Meeting of the Parliament

Meeting date: Tuesday, September 25, 2012

Official Report 925KB pdf

---

Reforming Scots Criminal Law and Practice (Public Consultation)

The next item of business is a debate on motion S4M-04234, in the name of Kenny MacAskill, on the public consultation on the Carloway report, “Reforming Scots Criminal Law and Practice”. We can be generous if members take interventions.

14:20

Today’s debate is a timely opportunity to engage members in the further development of the historic reforms proposed by Lord Carloway in his report on criminal law and practice. I again thank Lord Carloway for his report and the huge amount of work that lies behind it, and congratulate him on his recent appointment as Lord Justice Clerk. I am sure that the whole chamber will share those sentiments.

The debate is timely because the First Minister announced in the programme for government a criminal justice bill that will enact Lord Carloway’s proposals and because the Scottish Government is currently running a consultation on how to implement those proposals. The debate is an opportunity for members to contribute to that process.

Members will recall the decision of the United Kingdom Supreme Court in HMA v Cadder and the emergency legislation that had to follow. I am grateful for the forbearance of all those who participated in that process. Although the emergency legislation has proven effective as an immediate response, there was and is a clear need to reappraise our justice system for the future. I believe that Lord Carloway has provided us with a clear and coherent package of reform from first arrest and detention through to final appeal. His recommendations are clearly reasoned, carefully constructed and closely interconnected. They provide us with a landmark opportunity to redesign our system around modern, fundamental concepts of human rights, while preserving the integrity of a system that we are rightly proud of.

The Scottish Government consultation paper on the Carloway report reflects on comments and developments since last year’s publication of the Carloway recommendations. It covers debate in this chamber, before the Justice Committee and beyond. I express my appreciation for the committee’s work and my thanks to all those who gave evidence. Although I have made clear my view that Lord Carloway’s recommendations are a comprehensive package from first arrest to final appeal, there remain many issues to discuss on how they can be made a reality. As always with legislative matters, the devil is in the detail.

I welcome the debate. Can the cabinet secretary assure us that his comments about the process so far do not imply that this is the last that we will hear of these matters before a bill is produced? In other words, once the consultation is complete and we know the views of all parties, will Parliament have an opportunity to consider those responses?

Lewis Macdonald makes a fair point. The consultation is not yet concluded, although a clear steer has been given. Discussions will have to take place, and I have no doubt that I will make an appearance before the Justice Committee. I give an assurance that we will take time to reflect on the consultation responses. I will be more than happy to engage with the member, with other justice spokesmen and, indeed, anyone else about our direction of travel.

I give Lewis Macdonald a clear assurance that we intend to provide as much opportunity as possible to reach as much consensus as it is possible to do. It might not be entirely possible to reach a consensus, because strong views are held on either side on issues such as corroboration. Ultimately, people might have to come down on one side or another, as I will come on to discuss. Equally, we should take the opportunity to debate, engage and focus, so that when we ultimately proceed we will have brought on board as many people and as good a majority as possible.

It is clear from the debate and the committee sessions that many of Lord Carloway’s recommendations have been widely welcomed and accepted. There has of course been debate on and challenge to some of the recommendations—for example, on the role of the Scottish Criminal Cases Review Commission—but most of the focus has centred squarely on corroboration, to which I shall return shortly. It is not my intention to revisit the debate on Cadder, or even the general findings of Lord Carloway’s report. Instead, I will focus on how Lord Carloway’s recommendations are to be taken forward. That is the approach of the Government’s consultation and I will focus on some of the key questions in the consultation paper.

The consultation paper accepts the recommendations for sweeping change to the system for arrest and detention of suspects. Allowing the police to arrest suspects on reasonable suspicion should provide a transparent and easily understood process. Those changes will balance the needs of the police in their duty to investigate crime with recognition of the rights of individuals. The consultation seeks views on whether Lord Carloway’s proposed maximum periods of 12 hours for detention and 28 days for investigative liberation are sufficient and whether there should be extensions in certain exceptional circumstances. The consultation also asks for views on the practicalities of investigative liberation and what operational challenges it presents. I look forward to debate on those issues.

On the length of time that suspects spend in police custody, Lord Carloway observed that if suspects are held for longer than 36 hours under the new regime, weekend courts should be considered. The Government fully accepts that suspects should not be held unnecessarily or disproportionately in police custody pending appearance at court, and the consultation seeks views on the best way to bring suspects before court as quickly as possible. Advances in videolink technology may well be part of the solution by helping to offset some of the operational and financial challenges involved. We all know that technology can help make savings, but it comes at a cost.

It is fair to say that our consultation on Lord Carloway’s recommendations will not take place in isolation. We judge that the Government’s making justice work programme is ensuring that work is co-ordinated among police, the Scottish Legal Aid Board, prisons and courts so that all aspects are dealt with. Some members may have already had the opportunity to see that prisoners in full committal at Barlinnie or elsewhere can be seen by a sheriff sitting in Glasgow sheriff court. Some aspects such as that will be able to be replicated and used across Scotland, certainly with regard to Lord Carloway’s recommendations.

On suspects accessing legal advice, the Government agrees in principle with the recommendation that legal advice for suspects should be provided at the point of detention. There are legal aid implications to that and the consultation seeks views on how the recommendation can be delivered in a way that is effective and affordable because, as with technology, legal advice comes at a cost. Work is under way and the Scottish Legal Aid Board is engaging with the Law Society of Scotland and other representatives.

Lord Carloway restated the requirement for suspects to obtain legal advice from a solicitor before and during questioning. He accepted that suspects may decline the right to a lawyer, but recommended special protections for child and vulnerable adult suspects. The consultation places that within the general context of avoiding unnecessarily drawing children who are accused of minor offences into formal criminal justice processes, while ensuring a strong system of protection for those who are suspected of serious offences. I urge members who have an interest in the issue to participate in the consultation. Such matters are subject to engagement, and agencies and organisations such as Families Outside seek to ensure that we get the balance right.

The consultation paper highlights changes to criminal investigations and prosecutions that would have a substantial effect on the legal aid budget. We must continue to ensure that people have access to legal representation when they need it and that solicitors are fairly remunerated. At the same time, we must consider the potential implications for legal aid expenditure in Scotland at a time of reduced budgets. As I said, the Scottish Legal Aid Board seeks to engage constructively with the Law Society on the matter. I thank the Law Society for its tholing—if I can put it that way—and constructive approach to our recent discussions on matters that pre and post-date the Cadder decision.

The Government cherishes the independent role of the Scottish Criminal Cases Review Commission, which is a critical part of the checks and balances in justice. There was considerable debate in the Justice Committee about the merits and appropriate powers of the High Court when it considers cases that the commission refers. With regard to the finality and certainty of recommendations, we will listen carefully to the views that are offered in the consultation.

It is perhaps understandable that Lord Carloway’s recommendations on corroboration have generated the most interest and sparked the most comment, although they are part of a package that deals with matters from arrest to the outcome of the ultimate appeal, as I said. Lord Carloway explained that the rationale for the rule stems from another age, that its usage has become subject to overly complex rules and that it can bar prosecutions that would seem entirely appropriate in any other legal system.

Lord Carloway made a compelling case. As a Scots lawyer—once, but no longer—I share the historic pride in our system that inspires many people to argue for the requirement for corroboration to remain. However, I can see that there are times when the tide of history becomes too strong to resist. Lord Carloway could find no other western criminal justice system that has a general requirement for corroboration. We should reflect on the fact that all his research and endeavours turned up no other western democracy that appears to have such a rule. I have a good conceit of the justice system in Scotland, but I also admire many other western democracies, which I think get the balance right.

Does the cabinet secretary concede that when we compare systems we are not always comparing like with like? For example, other systems might not have majority or not proven verdicts.

Christine Grahame makes a fair and valid point. Some criminal justice systems are adversarial, some are inquisitorial and some are a hybrid. I will come on to what she said, because many people think that there are requirements that will be necessary if corroboration is dispensed with, as Lord Carloway suggested.

Lord Carloway found that the rule focuses artificially on quantity rather than quality of evidence. He found that the law has developed into a tangle of complicated rules, which are applied differently from court to court, and he found an alarming number of cases that might reasonably have gone to trial if there had been a different test for sufficiency of evidence.

I appreciate that abolition causes concern to many people. Indeed, it would be worrying if there were no debate around changing something that is so synonymous with Scots law. However, I note that much of the concern has, rightly, focused on whether abolition should proceed without any other changes being made—Christine Grahame correctly and understandably alluded to the matter.

First and foremost among the views that have been expressed is the view that it would be unfair to remain with a simple majority for jury decisions. There are also wider points about how judges direct juries and how they decide that a case is not strong enough to go before a jury in a specific case. I have noted with interest Michael McMahon’s proposed member’s bill, which seeks to reform our three-verdict system.

I welcome debate and responses to the consultation on all those issues, but I am not minded to revisit Lord Carloway’s recommendation on corroboration or to refer the issue to a royal commission for further study. The requirement has been appraised and found wanting by the second most senior judge in our country, and it strikes me that conducting a further review would simply extend the current uncertainty over our system for years to come. We have had to address aspects of that uncertainty by emergency legislation. However, I am fully committed to listening and reflecting on all consultation responses that look at how reform can best be achieved and, if necessary, to bringing forward proposals for additional protections that may be needed to create a fair and balanced system. Therefore, I call on all interested parties—those who will speak today or those who will respond to the consultation—to tell me about what, if any, additional safeguards they think need to be put in place.

I am aware of recent criticisms of the Parliament’s legislative record, which have even gone so far as to draw unfavourable comparisons with Westminster’s reforms of Scots law. As members would expect, I utterly repudiate those claims, but they lead me to stress the importance of engagement. If stakeholders want a different course of action, they should make the case for it and show us the evidence that supports it. The consultation is the time for engagement, as I said earlier in response to a question from Mr Macdonald.

The Carloway report is but one part of a coherent modernisation package that is under way, which will bring together the Carloway report and Lord Gill’s recommendations for reform of the civil courts, Sheriff Principal Bowen’s proposals for sheriff and jury reform, and on-going work to improve the efficiency and effectiveness of the summary courts. Taken together, those things will give us the right legal framework, court structures and procedures for many years to come.

We need to re-evaluate our criminal justice system following Cadder and show deference and respect to Lord Carloway for his work, as I have said. Issues that are raised relating to corroboration will have to be further considered, but we should not hesitate and lose a historic opportunity to review and reshape our justice system for the 21st century.

I move,

That the Parliament welcomes the Scottish Government consultation paper setting out its approach to implementing Lord Carloway’s historic recommendations to reform the investigation and prosecution of crime in Scotland; notes the Scottish Government’s inclusion in Working for Scotland: The Government’s Programme for Scotland 2012-13 of a Criminal Justice Bill to deliver these historic reforms as a package; highlights the importance of delivering these measures in a coherent way alongside wider reforms to courts and tribunals planned through the Making Justice Work programme, and encourages all interested persons to make a response to the consultation.

14:37

The Government’s motion proposes that the Parliament

“highlights the importance of delivering these measures in a coherent way alongside wider reforms to courts and tribunals”.

We agree with the principle that underlies that phrase: that law reform cannot be considered in isolation from the practical context in which the legal system operates. That is why we lodged an amendment that makes even more explicit the link between the consultation on Lord Carloway’s proposals and the consultation on the future of the court service, which was flagged up by Iain Gray’s topical question earlier.

We could hardly be in more topical territory. The consultation on the Carloway report is due to close in 10 days’ time, on 5 October, and the Government’s announcement of plans for a criminal justice bill was made—to Parliament at least—in the legislative programme on 5 September. Only last Wednesday, the Government’s budget confirmed that funding for the court service is to be cut by 10 per cent in cash terms and 14 per cent in real terms over the next two years, and the consultation on court closures began only last Friday. A lot is happening, but the question is whether the Government’s enthusiasm for changes to the prosecution of crime, its cuts to the courts budget, and the proposals for court closures add up to a “coherent” approach, which its motion calls for. The answer appears to be that they do not.

Lord Carloway’s review made a compelling case for change, not least on the central issue of the need for corroboration. However, by any measure, the implementation of such recommendations is bound to increase rather than reduce the burden of work on Scotland’s courts, not to mention the implications of the parallel reviews by Bowen on sheriff and jury trials and Lord Gill on civil justice.

On the requirement for corroboration, if only one police officer, rather than two, is required to turn up at court, surely there will be a saving.

I absolutely accept John Finnie’s point. There are clear benefits in the proposals. My point is about the consequence of the removal of the requirement for corroboration on the sheer volume of cases that are likely to be placed before our courts and considered by them.

On the impact of removing the need for corroboration, which John Finnie raised, the evidence is there in annex A to the Carloway report. The Crown Office examined the records of 600 serious criminal cases and sexual offence cases in 2010 that were dropped either after an initial court appearance or before they came to court, and it found that, in nearly 60 per cent in one category and two thirds in the other, there would have been a reasonable prospect of conviction if there had been no requirement for corroboration. Had those 350 or 400 additional cases been taken forward, they would have represented a significant extra case load for Scotland’s procurators fiscal to take to Scotland’s courts.

