How many ECHR cases did Britain lose last year?

A new year, a new round of unelected-euro-judges-waging-war-on-British-justice watch.  

The European Court of Human Rights has had a relatively quiet start to 2014 in the pages of the UK press.  Somewhere, I'm sure, a Tory MP is trauchling away at the idea that the Court is systematically subverting our domestic judicial and parliamentary processes - with the bad grace of doing so as the same time as having a piffling Luxembourg jurist as its president - but the daily hate agenda seems to have shifted back from Strasbourg to Brussels. An understandable shift of emphasis, you might well think, given the approaching elections to the European parliament.

Sooner or later, however, the Court will produce an opinion which offends the blue-rosetted tribes of the House of Commons, and the europhobic victim fantasies will be dusted off and trotted out. Today, the Court has published its annual account of its work over the last year. Buried at the bottom of this substantial report is a niggling little statistic which everybody who hopes to understand the Court's real impact on Britain should have at their fingertips.  

For our illustrious Lord Chancellor and Home Secretary, every passing decision of the Court is yet more evidence of the institution's overreaching desire to subvert British democracy. Whatever the merits of a particular decision, and whatever the demerits of the legal regime being challenged, you can rely on the justice ministers of the current government to denounce it in shrill terms. 

If you are already predisposed to believe the underlying claim - that Europe is robbing us of our freedom to be beastly to beastly people - every passing precedent may appear just another casualty of "Europe's war on British justice". Doesn't it feel as if the European Court is always finding the UK in violation? Wasn't there that article just the other week about some disagreeable sod using human rights arguments to force the Home Office to give every con a weekly bath in asses' milk? This, as Phil observes over at A Very Public Sociologist, is stupid empiricism. We have to take a look at the wider picture. And that picture blows these delusions to bits.

So how many cases did Britain lose last year? Thousands? Hundreds? The Court certainly had the opportunity, taking decisions on 1,652 applications submitted against the UK during 2013. And did the malevolent band of Maltese and Andorran judges, as expected, glory in Britain's discomfort, substituting their own preferences for parliament's again and again?  Er. No. Not really.

During 2013, the Court found that the UK had violated Convention rights in just eight of these cases. If this tiny clutch of judgments represents war on British justice, I'd love to know what an acceptable number of adverse findings might be. This is two fewer adverse judgments than last year, representing an overall rate of defeat before the Court for the government of just 0.48% during 2013.   

Take a moment to take that in, and keep it in your pocket the next time a Conservative minister or parliamentarian or Express reading pub bore tries to convince you that the Court's judges are systematically undermining British democracy.  In 2013, as in 2012, this is a pitiful victim fantasy or a smokescreen: crabbit, feeble and entirely unjustified self-pity.

Homicide After Stranger Danger...

Et tu Brute? Most of our great literary murders involve kinslaying, friends who turn on each other, or acquaintances who have a fatal final encounter. Claudius did in his brother Old Hamlet. Desdemona died at Othello's hand.  Raskolnikov took an axe to his elderly pawnbroker.  Random, impersonal deaths are not hard to come by either. Pick up any war tome. But intuitively, the literary emphasis on the terrible perils of the familiar and the familial makes sense. Our notionally nearest and dearest can fire up the hottest passions. Love, certainly, but also resentment, recrimination, rage. 

In many ways, that's the disturbing story told by last year's just released homicide statistics for Scotland.  A few facts from the bulletin: there were 62 victims of homicide last year. 78% were killed by an acquaintance (56%), partner (15%) or family member (7%). The gender (im)balance of killers and victims remains striking.  Of the 62 people killed last year, 50 were men and 12 women. Chart 10 sets out the decade-long trends on the relationship between Scottish murder victims and their killers, disaggregated by gender.  Click for a fuller view.

In 2012/12, 82 people were accused of committing these murders, of which 66 were men (80%).  62% of accused people were thirty or younger. 69% of all homicides happened in a dwelling last year, with 76% occurring in some residential location. In analysing these figures, it is important to remember that homicide statistics offer an account of deaths, not potentially fatal incidents which the polis are able to break up before they escalate, or which paramedics are able to staunch before the victim bleeds out.   

But these statistics pose troubling questions about how we think about danger in society, and where we anticipate peril springing from. I'm sure we've all, on one occasion or another, laid hagridden in bed, dreaming of the dark intruder with fatal designs upon us, or our families. Recently, I dreamed I was being chased around an Escher-like domestic maze by a murderous brass minotaur: make of that what you will. 

