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Corroboration : A Silver Lining
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david



Joined: 01 Mar 2009
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Location: edinburgh

PostPosted: Tue Nov 26, 2013 1:30 am    Post subject: Corroboration : A Silver Lining  Reply with quote

http://www.firmmagazine.com/corroboration-silver-lining/

Corroboration: A Silver Lining



The FIRM is starting a new series this week designed to highlight why corroboration is so important to Scots law. As the Lord President correctly stated this week 36 out of 37 Senators of the Court of Justice oppose the removal of corroboration yet the Justice Secretary Kenny MacAskill appears to refuse to acknowledge the role that corroboration plays in safeguarding accused from miscarriages of justice. Callum Hiller (@callumhiller) starts the series off with a call to the profession to unite over corroboration and setting the record straight.

I am a trainee in a civil practice but I maintain an interest in all areas of the law, apart from Conveyancing (sorry guys).  I was asked to write an article by the FIRM about my thoughts on the issue of corroboration.

I will not be discussing the law itself in any real depth.  I do not think that would serve any real purpose given the vast experience of many of you who have already commented on the issue.  Instead I am going to offer some thoughts on what I perceive to be the difficulties faced in trying the retain corroboration and the lessons I think we can learn from those.  I hope that the thoughts of someone who is not yet embedded in the profession are useful to you regardless of your experience.

The problem so far in the battle against the abolition of corroboration is that lawyers have failed to find an effective mechanism through which we can channel our opposition.  We all know that 99% of the profession opposes the proposal and we all know why.  What we are failing to appreciate is why it is still going ahead.  And for me, that goes much wider than the law.  In my opinion there are two principal reasons why corroboration will likely be abolished:  The first is that the Scottish Government wants it to happen.  The second, and by far the most important reason, is because we have a passive general public who are, at the very least, amenable to it happening.  I will take each of these reasons in turn but the interface between the two cannot, in my view, be underestimated.

I believe that the Government want rid of corroboration for a variety of reasons.  Without going into great depth, it is suffice to say that the removal of corroboration will both strengthen the position of the state in respect of its citizens, and win support for the Government from lobbying groups who mistakenly believe it will increase convictions.  These are legitimate reasons, in the context of what politics has now become, but they are not in the bests interests of the people the Scottish Government were elected to represent.  Public opinion no longer dictates Government policy; Government policy dictates public opinion.

Now in order to achieve their goal, the Scottish Government require to control, or at least soften, public opinion.  We all know that they achieve this via sensationalist red top newspapers.  You know the type of headlines;

“Benefit Scroungers Buy Lamborghini Gallardo”

Or

“Criminals Made Richest Men Alive by Human Rights”

Now if this kind of thing wasn’t a daily occurrence – rife throughout our newspapers – we might be forgiven for thinking it was down to poor or lazy journalism.  However, their prevalence and consistency might lead you to the conclusion that they are very deliberate orchestrated attempts to manipulate public opinion.  They are nothing, at their finest, but propaganda.  Their purpose is to alarm and annoy the general public.  To soften them up for the impending proposals, and to deflect their anger during these troubled times away the real culprits and towards their fellow strugglers.  Now, those amongst us who are fortunate enough to be educated in these matters know better.  We know that more often than not these stories are littered with wild inaccuracies, omit key details, and fail to leave the people with an informed choice to make. However, many people don’t know and don’t have the time or energy to find out.  So they take what they read at face value and allow it to dictate their opinion.  And for lawyers, arguing in favour of retaining corroboration, this is the hard part.

If you watched Kenny MacAskill on Scotland Tonight, you will be well aware that any attempt at constructive debate is akin to banging ones head off a brick wall.  My biggest gripe was with the subtle suggestion that corroboration is some kind of insurmountable hurdle to obtaining a conviction.  It is suggested by some that the ‘Justice’ minister is unwilling to share any air time with anyone capable of engaging him in such a debate.  Derek Ogg QC had his input reduced to a video presentation, aired prior to Mr MacAskill’s appearance.  As impressive as Mr Ogg’s video was, the reality is that his absence from the studio may have rendered his appearance largely ineffectual.  Of course, for us lawyers it was good to see the arguments for retaining corroboration articulated so clearly and concisely.  However, to the general public I expect it was just more legal gobbledygook.  What the public care about is how the proposed changes will affect them, if at all.  I like to think of it as being analogous to if I need my house rewired.  I don’t really care what’s wrong with it in the first place, I just want it work to suit my needs and most of all I want to know what it is going to cost me.

