A familiar predicament for public authorities in Britain these days, whatever their remit and jurisdiction. Shrinking budgets, and still the pressing clamour for this or that neglected topic or concern to receive the attention and resources they merit. The Crown Office and Procurator Fiscal Service is no exception. The draft Scottish budget for prosecutors totalled £108,100,000 in 2012/13, and according to current draft spending plans, will not increase in 2013/14.
In the meantime, our legislators cannot resist ratcheting up the costs, continuously supplementing the roll of new offences and charges. In 2011, for example, Holyrood enacted the Offensive Behaviour at Football Etc (Scotland) Act, with additional costs envisaged across the justice spectrum, from the police, to court costs, legal aid for accused persons, to the Scottish Prison Service in cases resulting in additional custodial sentences being handed down. The Scottish Government estimated that the total cost of the new law to the prosecutors would range between £70,800 to £151,700 per annum, envisaging between 77 and 165 additional cases a year under the new offences. Per case, government statisticians worked out that prosecution costs alone would total £6,993 for every case tried by a jury with a rather cheaper price tag of £312 for summary cases, tried by judge alone.
Corroboration looks likely to be the primary object of legal controversy in Scotland in 2013. The Scottish Government seems set on eliminating the historic rule; the country's legal establishments are generally opposed to this measure. As part of his 2011 Review, Lord Carloway commissioned an analysis of the impact of corroboration from the Crown Office. How many potentially successful failed to end up in court, because evidence in the case originated from a single source, he wondered?
Prosecutors examined files where the accused had been put on petition, but which were subsequently identified as "no further proceeding due to insufficient evidence". Unhelpfully, Carloway's tables are all higgledy-piggledy, but with a little sympathetic interpretation, you find that this process identified 458 cases, of which, it was estimated that 374 cases exhibited a sufficiency of evidence for prosecution, but for the requirement that evidence be corroborated, with 268 (58.5%) offering a "reasonable prospect for conviction". The Review also analysed a second dataset, all cases reported to the National Sexual Crimes Unit in six month period of July to December 2010, where the accused was not placed on petition due to lack of evidence. The researchers found 141 such cases, of which, they estimated that 99% (140) had a sufficiency of evidence for prosecution, but for corroboration, estimating that there was a reasonable chance of conviction in 97 cases (68%).
If we get out a fag packet, and crudely generalise from these figures on the assumption that the last six months of 2010 is representative of the rest of the year, and the number of offences and rates of sufficiency and likelihood of conviction were stable, these figures might suggest that if Scotland abandoned corroboration, the National Sexual Crimes Unit might prosecute an additional 194 people a year. There are a number of limitations with this approach, as Carloway himself recognised. It is impossible, for example, to say how many cases the police did not refer to prosecutors because of a lack of corroborated evidence. Conclusions drawn on the basis of the relatively small number of cases closed by prosecutors on the basis of the rule likely underestimate - and potentially underestimate to a large extent - the number of new cases which the abolition of corroboration might put on the desks of procurators fiscal. They gesture, however, towards the scale of the potential additional case-load.
In the meantime, our legislators cannot resist ratcheting up the costs, continuously supplementing the roll of new offences and charges. In 2011, for example, Holyrood enacted the Offensive Behaviour at Football Etc (Scotland) Act, with additional costs envisaged across the justice spectrum, from the police, to court costs, legal aid for accused persons, to the Scottish Prison Service in cases resulting in additional custodial sentences being handed down. The Scottish Government estimated that the total cost of the new law to the prosecutors would range between £70,800 to £151,700 per annum, envisaging between 77 and 165 additional cases a year under the new offences. Per case, government statisticians worked out that prosecution costs alone would total £6,993 for every case tried by a jury with a rather cheaper price tag of £312 for summary cases, tried by judge alone.
Corroboration looks likely to be the primary object of legal controversy in Scotland in 2013. The Scottish Government seems set on eliminating the historic rule; the country's legal establishments are generally opposed to this measure. As part of his 2011 Review, Lord Carloway commissioned an analysis of the impact of corroboration from the Crown Office. How many potentially successful failed to end up in court, because evidence in the case originated from a single source, he wondered?
Prosecutors examined files where the accused had been put on petition, but which were subsequently identified as "no further proceeding due to insufficient evidence". Unhelpfully, Carloway's tables are all higgledy-piggledy, but with a little sympathetic interpretation, you find that this process identified 458 cases, of which, it was estimated that 374 cases exhibited a sufficiency of evidence for prosecution, but for the requirement that evidence be corroborated, with 268 (58.5%) offering a "reasonable prospect for conviction". The Review also analysed a second dataset, all cases reported to the National Sexual Crimes Unit in six month period of July to December 2010, where the accused was not placed on petition due to lack of evidence. The researchers found 141 such cases, of which, they estimated that 99% (140) had a sufficiency of evidence for prosecution, but for corroboration, estimating that there was a reasonable chance of conviction in 97 cases (68%).