After stranger danger, we are left with the unsettling thought: for many folk, home, family and friends are really where the peril lies.

The Football Act's iffy conviction rates...

Last Friday, the Scottish Government published this statistical research on the operation of the Offensive Behaviour at Football Etc (Scotland) Act. The paper looks primarily at charges communicated to prosecutors by the police, the characteristics of people accused of hateful, threatening and offensive behaviour in relation to football, and the where, when and how of their alleged offences. 

It covers the first financial year in which the new Act has been in force, between 1 April 2012 and 31 March 2013.   Because of the small number of folk charged and prosecuted, more detailed figures are not generally available for the outcome of proceedings in cases taken under section 6 of the 2012 Act, which criminalises sending threatening communications via twitter, facebook and what have you. 

You may recall that back in March, the Lord Advocate and Justice Secretary hailed the effectiveness of the new measure one year on, placing considerable emphasis on the number of cases prosecuted, and the percentage of accused people who're found guilty of having committed the new offences. Just a few months back, Kenny MacAskill argued that:

"... the charge and conviction rates for people arrested under this legislation show that it is working well." 

A claim echoed by Scotland's chief public prosecutor:

"The Lord Advocate, Frank Mulholland QC, has said that the legislation is being used to good effect by police and prosecutors. So far 89 per cent of the cases reported to the Crown Office have been prosecuted, and the conviction rate stands at 83 per cent. Figures from the first full year of the act are still being collated and analysed and will be published after the end of the football season."

Now, one might wonder whether rates of conviction are really the best guide to the efficacy of any piece of criminal legislation.  What is most striking in Friday's research is that the healthy prosecution and conviction figures MacAskill and Frank Mullholland relied on in defence of the Act in March aren't borne out across the Act's first full year. Taking the whole year figures, government researchers found that:

• Court proceedings were commenced in 219 (82%) of charges communicated to prosecutors under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.
• During 2012/13 there were 62 convictions from 95 concluded charges under the 2012 Act.

As paragraph 3.27 of Friday's report concludes:

"This is a conviction rate (ie the proportion of concluded charges that resulted in convictions) of 65%.  In 2011-12 there were 25 convictions from 33 concluded charges, a conviction rate of 76%. For the full period of the first 13 months of the act, there were therefore 87 convictions from 128 concluded charges which is an overall conviction rate of 68%."

Even the most mathematically challenged of us shouldn't struggle to ascertain that the real conviction rate under this legislation in 2012/13 is a substantial 18% lower than the more congenial figure of 83% rolled out by MacAskill and Mullholland in March. Even including the months it was in force during the 2011/12 financial year only nudges that conviction rate up a trifle.

To put this conviction rate in some sort of context, we can look at the Scottish Government's official figures for the outcome of criminal proceedings in Scottish courts. Over all categories of crimes and offences, the Procurator Fiscal proves their case against 87% of accused people who end up in the dock. This data is also broken down by different offences.  For example, 83% of homicide trials, murder and culpable homicide, end in conviction of the accused.  At the other end of the spectrum, of rape and attempted rape trials, just 53% result in conviction.   

The conviction rate for all non-sexual crimes of violence in Scotland is higher than the offences created by the 2012 Act. The conviction rate for all crimes of dishonesty in Scotland is higher than these new football offences. Indeed, according to the latest figures, of all categories of crimes and offences, only rape and attempted rape cases record a lower percentage conviction rate than the 65% recorded under the Offensive Behaviour at Football legislation last year.  

If, as Kenny MacAskill and the Lord Advocate suggest, conviction rates are an important factor to be taken into account in evaluating the effectiveness of criminal statutes, the Football Act's relatively very poor performance in 2012/13 ought to be a source for anxiety, and not for reassurance.

The Bastard Verdict

This morning, in a piece headlined "Campaigners: ‘Not proven’ allows rapists to go free", the Scotsman report that Rape Crisis Scotland has come out against Scotland's "bastard verdict" of not proven in their submission to the Scottish Government on abolishing corroboration.  I don't have the full text of their submission, but as far as the article tells, therein the organisation contends "that guilty people are walking free" because of the third verdict and that "not proven" acquittals "can be as devastating to victims as a not guilty decision". The organisation's national coordinator, Sandy Brindley, is quoted to the effect that:

“We’re concerned it gives juries an easy way out of difficult decisions. They are particularly prone to going for not proven in rape cases, particularly ones which do not conform to the stranger rape scenario. The one positive with not proven is you can say to the woman, ‘this does not mean you weren’t believed’. But it’s still an acquittal, and the experience is still devastating. The bottom line for the survivor is the person who raped them is walking free – not proven is not going to change that.”

