Criminal Justice (Scotland) Bill: Stage 1
The first item of business this afternoon is a debate on motion S4M-09160, in the name of Kenny MacAskill, on the Criminal Justice (Scotland) Bill.
I am delighted to open this stage 1 debate on the Criminal Justice (Scotland) Bill. The bill contains a significant package of wide-ranging reforms to our criminal justice system, so I record my appreciation of the time and consideration that the Justice Committee gave it. I also formally record my thanks to the many stakeholders and individuals who gave evidence to the committee.
Today’s debate is of course about seeking agreement to the general principles of the bill. There are three general principles that underpin all the progressive reforms that are contained in the proposed legislation. First, the bill will modernise and enhance our justice system and update our procedures from the point of arrest onwards. Human rights are at the heart of the bill. It will ensure that people who are suspected or accused of criminal offences have improved and enhanced rights and protections.
Secondly, the bill makes necessary efficiency changes to our justice system. For example, there are changes to our system of appeals and changes to enable greater use of technology by our courts.
The third but equally fundamental principle is about bringing fairness for those who fall victim to criminal acts and the wider duty to protect our society. That includes providing for greater access to justice for victims by ensuring that cases can go forward based on the overall quality of evidence, and creating a statutory aggravation for offences that are linked to the appalling activity of people trafficking.
I will highlight some of the positive effects that I believe the reforms in the bill will have in meeting those principles. Part 1 sets out a new and modernised power of arrest for the police. It creates a single power of arrest on suspicion of having committed an offence. The current two-tier system of detention and arrest is complex and covers a myriad of powers that are spread across common law and statute. The bill provides for a more streamlined and effective process. The provisions will improve the law and will make it easier for the police to apply and the public to understand. The single power of arrest will also bring the Scottish system more into line with the European convention on human rights.
The bill enhances provisions on a suspect’s right of access to a solicitor, whether or not they are going to be questioned, and it puts the letter of rights on a statutory footing. It also protects the rights of children and vulnerable people. Scotland’s Commissioner for Children and Young People has welcomed the fact that the bill defines a child as someone under 18. Additionally, the bill allows a protected level of self-determination for 16 to 17-year-olds, in recognition of the fact that those young people are, in other circumstances, entitled and able to make their own decisions.
The bill also reflects the fact that modern policing needs modern powers. Today’s investigations are often complex and protracted. In part, that is down to recent developments in technology. Police now regularly have to extensively examine electronic data, which takes time. The bill seeks to balance the needs of the modern investigation and the rights of a suspect to liberty. As part of that, the bill introduces investigative liberation, which will enable the police to continue to investigate incidents while allowing a suspect to be at liberty, with or without conditions.
I am aware of calls by the police to allow for possible extensions, in exceptional cases, to the 12-hour detention limit for keeping people in custody. Extensions are used very rarely but can be essential for the investigation of some of the most serious criminal acts, or, for example, where the suspect is intoxicated. There is a particular issue here about balancing an individual’s right to liberty against the public’s right to be protected. I would like to hear members’ views on the potential for an extension to the 12-hour detention limit in exceptional circumstances.
The bill also includes a number of provisions that will improve the efficient operation of our justice system, reducing unnecessary delays and wasted court time. Efficiency in solemn procedure will be enhanced, for instance by the creation of a duty on the prosecution and the defence to communicate before a trial to ensure that the case is ready to proceed.
As part of the package of reforms, the bill increases the pre-trial time limit from 110 days to 140 days, in line with that for the High Court. I am pleased that the Justice Committee has accepted the need for that change, and I confirm that we will monitor its implementation. In addition, the bill takes forward many of Lord Carloway’s recommendations on ensuring that appeals are handled in a timely manner. It is in everyone’s interests that appeals proceed in good time. That will mean faster resolution for both appellants and victims.
However, the bill’s scope goes beyond the modernisation of practice and extending the rights of suspects, as it also seeks to improve how we as a society respond to criminal behaviour. For example, by increasing the maximum term for handling offensive weapons, we will send a clear message about the consequences of carrying knives on our streets.
The bill also seeks to improve the way in which we pursue criminal cases. The past three years of debate have brought home the obligation on the Government—and indeed the Parliament—to protect all our citizens. We must answer the concerns that have been aired by brave individuals, support groups and campaigners that justice is not being delivered for victims across whole categories of crime. I acknowledge that there are legitimate concerns about how our system will work without the requirement for corroboration. The committee has done its duty in giving the matter full consideration. For my part, I have listened, I have reflected and I have acted. Lord Bonomy will undertake a thorough review of the changes that might be required as a consequence of abolition. He has assembled a veritable powerhouse of expertise on Scots criminal law.
What does the Government have to fear from including consideration of whether or not to abolish corroboration in the remit of the Lord Bonomy review?
I say to Ms Mitchell that I am quite clear that, as I will go on to say, the case for abolition has been made. It has been made and supported by prosecutors and by the police, but it has been made and articulated most effectively by Victim Support Scotland, Scottish Women’s Aid and Rape Crisis Scotland. I stand with and I stand for those organisations.
Will the cabinet secretary take an intervention?
Not at the moment.
The work of the distinguished experts in the review will allow us to modernise our system and ensure that it is in balance. I have complete confidence that the review will answer any and all of the legitimate points of concern that have been raised.
To be clear, the corroboration reform will not take effect until any legislation that is introduced in light of the Bonomy review is approved. The Parliament will be afforded a full opportunity to ensure to its satisfaction that the new system will be in balance. To that end, I will lodge amendments at stage 2 to tie abolition to any reforms that are brought in light of Lord Bonomy’s review. We will discuss the exact mechanism with the parliamentary authorities, but at the very least I would expect a draft order to be published and consulted on, with sufficient time for committee evidence taking and a chamber debate. That process would result in an amended order being put to the Parliament.
Will the cabinet secretary take an intervention?
Not at the moment.
All of us here share the same goal: a balanced and effective criminal justice system, and one that is safe and secure. Lord Bonomy’s review will give the Parliament an historic opportunity to remake our system. In doing that, we cannot forget the many voices that have raised concerns about the miscarriages of justice that occur now, under our current system. Too many compelling cases—often involving crimes that have been committed in private—cannot even make it to our courts because of this outdated rule.
The cabinet secretary, the Lord Advocate and, indeed, Scottish Women’s Aid have all openly admitted that the removal of corroboration will not in itself result in more convictions. Why is the Government proceeding with the proposal and raising false hopes? [Interruption.]
One of our most distinguished judges said that we cannot have a whole category of victims who are routinely denied access to justice. We cannot have those who suffer rape or domestic offences, those who suffer domestic abuse behind closed doors, those who are young, those who are vulnerable and those who are elderly preyed upon, picked upon and routinely denied access to justice.
Will the cabinet secretary take an intervention?
Not at the moment.
The voices of brave individuals have been echoed by those of the professionals who see the very personal and devastating impact that the corroboration rule can have in practice—not only our police and prosecutors but groups such as Victim Support Scotland, Rape Crisis Scotland and Scottish Women’s Aid, all of which play such a vital role in supporting the victims of crime. On Wednesday, I visited the Glasgow-based advice, support, safety and information services together project, which does great work to support the victims of domestic abuse.
Will the minister give way?
Not at the moment.
The difficulties posed by the corroboration rule to the pursuit of individual real cases could not be more apparent.
We have heard from Police Scotland that there are more than 3,000 cases every year that it cannot send to prosecutors because of the corroboration rule. Those are cases where there is quality evidence that, in other systems, would merit further consideration.
We cannot refuse to listen. We are talking about not just hundreds but potentially thousands of compelling cases in which people are being denied justice in this country under the current system. Those are not just numbers; real people’s lives are affected.
Will the cabinet secretary take an intervention?
Will the cabinet secretary take an intervention?
After so much debate, we must now act. The bill sends a clear message that Parliament has listened and is acting to address that injustice.
The corroboration reform must stay in the bill. Commencement must wait until Lord Bonomy reports, but there must be no unnecessary delay. The reform must go forward now in this legislation. If members vote to take the provisions out of the bill, they are voting to continue that injustice in Scotland for so many people.
Will the minister give way?
Not at the moment.
Outrageous!
Order, Mr Rennie.
The extent of that injustice is clear. Research for the Carloway review identified that, in 2010, 268 serious cases were dropped after the initial court appearance—cases in which there would have been a reasonable prospect of successful prosecution. The Lord Advocate has said that there were 170 rape allegations in the past two years where no proceedings were taken because of insufficient evidence. Crown Office research from last year suggested that around 60 per cent of domestic abuse cases—2,210 cases—could have progressed under the new prosecutorial test.
I have listened and I have acted on the legitimate concerns that have been raised.
Will the minister give way?
I now ask Parliament to listen to the voices of those representing some of the most vulnerable people in our society and to support the general principles of the bill in its entirety. I repeat that abolition will not occur until Parliament has approved any additional reforms brought forward in light of Lord Bonomy’s review. With that assurance, I invite Parliament to approve the new guiding principle for our system—that cases in future will go forward based on the overall quality of evidence.
Will the minister give way now?
The minister is in his final minute.
We need to set that important principle now and move discussion on to how to ensure a modern, efficient and fair justice system that is fit for 21st century Scotland.
The bill contains many important reforms. I look forward to a constructive debate.
I move,
That the Parliament agrees to the general principles of the Criminal Justice (Scotland) Bill.
14:44
I thank the numerous witnesses who gave evidence and the Justice Committee clerks for their work in helping committee members to compile the stage 1 report on the Criminal Justice (Scotland) Bill. I also pay tribute to the convener of the committee and my fellow committee members for their efforts and for the spirit in which that powerful and compelling report was produced.
The bill will implement recommendations that were made in two separate expert reviews: those from Sheriff Principal Bowen, on sheriff and jury procedure, and those from Lord Carloway, on criminal law and practice. The Carloway review was set up in the wake of the Cadder case, which resulted in the provision that suspects have the right to legal representation when they are detained for questioning by the police.
Part 3 of the bill, on solemn procedure, was welcomed by the committee. It includes the proposal to introduce meetings between prosecutors and the defence and others to reduce unnecessary delays in criminal trials.
Part 1 contains provisions on arrest and custody. In attempting to simplify powers of arrest, there is a real danger that the proposed changes have instead done little more than confuse the situation. For example, at present the general public realise that, when a suspect has been detained for questioning, they have not been charged, and the presumption of innocence is still very much evident. I believe that, by changing the term to “arrest”, the public perception will be that the person is, to use the cabinet secretary’s phraseology, “officially accused”.
Indeed, the cabinet secretary’s response to the report and the introduction of terms such as “officially accused” and “not officially accused” do little to allay those fears. In giving evidence, the cabinet secretary also introduced the somewhat unhelpful term “de-arrest”, and said that he would bring forward a provision on that in an amendment at stage 2. I am glad that he has decided to drop that rather ridiculous wording.
The cabinet secretary’s deafness to the justified concerns about part 2 of the bill and the provision in section 57 to abolish the general requirement for corroboration has caused a storm of controversy. He has consistently attempted to misrepresent and polarise the debate, with victims on one side and the legal profession on the other. That is not only a complete distortion; it insults all those who oppose that move, including those who signed my amendment.
I do not doubt the cabinet secretary’s concern for victims; equally, I do not doubt the concern of leading judges, the Law Society of Scotland, the Faculty of Advocates, the Scottish Human Rights Commission and the cross-party group on adult survivors of childhood sexual abuse. All those organisations oppose section 57 not because they have an axe to grind but because they do not believe that it would be in the interests of the criminal justice system or victims of crime.
Margaret Mitchell missed out the police and prosecutors. Do they not have a say?
I listed the people who have expressed their opposition. As the cabinet secretary knows, for one reason or another the police gave very confused views and changed their position during the evidence sessions.
The views of those who have expertise and in-depth practical experience of the operation of the criminal justice system cannot and should not be dismissed, but the cabinet secretary has attempted to do that with well-rehearsed assertions, including the assertion that corroboration is archaic. In fact, as Lord Gill eloquently explained when he gave evidence to the Justice Committee,
“The rule of corroboration is not some archaic legal relic from antiquity. We did not get where we are by accident. The fact that our law has this rule—a rule that I regard as one of its finest features—is the result of centuries of legal development, legal thought and the views of legal writers, politicians and practitioners down through the ages. It has been found to be a good rule. I simply ask the committee to listen to the wisdom of the ages—it has a lot to tell us.”—[Official Report, Justice Committee, 20 November 2013; c 3730.]
Will the member give way?
Not just now.
Furthermore, a key part of the Government’s argument for abolition of the requirement is that access to justice will be improved, especially for the victims of interpersonal crimes, such as rape and domestic abuse.
Will the member take an intervention?
I want to make some progress.
