As anticipated yesterday on Carloway Eve, this morning, Court of Session judge Lord Carloway has delivered his full report into Scots criminal law and practice, which can be accessed in a range of electronic forms here. The substantial body of his report and recommendations runs to some four hundred pages, so I'll be circumspect and afford myself a little time to digest his findings before commenting fully. For those less keen on wading through a deluge of judicial prose, the ever-popular executive summary furnishes the headnotes on police custody, right of access to a solicitor given the Cadder decision, rules of evidence, drawing inferences from the silence of the accused when questioned by police, and appeals. The element particularly liable to get the press hopping is Carloway's stark - and rather brutally worded - finding on corroboration, discussed yesterday. Despite some indications in the press earlier on in the process that this old Scots rule would be spared searching examination, Carloway has bluntly concluded:
26. The Review is, however, in no doubt that the requirement of corroboration should be entirely abolished for all categories of crime. It is an archaic rule that has no place in a modern legal system where judges and juries should be free to consider all relevant evidence and answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled. Abolition would bring Scots law into line with modern, and almost universal, thinking on how to approach evidence in criminal, and indeed all other, cases. There is little evidence to suggest that the requirement is in fact an effective protection against miscarriages of justice. Research commissioned by the Review suggests instead that the corroboration requirement may well hinder justice by preventing credible and reliable cases from being prosecuted. Furthermore, the requirement has developed into a series of rules which, realistically, are not capable of being understood by many outside the world of criminal legal practice and are inconsistently applied by many within it.
Such a suggestion is likely to be deeply controversial, not least because Carloway's review only passingly touches on other ways doubt is enshrined in the criminal law elsewhere. In England, for example, where no corroboration rule obtains, jury verdicts are reached on a qualified majority basis of ten out of twelve. Where the jury cannot reach a decision - is "hung" - there may be a retrial. By contrast, in Scotland, decision is by bare majority of the fifteen jurors, who cannot fail to reach a verdict like their English counterparts. If a Scottish jury cannot agree on the guilt of the accused, he is acquitted and is not susceptible to retrial. That said, this sort of jury angst can be overstated. While jury trial is used for the most serious of crimes, attracting the most punishing sentences, the vast majority of criminal cases in Scotland are decided by sheriffs sitting alone, or in Justice of the Peace courts. Off the top of my head, jury trials constitute around 5% or so of criminal proceedings undertaken, despite their dominance in the public consciousness and in dramatic representation.
I'll have more to say on the detail of Carloway's findings and recommendations anon. Until then, consult them for yourselves here.