Empirically, it is certainly the case that juries avail themselves of the "not proven" verdict far more regularly in trials alleging rape and attempted rape than in criminal proceedings alleging other offences.  The latest data for 2011/12 shows that 53% of people indicted for rape or attempted rape were convicted in the High Court, while 38% of accused persons were acquitted. Not proven verdicts constituted the minority of acquittals (44%), but a substantially higher percentage of acquittals than the average, across all categories of crime, from homicide, crimes of dishonesty, vehicular offences and so on (18%).

Whatever impression courtroom dramas might cultivate about the percentage of folk who secure acquittals, it isn't the case that vast swathes of folk who end up in the dock walk free, guiltlessly. Across all categories of crimes prosecuted in 2011/12, 87% of accused persons were convicted, with "not proven" acquittals making up just 1% of all outcomes in cases which came before our criminal courts.  

Because of the sheer volume of criminal work, however, the actual number of acquittals is not insubstantial.  Of the 124,736 people proceeded against in 2011/12, Scottish judges and juries acquitted some 5,497 of them. The bare percentages can be misleading on rape and attempted rape prosecutions too. In 2011/12, just 94 people were proceeded against in court, accused of rape or attempted rape. Fifty were convicted, twenty acquitted on a "not guilty" verdict, and sixteen where the jury determined that the charge was "not proven".

So why eliminate "not proven"? To my eye, Rape Crisis Scotland is making two distinct points. Firstly, they are rebutting the contention that the verdict softens the blow for the complainer to any substantial extent, where juries fail to convict the accused. As an empirical assessment of the experiences of those who have gone through the trial process, and heard the acquittal pronounced in court, this seems highly plausible. It is not, however, a fatal critique of the third verdict. It merely undermines one reason, amongst other reasons, used by its proponents to justify its retention.

From the perspective of complainers, the distress clearly results from acquittal, not the form of the acquittal. The same critique - if we can call it a critique - could be made of the not guilty verdict.  As a consequence, today's criticism of not proven is really a catspaw for the broader, more familiar argument that the conviction rate is too low. And what's more, as the statistics indicate, while it is true that a far larger percentage of acquittals in rape proceedings are not proven than on average, the actual number of not proven acquittals in the High Court are not terrifically high. As barriers go to securing rape convictions, the "not proven" verdict seems at most of peripheral significance, the impact of its repeal negligible. A red herring, all said.

So why recommend it's abolition? Here we come to Rape Crisis Scotland's second contention, that the verdict produces wrongful acquittals which a simple "guilty or not guilty" choice would avoid. Because of the seal on the jury room, and the illegality of conducting empirical research on jury decision-making, there's no hard evidence to confirm or refute Brindley's thesis. But for the sake of argument, how might "not proven" be exercising this baleful influence? Unhelpfully, the Scotsman piece does not elaborate at much length, but I'll hazard a guess at the reasoning which might underlie this claim.  

Juries are saturated with myths about rape, unreasonable suspicions about the credibility of complainers, and patriarchal assumptions about sexuality which distort their deliberations. Combined, these wrongheaded apprehensions produce an environment where jurors are given excessively to doubt the veracity of complainers and are reluctant to convict accused persons. Particularly in circumstances where the accused does not conform to uncritically accepted ideas about the appearance, social class or manner of a rapist, or where the complainer's behaviour or manner in the witness box deviates from the jury's ideas of how a credible victim comports themselves. Or, as Brindley says, where the alleged sexual assault occurred - as most sexual assaults occur - in domestic circumstances where the victim and the perpetrator are known to one another, and may have been in a romantic relationship at the time the alleged offence took place. Apprehensions of stranger danger still cast a long shadow.

All of which may be true, but as far as I can see, these points relate only very tenuously to the availability of the not proven verdict to juries.  

 

Brindley's argument has to be that by eliminating the not proven verdict, juries will apply themselves more seriously to the issues of guilt or innocence than they do at present. Implicitly, she suggests that that harder choice, without resort to an ambivalent acquittal, will lead to higher rates of conviction. Given the straightened choice of guilt or innocence, in Brindley's model, our currently lax, evasive or myth-saturated juries would behave differently. But why should we expect this to be the case? Isn't it much, much more likely that an undecided jury, unable to find the charge proven beyond reasonable doubt at present, will continue to vote to acquit whether or not they have one or two acquittal verdicts available to them?

