30 September 2013

"Warning rape convictions will fall after law change?"

Just a wee post this morning, in supplement to the weekend's lengthier disquisition on the arguments for and against abolishing corroboration currently gripping Holyrood. Today's Herald carries an article, headlined "Warning rape convictions will fall after law change." Cobbling together submissions from the Faculty of Advocates and the Law Society to Holyrood's consultation on the proposed reform, the piece makes two main claims, the one plausible, the other - to my mind - decidedly less so. 

Firstly, they argue that abolishing corroboration is unlikely to increase the conviction rates for sexual offences. The Faculty argue that it "is a fallacy to believe that by ­prosecuting cases even where there is no corroboration, the proportion of successful cases will increase. The reverse is more likely to be true." This has a robust logic to it. If cases are currently being dropped for want of corroboration, they inevitably rely (at least partially) on the evidence of the complainer alone.  The complainer may be a credible witness, but the accused may also cut a tolerably credible figure. 

These are never going to be strong cases whether or not the corroboration rule applies, coming down one person's word on oath against another. Yet these are precisely the additional cases which this reform expects and anticipates will be tried in the High Court in future. Increasing the number of weak and difficult cases being prosecuted seems likely to increase the percentage of cases resulting in acquittal, not to increase the overall Scottish rate of conviction.  

That said, it isn't obvious that it is the rate of conviction, rather than the number of convictions, that we should mainly be concerned about.  It's simple mathematics. If convictions are secured in 40 of a 100 cases, your conviction rate will be higher than a situation where the accused is sent down in 47 of 120 prosecutions.  But why should the rate of conviction, rather than the number of prosecutions by privileged as the preferred measure? 

There are certainly arguments one can make. A greater number of unsuccessful prosecutions multiplies the number of disappointed complainers who have given evidence in court, which is often a harrowing experience, potentially compounded by a sense of being disbelieved.  On the other hand, it isn't obvious that a terse explanation from the Procurator Fiscal that your case isn't being taken up is any less disappointing for victims, although it spares witnesses the experience of going to court and being, often very aggressively, cross-examined. 

(By the by, it also seems incredible to me that abolishing corroboration will lead defence lawyers to focus far more brutally on discrediting the evidence of the complainer, as some have argued. The idea that this doesn't already happen deserves a bleak laugh.) 

But the Faculty and Law Society want to have their cake and eat it too. Not only do they argue that the proportion of guilty verdicts in sex offences might fall. They also hazard the idea that abolishing corroboration might result in the acquittal of people who are convicted under the current dispensation.  But how? The lawyers argue that:  

"If there is no legal requirement for corroboration, there is at least a risk that the police will not investigate with a view to finding corroborative evidence if it exists. This could mean that cases which currently result in conviction will, following the change, result in acquittal."

This risk seems fantastically remote to me, particularly in the field of alleged sexual offences. It assumes that the thoroughness of police investigations relies exclusively on the current evidential rules. There's little reason to believe this for a moment. Certainly, I can see that concerns about achieving a formal sufficiency of evidence forms part of how the police handle cases, currently representing an important quantitative hurdle for an investigation to overcome.

I wonder, though, if the Faculty's logic doesn't curl back on itself.  They argue that the police currently work to the evidential rules, seeking corroborating evidence. As we know, corroboration only requires two independent sources of evidence to bring an accused to court. Following the Faculty's logic, is one "risk" of the current rule that the polis cease investigations having found the two bits of evidence required to meet corroboration instead of fully canvassing the field? Doesn't the corroboration rule also carries the "risk" of encouraging the police artificially limit their investigations too? Perhaps we ought to extend corroboration to require three pieces of independent evidence, or four, to encourage the police to investigate things properly?

This "risk" seems about as proximate and plausible to me as the idea that, absent corroboration, police officers won't bother to conduct proper enquiries. Particularly in the politically charged field of sexual offences, where significant moves have been taken in recent years to rethink how the authorities respond to reported incidents. 

Nothing here implies an especial faith in the competence of the police. To err and to cock up, to miss and to idle off is human. At least now and again. The overlooked line of investigation, deftly exposed by the defence, is a staple of courtroom drama.  As long-standing readers will know, arguing that we should trust prosecutors and trust the police is liable to make me baulk. It's nothing personal.  I just think we're all better off treating these powerful public authorities cautiously, with a worldly suspicion.  And if the police put together a shoogly case, you can bet your last shilling that defence advocates will take the opportunity to point it out and there will be consequences. 
As I observed over the weekend, I'm still swithering on the issue of whether corroboration should be abolished or retained, but for the Faculty to try to shoehorn in such a remote "risk" to buttress their embattled defence of corroboration seems less than convincing. 


  1. Perhaps there is an important (but unspoken) the sub-text to the Faculty's points. Anyone experienced in the courts will readily tell you that the Police lie and fabricate evidence. Not just against against those that they believe to be guilty, but more worryingly against those whom they believe easy to convict . Corroboration makes this slightly more difficult for them. I suspect that seasoned Members of Faculty know well that corroboration has a vital role to play in keeping the Cops honest(ish).

    1. Alasdair,

      I'd guess that there's a degree of truth in that.