosecutors and defence lawyers, not least in the successful operation of the new duty scheme for legal advice. However, those steps could only take us so far. The time had come for the criminal justice process to be reassessed from start to finish. The work of the Thomson committee in the 1970s has dictated Scots criminal procedure for the past 30 years, and I expect Lord Carloway’s report to have a similar impact in framing our system for decades to come.
The Carloway report is extensive and detailed, and it needs our full consideration. I do not propose to outline now exactly what course I think should be taken, as I want to hear the views of members and of the wider community, and I reiterate the offer that I made earlier in private meetings with Opposition spokespeople to continue in that manner.
Although the proposed change to corroboration—on which the headlines have focused, perhaps understandably—should not obscure the many other important changes that have been proposed, it would clearly be a momentous reform. As Lord Carloway stated, within Europe at least, Scots criminal law appears to be unique in requiring corroborated evidence for virtually every crime. An accused person cannot be convicted unless each of the key parts of the crime can be shown to have happened by evidence from two separate sources.
Let us consider a case in which the only evidence was a compelling and credible account by the alleged victim. Such a case would never reach a Scottish court, but it could reach a court in England, France or Germany, where a jury or judge would assess its merits.
The traditional view is that corroboration is a distinctive and exacting standard that ensures that convictions are rigorously proved and which prevents wrongful convictions. Lord Carloway challenges both those points. As well as concluding that there is nothing to suggest that corroboration reduces miscarriages of justice, he questions its value—he notes that instead of focusing on the quality of evidence, corroboration simply involves looking at how much there is.
The review has unearthed striking research. In 268 of the 458 cases that were dropped in 2010 on the basis of insufficient evidence, there would have been a reasonable prospect of conviction if there had not been a requirement for corroboration. That is only a snapshot, but it is an important snapshot.
Another headline change is the proposed replacement of our current system of detention before arrest so that all suspects are arrested on reasonable suspicion. That reflects the impact of Cadder. It should also—for the first time—permit questioning to occur after charge, provided that it has been authorised by a sheriff. The proposal to allow the police to liberate suspects for up to 28 days on a special undertaking allows for full investigations to be carried out, while recognising the principle of liberty. Balance is obviously important.
Lord Carloway recommends that the maximum detention period in the new system should be 12 hours, and that the police should carry out a review after the first six hours. Lord Carloway restates the requirement for suspects to obtain legal advice from a solicitor before and during questioning. He accepts that suspects may decline the right to a lawyer but recommends protections for child and vulnerable adult suspects, whereby the agreement of an adult would be required. That is another important caveat.
Lord Carloway supports the need for the Scottish Criminal Cases Review Commission to consider certainty in looking at historical convictions, although he recommends the removal of the High Court’s gatekeeper role in rejecting cases on certainty grounds. He also seeks to reform rights of appeal by creating a general right and removing such archaic concepts as bills of advocation.
Costs are, of course, a vital consideration when proposals of such magnitude are examined. We will conduct a detailed analysis, but the report identifies both costs and savings. There may be more cases and there may be a need for weekend courts, but the use of police bail should reduce the number of people who are remanded to await trial and, in some cases, there should be a reduction in the number of witnesses—for example, some of the expert witnesses who are required for corroboration may no longer be needed. Innovations in technology should also help.
Having been at the launch of the national ballistics intelligence service, I can say that the requirement for corroboration currently means that two police officers require to go down south simply to pick up a piece of evidence. Many would question whether that is necessary. Even if corroboration is viewed as fundamental—as it is by many—the inconvenience caused by, for example, the requirement for corroboration even when someone is simply collecting a piece of evidence means that there is a clear need to consider the issue.
We cannot ignore potential costs, but this is about the best structure for our legal system and modernising it for the future, which should prevent future human rights challenges. Some people think that the changes risk eroding the ancient distinctions of the Scots legal tradition. It has been alleged that our system will become indistinguishable from the English system or systems on the continent. That is not so. The type of landmark change envisaged has happened to Scots law before and Scots law has survived and indeed grown. It has withstood the creation of appeals against conviction in 1926, the removal of corroboration in civil cases in 1988 and the abolition of the feudal system in 2004. Those innovations were seismic at the time but have become a commonplace reality today.
These are distinctive proposals for change for our jurisdiction. Every legal system must evolve to take account of changes to society and ever-improving standards in human rights. The European convention on human rights is not a set of basic rules forever frozen on 3 September 1953; it evolves with each decision from the court in Strasbourg and we have no option but to follow it. I doubt that a decision such as that in Salduz would have been handed down by the court in the 1960s or 70s. I say that not to criticise the convention but to acknowledge that the law must always be ready to change with society.
Lord Carloway’s report provides us with an opportunity to reassess and rebuild the most essential elements of how we investigate and prosecute crime. No one knows at what point corroboration—a principle that stems from the laws of Emperor Justinian and ultimately the Bible—entered our law. As Lord Carloway eloquently set out, it is a principle that we have retained but which others have discarded.
Corroboration is a distinctive—probably the distinctive—feature of our criminal law, but Lord Carloway’s clear contention is that its time has passed. He reaches the following damning verdict:
“It is an archaic rule that has no place in a modern legal system”.
That quote will reverberate for quite some time. At the very least, I expect it to be reproduced in every criminal law exam paper in every Scottish law school for years to come, closely followed by the single word “discuss”. Discuss it is exactly what we will do. I see Lord Carloway’s recommendations as a package and as paving a clear path to reform, but we must consider them fully.
I want to hear the views of those who disagree in whole or in part with Lord Carloway. Members of the legal community will be directly affected by the changes. I need to hear their thoughts and concerns about how they see these fundamental reforms working in practice, including how they might impact on other aspects of criminal law. For example, I know that many are opposed to the recommendation on corroboration. Some question the interaction with jury majorities or our three-verdict system. I also acknowledge Lord Carloway’s incisive comment that the reforms arise in an age of austerity.
However, the report sets out a clear direction of travel and I see it as the foundation of a programme of substantial, historic reform. I will end as I started, by indicating that as a Government we want discussion and debate in the chamber because we are aware of the concerns that exist not simply among those who oppose the removal of corroboration but among those who support its removal and those who think that other tangential matters must be brought in if there is to be reform.
The status quo is not tenable. We have to make changes and it is therefore important that we set the tone by showing, as we have done today, that this is about having a discussion and debate with the legal profession and with the general public.
I assure members that, in moving the motion, I am open to taking on board the criticism that has been made and the improvement that has been suggested. There is no political dogma on the issue; we have to change. It is a privilege for us to be members of the Scottish Parliament, and we therefore must ensure that we get the reforms right, and that, in putting them forward, everybody in our communities has the opportunity to contribute.
I move,
That the Parliament welcomes Lord Carloway’s detailed and authoritative report on aspects of criminal procedure in Scotland; believes that his recommendations provide a historic basis on which to remodel the Scots criminal justice system; welcomes the report’s focus on delivering a system that will ensure the effective, efficient and fair investigation and prosecution of crime, and supports the Scottish Government’s intention to seek an early opportunity to legislate following an appropriate period of time for reflection, analysis and debate, which should involve detailed consideration of links to wider aspects of criminal procedure.
15:10
I welcome the opportunity to take part in the debate and to support the Government’s motion.
The cabinet secretary said that this seems like an examination process—I hope that our speeches will not be marked.
This is an important debate. It is vital that we recognise the work that Lord Carloway and his review group have done. That work was an important task in the aftermath of the emergency legislation that Parliament passed. The legislation was broadly supported by the main political parties that October afternoon, although the debate was—this is not a criticism of the Government—somewhat chaotic at times.
It was correct to set up a review group to reflect on the implications of not only the Cadder judgment but the legislation that was passed in its aftermath. Lord Carloway’s report is an extensive piece of work that is heavily evidenced and researched. The report—in particular, the conclusions—is written very clearly. In it, he sets out his views clearly and, helpfully for the Government, he identifies areas where he feels that legislation may be required, and areas where it may not be required, to implement his recommendations. We should thank him for a substantial piece of work.
Much of the discussion in the media and the legal profession has focused on corroboration. Lord Carloway’s report sets out the history of why corroboration was incorporated into Scots law. It is important to remember that it was incorporated at a time when the legal system and the country were very different. There were geographical and other divides in Scotland, and it was essential to ensure that anyone who was being prosecuted was properly protected and got the fair trial to which they were entitled. It was on that basis that corroboration was incorporated into Scots law. There have been many advances since that time, not only in technology but in the skill and expertise of prosecutors and defence agents. Times have moved on.
Lord Carloway makes a powerful case for the abolition of corroboration. The cabinet secretary cited the research, which covers some of the more serious cases. Of the 458 cases that were not taken forward, 374, or more than 80 per cent, would have been likely to go to trial if there had not been a requirement for corroboration, with almost 60 per cent of those cases having a good chance of success.
Labour has previously made its position clear on rape cases, in relation to which we feel that corroboration should be abolished. The most recent statistics on rape cases show that of 884 cases reported to the police, only 41, or less than 5 per cent, secured a conviction. I am sure that there is agreement across the chamber that that level of success in securing convictions is unacceptable, particularly for the victims of rape.
In one of the responses to the review, one party said:
“It would be very dangerous to remove corroboration for rape and sexual offences since”
that
“would result in a greater emphasis on witness testimony and would add further trauma for victims.”
Therefore, there is a downside to not having corroboration in such cases. If the member will forgive me for saying so, it is quite simplistic to say that removing corroboration would make such cases easier to prosecute.