If the reason that juries are not convicting more people is attributable myths about rape, unfair scepticism about the credibility of complainers, or because of an elementary lack of evidence in cases turning primarily on the issue of consent, eliminating the third verdict does precisely nothing to challenge any of these factors. As we can see from the English and Welsh experience of prosecuting sexual offences, we can expect them stubbornly to persist under a two verdict system too. There are many reasons for the low conviction rate for rape in our justice system. The bastard verdict isn't one of them.

Just how many ECHR cases did Britain lose last year?

In brief supplement to yesterday's post about the Tories' rekindled enthusiasm for denouncing the European Court of Human Rights, I thought it might be convenient, if you are fending off Euroskeptic tabloid hacks in your own life, to arm you with a little data. 

Take last year. 2012.  During this period, how often do you think the dastardly, meddlesome, hyperactive European Court decided to make judgments in cases lodged against the United Kingdom? How many adverse decisions can Theresa May realistically hope will patter off Britannia's shield per annum, if her preferred outcome of withdrawing from the Court's jurisdiction were to be realised? From what volleys of European judicial folly will Lord Chancellor Grayling protect us?

The vanishingly small, ridiculously wee, answer is 10 judgments. 10 adverse judgments against the United Kingdom all year. In 2012, the Court issued 24 judgments in respect of 35 UK applications.  Of those 24 judgments, 13 found that Britain had not violated any protected human right, while the remaining judgment was decided without resort to the merits of the case.  By contrast, the Court rejected 2,047 applications against the UK as "inadmissible" in 2012.  

This isn't the place to go into the Court's jurisprudence on admissibility. Sufficeth to say, these cases failed, Britain didn't have to defend itself on the merits of the cases, and in most instances the UK Government wouldn't even have cause to have heard about them. The European Court only communicates the detail a small percentage of complaints to respondent governments, just 48 applications in respect of the UK in 2012. We can therefore chalk all inadmissible cases in the UK "victory" column. And 2012 wasn't unrepresentative.  While the number of unsuccessful, inadmissible cases was higher in 2012 than the previous two years, in 2010 and 2011, 23 and 30 applications respectively against the UK were decided by a judgment of the European Court.

So now we know. Last year, amid all the hubblebubble of political controversy in this country, the fiery rhetoric about a Strasbourg which was by turns micromanaging and incompetent, Britain lost a miniscule 0.5% of all cases decided by the Court, and 42% of all judgments handed down.

Just how many fewer cases would Cameron, May and Grayling think appropriately deferential to Britannic civilisation? How many fewer findings of violation wouldn't represent a grotesque affront to democracy and war on the sovereignty of the Westminster? Perhaps the double figures offend. Nine judgments? Five? One? None?

In fairness to May's argument, her beef isn't just with the year-on-year rate of judgments against the UK which the Court pronounces. She's griping primarily about the duty to comply with the tribunal's past judgments, particularly about the incompatibility of extraditing folk to countries where they are likely to be tortured with fundamental rights. It's a grumble of someone observing their obligations in international law unwillingly. In fairness too, if there's no movement from the UK government on prisoner voting rights, we might expect these figures to increase, perhaps substantially, over the next year or two. In general, however, these bare numbers speak to the practical inaccessibility of the Court to most applicants. Their petitions may be received and examined by Court staff, but only a tiny number are ever likely to catch the judicial eye, and be subject to a recognisably adversarial, judicial procedure. 

And yet, all that despite, the Conservative victim fantasists continue to bark, bay, blubber and groan, unabashed.

♫ We're the Jury! Dread our fury! (Vol 2) ♫

In my day job, I'm interested in studying law empirically.  One of the classic claims made by scholars adopting this sort of socio-legal approach is that often as not, the law on the books represents a poor guide for how the law actually works in practice. 

This discrepancy takes many different forms. The section of an enactment which legislators thought would apply only exceptionally, occasionally becomes the rule in practice. Environmental regulations are applied in the field - often literally - by officers enjoying substantial discretion over how infractions will be treated, and those encounters often produce a rather different regulatory regime in reality, than the neatly ordered official version admits.  The Housing Act places positive obligations on local authorities to house the homeless. In practice, the bureaucratic units making these decisions depart from and elaborate the legal standards for assessing these duties in a range of interesting (and sometimes concerning) ways. 

