Bringing wrongdoers to book, while respecting the rights of suspects and avoiding miscarriages of justice: it is a difficult line to tread.
For the past year Lord Carloway, a High Court Judge, has been reviewing the Scottish criminal justice system with the brief of deciding whether it is fit for purpose for the 21st century. His wide-ranging report, published yesterday, recommends how the system can be “re-cast” for modern society.
The review was necessitated by the UK Supreme Court ruling in the case of Peter Cadder that ended the right of the police in Scotland to question a suspect for up to six hours without a solicitor being present.
This practice was deemed incompatible with the European Convention on Human Rights (ECHR) and resulted in the passage of emergency legislation through the Scottish Parliament last year.
The Cadder judgment was widely perceived as tilting the system in favour of the suspect and raised questions about whether corroboration, which has long been a conerstone of Scottish criminal justice, was any longer appropriate.
If under the post Cadder system suspects are routinely told by their legal advisers not to speak, they may get off Scot free, even if the single source of evidence against them points decisively to their guilt.
Corroboration -- the requirement for two separate sources of evidence -- has been long deemed a valuable safeguard against miscarriages of justice, because a single witness may be mistaken or dishonest. In the era of capital punishment, it could be a matter of life and death.
Today much has changed. A wrong verdict is no longer fatal for the accused. There is a respected appeals system, which Lord Carloway proposes to beef up further.
And technological advances, such as the use of close-circuit television evidence, advanced finger-printing techniques and DNA evidence, may mean that corroboration is often not strictly necessary to confirm guilt.
In practice, the report argues, it may merely generate duplication and unnecessary expense and can prevent cases going ahead despite a reasonable prospect of conviction.
If this 400-page report has one leitmotif, it is that Scottish criminal justice should be based on the quality rather than the quantity of the evidence.
Corroboration presents a particular problem in the case of rape and sexual violence cases, which so often come down to one person’s word against another. This has contributed to a very high number of cases that never come to court and a miserably low conviction rate.
There are several other barriers to getting these cases to court but removing the requirement for corroboration is certainly one of them. Data from the Crown Office and Procurator Fiscal Service found 67% of sexual crimes that failed for lack of corroboration would have had a reasonable prospect of conviction. The same applied to 62% of crimes of violence.
Though dispensing with corroboration will be presented by some as the anglicisation of Scottish justice, it is important not to view this issue through a narrow political prism. The Cadder ruling was controversial in part because it involved the UK Supreme Court overturning a ruling by seven Scottish Appeal Court judges. However, the ECHR is now incorporated into Scottish law and the criminal justice system must cope with the consequences.
Is one of those consequences the need to dispense with what has been regarded as one of the fundamental tenets of Scots criminal law? Defence lawyers will fight to retain corroboration as a safeguard against miscarriages of justice. Some prosecutors and victims’ groups will argue that it is an impediment to justice in the 21st century. The jury is still out.
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