What we don’t know is how to counter the many misconceptions the public hold in relation to the correlation, or lack of, between corroboration and convictions.  Sure lots of us tweet like crazy, some of us hand out fliers, and others try and speak to as many members of the public as possible.  Unfortunately, politics is quite often a case of he who shouts the loudest is the most influential and that presents a problem for those of us seeking to retain corroboration.  Whilst the Scottish Government has an entire media arsenal at its disposal, we are left with twitter or a megaphone and a soapbox in George Square.

When public opinion is a key part of the battle, we are likely to lose.  See the battle against legal aid cuts and court closures for previous examples.  I believe that for a number of reasons, primarily arrogance, we have forgotten why lawyers exist.  I’m not talking your high flying corporate types, and that’s not a slight, but the rest of us.  The majority of criminal lawyers exist to represent the common man: the underdog.  Popular culture would paint us differently.  If you ask a member of the general public what they think of lawyers you probably won’t like what you hear.

Of course, there are exceptions but in general we are not held in particularly high esteem.  There is no quick fix to this but what we must do is make attempts to re-engage with the public.  I think Twitter is an excellent example of how to do this but there will be others.  We also need to be more active in challenging what we perceive to be everyday injustices, without thought of monetary reward.  I know of some who have already begun challenging media outlets at every turn over the inaccuracies and misrepresentations within their articles.  I think this is extremely important.  Social media is the common man’s most powerful tool, through which he can have a voice he was previously denied.  We must challenge inaccuracies at every opportunity and publicise these challenges as much as possible.  On almost a daily basis now I see photographs of little apologies being made by newspapers for ‘mistakes’ in previous articles.  We must take it upon ourselves to be the champions of honesty and integrity, and in turn we will reconnect with the public.

And what we must also do is be proud of ourselves.  I saw some idiot the other day blabbering about how much money some top Counsel received from SLAB last year.  Notwithstanding his failure to point out deductions were still to be made, he was making it out as if they were just sat in the house playing the Playstation and being paid for it.  Their fees were so high because they had done so much work.  That’s what it costs, you can’t bill for work you have not done.  We are skilled professionals and we must not shy away from that.  We must command the respect from the government and media that we deserve.  I find it alarming that both Lord Hope and Lord Gill, together with almost all of the profession, can speak out against the abolition of corroboration and risk being ignored.  To return to my earlier analogy, if I need my house rewired and 999 out of 1000 electricians tell me that I must retain the fuse box, I’m not going to listen to the other guy.  This is what we must be saying to the public.  We must get them on side and to do that we must first remind them that we are on their side.

I am not so naïve as to think that all we have to do is win over public opinion and all will be rosy.  There are several examples of Governments pressing on with policies despite the public being very much opposed to those, Iraq and the Bedroom Tax are two stuck in my throat.  All that I am saying is that the silver lining in many of the battles we have been facing recently is this; we as lawyers have been reminded that as a profession we must maintain an active political role at all times, and not just when we feel under attack.  To do otherwise only supports the suggestion that our position is purely one of self interest.
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david



Joined: 01 Mar 2009
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Location: edinburgh

PostPosted: Tue Nov 26, 2013 2:07 am    Post subject: Reply with quote

http://www.firmmagazine.com/god-killed-corroboration-bastards/

Oh my God, they killed corroboration! You bastards!

Corroboration is the requirement that the evidence against an accused should come from two separate and independent sources. What must be corroborated is the evidence relating to the crucial facts (or, if you want to impress your friends at parties, facta probanda). I offer this (fairly basic) definition of corroboration as a lot of articles I have read on the issue seem to misunderstand the concept; assuming that every piece of evidence requires corroboration. A mistake even Kenny MacAskill made in his rather disastrous appearance on Scotland Tonight.



Lord Carloway, following his review of criminal law and practice, recommended that the centuries-old rule of corroboration be scrapped as it was “archaic” and “holding the criminal justice system back.” The Justice Secretary, Kenny MacAskill, in a wholehearted endorsement of the Carloway report and with no trace of hyperbole, stated that corroboration had “failed” Scotland. With such a damning (and corroborated) charge against the rule of corroboration, you’d be forgiven for thinking we’d be right to get shot of it. Forgiven, but you’d still be wrong.