If we get out a fag packet, and crudely generalise from these figures on the assumption that the last six months of 2010 is representative of the rest of the year, and the number of offences and rates of sufficiency and likelihood of conviction were stable, these figures might suggest that if Scotland abandoned corroboration, the National Sexual Crimes Unit might prosecute an additional 194 people a year. There are a number of limitations with this approach, as Carloway himself recognised. It is impossible, for example, to say how many cases the police did not refer to prosecutors because of a lack of corroborated evidence. Conclusions drawn on the basis of the relatively small number of cases closed by prosecutors on the basis of the rule likely underestimate - and potentially underestimate to a large extent - the number of new cases which the abolition of corroboration might put on the desks of procurators fiscal. They gesture, however, towards the scale of the potential additional case-load.
Unlike many folk with an interest in Scots Law, I am not wedded blood and marrow to the concept of corroboration, but I do worry that the rhetoric used to justify the reform will prove misleading in practical terms. Exponents of the reform typically conjure up affective vignettes of those deprived of justice by the formalism of the rule. "Finally, people will get their day in court." "No longer will victims be denied justice in the name of a rule come out of medieval jurisprudence". On this account, you might get the impression that abolishing the rule will open the sluice-gates, daylight will shine in, and a slew of new cases will end up before our courts, with justice being dispensed on a far greater compass than at present.
This seems unrealistic. Some people are always going to be deprived of their "day in court". Prosecution, court and prison capacity is limited. We get as much criminal justice as we are prepared to pay for. That is the case now, and it would continue to be the case if corroboration was abolished. According to official figures, in 2011/12 the police recorded around 858,000 crimes and offences, the Procurator Fiscal received just 276,000 criminal reports, and undertook criminal proceedings in court against 125,000 people. The reasons are complex and manifold, but the scale of the erosion in cases from complaint to prosecution is stark.
If recent reforms are anything to go
by, and the state of the public finances does not alter, the cost of
any abolition of corroboration is likely to be resourced from existing
budgets to a very significant extent. While abolishing the rule will change the modality of prosecutors' decision-making, and bring
non-corroborated cases within the compass of those which procurators
fiscal may seriously consider bringing before the criminal courts, bare,
unresourced abolition of the rule seems unlikely to significantly increase the actual number of cases which reach our criminal
courts.
It is not as if the Justice Secretary is in a position to be
financially
open-handed, offering increased funding for legal aid,
prosecution costs, or to cover those borne by the Scottish court and prison
services, to pay for the additional trials and prison cells envisaged. The case for the abolition of corroboration, as we've heard it, often seems to assume a level of redundancy across the
criminal justice system which simply is not there.
Whatever its limits, whatever injustices it visits in particular cases, the corroboration rule is at least reasonably objective. In the absence of two sources of evidence, in general terms, a case cannot proceed. It is also a public standard which prosecutors have to observe. While it may not be a concept which your average punter may be au fait with in detail, it remains an externally comprehensible standard, which regulates the conduct of prosecutors' discretion.
If, as seems likely, we eliminate corroboration but fail to extend resources made available for substantially increased numbers of prosecutions, it seems likely that only a small percentage of cases will continue to be tried, but they will now be selected solely on the basis on more qualitative, discretion-laden concepts, more or less impenetrable to those operating outside the system. Carloway's study offers a flavour of the sort of calculations which prosecutors will be obliged to make in selecting which cases to prosecute. Is the available evidence credible and reliable? Is there is a reasonable chance of conviction?
If we abolish corroboration, these sorts of concepts will become gatekeepers, governing access to criminal justice. The concepts may be more contemporary and less formalistic, but they will perform a similar task to that historically served by the corroboration rule itself, limiting the number of folk who get their day in court. This may be a good thing, and the right way for these sort of decisions to be made. Rather than by meeting the formalistic requirement that the evidence against an accused person emanates from more than one quarter, prosecutors will have to use more of their discretion to decide which 125,000 cases or so make it before criminal courts. And like corroboration, the practical operation of these ideas of credibility, reliability and so on will inevitably bring with it its own body of disappointed complainers and victims.
There is clearly a principled case for the abolition of corroboration, but the idea that we can get more and better criminal justice, cheaper, simply by excising a sometimes inconvenient rule of evidence from Scots law? At worst, that's a false prospectus for this reform, at best, an unserious exercise in wishful thinking.
