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.