No less an authority than Lord Gill, the Lord President, has warned against scrapping corroboration (along with every other judge, except Lord Carloway). During a session of the Scottish Parliament’s justice committee, Lord Gill exposed the Justice Secretary’s plan as the ill-thought out mess it is. Arguing that corroboration was one of the “finest features” of Scotland’s justice system; he did not believe it’s abolition would improve the quality of justice. Articulating that scrapping the rule may increase prosecutions, but there is no evidence to support it would lead to an increase in convictions. Lord Gill argued that it may even lead to a fall in conviction rates as juries may be more wary of finding an accused guilty on uncorroborated evidence. Perhaps the most worrying aspect argued by Lord Gill and echoed by many, is that scrapping corroboration could lead to an increase in miscarriages of justice. I would suggest if that possibility is only increased by as little as 1%, that is a price too high to pay.

Despite these thoughtful objections from Lord Gill and the opposition of many, Mr MacAskill continues to push forward unabashed in rather bullish, if erratic form stating that “laws are made by Parliament, not one profession.” You’ll forgive me if I have no confidence in a man who has consistently failed to define the very thing he wishes to abolish. In that infamous Scotland Tonight interview (where again the Justice Secretary was left unchallenged) when asked what safeguards would be in place when corroboration is abolished, he told us that one witness would not be enough for a conviction and that additional evidence would be needed. They call that corroboration, incidentally. He’s either woefully out of his depth or is willing to go to any lengths to win the debate; like shamelessly lie. Having watched Mr MacAskill in various forums, I’m willing to bet the former, rather than the latter.

Statements like, “This is about justice in our communities not a debate between learned legal friends” suggest pure political posturing to me. An electoral ploy to get voters onside and what better way to do this than by making disingenuous claims on behalf of victims and taking a swipe at the legal profession in the process. Given the way the debate is being framed, I understand why organisations like Victim Support and Rape Crisis Scotland back the abolition of corroboration. Chief Constable Stephen House, doing a sterling job of overseeing the newly formed Police Scotland also backs abolition, pointing to England as an example of a system without corroboration (neglecting to mention the safeguards they have in place which we don’t). Mr House also stated that without corroboration, 82% of cases could have proceeded to trial. Remarkably, with such a high percentage, Mr House doesn’t think this would put any strain on the court system. With such a strong grasp of the facts from their Chief Constable, it’s a surprise the Scottish Police Federation have opposed the move to scrap corroboration.

The sensible way forward would be to take the abolition of corroboration out of the current justice bill and set up a review of it. Perhaps then we could have comprehensive discussion of the potential ramifications of removing the “cornerstone” of the Scottish criminal justice system. A move as important as this one should not be steamrollered through, as the Justice Secretary is doing right now. Surely the fact that the one profession which is likely to benefit greatly from this change, is universally opposed would be enough to give you pause? Unfortunately as Mr MacAskill has framed this as another “Us v Them” (decent, ordinary citizens v rapacious, self-interested lawyers) debate; it’s unlikely there will be a softening in his stance (not when there’s votes to be won!) and the potential for his own personal embarrassment. However, it is our duty to fight back against the disinformation campaign being fronted by him and educate the general public as to the importance of the safeguard of corroboration and this time, maybe we can learn from the mistakes of Protest for Justice.
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david



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PostPosted: Tue Nov 26, 2013 2:08 am    Post subject: Reply with quote

http://www.firmmagazine.com/law-s...l-comments-keeping-corroboration/


Law Society backs Lord Gill comments on keeping corroboration
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david



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PostPosted: Tue Nov 26, 2013 2:13 am    Post subject: Reply with quote

http://www.firmmagazine.com/corroboration-poll/

New Corroboration Poll

36 out of 37 Senators of the Courts of Justice agree with keeping Corroboration as a safeguard against miscarriages of justice. What do you think, Scotland? Do you support the Justice Minster’s plans to end corroborated evidence?
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david



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PostPosted: Wed Nov 27, 2013 4:33 pm    Post subject: Reply with quote

Part 1 of Pro Indy Campaigner and Activist Lawyer Aamer Anwar’s retort to Justice Minister Kenny MacAskill’s plans to drop the centuries old requirement that evidence be corroborated.

http://www.firmmagazine.com/macas...il-incarnate-wrong-corroboration/
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Iain McKie



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Location: Ayr, Scotland.