More prosecutions does not mean more convictions, and there is nothing just in putting victims through the ordeal of gruelling interrogation by the defence when, under the Government’s proposal, their evidence could be the only source available and they would just end up seeing the accused acquitted.
Corroboration is not an overly onerous requirement, particularly in the light of the increasing availability of closed-circuit television and DNA evidence.
Will the member take an intervention on that point?
No, I am sorry—I must make progress.
Furthermore, corroboration does not require each and every single fact to be backed up with additional evidence. The rule applies only to the essential facts of a case: namely, that a crime was committed, and that the accused committed it.
Will the member take an intervention on that point?
In that regard, there is a definite need to look at how the Crown applies the requirement and whether the belt-and-braces approach, in which every fact is corroborated, is necessary or whether it is preventing cases in which there is a realistic prospect of conviction from going to trial.
Will Mrs Mitchell give way?
Not just now, Mr Stewart—I may be able to give way as I progress with my speech.
In the meantime, the introduction of independent legal representation for rape victims to help to stop the use of irrelevant prejudicial information in court has the potential to make a difference in tackling the low conviction rates for rape.
As the legitimate arguments against abolition have mounted, the cabinet secretary’s handling of the issue has not been his finest hour. In one evidence session he contradicted himself, first telling the committee that the abolition of the general requirement could not be removed from the bill as it must be implemented immediately to give access to justice for victims of rape and domestic abuse, but then stating that it was necessary to take time to get the legislation right.
In general, the cabinet secretary has been on the back foot, and he has reacted to mounting criticism of the section 57 proposal with yet another consultation. Even on the day on which the committee signed off its stage 1 report, the cabinet secretary announced a further review. The membership of the review group, which is to be led by Lord Bonomy, was revealed only two days ago.
As a result of the mishandling of the issue, the Scottish Government is now in the ludicrous position of promising a review after corroboration is abolished. The Carloway review, on which the cabinet secretary has relied, was fundamentally flawed as it looked only at the options of retaining or abolishing corroboration. The third option of retaining corroboration but including it in a wider review of the law of criminal evidence was not considered.
The criminal justice system needs to be examined as a whole. When he was asked directly by Sandra White, Lord Gill told the Justice Committee that the corroboration proposal should be taken out of the bill and examined as a separate entity. He said that that
“would not be a way of avoiding the problem; it would be a positive way of getting a better outcome.”—[Official Report, Justice Committee, 20 November 2013; c 3721.]
I do not believe that the cabinet secretary truly believes that retaining section 57 is the best way to legislate.
Will the member take an intervention now?
I will make progress.
The cabinet secretary is asking the Scottish Parliament to pass bad law and to vote to abolish corroboration before we know what system will replace it on a promise that the review, about which little is known, may fix the issue.
The Parliament’s integrity is at stake. The Justice Committee is not convinced by the Scottish Government’s proposal, and the Government should listen. For the Scottish National Party-led committee to take that view should give the cabinet secretary pause for thought, and the fact that the reasoned amendment in my name has been lodged with support from the Opposition parties and independent members John Finnie and Margo MacDonald indicates the strength of feeling among members of the Parliament about the Government’s proposal in section 57. Margo MacDonald has confirmed in no uncertain terms her opposition to section 57, and I ask members to note her comments.
Labour, Conservative, Liberal Democrat, Green and independent members have come together and put party differences behind them in order to focus on the issue of corroboration. I hope that the Parliament will prove itself to be a mature legislature that is able to listen to reason, and that MSPs who have concerns about section 57 and how the issue has been handled will vote for the amendment, or at the very least make a principled abstention.
I move amendment S4M-09160.1, to insert at end:
“but, in so doing, calls on the Scottish Government to lodge an amendment at stage 2 to remove the provisions abolishing the general requirement for corroboration.”
14:54
I welcome the opportunity to speak in this debate on behalf of the Justice Committee, which was the lead committee for consideration of the Criminal Justice (Scotland) Bill. I emphasise that I am speaking as convener, not as an SNP back bencher—no doubt some folks will be pleased to hear that. I am constrained to that role and therefore cannot comment on the cabinet secretary’s announcements subsequent to the committee’s report. In a way, I am not even part of the debate; I will just lay out the background to our report.
That said, like Margaret Mitchell, I thank all committee members, who spent long and focused sessions, whatever others think of their views, dealing with the bill and doing so for the most part with good humour and good manners, even when some felt frustrated by answers. On behalf of the committee, I thank all those who provided submissions and gave evidence to the committee. We forget those people, but we received 54 submissions and 11 supplementary submissions, and we took evidence from over 50 witnesses at 11 meetings between September 2013 and January 2014. There was a real consideration of the issues, which I think is reflected in the divergence in our report. I thank, too, the Finance Committee and the Delegated Powers and Law Reform Committee for their useful reports.
The bill is, as we know, significant and complex, and covers a wide range of areas, although almost all the proposed reforms have been buried, understandably, by the focus on the reform relating to corroboration. As Margaret Mitchell has already said, the bill broadly implements the recommendations of Lord Carloway’s review of Scottish criminal law and practice relating to police powers of arrest, holding suspects in custody, and corroboration; and the recommendations of Sheriff Principal Bowen’s independent review of sheriff and jury procedure that was aimed at increasing the efficiency and cost effectiveness of solemn proceedings in the sheriff court.
The bill also introduces new measures on: weapons offences; offenders on early release; appeals; the Scottish Criminal Cases Review Commission; people trafficking; and a police negotiating board for Scotland. It is a huge bill. That substantive list evidences—some might say corroborates—my earlier point about the depth and width of the bill. It is worth saying at the outset that on most of those matters the committee was in agreement. However, we were unable, as is well known and understood, to reach agreement on the proposal to abolish the mandatory requirement for corroboration. I will address that in due course.
Part 1 of the bill aims to simplify police powers of arrest by removing common law and statutory rules on arrest and detention, and replacing them with a general power of arrest on “reasonable suspicion”. The committee agreed that there might be some benefit in simplifying the powers of arrest but, as alluded to by Margaret Mitchell, the term “arrested”, when used to refer to someone who has not been charged with an offence, may appear more suggestive of and give the perception of guilt to the public than the term “detained”. Terms such as “person not officially accused” for someone who has been arrested bewildered me, and I kept forgetting the definition, as did some other members. We considered some terms, and the idea of “de-arrest”, as confusing enough for some committee members, never mind the general public.
I somehow cannot see those terms becoming the stuff of newspaper reports. Accordingly, we were concerned that the reputation of the accused might be detrimentally affected by the provisions in the bill, and we have asked for assurances on that issue. We were all concerned about the no-smoke-without-fire syndrome and trial and conviction by the media.
Prior to the emergency Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, suspects could be detained for a maximum period of six hours. Currently, under the 2010 act, a person can be held in custody for up to 12 hours, with the possibility of an extension to 24 hours. The bill proposes a maximum 12-hour limit without any extension. The cabinet secretary told the committee that he was also considering whether to allow an extension to that period in exceptional circumstances.
We heard a mix of views on that issue. Police witnesses argued that 12 hours might not be sufficient in the most complex of cases, and the Scottish Human Rights Commission told us that six hours would be more proportionate. The committee had mixed views on whether detention beyond six hours was necessary. We have requested examples of exceptional circumstances in which an extension might be granted, particularly as the bill also provides the option of investigative liberation.
What is investigative liberation? It would allow the police to release from custody for a maximum of 28 days and on conditions suspects who have not been charged while the police carry out further investigations into the suspected crime. The committee has asked for assurances that investigative liberation will not have an unnecessary impact on the suspect’s private life, while allowing the police to conduct complex investigations that could not be completed during the person’s initial detention. Witnesses assured us that it would not be used for a fishing expedition for evidence. We also noted that this and other aspects of the bill could have resource implications for the police that would need to be considered.
I come to the subject of corroboration. I make it clear that all committee members wanted more successful prosecutions, particularly for crimes of a sexual nature such as rape. As we understand it, that and other similar offences provided the momentum for reform.
Part 2, which aims to abolish the general requirement for corroboration, has quite rightly proved the most difficult part of the bill for the committee, with strong views on both sides of the debate. I must emphasise the phrase “general requirement”, because although the debate has focused on the crime that I just mentioned, the abolition of the requirement for mandatory corroboration would apply to all crimes for which corroboration is currently a requirement, such as shoplifting and vandalism. I ask members neither to lose sight of that nor to misunderstand—
Will the member give way?
I really cannot respond to the member because I have to keep to the report. I hope that she understands.
I understand that the member is speaking as the committee convener. However, she is also speaking as a member of the class of ’99 in this chamber. Can she tell a new member like me whether she can recall a time in the history of the Parliament when members were asked to vote for a fundamental change in the law in the knowledge that they would find out only afterwards what they were being asked to change it to? How can she recommend that?
That is very naughty of Ms Davidson. I like to have a rammie in a debate as much as anyone else, but I made it plain from the very start that in fairness to all committee members I would be speaking as convener. I will not enter into a discussion on those points—another day, perhaps.
Going back to the general requirement for corroboration, I should not have to say this but I will say it anyway: corroboration does not mean the requirement for an eyewitness other than the alleged victim.
Some witnesses argued that removing the corroboration requirement would achieve access to justice for more victims of crime by allowing more victims of rape, sexual offences and domestic abuse to have their day in court and have their say.
Others argued that corroboration—
Will the member give way?
I am coming to my point. The member’s views will be reflected in it.
Others argued that as corroboration was a vital safeguard against wrongful conviction the requirement for corroboration was itself such a safeguard. There were mixed views among committee members and witnesses about what is meant by corroboration; indeed, that mixed view extended to a difficulty in understanding the legal or technical distinction between supporting evidence and corroboration. The Lord Advocate and the cabinet secretary gave some indication that supporting evidence could be required in cases in which corroboration is not available. However, we received limited information on how that might work in practice and have therefore asked the Scottish Government to provide specific information on how any requirement for supporting evidence would differ from the current need for corroboration.
The same issue arose with regard to the meaning of the term access to justice. For some, it meant getting the case to court; for others, it meant getting a successful conviction. That is another problem for the committee. As a result, although all members had serious concerns about the particularly low prosecution and conviction rates for sexual offences, rape and domestic abuse, we could not reach agreement on whether removing such an integral part of the criminal justice system would improve for victims of those crimes access to justice—whatever that means to members—in a meaningful way.
If we read what we actually said—
Will the member give way?
I have only one minute to read what the committee said about the issue, and it is important to get it on the record.
The committee concluded:
“The Committee is convinced that, if the general requirement for corroboration continues to be considered, this should only occur following an independent review of what other reforms may be needed to ensure that the criminal justice system as a whole contains appropriate checks and balances.
The majority of Committee Members do not believe, in the event that the requirement for corroboration is abolished, that concerns relating to the need for further reform can be adequately explored during the passage of the Bill. The Cabinet Secretary’s proposal that the commencement of the provisions abolishing the requirement for corroboration be subject to a parliamentary procedure requires further explanation and consideration, which the Committee requires before Stage 2.”
Those are the two points that the committee made, and I have tried as fairly as possible—
The main conclusion of the committee—
Order.
I have done it as fairly as possible. I hoped that I could square the circle by saying that the majority of members are not convinced that the requirement for corroboration should be abolished and also by reading out the conclusions to the committee’s report.
I say to the other members of the committee that I hope that I have reflected our feelings about an extremely difficult issue that, I know, splits groups across the Parliament. It splits the Labour Party, it splits the SNP and it splits others. I know that for a fact, but I speak to the committee report.
I look forward to the debate, which, unfortunately, I cannot join.
15:05
I commend the convener of the Justice Committee for the fairness with which she has reported its deliberations. I am not a member of the committee, but I believe that she gave a just account of the deliberations that took place on the days on which I attended.
I also commend the committee, the clerks and the witnesses for the work that has been done.
I remind the chamber that the entire bill deserves thought and consideration. There are significant elements in the bill that affect police powers in relation to suspects; solemn procedure, with regard to improvements in the preparation of cases; sentencing, including the provision relating to the possession of knives and maximising sentences to five years; changes to appeal processes; and a number of provisions that deal with trafficking and the use of live television links between prisons and courts. It also includes provisions to establish a police negotiating board, which touches on important considerations around police conditions of service and so on. Those important issues are worthy of consideration.
As we anticipated, this afternoon’s debate has focused on the necessity or otherwise for corroboration in Scots law, but it is important that members do not neglect or lose sight of the other important changes while that consideration is going on.
Corroboration is the headline issue, and is extremely contentious. I come to the issue of corroboration as someone who had no prior conviction about the way forward. From the outset, I was determined to hear the Government’s proposals, listen to the evidence and, thereafter, decide my position.