If the member will allow me to, I will develop my argument, because I acknowledge that the issue is complex and requires careful consideration. I certainly support the removal of corroboration in rape cases, but the implications of such a change require careful consideration.
Just for clarity, the member has said twice that he supports the removal of corroboration in rape cases, but can he explain whether that means that he does not support its removal in other cases?
I appreciate the intervention, but if I can develop my argument I will make clear what my position is in relation to other cases.
Lord Carloway shows that there is a powerful case for abolishing corroboration in relation to all criminal cases, not just rape cases. That is clear not just from the analysis that he sets out but from the international examples that the cabinet secretary quoted, which mean that we in Scotland stand alone in pursuing corroboration. As well as for the reasons that I have already outlined, corroboration was set up to ensure that there were no miscarriages of justice. As Christine Grahame pointed out, we do not want those to happen further down the line.
The case for abolishing corroboration must be weighed against the fact that it is a central tenet of the Scottish justice system. Some have argued against its abolition on the grounds that doing so would threaten the fairness of trials and might result in people being unfairly convicted. Such concerns must be weighed in the balance as we consider whether we should abolish corroboration for all criminal trials.
For me, the test is the one that Lord Carloway presents in his review, and it involves looking at the quality of evidence. There is a danger that in sticking with the corroboration principle we concentrate on quantity in getting two different sources of evidence. However, we must look at the quality of that evidence. We must ensure that if corroboration is not in place, those who are prosecuted get the fair trial to which they are entitled and that any conviction must be because their guilt is beyond reasonable doubt. Proper safeguards must be put in place if the corroboration principle is abolished. Part of that will be about looking at the process, including the jury system and the principle of majority verdicts, to see whether we need to build in further safeguards.
There are major issues to consider. To answer the members who intervened, successful prosecutions in rape cases is a matter of major concern, and I am convinced about abolishing corroboration in that area. I am sympathetic to the case that Lord Carloway makes, but I am still not totally convinced. I think that members agree that the area needs further examination.
On other areas—I realise that I am reaching the end of my time—
I can give you some extra time for the interventions.
That will be very useful, Presiding Officer. I am sure that that is welcome. [Laughter.]
Of the other important areas that the report covers, arrest and detention are quite critical. There is a link back to the Cadder judgment, following which suspects were given the right to access to a solicitor. It is important to distinguish between an arrest and detention at the police station. There were a lot of challenges in that area in the aftermath of the passage of the emergency legislation. It is helpful that Lord Carloway sets out his views and recommendations in that regard.
There is a useful recommendation that, when suspects are detained in police stations, they should be issued with a letter that details their rights. Clear guidelines are also to be set out on periods of custody.
I would have liked to make other points about child suspects and vulnerable adults, about whom Lord Carloway makes some good points.
We need to flush out the timetable for any proposed legislation, and it is important that we get the legislation right. I noted the comment in the Government’s motion that it wants to legislate early. I am slightly cautious about that because we ought to think through the ramifications of some of the issues that have come out of the review.
I thank Lord Carloway for his input. I support the Government’s motion and look forward to a comprehensive consideration of the issues that are outlined in the report.
15:21
Like other members of the Justice Committee, I come to the debate with the benefit not just of reading the Carloway report and assessing the initial reaction to its recommendations, but of having discussed some of its findings with the author, Lord Carloway, at Tuesday’s meeting of the Justice Committee.
As the cabinet secretary correctly noted in his opening speech, the focus of much of the public debate so far has been on changes to the rules of evidence, particularly the recommendation that the current requirement for corroboration in criminal cases should be abolished. Lord Carloway describes this as a move from a technical and quantitative approach to the assessment of evidence to a qualitative approach. That focus on corroboration detracts in some ways from the issue of the questioning of suspects when they are in detention, which was the basis of the Cadder decision and, of course, the catalyst for the setting up by the cabinet secretary of the independent review. In some ways, that is a pity because the focus should be on provisions relating to arrest, detention, custody, investigation and the interrogation of suspects, all of which go to the very heart of compliance with the European convention on human rights, particularly articles 5 and 6, which concern the right to liberty and the right to a fair trial.
There is a linkage of sorts, in that in the Cadder case, the Crown maintained that the want of a right of access to a solicitor during initial questioning was in some way compensated for by the rules on corroboration, among others, when the case came to trial. The Supreme Court rejected that proposition, and rightly so in light of the Salduz decision.
However, as is clear from the Carloway report, the rule requiring corroboration bears examination on its own as a unique feature of the Scottish criminal justice system that is not replicated in other jurisdictions. Of course, that does not mean that it is wrong and must be changed; equally, it should not be put on a pedestal and become some kind of virility test of one’s devotion to Scotland and Scots law. The “Whae’s like us?” mentality has not served us well in our recent brushes with the ECHR, and a greater willingness to see ourselves as others see us and to examine our jurisprudence objectively and dispassionately against the ECHR benchmark would have stood us in better stead and avoided some of unseemly controversies that have arisen over the past year. As the cabinet secretary rightly said, those should be put behind us as we take the report and recommendations forward.
A research review on the effect of abolition of the rule on corroboration, which looked at the number of cases that could have been prosecuted and in which convictions could have been secured, was published as an appendix to Lord Carloway’s report and has been the subject of much comment. James Kelly referred to the statistics. When one reads that, of the 458 cases that were marked no proceedings in 2010, 374—or more than 81 per cent—would probably have been prosecuted if the rule did not exist, and that in nearly 60 per cent of those cases there was a reasonable prospect of conviction, one thinks at first sight that those are alarming numbers.
However, the numbers are a lot less alarming when they are put in the context of the total number of serious cases that are prosecuted under solemn procedure before a judge and jury in our High Court and our sheriff courts, which is about 5,000 per annum. The conviction rates are approximately 71 per cent for crimes of violence, 78 per cent for crimes of indecency and 88 per cent for crimes of dishonesty.
What Mr McLetchie is pointing out is crystal clear, but with regard to rape cases, one effect of the requirement for corroboration is that many people who are raped end up not bringing complaints because of the court process. The removal of the requirement would mean that women—and men, for that matter—who have been raped would be more likely to come forward and make a serious complaint.
It is fair to say that people are more likely to come forward and make a serious complaint if they think that it will be taken seriously, that the case will be prosecuted and that there is a prospect that their assailant will be brought to justice—in other words, that there is a higher rate of conviction. I was just about to move on to that, so I will make some fuller observations about it.
We should not look at the research figures in isolation. We should bear it in mind that, despite the higher bar for assessing suitability for prosecution by reference to the corroboration rule, the conviction rate in cases involving rape and attempted rape, which I have just discussed with Mr Paterson, that are actually brought to court is about 46 per cent. That is much lower than the rate for crimes generally. That suggests that many other factors are at play with juries and that apparent corroboration before the case proceeds is not in itself sufficient or conclusive if juries have serious doubts about the credibility of witnesses or other factors before they can convict beyond all reasonable doubt. That chimes with what is said about the importance of the qualitative aspect of the assessment of evidence in arriving at a determination.
James Kelly said that, of 884 reported rapes, only 41 eventually led to prosecutions and convictions, and that that is 5 per cent of the total. He is arithmetically correct, but if we look at the statistics in England, where there is no rule that requires corroboration, we can see that the conviction rate there is not much better, at a pretty miserly 6 per cent. If we apply that percentage to the situation in Scotland, nine of the 884 women would have secured justice against their assailant, but it would not have done much for the hundreds of others who feel that they have been wronged and assaulted in that appalling manner. We should not rush to conclude that changing the rule would necessarily lead to a dramatic change in the landscape in terms of securing convictions or justice for women who have been raped.
We should not proceed in haste on the matter. There are other factors and aspects relating to the overall conduct of trials in Scotland that need to be taken into account. Although we support the Government’s motion and will do so at decision time, the reference to
“an early opportunity to legislate”
concerns me.
We currently require corroboration, but we also require a simple majority verdict to convict an accused person. Other systems that do not require corroboration require either unanimity or a heavily weighted majority. Does one balance the other? We should consider that issue fully, as it was not considered fully in the Carloway report although, along with other Justice Committee members, I noted from Lord Carloway’s evidence on Tuesday that a weighted majority is required for any verdict—whether of guilt or of innocence—in those jurisdictions, in comparison with a simple majority for guilt only in Scotland.
Mr McLetchie, I would be grateful if you could draw your remarks to a conclusion.
Okay.
The convener, from whom I hope that we will hear shortly, raised with Lord Carloway the issue of the sustainability of the not proven verdict. I wonder whether the not proven verdict is ECHR-proof, or whether it could be considered to be incompatible with article 6 on the right to a fair trial, on the basis that a fair trial should involve the decisive determination of guilt or innocence in line with the presumption of innocence. I do not know the answer to that question, but I pose it simply because I think that there are a lot of other factors. I hope that other members will take those points forward during the remainder of the debate.
I am happy to conclude, Presiding Officer—thank you.
Thank you—that was a very generous six minutes. We now come to the open debate. We will have speeches of six minutes. There is a little bit of time for interventions, and if any member in the chamber has not indicated that they want to speak and is now motivated to do so, I can consider a request for an additional speaker.
15:31
I refer to my entry in the register of members’ interests. I acknowledge the care and time that Lord Carloway and his team have afforded to this important review. It is a big report with a lot in it, and we can only touch the surface today.
In the foreword to the report, Lord Carloway states:
“The underlying and long-lasting implication of Cadder is that the system must fully embrace and apply a human rights based approach.”
We must consider his review in that context.
