On Thursday the Scottish Parliament debated the general principles of the Government’s Criminal Justice Bill. Sadly, one of the principles they seek to abolish is that of corroboration, where there have to be two sources of evidence in a criminal case. The problem is that there are not enough evidential safeguards to stop miscarriages of justice if this happens. Concerns are so strong that the Justice Secretary has set up a review group to consider what evidential requirements might be needed – but it will report after the Bill has passed. That flies in the face of comman sense.
There was an attempt to take the corroboration bit out of the Bill, but this fell by 3 votes, 64 to 61. Then the Bill passed its first stage but the Labour and Conservative parties only abstained rather than voted against.
I thought it was important to publish Alison McInnes’ speech in full. Kenny MacAskill basically accused those who wanted to keep corroboration, or at least wanted him to withdraw that part of the Bill pending a review by Lord Bonomy on the implications, of being apologists for rape and domestic violence and being part of some unionist conspiracy. That includes much of Scotland’s legal profession. Here are Alison’s much more considered and thoughtful remarks:
The Criminal Justice Bill contains a number of welcome reforms. There is clearly a need to ensure Scotland’s criminal law and practice comply with the European Convention on Human Rights.
During Stage 2 we should carefully consider the many issues the committee identified including the appropriate detention limit, use of the term arrest and the basis on which they are conducted.
Turning briefly to matters that are not in the Bill, I share the belief of children’s charities such as Barnardo’s that the Scottish Government has missed an opportunity to raise the age of criminal responsibility from 8 to 12. I hope we can return to that at stage 2.
But in the short time available, I must focus on the part of the Bill which has rightly attracted the most attention.
I am, of course, talking about Section 57 and the proposal 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”.
Since then he has been patently partial, relentlessly pursuing only one outcome. Unwilling to act as the guardian of the wider justice system.
The reasoned pleas of Scotland’s top judges, including the Lord President, legal professionals and human rights organisations, have been ignored.
The Justice Secretary quotes emotive cases and anecdotal evidence to make his case. I don’t doubt that he speaks of genuine grievances and wrongs, but this is a sweeping change that will impact upon every criminal case, summary and solemn; choosing to portray this debate as a contest between a primitive justice system and the “blood” and “tears” of victims is disingenuous, misleading and devalues the debate.
I agree that we must strive to enable 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 this proposal.
In the absence of corroboration, more prosecutions could rest on the credibility of the alleged victim. They could increasingly be subjected to unbearable cross examinations. ‘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 it will result in more convictions.
Simply increasing the number of cases that reach court is not enough. Without also endeavouring to improve conviction rates we are offering victims false hope. As the Committee concluded , abolition will not improve access to meaningful justice.
That 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 don’t defend corroboration because of tradition; it is so much more. It protects against miscarriages of justice, false accusations, wrongful convictions and the erosion of the presumption of innocence.
This pillar of our justice system cannot be removed without making the whole structure unstable. In the absence of the equivalent checks and balances that exist in other jurisdictions, it is central to ensuring our courts secure the right conclusion 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’s an unequivocal message to the Justice Secretary. The reasoned amendment, signed by so many, is further testament to the gravity of what is at stake today.
Presiding Officer, having failed to quell fears and disquiet, the Justice Secretary at the eleventh hour stumbled into the offer of a review;
I don’t know if he finally ‘got it’ or whether it 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 he knows to be 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 Wollfe QC, has described this approach as asking MSPs to buy “a pig in a poke”.
Lord McCluskey condemned simply placating opponents with “sweeteners”. Saying ”the interests of justice are not served by awarding sops to one side or another”
It’s no way to legislate.
Secondary legislation should establish comparatively minor details, not define how we prevent miscarriages of justice…not prevent the problems this Bill invites.
Despite the Justice Secretary’s assurances, everyone here should know that an affirmative instrument leaves no real 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 of parliament.
This is now no longer only about whether we think corroboration should be abolished or not. It is also about how Parliament is regarded. About 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 only be one logical next step – accede to the Committee’s recommendations and remove section 57 from the Bill. Allow Lord Bonomy’s group to conduct their review completely unfettered.
Parliament can then rightly return to the matter afresh. It is obstinate and absurd to suggest any other course of action.
Caron's Musings 