We should bear it in mind that, although I have been talking about serious and sexual offences, the proposal to remove the need for corroboration would apply to all crimes and not just to those categories. The number of extra cases would therefore be even higher than the numbers that are identified in the Carloway report and the Government’s consultation paper.

Does the member not accept Lord Carloway’s comments on cases in which there are real doubts about whether justice has been done? Whether there would ultimately be convictions is a matter for the courts, but we should do everything that we can to ensure that justice is done.

Lord Carloway suggests that, in the main, we should proceed by way of seeking corroboration for convictions but, as John Finnie correctly suggested, considerable savings will be made and money freed up if, instead of two officers routinely going to London, Edinburgh or wherever to uplift a label and then requiring to speak to it in court, justice is dealt with at higher levels. Frankly, we have to question why two officers are required to speak to a label.

I think that I accept every point that the cabinet secretary made in that intervention. My purpose is not to say that there is no case for removing the requirement for corroboration or that we should not do so. I completely agree with the cabinet secretary that justice should be done in as many cases as possible. My argument is not that we should therefore have no change in the law of corroboration but that, if there is a change and it produces more work for the courts and the Procurator Fiscal Service, that should be reflected in the support that it receives from the Government instead of the trend going in the opposite direction.

Since the research was done on the serious cases in 2010, the Procurator Fiscal Service has seen a 4 per cent increase in the number of crimes that were reported for action in a single year and an 8 per cent rise in the number of serious crimes that were reported on petition in the same period, but according to the Procurator Fiscal Society section of the First Division Association, there has been an 8 per cent reduction in the number of in-house legal staff over two years.

The Lord Advocate has suggested that removal of the need for corroboration could have retrospective effect, not in cases that failed, but where no proceedings were taken because there appeared to be insufficient evidence to proceed. Again, that would clearly be welcome if the outcome was that justice was done, but if there are many such cases, there will be a particularly heavy demand on the time of procurators fiscal and the courts in the next couple of years, which is precisely when Government budget cuts are likely to have the greatest effect.

The Law Society of Scotland and others have argued that changes on the scale proposed by Carloway should proceed only in the context of a full-scale review of Scottish criminal procedure. We do not favour endless delay, but it would be helpful if the Government’s budget decisions supported the law reform approach that it wants to endorse instead of undermining it by taking resources away from front-line service delivery at the very time when they are most needed.

The Law Society is not alone in raising concerns about what it sees as undue haste and urging caution in how we proceed. Scottish Women’s Aid, for example, supports the proposal to remove the requirement for corroboration, but it has raised concerns about the proposals for police bail. It is worried that liberation from custody could allow an accused person to tamper with evidence or intimidate witnesses; indeed, in domestic violence cases, the victim might be under direct threat. From its experience, it is concerned about how a victim would be advised of a suspect’s liberation, how a suspect’s compliance with conditions would be monitored and how the courts would deal with breaches. Although such matters are not arguments against proceeding, they are not trivial and suggest that certain questions have not been answered for those who need those answers the most.

In that sense, today’s debate might be a little premature. Members can raise issues and ministers respond but as the consultation process has not yet ended such a process is bound to be incomplete. It would clearly be helpful to have a debate when the Government responds to the consultation process and I am glad that Mr MacAskill has agreed today that that should happen.

Of course, the key question of corroboration raises policy and resource issues. For instance, the Scottish Law Commission has argued that as corroboration and majority verdicts are two sides of the same coin there should be no change to one without change to the other. It is argued that if the requirement for corroboration were to be removed without reform of majority verdicts, an accused person could be convicted on the evidence of a single witness and a prosecution case that convinces only eight out of 15 jurors.

This might be a completely ridiculous question, but I want an answer to it. Given that in Scots law different kinds of cases require different standards of proof, is there any reason why the crime—or an accusation—of rape should not be in a category of its own and not need corroborative evidence while everything else remains?

I have no doubt that members and ministers will want to reflect on that interesting proposition. As a non-lawyer, I feel that the lack of the need for corroboration would in principle apply to every offence or to none; however, I am sure that others will reflect on the matter in this afternoon’s debate.

Linked with the majority verdict question is the not proven issue and the Scottish Law Commission has expressed concern about the retention of that verdict if there is no longer any need for corroboration. It argues, again, that if the only reason that a jury does not convict is the absence of corroboration it will, one would presume, straightforwardly find the accused person guilty; equally, if the evidence is still not convincing, even in the absence of the need for corroboration, it should straightforwardly find the accused not guilty. Whether or not one agrees with the Scottish Law Commission, many people clearly take the view that removing the need for corroboration must be followed by some indication of the safeguards that will take its place. So far ministers have chosen not to go down that route although, having listened carefully to the cabinet secretary’s comments on the matter, I was pleased that it sounded as if he had not closed the door on action in these areas.

The Government’s consultation paper described the not proven verdict as one that offers the jury

“a verdict which accepts there is evidence against the accused but not enough to convict”;

however, surely in every case that is brought there is evidence against the accused. In the light of the proposed changes the argument for a third verdict must be that much the weaker.

Earlier this month, in the debate on the legislative programme, I called on ministers to engage with Parliament in the evidence to be taken on Michael McMahon’s member’s bill on these issues, and I repeat that call this afternoon. It is important to get the balance right and pay heed to all the evidence.

We should recognise that the Government’s proposed bill is not just about the issue of corroboration or police bail. As the cabinet secretary has made clear, changes are proposed to a wide range of procedure and practice. For example, important proposals have been made on the legal rights of vulnerable adults and children, and there are questions about the knock-on effects of extending the protection of children to those aged 16 or 17. Moreover, ministers themselves have admitted that

“in a time of reduced budgets”

and in light of their already controversial proposals to cut criminal legal aid even for people on relatively modest incomes they are worried about the cost of extending the right to legal advice to persons who are not being questioned.

I hope that ministers will accept the link between the Carloway report and court restructuring; will agree that a fully informed debate must continue and, indeed, must come back to Parliament after the consultation closes; and will be prepared to carefully consider their stance on majority and not proven verdicts in light of evidence taken in the parliamentary process on Michael McMahon’s bill as well as their own.

I move amendment S4M-04234.1, to leave out from second “programme” to end and insert:

“; recognises the demands that these proposed reforms are likely to place on the Procurator Fiscal Service and the Scottish Court Service, which will require to be adequately resourced to meet these demands; encourages all interested persons to respond to the Scottish Government’s consultation on Lord Carloway’s recommendations so that the Parliament can debate these proposals on the basis of a completed consultation process and the Scottish Government’s response, and also encourages people to respond to the consultation on the future structure of Scotland’s court services to ensure that a coherent approach is taken to reform.”

14:49

I welcome the review that Lord Carloway carried out into criminal law and practice and the subsequent consultation by the Scottish Government.

With hindsight, it is perhaps surprising that, before 2010 and the Supreme Court’s decision in the Cadder case and the emergency legislation that followed, no one questioned the practice of police interrogation of suspects without the presence of a solicitor. Today’s debate provides the opportunity to examine past shortcomings in the justice system in that respect.

The Carloway review contains a number of useful and well-thought-out proposals that are widely supported, including: streamlining the concept of arrest and detention; having timescales restricting detention without charge; and having a new statutory definition of vulnerable suspects.

However, there have been mixed comments about the proposal for police investigative bail. Although the Law Society has welcomed the proposal, Scottish Women’s Aid has raised concerns about the effect on the victims of domestic abuse and has highlighted the difficulties in ensuring that victims are notified of the suspect’s temporary release prior to charge or report to the procurator fiscal and pending further investigation.

As the cabinet secretary confirmed, the proposal to abolish corroboration has attracted major and widespread criticism. Therefore, I call on him to implement the other, less controversial proposals of the Carloway review but defer the abolition of corroboration for further consideration. That approach makes sense for a number of compelling reasons.

First, we cannot predict how many cases would result in conviction if the requirement was abolished. Research for the Carloway review concluded that 81 per cent of 458 cases that had been marked “no further proceedings due to insufficient evidence” would have been likely to be prosecuted further without corroboration, with nearly 60 per cent having a reasonable prospect of conviction.

Furthermore, about 5,000 serious cases are prosecuted under solemn procedure before a judge and jury each year. It is estimated that the removal of corroboration would affect less than 10 per cent and lead to conviction in barely 5 per cent of those cases. As the standard of proof in criminal cases is beyond reasonable doubt, corroborated evidence would be likely to continue to be the norm in practice.

Some people support the abolition of corroboration as a means of addressing the poor conviction rates for rape cases. It is worrying that only 5 per cent of reported rapes lead to prosecutions but, in England and Wales—where there is, of course, no requirement for corroboration—the conviction rates for rape cases are no better. That suggests that many other factors are at play, which is confirmed by some of the members of the cross-party group on adult survivors of childhood sexual abuse, from whom I sought views. Importantly, members of the group emphasised that the justice system must protect the rights of the accused against false accusations. Some had witnessed situations in which there would have been a serious miscarriage of justice had the rules on corroboration not existed.

Although the members of the group acknowledged that corroboration can make it even more difficult to secure convictions, they also pointed out that complete abolition could lead to yet more plea bargaining, which would drastically reduce sentences that are already viewed as paltry for rape, sexual assault, child sexual abuse and domestic violence.

Instead of abolishing the law on corroboration for those interpersonal cases of violence, in which the execution of the offence has relied on secrecy and concealment, a much wider definition of corroboration could be permitted that would maintain the principle of fairness to the accused. Therefore, it was strongly advocated that the current law on the application and definition of corroboration be revised rather than abolished.

The following measures, rather than legislation, would encourage a more proportionate and considered approach and increase the chances of victims and survivors accessing justice in criminal proceedings.

What is meant by the suggestion that there should be further revision of the law of corroboration, given that it has been revised so that we have corroboration by admission and corroboration by special knowledge? Over many centuries we have revised, ameliorated and watered down corroboration so that it does not require, as many members of the public think, two police officers or two individuals. What further suggestions is the member making?

Some of the suggestions that I will outline from adult survivors make it clear that, rather than abolishing corroboration, a full and comprehensive review of the law of criminal procedure would be worth considering.

Perhaps the cabinet secretary will be convinced when he listens to the suggestions, which include: enabling more cases to be taken to court with a more robust use of the Moorov doctrine—there is currently a definite time-limited element to that, which dilutes an important piece of evidence that could help with convictions; training of procurators fiscal and court officials on sexual abuse and the impact on victims; changing the way in which the victims of sexual crime are cross-examined; making more use and giving more weight to the testimony of expert witnesses; and having more realistic sentencing. They also emphasised that it was not tenable to rush unnecessarily to abolish corroboration for all crimes because it was thought to impede convictions in some instances.

In conclusion, corroboration was introduced to protect against miscarriages of justice and reduce the prospect of a judge or jury convicting an accused on the basis of a single piece of testimony. One leading Queen’s counsel states that by removing 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.”

Corroboration cannot be considered in isolation from the wider law of criminal procedure. The Government must take time to get this right. For that reason, I move amendment S4M-04234.2, to leave out from “the Scottish Government’s inclusion” to “Making Justice Work programme” and insert:

“with concern the Scottish Government’s inclusion in Working for Scotland: The Government’s Programme for Scotland 2012-13 of a Criminal Justice Bill, including the proposal to abolish corroboration, and considers that any change to the law of corroboration in Scotland should instead form part of a full-scale review of Scottish criminal procedure; highlights the importance of delivering the other recommended measures in a coherent way alongside wider reforms to courts and tribunals planned through the Making Justice Work programme”.

14:57

I will have a little moan first and ask the Parliamentary Bureau to reflect on the fact that this is essentially a justice debate and that the Justice Committee sat until 12.45 today, with a substantial agenda—indeed, I had to guillotine business to allow members a breathing space and a little ham roll before they came to the chamber. Is it not possible for the bureau to ensure that when there are what are virtually subject debates in the afternoon, they do not take place on a day on which the subject committee is meeting in the morning? I feel better for having said that.

The consultation is still on-going, so the timing of the debate is a bit of a mystery to me. However, members can all take this as my contribution to the consultation.

The Government motion

“highlights the importance of delivering these measures in a coherent way”.

The issue for me is coherence. The terms of reference for Lord Carloway’s inquiry indicate that he was not asked to consider the not proven verdict or the majority verdict. The inquiry was held in a very specific context. Paragraph 1.2 of Lord Carloway’s report states the terms of reference. I do not have time to read them out, but members can see them.

That takes me to the concerns that I have aired previously in the chamber about the proposed abolition of the necessity for corroboration in criminal cases. The concern is not new and it is not just mine. I refer the cabinet secretary to the letter sent to him by the Justice Committee on 26 January. I think that I am quoting the sentences fairly. The letter states:

“the Committee noted an underlying consensus; that the corroboration rule should not be seen as sacrosanct, and that it was legitimate to re-investigate from first principles whether it continues to serve a useful purpose in 21st century Scots criminal law.”

That is fair enough. We went on to say that it was important to ensure

“that any future work on corroboration should avoid considering that single issue in isolation. Instead, it should also take into account the complex web of factors that, taken together, set the current balance between the state’s ability to secure a conviction and the individual’s right to a fair trial, and to be acquitted where there is a reasonable doubt.”