PostPosted: Wed Nov 27, 2013 8:24 pm    Post subject: Reply with quote

Thanks for keeping us updated David.

You couldn't make it up and wouldn't want to if you could.

You and others have given Mr MacAskill a way out but will he take it?
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david



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Location: edinburgh

PostPosted: Thu Nov 28, 2013 2:29 pm    Post subject: Reply with quote

“Justice is not just for victims”

It is a holistic concept that should apply to everyone in the justice system.

Niall McCluskey is an advocate specialising in criminal trials and appeals. He writes for the FIRM about the need to ensure corroboration stays as a safeguard against miscarriages of justice. Niall’s article is the latest in the FIRM’s #SaveCorroboration campaign. All of our series of articles on corroboration are available on the FIRM’s website.


http://www.firmmagazine.com/justice-victims/


As has been widely discussed section 57 of the Criminal Justice Bill 2013 proposes the abolition of the corroboration requirement in Scots Criminal Law. Thus far the only safeguard proposed in compensation for this fundamental change is contained in section 70 of the Bill which proposes changing the minimum number of jury votes required for a verdict of guilty from 8 to 10. So if these proposals go through you could have an accused convicted of a serious crime on the uncorroborated evidence of a single witness whom 5/15 jurors do not accept.

Recently we witnessed the extraordinary performance of the Justice Secretary Kenny Macaskill on Scotland Tonight when defending the proposed reform he said

“We’re not going to have people convicted on one single piece of evidence from one single witness. That’s been made quite clear by the Lord Advocate; there will always require to be additional evidence. That’s been made clear it’s not just a quantitative, but a qualitative test so the evidence of one person on its own will not be sufficient; there will require to be additional evidence that will be led.”

So the government appears to be abolishing corroboration as a matter of law and retaining it in practice!

The corroboration issue has reflected a concern that has been growing in me for some time that the balance within our justice system is shifting in one direction only to the detriment of accused persons. This is demonstrated by who the government are listening to and who they are ignoring. In the recent motion before the Scottish Parliament concerning corroboration the Scottish Government noted the support of Police Scotland, the Crown Office and Procurator Fiscal Service, Rape Crisis Scotland, Victim Support Scotland and Scottish Women’s Aid. These are all bodies on the prosecution/victims side of crime. Other than certain recommendations regarding safeguards the Judiciary were ignored. The input of the Sheriff’s Association, the Law Society, the Scottish Human Rights Commission and the Faculty of Advocates was also ignored.

The Justice Secretary is right when he says laws are for the Scottish Parliament and not the legal profession. No one is trying to deny the democratic process. But this proposed change is one that the legal profession and especially the judiciary are uniquely qualified to comment upon. The combined experience of the Judiciary and the Sheriffs in presiding over criminal trials is absolutely enormous. No organisation could have a more expert view than the Judiciary and the Sheriffs and bear in mind they are totally neutral and have no agenda unlike the bodies prayed in aid by the government in the recent parliamentary motion.

The Justice Secretary on Scotland Tonight said the proposal comes from Scotland’s second highest judge. That particular endorsement was hugely undermined by the appearance of Lord Gill at the justice committee last week. He said that all but one of the country’s judges ( presumably Lord Carloway ) were opposed to it being abolished. So Lord Gill Scotland’s top judge and all the other judges appear to disagree with Lord Carloway.

Lord Gill said that if corroboration is abolished its consequences could be “very, very adverse”. He told the committee: “I don’t think this will improve the quality of justice in Scotland in any way. “

Lord Gill stated “I think there is a very serious risk there will be fewer convictions, and I also think that if you make this change in isolation, without looking at the wider picture, there are consequences that at the moment are unknowable but could be very adverse to the system. “

He continued “By and large we do not have many miscarriages of justice in Scotland and when they are discovered we put them right. There are very few. My fear would be there will be many more if corroboration is abolished.”

You could not really have had a stronger condemnation from Lord Gill.

I oppose the abolition of corroboration however even if corroboration remained I think our system is weak overall when one considers the other safeguards which it lacks.

Why does our system lack a minimum requirement in line with England where 10/12 jurors are required to vote for a guilty verdict ?

Why does our system rely on dock identification sometimes years after allegations are said to have occurred ?