So too with our criminal justice system. Oscar Pistorius' murder trial in South Africa, and yesterday's queer conclusion to the Vicky Pryce trial in England, has stirred up the issue of trial by jury again. Defenders of the idea often tend towards grandiloquence. "The lamp that shows that freedom lives", a "cornerstone of our judicial system", or an "inalienable civil liberty" to be defended to the last ditch. It is one thing to argue that trial by jury in particularly serious cases represents an important safeguard, worth preserving.  It is quite another to imply, as some commentators often seem at risk of implying, that anything but trial by jury would be a judicial scandal, a betrayal of the grand old history of British jurisprudence, undermining the justice system as is. 

Why? Because trials by jury already represents a negligible, fading segment of our criminal justice system's work. The institution may be the most visible manifestation of criminal justice, and dominate legal dramas, but trial by judges alone is far, far more common. And guilty pleas even more so. To flesh this out a bit, the Crown Office has helpfully thrown together its case-processing data for the last five years, 2007 - 2012. They use the now-outmoded term of "District Courts", so I've used it too, but these now refer to Justice of the Peace Courts, whose Justices are generally not legally qualified and usually determine cases in threes. In these figures the Crown Office has aggregated the figures for legally-qualified Stipendiary Magistrates who sit alone (which only operate in Glasgow) along with those for summary sheriff cases, without juries.

The statistics distinguish between pleas ("cases which were disposed of at court without any evidence being led") and those which were tried ("cases where some or all of the evidence was led").  On the basis of these figures, we can identify precisely how many juries were actually empanelled in the last half-decade in Scotland. Let's take the most recent year for which we have data, 2011 - 2012.  As you can see, of the 8,070 cases where any evidence was lead in court, only 16% involved juries, either in the Sheriff or High Courts, 84% without.  Most cases were tried by sheriffs sitting alone, with the remaining almost-quarter soaked up by the District Courts. No juries here either. 

Nor was 2011/12 an outlier year. Across the half decade, just 16% of all proceedings which have reached trial and not been pleaded out from the outset involved juries in Scotland.  Focussing on trials, however, also tends to give you a distorted impression about how criminal justice in this country actually works. The picture wouldn't be complete without factoring the phenomenon of pleas, which suspend the necessity of going to trial, witnesses being examined and cross-examined, and either judicial or jury deliberations on verdict.  The sheer scale of pleas in Scottish criminal justice, which has this in common with many other jurisdictions, including England and the United States, is best depicted by contrasting the number of cases which go to trial and those which are pled out without any evidence being lead, and without a whisper of jury involvement. 

Whatever your views on its virtues and virtues, the institution's advantages and disadvantages, the idea that trial by jury represents a practical "cornerstone" of our judicial system is fantastical. Most folk facing trial in Scotland will meet the grim phizog of a sheriff, or JP. Most people who are convicted, fined, given community payback orders, or thrown in the slammer won't see hide nor hair of fifteen of their peers. In the overwhelming majority of criminal cases, guilt or innocence is not at issue. I don't have the English and Welsh figures to hand, but I'd wager that the rates of jury trial there aren't substantially higher than in Scotland. None of which is to contend, of course, that cases currently dealt with by juries - murder, charges of rape, serious assaults - ought to be taken from them.  

It does suggest, however, that drawing sharp distinctions between the South African system of trial by judge alone and ours is - in practice - rather silly.  If the system of trial by jury is the "lamp that shows that freedom lives", it affords pretty dim illumination about how criminal justice in this country works most of the time.

Corroboration reform: A false prospectus?

"I'd like you to do the same job you are doing now, but I've a score of new, extra tasks which you'll have to take care of as well.  Oh. And there will be no extra funding to pay for your new responsibilities. And I'm going to cut your budget in real terms at the same time. Haven't you a few efficiency savings you could make? Splendid. Toddle off, then, and get cutting."

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.

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.

Death by the Clyde...

Every year, government statisticians put out a grim butcher's bill of Scotland's homicides, and the statistical detail on the killings is not for the squeamish.  The annual 2011/12 count of deaths was released this morning, recording a total of 90 deaths and 88 homicide cases over the last twelve months.  In the press, you're likely to hear a couple of headline statistics: the total number of deaths is down on last year, falling from 99 to 88 cases.  