The proposal for removing the requirement for corroboration in criminal cases is perhaps the most ambitious proposal in the report. I agree whole-heartedly with Lord Carloway that the most important aspect in establishing the value of evidence should be its quality and not its quantity.
We have heard that the concept of corroboration has a very long history. Until relatively recently, it used to be part of the civil process in Scotland as well as operating in criminal cases, although that is seldom mentioned today. The requirement for corroboration in civil cases was abolished in 1988, and the civil system has functioned without the need for corroboration quite adequately, even if it must be accepted that, in a case based on a conflict of oral evidence, two witnesses in support are better than one.
The term “corroboration” is often misunderstood by the layperson; it means that there must be two separate sources of evidence. It does not mean that there should necessarily be two independent witnesses to confirm every piece of evidence. As has been said, it is a hangover from medieval times at least: a security mechanism to protect accused persons from mistakenly being hanged from the gallows in an age in which there was no such thing as an appeals process.
Thankfully, we have moved on. As Lord Carloway has said, the principal reason that is advanced nowadays for retaining corroboration is to prevent miscarriages of justice. As has been said, his review found no evidence to suggest that the rates of miscarriage of justice in Scotland are any lower than they are in comparable countries that do not have a corroboration rule. Moreover, he argues that the requirement for corroboration increases the likelihood of a miscarriage of justice. If a complainer has a good case, but there is no evidence other than the complainer’s own evidence, the complainer is, because of the rule of corroboration, not able to obtain justice as the case does not proceed.
Those are powerful arguments, but I do not believe that removing corroboration is a silver bullet that will necessarily increase efficiency and improve justice—and it may not, in human rights terms, be more than neutral. The cabinet secretary has referred to the research on the 468 cases. The second table shows that 95 out of 141 sexual offences could have been prosecuted. However, Lord Carloway himself admits:
“it is important to remember that the removal of the requirement for corroboration would not guarantee a conviction”
in the cases in which there was deemed to be a reasonable prospect of conviction. The reasonable prospect of conviction that is assessed by the Crown Prosecution Service in England is an objective test in which a prosecutor assesses whether it is more likely than not that a conviction will be obtained. The figure is something in excess of 50 per cent but perhaps not much more, and in reality convictions do not always follow. Therefore, we should not be overwhelmed by the figures and, as David McLetchie has rightly said, the difference between conviction rates in Scotland and those in England and Wales is minimal.
We should perhaps counter that point by remembering the comments of Helena Kennedy when she was talking about human trafficking this week. In her view, the rule on corroboration may be a bar to convictions for trafficking, and I cannot see any real argument against that.
We obviously acknowledge that the test to be applied in criminal cases is whether the Crown has proved its case beyond reasonable doubt. In Carloway’s view, that is the essential safeguard to protect the accused. In particular, he believes that safeguards, such as an automatic warning to the jury of the risk of convicting on the basis of uncorroborated evidence, should not be required. Similarly, he believes that a judge at first instance should not be entitled to acquit an accused in a solemn case even if he or she considers that it would be unreasonable for a jury to return a verdict of guilty on the evidence adduced.
It is in the area of safeguards that I believe that the Government would be wise to listen to the arguments. Justice Scotland has said that it is
“dismayed by the suggested wholesale removal of corroboration absent alternative safeguards”.
The Government needs to listen to that argument, and others, so that we can have a full and meaningful debate on the point.
I will move away from corroboration and touch on the review’s comments on adverse inference. I agree with Lord Carloway’s recommendation that there should be no change to the current position—that is, that no inference should be drawn from silence on the part of a suspect when they are questioned. There is no strong case for replicating the English experience, and indeed in England the matter is rarely an issue in trials. Similarly, I believe that, post-Cadder, the distinction between section 14 detention and arrest is no longer meaningful.
In the remaining time, I will touch on the question of rights of access. Lord Carloway’s analysis is that there is nothing in European jurisprudence that precludes suspects from waiving their right of access to a lawyer, but he goes on to consider the position of vulnerable adults and children. Most significantly, he makes a recommendation that under-16s cannot waive their right of access to a lawyer, which seems a sensible recommendation. It is unusual that under-16s, who may not consent to many things in life, are able to waive something that is so important to their human rights.
On a waiver generally, Lord Carloway does not specifically suggest in his review that the police should record the reasons why a suspect waives their right of access when they are at a police station or wherever—Lord Hope made that suggestion in a Scottish case heard by the Supreme Court in which judgment was given last week. However, in the evidence that Lord Carloway gave to the Justice Committee on Tuesday, he agreed with the proposal that the reasons why an accused has used the waiver should be recorded. It is a helpful suggestion, and it may be a useful addition to any Association of Chief Police Officers in Scotland manual.
There is an awful lot in the Carloway review. It is an important contribution to the debate, and I look forward to a full and meaningful debate on it.
15:38
At page 3 of his report, Lord Carloway states:
“the system for which”—
the state—
“is responsible must respect, promote and protect human rights in an effective manner. As well as ensuring the proper treatment of those suspected of having committed a crime, it must protect the rights of all those affected or potentially affected by crime.”
In the context of that statement, I welcome the 78 recommendations in the report and look forward to the responses that we receive and the debate that we will have in the Justice Committee to decide the way forward.
As has been referred to already, the history of the requirement for corroboration goes back so far that it is difficult to remember why and how it all began. During his evidence to the Justice Committee, Lord Carloway indicated that it was largely born from the desire to protect accused persons appearing before the courts in Scotland, where there was a presumption among some juries of the guilty nature of the accused not because of the evidence but because of their name. The requirement for corroboration was a mechanism by which the system could provide some measure of protection to an accused. It allowed the weighing of evidence before it was considered by a jury so that the court could ensure that a jury based its decision on guilt or innocence rather than on someone’s surname.
Thankfully, we have moved a long way since those days. In the hundreds of years that have passed since, many nations throughout Europe and elsewhere in the world have stepped back from corroboration. Scotland alone depends on it to provide support in the courts on decisions of guilt and innocence.
In a modern-day environment, we have tape recording of interviews, closed-circuit television in police offices, continuing scrutiny from the press, the provision of legal aid and extremely professional solicitors available to accused and suspects. Those things provide public oversight of our system. Importantly, there has been a change in the relationship between the individual citizen and the forces of the establishment. In that context, it is appropriate that we should analyse whether there is a continued requirement for corroboration.
As members will know, the Equality and Human Rights Commission Scotland inquiry into human trafficking in Scotland reported on Monday. Roderick Campbell has touched on the issue. Does the member agree that, in cases of trafficking, we should take extremely seriously the view of the Crown Office and Procurator Fiscal Service that the inherent difficulty of getting traumatised witnesses to come forward presents challenges in obtaining a sufficiency of evidence to satisfy the requirement for corroboration?
Yes, I think that that is correct. It is a consideration that needs to be solemnly gauged in our discussions in the weeks and months ahead.
We should also bear in mind that, although the recommendation is to abolish the requirement for corroboration, it is not to ban corroboration. There is still an opportunity, where witnesses are available and a prosecutor sees the need, to use corroborative evidence in the court process.
As the cabinet secretary said earlier, corroboration also affects the administrative background of the various services that are required. Two people are required to deal with administrative matters such as the collection of evidence, the signing of productions and the obtaining of statements, where often one would suffice and would still meet the needs of the court.
Corroboration is a subject that deserves careful analysis. Lord Carloway argued persuasively to the committee for an approach that looks at the quality of the evidence provided by witnesses. It is an argument that we need to take seriously.
Police detention and questioning are always a contentious issue—it is the one time when the citizen comes into conflict with the state in an area in which it is all too easy to misunderstand and misrepresent. In days of yore, common law oversaw that relationship and it was very much left to the courts to judge the fairness or otherwise of police interviews. With the Criminal Justice (Scotland) Act 1980, that changed and the police were authorised to bring suspects to a police office under the oversight of the provisions of that act. As we have heard, the ECHR has set a separate context, Salduz has applied a new standard and the Cadder judgment has moved us forward.
I welcome the recommendations on police detention because they will help to bring clarity to the issue and create a balance between the subject’s rights and the state’s responsibilities. The right to liberty in article 5 of the ECHR and the right to a fair trial in article 6 are rights that we would all seek to access at a time of need. It is correct that we should offer those rights to our citizens.
The general power to arrest on reasonable suspicion, as recommended in the report, is to be welcomed, as is the 12-hour balance for how long the power of arrest should sustain. A letter of rights is common sense, but we need to take time to work through and understand access to solicitors and investigative bail.
Lord Carloway said in his report that he sought
“to re-establish Scotland at the forefront of the law and practice of human rights in general.”
I welcome that statement and I look forward to the months ahead, when we can try to get that right for the future.
15:45
For the avoidance of doubt, Lord Carloway made it plain to the Justice Committee that the report was not unanimous. He had a review group, but the report was his. It is important to put that on the record, as there are many issues to be addressed.
I agree very much with Mr McLetchie that what has been proposed would have a substantive impact on Scots practice and procedure—I do not know whether that will do his street cred any harm. One of my concerns is therefore that the motion refers to
“an early opportunity to legislate”.
I want us to take a great deal of time not just over the issues that Lord Carloway considered but over the issues that he did not consider—the wider remit, which I may have time to touch on in passing. For example, at First Minister’s question time today, I raised the issue of the cumulative impact of double jeopardy and the possibility of there being no necessity for corroboration. We are talking about major changes.
I, too, intend to focus on corroboration, but I also want to touch on the Scottish Criminal Cases Review Commission and its independence from the High Court sitting as a court of appeal. I say to the cabinet secretary that I think that this will turn into a legal seminar, unfortunately.