Why do judges and sheriffs at first instance not have the power to withdraw cases from the jury on the basis that the evidence is such that a reasonably jury would not be entitled to convict ? Presently this type of situation can only be rectified on appeal.

With the exception of requiring a minimum of ten jurors to vote for a verdict of guilty the Criminal Justice Bill does nothing to address these weaknesses.

If corroboration is to go all of these weaknesses ought to be addressed and there should be a requirement on judges and sheriffs to direct juries that particular care ought to be taken in cases where there is no corroboration.

The key issue that the proposal overlooks is how can you make such a fundamental change as removing corroboration without considering the effect upon the system as a whole?

It is plain the Government’s proposal is a knee jerk reaction to the problems the prosecution now face in a post Cadder world. It would be a sad irony and a sad reflection on Scots Law if the recognition of the right to a solicitor whilst in police custody led to the abolition of a rule which has assisted Scots Law in providing a strong safeguard for accused persons. The pressures on the Government and the prosecution are great when it comes to ensuring justice for victims of crime. That is understandable. However what is unforgiveable is the present attempt to undermine the safety of Scots Criminal Law. Justice is not just for victims. It is a holistic concept that should apply to everyone in the justice system.
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david



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Location: edinburgh

PostPosted: Fri Nov 29, 2013 1:19 am    Post subject: Reply with quote

A Little Insight on an Historic Day

http://www.firmmagazine.com/insight-historic-day/

Robert Anthony QC  adds his voice to the debate over corroboration in light of today’s release of the White Paper on the case for Scottish Independence.

Today is said to be an historic day as it is a day when the SNP launches the proposals for an independent Scotland.

“Phew” said the Minister for Justice. “That might take the heat off me for a while and there will be so much discussion about the blueprint for Scotland that the moans of these pesky lawyers about corroboration will be forgotten about”.

Sorry Mr MacAskill, but they will not.

Much has been written in the Firm magazine about the abolition of corroboration by practitioners and academics much more able than I am. In these articles most of the valid points against the abolition of corroboration have been made and I do not intend to re-iterate them. I would recommend that you read those articles.

However, on this historic day and in the ensuing weeks, it is important that lawyers who feel that the requirement of corroboration for proof of a crime should be kept, should ensure that their argument is not lost amongst the debates surrounding the detail of the blueprint.

Rather than ramble on about corroboration, let me just bullet point a few thoughts.

The public must rid themselves of the notion that corroboration is a tool which is there for fat cat lawyers to use to have their repeat offender “shell suit Boab” types acquitted;
Any single member of the public could find themselves wrongly accused of a crime by an accuser at any time;
Corroboration is a time-served safeguard there to protect all members of the public who will be ill-served by the abolition of corroboration;
On television, the Minister for Justice gives the appearance that he does not understand corroboration. He gives the appearance of thinking that two eye witnesses are required by the Crown to have sufficient evidence of proof of an offence. He explains that he wishes to abolish corroboration but no-one will be convicted on the evidence of one witness alone and The Lord Advocate will not raise proceedings if there is only one witness. Therefore, what is the point of abolishing corroboration?;
For the Minister for Justice, the abolition of corroboration is about letting “victims” (sic) (the word should be “complainer” as I have previously written about in this journal) of domestic violence and sexual offences have their day in court. But, I hear you ask, how will they have their day in court when the Lord Advocate will not prosecute cases where the evidence comes from only one eye witness? At present, if there is such corroborated evidence, a prosecution will be raised and
If we abolish corroboration and a Moorov case is prosecuted, directions about the doctrine of mutual corroboration will not be given by Judges. If the jury then accepts only one of the complainers and convicts of that single charge or charges in respect of that complainer, then a person will be convicted on the evidence of one witness alone.
Lawyers who believe that all members of the public will be protected by keeping the  requirement for corroborated evidence to prove the essential facts of a case, should work diligently to keep this issue alive. Sadly, the BBC and other television reports did not explain corroboration properly to the public. The BBC reporter stated that in a criminal prosecution each fact required evidence from another independent source. The public must be made aware that it is only the essential facts which require corroboration. The two essential facts are, firstly, that the offence was committed and, secondly, that the accused committed the offence. Two eye witnesses are not required. In fact, there can cases without any eye witnesses to an offence but a wholly circumstantial (but corroborated) case. There can be one eye witness supported by circumstantial evidence.

