28 January 2012

Carloway "eviscerated"?

The Firm described it as an "eviscerating assessment". Understandably bedazzled by the Scottish constitutional developments of the last few days, most of you may have missed that Holyrood's Justice Committee came to some preliminary conclusions on the Carloway Review this week, set out in this letter to Kenny MacAskill from their convenor, Christine Grahame.  If it is an evisceration, the disembowelment is discreetly done, and to my eye, the letter reads more like a reflection of a range of reactions to a particularly controversial recommendation among generally uncontroversial recommendations, than a concerted disentangling of the Carloway Report's guts. Grahame notes that the Committee's brief investigation intended:

"...to obtain a “snapshot” view of interested parties’ initial reactions to Lord Carloway’s recommendations, rather than to conduct a full-blown inquiry. This letter is the outcome of that work".

Given immediate reaction to Carloway's proposals when they were published - focussing almost entirely on his controversial proposal to eliminate corroboration - it isn't wholly surprising that he Committee's "snapshot" reveals an array of leery legal phizogs, critical of Lord Carloway's blunt conclusion of November that...

26. The Review is, however, in no doubt that the requirement of corroboration should be entirely abolished for all categories of crime. It is an archaic rule that has no place in a modern legal system where judges and juries should be free to consider all relevant evidence and answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled. Abolition would bring Scots law into line with modern, and almost universal, thinking on how to approach evidence in criminal, and indeed all other, cases. There is little evidence to suggest that the requirement is in fact an effective protection against miscarriages of justice. Research commissioned by the Review suggests instead that the corroboration requirement may well hinder justice by preventing credible and reliable cases from being prosecuted. Furthermore, the requirement has developed into a series of rules which, realistically, are not capable of being understood by many outside the world of criminal legal practice and are inconsistently applied by many within it.

Committing 1,281 of the letter's 3,246 words to issues of corroboration, the letter reflects a critical assessment of Carloway's conclusion, both in terms of the substantial issues, and the research informing them. Arguments relayed include the idea that corroboration is an important "evidential quality control" and shield against miscarriages of justice, to concerns that Carloway's recommendation to abolish corroboration ignored wider context of Scottish criminal procedure. For example, not researched and not discussed in detail were questions of jury rules. In England, without corroboration, juries vote by qualified majority to convict and acquit, requiring ten of twelve jurors to decide the case. In Scotland, conviction is by bare majority of juries of fifteen - and if there is not a majority for conviction, the accused is simply acquitted. Not to consider these issues, and speedily to propose the elimination of corroboration, would be profoundly risky, promoting decision-making structures insufficiently protective of the rights of the defence, and of persons accused of committing crimes.
    It is fair to say that the Justice Committee hasn't endorsed Carloway's blunt conclusion, and is clearly sympathetic to the idea, advanced by the Faculty of Advocates, that corroboration ought to be further examined, explored in the context of broader criminal procedure, potentially by a Royal Commission. Grahame writes:

    "Lord Carloway is to be congratulated for having provoked a much-needed discussion on the purpose of corroboration. The question now is how best to continue that discussion, and in which forum."

    That the discussion ought to continue is taken as axiomatic. For what it's worth, I think the Committee and the critical voices quoted are right in a range of important respects. While I'm sympathetic to the idea of eliminating corroboration, it is clearly a principle which structures the behaviour of a whole range of official legal actors - policemen, prosecutors, judges, appellate review of convictions - and interacts with jury voting rules and the power of judges to repel cases, refusing to put them to juries ("no case to answer").  Not to consider these aspects, and to accelerate into full repeal of corroboration without further analysis seems distinctly unwise. The Justice Committee emphasises the:

    "... importance of ensuring that any future work on corroboration should avoid considering that single issue in isolation. Instead, it should also take into account the complex web of factors that, taken together, set the current balance between the state’s ability to secure a conviction and the individual’s right to a fair trial, and to be acquitted where there is a reasonable doubt. Witnesses suggested that this might include not only rules on the admissibility, quality and sufficiency of evidence, but also, for example, the not proven verdict or the availability of convictions by simple majority verdict. They also underlined the importance of studying other jurisdictions, building on the comparative work already undertaken by Lord Carloway. Some witnesses proposed taking the opportunity to “future-proof” our laws and practices to reduce the risk of future ECHR referrals. In short, these witnesses argued, all relevant matters should be on the table.

    That said, one wonders if Carloway may be a bit miffed. The Review was pulled together pretty quickly after the Cadder judgment of the UK Supreme Court on the 26th October 2010.  Carloway's appointment was announced on the same day, while his agreed terms of reference were published on the 18th of November.  The two crucial sections of Carloway's remit were:

    (b) To consider the implications of the recent decisions, in particular the requirement for 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 (my emphasis).
      Given the time-frame of his Review, and my understanding of the limited number of personnel committed to the enterprise, it was always going to be tricky for Carloway to address the corroboration question posed by the Cabinet Secretary for Justice in a comprehensive fashion. Indeed, his terms of reference specifically steered him towards thinking about corroboration in terms of the implications of Cadder, which I've blogged about before. Given these limitations, you get the impression that critics' major objection to the report has been to the categorical robustness of Carloway's conclusion on corroboration, which sits uneasily beside the limits of his research, suggesting that a more circumspect conclusion in this branch of his report was indicated. 

      To describe it as an "evisceration" seems overspicy, but certainly, the Justice Committee have contributed to the forces vitiating against speedy legislation to "knock out this pillar of Scottish criminal procedure", as some have rather grandly put it. More generally, it seems to me that the Committee is simply doing its job: cataloguing reactions to concrete proposals, testing feelings, identifying areas where our knowledge is imperfect, and ought to be improved, before making a final decision to head north or south, to reform or retain the status quo. Why must every disagreement or difference of opinion be given a yah-boo slant when reported, slating x, y or z? Late last year, I wrote this blog about questionable claims being made about rape conviction rates under new Holyrood legislation. This was picked up by the folk of the Express and - heaven help me - the Daily Star, who awarded me a doctorate, and headlined their report "Boffin blasts SNP".

      Surely if we are going to engage in collective deliberation, commission reports, solicit evidence and work up informed opinions - treat them as part of a conversation rather than chipped in unbreakable tablets - we have to be rather less Manichean in our outlook, where proposals must be triumphantly adopted in whole or end up being slated as abject failures if they prove predictably controversial in part.

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