Lord Carloway gave the definition of corroboration at this week’s meeting of the Justice Committee, and it can be found at column 529 of the Official Report of the meeting. I will not go into that, but I say to Claudia Beamish that I have concerns. I think that she was beginning to go along the lines of saying that we might have no corroboration in certain kinds of cases. Lord Carloway’s view is that we should just get rid of corroboration in total. That is why we have to consider matters carefully.
Claudia Beamish rose—
Let me make progress, as I am going to deal with sexual offences cases.
I want to raise concerns that have been raised by others who submitted responses on corroboration to the review, which I do not have answers to. That is why we must take our time. For example, it was said that
“Abolition would place the prosecution in a very difficult position, potentially requiring the assessment of the likelihood of prosecution solely on the basis of the complainer’s evidence. Fiscals would be forced to undertake a quality control exercise and assessing credibility and reliability is very difficult in practice.”
Another argument was that
“If corroboration were abolished, but the current standard of proof in criminal cases, beyond reasonable doubt, was retained, there could be difficulty in establishing sufficiency of evidence.”
One comment was that
“The police find corroboration a useful tool in court preparation and in determining whether to move someone from suspect status to accused, i.e. where corroboration exists ‘suspect’ can be moved to ‘accused’.”
Another was that
“The purpose of corroboration is to protect vulnerable people from evidence obtained from an unreasonable source being used against them. For example where a person declines legal advice and then makes a confession, this could be sufficient to convict in the absence of corroboration.”
Sexual offences and rape have been addressed. I have quoted the argument that
“It would be very dangerous to remove corroboration for rape and sexual offences since”
that might
“result in a greater emphasis on witness testimony and would add further trauma for victims.”
In those circumstances, the defence might have a right to challenge more robustly the credibility of the main witness—that is, the alleged victim—and that would not be in their interests; indeed, it might deter people from coming forward. There can be unintended consequences with the best will in the world.
It was argued that
“Abolishing corroboration would require every allegation of rape made by a believable complainer to go to trial and this would be unworkable in practice.”
Finally, it was argued that
“There is concern that abolition of corroboration would result in a hierarchy of rape complainers”.
The distress and trauma of some rape complainers can be very obvious, but others deal with the matter in a different way. I have concerns that their credibility would be put to the test and challenged.
I have quoted those arguments, as there are questions that I do not know the answers to. However, serious issues are involved.
On the role of the SCCRC, when I read the recommendation that the High Court apply a double test—in which any referral from the SCCRC would be tested on whether there had been a miscarriage or whether it was in the interests of justice to come to a conclusion on the matter—I was pleased and thought, “That’s great. That’s sorted that out.” Of course it has not sorted anything out. On referrals and consideration of appeals, Lord Carloway’s report says:
“it may be more appropriate for the Court to be able to bring matters to a conclusion in a reference by considering, in whatever order it deems appropriate in the particular case, but after a final hearing, whether: (a) there has been a miscarriage of justice in the trial process; and (b) it is also in the interests of justice that the appeal be allowed.”
In other words, the individual might have their case referred to the High Court by the SCCRC and, although the High Court might hear the appeal and agree that there might very well have been a material miscarriage of justice, it might simply refuse the appeal on the grounds that it was not in the interests of justice to allow it. When I tested this argument with Lord Carloway, he cited two examples in which that might happen. First, between the SCCRC’s report and the referral, more evidence that was not available to the commission might come to light and accordingly the appeal could be refused. Secondly, after the SCCRC referred the case, the man or woman might confess. In such cases, of course, the High Court can allow the appeal and then seek a retrial. What concerned me was that, when I pursued the matter further and asked whether those were all the categories in which the High Court might accept a material miscarriage of justice but refuse an appeal, Lord Carloway said:
“I am not trying to avoid directly answering your question, but I would not like to close the category of cases in which the interests of justice test might apply. That is part of the problem that we currently have. We are not really quite sure what the test ought to be, which is why I suggest that the High Court provide guidelines on the subject.”—[Official Report, Justice Committee, 29 November 2011; c 554.]
The suggestion, then, is that the High Court provides itself with guidelines on what might be in the interests of justice even though we, the Parliament, have appointed a Scottish Criminal Cases Review Commission to look at cases and decide whether there has been a miscarriage of justice and whether it is in the interests of justice to make a referral. It might seem like a technical issue, but it will certainly not be technical to those who have succeeded in having their appeal remitted only for the High Court to say, “It’s not in the interests of justice that we grant it.”
These are substantial issues and I say to the cabinet secretary that, although getting rid of corroboration might have seemed like a good idea, it might have unintended consequences and impact on majority and not proven verdicts, on the SCCRC’s role and on rape, trafficking and other sexual offences. This Parliament, not just the Justice Committee, and the wider Scottish constituency must take time to consider the issue seriously before we legislate at all on this matter.
15:52
I mean no disrespect but seven months in this Parliament can sometimes feel like seven years. I do not know whether I am still allowed to call myself a newbie but I certainly still feel that way. Although I have enjoyed my time thus far and—I hope—have made some kind of impact, there is no doubt that the learning curve is a steep one. Unlike many of my esteemed Justice Committee colleagues, including Christine Grahame, David McLetchie and Roderick Campbell, I do not come from a background in or around the Scottish legal system. I hope that that has not been too evident in committee meetings, although I fear that it probably has been.
As a result, every time I read a commission’s review or report on our legal system—be it Lord Gill’s review or Lord Carloway’s review—my mind boggles at some of the anomalies that have been woven into it. Legal reform is moving at an incredibly fast pace but much of this change is not before time and, whatever reforms are proposed and eventually acted on, our legal system must have at its core the human rights and civil liberties of the individual and our society. Those are not conflicting but complementary ideals.
The essence of human rights is given away by the very name: they are the rights of every single human being. As unpopular as it may be with some, that includes the rights of the suspect, who is of course innocent until proven guilty, and even the rights of the convicted and incarcerated. In fact, it is in addressing such tough scenarios and having to deal with our society’s most awful and heinous individuals that our mettle and conviction with regard to the rights of others are most tested.
Given all that, I will touch on a number of issues in connection with Lord Carloway’s very informative, thorough and weighty review. As I said, some anomalies in our legal system defy logic, and it is surprising that many of them have not been challenged previously. As several members have said, Lord Carloway recommends that children under the age of 16 should not be able to waive their right to access legal representation. To my legally untrained eye, it is simply unbelievable that, in our progressive country, although those under 16 cannot vote, get married or consent to sexual activity, they can somehow make a decision on whether they require legal assistance with something as complex as a police interrogation. To me, that is truly baffling. I hope that the Scottish Government gives that recommendation from Lord Carloway the most urgent attention and addresses what I believe is a serious inadequacy in our system.
Debates in the chamber often become vexed, heated and robust—and that is often just the one member. [Laughter.] It would be unwise to name any names. There is of course a time and a place for such exchanges, although less of it in here would probably help to get things done more quickly. I welcome the measured tone of the debate because, when discussing corroboration and other contentious matters, calm heads are required. Corroboration is not a black-and-white issue. There is no definitive science or equation to which we can turn to know for certain whether removing the requirement for corroboration will result in more charges and convictions or more miscarriages of justice, as has been touched on.
The legal profession has, whether rightly or wrongly, a reputation for being somewhat resistant to change. The fact that corroboration has been a cornerstone of our legal system, as the cabinet secretary mentioned, is not in itself a good enough reason to maintain it. Our legal system should be and is evolving to keep up with human rights standards and with modern technology, conventions and norms. Therefore, nothing in Lord Carloway’s review should be outwith the realms of serious consideration.
There is a danger that we paint the debate surrounding corroboration as being between two sides. We have already seen a bit of that. It could be painted as being between some in the legal profession who are resistant to change versus those who simply see corroboration as an obstacle to the successful conviction of rape or sexual assault cases. To demonstrate that it is not as simple as that, we need only read the comments of a number of organisations who support victims of sexual assault. It would be fair to say that they have given the prospect of the removal of corroboration a cautious welcome. Sandy Brindley, the national co-ordinator of Rape Crisis Scotland, said:
“We need to be clear that removing the requirement to corroboration does not mean there will be a flood of cases with very little evidence making it to court, or an unacceptable risk of miscarriages of justice.”
She continued:
“Rape is a crime which can be devastating to experience. Equally devastating can be the experience of being let down by the justice system you believed was there to protect you.”
Eminent Queen’s counsel and pipe smoker Donald Findlay said in relation to the removal of corroboration:
“the evidence of a single, duplicitous, lying, skilful witness would be sufficient to put a person in prison for the rest of his life.”
Of course, that could apply to two duplicitous, lying and skilful witnesses. With such logic, we should question why only two witnesses are necessary and not three, four or five. To me, the figure of two seems an arbitrary one that has been plucked from thin air. It is important that any change that the Government attempts to make on corroboration should, as James Kelly said, be grounded in the principle of quality over quantity.
There is much to consider and to give thought to on the back of Lord Carloway’s thorough review. As the cabinet secretary mentioned, many fear that the Scottish legal system would lose its unique identity were its idiosyncrasies to be removed. The truth is that identity, whether in human beings or legal systems, is always evolving. My hope is that, through the review and planned reform, our legal system evolves to become a beacon of justice with human rights enshrined at its very core.