Did the member not bear in mind Labour’s manifesto commitment to remove corroboration with regard to rape?
My next sentence will address that, if the cabinet secretary will allow me to get to it.
The Scottish Labour Party’s 2011 manifesto committed us to considering the arguments on corroboration, and I am delivering fully on that commitment today. Following that deliberation, I agree with the Justice Committee’s recommendation regarding corroboration, and I will explain why.
I welcome the very late creation of Lord Bonomy’s reference group, but I note with extreme interest that neither Rape Crisis nor Scottish Women’s Aid is represented on the group. I find that surprising, given the significance that the cabinet secretary attached to the importance of dealing with sex crimes, such as rape, and domestic violence in particular, when demanding the removal of the requirement for corroboration. Lord Bonomy’s group should have been tasked much earlier and should have reported long before now in order to provide MSPs and the public with robust Government proposals in the event of the abolition of the need for corroboration.
The cabinet secretary is in effect asking us to allow him to put his plans out to tender now and to write us a blank cheque, with the promise that we will receive the goods sometime in the future. I would not do that at home, and I will not do it on behalf of victims.
In light of the one-year delay that he anticipates before any empowerment in relation to the abolition of corroboration, it would be prudent for the cabinet secretary to remove that part of the bill that deals with corroboration. That would allow him to bring back a comprehensive and considered proposal at the conclusion of Lord Bonomy’s work and would allow the bill, with its remaining significant issues, to progress. After all, it is important that any changes focus on ensuring that victims and witnesses are provided with every opportunity to deliver their evidence effectively.
The Government should provide whether it will maintain the current system of 15 jurors alongside corroboration and the three verdicts that are the heart of our system, or whether it will move wholesale to an English system in which there will be two verdicts and 12 jurors who will be expected to deliver a unanimous verdict except in exceptional circumstances. Tinkering solely with corroboration and not dealing with the not proven and proven verdicts is short-sighted.
What will the Government propose for post mortem pathology and forensic examinations? Will those continue to require corroboration? What checks and balances will there be for the huge number of summary cases that are dealt with without juries? What is the impact of warning juries in those cases in which there is no corroboration of the essential facts? There is also a need to consolidate legislation, given the volume of changes that have already occurred over the decades and the changes that are now taking place. Will the cabinet secretary consider codifying our law in that respect?
Lord Carloway accepts that, although he had a group involved in the recommendations, he was solely responsible for the recommendation on corroboration. There are alternative views. Justice for the victims of rape and domestic violence requires a cultural change in public attitudes—it cannot be dealt with simply by removing one part of the justice system. Under the proposal, the requirement for corroboration would be abolished for all crimes, not only one-to-one crimes. It would apply, for instance, to trade unionists on a picket line or a youngster who was accused of shoplifting.
Other safeguards that need to be considered include what we would do about dock identifications and allowing judges to dismiss cases in which no reasonable jury could convict. Those matters are not fully dealt with in the bill. In any case, changing the jury verdict requirements as proposed in the bill would be no safeguard in the 96 per cent of cases that are heard without a jury.
Draw to a conclusion, please.
There are several key issues. How will we protect victims, their medical histories and their private lives? How will we defend victims from hostile and inappropriate cross-examinations in the new environment? How will we decide jury verdicts? What will we do with judicial examination, and how will we empower our judges for the future?
I implore the Government to take time to reconsider and allow that part of the bill to be held in abeyance, to be considered in the round in a year’s time when it can come back to the chamber fully considered.
15:13
I thank my fellow members of the Justice Committee, the convener, the clerks and everyone who was involved in putting together the stage 1 report.
As members have heard, the committee agreed to support the general principles of the bill. We might have gone further and supported Lord Carloway’s recommendation to abolish the requirement for corroboration but, to my surprise, after months of taking evidence, the majority of the committee chose not to back Lord Carloway’s recommendation at our last meeting at stage 1, when Graeme Pearson joined us to write the conclusions of our report.
I will concentrate on why the minority of committee members, including myself, after listening to months of evidence from judges, prosecutors, the police and victim support organisations, concluded that we must trust our police, prosecutors, judges and juries to deliver equal justice for all. The case has been made and we must move forward, not sit on our hands. We must vote today to support the bill, including the provisions on corroboration.
Did the member change his view on the police approach to the matter when the police themselves changed their view?
I will come on to that issue.
We all recognise that the situation in which we find ourselves is not of our making. In October 2010, the Cadder ruling started the process to reform our criminal justice system. The cabinet secretary wasted no time in responding, and emergency legislation followed.
In December 2010, Lord Carloway was asked to head a review team. The review process involved a range of evidence gathering, research, analysis and consultation. The consultation process ran from April to June 2011. The Justice Committee considered Lord Carloway’s report, which was followed by more consultations—the Scottish Government carried out two consultations during 2012 and 2013—before the bill came to the committee.
How many more consultations and reports do we need? The evidence is there and it is time to move forward. The justice secretary did not sit on his hands; nor should we.
We took evidence from many in the criminal justice system. In our report, members can read that the Lord President, Lord Gill, agreed that there is a concern to ensure that sexual crime and domestic abuse are properly and effectively prosecuted. He added that he was also concerned that abolishing the requirement for corroboration would result in weak cases with uncorroborated evidence brought forward but, to my disappointment, Lord Gill did not suggest any alternative, except that we should sit on our hands.
We heard that the focus should be on the quality not the quantity of evidence.
Will the member take an intervention?
Not just now.
The Lord Advocate has made it clear that, after removing the corroboration rule, supporting evidence will always be sought before criminal cases go to court. The Lord Advocate said:
“I would not—and prosecutors would not—take up a case without any supporting evidence. However, that is different from a legal requirement for corroboration. Of course, when reaching a decision, we would want to look at evidence that supports what the complainer or victim is saying and we would apply the reasonable prospect of success test and look at issues of credibility and reliability.”—[Official Report, Justice Committee, 20 November 2013; c 3736.]
I trust prosecutors, judges and juries to deliver justice for all after we remove that barrier to justice. That barrier is not only for women who are denied access to justice but for victims of other crimes that take place in private. Sitting on our hands is not an option.
I also trust the police who gave evidence. The Scottish Police Federation, the Association of Scottish Police Superintendents and Police Scotland all came to the same conclusion, and they all support the abolition of the requirement for corroboration.
Members might have read that some changed their minds during our consideration of the bill; some even mentioned that fact to us. They changed their minds because, like many others, they looked at the evidence and reached the conclusion that sitting on our hands was not an option.
Others also changed their mind during the process. When I asked the Lord President, on the principle of access to justice, whether abolishing the requirement for corroboration would increase the number of cases that are brought to prosecution, his first answer was no. When I pressed him on his answer, he changed his mind and said that that might increase the number of prosecutions, but that he was not convinced that it would increase the number of convictions. The debate had moved on; indeed, the debate keeps moving on.
I leave it to other members to tell us why victim support organisations—many of which came to give evidence to our committee—are asking us to vote to abolish the requirement for corroboration. The justice secretary has been listening to the voices in the committee and others who came before us who want some safeguards to come with the change. I trust Lord Bonomy’s review on the matter.
Let us give Scotland a criminal justice system fit for the 21st century. The case has been made. Scotland is not on pause. The choice today is not to sit on our hands as the majority of the committee did on the day that we wrote the report’s conclusions. The choice is to vote on the opportunity to move forward and support the bill.
15:19
The media attention on the bill has mostly centred on corroboration, and that is clearly the most contentious aspect today.
Along with my Scottish Labour colleagues, I am absolutely committed to tackling the abysmally low level of cases of rape and sexual assault taken to court and successfully prosecuted. The question is how that can best be done.
The Lord Advocate has stated that, in the past two years, 170 cases could not be brought because of the lack of corroboration. Will Mr Pentland tell me how Labour proposes to address that?
It would help to secure an answer from us if you would allow the review that Lord Bonomy is undertaking to be part of the measures on corroboration when the bill comes before us again. Corroboration should be removed from the bill, we should allow Lord Bonomy to come back with his review, and then we can make a judgment. Do not try to play with words. We are as serious about helping people as you are, cabinet secretary.
Speak through the chair, please.
The solution must be right, not something that has the appeal of simplicity but fails to address the complexity of the problem.
I sat and listened carefully to a lot of conflicting evidence on the issue. On one hand, we have the legal establishment closing ranks and resisting any change. It has depicted the proposal as an attack on fundamental human rights that would lead to miscarriages of justice. On the other hand, we have the victims who are denied access to justice because their cases, which might otherwise be strong enough to secure convictions, do not meet the strict rules of corroboration.
To address those cases, the Scottish Government wanted to remove corroboration across the board. At first sight, that seemed an attractive solution to me. After all, cases would still need to be proven beyond reasonable doubt and there should be appropriate safeguards, with corroboration continuing to be sought wherever possible.
However, as I considered the pros and cons of removing corroboration, a number of things became clear. One is that the evidence advanced by both sides of the argument is, to say the least, patchy and inconclusive. Comparisons do not compare like with like. Evidence such as that about additional and wrongful convictions varies from speculative to hypothetical, and some of it would not be admissible in court. Indeed, it was admitted that the assertions about the dangers of wrongful conviction were impossible to prove. Although that might not always be an obstacle in politics, it is a serious matter in a legal debate.
The Scottish Government’s majority in the Parliament enables it to bulldoze through reform, but I detected that there were signs of movement in the legal establishment’s position. Lords Cullen and Hamilton conceded that allowing exemptions from the requirement for corroboration in certain cases might be preferable to outright abolition.
With a back-bench rebellion becoming a prospect because the whole legal establishment was against abolition, the Cabinet Secretary for Justice offered a review. People can be forgiven for thinking that that was just an act of tokenism or a ruse to buy off back-bench opposition because he is still determined to push ahead with abolition regardless and he does not anticipate the review causing any significant delay in that.
What the cabinet secretary offers by way of safeguards still leaves a lot to be desired. Although most countries do not require corroboration, they require greater majorities than the 10 out of 15 proposed for Scotland. Most require at least 10 out of 12.
What are the alternatives? We could examine whether the refusal to give evidence could be taken into account when considering a verdict. We could also examine how we define corroboration. Unfortunately, there is no definitive definition. There have been a few definitions and, in practice, it is often a case of considering the precedents for how the principle has been applied.
Over the years, various modifications have been proposed, including evidence of bad character, similar-fact evidence and the Moorov and Howden doctrines, in which there is mutual corroboration between cases based on time, character and circumstance. Moorov is already used in Scots law, but there are issues with its use that could be considered, especially in the context of crimes such as rape and sexual assault. Indeed, its incorporation into general statutory rules was considered by the Scottish Law Commission less than two years ago, but that report was bypassed by the proposal to remove corroboration.
Rather than seek to clarify or extend the concept of corroboration, the cabinet secretary chose to enter the fray with his own alternative—supporting evidence. Some thought that that was corroboration by another name, but attempts to compare the two soon revealed that the concept of supporting evidence also suffers from a lack of clarity.
You must conclude, please.
Far from helping, it muddied the waters. Frankly, the more we look into the debate, the messier it becomes. I do not think that the proposal should be used as a political football and pushed through just to tick a few boxes.
I am afraid that you need to close.
I hope that the suggested amendment will give us the time that is needed to give careful consideration to all the issues and options. We need to get this right, because hundreds of people every year are deprived of justice.
You need to close, please.
To do that, we all need to work together to help find the best solution.
I advise members that we do not have extra time for interventions. If members take interventions—even interventions from the front bench—they must do so within their own time.
15:26
Before I come to the crux of my speech, I commend the cabinet secretary for the new aggravation that relates to human trafficking, which I am sure that all members welcome.
Article 7 of the Universal Declaration of Human Rights says:
“All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”
If a person is raped or subjected to any kind of sexual or domestic abuse, as the law stands in Scotland they will not be treated equally. That assault on basic human rights is not the fault of the police or even of the Crown Office and Procurator Fiscal Service, its judges, its QCs or its lawyers. It is the fault of our failure, until now, to alter the legislation so that it can take into account the need to bring to trial the brutal and vicious men—virtually all of them are men—whose idea of a cosy night in is to get drunk, rape their partner and then batter her into unconsciousness before going back down the pub to tell their pals.
I appreciate that that is a stereotypical image, but if members talk to the police or Rape Crisis Scotland, they will—sadly—discover that the model is stereotypical because that is, in fact, usually how it happens. Depressingly, as co-convener of the cross-party group on men’s violence against women, I see time and again just how accurate that stereotype is. It sounds like cavemen fighting over their spoils. The women, they will say, asked for it or provoked them so much that they had to hit out. They are 21st century cavemen indeed. “I gave her a good doing” is not just the language of cavemen; it is alive and thriving in certain favoured drinking dens across Scotland and—more important—in the private homes of too many women. As George Orwell put it,
“All animals”—
and perhaps cavemen—
“are equal, but some animals are more equal than others.”
