21 November 2011

The grand début...

It was a queer way to start a Sunday morning. Caron said I was "throwing off my wig".  As some of you may well have noticed, yesterday, I put in an appearance on the BBC's Politics Show Scotland, discussing the Carloway Review in general and corroboration in particular.  The whole experience was rather surreal.  Best I can recall, I last appeared on telly as a callow youth on an edition of that most razor-edged of Scottish horticultural shows, The Beechgrove Garden. A larch doesn't answer back, or like the eminently-well-qualified Maggie Scott QC, articulately defend an alternative view. Amusingly, most of the reaction on Twitter concerned wigs and their absence, and bereft of a peruke to speculate upon, thoughts on my generous quantities of hair and limited decrepitude. I enjoyed a particular chortle at Caron's observation, that apparently I look "more like a rock star than a lawyer". Courtesy of Peter Curran, those who missed it can see the (tragically wigless) clip below. 

Although it is in many respects unfortunate that the reaction to the Carloway Review has been so dominated by the issue of corroboration, the focus is understandable. It would be murderous tricky properly to cover the issues raised by Cadder and spoken to elsewhere in the four-hundred page document - and the media's nose for controversy is not to be faulted.  What is an arrest; who a suspect, and what is the difference? What powers should the Scottish Criminal Cases Review Commission have to refer cases to the High Court, and should the tribunal be obliged to accept the cases so-referred for consideration? If the beginning of wisdom is the definition of terms, then snipped debates on the telly are particularly ill-suited to advancing a full and rounded understanding of what is being proposed and defended.  They are, however, not a bad start. That said, although Carloway was certainly concerned with the modalities of access to a lawyer in his review, to paraphrase the late Lord Rodger, on the general principle, the UK Supreme Court has spoken in Cadder, and the case is closed.  As to Carloway's recommendations on corroboration, the controversy has only started to simmer, and has anything but concluded.

I should begin by saying that I sympathise with a great deal of what Maggie Scott QC said in the interview, and her concerns. If Scotland does away with corroboration, will any judicial assessment of sufficiency of evidence against the accused occur? These are substantial, fair questions. As I tried to emphasise, it is clearly  problematic to launch right into a conversation about the good achieved by corroboration, and the perils of its elimination, without giving folk some idea of what can and cannot corroborate evidence lead against the accused person.  Solicitor Advocate Chris Fyffe discusses this point with admirable clarity here.  Otherwise, we'll be left tossing rhetorical squibs at one another (both damp and snappy) to no purpose except mutual recrimination.

Secondly, to pick up one point I was able to make in passing, ardent defenders of corroboration should look to the European Court of Human Rights's case law on states' positive obligations, set out in M.C. v. Bulgaria and summarised by me in this post from earlier this year.  The court has held that "Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act" and held that Bulgaria's restrictive prosecution practices - only prosecuting cases where there was clear evidence of violent force being used - violated the Convention.  Arguably - Scotland's system of corroboration could well be impugned on a similar basis, its formalistic exclusions failing effectively to protect its citizens from all forms of sexual abuse. Contra that, you might contend that by imposing restrictive majority voting rules on their juries, England similarly limits those who can be convicted to those whose cases where evidence is available, capable of satisfying ten persons out of twelve of the guilty of the accused, beyond reasonable doubt.

I'll tell you now, it isn't clear how Strasbourg might decide this issue if a Scottish victim whose case was killed-off by the corroboration rule took it to the Court. However, I can certainly see an argument, founding on M.C. v. Bulgaria, that our corroboration rules makes the criminalisation of some offences theoretical and illusory, rather than practical and effective. (By the by, although an understandable point of emphasis, we should be clear that these exclusions are by no means limited to sexual assaults).  Alternatively, the European Court could well find a defence of corroboration to be convincing and within Scotland's margin of appreciation, its policy wiggle room.  However, we needn't approach the problem in this way. While we may ponder the prospect of a future human rights case with a spirit of grudging compliance, might it not be better to ask ourselves, are corroboration's stark exclusions really justifiable? Are they proportional to the laudable aim being pursued - to afford protections to accused persons, to avoid miscarriages of justice? 

That Scotland seems to be the only state in Europe which retains corroboration isn't necessarily a reason to junk it, but certainly makes the disaster-narratives emanating from some Scots lawyers seem rather hysterical. As I emphasised on the Politics Show, one shouldn't underestimate how radical this proposal would be, altering how police, defence and prosecution lawyers, and judges, are forced to evaluate criminal cases before them.  That's true, but nevertheless, hardly merits the conclusion that what Carloway calls a "late medieval jurisprudence" should quietly continue unjustly to obtain in Scotland.  Although Maggie Scott was the very model of reason yesterday, it might be more effective if other lawyers with strong concerns about the abolition of corroboration could put their case for its retention more in sorrow than in anger.  Getting vexed about the proposed abolition of doctrine which for most Scots may well seem obscure and formalistic, and assuming damaging air of unconcern about the fate of those whose cases never proceed to court, are likely to do nothing to convince politicians and public to ignore Carloway's recommendation that corroboration be eliminated, as the contested, tricky virtues and vices of the doctrine are scrutinised over the coming months and years.