15:59
I, too, welcome the publication of Lord Carloway’s report. It is a thorough and reasoned piece of work, and we must now give full and fair consideration to its recommendations. His approach has been not merely to do the bare minimum to comply with the European convention on human rights; instead, as he puts it, he has been at pains to
“re-establish Scotland at the forefront of the law and practice of human rights in general.”
Lord Carloway admits that he has
“challenged traditional legal thinking, looking to modernise, clarify and simplify the system as a whole wherever possible”.
I sincerely hope that the legal profession and the wider criminal justice system are open to change and reform. Let us not forget that the Cadder ruling was possible only because we did not take sufficient heed of warnings that the right to a fair trial was being compromised by our processes, relying instead on a perhaps complacent view that our justice system was the best. At the time of the Cadder ruling, some people took the view that this had tilted the justice system in favour of the suspect and that there needed therefore to be some rebalancing. I welcome Lord Carloway’s assurance that
“the Review has not sought to analyse whether there has been a tilting or not and, in any event, in whose favour the balance has wavered. It has not approached its remit with a view to re-adjusting the system in favour of any particular institution or group of persons.”
Protecting peoples’ rights and ensuring a fair trial must be at the heart of any reforms. Our justice system must be robust and fully compliant with the ECHR. Lord Carloway’s report has those goals at its core, but the changes put forward are both radical and substantial, and so will need further detailed study. Lord Carloway has certainly pushed his remit to the limit.
Understandably, the recommendation that has caused the most debate is that of abolishing the need for corroboration. Some of Lord Carloway’s own review group demurred from that finding. The Law Society of Scotland expressed grave concerns, and Maggie Scott QC, the chair of Justice Scotland, said that the removal of corroboration would risk “justice being undone”. High Court judges and sheriffs have also expressed their concern.
Corroboration is a long-established rule to prevent wrongful convictions, which bring the law into disrepute. It is one of the primary foundations of the system of Scots criminal law, and it serves as an important safeguard against miscarriages of justice. A proposal to abandon corroboration, especially without the introduction of formal guidelines to assess the quality of evidence, would certainly weaken that safeguard. Lord Carloway gave evidence to the Justice Committee on Tuesday of this week, and it was interesting to have the opportunity to explore in detail his reasoning for this particular recommendation. He explained to the committee that he
“could find no evidence that in Scotland, which is the only country in the world that has a rule on corroboration across the board, there is a lower miscarriage of justice rate than in any other country in the civilised world—and nobody suggested to us that it has.”
He went on to explain:
“We looked at the other side of the coin and asked whether corroboration is actually impeding justice, and we concluded that that is exactly what it is doing in cases in which there is a victim of crime and coincidentally there does not happen to be corroboration.”—[Official Report, Justice Committee, 29 November 2011; c 529-30.]
That is an interesting argument, and it is worthy of serious consideration. We must be careful, however. Just because corroboration has not been the gold-plated guarantee of a fair trial that we thought it was, that does not mean to say that it is worthless. It remains a good safeguard. It could also be argued that it encourages rigour in any investigation. We should be extremely cautious about any proposal to abolish it, because once the change is made, there will be no going back.
I genuinely look forward to further debate on this recommendation, but as yet I remain to be convinced that it would be the right way forward. If the Government is of a mind to pursue it, however, surely a change of this magnitude deserves further detailed scrutiny. Given the significance of the proposed change, I wonder whether the next step ought to be the establishment of a royal commission on criminal evidence. I urge the cabinet secretary seriously to consider that route. The Scottish National Party must not use its majority to pass legislation on such an important issue without giving it really detailed scrutiny.
There is much to welcome in the report, not least the added protections that are proposed for children and vulnerable adults. I support the recommendations that all children should have the right of access to a parent, carer or responsible person if detained, and that the general role of the parent, carer or responsible person should be defined in statute as consisting of the provision of any moral support, parental care and guidance to the child and promoting the child’s understanding of any communications between him or her, the police and his or her solicitor. Those would be valuable safeguards for our young people. It is also right that no child should be able to waive their right to access to a lawyer.
There is clearly a requirement for further consultation before coming to a statutory definition of the terms “vulnerable suspect” and “appropriate adult”. The safeguards proposed to limit the time for which a suspect can be held in detention before appearing before a court are also welcome. Lord Carloway has resisted recommending the setting up of Saturday courts, but recommends that the matter be kept under review. I would go further and suggest that the justice secretary should now consider the need for Saturday courts, to ensure that our system is as fair and robust as possible.
The proposals relating to police bail and investigative liberation are innovations that require further consideration.
The Scottish Liberal Democrats will carefully consider the proposals in Lord Carloway’s report and look forward to debating the matter in greater detail over the coming months. Scotland must have a robust and fair justice system that is fit for the 21st century and fully accommodates our ECHR commitments.
16:05
Like others, I thank Lord Carloway and his team for a most detailed and thoughtful report.
As many have said, this is in effect a package of measures. I agree that many of the recommendations are closely linked and that it is sometimes difficult to choose one or another without unpicking the logic that flows through the report. However, it is not impossible to suggest changes or alterations to the recommendations.
Overall, it is a balanced package of recommendations within a thoughtful review. On page 5 of the executive summary, Lord Carloway says:
“The recommendations combine a range of new elements within well-established principles and procedures. Additional safeguards for the suspect are proposed together with greater police powers. Some obstacles to effective and efficient investigation are removed, but other measures are introduced to bolster the human rights of the suspect during that investigation.”
As stated in the report, the principal focus in relation to custody is to secure compliance with obligations under article 5, which encapsulates a person’s right to liberty. The proposed general right of arrest is straightforward. It is simple for suspects to understand, unlike the present situation. It clarifies matters and is probably a sensible suggestion.
Following on from that is the recommendation that the maximum time in custody without police charge should be 12 hours, with a review after six. That is, obviously, a change from the emergency legislation that we introduced last year, but one that has merit, given the evidence that is available to Lord Carloway. However, I wonder whether that should be an absolute maximum. The cabinet secretary should consider that matter and we should all consider it in detail as part of the on-going consultation after this debate. There may well be equally strong arguments for there being a small number of exceptions to the rule. Perhaps, on application to a sheriff, an extension to the 12 hours could be permitted. That should be debated in more detail when it comes to legislation.
I appreciate that there is a recommendation on investigative bail, but I think that an extension to custody could be considered as another option, in limited circumstances.
In relation to police investigations, the recommendations with regard to children and vulnerable adult suspects are very much to be welcomed. I know that a number of members have already mentioned that. In particular, defining a child as someone under the age of 18 is appropriate, as is the recommendation that people who are under the age of 16 should not be able to waive their right to a lawyer. Many of us find it almost impossible to believe that such a situation should exist at the moment, never mind in future. That would be a sensible change.
There is, however, a debate to be had about the recommendation that vulnerable adult suspects should be treated in the same way, in effect, as 16 to 17-year-olds—which is to say that they would be able to seek advice from an adult but would be able to waive their rights. The opposing suggestion is that they should be treated the same as under-16s and should not be able to waive their right to a lawyer. The debate involves complex and complicated issues. The phrase, “vulnerable adults”, might be only two words long, but it covers a wide range of people in difficult circumstances and with different levels of understanding and ability. We should be careful about vulnerable adults waiving their right to a lawyer. It may well be that, after careful consideration and discussion, we should conclude that vulnerable adult suspects should be treated the same as those who are under 16. I would be interested in seeing further evidence and in taking part in further discussion and debate on the matter.
Many speakers have talked about corroboration. The Carloway report says:
“Radical changes to the law of evidence are recommended so that the focus is directed away from the present task of gauging the quantity of testimony towards a more fruitful analysis of its relevance and an assessment of its quality.”
That is a very important sentence in the report and many of us feel that there is strong logic behind that recommendation.
I welcome Roderick Campbell’s comments about what corroboration means—there has been a general misunderstanding. Those members who have not yet read the full detail of the Carloway report should look at the examples given on fingerprint and DNA evidence and the fact that two witnesses have to speak to such evidence. There are strong arguments for changing that.
James Kelly and one or two others talked about rape or sexual offences cases and other cases. My view is that it would be logical to remove the need for corroboration either from all cases or from none. I would be dubious, to say the least, about trying to separate cases and saying that corroboration should be required in some but not in others. That would get us into serious difficulties and I am not sure that that is a wise course of action. Corroboration, as others have said, performed a strong role in the past—it certainly helped those who were falsely accused—but that was in a world before scientific evidence, before legal aid and before the statutory protections that now exist. We live in a post-Cadder world. Some of us may regret that, some not, but we clearly have to consider the effects of that judgment.
It is almost impossible to imagine a situation in which, in a serious case, the police would not fully investigate a crime, look for as much evidence as possible and have corroboration. We are talking about removing corroboration as a requirement, not saying that it should not be used at all. It is likely that it will exist in many cases. I note Rape Crisis Scotland’s view on the suspect’s right of silence in sexual assault cases. I do not agree with that view; I agree with Lord Carloway in keeping the provision that there is no adverse inference about a suspect remaining silent. There has been much talk of the impact on sexual offence cases, but, like many members, I urge caution, first about the numbers in the research, but also about the likelihood—the expectation, even—that there will be a lot more cases and a lot more convictions. Mr McLetchie and others point to the situation in England, where the conviction rate is almost the same as it is in Scotland. That is very important.
I shall conclude with two quick questions. One is about juries, which Mr McLetchie mentioned earlier. I think that 15 is the right number, I do not think that that is the question, but there is an argument—whether it is strong enough, I do not know—for moving from 8-7 verdicts to 9-6 or even 10-5. We must at least have the argument to decide whether, if we remove corroboration, we should make some sort of balancing change in the jury. We must debate that.
