Justice Secretary Kenny MacAskill, whose decision to free Abdelbaset al-Megrahi For Argyll supported unequivocally – is looking at two major blunders of his own making. One has not yet gone the whole hog and is so serious we can only hope that MSPs do some better thinking before they vote on the Criminal Justice [Scotland] Bill.
Stand-off between Police Scotland and the Scottish Police Authority
Mr MacAskill has just had to resolve one situation caused by his own failure to be decisive when an early turf war broke out in the new unitary Scottish police Service, Police Scotland, between its Chief Constable, Stephen House and Vic Emery, Chair of the scrutinising body, the Scottish Police Authority.
Mr Emery took control of swathes of police staffing, leaving the Chief Constable unable to control the spectrum of his own responsibilities.
Stephen House made it public that this was a matter of dispute. The Justice Secretary procrastinated, which let the tensions between the two men – and in the force – build unhelpfully, where a quick and decisive intervention would have been constructive.
Then he decided in favour of Mr Emery – a structurally illogical decision, making operations at Police Scotland difficult and leaving the tensions between the factions in the two bodies on simmer.
Under two weeks ago, on 12th June, the three most senior managers resigned from the Scottish Police Authority on the same day. They were Andrea Quinn, interim Chief Executive, Finance Director Eamon Hegarty and John Fox-Davis, Strategic Planning Director.
Ms Quinn is reported as telling SPA staff that there were: ‘…frustrations about the lack of communications from the executive team since day one about the structure and direction of the organisation.’
These resignations were seen as damaging Mr Emery’s position and finally, eleven days after this event, on Friday 21st June, the Justice Secretary reversed his earlier decision, leaving the now Sir Stephen House with the authority over the bulk of police staff he should always have had.
The cost of the Mr MacAskill’s prevarications has been a bad start to relations between the police service and its scrutinising body, poor and delayed structural development in establishing competent operations and the loss of good staff at the Authority, who must now be replaced.
Proof of the legacy of continuing tensions can be found in an SPA spokesperson’s statement following the Justice Secretary’s volte face. It speaks of the Authority refocusing on the ‘not inconsiderable task’ of making sure that ‘a very powerful chief constable’ is held to account.
This itself betrays the inappropriate ambitions of the SPA. Its core job has always been to do what it says it will now ‘refocus’ on doing – holding Police Scotland to account.
Removing key securities from Scots law
A Scotland contemplating independence and looking for earners in a solo economy could usefully look to Scottish law as a major resource for international consultancy.
Scots law retains a reputation for the calibre of the thinking behind its basic principles.
Two of these are famous – for good reason – and both are proposed for removal by the Justice Secretary. They are:
- the ‘third verdict’ of Not proven
- the requirement for corroborating evidence.
The Not Proven verdict
This is a judicious verdict unique to Scots law.
It comes into play when the prosecution has failed to establish a strong enough case on which to deliver a ‘Guilty’ verdict in trials where the evidence indicates that there was a stronger and credible case to be made.
It has always been attacked on the grounds of unfairly leaving a defendant with an impediment.
This stance, while understandable, fails to accept that there is a no man’s land between a ‘Guilty’ and a ‘Not Guilty’ verdict – just as there is a no man’s land between guilt and innocence.
It is a verdict that may be viewed, with reason, either as an affront to natural justice or a protector of it.
It’s nuancing is sophisticated and is particularly identified with the intellectual precision attributed to the Scots.
It seems perverse for a party set on trying to take the country into independence, to wish to reduce the specific national character of its law.
The requirement for corroborating evidence
Scottish and Northern Irish law each require corroborating evidence to secure conviction. This is a distinctive feature of both jurisdictions.
The Justice Secretary, in his new Criminal Justice (Scotland) Bill, now launched on its way through the Scottish Parliament, proposes to remove this requirement, describing it as ‘a barrier to justice’.
This position is both right and wrong – since the need for corroboration has the capacity to be both a barrier to justice and a barrier to injustice. Since the British legal system is based on the founding principle of ‘innocent until proven guilty’ that must weight the law towards a primary care to install barriers to injustice.
The delicacy of the balance corroboration creates between preventing both justice and injustice makes crude and simplistic revisions to the law a matter for pause.
The proposal is opposed by the Law Society of Scotland and by The Police Federation of Scotland.
The position of the Law Society of Scotland
The society describes corroboration as a ‘fundamental principle’ of the justice system. It is on the record as saying that it sees the removal of corroboration as leading to a greater risk of miscarriages of justice.