In my opinion, Napoleon the pig is well titled.
Deservedly, we see ourselves as a progressive, forward-thinking nation. We have a wealth of history to support us in our ambitions as we continue to push forward towards a fairer and more egalitarian society. I am absolutely astonished at the position that Labour has taken. The Bain principle is alive and well in the Scottish Parliament.
Patrick Harvie rose—
Why is it that some of us seem to be so reluctant to change legislation that is outmoded, lacking in credibility and out of place—much like Labour’s position?
Patrick Harvie rose—
Mr Harvie, the member is not giving way.
Corroboration is a legal principle in Scots law that demands that two different forms of evidence must be in place before a decision is made on whether a case can go to trial. In a rape case, it is necessary to have two forms of evidence that penetration took place, two forms of evidence that there was no consent and that the accused acted with malintent, and two forms of evidence that it was the accused who committed the crime. The complainer has to prove that the accused understood that the act was not consensual. How does she do that? If the accused says, “Oh, she likes it that way,” how can she prove that she did not and does not like it that way?
Ruth Davidson rose—
A legal worker from Scottish Women’s Aid, Louise Johnson—I had a phone call with her yesterday—told me recently:
“It is profoundly shocking and demeaning how women who are victims of sexual or domestic abuse are treated in our courts. For example, a request to look at previous sexual history may help turn up previous offences but it is often used as a way of attacking the victim’s morality.”
She also said:
“It is very rare that if a case gets to court at all it is a single event. There will almost always be a background of coercive, controlling and violent behaviour”.
There is no question but that we need robust evidence to be gathered to put before procurators fiscal so that cases can go to court and have a reasonable chance of a successful outcome, but it is not good enough just to say that there is not enough evidence so the cases should not get to court. Removing the need for corroboration in abuse cases will in no way undermine the demand for that evidence. On the contrary, it will allow women—who have been denied the opportunity to go to court—the chance to get justice and move on with their lives. Many have attempted and committed suicide because they have not had that access to justice. That is an indictment on all of us.
There is a significant number of victims of sexual violence and domestic abuse whose cases do not go to court. In the past two years, that has affected 2,800 cases of domestic abuse and 170 rape cases. The Tories, the Liberals and—astonishingly—the Labour Party might be happy with that, but I will not have that on my conscience. [Interruption.]
Will the member take an intervention?
Order.
This is not some airy-fairy notion of correcting an imbalance. Under the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence—the Istanbul convention—the action of preventing and combating such violence is no longer a matter of good will but a legally binding obligation. The steps that the Government has proposed are a moral imperative.
Some Governments, including our own, are implementing at least some elements of the convention, but we must do more. We must implement all its demands, to reduce and ultimately to eliminate the obstacles that limit women’s opportunities to claim their rights in court.
The burden of proof for rape in Scotland is extremely high—the Crown has to prove and corroborate not only that sexual intercourse took place and that the complainer did not consent to it but that the accused knew that the complainer did not consent. The fact that we have always done it in that way is not an adequate reason for continuing the corroboration requirement. We have a duty to victims in Scotland to seek actively to remove—as far as legislation can do so—the barriers that limit access to justice for them. On top of the fear, the shame, the lack of awareness about official procedures and about available assistance, economic dependence and concern for children, women face an additional and unnecessary burden in the judicial process.
Until 1982, women in Scotland could not be raped in a marriage. Equal marriage was agreed to only recently in the Scottish Parliament. Sometimes, we need to be bold in the face of opposition and to do what is morally right to ensure equality and justice. The proposal is morally right, and I ask all my colleagues to search their consciences before pressing their voting buttons at 5 o’clock.
15:32
The bill contains a number of welcome reforms. There is a clear need to ensure that Scotland’s criminal law and practice comply with the European convention on human rights. At stage 2, we should carefully consider many issues that the committee identified, including investigative liberation, the appropriate detention limit, the use of the term “arrest” and the basis on which all those activities are conducted.
To turn briefly to matters that are not in the bill, I share the belief of children’s charities including Barnardo’s that the Scottish Government has missed an opportunity to raise the age of criminal responsibility from eight to 12. I hope that we can return to that at stage 2.
In the short time that is available to me, I must focus on the part of the bill that has—rightly—attracted the most attention. I am of course talking about section 57, which proposes to scrap the requirement for corroboration.
When Parliament first debated Lord Carloway’s review back in 2011, the justice secretary told us that he wanted to
“hear the views of those who disagree in whole or in part”
with what
“would clearly be a momentous reform.”
He claimed:
“There is no political dogma”.—[Official Report, 1 December 2011; c 4248, c 4246 and c 4249.]
Since then, the justice secretary has been patently partial and has relentlessly pursued only one outcome. He has been unwilling to act as the guardian of the wider justice system. The reasoned pleas of Scotland’s top judges, including the Lord President, and of legal professionals and human rights organisations have been ignored.
The justice secretary cites emotive cases and anecdotal evidence to make his case. I do not doubt that he speaks of genuine grievances and wrongs; I find it insulting when people think—wrongly—that we do not care about those genuine grievances. However, the proposal is a sweeping change that will impact on every criminal case—summary and solemn. Choosing to portray the debate as a contest between some sort of primitive justice system and the blood and tears of victims is disingenuous and misleading, and it devalues the debate.
I agree that we must strive to enable the victims of rape, sexual assault and domestic abuse to secure justice. However, it is because I am entirely sympathetic to their plight that I am concerned about the proposal. In the absence of corroboration, more prosecutions could rest on the credibility of the alleged victim. Victims could increasingly be subjected to the already unbearable cross-examinations that Christina McKelvie talked about. The “He said, she said” scenarios will make juries reluctant to convict.
Also, the Lord Advocate, the justice secretary himself and Rape Crisis Scotland have all openly admitted that they do not believe that the measure will result in more convictions, but simply increasing the number of cases that reach court is not enough; if we do not also endeavour to improve conviction rates, we are offering victims nothing more than false hope. The committee concluded that abolition of the requirement for corroboration will not improve access to meaningful justice, which is why we need a wide-ranging inquisitorial examination of how the entire system can better respond to offences that occur behind closed doors.
I do not defend corroboration because of tradition; it is so much more than tradition. It protects against miscarriages of justice, false accusations, wrongful convictions and the erosion of the presumption of innocence. That pillar of our justice system cannot be removed without making the whole structure unstable. In the absence of checks and balances that are equivalent to those that exist in other jurisdictions, corroboration is central to ensuring that our courts secure the right conclusions through fair means.
After months of meticulously exploring detailed evidence, the Justice Committee concluded that the case has not been made for abolishing the general requirement for corroboration, and recommended its removal from the bill. That is an unequivocal message to the justice secretary. The reasoned amendment that has been lodged by Margaret Mitchell and signed by many of us is further testament to the gravity of what is at stake today.
Having failed to quell fears and disquiet, at the 11th hour the justice secretary has stumbled into the offer of a review. I do not know whether he finally got it or whether that was merely a fig leaf to cover his embarrassment.
The review group in itself demonstrates the scale of the problem. The justice secretary is recklessly urging members to pass legislation that he knows is so defective that it needs a 17-strong panel of distinguished minds to patch things up afterwards. The new dean of the Faculty of Advocates, James Wolffe QC, has described this approach as asking MSPs
“to buy a pig in a poke”.
Lord McCluskey condemned placating opponents with “sweeteners” and said that
“the interests of justice are not served by awarding sops to one side or another”
That is no way to legislate. Secondary legislation should establish comparatively minor details—it should not define how we prevent miscarriages of justice, or prevent the problems that the bill invites. Despite the justice secretary’s assurances, everyone here should know that an instrument that is subject to affirmative procedure leaves no scope for proper parliamentary scrutiny. In proposing the use of secondary legislation for such a momentous reform, the justice secretary demeans his office and reveals his contempt for Parliament.
The matter is now no longer only about whether we think corroboration should be abolished. It is also about how Parliament is regarded in terms of how seriously we take our role as legislators. I appeal to SNP members from the class of ’99 to think carefully about that.
The existing case for abolishing corroboration is deficient and unsubstantiated in so many respects. In this situation, there can be only one logical next step for the justice secretary: accede to the committee’s recommendations and remove section 57 from the bill, and allow Lord Bonomy’s group to conduct its review completely unfettered, after which Parliament could rightly return to the matter afresh. It is obstinate and absurd to suggest any other course of action.
15:39
I am pleased to have been called to speak in the stage 1 debate on the Criminal Justice (Scotland) Bill. I refer to my entry in the register of interests, which states that I am a member of the Law Society of Scotland and that I hold a current practising certificate.
The bill that is before us today, like many criminal justice bills that have preceded it, deals with a number of important reforms to the criminal justice system, including corroboration, to which I will return. Key among the other provisions are the sections that deal with arrest and custody. Following the action that was taken as a result of the Cadder judgment, it has been recognised that there is no longer merit in having a discrete power of detention. The bill provides, in effect, that the only general power to take a person into custody is the power of arrest on reasonable suspicion that the person has committed a crime. That is a great step forward.
On custody, the bill will place on a statutory footing a 12-hour time limit, with review after six hours. There are provisions on investigative liberation, which offers an alternative to protracted custody, with safeguards to ensure that conditions are proportionate and necessary.
There are other protections in relation to the rights of suspects in custody. Section 25 provides that a person under 16
“may not consent to being interviewed”
by the police
“without having a solicitor present”.
That is an important provision.
It is right and proper that the bill provides many important safeguards for persons in custody. However, an imperative of any properly functioning criminal justice system is the need to balance the rights of the accused with the rights of victims of crime—[Interruption.]
I am sorry to stop you, Ms Ewing, but your microphone is picking up the conversation that is going on behind you.
The need to balance the rights of the accused with the rights of victims of crime is a fundamental principle of our criminal legal system. That brings me to the issue on which I think most members have focused—the proposal to remove from Scots criminal law the general requirement for corroboration.
I speak as a member of the legal profession when I say that the law cannot and should not stand still. We must keep our criminal justice system under review in order to ensure that the balance of rights to which I referred is maintained. In all conscience, I cannot—as a lawyer or as a politician—accept a status quo that denies access to justice to so many people who are, as we have heard, the victims of sexual crimes, domestic abuse and other crimes that are committed in private.
We heard the dreadful statistic that in the past two years 170 cases of rape have had no proceedings taken, because of, inter alia, a lack of corroboration. I will cite an example—
Will Annabelle Ewing give way?
I think that I am about to deal with the subject of Margaret Mitchell’s intervention.
In the case of Lee Cyrus, in Perth, there were charges of rape and assault and robbery, but there was no prosecution. I wrote to the Solicitor General for Scotland, whose reply to me is dated 31 December 2013. She said, inter alia:
“Crown Counsel instructed that because of a lack of corroboration there was insufficient evidence to prosecute Lee Cyrus for the crimes reported.”
Will Annabelle Ewing give way?
I need to make progress.
Scots criminal law is unique among the ECHR states’ law in hanging on to corroboration as a general requirement. We removed the requirement from civil cases some time ago. Moreover, if members ask two or more lawyers to give their precise definition of corroboration, they will get two or more definitions.
The law must evolve. I can think of no more highly regarded representatives of the legal profession than the people who, with others, will form part of Lord Bonomy’s review group. Those people are at the pinnacle of the criminal legal system of Scots law. We can place our confidence in their ability to come up with the appropriate balances and safeguards, which will be subject to the scrutiny of the Parliament.
Will Annabelle Ewing give way?
I have just over a minute left and I want to use it, I am afraid.
The time to act is now, in the bill, by taking the approach that the cabinet secretary set out clearly again today, so that we can see the full effect of the reform in 2016.
To members who say that parliamentary process is key above all other considerations, I say that the delay that would be created if we took the provision out of the bill would result in our Parliament in effect condoning the denial of access to justice in hundreds, if not thousands, of cases between now and some indeterminate date in the future. It is sad that that appears to be the Labour Party’s position.
That is simply not good enough, if members believe, as I do, that there should be no second-class citizens when it comes to access to justice in Scotland. I urge all fair-minded members to think carefully about what they will do at decision time today. I hope that they will come to the conclusion that the way that has been proposed by the cabinet secretary is the best way forward to ensure that all our citizens have access to justice.
15:45
The bill is wide ranging, but I will concentrate on corroboration.
For a number of years, I have been concerned that the requirement for corroboration in cases involving rape and domestic abuse has prevented people from receiving justice. I was therefore delighted when a proposal came forward to remove the need for corroboration. If I am honest, even when a number of people in the justice system and legal profession started to question the policy, I thought that that was simply because of fear of change rather than because of concern about the policy itself. However, as the clamour became louder, I began to become concerned. I was therefore pleased when the cabinet secretary set up a review group to examine the policy and the required safeguards.