That is terribly important. Let us take the oft-quoted example of how no longer needing corroboration would lead to an increase in successful prosecutions in cases of alleged rape. I say to Margo MacDonald that we cannot say that we do not need corroboration for one crime and that we will park the others. In some respects, a serious sexual assault can be far worse than rape for the victim. Would we say that we needed corroboration for that assault but not for something else? No—I do not think so. I will debate that afterwards.

Sandy Brindley from Rape Crisis Scotland thinks that it would be a great idea to abolish corroboration in rape cases, but my view is much more cautious. If a case simply comes down to the credibility of the accused and the credibility of the witness—the alleged victim—it is perfectly open to the defence advocate to conduct on behalf of his client a rather brutal cross-examination of the alleged victim that addresses previous sexual behaviour, behaviour on the evening in question and so on. Why not? Some people will look and behave like victims and some will not. Some people will look like rapists and some will not.

In addition, as I said, we retain majority verdicts. We must remember that the Crown must prove its case beyond reasonable doubt. The accused is innocent until proven guilty beyond reasonable doubt. If a member of the jury says—rightly—“This is about credibility and I’ve a wee bit of a doubt,” there might be many more acquittals, not guilty verdicts, not proven verdicts, appeals and referrals to the SCCRC, and double jeopardy might even be used more, to bring in evidence that it is alleged was not available at the first instance.

As far as I can see, there is no evidence that removing the necessity for corroboration in England and Wales has led to an increase in successful prosecutions for rape. Given the time pressures, I have been unable to ascertain the number of hung juries and retrials south of the border—where a verdict must be unanimous—but that would be good evidence to have. I am sympathetic to the thrust of the Opposition amendments on that issue, although I do not agree with everything that is in them.

Another issue is the removal of the High Court’s gatekeeping role, which the 2010 emergency Cadder legislation introduced, when the SCCRC makes a referral. The High Court should not be allowed to reject a referral from the SCCRC in the interests of finality and certainty; that makes it judge and jury in its own case. The removal is fine, but it does not go far enough. Even if the High Court hears an appeal that is referred to it and agrees that a miscarriage of justice has occurred, it is still allowed to consider whether allowing the appeal is in the interests of justice. I am a simple soul. I thought that, if a miscarriage of justice was proven, it was a miscarriage of justice—full stop—and the appeal should be allowed.

15:03

The Carloway report marks an important milestone for the administration of Scottish justice, as it contains many and complex recommendations and it offers the opportunity to redesign, refresh and update Scottish criminal procedures and to provide the citizen with appropriate protection in the face of state intervention. I welcome the report.

Such opportunities come barely once in a lifetime and must not be squandered. Some resist change and insist that our system for the administration of justice is among the best in the world. I feel sure that the reality is somewhat different. That reality demands that we learn lessons from experience and improve where we can.

Others have commented on many aspects of Carloway. I will focus on the element of the report that has attracted much attention, which is corroboration and its value as a required standard of proof in criminal cases.

For hundreds of years, the principle of corroboration has stood the test of time—a necessary check for the courts in weighing the level of evidential material necessary to prove guilt, not solely in terms of avoiding miscarriages of justice but as a means of protecting an accused from a callous or criminal attempt on the part of prosecutors to use a single witness or piece of evidence to convict a citizen. Corroboration was, and is still seen by many as, an essential safeguard.

Initially, I shared that view. My experience in my previous working life indicated that, although it was operationally inconvenient, the need for corroborative evidence ensured that prosecutors pursued an investigation with a view to providing not only a sufficiency of evidence but a level of confidence in the integrity of the evidence provided. However, Lord Carloway provided evidence to the Justice Committee explaining his thinking in detail, and I was impressed with his explanation of the nature of evidence in terms of its quality rather than the quantity provided. I was persuaded by his arguments in principle.

Nevertheless, I want to hear in detail what the Government proposes. How does the Government want any new approach to be implemented? Does it propose a blanket abandonment of the need for corroboration on an agreed date, or will the changes be retrospective in their application? Will the Government expect a series of cold case reviews by the Crown Office, or is the intention to set a date on a calendar from which corroboration will no longer be an essential part of the process?

There is no doubt that Scotland is out of step with much of the rest of the civilised world in this regard. Nevertheless, the Government should not carelessly cast aside a much-valued safeguard without properly setting out precisely what it intends to replace it with for the future. That is particularly important in a Scotland in which the SNP Government is seeking to cut the legal aid budget over the next three years by up to £20 million in real terms. It also plans to cut court administration costs by £3 million and expects that solicitors will gather from clients an element of the fees that is not currently covered by legal aid provision or that—a novel idea—lawyers will see the loss of a fee as a good decision in the light of possible future business opportunities. There is also the prospect of closure of many of our local courts that hear evidence in criminal cases and the abolition of independent prison visiting committees, not to mention—my personal concern—a lack of any meaningful democratic oversight of the new national police force. Taken together, those steps do not enhance the rights of suspects, nor do they provide a balanced approach to criminal justice. They do provide real reasons why we must have clarity on the Government’s intentions.

Many of Carloway’s recommendations make sense in a system that is properly maintained and administered, but added to all those cuts and changes they will create a real test for justice seen and justice delivered. I hope to be assured that Government ministers understand the challenges and will deliver a justice system that is fit for the 21st century. I hope that they take care to ensure that the justice system that we value today will be regarded in future as a world leader.

I remind members that we have some time in hand. Although speeches must be six minutes, time will be given back for interventions.

15:09

Lord Carloway described the Cadder judgment as

“a serious shock to the system”.

Others, perhaps unfamiliar with the protections afforded by the Scottish legal system, may have been shocked at the absence of legal representation for people in custody at police stations. The Scottish Parliament responded to that and we moved on.

Lord Carloway said:

“The task facing the Review was to identify how criminal law and practice in Scotland ... should be re-cast to meet the challenges and expectations of modern ... legal thinking.”

He said that the focus, in doing so, would be on applying

“a human rights approach”.

One or two of the key recommendations cover that, including the recommendation that legal advice should be a right for anyone who is taken into custody; that the period of arrest before charge should be limited to 12 hours; that there should be protection for child suspects and vulnerable adults; and that there must be no adverse inferences from someone choosing to exercise their right to silence.

The report proposes fundamental changes, and as always a balance must be struck with regard to whose interests are being served and which criteria are involved. Police investigations are key in criminal matters, and the clarification of the distinction between detention and arrest on suspicion is helpful.

I support the robust application of a rights-based system, with regard not only to Lord Carloway’s recommendations but to the forthcoming legislation that a number of members have mentioned. I will concentrate on a couple of rights—article 5, which is the right to liberty, and article 6, which is the right to a fair trial—from the perspective of Scottish Women’s Aid, which is an important and informed user of the criminal justice system.

The emphasis is on a presumption in favour of liberty. That may seem self-evident in any system, but it requires to be mentioned and regarded, and I will refer to it later. Indeed, one or two members—such as Margaret Mitchell—have already mentioned it in relation to concerns about the release of the accused.

A letter of rights will be provided to every suspect, who will be able to choose their solicitor or waive their right to a solicitor, and appropriate protections will be put in place for children and vulnerable adults, which is important.

As members have mentioned, training will be required not just for police officers but for the Crown Office and Procurator Fiscal Service and solicitors. That will bring about some consistency and comprehension of each participant’s role in the proceedings.

It is important that if a suspect is charged, they should be brought to court within 36 hours of arrest. The implications for our courts have been mentioned, but I certainly do not see any problem with the courts responding by holding weekend, public holiday or—dare I say it—evening sittings. The additional clarification around the idea of a suspect being liberated to allow time for further investigation by the police before further questioning is very important, not least in relation to issues concerning the forensic examination of computers and accounting systems.

On John Finnie’s point about the potential for courts to sit at weekends and on public holidays, does he accept that there are resource implications from any such developments, and does he believe that the Government should consider such changes in examining the Carloway proposals?

There are resource implications, but there is also the potential for greater use of technical equipment. We do not want to increase the number of people going to court; we want to deter criminals, detect crime and divert people away from prosecution.

Most members have touched on the question of corroboration. The Carloway report states that evidence should be assessed

“free of the current restrictive rules and principles, such as the general requirement for corroboration”.

That is a simple phrase, but it has significant implications.

Continuity of evidence, which saw two people involved in picking up productions, is nonsense, and it is not what most people are concerned about.

Will the member take an intervention on that point?

Yes.

I am spinning out John Finnie’s time. Is there not a procedure in court whereby evidence can be agreed so that there is no need for two police officers to agree a label if it is not contentious?

They may have to agree that the production has been jointly collected, so the implication exists right from the word go.

It can be agreed.

Yes, there are minutes, so I am sure that agreement could be reached, and it is clear that they have their place.

Scottish Women’s Aid is keen to explore the implications of the proposals for victims of domestic abuse. We know the figures, but I will put them on the record again. There are almost 52,000 incidents of domestic abuse, of which 10,000 end up in court, and only half of the cases that are reported to the procurator fiscal reach court. The situation with regard to rape and sexual assault is worse. Recent Scottish Government statistics show that the number of reported rapes is rising and the number of prosecutions is falling. It is clearly important that we do something in that regard.

Law and practice are evolving, and Scottish Women’s Aid mentions two important developments that have helped along the way: the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and Lord McCluskey's 1982 decision, which opened the door for a man to be prosecuted for raping his wife. Those are examples of how the law evolves and of how the removal of corroboration could be seen in a positive light.

On the right to liberty, in reality there is an understandable concern on the part of women that the alleged perpetrator of a crime is free to interfere with the house or the evidence or to get an alibi. That is why it is important to realise that each case is about individuals—the individual victim; the individual accused—and that there is no one-size-fits-all approach.

On the point about no one size fitting all, I am intrigued by why we are going for an end to corroborative evidence. Is it because we think that there will be a purer justice at the end of it? Is it to save money? Or is it more convenient in pursuing a case?

The arguments have been about quality versus quantity. Just because there are two witnesses, that does not mean that they are necessarily reliable witnesses or that they will be treated as such by the court, whereas there could be a very credible individual witness.

We strive to maximise the evidence that is presented to the court at all times—in terms of not simply eye witnesses but all the evidence. Nothing that is part of this is a dilution of the investigation, the aim of which is to acquire the maximum evidence to present to the court.

I just want clarification that corroboration is not two witnesses; it is two independent pieces of evidence. Corroboration does not have to be two people.

Yes, I recall that point well from 36 years ago, when I learned it by rote. I accept that point.

The Scottish Government is keen that all these pieces of legislation are delivered in a coherent way. The making justice work programme is important. I encourage everyone to participate in the consultation in the short time that is left and to give us their views—it is important.

15:17

I refer to my register of interests—I am a member of the Faculty of Advocates.

As we all remember, in 2010 the cabinet secretary asked Lord Carloway to carry out a review of Scots criminal law and practice given the decision of the UK Supreme Court in HMA v Cadder and in the wake of the emergency legislation that followed. I hope that the criminal justice bill that follows the on-going Government consultation contains provisions that will prevent the requirement for emergency legislation in the future.

The Carloway report has a lot in it apart from the proposal to abolish corroboration. There are important aspects in relation to arrest and detention, and I welcome the general support for the concept of arrest on reasonable suspicion.

In relation to detention, the consultation seeks to test whether there is support—as I hope—for the proposal that the police would be required to consider the proportionality of holding a suspect in custody, taking account of the nature and seriousness of the crime and probable disposal if convicted. Carloway also recommended that questioning be completed within 12 hours.

The principle of keeping detention without charge to a minimum should be welcomed, and it is a key aim of Lord Carloway’s report. However, while welcoming that proposal, we must ensure that it will work. Some commentators suggest that it is an unrealistic period and the consultation seeks to invite comment on it. During a Justice Committee evidence session, we floated the idea of exceptions to it and it will be interesting to see how the consultation goes on that.

Additionally, Carloway recommends that charged suspects appear in court within 36 hours of custody. Although that is a laudable aim, we need greater detail on what that means in practical terms—weekend court sittings, for example—and further input from the Government seems necessary, as Mr Macdonald perhaps hinted.

On the right to legal assistance, Carloway proposes a requirement for legal assistance to be provided to a detainee

“as soon as practicable after the start of detention”,

regardless of whether he or she is to be questioned by police. Access to sound legal advice is a cornerstone of a fair justice system, but we need to consider whether there would be a sufficiency of solicitors to cope with the increase in uptake of legal advice if it were to become a statutory right, and how that would be funded.

Additionally, Carloway identifies scope for the offer of legal assistance to be waived if detainees are fully aware of the consequences. That seems to be a fair proposal.

With regard to children and the law, Carloway makes an important recommendation with regard to those aged between 16 and 18 waiving their right of access to a lawyer and recommends that those under 16 should never be allowed to waive their right of access to a lawyer. I hope that we follow that path, even if there are those who argue that many children under the age of 16 are mature enough to know their own minds.

