"'Twas the night before Carloway..."

"Twas the night before Carloway, all through the land

Jurisprudes they were asking, "what would he demand?

Corroboration, right to silence his care,

Just what will Lord Carloway have to say there?"

And prisoners nestled all snug in their cells,

All hoping that Cadder could lessen their spells,

And polisfolk fretting, "just who can we ask?"

All settled their brains on old Carloway's task..."

At 10.00am tomorrow, High Court judge, Lord Carloway, is scheduled to publish his Review, set up by Kenny MacAskill after the Cadder v. H.M. Advocate judgment of the UK Supreme Court and Holyrood's subsequent, breakneck emergency legislation.  The pair agreed the following terms of reference, which gives something of a flavour of the issues which Carloway's audit of Scottish criminal procedure might touch on:

Terms of Reference

(a) To review the law and practice of questioning suspects in a criminal investigation in Scotland in light of recent decisions by the UK Supreme Court and the European Court of Human Rights, and with reference to law and practice in other jurisdictions;

(b) To consider the implications of the recent decisions, in particular the legal advice prior to and during police questioning, and other developments in the operation of detention of suspects since it was introduced in Scotland in 1980 on the effective investigation and prosecution of crime.

(c) To consider the criminal law of evidence, insofar as there are implications arising from (b) above, in particular the requirement for corroboration and the suspect's right to silence;

(d) To consider the extent to which issues raised during the passage of the Criminal Procedures (Legal Assistance, Detention and Appeals)(Scotland Act) 2010 may need further consideration, and the extent to which the provisions of the Act may need amendment or replacement; and

(e) To make recommendations for further changes to the law and to identify where further guidance is needed, recognising the rights of the suspect, the rights of victims and witnesses and the wider interests of justice while maintaining an efficient and effective system for the investigation and prosecution of crime.

All of this may seem quite technical, but as is so often the case with law, will have a considerable impact in quotidian places, on ordinary people. To compress and gloss the issues somewhat, the key concern in Cadder was whether detained suspects, subject to police interrogation, should have a right to access a lawyer before and during their questioning by the police under the European Convention on Human Rights.  Contra the High Court of Justiciary's judgment on the issue in H.M. Advocate v. McLean, the Supreme Court answered resoundingly positively.  The Crown could not rely in evidence on admissions made by suspected persons in the absence of access to a solicitor and afford the accused person a fair trial.  Before Cadder, this lawyerless detention was limited to six hours. Somewhat ironically, the consequence of a judgment that was favourable to the rights of suspects was the subsequent emergency legislation, which actually doubled the period for which suspects can be detained from six to twelve hours, with the police empowered to extend that period of dentition for another twelve hours, without judicial oversight.

Carloway's Review conducted a series of "roadshow" events as part of its consultation, focussing on four areas identified as key: (1) police custody (2) the form of legal advice available to those in custody (3) Scotland's idiosyncratic rule on the corroboration of evidence and (4) drawing adverse inferences from the silence of the accused.  Many respondents in the consultation expressed qualms about addressing points (3) and (4) ragtag in a report likely to focus on points (1) and (2), suggesting that their further, discrete and specific examination by the Scottish Law Commission may be in order.  Many of the themes arise in Carloway's Review as a result of the impression that Cadder substantially strengthens the rights of suspected and subsequently prosecuted persons, and as such, may call for a rejigging elsewhere, to "balance" the interests of the public in the prosecution of crime, and the interests of accused persons to be tried fairly.

Better to understand tomorrow's findings, it is worth a little exposition of the changes wrought by Cadder, and why those changes have prompted Kenny MacAskill to ask Carloway to apply his jurisprudential fibres to the right to silence and to corroboration, and their interlacing.  Consider this concrete example. (I know some folk feel uneasy when I discuss this sort of issue in an abstract way. I trust they'll forgive me another transgression. My aims here are limited). An allegation of rape has been made, founding on the absence of consent, the victim sustaining no other physical injuries. Say the victim delays reporting the crime to the police, such that any evidence of intercourse (consensual or not) has evaporated.  In the past, pre-Cadder days, the police could pick up the suspected person and question them sans solicitor.  Thus questioned, it was not, I understand, untypical for the suspect to admit sex between himself and the complainer, but to deny that it was non-consensual.  Here corroboration kicks in. In Scots criminal law, corroboration requires that essential elements of the charge be corroborated by two independent sources of evidence. This is notoriously difficult to achieve in the case of sexual offences, of the sort I'm envisaging here.

I don't think it is to traduce the understanding of your average Scottish punter to say that most will not have a detailed command of the implications of this doctrine at the best of times, never mind after being picked up by the polis, suspected of a very serious offence indeed.  Ignorant of the law, many will admit sex but deny rape: admissible evidence in court against him, if the police questioning is fair. From the calculating perspective of an accused person, to have done so can be a grave mistake. It may be that save for the complainer's testimony, there is no other evidence at all that sex took place, and without corroboration, any charge must fail. If the accused had kept their peace, neither confirming or denying that any of the alleged events had taken place, he could not have been convicted of the offence. Having admitted that the event if not the offence had taken place, however, he provides the corroboration which might see him convicted.  As Lord Rodger observed in Cadder, these provisions were conceived deliberately to deprive...

"...the suspect of any right to take legal advice before being questioned by the police, in the hope that, without it, he will be more likely to incriminate himself during questioning." [Para 91]

Such are the potential eccentricities of the corroboration rule. But consider the post-Cadder situation. Suspected persons will be able to consult solicitors and have them present during police questioning. And if your lawyer is at your elbow, and has briefed you to keep your gob shut, it is much less likely that suspects will spontaneously disclose potentially corroborating or self-incriminating evidence of the type I've been discussing. The upshot, the argument runs, is that it will prove much more difficult for police to coax admissions from suspected persons that will put them in the dock. Whereas the ignorant suspect in the hypothetical rape case I've been discussing may have incriminated himself before Cadder and been convicted because of his unwitting corroborating evidence, in future he is likely to be better informed about the law, and as such, keep mum and have no case to answer, absent corroborating proof of his crime.

Should police and prosecutors profit from the ignorance of suspected persons? Alternatively, is it appropriate that Scotland affords its citizens the same protections as those in England enjoy - and more broadly, across the Council of Europe? Whatever your view, what's done is done. After the Supreme Court's Cadder ruling, there is absolutely no possibility of returning to the anterior position, where ignorant suspects could accidentally incriminate themselves in the way a more studied villain would not.  It is in this sort of context that Carloway's reference to "adverse inferences" to silence during police questioning is to be understood. We'll see what his Lordship concludes, about this and other issues, at 10.00am tomorrow.