Although I want to abolish corroboration for cases whose very nature means that corroboration will be difficult to find, we owe it to victims to do that properly so that it works and gives access to justice for those who are involved. A day in court is just not enough. At the least, it is traumatic, so it has to be followed by a conviction that provides a degree of closure. Surely we all want real justice for victims.
I ask the cabinet secretary to explain in winding up the debate why Rape Crisis and Scottish Women’s Aid have not been included in the review group. Many groups exist to support women who have experienced violence and abuse, but all members will acknowledge that Rape Crisis and Scottish Women’s Aid hold the expertise in that area.
I am pleased to tell Rhoda Grant that I have spoken to Sandie Barton and have made it clear to her that I will make representations on the issue. The selection of the members of the group is up to Lord Bonomy, but I am happy to advise that I think that he should at least consider engagement with those organisations.
I would be pleased if Lord Bonomy were to include them in the review group. If we are to introduce changes using subordinate legislation, we will not get the full impact of the information that those groups hold and we will not be able to consult them properly on the findings of the review. That is because subordinate legislation does not receive the same scrutiny in Parliament as primary legislation receives, and it does not provide an opportunity for stakeholders to be involved to the same extent.
Therefore, I ask the cabinet secretary to reconsider the proposed removal of the requirement for corroboration, so that he can build consensus and introduce primary legislation on the issue that can be properly scrutinised by the Parliament, that can involve the stakeholders and that we can all unite around.
Will Rhoda Grant take an intervention?
I have taken an intervention, so I am struggling for time.
The review group has been asked to look at evidence that is admissible in court. Currently, in cases regarding violence against women, courts consider evidence that has no bearing whatever on the case; for example, victims have their sexual history examined, which has no bearing on their right to protection under the law. To allow such questioning creates the impression that the victim, having engaged in sexual activity in the past, cannot be raped. Therefore, evidence that involves someone’s sexual history should never be admissible in a court of law.
To be cross-examined in that way is devastating for the victim, who should be protected. It creates a barrier to justice by introducing evidence that should have no bearing whatever on the case, and it is a barrier to victims pursuing their cases. It is also a problem for wider society because it creates gender inequalities and promotes stereotyping. What steps can the cabinet secretary take to stop that practice? Judges continue to allow such lines of questioning. The only discouragement to it is that the judge can allow prosecutors to examine the perpetrator’s history, but no one in the court protects the victim from that type of questioning. The fact that people experience such an ordeal is likely to deter other victims from coming forward in the first place.
Another aspect of so-called evidence that should never be allowed in court is somebody’s medical history. Often, a defence will spend time going over someone’s medical records, and they will often highlight mental health issues. Again, that can be devastating for the victim, and again it has no bearing on the case. Being mentally ill does not mean that it is okay to be raped or abused—in fact, more protection should be afforded to people who are vulnerable. Again, there are wider implications for our society in that mental illness is being stereotyped.
Both of those types of evidence can repeat the abuse that the victim has already experienced. I very much hope that the Bonomy review will deal with those issues and take a clear stance on them.
I also hope that the review will consider what constitutes supporting evidence. Many people do not report rape and abuse immediately, and it is therefore important that behavioural changes and the like are admissible as evidence of a victim’s having suffered trauma. In cases of domestic abuse, the victims often cover up the crimes and believe that they are in some way responsible. Evidence that takes account of that must be admissible in court. I argue that it should be admissible now as corroboration, but the training of the people who operate our justice system is woefully inadequate in this area.
You must conclude.
I have had cases where the court has been used to perpetrate domestic abuse. Surely that is not right. I hope that the cabinet secretary will listen to the Parliament’s concerns, take the opportunity to build consensus and change the justice system to one that protects, rather than abuses, victims.
Once again, I point out that interventions must be taken within the time that members have for their speeches.
15:51
I refer to my entry in the register of members’ interests as a member of the Faculty of Advocates.
Although the Criminal Justice (Scotland) Bill is substantial, public attention has tended to concentrate almost exclusively on the proposal to abolish the requirement for corroboration. The Justice Committee was divided on the matter, and the witnesses who gave evidence to us had very different views. It is clear that many victims of sexual and domestic abuse and, indeed, other crimes, theft in particular, may well be denied access to justice by the rule. Indeed, the now-retired eminent judge Lord Hope, in his Holyrood article, accepted that we have a rule that impedes us in a particular class of case. However, I also take on board the evidence of James Wolffe QC, the new dean of the Faculty of Advocates, who told us that what really counts is access to effective justice.
I note the figures that have been produced in the Carloway report and by the Crown and police to support contentions on the number of additional cases that might proceed if the requirement is abolished, but I also bear in mind Lord Carloway’s point that there are cases that proceed at present but will not proceed under the new test. It would serve no useful purpose to seek to quantify those, but it is as well to be aware of that.
Whatever the increase in the number of cases that might proceed under the new test, no one can say with certainty how many will result in a conviction and what they will do to conviction rates. The Lord Advocate said in evidence:
“the justice system is not about conviction rates”.—[Official Report, Justice Committee, 20 November 2013; c 3737.]
I agree with the convener that no one should regard appearing in court as a complainer or victim as therapy. In traumatic cases, even lawyers can find the process stressful. Nevertheless, it is at the very least deeply unfortunate to deny individuals the opportunity to obtain justice and the right to tell their story, to be tested before their peers. I also reflect on the comments that the distinguished lawyer Maggie Scott QC—now Lady Scott—made to our committee in 2011, when she said:
“I understand people’s desire to have a day in court—that applies to accused people as well. However, I do not feel that, if there is little likelihood of a conviction, that particularly helps anyone in the process.”—[Official Report, Justice Committee, 20 December 2011; c 790.]
I hope that the new prosecutorial test will tackle that, at least in part, with its requirement that there be a reasonable prospect of conviction before proceeding.
The Lord Advocate advised us in evidence that questions of credibility and reliability are not considered against a reasonable prospect of conviction test at the present time. The Crown will have to consider carefully in respect of each case whether it is in the public interest to proceed. The new prosecutorial test will not change that.
Lord Carloway’s original recommendation to abolish the requirement for corroboration with no attempt to rebalance the system by introducing further safeguards has had scant support. The Government recognised that following its first consultation, and it took the view that a second consultation on safeguards was required, but it then proceeded with only one safeguard in the bill—to increase the majority required for a guilty verdict. Like the Faculty of Advocates, the Scottish Human Rights Commission and others, I strongly believe that a judge ought to have the ability to withdraw a case from a jury where he or she forms the view that no reasonable jury could convict on the evidence presented.
Despite the Government’s attempts to engage in discussion about appropriate safeguards, perhaps the strongest call we heard in evidence was for the whole question of the requirement for corroboration to be removed from the bill and considered by the Scottish Law Commission or a similar body.
However, even the Scottish Law Commission can get it wrong, particularly on corroboration. Those of us with very long memories should be aware that, back in 1965, the SLC consulted widely on the abolition of corroboration in personal injury cases only. Subsequently, it changed its mind and recommended the abolition in all civil cases. That recommendation was incorporated in a Government bill. Following a political and legal outcry, the Government of the day agreed to Opposition demands to abolish it for personal injury cases only. The bill was amended and it became law in 1968. It took a further 20 years, following a further SLC report, before it was abolished in civil cases altogether. Some of the concerns about reliance on one smooth-talking but apparently credible witness were heard then, but we have moved on and no one now would seek its return for civil matters. Controversy around corroboration is not new.
The Government has taken on board concerns. I would say that it has listened, reflected and acted on its proposal. I very much welcome Lord Bonomy’s appointment and the wide terms of reference for the group, which I am pleased to say go well beyond those for the Government’s second consultation.
I am pleased that Lord Bonomy will be looking at summary proceedings, under which the vast majority of cases proceed. I am pleased that he will look at whether a formal statutory test for sufficiency, based on supporting evidence and the quality of the evidence, is required. I am pleased that the question of whether a prosecutorial test should be placed in statute will also be considered.
What is absolutely clear is that it is vital that we have in place a system that provides appropriate balances to prevent miscarriages of justice, so that we do not replace one set of injustices with another.
Lord Bonomy needs time to carry out his work and we as a committee in Parliament will need to absorb that work and to consider and scrutinise it before any proposals pass into law. Most of all, we need sufficient time to build a new consensus. I accept that this might be optimistic, but I hope that this time that will include not only the Crown, police and witness groups but legal practitioners, judges and academics, too.
However, the bill is not just about corroboration. I note and agree with the Government’s comments on arrest provisions, particularly on a record of reasons where an arrestee is released before arriving at a police station. I agree with the Government on the time limit for detention.
I emphasise that the bill provides a valuable extension of the right of access to a solicitor to all suspects held in custody. I welcome also the Government’s commitment to discuss with relevant stakeholders how post-charge questioning will operate.
We as a committee welcomed the proposed administrative and procedural changes to solemn procedure in the sheriff court, which I think are largely uncontroversial.
This is a substantial bill, which ought now to proceed.
15:57
I thank the convener of the Justice Committee for the way in which she has chaired the committee and for her delivery of the report today—it must have been a challenging position for her.
Someone talked early on in the debate about putting party differences aside. Sadly, we have not heard that on either side of the debate. This debate should not be about personalities; it should be about the merits of the case. We should all accept that we can have different views and hold them in good faith.
Having said that, I remain absolutely resolute in my belief that a case has not been made that supports the abolition of corroboration. Corroboration is a fundamental building block of Scots law.
The cabinet secretary tells us that he has listened, reflected and acted and that a consequence of that is the setting up of the Lord Bonomy group. If I noted this correctly, the cabinet secretary said that the group would be balanced and effective.
The group has wide terms of reference, but I am disappointed that the status quo has been ruled out; it seems to me that the Government is limiting the scope of the group, which is not helpful.
Having said that, I think that the group is comprised of very good folk. I am grateful to my colleague Rhoda Grant for raising that. If the group could be broadened to include the likes of Rape Crisis Scotland, it would be all the richer for that.
However, I have some disquiet about the parliamentary process; I do not think that this is how we should transact business.
In the committee, Lord Gill told us:
“If there is a good solid ... case for abolishing corroboration, there should be no need for any safeguards. The moment we say that there have to be safeguards, we are conceding that the change creates a risk of miscarriage of justice, which, in my view, it will.”—[Official Report, Justice Committee, 20 November 2013; c 3727.]
That is a very powerful source of evidence.
What we heard in evidence from the Scottish Human Rights Commission is that corroboration—
I know that it has mentioned miscarriages of justice, but is there not a miscarriage of justice for victims who cannot get heard at all and cannot get access to justice?
If there is one phrase that has characterised the debate and which has just become meaningless, it is “access to justice”. I want everyone—the accused and victims—to have access to justice. That is very important. Characterising the debate in any other terms is extremely unhelpful.
The Scottish Human Rights Commission told us that corroboration is a form of protection. Other forms of protection are available. I will certainly welcome the Bonomy review and read with interest what it comes up with. However, I stress again that this is not the way in which we should go about business.
Some protections have been offered, but they, of course, relate to solemn procedure, which represents only 10 per cent of the cases that are tried. That makes it clear that the 90 per cent of summary cases do not have those protections. This is a time when we have a record number of police officers and there have been great advances in technology. We have heard about some of the advances. Many advances in technology that are often cited as frustrating police operations actually enhance them, too. I say to my colleague Sandra White that a person can be a victim one day and an accused another day. We want the highest standards to apply for everyone.
It is certainly the case that the failure to prosecute is not always down to corroboration. There is a public interest to be served and the interests of the complainer have to be served. I had some disquiet—I have shared this information with the cabinet secretary—about some of the examples that we were given; there were very emotive cases. We cannot understand the minutiae of a case in two sentences. Some of the representation was less than helpful.
I want to move on to other aspects of the bill.
I am not convinced that there is a need to change the terms of detention and arrest. If we do so, arrest should have a definition. That is not only my view; it is a view that is shared with Lord Carloway and the Scottish Human Rights Commission. We have heard about the legal debates that will take place. We can be assured that there will be plenty around that in stated cases, notwithstanding the cabinet secretary’s assurances that the process will be streamlined.
I thought that the suggestion in the Scottish Government’s response that providing a definition would
“jeopardise the employment of ... alternatives to court proceedings”
was very peculiar and strange. The idea that defining “arrest” would somehow impact on the issuing of parking tickets seems to me to be way off the mark. I welcome the word “de-arrest” not being used.
I am delighted that the letter of rights is on a statutory footing. Given what we know about the communication and literacy skills of people who find themselves in custody, it should be read out to people.