The society’s criminal law committee, represented by Raymond McMenamin, has said: ‘We believe that removing the requirement for corroborated evidence, without including sufficiently strong safeguards in the Bill, could simply result in a contest between two competing statements on oath and, as a result, bring increased risk of miscarriages of justice.
‘The requirement for corroborated evidence is not an antiquated, outmoded legal notion but is a fundamental principle of our justice system.’
This view could not come from a more qualified body and the fact that is as view held across its membership gives it added authority.
The Police Federation of Scotland’s concerns
Towards the end of 2012, the Justice Secretary’s interest in supporting Lord Carloway’s recommendation to remove the requirement for corroborative evidence was clear. At this stage the Police Federation of Scotland voiced their objections.
The Federation’s General secretary, Calum Steele, told BBC Radio Scotland that: ‘Corroboration provides safeguards on both sides of the criminal justice equation.
‘It provides fundamental safeguards for the police officers that are involved in investigations and it provides safeguards for individuals who are accused of crimes.’
This is another key issue – for police officers and for public confidence.
Concerns about the objectivity of the police are gathering force with the revelations of alleged instructions to police to look for anything that could be used to damage the credibility of the family of the murdered teenager Stephen Lawrence.
Trust in police is far from unequivocal, nor should it be anything else.
Removing the need for corroboration and placing weight on the evidence of one person who, if a police officer, will be open to – normally – unfounded suspicions and potential allegations of abuse of position.
That not only leaves honest officers subject to the damage of pressure and stress. It also unsettles the public who can have no certainty in many cases that justice has actually been done on this basis.
The domain of sexual crime
The central drive for the proposed revision of Scots law in respect of corroboration lies principally in the domain of sexual crime.
The circumstances surrounding an alleged rape are unlikely as a general rule, to allow for third party corroboration of either conflicting witness statement.
The need for corroboration is therefore producing what is said to be a low conviction rate for rape cases in Scotland.
This is not a reliable assertion.
On 2nd December 2011, the Lord Advocate for Scotland, Frank Mulholland, made a very positive revelation in a speech to the annual Crown Office and Procurator Fiscal Service Sexual Offences conference.
The Lord Advocate told the conference figures released that very day showed that the conviction rate in rape trials had almost doubled in the year since new laws were brought in clarifying the definitions of rape and consent.
He said that, since the enforcement of provisions of the Sexual Offences (Scotland) Act 2009 began in December 2010, 62% of rape cases ended in a conviction. 69% of sexual assault cases had also led to conviction over the same period.
This is, of course not the whole story, since the statistics ate based only upon cases brought to trial and not upon cases of reported rape. This area is a minefield since there will obviously be a number of spontaneous and unjust allegations of rape.
On 25th March this year, Helen Reece, reader in law at the London School of Economics, presented, in a legal journal published that day, arguments on the issue of rape convictions under English law, where corroboration is not a requirement.
She gave a figure of 7% of reported rapes resulting in ultimate convictions over 2011/12 – but pointed out that this rate is not significantly out of line with other common crimes such as burglary.
In her paper she said: ‘There are a lot of [rape] cases where there’s no other evidence than one person’s word against another.
‘Both sides are saying they had sexual intercourse but [don't agree that it] took place in the [same] way … I don’t think there’s much more we can do to increase the conviction rate. I would like to see a more straightforward debate about the issue.’
She recorded that in 2011/12 there were 14,767 recorded female rapes but only 1,058 convictions. In 1985, by comparison, there were 1,842 recorded rapes but 450 convictions. In other words, en eightfold increase in the reporting of rape over the period has resulted in little more than a doubling in the conviction rate.
Of those cases that result in a full crown court trial, 51.1% resulted in a conviction in 2011/12. That, Reece said, is also not out of line with other serious offences.
Since both this figure and those given by Scotland’s Lord Advocate show Scotland’s conviction rate, with corroboration is similar to and perhaps better than England’s conviction rate, without corroboration, it does not suggest an imperative to remove a key protection against a miscarriage of justice from Scots law.
Should absolutely contemporary comparative figures, when they become available, indicate a changed position, it should not mean removing corroboration from Scots law per se.
There should, in the case, be a discussion on its specific removal from the area of sexual crimes where the presence of an independent witness is improbable.
Scotland’s law needs intellect not political opportunism to be at its heart. The proposed changes to key foundations of Scots law require a more rigorous and objective intellect than they are getting – both in the Carloway report, which is lightweight on a heavyweight matter and in the Justice Secretary’s cavalier dismissal of the nuances of what is just.