The Scottish Government intends to take forward Lord Carloway’s recommendations on abolishing corroboration. I have no issue with that. As lawyers, we seek to get around the rule by relying on technical rules such as distress and the Moorov doctrine, and I believe that Lord Carloway was right to suggest that corroboration

“has developed into a series of rules which, realistically, are not capable of being understood by many outside the world of criminal legal practice.”

I do not believe that there is any substantial evidence that the requirement for corroboration prevents significant miscarriages of justice—although evidence is difficult to find—and nor do I believe that its abolition will necessarily lead to significantly larger numbers of successful prosecutions in the longer term. However, we must consider carefully the implications of abolishing it for the remaining safeguards to prevent miscarriages of justice. Elevating to a higher level the concept of cases needing to be proved beyond reasonable doubt as our principal safeguard is neither appropriate nor sensible.

It is perhaps unfortunate that Carloway did not consider majority verdicts to be within his remit, even if we have a good idea about his views on the matter. That means we have not had any direct consideration of the impact of the abolition of corroboration on majority verdicts. Although the Government does not believe that there is any need to change the rules on majority verdicts at present, surely it would be wise to consider responses to the consultation on it, as indeed it would be to consider the possibility of an additional safeguard that the trial judge should be entitled to acquit if he or she is satisfied that no jury properly directed could convict. Is it right to restrict that safeguard to the appeal court? We need to reflect further on that.

Although I share the Government’s view that those who question whether the wider system of protections in Scots law is sufficient to prevent miscarriages of justice in the absence of a requirement for corroboration should bring forward their evidence, it is important not to set the bar too high and to expect too much hard evidence because there is limited evidence at present on how far corroboration prevents miscarriages. The Government should accordingly take any well-argued concerns seriously, even if they are not fully empirically based.

On appeals and the role of the Scottish Criminal Cases Review Commission, I welcome the recommendation to abandon what is called the gatekeeping role for the High Court in relation to SCCRC references that was introduced by the 2010 act in the wake of Cadder. However, on the proposed new test that it is in the interests of justice that the appeal be allowed, I agree with Gerard Sinclair, the chief executive of the SCCRC. He gave evidence to the Justice Committee that that proposal is:

“not to remove the gatekeeping role of the High Court at all, but instead to dismantle the gates at the bottom of the driveway and reassemble them at the entrance to the front door.”—[Official Report, Justice Committee, 13 December 2011; c 651.]

The Government needs to consider that carefully.

I welcome the consultation, and I encourage anyone who has not participated to do so before the closing date.

15:23

Unlike the previous speakers who, I am sure, are all justice experts in their varying capacities, I read the Carloway report for the very first time during the past few days. I found it to be very persuasive. It is set out with great clarity.

I am sure that everyone is aware that there have been strongly different reactions to the report, so it is very important for us to hear all the views and acknowledge the issue’s complexities. Large parts of the report are probably not too contentious, particularly those parts on detention, arrest, questioning and access to a lawyer.

I welcome the changes that happened after Cadder because we must always remember that some people who are arrested and charged are, in fact, innocent, and we must ensure that all our judicial processes are consistent with human rights. I am pleased that Carloway says that interviewing in the presence of a lawyer should take place only within a police station because I know that Scottish Women’s Aid’s initial response to the Carloway consultation expressed concerns about interviews at the scene of the crime.

Like Roderick Campbell, I welcome the proposal that detention should be limited to 36 hours, although making that happen is going to be one of the challenges for the Scottish Government. I particularly support that proposal because, not too long ago, one of my constituents in Edinburgh was arrested on a Friday night and held in cells until Monday—in Dumfries, as there was no room in the Edinburgh cells—but eventually his court case was dismissed.

Like Margaret Mitchell, I note the concerns of Scottish Women’s Aid in relation to police bail. That option perhaps has to be used carefully, although it would clearly be useful in certain cases.

In all my views on the review, I have been influenced by Scottish Women’s Aid and Rape Crisis Scotland. As I think is widely known, both those organisations support the removal of the need for corroboration. Scottish Women’s Aid has emphasised the importance of the quality rather than the quantity of evidence, and Rape Crisis Scotland has said that the change could make a significant difference but, crucially, only if other action is taken. Rape Crisis Scotland suggested to the Justice Committee that there should be independent representation for complainers in rape or other sexual offence cases. I am sure that many other actions need to be taken. I do not think that any organisation says that removing corroboration will, in itself, improve the situation, but it will help.

That view was taken by Professor Fiona Raitt, when she gave evidence to the Justice Committee at the end of 2011. I found her evidence to be probably the most powerful of all the evidence that the Justice Committee took on the issue. If members, or members of the public, have not read her evidence, they should do so, as it is certainly well worth reading. She gave various reasons for supporting the abolition of corroboration, the first of which was to do with sexual crime. Very strikingly, she referred to something that Lord Hope said:

“In a public lecture at the University of Edinburgh in 2009, Lord Hope of Craighead posed the question whether the demand for corroboration in circumstances such as those”—

she had been talking about sexual crime and sexual violence—

“might make us conclude that certain crimes in Scotland were beyond the reach of the criminal law. Of course, were that to be the case, it could not be a fair or proper outcome of a modern justice system.”—[Official Report, Justice Committee, 13 December 2011; c 628.]

That was central to Professor Raitt’s point. By the way, she is professor of evidence and social justice at the University of Dundee.

Professor Raitt made two other relevant and interesting points. The first was that the criterion should be “a sufficiency of evidence”, which is quite separate and not dependent on corroboration. Also, looking into the history, she argued that corroboration has become “eroded over the decades”, that its application is often “artificial and technical” and that its integrity is now “discredited”. I found her evidence to be persuasive, and it backed up what I had already read and heard about for a long time from Scottish Women’s Aid and Rape Crisis Scotland.

I apologise for not having read the same resources that the member has, but did the professor say what would constitute a sufficiency of evidence? Is there any way to define that?

I cannot answer that in the one minute that remains of my speech, but I am sure that the member could read Professor Raitt’s writings. She has various articles on Carloway that can be found if the member googles her name. She has certainly written about that.

Other changes might be made as part of the forthcoming legislation, although personally I do not think that they are directly related to removing the requirement for corroboration. An example of that relates to the eight-to-seven majority on a jury. For a long time, I have felt uneasy about that, irrespective of the issue of corroboration. For example, I feel very uneasy about anybody being sent to prison for life on the basis of an eight-to-seven jury verdict, and so I would be happy if that rule was changed. Obviously, the rule could be changed in various ways, but a minimal change might be to make the necessary majority 10 to five, although a more radical change could be made if that is what people wished.

Obviously, I do not agree with Christine Grahame on corroboration, but I agree with her on the very last section of the Carloway report. Lord Carloway let himself down on the very last page, because he suddenly says that the High Court should still consider whether an appeal is in the interests of justice, which seems to me to be inconsistent with what he said on the previous pages. The High Court had the gatekeeping role post Cadder in case there were lots of appeals but, like Christine Grahame and Roderick Campbell, I do not see why the High Court should have that role or something similar to it now.

That apart, and with the other caveats that I mentioned, I certainly welcome the report.

15:30

The presumption of innocence is the cornerstone of a just society and a fair justice system. I thank all the organisations, such as Scottish Women’s Aid and Rape Crisis Scotland to name just a few, that have been and continue to be constructive in informing us as we progress towards the fair justice system that we strive for.

As we know, Lord Carloway published his report on criminal law and practice last November. He was asked to carry out the review after the Supreme Court ruled in October 2010 that evidence in the case of Peter Cadder was inadmissible as he was questioned by police without a lawyer present.

The review is extensive: the report has more than 400 pages and includes 76 recommendations, 76 meetings were held, and a public consultation was carried out that received 50 responses. There was also an investigation into jurisdictions elsewhere, along with conferences and the commissioning of a research project for the Crown Office and Procurator Fiscal Service. It was a robust investigation and analysis, and I tried to read all the report last night in preparation for the debate.

Lord Carloway argued that, in incorporating the European convention on human rights and ensuring the correct rights-based approach, there need to be changes in the law and alterations in the thinking of all those working in the criminal justice system—we have heard about that from previous speakers. It is essential that an effective justice system continues to evolve, which ties into what the Cabinet Secretary for Justice said earlier about the need for a longer-term review of our laws. They are evolving and not just an event.

The report mentions the need for training and guidance for the police, the Crown Office and Procurator Fiscal Service, solicitors and everyone else involved, to bring consistency, as John Finnie mentioned earlier. As someone who was previously a training officer in a professional capacity, I cannot state that enough, and members will not be surprised to hear me say that training is a key to ensuring that our important people make sound judgments—judgments that affect the lives of the accused, but especially the victims. Effective training and continuous professional development build a competent and confident workforce that underpins a professional service.

The proposals to give police increased powers to liberate a suspect from custody temporarily give me and others cause for concern. Those powers will be subject to certain conditions, such as restrictions on the suspect’s whereabouts and conduct and a consideration of the possible negative consequences on women, children and young people experiencing domestic violence. Groups supporting people in the area of domestic violence have raised grave concerns about that matter. I ask the cabinet secretary to ensure that, in order to protect victims, an effective risk assessment is undertaken of all accused persons in such circumstances.

Scottish Women's Aid has expressed concern that the issue of accused persons released on bail will be further exacerbated by the numbers likely to be afforded temporary release. That matter has particular relevance in domestic violence incidents: the safety of women and other victims, especially children, should always be considered if that situation arises and, in most cases, the suspect should be detained if there is any risk at all of them perpetrating further crimes.

Scottish Women's Aid further asserts that such a blanket release policy could also interfere with police investigations, and we have heard from Margaret Mitchell and others on that point. Sometimes key evidence is picked up when police investigations are at an early stage, and there could be an opportunity for someone who is released early to tamper with and destroy evidence, to establish an alibi after the fact, and to intimidate and interfere with victims and witnesses. As members of the cross-party group on men’s violence against women and children know, there are cases in which that has happened and people have received phone calls, letters or Twitter or Facebook messages. We should be looking at that issue, too.

Scottish Women's Aid commended the great strides forward in the police treatment of domestic violence cases, and that extends to the application of that rule. Does the member accept that?

I certainly do, and I thank the member for his intervention. That is an issue that I will refer to later on in my speech.

A further issue is how to administer the process of advising victims of a suspect’s liberation, which is a matter of significant importance in domestic violence cases and, indeed, any case in which violence is perpetrated on someone. I hope that the cabinet secretary will give us some assurances on how that process will work in practice. There can be nothing scarier for a victim than to see the accused on the street or back at their front door when they had not even known of their release.

As we have heard, if the need for corroboration is removed, it is vital that careful consideration is given to the introduction of new safeguards to minimise miscarriages of justice. I must put on record my support for the removal of the requirement for corroboration, for largely the same reasons as those given by my colleague Malcolm Chisholm. Women’s Aid agrees. It has said that there is a need to explore further

“the implications of removing the requirement for corroboration ... However, in doing that, we should look not at what will happen if that is done but at how we can make such a move work.”—[Official Report, Justice Committee, 20 December 2011; c 780.]

It is extremely important to remember that.

As I said at the outset, and as John Finnie also said, the presumption of innocence is the cornerstone of a just society and a fair justice system. John Finnie also referred to the fact that, of the 51,926 incidents of domestic violence that the police recorded in 2009-10, 10,259 ended up being dealt with in court. In other words, the proportion of such incidents that reach court is relatively small. Only half of the 21,660 cases that were reported to the procurator fiscal made it to court. As is well documented, the situation with rape and sexual assault cases is even more worrying. I know that the Scottish Government is working on that issue, and I hope that the cabinet secretary can give us an update and reassure us that it is a priority for the Government.

As part of its remit, the cross-party group on men’s violence against women and children has had concerns about the role of corroboration for many years. In light of the comments that have been made, I hope that we will be able to work together to fix that.

John Finnie will be happy to hear me say that, in the past few years, there have been welcome developments in how the police respond to domestic violence. Their approach to evidence gathering has broadened, and they now take a more forensic and robust approach to the investigation and presentation of evidence. I think that such professionalism is in the best interests of victims and the accused.

As a number of members have said, we need better conviction rates for rape. That can be achieved by using the rule of quality evidence, which may bring a sense of justice to the victims of such crimes. The cabinet secretary informed us:

“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.”—[Official Report, 1 December 2011; c 4246.]

That is an extremely important point.

I ask the cabinet secretary to ensure that first responders and others who are engaged in supporting victims of crime are adequately trained to identify victims of trafficking.

I see that I am well over my time, so I will make two quick final points. The introduction of greater support for vulnerable suspects is very important to me, and the letter of rights is welcome. I see that one recommendation of Lord Carloway that the Law Society of Scotland agreed with was that on child suspects. The society suggests that safeguards should be put in place for people under the age of 18 and that children under 16 should not be allowed to waive their right to a lawyer. I ask the cabinet secretary to ensure that the children’s hearings system matches that proposal, so that a welfare-based approach is adopted when we deal with children in the criminal justice system. The same should be true of vulnerable adults, and we should perhaps look at the appropriate adult scheme.