I am not convinced about the call for an extension of detention time by the police, and welcome the abolition of the 24 hours. I speak as a former police officer and the reality is that if the police were offered 48 hours’ detention, they would bid to get 72 hours’ detention. Again, I support the Scottish Human Rights Commission’s position that there should be six hours, with extension only in exceptional circumstances and only to facilitate rights under article 6 of the European convention on human rights, on the provision of a lawyer or interpreter.
Depriving someone of their liberty is a very important issue. As has been said, doing so must be based on evidence, not anecdote.
The idea of keeping a child in custody for more than six hours is from the dark ages. We need to look at that and issues to do with the age of criminal responsibility.
We are told in the Scottish Government’s response on the detention provisions that it is
“creating a mandatory custody review, performed by a senior officer not directly involved in the investigation”.
Good grief. Is that not happening already? If it is not, it certainly should be.
Investigative liberation cannot be summed up in 10 seconds, but it will be very problematic in rural areas, and I think that there are many challenges to come from that.
16:03
Although I have been a member of the Scottish Parliament for a long time, I have never been a member of the Justice Committee or had anything to do with any of the justice portfolios. I am not a lawyer and have never served in the police force or anything like that. Therefore, I come at the issue entirely from a layperson’s view, which is the way in which the vast majority of people in this country come at it.
I will start on the corroboration issue, because that is what all the fuss has been about. I went out of my way to look at the issue, and to try to study and understand it.
It strikes me that an awful lot of nonsense is being talked about the issue, and I have heard some of that this afternoon. It is in the phraseology too: I keep hearing that we are abolishing corroboration, but when I look at what is in the bill, I see that we are actually abolishing the requirement for corroboration that is mandatory to get a case to court.
You talk about needing to explain things in layman’s terms, which is clearly shorthand for what the layman understands. You are just playing about with words.
No, and you should not insult the layman—that is an appalling thing to say. I tell you what: I read the bill and it was fairly straightforward. I understood it, and most people could read the truth if it was given to them.
There is a big difference between saying that the Government is abolishing corroboration and saying that it is abolishing the requirement for corroboration. If there is corroborating evidence, it will be used. It seems to me that the requirement for corroboration is preventing a lot of people from gaining access to justice.
I have read many of the differing views that have been expressed. The Lord Advocate, for whom I have huge respect, said:
“I would not—and prosecutors would not—take up a case without any supporting evidence”.—[Official Report, Justice Committee, 20 November 2013; c 3736.]
Will the member take an intervention?
No, thank you.
Our Solicitor General has said:
“The current corroboration law means too many victims are denied access to justice and that is a situation no modern legal system should tolerate.”
There is a lot in that phrase—we are supposed to have a “modern legal system.” It seems to me that when a system is denying people access even to be heard in court, and denying such access to women who are sexually assaulted and raped, it is no modern legal system.
That applies not only in sexual cases. Age Scotland says that
“Elder abuse can take place behind closed doors”,
which of course it does, and that
“sometimes there may be little or no supporting evidence. In many cases this involves ‘hidden harms’ such as mental or emotional abuse, making threats or withholding food or medicine. Changing the corroboration rule for these cases might help to make prosecutions possible.”
As a layperson, that last part sounds like a heck of a good thing to me. I fail to see why there should be a problem, unless we take the terribly old-fashioned view that the law on corroboration is sacrosanct and should not be changed.
Of course the law should be changed when it is no longer fit for purpose, and I do not believe that the law on this particular issue is fit for purpose.
Even if I was to accept that the law should be changed if it is not fit for purpose, should we not know what we are changing it to before we change it?
I will speak again as a layperson. It seems to me that we are looking at doing away with the mandatory need for corroboration before a case can be taken to court and we can have it properly judged by a sheriff, judge or jury. That seems to be fairly straightforward.
As a result of the big argument on corroboration, we are ignoring an awful lot of other things that are in the bill. Rod Campbell raised some of those issues as a lawyer—I do not know if it is all right to call an advocate a lawyer, is it?
Yes, it is okay.
Okay. Well, our advocate at the back here mentioned some of those issues, but there are other issues that are important to people that are not being mentioned. We heard a little bit about people trafficking.
The need to reduce inconvenience for witnesses is a major issue, given the number of people I hear talking about the ridiculous nonsense that sometimes go on when they go to local courts as witnesses or to give evidence. Provisions for witnesses need to be upgraded, and I am glad that the issue is addressed in the bill.
Another issue that has not been mentioned is sentencing. Part 4 of the bill increases the maximum sentences for handling offensive weapons to ensure that courts have appropriate powers to sentence effectively persons who commit possession offences with knives or other offensive weapons.
Not that long ago in Parliament we heard Opposition members screaming at the cabinet secretary that he was not doing anything to stop knife crime and that he was not being hard enough. After successful campaigns to reduce the carrying of knives, we have before us a bill that says that there should be powers to increase the sentence for carrying an offensive weapon. Therefore, that part of the bill is certainly worthy of note.
On child suspects—
You are in your last 10 seconds.
—the fact is that the rights of those under 16 cannot be waived, but 16 and 17-year-olds have a degree of autonomy, so theirs can be waived unless a person is considered vulnerable.
There is an awful lot in the bill, and I have a real worry that some of it—
You must close now, please.
—is being sidelined. Let us not do that.
16:10
Parliament will divide when we vote later this evening, and when we do many of us will be thinking about the requirement for corroboration and how many changes arising from the bill could shape our criminal justice system for years to come. As we have heard, the bill includes welcome measures on human trafficking and a more efficient appeals process, but its proposals on corroboration are controversial. Corroboration is a central tenet of Scots law. It is a unique and historic feature of our legal system, which those who defend it say prevents miscarriages of justice. Critics, however, say that it is an abnormality and that focusing on the quantity of evidence over quality is a barrier to justice.
Like others, I have concerns about whether the requirement for corroboration prevents victims of particular offences not just from having their day in court but ultimately from getting justice. That case has been made by Scottish Women’s Aid and Rape Crisis Scotland, which are speaking up for women affected by rape, sex crimes and domestic violence.
I stood on a manifesto that sought to give greater emphasis to the rights of victims in our justice system. We said that there should be a charter of victims’ rights, setting out what victims can expect from the law before, during and after their time in court. We said that there should be an independent victims commissioner to defend that charter. We said that it was wrong that rape conviction rates here are among the lowest in the western world, and that we wanted a renewed focus on improving the treatment of victims of rape in the justice system. Crucially, we said that the time has come to review corroboration in rape cases and that we would consider the findings of the Carloway review. We considered the Carloway review recommendations and, while we remain sceptical about blanket changes without corresponding safeguards, we feel that there is still a case for reform.
What does it say about the way in which the bill has been handled when a proposal that has found some measure of support, at least, in the two largest parties in the Parliament is about to go to a knife-edge vote that the Government might lose? What does it say about this Government when it has to announce a last-minute review—potentially a year long—of a bill just weeks before the stage 1 debate but still expects Parliament to vote for it?
Lord Bonomy’s review is undoubtedly welcome, even if many of us believe that its scope is still too limited. Its recommendations could well set out how confidence in the justice system is sustained if the Scottish Parliament does indeed abolish the general rule of corroboration. The review’s findings might well determine the future shape of the Government’s legal reforms. However, we are still being asked to vote on the bill tonight without having any idea of what Lord Bonomy’s conclusions will be, and then deal with the matters of primary importance at a later date through secondary legislation. As James Wolfe, the new dean of the Faculty of Advocates, has said, “It’s a pig in a poke.”
There are people in the chamber with an open mind about the abolition of corroboration in rape cases who will vote this evening to remove the provision from the bill because the Government has failed to get the basics right. The Scottish Government must provide clarity about the implications of abolishing the requirement for corroboration now, not after the stage 1 vote; it must go further by satisfying the Parliament that victims will not just get their day in court, but will be supported through the whole process.
Given the Government’s failure to find consensus, I believe that the section on corroboration should be removed from the bill and that we should return to corroboration when the case on it has been made and we have a thought-through proposal to vote on.
16:14
Before I make my main contribution to the debate, I want to put two thoughts to the chamber—I, too, speak as a layperson and not as a lawyer. First, corroboration has been in place in Scotland for centuries and those who support it claim that it is essential for preventing miscarriages of justice, so why has no other country adopted it? Secondly, are all those who defend corroboration saying to other jurisdictions that do not use this practice that their jails are filled with innocent people?
Will the member give way?
I apologise to John Finnie and, indeed, the rest of the chamber but although I would like to take an intervention I really want to finish this speech. To be quite honest, I might get a bit emotional and might not be able to finish it.
I was, until recently, a board member of Central Scotland Rape Crisis & Sexual Abuse Centre—indeed, I had that position for more than 10 years—but I want to make it clear that I am not speaking on its behalf this afternoon. However, I would like to pay tribute to that organisation and the countless other women’s organisations who, to a person, are in favour of scrapping corroboration. In fact, if we look at the history of those groups, we will see that one of the main drivers for their formation was the consequences of corroboration; now, ironically, they have to deal with the aftermath of its failures on a daily basis.
I want to dedicate my speech to a woman called Jean by telling her story—and I should tell the chamber that Jean is not her real name. Her story will in many ways be familiar to those in women’s groups who have had similar experiences and who have to deal with the wreckage when personal tragedy strikes.
Jean was overpowered and raped by a person she knew. The incident was very quickly reported to and acted on by the police. They did not collect the evidence at that time; they did even better than that by using their valuable training and escorting Jean to a hospital where a forensic surgeon immediately examined her and expertly collected the evidence. While the examination was taking place, the surgeon was quietly counselling Jean and offering advice about where she could find and who could offer the vital early services that could support her over what the surgeon knew would be a protracted and traumatic period. Jean was supported through this time by her husband and assisted by Rape Crisis, and she was also sympathetically dealt with by the police while at the same time questioned in detail by them.
The process lasted months and months. The fiscal service was extremely sympathetic to Jean’s situation, but the time that it took to reach a conclusion about whether a trial would proceed took its toll. The second worst day of Jean’s life happened when the fiscal service declared that it could not proceed to trial. The word “corroboration” was never used but, as matters unfolded, it became clear that the case had failed because of the lack of corroboration.
The day that Jean was raped, her life changed but she had others’ support to help her meet the challenges that arose. Sadly, when it was announced that the case would not be brought to court, Jean’s life as she had known it came to an abrupt end. Although her husband had been supportive throughout, he could not get over the fact that after the attack on Jean and the subsequent thorough investigation there would be no trial. For him, no trial meant no rape. The accusations and mistrust started; the fights became frequent as the blame was put on Jean; and then the marriage ended.
The depression that had started shortly after the rape deepened into chronic depression as Jean turned to alcohol for comfort. Soon after, her child was taken from her. She became so low and so full of self-loathing that she attempted suicide. In just a few short but horrendous years, Jean had lost everything in her life and although, thankfully, she and her daughter were reunited she wonders what might have been had she lived in another jurisdiction. She had early and excellent forensic evidence; her story was believed entirely by the police; the fiscal service supported her claims; and most people believed that things would have been different if this had happened somewhere else.
Our justice system is dysfunctional. It has barred tens of thousands of Jeans from justice. I know it; Kenny MacAskill knows it; the victims know it; the forensic experts know it; the police know it; the fiscals’ departments know it; every person who is involved in women’s groups and works on the front line knows it; even lawyers and judges know it. If we all know it, that in itself is an affront to justice, and we should be thoroughly ashamed. Why does our system recognise barriers to justice but do nothing about them? Surely it must not be the system that makes the verdict. Surely it must be a judge and a jury.
Jean, if you are listening, I know that you were not heard in your time of need but I pray that, today, this Parliament hears your voice. I urge all members to think of Jean and all the other Jeans and support the Government’s bill.
16:20
I suspect that the speech that we have just heard will have had an effect on every member in the chamber, whatever position they take tonight on the motion and amendment that are before us; on the detail of the legislation that the Government is working on; and on the prospect of recommendations from the Bonomy review.
The fact that such a speech can have that effect on members who take different views on the matter needs to be recognised. The debate has benefited from some calm, reflective but passionate speeches on both sides. It does not benefit from anyone claiming a monopoly of concern—few have done that in this debate, but, sadly, not none. There is no monopoly of concern in relation either to the specific instance that Mr Paterson has raised, very articulately, or to the wider issue.
Those of us who have concerns about the prospect of miscarriages of justice or of trials coming to court that have no prospect of safe conviction do not claim that we have a monopoly on that concern. I am certain that Rape Crisis and the other organisations that campaign on these issues and work in this area every day do not want an increase in convictions for the sake of it. They want an increase in safe convictions, not in wrongful convictions, which benefit nobody.