My final question is on similar fact evidence. Although not part of the Carloway review, the Scottish Law Commission will report early in 2012 and I would be interested to know the cabinet secretary’s opinion whether that change, if it comes, would be incorporated in any legislation.
16:13
I will say right at the outset that I empathise with my colleague Humza Yousaf, as I am also a lay person as regards the law.
I welcome the chance to speak on the report. As we are all aware, the Cadder judgment sent a large shudder through the legal and political establishment in Scotland. There is no doubt that it sent a clear message that there must be change in a legal system that we have cherished and which has been developed over hundreds of years. I disagree with Alison McInnes’s idea of a royal commission. I have yet to see something come out of a royal commission relatively quickly and there is some urgency with this problem.
As Lord Carloway pointed out when giving evidence on Tuesday, we live in the 21st century. The legal establishment today is a highly trained professional group, unlike, he suggested, many of those who practised several hundred years ago. Unlike their predecessors, 21st century lawyers work in an interdependent legal system that must take account of international law, which includes, of course, the European convention on human rights and the United Kingdom Supreme Court.
We have heard from a number of contributors about corroboration. It has been the main issue picked up in the media over the past weeks and there is no doubt that it is the point that has raised most comment. Many see corroboration as a cornerstone of Scots law, but do we really require it in a 21st century legal system? Lord Carloway is certainly very strong in his criticism of corroboration. His now famous declaration that it is
“an archaic rule that has no place in a modern legal system”
springs to mind and should be taken on board, but our discussions over the coming weeks will determine whether we agree with his description or whether we support the views of other bodies, such as the Law Society of Scotland, which is not totally convinced. I agree with Stewart Maxwell that the use of corroboration is not likely to disappear off a cliff edge—if it is available, I am sure that it will be used.
Will the removal of corroboration lead to more cases going to court? Possibly. Will it result in more miscarriages of justice? As the cabinet secretary and Lord Carloway have pointed out, other legal systems do not seem to have a problem without corroboration. In fact, as has been mentioned, Scotland appears to be one of the few legal systems that still demands corroboration of evidence. I welcome the broad support of the Scottish Human Rights Commission and Victim Support Scotland for the proposal.
If corroboration is sent to the history books, we will have to ensure that the checks and balances that we replace it with are accepted by all and that justice is seen to be done, and I believe that the Carloway review will ensure that. Lord Carloway’s recommendations on the length of time for which a suspect can be detained are to be welcomed. The fact that there is to be a maximum detention period of 12 hours, with a review being carried out at six hours, will make the idea of holding Saturday court sessions more appealing.
James Kelly mentioned the 28-day extension that will liberate suspects from detention, if necessary. I welcome that, and I welcome the report’s identification of the problems of dealing with children and vulnerable adults, whom I suggest are the members of our society who are most likely to feel aggrieved by the system due to a lack of understanding of the new process.
I believe that Lord Carloway’s report sets out a clear path of understanding in insisting that a responsible adult or lawyer should take decisions on the vulnerable adult or child’s behalf. Like Rod Campbell, I agree with Lord Carloway that children under the age of 16 should not be able to waive their right to have access to a lawyer, and I agree with Stewart Maxwell that vulnerable adults should be dealt with in the same way.
As the cabinet secretary mentioned, Lord Carloway seeks to reform rights of appeal by creating a general right and removing archaic concepts such as bills of advocation. Christine Grahame talked about the role of the SCCRC and the High Court in the new process, which is a subject that is worthy of more consideration before we make a final decision.
In addition, I ask that when he considers the review, the cabinet secretary should also consider the availability of three verdicts in our courts, which David McLetchie mentioned when he discussed various aspects of our jury system. I believe that there may well be a case for re-examining the availability of three verdicts. In my opinion, now is an appropriate time to look at an issue that has caused so much discussion over the years.
There is much to commend in the review, but there is also much to consider on technical issues. I broadly welcome the review, and I found some of Lord Carloway’s evidence to the Justice Committee quite fascinating, particularly his description of corroboration, which was an enlightenment for some of us on the committee.
Many others have alluded to the fact that, as I said at the beginning, Lord Carloway’s report is an historic document. If we accept it and parts of our law are changed, that will be seen as a pivotal moment in our history, but before we change our law there will be much discussion, in which some will pull historical heart strings, while others will be more positive. Whatever happens, laws change and we carry on. I hope that one of the more satisfying moments will come towards the end of the session, when we tidy up the law after winning an independence referendum. I support the motion.
16:19
As others have done, I welcome the report. We take great pride in our Scottish legal system and the way in which it has operated for many years, but we all need to be big enough to admit that improvements can be made and that there are areas that we should seek to improve. Lord Carloway has identified a number of areas that are certainly ripe for improvement.
It is right to make our justice system compliant with the European convention on human rights. As others have said, article 5 on the right to liberty and article 6 on the right to a fair trial should be fundamental to everything that we do. The report makes a number of sensible suggestions for modernising operation of the Scottish criminal justice system.
I welcome the concept that an arrest will trigger a set of rights for the suspect in order to ensure that proceedings against the accused constitute a fair trial. I also support the idea that the period for which a person is under arrest before a charge is made be limited to 12 hours. However, if we are going in that direction, we need to face up to some of the practical consequences and the costs of it at a time when budgets are being cut in real terms.
The cabinet secretary referred quite rightly to the prospect of weekend courts—there would not be only weekend courts, but bank holiday courts. He suggested that they might be the exception because of other changes that will be made, but I am not so sanguine because we know just how difficult it can be to make changes. As others have said with regard to other aspects of what is suggested, there can be unintended consequences. I argue that weekend and bank holiday courts would become a matter of routine, with extra court staff, extra fiscals and all the other associated staff. What about the extra defence costs that would be involved at a time when the legal aid budget is being cut? Defence lawyers would have extra expenditure from such activities at those times.
Other members spoke in detail about issues around vulnerable adults and children. I generally welcome the proposals that have been made in that regard.
I want to concentrate, as others have done, on corroboration. I understand the anxiety about cases failing simply because of a lack of corroboration. I accept that we have to look at problems with convictions in sexual offences cases, including rape. It is a stain on our society that so many victims do not see justice done, but I am not persuaded that, even if we make changes in relation to corroboration, the benchmark should be sexual offences and rape cases and that everything should be predicated on that. Stewart Maxwell and others made the argument that the issue is broader. If there are problems in relation to such offences, we should deal with them, rather than predicate the whole criminal justice system on that very narrow aspect.
I accept some of what Lord Carloway and others have said about the need for corroboration being archaic, but I also want to sound a note of caution. I share some of the concerns that David McLetchie, Christine Grahame and others have raised. Leaving aside the principles, I say that there are cost and price implications. There will be a large increase in the number of cases that are reported by the police to the fiscal’s office, and fiscals will raise more cases. There will therefore be more pressure on courts and more delay in cases coming to court. We have to ask ourselves who will pay for that, how much it will cost and whether the money will be made available.
Lord Carloway said that the Crown should be making decisions based on the quality of evidence. I argue that that would require a medium to long-term change and that it would require a massive change of the culture of how decisions are made, given that sufficiency and quality of evidence are currently matters for the sheriff or jury.
I do not have time to go into summary-level decisions being made on the basis of police reports and statements, but the fact that there is often a huge difference between such reports and statements needs to be considered carefully.
Corroboration may be archaic and other systems operate without it, but in the way our system operates, corroboration is an important safeguard. It helps to protect against malicious or vindictive complaints and it forces a more thorough investigation by the police, which I argue is a good thing. If we move away from corroboration—other members are right to say that we should ca canny, take our time and do it properly rather than legislate in haste and repent at leisure—as Stewart Maxwell and others have said, we must look closely at the whole concept of not only the balance of majority verdicts but whether we should have majority verdicts at all or how that system would operate, because we could not leave the present system in place if we were to do away with corroboration.
We must reflect on the words of the Law Society of Scotland, which said that if we are to do away with some fundamental tenets of the system, there will need to be a
“wider and broader based review of the law of evidence and criminal procedure”
That is not to say that we should not look at the matter, but that we should take our time and do it properly.
16:26
As we have heard, Scots law evolves and the report builds on past work and will form part of that evolution. I would like to pose the question: whose interests are served by the proposals in the report?
I commend the chapter in the report on the historical background. I joined the police service in 1976 and, as my colleague Graeme Pearson will know, the situation for suspects of crime at that time was—shall we say it?—interesting. The report states that the Thomson committee recognised that
“By 1980, the situation had ... become unsatisfactory ... suspects were continuing to be effectively held in custody without charge and described somewhat euphemistically as ‘helping the police with their enquiries’.”
The report also states that the Thomson committee
“stressed that Scots law on police questioning was ... grounded ... on a conception of fairness and the need for the courts to control police activity.”
The introduction of the legislation that flowed from that committee caused consternation not only among police “customers”—as we might call them nowadays—but civil libertarians. It was seen as being open to abuse that someone could ordinarily be locked up for six hours. Ironically, those who were previously “encouraged” to assist the police with their inquiries found that the legislation brought clarity—indeed, documented clarity—about what was going on. I suggest that perhaps, in years hence, Lord Carloway’s proposals, or at least some of them, might be viewed in a similar light.
In a liberal democracy, a person’s status as a witness, suspect or accused cannot be in doubt—that is a cornerstone of the system. The proposal to have a straight arrest, the abolition of section 14 of the Criminal Procedure (Scotland) Act 1995 and the introduction of an approach in which
“the only general power to take a suspect into custody should be the power of arrest”
can bring some welcome clarity. I support Lord Carloway’s recommendations on defining those statuses.