I believe that a robust, fair and effective justice system is evolving and that, with the changes that have been outlined and a commitment to certain safeguards, we will progress further down the path to a fairer and more just society.

15:38

The American Supreme Court justice Oliver Wendell Holmes once said:

“This is a court of law, young man, not a court of justice.”

That may have been his view of the American judicial system from where he sat, but I would like to think that anyone who looks at or works within the Scottish legal structure would believe that justice is what should be pursued here at all costs.

I would never describe myself as having a high level of detailed knowledge of the ways of Scotland’s legal profession, but I am keen to speak in the debate, as there are areas in which I have a specific interest. I welcome Lord Carloway’s report, as it is an insightful commentary that I have found extremely helpful in understanding some arcane aspects of the law.

Although the Scottish Government has already responded positively to several of Lord Carloway’s proposals, it is clear that some of his other proposals that are being consulted on will require a lot more consideration, given their more controversial nature.

Not surprisingly, most members have focused on one of Lord Carloway’s more contentious proposals: the removal of corroboration. We must look at that objectively to arrive at a firm conclusion as to whether corroboration is suitable in modern day Scots law. Some will argue strongly that the principle of corroboration ensures that innocent people are not convicted on the basis of one person’s oral evidence. Others will argue that if it is removed, subsequent changes must be made to Scots law to preserve the integrity of the practice of the systematic use of evidence to convict an individual. It is in that area—the conviction of people in Scottish courts—that I have a particular interest. Whatever opinion people hold on the matter, few would argue that the three-verdict system of guilty, not guilty and not proven is uncontentious.

I thank the cabinet secretary for his recent letter to me, in which he expressed an interest in the outcome of my consultation on the three-verdict system. I am happy to tell him that I will provide him with the final analysis and any relevant information I obtain, in order to inform his deliberations. In the meantime, he may be interested to know that I have included in my proposal for a reform of criminal verdicts bill a mock juror study that established clearly the relationship between the strength of evidence presented to a jury and the verdict delivered by that jury.

Although we cannot categorically say what impact removing corroboration will have, evidence and studies show that it is highly probable that it will increase the number of not proven verdicts arrived at by juries. To mitigate such potential effects, additional measures will have to be introduced if the Scottish Government goes ahead with its plans to remove corroboration.

First, as has been said a few times today, the number of jurors that is required to reach a verdict must be increased from the current simple majority. In normal circumstances a minimum of eight over seven jurors is required. I do not have a definitive proportion for what the majority should be, but I believe that no less than two thirds of the jury should be required to reach a decision. I invite anyone to give their views on this subject by responding to my consultation, which is currently published and in which I seek an answer to that question.

Secondly, if we change the threshold that is required for a jury to make a decision, the outdated three-verdict system used by Scots courts must be done away with. If we stick with a three-verdict system after increasing the majority required, it will be more difficult for a majority verdict to be reached. It is highly probable that that will result in an increase in the number of controversial and unsatisfactory verdicts being reached in Scottish courts. I advocate that the three-verdict system in Scotland should be changed to a simple two-verdict system. I am unsure whether the two verdicts should be named “guilty” or “not guilty”, “proven” or “not proven”, or whether different terms, which can be suggested, should be used.

That is very interesting. How many not proven verdicts have there been over a period of time? I do not know, but Michael McMahon may know from his consultation. Does he have figures for that?

There are figures, but I cannot remember them off the top of my head. I will send Ms Grahame information on that if she would like. Information is contained in my report and I will get it to her if it helps with her consideration.

Thank you.

I welcome all responses to my consultation and I encourage members to look at it closely and let me know their opinions. The more information that I have, the better the consultation will be.

With or without the removal of corroboration, there are areas that must be reformed and my proposal for a reform of criminal verdicts bill details my views on that. If the removal of corroboration goes ahead, it must go hand in hand with other changes that offer protections.

As the Law Society of Scotland said,

“If corroboration is removed, it is vital that careful consideration is given to the introduction of new safeguards to minimise miscarriages of justice based on uncorroborated allegations.”

I started off by questioning the views of Oliver Wendell Holmes. I will conclude by agreeing with Sir Arthur Conan Doyle, who wrote in “The Memoirs of Sherlock Holmes”:

“It’s every man’s business to see justice done.”

The cabinet secretary has brought us an interesting debate. Lord Carloway’s report goes a long way to addressing some of my concerns about seeking justice in our judicial system. If we move forward with the right resources and make the right practical changes, we can enhance our judicial system. The debate will obviously inform the outcomes that we can achieve.

15:45

There has been excellent input into the debate this afternoon.

Since we last debated the Carloway review, there has been much discussion in and around the legal fraternity on the issues that have been raised. These are times of change in the Scottish legal system. We have not just the Carloway report but Lord Gill’s recommendations for reform of the civil courts as well as Sheriff Principal Bowen’s proposals for sheriff and jury reform. There is also the Scottish Civil Justice Council and Criminal Legal Assistance Bill, which is being discussed at stage 1 in the Justice Committee and which will establish the Scottish civil justice council and reform legal aid. Given the scale of the changes that are proposed, it is understandable that the legal profession feels a bit nervous. After all, how many of us like major change in our lives? Many people in the legal profession have been in practice for many years.

The proposed reforms in the making justice work programme amount to some of the biggest changes in the legal profession in decades. As we heard from the cabinet secretary and others, the headline issue is the future of corroboration, although there are other interesting reforms in the mix.

Lord Carloway’s criticisms of the rules on corroboration were severe. He said that the requirement

“has no place in a modern legal system”.

It is obvious that his view is not shared by everyone in the legal profession. In his evidence to the Justice Committee, Lord Carloway explained:

“Corroboration is a misunderstood term. The important thing to recognise is that corroboration is about the number of witnesses there are to speak to a given fact.”

He also said:

“we need to switch the thinking away from the quantity of evidence—the number of witnesses—to the quality of evidence.”—[Official Report, Justice Committee, 29 November 2011; c 528, 527.]

It took him quite a bit of time to explain what corroboration means.

In principle, I have no problem with quality coming before quantity when it comes to evidence. The fact that most if not all other legal jurisdictions have abandoned the requirement for corroboration should give a degree of comfort that the sky will not fall in if we abandon the approach as a mainstay of prosecution. However, if we move to a system in which corroboration is not required, as Lord Carloway proposed, there should be more checks and balances, as is the case in other legal jurisdictions. I look forward to more discussions on the matter. The organisation Justice mentioned the matter in the written submission that it provided last year.

On rape cases, I warmly welcome the comments of Christina McKelvie and Margaret Mitchell. I am not sure whether an effect of the removal of the requirement for corroboration will be more convictions—Margaret Mitchell talked about that. However, I take on board the comments of Rape Crisis Scotland in its written submission last December, every one of which is worthy of further discussion. I agree with what Christine Grahame said about fears about how a victim or the accused behaves in court. How individuals act is important and might lead to problems with securing a conviction. There is the question whether the legal system currently accords victims more dignity. As Christina McKelvie said, there are serious problems for women in the court system.

Issues to do with the clarification of the SCCRC and High Court roles are also worthy of further discussion before we make a decision.

I am pleased that Saturday courts are in the mix. Saturday courts would help with detention times, particularly in the context of weekend detention.

In the previous debate—I say this more to Michael McMahon—I asked the cabinet secretary whether he would consider the issue of the three-verdict system within the parameters of the Carloway discussions. I look forward to any information on that subject that Mr McMahon may produce.

I am very comfortable with the issues that relate to dealing with arrest, the point at which people require to be offered legal representation, and the time for which people can be held by the police. Again, Saturday courts are the way forward, and I hope that we will be able to come to an agreement on that.

I have said before that I warmly welcome the proposed changes on how we deal with children and vulnerable adults. We had a discussion not quite about that, but about a subject that is very close to it in the Justice Committee. There are serious problems. People do not necessarily know or understand what is happening once they head into the court system. Everyone should have a right to at least have information about that. That is the way forward. The law and the process of law can, of course, be daunting to those involved at the best of times.

Lord Carloway informed the Justice Committee that the reference group involved in the review was not asked to vote on the issues because there could have been disagreement, so the report is in his name. It would have been good to know the breakdown of the views that were held in that group.

As Lord Carloway pointed out in giving evidence, we live in the 21st century. The legal establishment now is a highly trained professional group unlike, he suggested, most 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, of course, includes the European convention on human rights and the work of the United Kingdom Supreme Court. I look forward to seeing the results of the consultation paper, and encourage people to take part in the consultation in the little time that is left.

I support the motion.

15:52

Although the motion is on the public consultation on the Carloway report about reforming Scots criminal law and practice, most of the speeches have focused on corroboration, to which I will return.

A number of aspects of the proposed reform have been generally welcomed and accepted. The cabinet secretary and other members have mentioned them. They are: there will be a simplified unitary system of arrest on reasonable grounds for suspicion and detention; an arrest will trigger a set of rights, including access to a lawyer; any proceedings against the suspect should constitute a fair trial; and suspects who are charged should be brought before the court within 36 hours of arrest. The cabinet secretary raised those issues in his speech, particularly that of legal advice and representation.

I completely take on board the cabinet secretary’s and other members’ comments on the legal aid budget. The Justice Committee, of which I became a member today, is looking at that issue. I very much look forward to seeing exactly what is happening to the legal aid budget and hope that justice will be served for people who want to access legal aid through that budget.

I return to corroboration. Many have said that our current rule is archaic, that other countries do not have it, and that we must move with the times into the 21st century. We have to change and move into the 21st century in some areas. I absolutely take on board John Finnie’s point about two police officers being needed to corroborate a label, although Christine Grahame’s intervention seemed to make that particular aspect of John Finnie’s contribution slightly redundant. I take the point on board, but I am very concerned about how the removal of corroboration would be perceived by the general public.

To clarify, I did not say that John Finnie’s point was redundant. I said that evidence could be agreed. If it is contentious, corroboration is needed, but items that are not contentious can be agreed and it is encouraged that they be agreed in evidence.

I thank Christine Grahame for pushing that point even further. I know that John Finnie accepted her point in his reply to her intervention.

As I was saying, I am concerned about how the removal of the requirement for corroboration will be perceived by the public. Corroboration is not just about the need for two witnesses. It is much deeper and more complex than that. I believe that my colleague Stewart Maxwell will go into the issue in more detail, so I will leave it to him. However, I want to raise two constituency cases that I dealt with that might have a bearing on corroboration.

In the first case, someone reported my constituent for alleged racial abuse. The police came to their door and they were taken into custody and kept in a police cell for two nights. There was no corroboration. It was one person’s word against the other’s. In the second incident, a lady was arrested for alleged homophobic remarks. She was taken down to the police station, questioned and asked for evidence. Again, there was no corroboration and it was one person’s word against the other’s.

The member might not be familiar with the Moorov doctrine, which is a system whereby a series of unrelated incidents corroborate themselves. Although those particular acts might not have been corroborated, there might have been justification for the arrests on each of those occasions.

I thank Mr Finnie for the explanation. I just put it down to, perhaps, Strathclyde Police being overzealous in those two cases, but I accept his explanation and I will perhaps look forward to Strathclyde Police coming back with the same explanation for those incidents. There have been other, similar incidents. I raise them simply because constituents have raised them with me, and the issue is something that we should bear in mind.

A number of members have mentioned Scottish Women Aid. On page 11 of its response to the consultation, it answers the question

“Should the requirement for corroboration be abolished?”

It states:

“Overall, we are undecided on this difficult matter as there are compelling arguments for, and against, removing corroboration ... The arguments broadly in favour of removing corroboration refer mainly to the issue that it is a ‘quantitative’, numerical, counting test requiring the presence of at least two sources of evidence to assess ‘sufficiency’, as opposed to a ‘qualitative’ test of these sources.

On the other hand, the case in favour of retaining corroboration states that abolition would require the Fiscal to base their assessment of the success, or otherwise, of a likely prosecution solely on the basis of the complainer’s evidence, meaning that Fiscals would spend more time assessing credibility and reliability. Unintended consequences could arise in relation to the treatment of victims in domestic abuse and rape and sexual assault cases; removal of corroboration, particularly in rape cases, would likely place a greater emphasis on their testimony, character, sexual history, medical history, etc, with the defence arguing that questioning has to be more ‘robust’ and probing.”

I know that the proposals are out to consultation, but those important points must be kept in mind. I also mention that, although the requirement for corroboration has been removed in England and Wales, conviction rates have not risen.

In conclusion, I ask everyone to put forward their thoughts in the consultation.

We have a little time for interventions.

15:58

I am happy to speak in this debate. I rise to speak to and support the amendment in the name of Lewis Macdonald MSP. I declare an interest in that my oldest daughter is a senior depute fiscal in the Crown Office and Procurator Fiscal Service and my youngest daughter is a trainee solicitor there. Both have many years of service.

I ask why we are debating the issue now. Surely it would have been more appropriate to discuss these important matters after the conclusion of the consultation. The Scottish Parliament should show all those who have taken the time to offer a response to the consultation the courtesy of considering their responses before it offers its own views.