I want the member to realise that the debate is about an increase in prosecutions, not convictions.
I am sorry, but an increase in prosecutions without an increase in convictions would worry me very much, in terms of the expectations that that would raise and the stress that it would cause the accused persons and the victims without justice coming out of it. We all want an increase in justice. We want safe convictions, not wrongful convictions.
As I said, we do not claim a monopoly of concern on the issue. I ask members who support the Government’s position, similarly, not to claim a monopoly of concern about the impact of the offences and the lack of access to justice that, undoubtedly, exists. I say that as someone who is not yet convinced that we should remove the requirement for corroboration but who will be open to the arguments once I see what the Government proposes in its place.
I like the cabinet secretary and admire his position on a number of issues, but I am sorry to say that his demeanour on the front bench today, openly laughing at the arguments of Opposition members, does him no credit.
The cabinet secretary says, “Out with the old and in with the new.” I can only ask myself why Parliament may not vote on both matters on the same day. Why can the Parliament not take evidence on both matters at the same time and reach its decision once we know what the proposals will be?
The cabinet secretary and the Government accept that a new system of safeguards will be required. If we are to move from a position that places greater emphasis on the quality of evidence than the quantity, I am open to those arguments. However, those arguments have not yet been laid out in detail, and I think that it is unreasonable for the Parliament to be asked to pass legislation on that basis, especially given that the change is not specific to rape and sexual offences but applies to the whole of our criminal justice system. That approach—to put it mildly—is not a safe basis on which to pass such substantial legislation.
The cabinet secretary argues that if we defer—if we wait until we know what is proposed in place of the requirement for corroboration—that will cause too much delay in the implementation. However, if we pass the bill without knowing what is to come or when the provisions on the requirement for corroboration will be introduced, implementation can still be only tentative implementation of a hypothetical change. Those who are preparing the way will still not know if or when the Parliament will finally pass secondary legislation to make the change come about. If tentative preparation for a hypothetical change is what is about to happen, there is no reason for our not saying that we will take both decisions at the end of the process, once we know what the proposals are.
I will vote for the amendment in the name of Margaret Mitchell, which bears my name in support, but I am open to arguments in the future about what will be proposed. If Scottish law in this area is going to evolve, into what will it evolve? I want to be able to judge that, see the detail of it and hear the evidence of those on whom it will impact and who will work with the consequences of our decision. I want to know all that before we make our decision, and that is why I will support the amendment this evening.
16:26
I thank all the members who have spoken previously, particularly Gil Paterson, whose speech was very moving. I also thank Linda Fabiani for her measured, down-to-earth contribution, which was a breath of fresh air. I would be more than happy to welcome her to the Justice Committee.
Many of the measures in the bill have been welcomed by every party—the arguments have been well rehearsed—but there is one that has not been welcomed by every party, and it is to that issue that I turn. The reform of corroboration has generated more heat and discussion than any other aspect of the bill, although in my mind it is long overdue not only for the victims of rape and sexual assault—whose case was put so powerfully by my colleague Christina McKelvie—but for the elderly, as Linda Fabiani mentioned, and other vulnerable groups.
Many members who have spoken against the reform of corroboration cite miscarriages of justice and the need for justice for all. However, as I asked John Finnie earlier, what about the victims who see it as a miscarriage of justice that they do not have access to justice? It is disparaging of John Finnie to treat access to justice as though it should not be spoken about and does not exist. It exists in the minds of victims, and access to justice is what it is to them. We have also heard the phrase “having their day in court” bandied about, but this is nothing to do with people having their day in court; it is to do with people having access to justice. Victims do not like the disparaging phrase “having their day in court” and I think that people should stop using it. Members should think before they say such things.
Will the member take an intervention?
I am sorry, but I do not have time.
There has also been talk about members changing their minds, and a number of members who are in the chamber have changed their minds. I will give a couple of examples. The 2011 Labour Party election manifesto stated:
“We believe that the time has come to consider the arguments for reforming the need for corroboration in rape cases and will consider the recommendations of the Carloway Review.”
Will the member take an intervention?
Please let me go on.
On 1 December 2011, in a debate on the Carloway review, James Kelly said:
“Lord Carloway’s report sets out the history of why corroboration was incorporated into Scots law. It is important to remember that it was incorporated at a time when the legal system and the country were very different ... There have been many advances since that time, not only in technology but in the skill and expertise of prosecutors and defence agents. Times have moved on ... Labour has previously made its position clear on rape cases, in relation to which we feel that corroboration should be abolished.”—[Official Report, 1 December 2011; c 4250.]
What are you waiting for?
Will the member take an intervention on that point?
No, I am sorry. In your 2011 manifesto you spoke about the Carloway review and when you saw the evidence you said, “corroboration should be abolished”, yet you still say that you do not have enough information. I really cannot understand that at all.
Graeme Pearson said:
“the requirement for corroboration goes back so far that it is difficult to remember why and how it all began ... We should also bear in mind that, although the recommendation is to abolish the requirement for corroboration, it is not to ban corroboration.”—[Official Report, 1 December 2011; c 4258-59.]
Please get this right.
Then we have Claudia Beamish who, only a couple of weeks ago on 7 February, on “Brian Taylor’s Big Debate”, said:
“I respect the fact that there is now the Bonomy Review”.
Scottish Labour is
“supportive of the review and I think we have to see what that review does ... I do understand the concerns of women’s groups at the moment that this must not be kicked into the long grass”.
That is exactly what will happen if you vote for the amendment—it will be kicked into the long grass. Annabelle Ewing and the cabinet secretary very eloquently made that point in their speeches.
Let us look at why the reform of corroboration would be kicked into the long grass. If we have to wait for Lord Bonomy’s report to bring forward primary legislation, we run the very great risk that we will be unable to bring this matter before Parliament before the 2016 elections. I ask everyone, including Patrick Harvie, to understand that that is why we cannot support the amendment. I am not saying that everyone who says that they do not support the issue at stage 1 and supports the amendment does not support the abolition—or the moderation—of corroboration; I am saying that they are very misled. That is particularly true of the Labour Party. The quotes that I have cited make clear that you support the abolition of corroboration yet you are prepared to vote with the Tories and the Lib Dems and kick this into the long grass. You should think again, because this will not be progressed any quicker if you vote for the amendment. Think of all the victims who will not get access to justice while we sit and deliberate even further down the line.
Let us vote for the motion and reject the amendment because otherwise you would be rejecting the opportunity for the thousands of people out there who are denied justice and who would be denied it in the future.
We move to closing speeches. I invite members to speak through the chair when they can, please.
16:32
It has been an excellent debate, with some very good speeches. In particular, I single out those made by Alison McInnes, John Finnie, Gil Paterson and Patrick Harvie. As Margaret Mitchell said, the bill is wide ranging, with much in it that we welcome. It contains measures to reduce unnecessary delays in progressing cases, a proposal to increase the maximum custodial sentence for knife crime from four to five years, a fairly minor but nevertheless welcome change to automatic early release—it affects 2 per cent of offenders—and other worthy provisions.
The major controversy is the proposal to abolish the rule of corroboration. As we have heard, concerns have been raised about that proposal by the Law Society—I declare an interest as a member—every senior judge, apart from Lord Carloway, including Lord Gill, the Lord President and every single living previous Lord President; the Faculty of Advocates; the Scottish Human Rights Commission; the cross-party group on adult survivors of childhood sexual abuse; Lord Carloway’s own expert reference group; Justice Scotland; and many other experts and academics.
I struggle to understand from the cabinet secretary and his colleagues on the SNP benches why the change is required. The case seems to be that more victims would get their day in court. However, it would not be the case that the change would increase the rate of conviction, because in England and Wales the conviction rate for sexual offences, despite the lack of a corroboration rule, is almost identical to that in Scotland. The Lord Advocate in evidence to the Justice Committee made the point that there would not necessarily be an increase in convictions. Indeed, in this very debate, Mr Allard made precisely that point.
I am not sure that the member listened to my speech. The issue is not about the rate of conviction—that will come later. Rather, it is about the rate of prosecution and access to justice. We need cases to be prosecuted. No miscarriages of justice are taking place at the moment because cases are not being prosecuted.
I thank Mr Allard for confirming that what I said about his earlier intervention was entirely correct. If abolishing the requirement for corroboration does not increase the rate of conviction, I cannot see what it does for victims of crime. They want to see those who they claim have assaulted them being convicted. Surely that is the point.
Lord Carloway and the Cabinet Secretary for Justice both described the rule of corroboration as “archaic”. It is certainly an ancient rule of law. So, of course, is the presumption of innocence. I dare say that there are prosecutors and people in the police who would be quite happy to scrap what they would describe as the archaic law of the presumption of innocence and I dare say that that would increase convictions. There is no doubt about that.
However, our role in Parliament is not to do everything that the police and prosecutors ask for. As Alison McInnes said in an excellent speech, our role is to strike a balance—sometimes, it is a difficult balance—to ensure that the innocent are protected. Scrapping the requirement for corroboration tips the balance too far, in my opinion.
I will say something about the Justice Committee. Those of us who are involved in committees in the Parliament know how unusual it is, since 2011, for SNP-dominated committees to say anything critical of a measure that the SNP Government proposes. We have all sat there and seen lines that are in any way critical of anything that the Government is doing being excised by SNP members.
What makes the Justice Committee’s report remarkable is that it is the first instance that I can think of in the past three years in which an SNP-dominated committee has disagreed with a proposal from the Scottish Government. The cabinet secretary should take note of that. In particular, he should take note of the views of the committee convener, Christine Grahame. She is a well-regarded convener and a lawyer like me. When she decides that what the Government is doing is not correct, the cabinet secretary, the Government and Parliament should listen to that.
Even the cabinet secretary himself has concerns. We know that because he has conceded a review under Lord Bonomy. It is an extraordinary approach to say that we should pass the measure into law and thereafter have the review. That is the wrong way round. We should not be asked to pass a law until we have full scrutiny of the proposal and have the review first.
Let us make an offer to the cabinet secretary. We will not be unreasonable on the issue. We are happy to consider the case for scrapping the general corroboration rule as part of a wider review of the laws of evidence. That is precisely what Lord Gill proposed to the Justice Committee. The cabinet secretary can take that away, take the measure out of the bill and bring back fresh primary legislation following the review. It will get proper parliamentary scrutiny and he will get support from us if he does that job properly.
The cabinet secretary has a simple choice. He is a fair-minded man and I have a lot of respect for him as Cabinet Secretary for Justice. He can either do the right thing, listen to the Justice Committee, its esteemed convener, all the Opposition parties in the Parliament and all the various outside bodies that have raised concerns about abolition and take the provision out of the bill, rethink it, review it and bring it back to Parliament for proper consideration; or he can railroad it through on a tightly whipped vote with, inevitably, a narrow majority at best and show contempt for the view of the Justice Committee. This is his chance to show his mettle. I hope that he will not disappoint me or the people of Scotland.
16:38
There are several parts of the bill that Scottish Labour members agree with and want to proceed. We support the reduction of the number of hours for which a person can be kept in custody to 12. There is, perhaps, a case for occasionally allowing that to be extended beyond 12 hours in exceptional and difficult cases.
We welcome the focus on knife crime, which increases the maximum sentence for carrying a knife from four years to five. Scottish Labour has taken knife crime extremely seriously for many years. Indeed, in office, we took action to strengthen sanctions on the carrying of knives.
We agree that the appeals process should be speeded up and we are also pleased to see Sheriff Bowen’s recommendations—in particular, the requirement for effective communication between the prosecution and defence in sheriff and jury cases—being reflected in legislation.
We welcome sections 83 and 84, which create two statutory aggravations relating to people trafficking. Of course, we hope that that will be followed by Government support for Jenny Marra’s member’s bill. Indeed, it is disappointing that the SNP is the only party that has failed to have one single MSP sign in support of the bill being heard—a bill that has been described as world leading and which has attracted the backing of more than 50,000 members of the public.
We have concerns about some proposals. As Christine Grahame said, the use of the term “arrest” to cover questioning by the police without charge could lead to a misunderstanding of people’s status, and the term “person not officially accused” might be difficult to introduce into common parlance. If those changes are to be introduced, focused efforts will need to be made to ensure that the media and the public understand them. It is important that they understand that the fact that someone has been arrested will no longer indicate that the police have sufficient evidence to press charges against them.
We agree that the police should be able to release a suspect for a period of investigative liberation before any charges are pressed, but consideration needs to be given to how that may be interpreted by the person’s employers and by members of the public, and the effect that it may have on the suspect’s private life. I also have much sympathy with the view that the complainer—particularly in the case of person-to-person crimes—should be advised of the period of investigative liberation and any conditions that are attached. We can pursue that at stage 2.