Today is said to be an historic day. It is a day when the people of Scotland will the the blueprint for an independent Scotland. However, First Minister, we already have a taste of what your government may be like. It looks like it would be a government where legislation dealing with important criminal procedure is created by a government which will completely ignore the views of the Law Society of Scotland, The Faculty of Advocates, The Sheriffs’ Association and all but one of the High Court Judges without giving any explanation why those views are ill-founded or wrong. Count up the years of experience of all those practitioners. The Rt. Hon. Lord Carloway, The Lord Justice Clerk, was asked by a Member of the Justice Committee if his view about abolishing corroboration was supported by other Judges. The only answer he could give was that two Sheriffs had written in supporting his view.

Mr MacAskill, you are correct in that legislators make laws and laws are not made by Judges. You are correct that legislators must take into account the interests of the “victims” and pressure groups. However, is it not a balancing exercise to work out what is in the interests of the public as a whole taking into account all competing interests?

We are perhaps fortunate before we consider how to vote in the forthcoming referendum that the handling of the abolition of corroboration has given us an insight into how a Scottish Government will govern Scotland.

The questions for Mr McAskill are:-

Can you please explain to the public, on what basis you have rejected the views of the legal profession and all Judges (with the exception of Lord Carloway and two Sheriffs) ?;
Can you please explain to the public how those legal minds are wrong or ill conceived?
Can you please explain to the Rt. Hon. Lord Hope of Craighead why you reject as wrong or ill-conceived the views of a man who has gained the rank and dignity of Queen’s Counsel, was Dean of the Faculty of Advocate, who was Lord President of the Court of Session and Lord Justice General of the High Court of Justiciary and a Judge of the Supreme Court? And
Can you please explain to the Rt. Hon. Lord Gill, the man whom you appointed as present Lord President and Lord Justice General why you reject his views as wrong or ill conceived?
On this historic day, we might have a blueprint for an independent Scotland but can we be satisfied we’ll have a blueprint for a just and fair Scotland.



Robert B. Anthony QC

Mackinnon Advocates, High Court of Justiciary, Glasgow.
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david



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PostPosted: Fri Nov 29, 2013 1:24 am    Post subject: Reply with quote

“There is a 62% conviction rate of rapists in our courts”

"The evidence of a single duplicitous, lying, skilful witness would be sufficient to put a person in prison for the rest of his life or let sexual predator walk free”

http://www.firmmagazine.com/62-conviction-rate-rapists-courts/

Part II of Aamer Anwar’s article on retaining the corroboration rule in Scots Law.

Despite what some campaigners claim there is actually a high degree of success in our courts with a 62% conviction rate which is down to police officers and prosecutors who work extremely hard to incarcerate rapists. Take away corroboration in all cases and it is inevitable that police and prosecutors will be tempted to take short cuts and do with the bare minimum.

It also doesn’t help when some campaigners perpetuate the myth that rape in our courts is treated in the same way as it was 20 years ago. It simply isn’t true, a whole series of checks and balances exist to protect the complainer. The Crown Office itself have revolutionised the treatment of such cases with the creation of a Sexual Crimes Unit.

Prior to trial, defence lawyers must submit detailed S275 applications to the court to justify the type of questions they wish to ask. In one case the fact that a complainer had made false allegations of rape was not even allowed as a relevant question to be asked in court. Sexual behaviour prior to or after the alleged rape is usually never considered relevant, nor is the size of a skirt or the fact that one was drunk.

The system is now heavily weighted in favour of the complainer rather than the accused but despite that Juries are reluctant to convict in rape cases. Do away corroboration and it makes it even more likely that Juries will not convict on the evidence of the woman alone.

To date no real research has been carried out into jury attitudes into why they are so hesitant to convict. That is a long term issue for society which must be resolved but will not be solved by a quick fix from Kenny.

Sandy Brindley, National Co-coordinator for Rape Crisis Scotland herself acknowledged that removing corroboration would not in itself be enough to address the situation and called for a change in public attitudes, reflected in individual jurors that “present a further obstacle to women seeking justice for rape”.

Ultimately we rely on an adversarial system of law, the presumption of innocence and no one has been able to suggest a better system. A ‘civilised’ system of justice is not dictated to by the demands for vengeance but by the need for evidence to convict the guilty. Just because someone makes an accusation does not make it true.