I understand that at the launch of the Carloway report the press’s questions were dominated by the proposed abolition of the corroboration rule; however, when faced with a 412-page report that was commissioned in the wake of the Cadder case and which makes 76 recommendations we need to pay attention to the review’s wider remit. I agree with the professionals who say that we should applaud the stated approach of seeking to incorporate

“Convention rights in larger measure and at greater depth ... to re-establish Scotland at the forefront of the law and practice of human rights in general”.

However, as the former president of the Law Society of Scotland Cameron Ritchie has pointed out, Lord Carloway does not claim to have put together a package of proposed reforms that ought not to be cherry picked.

I also understand that the Sheriffs Association went one step further and suggested that the key reforms would mean consequences for a number of aspects of our procedure and that, moreover, there are financial implications. Given that increased court activity might not be acceptable to a number of criminal justice participants such as the judiciary, the Crown Office, Scottish Court Service staff and security and defence agents and would place more of a burden on their funding and criminal legal aid provision, it would be prudent to have what I hope would be meaningful discussions with all relevant parties and representatives.

However, the consultation document warns that such a move would have “significant implications” for the public purse as a result of an increase in legal costs—indeed, the cabinet secretary has agreed as much this afternoon—and as a result the Scottish Government’s cut to the Scottish Court Service budget is a matter for concern. We need a commitment from the Scottish Government that additional funding will accompany any change. After all, the Scottish Court Service’s budget is to be cut in real terms by £5.5 million in 2013-14—or by a total of £10.9 million or 14 per cent between 2012-13 and 2014-15—and I believe that such a move could, as the document says and as the cabinet secretary touched on earlier,

“have significant implications for legal aid in a time of reduced budgets, if ... advice is to be publicly funded.”

On the issue of opening courts at weekends and bank holidays, the consultation document warns that “pragmatism” will be required to meet the 36-hour target for bringing people to court and, in that respect, mentions videolink technology and videoconferencing. The cabinet secretary, too, mentioned such moves. We also know that at the moment Scotland’s courts are open on bank holidays and at other such times.

There is also more scope to incur costs that will stretch the Crown Office and Procurator Fiscal Service’s already severely stretched budgets. Its own research found that under these proposals at least 600 serious cases from 2010 would have proceeded; it is also worth pointing out that although the estimate was restricted to serious cases the proposals will apply to all crimes. The Lord Advocate has indicated that some cases that have not proceeded so far could be revisited in future. If the legislation is to be retrospective, it will greatly increase workload, at least in the short term. Moreover, the COPFS research does not cover cases that, after assessing lack of corroboration, the police did not report, which means that the number of additional cases that might have to be considered and prosecuted—and, in turn, the cost—is likely to be even higher.

As a result of a number of relatively recent legislative and non-legislative developments, including those in relation to the law on disclosure, the interviewing of suspects and the taking of biological samples, each case now requires significant additional work. Legislative developments in, for example, the treatment of vulnerable witnesses and admissibility of evidence are leading to new procedures and also require more work, as do the advances in technology and the increasing globalisation of crime that add a fresh layer of complexity to criminal investigations. Challenges to the compatibility of criminal proceedings with the ECHR remain commonplace and require additional work to assess and debate the issues in question, all of which impacts on court programming.

Other professionals have raised interesting questions about the Scottish Government’s consultation, which invited views on a number of issues. Of particular interest is question 32, which invites opinions on changes that should be made to the Scottish criminal justice system if the corroboration requirement is abolished. Perhaps, as Michael McMahon suggested, jury thresholds should be adjusted. Very unusually, however, respondents are then asked for evidence to support their positions.

That is more than unusual. As Professor Robert Black QC has noted, it is utterly nonsensical. It is not possible to provide any evidence as such because corroboration has not been abolished, so there has been no need for alternative mechanisms to be implemented. There cannot possibly be any direct evidence from the past about the effectiveness of untried future reforms, and there is no use simply looking to other jurisdictions because their present systems do not exist against the background of a recently abolished corroboration requirement.

Many of the questions that Scottish Women’s Aid raised have been referred to. I will not repeat them; I will simply agree with the great majority of what has been said. However, one issue was not raised: childcare issues and the difficulties in travel costs that may follow some of the changes that are envisaged.

The reviews that have followed the publication of the Carloway report make valuable contributions to our deliberations on what progress is possible on the report’s recommendations. The utmost care must be taken to address the financial costs to ensure that any changes that take place are workable, are feasible and do not simply end up being undeliverable. Justice for the victim and the criminal is paramount for all of us in the chamber.

16:06

I welcome the Scottish Government’s consultation on Lord Carloway’s recommendations. His report covered a considerable number of areas, and the consultation contains 41 questions, many of which are split into multiple questions. The Carloway report is an important report with far-reaching recommendations on possible reforms of Scots criminal law and practice. As other members have done, I urge as many people as possible to submit their views to the Scottish Government before the consultation closes on 5 October.

Because of the breadth of the topics that the report covers, I will deal with only some of the issues that it raises. I start with recommendations on custody.

The recommendation to limit to 12 hours the maximum time for which a suspect can be held in detention prior to being charged or reported to the procurator fiscal is sensible, because it strikes the right balance between the various parties involved. It provides time for the police to do what they have to do, but also puts pressure on them to do it timeously. Question 6 of the consultation document asks whether there is scope for that time limit to be extended in exceptional circumstances. My view on that has not changed since the debate that we held on the Carloway report at the end of last year: there must be scope for the possibility of extension of the 12-hour maximum time limit, under certain circumstances. However, extensions must not become routine, so I ask the cabinet secretary to consider making extensions the subject of applications to a sheriff, or some similar process. I also support the necessity of having a senior police officer review the period of detention after six hours.

The proposals on corroboration have gained much attention. Most, if not all, members have focused on them. Lord Carloway’s report points out that the requirement for corroboration is not a requirement that every fact in a case must be proved by two witnesses. As is pointed out in the consultation document, the report states:

“Corroboration is about the number of witnesses available to prove facts. It is not about number of facts available to prove guilt.”

The report then provides a number of examples of corroboration. I will focus on one of those examples: DNA. Lord Carloway’s report points out that

“a forensic sample can be the only evidence required to identify a perpetrator, but there must be two ‘witnesses’ to: (a) the finding of the sample at the crime scene; (b) the obtaining of a sample from the accused; and (c) the comparison between those two samples.”

For me, that is the perfect illustration of why change is required. Most people believe that corroboration is about two pieces of evidence that corroborate each other, but in the case of DNA, it refers to two people providing evidence about several facts concerning one piece of evidence.

As Stewart Maxwell knows, I probably disagree with him. The point about two people giving evidence on the DNA trail concerns traceability. It shows firmly and securely that the DNA sample that is produced in court is the sample that was found at the scene and taken to the lab. That is terribly important.

I do not disagree with Christine Grahame that that is important, but I disagree about whether it is required to be done in the way that it is done now. That example proves to me that the world of criminal evidence has moved on, but the rules of Scots criminal law have not moved with it. Instead, as other members have said, the system has had to find ways of working around the rules on corroboration by, for example, having two people speak to particular scientific evidence. A workaround is not, and should not be seen as, a cornerstone of Scots criminal law. Corroboration was an important part of ensuring fair trials in the past because it provided accused persons with protection from the possibility of an overzealous system of justice. However, the reasons for its introduction have passed into the history books and so has the justification for keeping it as part of our system of criminal law and practice in the 21st century.

That said, it is clear that we need to proceed with caution, because the proposal is a major change in how our criminal law operates. The cabinet secretary will need to provide Parliament with a bill that answers many legitimate questions about the recommendation, and will need to ensure that the change will in no way unbalance our criminal justice system.

Some members have argued that if corroboration goes, there must be accompanying changes in other parts of the system, such as in respect of majority verdicts. There has been a call for unanimous verdicts or qualified majority verdicts to be introduced at the same time as any change to corroboration. However, I agree with Lord Carloway’s statement that there is no direct connection between the two issues. I think that some people misunderstand what happens in systems that require verdicts to be unanimous or by a qualified majority. In those other jury systems a failure to arrive at a verdict does not result in an acquittal.

The consultation document summarises the Carloway report very well on the issue when it points out that

“if a jury is unable to reach a decision, the accused is not acquitted. Instead, a decision has to be made about a retrial. Scotland does not operate retrials in this way and there are no ‘hung juries’: the agreement of 8 jurors is required for a conviction, otherwise the accused is acquitted.”

I acknowledge Stewart Maxwell’s point, but will he confirm that although the English system is as he described it, there is no reason why a reform of the Scottish system would be confined to either maintaining the status quo or to imitating other jurisdictions?

I agree with Lewis Macdonald and I will make some more comments on that point.

I remind Stewart Maxwell that the terms of reference for Lord Carloway’s inquiry did not include a reference to the not proven verdict or to the current majority verdict. It was not part of his job to consider corroboration within that ambit.

I am well aware of the Carloway inquiry’s reasons for being, but I do not accept that Lord Carloway did not express a view on the issue. As I said, he felt that there was no direct connection between the two issues. If members let me develop the point, my view will become clearer.

On acquittal in other jurisdictions, an important point that is often overlooked by those who call for a change to majority verdicts is that in Scotland a person is either convicted or acquitted, and does not face being tried again under those circumstances. Whether we move away from simple majority decisions on juries is therefore not tied to any decision on corroboration. Instead, it is an issue that should be looked at on its merits. There may well be a case for a move to more qualified majority voting, but it is not reliant on the abolition of corroboration.

My final point on corroboration is that the absence of the necessity for corroboration does not equate to the necessity of absence of corroboration. Just because corroboration is not required does not mean that corroboration will not still form a part—probably a large part—of evidence gathering in criminal cases. Any change means that when corroboration is in some way redundant or unnecessary, it will no longer be a requirement. DNA is a very good example of that. However, I expect that when corroboration assists in proving a case beyond doubt it will continue to be used regularly.

In conclusion, I wish quickly to support some of the other recommendations in Lord Carloway’s report.

Do so very quickly, please. You are well over time.

I support the recommendations on liberation from police custody, on investigative liberation and on child suspects under 16 being unable to waive their right to legal advice. I also support the recommendation that rules concerning vulnerable adult suspects need to be placed in statute.

Finally, I welcome the fact that the Government is moving swiftly on the recommendations. I urge it to do the same on another area that has been the subject of a Scottish Law Commission report: the use of previous convictions under certain circumstances.

16:14

I was eager to speak in the debate in order that I could highlight my concerns about Lord Carloway’s recommendations on arresting and detaining suspected offenders. I have spoken many times in the chamber about the need for a uniform approach to the forgotten victims of the justice system—children. I was pleased by and I welcome Lord Carloway’s recommendations on child suspects, but I am disappointed that none of the recommendations on arrest and detention mentions children. Sadly, Scotland lags behind many of its counterparts on that. Poland and many jurisdictions in the United States have police protocols for arresting a suspect in the presence of a child.

According to a study by the University of Illinois, when a child witnesses their parent’s arrest, they often feel anxiety, suffer post-traumatic stress and feel scared, because nobody has explained to them what has happened and what will happen. Not only that, but the effect of witnessing a parent’s arrest can differ according to the child’s age and their stage of development.

Many members might not know that, last week, the UK published its response to the United Nations universal periodic review of human rights. One recommendation of that review was to

“Ensure that the best interests of the child are taken into account when arresting, detaining, sentencing or considering early release for a sole or primary carer of the child”.

The UK welcomed that recommendation, and being part of the UK means that we need to ensure that it is taken into account.

I welcome many of the recommendations that Lord Carloway made, but there is not, in all his proposals on arrest and detention, one mention of the rights of a parent and a child. If changes are to be made to arrest and detention of suspects, the rights of the child should be considered as well.

Even simple things such as allowing a parent to arrange for someone to care for their child while they are detained, or taking the child into another room when their parent is arrested, can make a huge difference to the child. Such action minimises disruption and unnecessary trauma to children by providing the most supportive environment possible during and after an arrest, and it cuts down intergenerational reoffending.

I feel that the review is lacking in its recommendations on arresting and detaining suspects, but I agree with Lord Carloway that corroboration should be abolished. Corroboration is an ancient and archaic law that is preventing justice from being served in some of the most heinous crimes, such as rape and serious assault. Judges and juries should be free to consider all the relevant evidence, and to say whether they are satisfied beyond reasonable doubt that the accused person committed the offence. Abolition of this outdated rule will bring Scots law up to date and into line with the law of many other countries, on how to approach evidence. However, if corroboration is abolished, it will be vital that we give careful consideration to the introduction of new safeguards to minimise miscarriages of justice that are based on uncorroborated allegations.

As many of my colleagues have pointed out, research by the Carloway review group found that, if corroboration had been removed, 81.7 per cent of rejected cases in 2010 could have proceeded to trial, with a reasonable prospect of conviction in 58.5 per cent of those cases.

I may accept that such cases might have got as far as the court door, but I do not see how it can be said that the prospect of success was reasonable when that has never been tested. We are back to juries or sheriffs looking at credibility, which we cannot prejudge. We would have to have run the cases to find out the outcome.

I thank Christine Grahame for her knowledgeable intervention; I may take advice. This is a grey area. We can only speculate on what might have happened and I can work only with the figures that were in the review document.