A total of 124 persons were accused of committing homicide in the last year, of which 115 (93%) were men, compared to just 9 women (7%).  The vast majority of victims of homicide were also men.  Some 71 of 90 victims of homicide were men (79% of victims), while 19 women were also killed (21% of victims). As ever, alcohol features prominently Once again, the numbers put the prevalent myth of "stranger danger" to the question, particularly for women. Looking at the last ten years, the government statisticians report:

"For homicides recorded in the last ten years, 51% of the female victims aged between 16 and 70 years were killed by their partner or ex-partner, 29% were killed by an acquaintance and 9% were killed by a stranger. For male victims aged 16 to 70 years, only 6% were killed by their partner or ex-partner. Nearly two thirds, 64%, of male victims aged 16 to 70 years were killed by an acquaintance and 17% were killed by a stranger."

This seems borne out by the pre-eminent locations in which homicides occur. In 2011/12, 56 of 88 homicide cases (64%) occurred in a residential setting, which includes houses, but also common stairwells and hostels, hotels and lodging houses.  The vast majority (fifty three of fifty six in 2011/12) of these are confined to houses and dwellings.  That said, things get a wee bit more complicated when we take a decade-long look, and break down cases by recorded motive, gender and location.  Between 2002 and 2012, 840 men have been killed and their homicide cases "solved" by police.  Of these, 442 (53%) have occurred in a dwelling, compared to 397 (47%) which were "not in a dwelling".  In the same period, there have been 2011 solved cases involving female victims.  Of these, 77% occurred in a dwelling, with the remaining 23% occurring elsewhere.

Knives are obviously an important concern in Scottish politics, dominating Labour's agenda in the last Holyrood election. Accordingly, the number of folk killed by "sharp instruments" will likely attract the highest levels of political scrutiny.  Of the 90 victims of homicide recorded in 2011/12 (as opposed to 88 homicide cases recorded, where multiple killings were singly investigated), 52% were slain using a "sharp instrument" as compared to 61 of 101 (60%) of homicide victims in 2010/11.

Death by the Clyde...

This year, I thought I'd focus a little more closely on geography in general, and on Glasgow and Strathclyde in particular. First, some introductory demographics.  According to 2010 population estimates, Strathclyde police force area covers some  2,217,880 people, substantially more than double the next largest - Lothian and Borders police - which attended to public order and the investigation of crime for 939,020 souls. 

Although well shy of half of covering half of the Scottish population, over the last decade, Strathclyde has dominated the homicide statistics, never contributing less than half of the Scottish national total of deaths. As you can see, the national totals have tended to follow fluctuations in Strathclyde's homicide count.  For comprehensibility, I've only included specific numbers of homicide cases for the national and Strathclyde and Lothian and Borders in the chart below:

Taking of of these numbers, over the last decade, 62% of all homicide cases have originated in the Strathclyde police force area, fluctuating up and down over time.

One of the interesting aspects of today's statistics is that in addition to breaking down the figures by police force area, they also include information on a few - four - choice local government areas: Glasgow, Edinburgh, Aberdeen and Dundee City areas.  The findings from Glasgow - historically "no mean city" - trace a highly encouraging downward trend in the number of homicides recorded.

At the start of the last decade (2002/03), Glasgow City actually contributed the majority of homicide cases in Strathclyde.  Since, that number as dramatically fallen, to a low of just fifteen deaths this past year. While the number of homicide cases concerning events in Glasgow city has been falling very substantially in the last decade, it is striking that the rest of Strathclyde exhibits nothing like the same decreasing incline of killings. 

These numbers are mute on the human stories behind the columns and the totals, the abstract "sharp instruments" some distance away from the horror and suffering of a life lost on the end of thrust blade, clubbed or choked from you. The objectivity of the numbers, their bare detail, has an obvious distancing effect which is mute on the devastated lives which lie behind them: the mothers and fathers buckled with grief, consigning sons and daughters to the earth, the tears stinging the eyes of loving friends, the lonely children bereft.  These numbers only thinly tabulate tragedy, both for those killed and for their families and friends, but also for many of killers, who were most likely drunk, most likely young men, most likely caught up in a fight or quarrel, all of whom have made a dreadful, tragic mistakes which will alter and afflict the course of their lives, and the lives of many others.

Reading these numbers at an abstract distance, it's important always to remind ourselves of the sorrow and loss that lies behind them.

On Gay Caledonia...