Unfortunately the belief that ‘men are getting away with rape’ means that innocent men and women will considered as acceptable ‘collateral damage in the war on rape’.

With the proposed abolition there would be nothing to prevent a ‘middle class eloquent’ rapist dialing 999 following a rape and claiming he had been assaulted. In such circumstances the Police could have no option but to charge the victim.

The inherent danger in these proposals is that trials become ‘beauty parades’ which will turn on whether the complainer or accused sounds and looks better. In England where there is no corroboration, convictions for rape are actually no better than in Scotland yet there is no analysis of why that is.

Whilst rape is an abhorrent crime prosecuted at High Court level, Kenny has deliberately downplayed the impact of abolition on the remaining 99% of trials, the mundane kind decided by a single judge without a jury. Perhaps Lord Carloway mentioned in his evidence to Parliament that 2 sheriffs were in support of his recommendation for abolition. There are total of 142 fulltime sheriffs in Scotland as well as a number of part-time ones.

Now Kenny may not consider Sheriff Court cases as serious crime but in summary cases Sheriffs can impose a maximum prison sentence of 12 months or a fine of up to £10,000. In solemn cases, sheriffs can deal with any crimes except murder, rape and treason. The maximum penalty a sheriff may impose in solemn proceedings is five years’ imprisonment or an unlimited fine.

Without corroboration a false accusation by a convincing liar, whether they are a stalker, neighbour, policeman or road-rager could ruin your life and lose you your job if not your liberty. If corroboration is abolished, innocent people will be wrongly convicted and guilty men will walk free.

At a time the Scottish Government is fighting for independence Kenny seems determined to turn the back the clock to a justice system that would not have been worthy of the 18th century Scotland. I have no problems with safeguards being introduced if they were genuinely being suggested but they are not.  Criminal trials could end up being conducted ‘without any rule of law regarding quality of evidence and protection against wrongful conviction.’

Kenny and Lord Carloway are quite right that other jurisdictions such as England do not have corroboration, but they do have a multitude of safeguards built into their systems to ensure that justice is done. English lawyers often laugh in disbelief when I tell them that dock identification is still allowed in our courts. That’s right in our courts the witness can still be asked ‘do you see the man who attacked you?’ picked your pockets? Drove into you? Or even shot you?’ So they look around the court and inevitably point their ‘suggestive finger’ at the man sat between two security guards in the dock.

The argument for so long by the appeal courts to admit such evidence has been that the presence of corroboration ensures the wrong person is not convicted. Do away with corroboration and there will no longer be any safeguards against such ‘suggestive finger pointing’ miscarriages of justice.

If there was anything archaic about our system then it is the fact that Scotland was out of step with every Western Jurisdiction, until the Cadder appeal rectified that by allowing an accused the right to a lawyer at interview. Kenny now wishes to horse trade off that fundamental human right by doing away with a rule of law which acts as a means of quality control by replacing it with absolutely nothing.

At least in England a court can decide whether to exclude evidence from the jury or at the very least to warn them against it yet this is not even considered as a possibility for Scotland.

England has had the Police and Criminal Evidence Act since 1984, a code of practice which established statutory regulation of police conduct on how evidence is obtained and recorded, for every aspect of a prosecution and investigation. PACE set out to strike the right balance between the powers of the police and the rights and freedoms of the public. The aim was to ensure quality and fairness in all its procedures from the point of investigation of a crime, yet we still have nothing of the sort.

There is no point in claiming England does not have corroboration if we do not compare like with like, in essence all that is being proposed is a half-baked half-hearted tinkering and destruction of our justice system.

At least in England at the end of a trial submissions could be made that the evidence was of such poor quality that no reasonable jury could convict and the case could be dismissed, again nothing of the sort is suggested in Scotland. According to the present recommendations the only option would be to go to the appeal court after conviction.

The problem for us as Defence Lawyers has been complete hostility to whatever we say or at best a total lack of interest by the general public. Many ordinary people believe they will never be accused of rape or have to go to court, but what they fail to understand is that they could appear in court on something as mundane as a false allegation of using a mobile phone.

In the future it could be enough for someone ‘to suggest a crime was committed and that you committed it’. That would not see the time of day in any other Western jurisdiction.  