In 2009-10, 276,000 prosecution reports were submitted to the Crown Office and Procurator Fiscal Service, of which 242,000 were submitted by the police and involved 278,000 people. When corroboration is abolished, there will be many more court cases, and many more convictions and offenders in prison or serving community sentences. Scotland’s prisons are already overcrowded, and the number of prisoners is predicted to hit 10,000 by 2019-20.

Abolition of corroboration will mean that more cases will make it to court. I was, therefore, surprised to hear that the Scottish Government is looking to close many sheriff courts and justice of the peace courts. If corroboration is removed, that will have an impact on the work of the Crown Office and Procurator Fiscal Service as well as on the Scottish Court Service and the prison sector. There being fewer courts in which to prosecute offenders will mean that victims, witnesses and accused persons will have to travel extra distances, which will make it more difficult for people to attend court. That will result in the threat of more delays and disruptions to cases.

This does not seem to be the time to close courts while taking away a rule that has seen so many cases in the past rejected for trial. When that is coupled with the budget cut of £10.9 million over the next three years, which the Scottish Government has just announced, we could be looking at serious delays and disruptions to many court cases. Cases will be rushed through because of the backlog and many people will not receive the justice that they deserve.

Although I agree that corroboration should be removed from the Scottish legal system, the justice minister needs to look at the implications that its removal will have for the courts and prisons, or many cases may be delayed and the prison system may become overcrowded. If some of the proposals that have been mentioned today are enacted, we could be looking at a crisis in the courts and prisons in the years to come. Our justice system needs reform, but that reform must be carried out with care and consideration, with the protection of vulnerable people at the forefront of that deliberation.

16:22

In the debate in December, the cabinet secretary said:

“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.”—[Official Report, 1 December 2011; c 4249.]

Today’s wide-ranging debate has maintained the proper tone to help us all to be better informed as we move to further discussions on the subject.

I very much welcome the opportunity to return to justice debates. In session 1 I served on the Justice 2 Committee, and in session 2 I served on the Justice 1 Committee. Having a major prison in my constituency, I have taken a close interest in the penal system and have visited Peterhead, Porterfield and Saughton prisons. I have also visited Polmont young offenders institution, la Bapaume, near Paris, and Parc prison in Wales. I have visited sheriff courts in Dornoch and Glasgow, and I served on a jury 30 years ago at Linlithgow sheriff court. On one occasion, I visited the hospital for the criminally insane at Carstairs. However, none of that makes me an expert. I am surrounded by a lawyer, a policeman, a Queen’s counsel and another lawyer, all of whom have spoken in the debate and have expertise to which I am not going to try to aspire. Just as Rumpole of the Bailey might have been an Old Bailey hack, I am an old Parliament hack, in such matters.

We know that justice operates very differently in other countries. In 2006, I was in Georgia, in the Caucasus, on two occasions under the sponsorship of the Westminster Foundation for Democracy, running courses for local political parties on how democracy works. I had the opportunity to meet the Georgian justice minister, whose great claim to fame was that he had put 3,000 more people in prison and had reduced the time that people had to queue to visit their relatives in prison from a week to three days. That was a very different environment from the one that we face today.

It is obvious that not every customer of the system is entirely satisfied. I say that from the point of view of both the victims and those who are being prosecuted. When I was coming down to Parliament on the train yesterday, I heard an animated conversation in the seat behind me. One person was clearly a criminal; he had just broken the terms of his parole and thought that he was going down for four years. However, his chum trumped him, as he was up on an attempted murder charge and out on bail. I did not attempt to engage them to get more details; I thought that that might not be the thing to do.

On another occasion, I was in a cell in Saughton with six murderers—as a day visitor—and I was hearing their stories. One of them complained to me that, although he had served his life sentence and been released, he had been recalled simply because he had been present at another murder. He had not committed it—he had only been present, so he thought that it should not have counted.

Those stories show that we can probably discount significantly some of the things we hear about the criminal justice system and its operation. However, we should not imagine that we have a perfect system, and it is necessary that we examine the system and seek ways of improving it.

Several members have mentioned ways—such as television—of allowing people to appear in court before a sheriff without necessarily being physically present. That is important, as many of the current processes are done very much by rote and do not obviously contribute to justice.

I once visited Glasgow sheriff court with the Justice 1 Committee on a Monday morning. We were in the court for an hour sitting in the jury box, which was not being used. We saw 59 appearances being dealt with in a single hour, and we were left pretty baffled as to how any of that process contributed to justice. We should certainly consider any ways in which we can avoid, by using modern technology, having to aggregate a lot of people in one location.

Thinking back to my appearance as a juror at Linlithgow sheriff court some 30 years ago, and listening to our discussion today of the issues around corroboration and evidence, it strikes me that evidence is now a much more complex and diverse matter than it was 100 or 150 years ago. In the two-day trial on which I was a juror, I found that the sheriff was first class in summing up, explaining what was expected of the jury and outlining the tests that we might apply to the evidence in considering the guilt or innocence of the two accused in front of us, and which verdicts we should come to.

However, I cannot help but imagine that, given the increased complexity of evidence, the sheriff might usefully have told us about the sort of tests that we might want to think about as we heard the evidence and before we considered it.

In a two-day trial, one can think back to the start, but I had a professional colleague who was once on a trial that lasted for four months. I cannot even remember what happened last week most of the time, let alone what happened three months ago; I know that I am not alone among those of us who are of a certain age.

I will bring my remarks a conclusion as soon as the Presiding Officer nods more vigorously.

You have one minute.

Thank you. That is helpful.

About 150 years ago, we were looking very much at remembered evidence, and the evidence of what people saw was reported in court. Now, we are often looking at evidence that is recorded. Technology has provided the evidence, so the character of it and, therefore, how we should judge it are quite different.

It is 110 years since the first person was a victim in the criminal justice system of the benefits of dactyloscopy, which is the science of fingerprint recognition. From that point onwards, science became part of the evidence base, and we may not have fully caught up with everything that has come along since.

I am interested in Michael McMahon’s efforts on the three verdicts, but we should abolish the not guilty verdict and keep the not proven verdict, because that is the older of the two. Incidentally, in my experience in the sheriff court, there were, out of the 14 charges, seven not proven verdicts, five not guilty verdicts and two guilty verdicts. Juries are quite capable of dealing with such matters when they have the evidence.

We move to closing speeches. I remind all members who have taken part in the debate that they should be in the chamber. I call Annabel Goldie—you have a generous six minutes.

16:30

The debate has been interesting, if somewhat familiar. Last December, Parliament debated the Carloway review recommendations; nine months later, the Scottish Government has failed to advance the debate, because we are now considering a consultation that largely replicates the recommendations in the report, despite extensive criticism surrounding the proposed ending of corroboration.

Although it is understandable—as the cabinet secretary said—that the controversial proposal to abolish corroboration has been the focus of comment and debate during the past few months, another important element has been overlooked: the fact that the review recommendations that relate to arrest, detention, custody, investigation and the interrogation of suspects all go to the very heart of compliance with the European convention on human rights. We must do all that we can to avoid the situation that arose out of the Cadder case, when Parliament was forced to debate emergency legislation to ensure that Scots law complied with basic human rights.

That failure lay with the Scottish Executive of the time. It did not, as the First Minister and Cabinet Secretary have suggested in the past, lie with the Supreme Court. However, there is clearly a debate to be had surrounding the abolition of corroboration; one has only to listen to the contributions from members this afternoon—including, encouragingly, from some Scottish National Party back benchers.

The abolition of corroboration might mean that more people can be prosecuted, but that does not mean that more people will be convicted. Experience suggests that where the burden of proof is reduced for the prosecutor, reasonable doubt may loom larger for the jury. If a jury is in doubt after hearing all the evidence, because non-corroborated prosecution evidence is simply denied by the accused, the jury will acquit or find not proven. I have to say that I thought that Christine Grahame made a robust and courageous speech in that respect.

That bodes ill for me.

In support of the point that I have just advanced, I remember the review of sexual offences that was published in 2006. It made 50 recommendations that were designed to improve the investigation and prosecution of rape and other sexual crimes. All 50 recommendations, including a number on decisions to prosecute and evidential requirements, were implemented by the summer of 2009.

However, convictions for rape and attempted rape still remain very low—indeed, they were at their lowest level in 2010-11, when the proportion of reported rapes and reported attempted rapes leading to conviction was 3 per cent.

A number of members—including Colin Keir and Sandra White—rightly signalled their concerns. I urge the cabinet secretary to listen very carefully to those concerns.

It is also the case that if a jury does convict, an equally alarming consequence of the abolition of corroboration is the prospect of miscarriages of justice, particularly if—as some members have indicated—related aspects of Scots criminal law are not also considered.

The SNP has undergone something of a change of heart on the issue. The Cabinet Secretary now describes corroboration as a rule

“that stems from another age”

and appears to be hell-bent on abolishing it, regardless of what the experts say. However, I observe that he is the same individual who thought it appropriate to claim that two of Scotland’s most senior and universally respected judges in the Supreme Court had gained their knowledge of Scots law through visits to the Edinburgh festival.

The cabinet secretary has previously castigated the Cadder decision as being one that

“overturns decades of criminal procedure in Scotland, a proud, distinctive, justice system, developed over centuries, and predicated on fairness with many rigorous protections for accused persons.”

Those are bold and stalwart words that I entirely support. The irony is mocking: by “rigorous protections” the cabinet secretary was, of course, referring primarily to—yes—corroboration; a principle of evidence that he robustly supported when lambasting the evil Supreme Court.

The Law Society of Scotland, the Faculty of Advocates and Justice Scotland have all warned against implementing the corroboration recommendation in isolation. This is not about the establishment resisting change—this is about effecting change that makes things better, not worse.

We are talking about getting a major change to a criminal legal system right and not reforming it in a higgledy-piggledy and illogical fashion. Removing the requirement for corroboration without seriously considering introducing other safeguards against miscarriages of justice would not only be dangerous; it would also be a missed opportunity to consider related matters. Some of those matters have been referred to this afternoon; for example, majority verdicts, and the burden of proof in criminal cases being beyond reasonable doubt. Should Scottish judges be able to warn juries about the reliability of a single piece of evidence, as is the case in England and Wales? What about the not proven verdict?

The Scottish Government’s consultation has given only passing consideration to those questions. It is, perhaps, unsurprising that Lord Carloway did not recommend a full-scale review of Scottish criminal procedure. That was not his remit, as Christine Grahame rightly observed, but the proposal to abolish corroboration in isolation is causing widespread unease, which is clearly shared by members of Parliament across the political parties. In December last year, the convener of the Justice Committee, Christine Grahame, listed no fewer than seven concerns that she had heard against removal of the requirement for corroboration without wider reform.

Stewart Maxwell has called for a debate on majority verdicts, and Colin Keir has said that now is the appropriate time to re-examine the three verdicts. Almost a year on, it is worrying that the Scottish Government has failed to listen to such legitimate and reasonable concerns, many of which have been echoed by the cabinet secretary’s own colleagues during this afternoon’s debate.

Although I appreciate that the cabinet secretary wants to press ahead with the useful reforms that Lord Carloway has proposed, I urge him to exclude corroboration from the forthcoming criminal justice bill. The issue needs to be part of a wider debate and it needs to be informed by the very sort of evidence that Mary Fee, to her credit, confessed she did not have, and which Christine Grahame quite rightly indicated is an essential part of informing the debate.

For that reason, although I have found today’s debate to be genuinely interesting, I support my colleague Margaret Mitchell’s amendment.

16:37

It is a pleasure to speak in this afternoon’s debate on all these important issues in the landscape of Scots law and evidence. The Parliament is being asked to consider some of the most far-reaching reforms to Scots law, and it is important for us to debate them well and often to get the changes absolutely correct for everyone who is involved in the legal system, not least the victims of crime in our country.

I start by considering this afternoon’s debate. We have heard many informed and learned speeches, in which members have raised good points that I hope the minister will consider during his closing speech, and which we should all take to committee and to subsequent debates.

I was hoping to intervene on Roderick Campbell, but I did not want to interrupt him because he always makes very learned speeches on these issues. I wanted to pick up on a point that he made in his opening remarks about Cadder and the emergency legislation that the Scottish Parliament had to consider as a result of that judgment. Annabel Goldie also picked up on that point. Last year, in its manifesto, Labour proposed to conduct a full audit of Scots law to make sure that the law in our country is ECHR compliant. Such a full-scale audit would prevent scenarios such as the emergency legislation that we faced in the wake of the Cadder case.

On the Cadder judgment, how would an ECHR review have affected the position, given the appeal court’s decision in HMA v McLean? Is the member suggesting that our review could have overturned the decision of a High Court bench?

No, I am not suggesting that. I am suggesting that we need to look forward and consider Scots law with an eye on ECHR. The Cadder judgment was not the first time that Scotland had heard of the problem with section 14 of the Criminal Procedure (Scotland) Act 1995; there had been the Salduz case a few years earlier. Such an approach would have given the Parliament a bit more time to prepare and we would not have had to consider emergency legislation. I hope that ministers might consider carrying out such an audit as part of a wholesale look at Scots law.