As regular readers will know, I do like a good survey, and the Scottish Household Survey is a bumper compendium, examining issues ranging from Scots' housing tenure and internet access, to rates of participation in cultural activities and people's financial circumstances.  There is plenty here to divert anyone interested in quantitative sketches of Scottish demography. I intend to dip in and out of the figures over the coming months, but for today, a quick word or two on the results of a new question introduced to the 2011 survey.  

In the chapter looking at the "Composition and Characteristics of Households and Adults in Scotland", the researchers pose a range of question. Are you married, divorced, unmarried? How ancient, what ethnicity, living in an urban or rural environment? Last year, statisticians introduced a new "core" question, on sexual orientation. 

"Developed by the Office for National Statistics, the question was designed to provide accurate statistics to underpin the equality monitoring responsibilities of public sector organisations and to assess the disadvantage or relative discrimination experience by the lesbian, gay and bisexual population."

So what did they find? Of their base of 12,893 respondents...

And disaggregated by gender, with the ladies first:

And men...

If we take the General Register Office's most recent Scottish population estimates (5,254,800 in June 2011), and crudely extrapolate out from these percentages, our lesbian, gay and bisexual population would number just 47,293 people (nationally, just slightly more than the population of Ayr or Dunfermline). Of course, there are plenty of problems with this decidedly rough and ready calculation. The Survey figures concern only adults, while the population estimates include the whole population, including children. But bracket those qualms, for the sake of discussion.  Does this seem a plausible estimate?

As Better Nation blogger Aidan Skinner pointed out on twitter, if we look at the much more extensively disaggregated and cross-referenced Office of National Statistics findings from England and Wales in 2010 (neatly summarised by the Guardian here), these Scottish figures look strikingly similar. The Scottish data poses similar questions.  What is being measured here, precisely? As a number of folk would point out, sexual orientation and sexual activity and attraction aren't the same thing.  Moreover, a number of factors seem likely to influence whether or not people are likely to self-identify as lesbian, gay or bisexual.  Unlike the ONS statistics, the Scottish findings aren't disaggregated by age, but if we look at the English figures, 14.5% of respondents who identified as gay or lesbian were aged 16 - 24.  A further 49.9% were aged 25 - 44, with 27.3% aged 45 - 64 and 5.9% over 65. 

It seems unlikely that the British youth of today have an innately heightened predisposition to take up recreational same-sex carnality on a far greater scale than their parents', and grandparents' generations.  What seems much more probable, however, is that different segments of the Scottish population are likely to exhibit differential comfort, identifying themselves with gay, lesbian or bisexual identities.

It was only thirty two years ago, in the Criminal Justice (Scotland) Act 1980, that the Scots laws criminalising "homosexual acts in private" were abolished, some scandalous thirteen years after the English and Welsh Sexual Offences Act 1967, with the abiding condition that "both" parties were aged twenty one years old, or above, and consented.  Add a third body, and you'd be in trouble.  These are developments of many living people's lifetimes. A salutary reminder, you might well think, that the unreformed character in which Westminster left much of Scots law before devolution is not a legacy which one can always comfortably celebrate.  

Scots drugs deaths increase by 563% & 623%, but for who?

Last week, the General Register Office for Scotland published its grim annual statistics on the number of drug-related deaths in Scotland in 2011. BBC Newsnicht took the findings for its topic last night, focussing on the much-increased incidence of the drug methadone being implicated in deaths.  I don't know about you, but I often find big data shots like this are difficult to digest.  On the telly, the demands of brevity make for fleeting graphics, glossed issues and compressed conversations.  The statistical releases themselves are a remorseless parade of cross-referenced columns, less than easily navigated.  I thought it might be of interest, therefore, to pull out some of the information published by the government statisticians, and re-render it in more easily intelligible forms. 

Obvious questions include: how many people are dying? Is the number increasing or decreasing? Chipping below the total number of deaths, are there changes in the gender and the age groups of those who are dying? Of the dizzying array of noxious and intoxicating substances out there for sampling, which ones are most implicated in most deaths, and how have these figures changed over time? I hope to provide sketchy, preliminary answers to all of these questions, but first, the total butcher's bill.  The General Register Office statistics cover the last fifteen years, during which period...

