5 March 2014

In (partial) defence of Kenny MacAskill...

Whichever way you slice it, corroboration reform has been ineptly handled.  It should not - it cannot - have surprised anybody in government that Lord Carloway's proposal would be stoutly resisted by much and probably most of the Scottish legal profession. 

But when it comes to choosing your political opponents, you could do a lot worse than Scots lawyers. For folk whose careers rely, at least to some extent, on persuasion, advocates and solicitors' attempts to resist these proposals have been singularly unfocussed and inept. The tone has been hysterical, the rhetoric cataclysmic. Legal commentary, which scorns the Cabinet Secretary's passionate rhetoric in favour of abolition, has hardly been bereft of its own vehemence. That you are the only jurisdiction in the world using corroboration is not necessarily a reason to be rid of it, but it does leave the argument that a system of criminal justice without corroboration is an abomination looking just a touch overheated. 

And too often, corroboration's defenders have allowed an impression of indifference to the real injustices to some categories of complainers caused by the corroboration rule to be cultivated.  In cooler moments, many and most Scots lawyers understand that the strictures of corroboration throw up difficult cases.  But to be seen coldly to wave aside the claims of victim of domestic abuse or sexual assault just makes you look like the Demon King, and confirm most people's worst suspicions about the grave-dust circulating through lawyers' veins. The reality may be more sympathetic and nuanced, but some public recognition of the problems of corroboration wouldn't go amiss.

On the other hand, the case for abolition has been troublingly garbled and inconsistent. Abolish corroboration to ensure access to justice for thousands of vulnerable people. Abolish corroboration, we're not really abolishing it anyway. Abolish corroboration to allow hundreds of extra complainers their day in court. Abolish corroboration, and these additional court days and lawyers and costs won't cost us an extra dime. The Cabinet Secretary's performance on BBC Sunday Politics Scotland a few weeks by was a marked improvement, but it was too little, too late.

Even before Kenny MacAskill's ridiculously intemperate and ill-judged summing up at stage 1 in Holyrood last month, key proponents of the legislation have done little to instil confidence that they understand what they're doing, or why. What's the point in abolishing the corroboration rule in law if prosecutors will continue to demand corroboration in fact, before putting cases before the courts? Bugger all, as far as I can discern. For Kenny to make this gibberish case for abolition in a flagship television interview explaining his proposal to the public is bad enough. Worse, the argument continues to enjoy a second life, aired by a number of no doubt well-intentioned but confused parliamentarians advocating law reform. (In the course of the recent debate, Linda Fabiani was just the latest MSP to make this singularly daft point).  None of this inspires a great deal of confidence.

There are, I'd argue, good reasons to favour abolishing corroboration and introducing additional and alternative safeguards. On the basis of Holyrood's narrow vote in favour of the general principles of the Criminal Justice (Scotland) Bill, it looks like this will happen, and a group under Lord Bonomy will consider what additional protections should be introduced. Corroboration will not be abolished until these are in place. Under Kenny's scheme, parliament will ditch corroboration, and only then consider what to replace it with. But if corroboration is a fundamental safeguard in the system, how can MSPs effectively consider the desirability of getting rid of it, without reference to concrete range of alternatives? Over at the Firm, Ideal Cynic describes this as a "bizarre way to legislate". Patrick Harvie made the point in the chamber, neatly:

"Even if I was to accept that the law should be changed if it is not fit for purpose, should we not know what we are changing it to before we change it?"

Others would make a slightly different, wider point. Why not let the review group consider all the options, rather than pre-empting their deliberations and excluding retaining corroboration from consideration? What if Lord Bonomy and his comrades believe keeping the rule is the best way forward for Scotland? It is beyond dispute that Kenny's plan to abolish corroboration then review alternatives is an odd one, but given the context, I think it is at least defensible. 