Roderick Campbell also made points about the resource implications of the Carloway proposals, and there were many other thoughtful speeches. Christine Grahame drew the Parliament’s attention to the fact that we must consider the majority verdict. Malcolm Chisholm made a good speech in which he pointed to Professor Fiona Raitt’s points on the sufficiency of evidence. As a result of his speech, I think that we will all read Professor Raitt’s comments. I understand that she has called for a wholesale review of the law of evidence. Ministers might want to comment on that, because it perhaps does not serve the system properly to look at the issue in a piecemeal fashion.

Mary Fee made welcome remarks about children. The voice of children is often drowned out in debates on Scots law, but she advocates powerfully for children’s rights in the legal system, and under these proposals.

I am glad that the cabinet secretary took the time to bring the motion to Parliament, because it is important to debate the proposals often and well. We have heard in the debate that many questions remain to be answered on the Carloway review and how it is to be implemented. Although I generally support many of Lord Carloway’s recommendations, it strikes me as a little curious that the cabinet secretary should bring the debate to the chamber before the consultation on the proposals has even closed and therefore without the evidence that has been offered by legal experts. Nonetheless, the debate is a good opportunity.

It is clear to me from the speeches made today that we need further detailed consideration of and debate about how we can effectively implement Carloway’s recommendations. Full engagement with stakeholders is a necessary part of that debate. The end of the requirement for corroboration in Scots law would be a major shift, not only in the way that verdicts are reached in our courts, but in the number of cases that will reach our courts in the first instance. It is vital that we have the foresight to envisage the impact that the removal of corroboration would have on our legal system.

We have heard that the pressure that is being put on our court services through budget cuts and the proposed closures of sheriff courts throughout the country would undoubtedly have a bearing on the courts’ ability to undertake a much bigger case load. From that perspective, I ask the cabinet secretary to consider fully the consultation on the future of our courts, not just through the lens of the challenging financial situation that he faces, but through the lens of promoting effective and speedy justice for victims of crime, as Carloway recommends. I am in no doubt that limiting the number of jury trials too much and closing too many courts could have an adverse effect when the Carloway recommendations are implemented.

We have heard about the complexities that surround the proposal to make any change to the corroboration rule retrospective in its application. Not least of those is the potential to put our police service and Procurator Fiscal Service under considerable strain as a result of dealing with an increased case load and the reopening of cases that did not originally come to trial. As has been mentioned, in 58.5 per cent of cases in 2010 that did not go to trial because of insufficient evidence there would be a reasonable chance of conviction if the need for corroboration were removed.

I want to test the member’s presumption. In my speech, I referred to evidence that shows that the significant changes to the way in which we prosecute rape, attempted rape and sexual offences have not led to an increase in convictions. How can the member assert that simple abolition of corroboration will ensure more convictions?

I do not think that that is exactly what I asserted. I am saying that we need to look at things in the round to ensure that we get more convictions; we also need to look carefully at the proposals for corroboration to see what impacts they may have.

We have heard of the need to consider the changes in the wider context of access to justice. Christine Grahame eloquently outlined Carloway’s remit and gave the Government good reason to think carefully about the proposal from my colleague, Michael McMahon, who has quite rightly taken a broader view of criminal justice that includes a debate about the not proven verdict.

Those are just a few of the issues that the SNP must face up to if it is serious about improving our criminal justice system. The principles underlying Carloway’s recommendations are good—they are based on the rights of victims and witnesses to speedy and efficient justice, and they have their roots in human rights legislation.

If we are to have a fully informed debate about the virtues of the report, we must include the voices of all interested parties from all corners of our justice system. We must have a holistic assessment of the criminal justice landscape, too—one that includes Michael McMahon’s proposal for reforming the verdicts that can be reached in jury trials.

16:46

The debate has been good and wide ranging, with some contributions that were excellent and to which I will return.

A point was made about the debate being premature, and the issue of timing was raised by Helen Eadie. I assure her that, as I said to Lewis Macdonald, we are not at the end of the process. Further debate will be required, especially given the safeguards that we have commented on, and the bill will be subject to full parliamentary scrutiny.

In Annabel Goldie’s closing remarks, she was critical that we had been dilatory in not moving fast enough since a debate last December; she also seemed to say that we are going too far, too fast. Doubtless, as ever, the truth is somewhere in the middle.

Rod Campbell made an excellent speech in which he pointed out that corroboration has been, understandably, the basis and focus of debate externally and in the chamber. He commented on the many other significant matters that require to be considered and addressed. We will have to come back to them.

Rod Campbell and others, including Lewis Macdonald, commented on the issue of police bail, which we need to take a significant look at. Lord Carloway has made proposals, and there are safeguards in the operation of the bail system, but there are doubtless opportunities for the Crown Office and Procurator Fiscal Service to move for, and the court to grant, bail on strict conditions.

A variety of issues relate to that, but whether we are dealing with the victims of domestic violence or other victims, we must ensure that the circumstances are right. I assure Rod Campbell—who correctly raised issues other than just corroboration—and Lewis Macdonald, who raised that particular issue, that we agree that we need to look at it carefully. However, I believe that there are sufficient initial checks and balances in the system—as a chamber, we have recognised that over many years. There has been frequent comment on the issue; indeed, the policy directions given by the Crown in relation to advice and guidance on police bail and other matters have changed.

The SCCRC has also been mentioned, and we must consider that, too. In particular, the interests of justice test has been touched on by some. I think that Lord Carloway was right when he anticipated that people would perceive that the gatekeeper role was, once again, being given to the High Court to close matters down. I refer members to the evidence given by Lord Carloway to the Justice Committee. He stated that he sees that test being applied in situations such as when the High Court receives new information about a case. That new information may not have been included in the SCCRC reference, or it may have emerged since the reference. Therefore, rather than seeing that as a duplicitous act, we should see that Lord Carloway was seeking to assist the SCCRC when further matters may have come to light. We should look more closely at the evidence that was given.

Regrettably, I do not have a copy of what was said with me, but I know that the committee challenged Lord Carloway on that very point. That leaves it open to the High Court, when there has been a miscarriage of justice—notwithstanding everything else—to come out with the line that it is not in the interests of justice to allow an appeal. That cannot be right in principle.

We have to look at the issue in the round, which is why it was appropriate for Rod Campbell to mention that there are aspects other than corroboration that need to be looked at. I think that Lord Carloway was seeking to assist in situations in which new evidence may have come to light that could not have been available to the SCCRC. That is an issue that Ms Grahame’s committee and others will no doubt look at; I just thought it important that we should put on record where we are in that regard.

As with the debate externally, the focus in this debate has been on corroboration. There are three questions that we must consider. Why do we have corroboration in Scots law? What has changed? If we are to abolish corroboration, what safeguards require to be given? Margo MacDonald dealt with why we have corroboration. When I asked Lord Carloway about the issue, he indicated—as I think is mentioned in his report—that, as far as he could see, it goes back to Romano-canonical law. It is not for me to criticise Romano-canonical law, which is the basis of law in many jurisdictions and which has doubtless provided great support. Scotland has benefited from the fact that the civil law that we have practised is based on aspects of Roman law. There no clarity on the basis on which corroboration came in, but it came in at those times.

I am grateful to the cabinet secretary for outlining to the chamber the eminent origins and the genesis of this important principle, but if it was rubbish—as he seems to think—why has it endured for so long?

I do not think that I have ever suggested that it was rubbish. I think that Annabel Goldie denigrates my argument. Stewart Stevenson made a valid point when he said that things have changed. We must take account of that. We had corroboration at a time when some of the judiciary lacked education and legal expertise. The situation now is different. We did not have DNA evidence, which provides certainty to the millionth degree, or video evidence. The world has changed. Matters require to be considered in that context, in the round.

Margo MacDonald spoke about the basis for the intention to remove the rule of corroboration. The intention is to enable the court always to have the best evidence before it, so that it can assess its credibility. As Lord Carloway stated, corroboration can be seen as an archaic rule. We want to focus more on the quality than on the quantity of evidence, as John Finnie said.

Corroboration has served Scotland well. Equally, the 110-day rule—which, as Annabel Goldie will recall, was viewed as one of the gold standards of Scots criminal law when I was going through university—has gone, but Scots law has not collapsed. We have moved into the 21st century and recognised that some changes need to be made. We must set corroboration and why we have it in context, and look at what has changed.

As many members have said—and as Lord Carloway accepted, although he did not think that it was appropriate for him to address the issue—there require to be safeguards. As an Administration, we, too, accept that there require to be safeguards. The primary matter that has been raised was mentioned by Michael McMahon, with whom we have been in communication. We are happy to take on board the valid work that he has already done, for which we are very grateful to him. The verdict system has to be looked at. We will not prejudge what the outcome of that process may be, but I accept that it is valid for the verdict system to be examined. I welcome the contribution that Michael McMahon has made through his consultation, and we look forward to being able to build on that.

I am not a member of the Justice Committee, but I have listened to the debate with interest. Traditionally, the operational practices of the police have been based on corroboration, and we are used to seeing our police officers operating in pairs. Can the cabinet secretary reassure us that, if the need for corroboration is removed, the single deployment of policemen would not be adopted without the risks being fully assessed?

Absolutely. First and foremost, we must recognise that Lord Carloway made clear something that is accepted by the Crown: in the vast majority of cases there will be no change to the evidence that is required. Preferably, there will be evidence from more than one source, and if there are two eye witnesses, that will be even better—the more, the merrier. I give an assurance that we do not have a desire to change the whole way that either the police or, indeed, the Scottish legal system operates. It is a matter of making sure that we go for quality of evidence, not quantity.

Some members have spoken about how matters can be agreed. I have been involved in discussions with a major Scottish financial institution at the request of one of Scotland’s constabularies—representing the views of all constabularies—about the problem that they have faced whereby they must routinely send two officers down to London to pick up information to be used in prosecutions. Christine Grahame is right: we have agreement of joint minutes of admissions. Equally, however, routinely, two officers are required to pick up and speak to what is, in effect, a label. They do not know what the item is; they just say, “I was the officer that flew south. I picked this up along with my colleague and that, before you, is the item I uplifted.” Frankly, that is nonsensical. When folk worry about costs, let us look at that.

Let us look at what others think. I surprised that the Tories did not refer to this, but

“If abolishing corroboration means that more people can be brought to trial then that is to be welcomed.”

It was not me who said that—it was David McLetchie. I have to say that I am not necessarily looking to see more people prosecuted, but I think that the right people should be prosecuted.

I take on board the view of Scottish Women’s Aid, which has said:

“Our organisation’s clear position is that the implications of removing the requirement for corroboration must be explored further. However, in doing that, we should look not at what will happen if that is done but at how we can make such a move work.”—[Official Report, Justice Committee, 20 December 2011; c 780.]

The Tories should take that on board.

Does the cabinet secretary accept that increasing the number of accused brought to trial will be a complete chimera if we do not increase the number of convictions based on persons presented for trial?

It is not for me to increase the number of convictions—that will be for the judicial system. We have to make legislative changes that may change how the scales of justice are balanced. We are looking to make sure that justice is done. That is why I will also quote the views of Susan Gallagher, the deputy chief executive of Victim Support Scotland, who said:

“The recommendation to eliminate corroboration in Scotland is particularly welcome as long as any test applied ensures that it does actually lead to better quality of evidence.”

I refer the chamber to Malcolm Chisholm’s speech. This is not about getting more convictions per se; it is about achieving justice. If people who should be convicted because they have perpetrated heinous crimes are going free, we owe it to victims and our broader communities to achieve justice. This is not simply about a system of rules of engagement for m’learned friends on either side—prosecution and defence; it is about making sure that we address the problem.

In confirming that the objective is not to get more convictions and in accepting that the outcome will be more prosecutions, will the cabinet secretary also accept that resource implications arise from that? Will he tell the chamber how he intends to address them?

We and the Crown do not necessarily accept that. The figures may be offset by the increased likelihood and propensity of people to plead guilty, because the evidence will be quite clear and there will not necessarily be the same palaver to be gone through.

I thank the cabinet secretary for some of the reassurances that he has given members this afternoon.

In his final comments, will the cabinet secretary refer to the question that I asked him about ensuring that the children’s hearings system matches up with the proposed changes, especially when dealing with children under the age of 18?

Obviously, the children’s hearings system sometimes deals with civil matters, where the burden of proof is different. Clearly, matters that are referrals follow the same circumstances elsewhere. Both Aileen Campbell and I will deal with that issue, and I will be happy to come back to Christina McKelvie on that.

On resources, the Administration does not envisage that there will necessarily be a huge increase in resources. There is on-going cant and hypocrisy from the Labour Party, which presided over huge cuts south of the border—Alistair Darling’s cuts were to be deeper and tougher than those of Thatcher—that have been slightly mitigated by the Conservative Party. When we bring forward proposals to streamline matters, whether we are talking about the Scottish police service, the Scottish Court Service or legislative changes, all we get from Labour members is a palaver of matters that would involve increased expenditure—they never tell us where they would make cuts.

The reforms will ensure that we protect justice. I welcome Lord Carloway’s submission to the Parliament.