Graeme Pearson quoted from the report’s comments on human rights, which is an important issue. Recent cases have caused some concern about the status that human rights have in the Scottish criminal justice system. They have a very high priority. Lest anyone is in any doubt of that, I will repeat what Lord Carloway said. His report states that we
“must respect, promote and protect human rights in an effective manner.”
It is good to see that in print, and it is also good to see the warning not to bury
“human rights deep within legal architecture.”
That overt declaration is welcome, because whether it is 12 minutes, 12 hours or 12 days, if we deprive someone of their liberty, there must be checks and balances.
The clear and unequivocal statement that
“a suspect should not be detained unless it is necessary and proportionate”
and a similar statement in relation to their detention in custody provide further reassurance.
As we heard from the cabinet secretary, there are checks and balances along the way, as there is a review by an inspector.
The additional powers to be granted to the police on the liberation of a suspect must also be welcome. In our future scrutiny, we should also look at voluntary attendance at police stations.
Hugh Henry touched on the subject of weekend courts in reference to article 5 and the requirement for a suspect to appear promptly. The report refers to the historical situation that anyone who was arrested prior to the conclusion of the court day would expect to appear in court that day, but warns that despite all the advances in transportation and communications, that is not happening. I welcome Lord Carloway’s comments about minimising detention of people in custody.
Corroboration has been much discussed in the debate. I have had informal discussions with police representatives who are, some people may be surprised to hear, very content with the law of corroboration. However, I think that that very much reflects the fact that people are often comfortable with the status quo and are resistant to change. Certainly, if there were to be change, there would have to be significant training and a strategy to roll out such training to ensure public confidence.
We should not underestimate the preventative aspect of the removal of corroboration. If that deterred even a handful of folk from doing something that they might otherwise do and so end up in court, that is to be welcomed. However, as with double jeopardy, we must ensure that the public have a clear understanding of the issue. Part of the police concern is that removal of corroboration would mean that the police would be more vulnerable to complaints against them.
A key test for me is public confidence. It is important that the public have confidence in the integrity of our system and that they are aware of its limitations and the checks and balances that go with it. I asked Lord Carloway about the issue of public interest, which is clearly not a static thing—like our law, it evolves. We need to address the issue of unreported crime, to which James Kelly and others referred. We need to encourage people to come forward and report crime.
As we have heard, further reassurance has been given on the human rights of children and vulnerable adults. There is also the issue of continuity of evidence. In that regard, the practice of two police officers having to go to pick up an item because of corroboration should certainly be dispensed with.
Whose interests are being served by all this? Any system of justice must provide fairness both to the victim and to the accused. People should be reassured that there will be no alteration—Mr McLetchie alluded to this—in the degree of proof that will be required to secure a conviction that is beyond all reasonable doubt. That remains.
There is much discussion to be had yet on the matter, but I for one have enjoyed the debate.
Many thanks. We have a little time in hand, which I will endeavour to divide equally between the three closing speakers. Mr McLetchie, you have up to eight minutes.
16:32
I know that you cannot get enough of me, Deputy Presiding Officer, but this is stretching my abilities beyond my normally shortened contributions.
You could take interventions.
This has been an interesting debate, and I welcome the positive response to the report and its recommendations, as well as the cautionary notes that have been sounded by contributors to the debate from across the chamber.
I note that the ultimate intention of the review, as stated in the report, has been to re-establish Scotland
“at the forefront of the law and practice of human rights in general.”
That is a noble aspiration, but some may take issue with the implicit assumption in that statement that we were ever at the forefront in the first place. Our recent record would suggest that we were not.
Humza Yousaf, in a very fine and thoughtful speech, referred to his astonishment that under our law children under the age of 16 could waive the right to a lawyer. How could that have been woven into our system of laws and stood as part of the body of the law for such a lengthy period? There may be other aspects that are worthy of such critical examination. Noble though the report’s aspiration may be, getting ourselves up to scratch in the first instance might be a more achievable and worthy ambition.
The jurisprudence in relation to law and ECHR is constantly evolving. Many of us believe that the ECHR, in the context of criminal law, places far too much emphasis on the rights of the accused and the perpetrators of crime and pays insufficient attention to the interests of victims and the general public interest in maintenance of public order and the peaceful enjoyment of one’s life and property, which are also convention-protected human rights. That balance might be redressed a little as judgments are handed down and the law evolves in the years to come.
Equally, in that context and with that thought in mind, I was struck by Lord Carloway’s statement that miscarriages of justice do not just happen to persons who are wrongly convicted of crimes but to victims for whom the justice system fails to secure the conviction of the persons who perpetrated the crimes. They are as much the victims of miscarriages of justice.
I was impressed with the report’s recommendations on custody and detention that would introduce additional safeguards for the suspect on the one hand, but be combined with greater police powers and the removal of obstacles to the efficient and effective investigation of crime on the other. That is exactly the kind of balance that needs to be struck. I was pleased to note the contributions from Graeme Pearson and John Finnie and their welcome—as former senior police officers—for the recommendations and the clarification of the rules on arrest, detention, custody and questioning from their perspective and on the basis of their experience. They seem to be recommendations with which we can proceed.
The Law Society of Scotland’s comments on the rules of evidence should be taken to heart. In my opening speech, I said that I do not regard the fact that the rule of corroboration has existed in our legal system since time immemorial as being, in itself, justification for its continuation. However, the Law Society has fairly noted that, in other jurisdictions, such as in England and Wales, the lack of a requirement for corroboration is tempered by statutory safeguards, such as those relating to the use of confessions. That leads the Law Society to conclude that any change in Scots law on corroboration should be part of a full-scale review of Scottish criminal procedure and should not be contemplated in isolation.
In her speech, Christine Grahame warned of the danger of unintended consequences arising from changes in the law that proceed too hastily and are not considered properly. Stewart Maxwell asked whether in relation to juries, for example, we should seek a weighted majority for a finding of guilt, rather than just a simple majority, as we have at present. Others also made that comment—Hugh Henry, in particular.
The issue that is going to have to be addressed is how full scale such a full-scale review will have to be. To what extent do we require a comprehensive package of reforms for the conduct of trials and the rules for and admissibility of evidence, as opposed to what the Law Society might consider at first glance to be isolated changes? The cabinet secretary is going to have to address that. I hope to have the opportunity in Parliament’s Justice Committee to explore those questions in greater depth with a range of interested parties. At the end of the process and having assessed the contributions from our witnesses, our report and contributions from others, the cabinet secretary is going to have to assess what will be the appropriate scope and scale of legislative change in the light of the report and the submissions that he receives. As we have heard from the contributions to this afternoon’s debate, the matter is exceedingly complex; I wish him well in arriving at a Solomon-like judgment.
As a starting point, the debate has been excellent and I conclude, as other members have done, by thanking Lord Carloway for his thorough, well-researched and well-written report. I encourage others to contribute to our deliberations on these important matters.
I call James Kelly. Mr Kelly, you have nine to 10 minutes.
16:39
Thank you, Presiding Officer. The number of minutes is rising all the time.
It has been an interesting debate. Humza Yousaf said that, having spent seven months as an MSP, he feels almost as if seven years have gone by. I hope that he does not feel that he has aged seven years as a result of spending seven months on the Parliament’s Justice Committee. He pinpointed that Lord Carloway’s report touches on many legal and technical issues. It is very thorough, and it therefore requires careful consideration by the Parliament. Although we all welcome the report and there is clearly a consensus on the need for practical change, the debate brought out some differences between MSPs, and in some cases differences between MSPs from the same party. That shows the depth of the issues that are addressed in the report and the challenge that is ahead for the Cabinet Secretary for Justice and the Government in taking it forward.
Much of the debate has focused on corroboration. Some members tried to downplay the statistics in Lord Carloway’s report and the statistics that I quoted earlier on rape convictions. I would counter that, to an extent. David McLetchie accurately pointed out that the total number of cases that were considered was more than 5,000 and that the 458 cases that Lord Carloway’s team examined were but a small portion of that, but even if we take that statistic, about 5 per cent of cases would have a reasonable chance of a conviction, and that would involve hundreds of cases. That is not to be downplayed. I accept that the number of rape convictions in England and Wales is not much higher, but it is higher.
My intervention also gives me an opportunity to say that it was remiss of me not to have declared earlier an interest as a board member of Rape Crisis Scotland.
We would all agree that, throughout the world, conviction rates for rape are very low. That is a phenomenon, and it is a problem that we need to grasp. Whether it is due to the requirement for corroboration or otherwise, we have a lot of problems in that regard. I agree with what Mr McLetchie said; he was right on the money. However, it is significant that the number of people who come forward to report is so low, even before we get to the stage of charges and then conviction. Does Mr Kelly agree that we start from very low point??
I acknowledge that there are real issues, and I acknowledge Gil Paterson’s record of work in the area. It is important not to be complacent. Lord Carloway’s report and recommendations give us an opportunity to move forward and to deliver justice not only for victims of rape but for victims of other serious crimes.
The key is to ensure that justice is seen to be done. Many good arguments have been made for and against retention of the requirement for corroboration. Those who argue for it note that we have had it for a long time, that it acts as a safeguard, that it ensures a fair trial, and that it acts against a situation in which skilful witnesses misrepresent evidence. Those are all powerful points. Against that view, Lord Carloway makes the point that it is an archaic system, and that Scotland stands alone in requiring corroboration. If we abolish the requirement for corroboration and more cases are brought to court, more victims may see justice done.