As has become eminently clear, the status of corroboration is controversial. It is common practice to give bodies conducting reviews clear terms of reference, settling some controversies beforehand, and directing their attention to particular issues and questions. We don't usually do so through primary legislation, but by settling the question of whether, in principle, we want to build our criminal justice on corroboration or not, we make Bonomy's task significantly more straightforward. 

If we don't exclude retaining corroboration from Bonomy's terms of reference, his task becomes that much more substantial, forced to consider a dizzying range of additional counterfactuals. Should corroboration be retained as is, partially retained, eliminated in some offences and not others, or abolished altogether? Might we adopt a more subjective system, allowing the judge to waive the corroboration requirement where, for example, the facts alleged by the Crown are not, of their nature, capable of being corroborated? Depending on which of these options we plump for, what sorts of new safeguards might it be appropriate to introduce? It seems likely that different safeguards would be thought appropriate, depending on which conclusion you reach with respect to corroboration.

By endorsing the principle of eliminating the corroboration rule from our criminal law, Bonomy and his colleagues are afforded a much clearer basis against which to work.  What would be the point, for example, of Kenny making a reference to the Bonomy group on the basis that he intended to abolish corroboration, only to find that he didn't have a parliamentary majority for the basic principle? It would be a merry waste of time and energy. Kenny's solution avoids this possibility. This an odd way to legislate, but not, I think, a wholly irrational or unwelcome one in view of the controversy.

That said, the Cabinet Secretary for Justice has a power of work to do to redeem himself from his persistent blunders and missteps in his management of this Bill.  Why was he so badly prepared to make the case for abolition? Why weren't the arguments and lines nailed? Why did his judgement desert him in the chamber, and faced with a divided and skeptical party, what on earth possessed him to reprise his "I'm tired of marching" speech? 

Kenny inappropriately introduced the spectre of the independence referendum into this debate. So let's talk about the referendum. At a critical time for the Scottish Government to project an appearance of competence and reliability, ready, steady and able to take up the reigns of sovereign authority, Kenny has embroiled himself and the party in a bitter dispute, manufacturing a small crisis and publicly alienating his colleagues. Too often, he has seemed half-prepared, and has comported himself in a manner that has done little to reassure even those who agree with him that the law should be reformed. All of this was avoidable. Whatever you think of the rights or wrongs of abolishing corroboration, this has been a regrettably inelegant, unedifying and damaging outing for the Cabinet Secretary for Justice, whose political instincts seem to have gone thoroughly off the boil.

5 comments :

  1. What I don't understand is, why do it?

    The Nats point to unique Scots institutions including Law, of which corroboration is a key difference from the rest of the UK, but they want to abolish it unbidden and with no pressure from anywhere or any series of or particular incidents.

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    1. Braveheart,

      There is a curious point here. To echo the way one observer on twitter put it, isn't it curious that the SNP government has (in some areas) done more to harmonise Scots law with English practices than any of its Lib-Lab predecessors? As you say, many folk would claim that Scotland's distinctive legal system is one of the hallmarks and pillars of our continuing independence under the Union. Odd, in that case, to see a Nationalist government hewing away at that. While I object to the idea of "bringing Scotland into line with England" for the sake of it, here I think it redounds to MacAskill's credit. Corroboration does pose a real problem in some areas of our criminal law, and to some complainers. The rule was abolished in civil matters during the 1990s (off the top of my head, that could be wrong). That's the reason why it could do with revisiting - not some dubious legal chauvinism.

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  2. Braveheart's comment is as ever cobblers. MacAskill's approach may have been ill judged but it at least proves, contrary to Braveheart's usual fatuous claims, that the SNP is not blindly biased against England and effectively concedes that they do some things better than us???

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    1. How's that for a spot of cognitive dissonance?

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  3. A bit late, but the most sensible article I've read on this subject.

    Corroboration is merely the supply and investigation of evidence in support or to counter a position.

    In the past and in some issues today it had/has relevance but in most cases the anecdotal has been superseded by science and forensics.

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