  1. As Conan said, an Afghan hound, sort of,

    I am no lawyer but to me corroboration was only about a second form of corroborative statement, vis "I saw him lift the jewels and walk out of the store without paying" sort of stuff.

    I am stuck as how to proceed vis a vis rape and all the problems his engenders. I really am.

    It does seem to me to serve a safety net against a Polis stitch up which I am all too aware happens.

    Could the law be changed specifically for rape and other crimes of personal violation?

    Just asking

  2. So it isn't you that's to blame for BBC iPlayer's suppression of yesterday's Politics Show Scotland? I wonder what it was then.

  3. Lupus, it is indeed possible to disallow corroboration in respect of individual crimes. It has been done for littering, for example, in s87(7) of the Environmental Protection Act 1990. I imagine littering is a crime where the incidence of prosecution in comparison with the number of offences committed is even lower than that for rape; but I don't think that makes it much of a model!

  4. A small gold medallion, nuzzled in the hirsute nest would have set off the ensemble to a T.

    Or a perm.

  5. Thanks Ann Firrin.

    Could a model be developed for rape cases?


    I am not a lawyer and approach problems with a why not attitude.

    I, when I have had to use Lawyers, have found that most ask me what I want to do and then tell why I can't do this or that etc.

    I then learned to seek out the very few Lawyers who tell what I should do and why.

    I am reminded of my years travelling in the Former Communist East Europe. There were a hunder reasons why anything could not be done but bnot the one single one why it coule be so.

    I once tried to buy a stamp in an hotel. I bought the postcards in the hotel, wrote them and asked for stamps. Not from the same shop but from someone at a desk in the Hotel foyer. But, he wasn't there at the week-ends and although there was someone with keys to his stache no one could sell me the stamps.


  6. Cona

    It was a cracking shirt though. I had difficulty with deciphering the border on the front button side. It caused a bit of strange strobing on my low resolution screen.

  7. Wolfie, when lawyers look like young, decadent, dope smoking, guitar playing, SNP supporting, rock stars, is there any hope for Daily Mail readers?

    If they can lift their leg over their heads...

  8. Conan

    I always imagined him as a Pince Nez studying Old Leather Legal Tomes by candlight in his Oxford Garret.

    Instead he is down in London clubbing the night away and on the first train in the morning in time for his tutorials


  9. As per an email to LPW, I kept thinking of a young Rick Wakeman, although having googled some pictures of the real rock star my comparison was perhaps misplaced.

    On the other hand perhaps it was a combination of the long sandy hair, hirsute appearance, type of attire and face-shape that did it, but I dinnae ken. But certainly something of the progressive/psychedelic rock look, and I don't mean 'progressive' in the political sense!!

    Otherwise a tour de force in terms of his first appearance of this type, but on the other hand there was something about his appearance and mien that helped detract from the substantive issue being discussed, thus perhaps an excellent basis for a career as a politician or lawyer ;0)

  10. Is the picture at the top left of this blog now breaching the Trades Descriptions Act, I wonder:-).

    Will be back with serious comment when my head stops being full of cotton wool and I start to feel properly human again.

  11. Lupus Incomitatus: There are several lawyers and judges who believe that it would be prefereable for sexual offences to be tried under a lower standard of proof than some offences, although they remain in the minority. For my part, I fail to see why the test for a jury to determine absence of consent in a rape trial should differ from the test in a trial for assault or homicide, particularly if, for example, self-defence is in issue.

    It is perhaps important to recognise what the Crown require to prove to secure a rape conviction. Put simply, and ignoring some of the more arcane rules, they need to prove against the accused (1) an act of penetration, and (2) absence of consent.

    Element (2) may be corroborated by signs of recent distress (hearsay being admissible by virtue of the admissibility of de recenti statements), physical injuries, medical evidence as to the effect of drink or drugs on the complainer.

    The issue that vexes most commentators is how to corroborate head (1). In the modern world of CCTV in licensed premises and on street corners, and when mobile phones can be triangulated to within yards of a fixed point, it strikes me as feasible in several cases, once suspicion has crystallised upon an individual, for police to take steps to ascertain the whereabouts of the suspect, before questioning begins. It might be thought that a jury would be rather unimpressed with a "no comment on the advice of my lawyer" interview if CCTV places the suspect yards from the locus of the offence seconds before and after the incident.

    IMHO the abolition of corroboration for matters other than administrative offences would be a dangerous step for Scotland to take, in the absence of a coherent and developed series of safeguards, many of which would go to the heart of our system. A majority of eight for conviction would almost certainly go, giving rise to "hung juries". I wouldn't be sad to see the "not guilty" verdict, an alien import into our system, be consigned to history, with juries reverting to their old function of determining whether the charge is proven or not. We simply cannot abolish corroboration without carrying out even more radical reform along with it.