I do not want to focus only on rape and sexual offences, but we must deal with that particular issue. It might be counterproductive to abolish the corroboration requirement, because the credibility of a witness might be tackled more robustly by the defending counsel. A higher rateable value might be placed on a witness who looks distraught in the witness box, as opposed to someone who might appear to be composed but is, in fact, traumatised. I am concerned that there may be unintended consequences if we wish to succeed in such prosecutions by not requiring corroboration. Indeed, it might make things worse. Will James Kelly give that some consideration?
I assure Christine Grahame that I will consider seriously the issues that she has raised, as well as the point that Gil Paterson made. However, I point out that Scotland stands alone in requiring corroboration. The issues that Christine Grahame highlights are surely live in other jurisdictions, which seem to be able to overcome them, but I acknowledge that they should be considered.
Will James Kelly reflect on Lord Carloway’s example of a victim of a serious sexual assault who goes next door and tells the neighbour—a credible witness—what happened, only to find that that evidence cannot be used as corroboration because the victim cannot corroborate their own evidence. Under the proposed system, they would be able to do so, which would benefit victims of such assaults.
The key point that I took from Lord Carloway’s comments is that it must be about the quality of evidence. Ultimately, we must ensure that justice is done. We need to have adequate protection for those who are accused and we must have a system that delivers fair trials. If a conviction is to be secured, it must be beyond reasonable doubt.
Taking all those issues into consideration, the Government has a major job on its hands. Hugh Henry and Alison McInnes spoke about the costs and Saturday courts. If we abolish corroboration there will be more cases coming through, and there will clearly be a build up. The cabinet secretary pointed to areas in which there may be potential savings, but it stands to reason that there will also be costs.
That leads us to conclude that we must not rush to implement the changes in the report; David McLetchie and Christine Grahame are right to urge caution. These are major proposals with major implications for Scots law, so it is important that we get things right. The logical thing to do in such circumstances would be to prioritise the 77 recommendations and progress an initial package.
The difficulty with the criminal justice system is that so many aspects of it link to others. Members have, in discussing the requirement for corroboration, linked it to a potential review of the jury system. There is a lot to deal with, and it will be difficult to prioritise the different aspects. That is a major issue for the Government and the cabinet secretary to take into account.
To sum up, it has been an interesting debate with many useful contributions. I am sure that the Official Report will be very helpful in allowing the Government to look back and reflect on the key issues that must be taken forward in any consultation.
16:49
I start by thanking members for what has been a remarkably good debate. In a humorous aside, Humza Yousaf made reference to other debates sometimes having more heat than light and to what happens in individual speeches—thankfully without naming any members. Each contribution today has been remarkably thoughtful. People have taken time to consider matters.
We have seen both divides and agreements with strange alliances—Christine Grahame supporting David McLetchie, and Hugh Henry agreeing with Stewart Maxwell. That is appropriate because what we are discussing is fundamental. In the final speech in the open debate, John Finnie used the phrase “public confidence”. Whatever decisions we come to, we must ensure that there is public confidence. As we are in this privileged position, it is important that we should debate the issues.
There have been a remarkable number of outstanding contributions, which have given me and the department food for thought. There are deep challenges. David McLetchie referred to the wisdom of Solomon; these are matters that will have to be thought through, as there are a remarkable number of points on which we have not come to a final conclusion. It may be that members divide not on party lines but on how they see matters. That will be to the credit of the Parliament and will help us to reach the right decisions.
I thank Lord Carloway, who has done a remarkably good piece of work in a short but appropriate period of time. He has looked at the matters from the first point of arrest through to the final appeal, which is as it should be. He has looked at matters across the board and he has made it clear that it is open to us to accept some recommendations and decline others. As a Government, we take the view that the report provides a template that we can build on. Equally, it is something that we will discuss and debate as we have done today.
I will comment first on the timescale, because it has been raised by many members across the chamber—Alison McInnes in particular. Let me say that I am not minded to have a royal commission. As Mr McLetchie noted, there is on-going work to ensure that we are ECHR proof. We are reviewing our law and looking at that matter.
I should clarify that I did not intend to suggest that we move the whole review into a royal commission. There are clearly many issues raised in the review that we have to put right to be compliant with the ECHR; I was talking purely about the issue of corroboration, which Lord Carloway took on board perhaps beyond what we expected. Many members have said that we need to look at the interaction of the requirement for corroboration with other aspects of criminal evidence and, in talking about having a royal commission, I was referring to that one issue.
I thank Alison McInnes for that clarification. Notwithstanding it and the idea that a commission could be restricted to looking at corroboration, I believe that we should deal with the issues more expeditiously. However, I am conscious of the old phrase “Legislate at haste and repent at leisure”. That point has been made by Christine Grahame, James Kelly, David McLetchie, Alison McInnes and others, so it is appropriate that we take our time to get things right. Lord Carloway has carried out an investigation and he has consulted, but there are clearly matters that cause considerable concern—not least corroboration.
We intend to go out to further consultation, probably in the spring, to ensure that we take on board all the views not simply on the fundamental aspects mentioned by Lord Carloway but on other matters that have been raised that are tangential, incidental or, indeed, fundamental to those raised by Lord Carloway. Those, too, can be brought in and looked at.
On the issues that are tangential and fundamental—I cannot remember the third one—will the cabinet secretary give us an indication of what they would be?
We have already heard comments on juries and the not proven verdict. We take the view that we want to consult on Lord Carloway’s report; it will be for others to ensure that they feed in what they think should be looked at as well. We will not be exclusive.
It would be wrong of me to set out now a table of what matters will be in the consultation, as there are probably others that have not yet been commented on. I assure the member that, as a Government, we will look at the issue on an open basis. We will consult on Lord Carloway’s report but, equally, we have to ensure that matters that relate to it and which people raise with us will be dealt with. As I said, we will be open on that.
One major issue that has been touched on today is the requirement for corroboration. It was mentioned by almost every member who spoke. I agreed with the terms used by David McLetchie. It is an important aspect of our system, it has made our system distinct and it is something that is referred to.
Equally, it is important that we should not put corroboration on a pedestal and that we should be prepared to recognise that it has changed. Even in the lifetime of the Parliament there have been changes in case law and there have been changes to legal knowledge even in my brief tenure. Corroboration is not what it was. Lord Carloway mentioned that it came from Romano-canonical law—the only time that I have heard that term before was many decades ago when I studied Scots law and other legal systems.
Corroboration came in at a time when someone could hang for the commission of an offence. As Mr Pearson commented, the world has moved on. First, we have ameliorated corroboration, for example in relation to the Moorov doctrine and special knowledge. There is an array of legal technicalities in which corroboration moves away from the mistaken belief to which Roderick Campbell referred that there have to be two eye-witnesses.
As Graeme Pearson said, things have changed significantly. We have a better educated judiciary, DNA and forensic science. Legal advice and lawyers are available to people. However, despite the changes in the law and the system, I still think that we have to look at the issue extremely cautiously, as Mr McLetchie, Mr Kelly and Christine Grahame said.
I welcome Lord Carloway’s report. I am broadly sympathetic to it, but we have to drill down and see where its recommendations take us.
As Roderick Campbell and John Finnie mentioned, the time has come to end the fairly arbitrary differentiation between arrest and detention. This is an opportunity for the first arrest to be made on the basis of reasonable suspicion—not on a whim or fancy—with the checks and balances that have been brought in by Cadder and Salduz.
Humza Yousaf raised the issue of how we deal with vulnerable adults and youngsters. The issue was also mentioned in closing speeches. It is appropriate that Lord Carloway should ensure that we specify for that. There is something amiss there, and we have to ensure that those who are vulnerable are protected.
Weekend courts were raised. That is work in progress. The making justice work programme is considering the issue. It is perhaps in alliance with Lord Carloway’s recommendations, but we are looking at it separately.
The Scottish Law Commission will report in March on evidence of similar fact. It is the third strand of the fallout from the World’s End case that we have been dealing with. We have introduced the Crown right of appeal and double jeopardy and we have undertaken to look at evidence of similar fact. I have been sympathetic to arguments on the issue in the past, but I will wait to see what the Law Commission recommends.
The ACPOS manual addresses safety, and a working group is looking at the issue, so it is being dealt with.
Other issues were raised—I dealt with some of those in response to Christine Grahame’s intervention—such as whether there should be a move toward a minimum number of jurors being required for a verdict. We are happy for that to be discussed, along with Lord Carloway’s review.
The same applies to the not proven verdict, which was raised by Colin Keir. The issue has been raised outwith the chamber, and it would have been surprising if it was not mentioned here. Lord Carloway has made it clear that he does not think that the issue is necessarily fundamental to his position, although, as John Finnie mentioned, it does raise the issue of public confidence. We will be more than happy to look at it as part of the package.
I welcome the debate and I am grateful to Lord Carloway for his recommendations, on which we will pause and reflect. We cannot go forward lightly, which is why I am grateful that Parliament has treated the recommendations in such a dignified manner today. The debate has dealt with issues that unite people across political parties and divide people within them. We have to change, but we have to get right the pace of that change. I am happy to discuss that with Opposition spokespeople as we go along.
It seems to me that it would be appropriate to consult in the springtime. That should give us months to reflect. There is no immediate space in the legislative timetable, so we would not be looking at introducing legislation until this time next year or the early part of 2013 at the very earliest.
I welcome the contributions that have been made and am grateful for the support that all members have given in dealing with a difficult matter that is fundamental to the rights of not just victims of accusations of crimes but victims of crimes.