Like a great many of the statistics which have interested me in the past - imprisonment, homicide, suicide - Scottish men represent the overwhelming majority of recorded drug-related deaths.  Since 1996, the number of men dying has more than doubled (from a low of 179 deaths in 1997, to a high of 461 in 2008).  For women, by contrast, a look across the same period shows that a 1997 low of 45 deaths has increased to a high of 155 last year, with an upwards spike in 2008 which has seen over 100 women die drug-related deaths each year to date.

And showing increases between 1996 and 2011, by gender.

And women...

Feckless, raving, drug-addled youth. It's a familiar image, likely reinforced by the coverage given to some tragic instances of very young folk, perishing. The statistics, by contrast, show a rather different picture.  Fifteen years ago, the overwhelming majority (77%) of those who died drugs-related deaths were aged under 35, 35% of them before their twenty fifth birthdays.  Over fifteen years, however, that picture has rapidly altered.

Under 35s now make up just 41% of 2011 drug deaths.  Last year, fewer under 25 years olds died than 45 - 54 year olds.  To my eye, most startling over the decade and a half has been the huge increase in the number of 35 to 44 year olds dying, from just 32 deaths in 1996, to last year's high of 212: an increase of 563% in just fifteen years.  Although starting from a lower base, the increase in the number of 45 - 54 year olds was even greater, climbing over 623% during the period from just 13 deaths in 1996 to the current high of 94.  Despite some people's expectations, drug deaths amongst under 25 year olds are one of the few age strands which has been showing a consistent downward tendency these last four years. 

 

Seeing such substantial changes, the obvious question to ask is, "why"? Confounded tricky question it is too, and a few tentative cautions and hypotheses are probably beyond the scope of this (already substantial) blog. I may well come back to it anon, but until then, speculative discussion in the comments is positively encouraged. 

So what sorts of drugs are implicated in the ongoing rise in the number of Scottish drugs deaths, and how has this changed over time? On a statistical note, more than one drug may be reported per death, and should not be added to give total deaths. I'll be using the data generated by pathologists on the "drugs which were implicated in, or which potentially contributed to the cause of death".  The report also includes data on "other drugs which were present but which were not considered to have had any direct contribution to the death", for those interested in the cocktail of substances found in the systems of those who died.  

Like the changing chart on the age of those who died, the profile of the drugs which killed them has changed substantially over time, with volatile spikes, falls, troughs.  Statistics are not published on all of the sorts of substances which may rob a man of his life - the data is selective, and I'm sure you've heard of most of the drugs depicted.  

So that's how things have changed over time.  What of last year? What substances are proving a contemporary challenge? As the Newsnicht report focussed on, methadone looms large. 

Given the issues I've looked at so far - differences in gender, differences in age groups - I wondered whether the drugs implicated in deaths would differ substantially between men and women, and between older and younger victims.  First, let's compare genders.  It's worth emphasising again, these are all of the drugs which pathologists recorded as "implicated in, or which potentially contributed to the cause of death" appear in these charts. It would be possible, for example, for a fatally over-intoxicated unfortunate to have every single one of these substances in (probably his) system.  The Office publishes a separate chart on all those drugs deaths where only a single one of these substances (and "perhaps alcohol" too) were found in the deceased's system.

And women:

 

In reading these graphs, it is worth recalling that male deaths substantially outnumber female deaths, and so you can't read across from the percentages given.  While, for example, a greater percentage of women than men are dying with methodone knackering their systems, methodone is implicated in a greater number of male deaths (75 deaths to 200).  It's an elementary point, but worth keeping in mind.  Now.  What about age? The youngest cohort, whose under 25, constituting 9.9% of drugs related deaths recorded in 2011.  Substances "implicated in, or which potentially contributed to" their deaths were as follows:

Taking them in order of youthfulness, next, the 25 - 34 year olds, who made up 32.5% of those dying last year as a result of drug use.

35 to 44 year olds, 36.3% of deaths last year:

Second to last, the 45 to 54 year olds, who made up 16% of recorded deaths in 2011.

 

And finally, the oldest cohort, of over 55s, who made up just 6.2% of 2011's total.

So there we have it. Is it entirely what you expected? As we often find, quantitative data like this poses more riddles than it solves, even before we start asking thorny questions about causation, or trying to explain changes in the statistics and analysing what the devil we might do, to try to decrease the numbers of folk needlessly dying. I should also add, the report itself includes various other pieces of data which I've passed over for reasons of brevity.  Conspicuous by its absence is a geographical perspective on the national totals.  You can find further breakdowns by NHS Board area and council area respectively between 2001 and 2011. 

Read the full report here.