As others have said, the most contentious issue is the abolition of the requirement for corroboration, which, unsurprisingly, has dominated the debate. I make it quite clear that I do not oppose its abolition out of any desire to give the Government a kicking. The question whether one of the cornerstones of Scots law should be abolished is far too serious to be used for transitory political gain. Indeed, it was with deep regret that I concluded—having listened to the 11 evidence sessions to which the convener referred and read the 57 pieces of written evidence and the 11 pieces of supplementary evidence—that the cabinet secretary has not yet made the case for the abolition of the requirement for corroboration. I wanted him to convince me that it would make a difference to the lives of victims of person-to-person crimes such as rape, sexual assault and domestic abuse without compromising the civil liberties of those suspected of other crimes but, unfortunately, he has failed to do so.
I am a wee bit confused by what the member has said about corroboration. How come James Kelly said, when he had read the Carloway report, that Labour supported the abolition of corroboration? How can a party change its mind quite so quickly?
I had never made up my mind on that, and I do not think that Sandra White has given a correct account of what James Kelly said. I would like to continue, especially as Sandra White did not take an intervention from me.
We understand the frustration of organisations that represent the victims of such crimes, such as Women’s Aid, Victim Support and Rape Crisis, about the difficulty of getting cases to court but, as Murdo Fraser said, there is no evidence from systems in which corroboration is not required, such as the English system, that the rate of successful conviction for sexual crimes is any higher than it is in Scotland. Unfortunately, there is evidence from England that, across the system as a whole, the miscarriage of justice rate is higher.
As Alison McInnes said, if the requirement for corroboration is abolished, it might be easier to get a case to court but, once that happens, it will be one person’s word against another’s and the victim is likely to be subjected to very robust examination by the defence counsel, and juries or sheriffs may be reluctant to convict on the basis of one person’s word against another’s. The experience of an unsuccessful trial could be horrific for a victim and could leave her exposed and, indeed, endangered if the accused is not convicted.
All Labour members agree with Rhoda Grant, Sandra White and others that domestic and sexual violence must be taken extremely seriously, but the problem of achieving justice for victims goes far wider than the prosecution system. The terrible case that Gil Paterson described shows how bad the whole justice system is and indicates that the whole system, and the attitudes of society, need to be reviewed, not just corroboration.
I turn to the effect of the abolition of corroboration on people who are accused of other crimes. What about the trade unionist on the picket line, the protestor at a demonstration or the youngster who is accused of shoplifting? What will protect them if their face does not fit, the cause that they support is not popular with the establishment or they have already had a brush with the police? Who will protect them if corroboration is removed?
The cabinet secretary has made some concessions. He and the Lord Advocate have stated that no case will be taken to court without supporting evidence. It could be a way forward to put that on the face of the bill, but I am not sure that that is not corroboration by another name.
Margaret McCulloch, John Finnie, John Pentland and Patrick Harvie all mentioned the fact that the cabinet secretary has convened a review group under Lord Bonomy to look at additional safeguards. That is an admission that the cabinet secretary did not do his homework before introducing the bill. As all those members said, enacting the recommendations through secondary legislation is the wrong way to put the situation right.
Scottish Labour’s plea to the cabinet secretary and others in the chamber is this: please withdraw from the bill the provisions to abolish the corroboration requirement; widen the reference group’s scope so that it can consider the range of problems that face victims of person-to-person crime; widen the group’s membership to include representatives of those victims; look at removing the corroboration requirement, or at defining corroboration or putting a definition of supporting evidence in a bill; and look at the additional safeguards that might be required to protect civil liberties.
When all that has been done and the process is concluded, I ask the Government to bring back robust and well-evidenced legislation to the Parliament. By all means set a timescale for the process—it does not need to be kicked into the long grass and it can be achieved in a defined timescale—but let us pass the legislation properly.
If the cabinet secretary does what I have proposed, he and his Government will have the full support of Labour members and, I think, members across the chamber, because we all want to make a difference to victims who do not get justice at the moment, but we do not want to do that at the expense of the civil liberties of other vulnerable people in our society.
I call Kenny MacAskill to wind up the debate. I would be obliged if he continued until 4.59.
16:46
I put on record my gratitude to all who have taken part in the debate and especially to those whose comments extended beyond corroboration. It is important to deal with those other aspects, which I will also comment on. We will reflect on the many points that have been made, and we will seek to work with the Justice Committee, groups and individuals to address those points. I am grateful to them for that work.
We have heard outstanding speeches, such as those from Annabelle Ewing and Gil Paterson. I think that Patrick Harvie was eloquent, as ever, although I disagreed with the points that he made.
I again thank Lord Carloway for his comprehensive report, which took him approximately a year to produce. I am grateful for all his efforts and studies. We should also thank Sheriff Principal Bowen, who did considerable work that parts of the bill are based on and which will improve justice for Scotland. I am also grateful to all the members of the Justice Committee, the Delegated Powers and Law Reform Committee and the Finance Committee for their work.
I will deal with matters that have been raised. The charge is being dealt with by the Conservative Party, which is supported by its helpers—as is becoming the norm—in the Labour Party and the Liberal Democrats. We know that the better together campaign extends beyond the constitutional remit to other aspects.
John Finnie rose—
Would the cabinet secretary like to take an intervention?
Not at the moment.
Let me say that Margaret Mitchell said—[Interruption.]
Order.
Margaret Mitchell said that corroboration is not about non-essential aspects, that the position does not need to be beefed up and that it is all to do with important aspects. I will give her examples of aspects that require corroboration.
Two police officers are required for the taking of mouth swabs from alleged offenders. The taking of intimate swabs from a complainer in a rape case must be corroborated; that might involve a child and injuries to sexual parts. In child pornography cases, the Crown must corroborate that children are under 16. Two witnesses are required to prove that a child is a child; a birth certificate is inadequate. It is not simply a waste of police resources—
Will the cabinet secretary take an intervention?
Let me finish, and then I will give way.
It is not simply a waste of police resources—
Will the cabinet secretary take an intervention?
Ms Mitchell—
I did not hear the cabinet secretary’s reply.
Ms Mitchell, sit down.
It is not simply a waste of police resources but an infringement of the civil liberties of the child or the rape victim that two people must be present for something that is so intimate, harsh and personal when they have been traumatised. Perhaps Ms Mitchell would like to clarify why that should be the case.
What I would like to do is say that the cabinet secretary has just made a point that explains why corroboration should be taken out of the bill and looked at, to see how situations such as that are working in practice.
What that proves is that the case against corroboration has been made.
We expected that from the Tory Party: it is the Conservative and Unionist Party; that is what we expect from it. We did not expect that from those who have had a lifetime of experience. Mr Pearson was a very lengthy police officer for many years. [Laughter.] To be fair, he served with distinction and I worked with him. His position has changed. His position now is not the position that he had when he was a police officer. He stands now full square against not just Police Scotland but the Scottish Police Federation and the Association of Scottish Police Superintendents.
Graeme Pearson rose—
I will take Graeme Pearson in a minute.
I do not know what has changed other than Mr Pearson’s taking on the mantle for Labour, but I defer to Mr Pearson.
I am saddened that the cabinet secretary is making this a political issue, instead of considering victims. Let me confirm for him that my concern is that we are putting victims on a footing that is no better than the footing that they are on currently. If he would just take time, as I implored him to earlier, to allow the whole of the avenue to be looked at properly and a comprehensive proposal to be brought back, I would be glad to support him.
I would take that with more credibility if the member—and other members in this chamber—had not received communications from Victim Support Scotland, Rape Crisis Scotland and Scottish Women’s Aid. They are clear and they are unequivocal: they are saying not to support the Tory amendment lodged by Margaret Mitchell. There is no equivocation there; the equivocation comes from Mr Pearson.
We know that Labour members take their cue from Cameron and Osborne. [Interruption.]
Unworthy.
Order.
I did not think that they took their view from Richard Keen. It seems that it does not matter whether it is a minimum price for alcohol or free school meals—[Interruption.]
Order!
If Labour has a policy, if Labour knows that it benefits the community—[Interruption.]
Cabinet secretary, will you sit down?
I will not have speakers being barracked in the chamber.
Members: Oh!
I recognise that this is a very heated debate, but people are watching the debate and members are not doing the Scottish Parliament any favours by their behaviour.
There are aspects where Labour had clear, principled positions, which now seem to have been stood on their head.
I accept that Patrick Harvie has a different view, and I am prepared to discuss and engage with him. I think that he does not believe that the case against corroboration has been made; I believe that it has. The important thing is that the Labour Party believed that the case against corroboration had been made.
Will the cabinet secretary give way on that point?
Not at the moment. I have to deal with Labour.
That is why the Labour Party manifesto was clear that Labour wished to consider the issue with regard to rape.
Will the cabinet secretary give way?
No—let me deal with the position before. On 1 December 2011, James Kelly, who is whipping Labour at the moment, was a justice spokesman. He said:
“Labour has previously made its position clear on rape cases, in relation to which we feel that corroboration should be abolished.”—[Official Report, 1 December 2011; c 4250.]
On 25 September 2012, in a parliamentary debate on Carloway, Mary Fee, who I have the greatest admiration and respect for, said:
“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.” —[Official Report, 25 September 2012; c 11848.]
We have heard today from Rhoda Grant. When she addressed my colleague Fergus Ewing, who was then the community safety minister, she made it clear that, in cases of domestic abuse,
“there are no corroborating witnesses to the crime—it happens within the home. That is what makes domestic abuse different from any other crime.”—[Official Report, Justice Committee, 9 November 2010; c 3744.]
What has changed since Rhoda Grant had that position, Mary Fee spoke and the Labour Party stood on that manifesto? What information have they received? They have received the information that has been forthcoming.
For clarification, the manifesto said that we would consider the removal of the requirement for corroboration in rape cases. I pursued the matter with Lord Gill and with Scottish Women’s Aid and Rape Crisis Scotland during evidence taking, and no one was interested in removing the requirement only in relation to certain crimes. All said that it should be done across the board or not at all.
That is what the Government is seeking to do, because we recognise that the issue does not affect only the victims of rape or other sexual offences. As Rhoda Grant knows better than anyone, and as Lily Greenan said in evidence, the issue affects victims of domestic abuse. We know that it affects the elderly, as Age Scotland said and as members have said today.
Will the cabinet secretary take an intervention?
I do not have time, I am afraid.
We know that it affects children. We have heard how children suffer behind closed doors.
Evidence has come in since Labour made its manifesto commitment. We heard the testimony of Colette Barrie and Mary Ann Davidson. We have heard the victims of Lee Cyrus speak out—in that respect, Mr Fraser seems to ignore points that he has taken before. He has been told by the Solicitor General for Scotland that the decision in the Lee Cyrus case was down to corroboration, but he wants the status quo to continue, which creates situations such as the one he has been correct to complain about.
The cabinet secretary knows perfectly well, because I have corresponded with the First Minister and the Solicitor General on the case, that my concern was the lack of application of the Moorov doctrine and had nothing to do with the general rule of law on corroboration. The cabinet secretary should know that.
I take the view of the Solicitor General on the matter much more than I take Murdo Fraser’s view. The impediment to access to justice in that case was the law of corroboration, as it has been in 170 rape cases over the past two years and as it is in 3,000 cases annually.
At new year I watched Jonathan Watson’s parody of Johann Lamont—[Interruption.] I never thought that I would see Johann Lamont play Jonathan Watson. “Mibbees aye, mibbees naw” appears to be Labour’s position on corroboration, despite its manifesto commitment and despite Labour members going on record—[Interruption.]
Order. [Interruption.] Order!
Thank you, Presiding Officer.
The burden of proof remains: beyond reasonable doubt is the standard that has to be proven by the Crown.
The evidence is clear. It is clear in the court of public opinion. It has been put forward in the Parliament by organisations that have represented victims of crime for years and years, by the people who have to wipe away the tears and mop up the blood, by the people who are involved in policing and prosecution and—I reiterate, in letters to every member—by Scottish Women’s Aid, Rape Crisis Scotland and Victim Support Scotland. Those people have given us clear, unambiguous advice that we should ensure that the law of corroboration, which has harmed access to justice, is dealt with.
I said that there seemed to be a parody in terms of Labour’s position with regard to—[Interruption]—Labour’s position on corroboration. Let us be clear: it is only an excuse for Labour, which is selling out on its principles. We accept that that is the norm for the Conservative Party, but for years the Labour Party, especially under Johann Lamont, prided itself on tackling domestic abuse and addressing issues to do with sexual offences. Labour has sold its soul and is in danger of selling out the victims of crime. I commend the motion in my name.
That concludes the debate. I ask all members in the chamber to reflect on their behaviour this afternoon. [Interruption.] I ask all members to reflect on their behaviour this afternoon, which, quite frankly, was unacceptable.