The Crown Office in Scotland has over the years moved from a position of independence to alignment with a ‘victim’s rights agenda’ , I for one do not have a problem with that, having campaigned vociferously for this to be done, the most obvious case having been over the campaign for justice I lead over the murder of Surjit Singh Chhokar.

However there is a real danger that the Crown Office is obscuring the arguments and rationale for abolition by wrapping themselves up in the language of campaigners who are purely focussed on rape and domestic violence.

Moving the goalposts to ensure a conviction will not mean securing justice for the victim especially if the guilty are more likely to walk free. It may well be true that cases don’t go to court because of lack of corroboration but that is a price we pay to ensure that innocent people are not wrongly convicted.

If Kenny succeeds then in the future “the evidence of a single duplicitous, lying, skilful witness would be sufficient to put a person in prison for the rest of his life or let sexual predator walk free” That may be down to the fact on the day that the accused/victim does not pass the ‘beauty parade’, scrub up well , or maybe a ‘junkie’ or ‘traumatised woman’ abused her whole life and now working as a prostitute who is not so great with their words, what will Kenny do then?

It is imperative that our politicians do not take our system of justice back to the Dark Ages but make it worthy of a 21st Century Scotland.
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david



Joined: 01 Mar 2009
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Location: edinburgh

PostPosted: Thu Dec 05, 2013 2:18 am    Post subject: Reply with quote

the Piper is calling it seems


http://scottishlegal.com/index.asp?cat=NEWS&Type=Criminal#58021


POLICE DENY U-TURN BUT NOW BACK PLANS TO ABOLISH CORROBORATION


Police supers and rank-and-file officers have denied performing a u-turn after announcing their support for plans to abolish the requirement for corroboration in Scottish criminal cases.
The Association of Police Superintendents and the Scottish Police Federation told the Scottish Parliament’s Justice Committee that they were now backing the controversial proposal, despite their previously stated opposition to it.

The centuries-old doctrine – which means that at least two separate sources of evidence are required to prove the essential facts of a case for a successful prosecution – was previously described as a cornerstone of the criminal justice system by the SPF.

ASPS also said it was unconvinced by the case for scrapping corroboration, as proposed in the Scottish Government’s Criminal Justice (Scotland) Bill following a recommendation by Lord Carloway.

But both have joined Police Scotland in supporting abolition of the rule, which Independent MSP John Finnie, an ex-police officer, observed “may be perceived as a change in position of the staff associations”.

Mr Finnie, a former SPF official, said: “In written evidence, the SPF said 'corroboration is particularly important in maintaining public confidence in the criminal justice system'. And, specifically relating to police officers but also members of the public, 'would risk exposure to more spurious and malicious allegations that would be harder to refute'. What has changed?”

SPF vice-chairman David Ross said: “I don't consider that we have turned our position completely from one of resistance to one of support. I think, as our understanding has grown about what we are talking about here, our position has moderated to the extent that we would support the removal of the requirement of corroboration, in general terms, in favour of the requirement for a sufficiency of evidence, across the whole of the evidence, to prove guilt beyond reasonable doubt.”

ASPS president David O'Connor said in written evidence that he was “not wholly convinced of the case for the complete abolition of the requirement for corroboration”.

Mr Finnie said: “I would take that as unconvinced. What is the position of ASPS? Are you for it, or against it?"

Mr O'Connor said: “At this particular time we are more content with the proposals in moving forward, provided that as we move forward we are quite clear on what the marking rules will be. We have heard a great deal about not just looking at the quantity of evidence but the quality.”

He added: “At the outset of the debate we had concerns about the wholesale abolition of corroboration, and there has been some clarity brought to the debate. We had concerns that we would potentially end up with a case where you would have a move away from the criminal burden of proof to something more like the civil burden of proof. One of the key safeguards for us is that we're retaining the criminal burden of proof, that we have to prove a case beyond all reasonable doubt.”

However, committee convener, SNP MSP Christine Grahame, said “that was always the case”.

She added: “I'm surprised it's taken you a year to figure that out. I'm sorry to be rude but that was never on the agenda.”

Supporters of abolishing the requirement for corroboration argue that it could make it easier to bring cases of domestic abuse and sex crimes to court.

Police Scotland deputy chief constable Malcolm Graham claimed the abolition of corroboration would give almost 3,000 additional victims access to justice.

He said: “A larger number of victims would get access to justice, and that may mean more prosecutions.”

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