Scottish Government Consultation Paper Reforming Scots Criminal Law and Practice: The Carloway Report The Law Society of Scotland s Response October 2012 The Law Society of Scotland 2012 1
INTRODUCTION The Law Society of Scotland aims to lead and support a successful and respected Scottish legal profession. Not only do we act in the interests of our solicitor members, but we also have a clear responsibility to work in the public interest. That is why we actively engage and seek to assist in the legislative and public policy decision making processes. To help us do this, we use our various Society committees which are made up of solicitors and non-solicitors and ensure we benefit from knowledge and expertise from within and outwith the solicitor profession. GENERAL COMMENTS The Law Society of Scotland (the Society) welcomes the opportunity to respond to the Scottish Government Consultation Paper entitled Reforming Scots Criminal Law and Practice: The Carloway Report (the Paper) published on 3 July 2012 and would like to respond as follows: The Society has been actively engaged with Scottish Government, Scottish Parliament and Lord Carloway s Review team since the judgement in Cadder v HMA [2010] [UKSC] 43. The Society responded to Lord Carloway s Consultation in June 2011 and also gave oral Evidence to the Justice Committee in December 2011 (the Scottish Parliament s Official Report Justice Committee Tuesday 13 December 2011). The Society also notes the Official Report from the meeting of the Parliament on Tuesday 25 September 2012 at which, after debate, the Scottish Government s motion that the Parliament welcomes the Scottish Government Consultation Paper setting out its approach to implementing Lord Carloway s historic recommendations to reform the investigation and prosecution of crime in Scotland, notes the Scottish Government s inclusion in working for Scotland the Government s programme for Scotland 2012-2013 of a Criminal Justice Bill to deliver the historic reforms as a package, highlights the importance of delivering these measures in a coherent way The Law Society of Scotland 2012 2
alongside wider reforms to Courts and Tribunals through the making justice work programme and encourages all interested persons to make a response to a consultation was agreed to. The Society also notes the terms as set out at paragraph 1.8 of the Paper in that the Scottish Government has accepted the broad reasoning as set out in the Carloway Report and the Paper is not an attempt to re-visit his review but to promote public discussion of his recommendations in assisting Government in translating the package of the reforms into legislation. The Society remains concerned that the Scottish Government, as highlighted at paragraph 1.9 of the Paper, does not intend to commission a further independent review of the law linked to the Carloway recommendations. The Society notes at paragraph 9.23 of the Paper that the Scottish Government agrees that the requirement for corroboration in criminal cases should be abolished and the purpose of this Consultation is simply to consider what additional measures are required as a result of that abolition and what evidence can be produced in support of any additional measures. The Society believes that this is an entirely inappropriate way forward. If the requirement for corroboration is to be abolished, it has to be set against the background of a wider review into the Scottish Criminal Justice System in order to ensure compliance with Article 6 of the European Convention on Human Rights. No evidence to demonstrate that the abolition of corroboration will not result in miscarriages of justice has been produced. In the absence of such evidence, the Society believes that the abolition of the requirement for corroboration without other safeguards will simply result in a contest between two competing statements on oath and therefore have the potential to result in miscarriages of justice. The Society is deeply concerned that on such a fundamental matter, the Scottish Government has decided not to utilise the expertise and experience of the Scottish Law Commission in the field of Law Reform. The Society notes that the Scottish Law Commission has recently completed a Report on Similar Fact Evidence and the Moorov Doctrine on 23 May 2012 (Scot Law Com no. 229). The Law Society of Scotland 2012 3
The Society believes that this Report typifies the informed contribution that the Scottish Law Commission can make. The Society believes that the requirement for corroboration in Scots Criminal Law is a fundamental safeguard, the purpose of which is to protect against miscarriages of justice. Accordingly, if corroboration is removed, it is vital that careful consideration is given to the introduction of new safeguards to minimise miscarriages of justice based on uncorroborated allegations. In answer to the questions contained within the Paper, the Society should like to respond as follows: ARREST AND DETENTION Question 1 What are your views on the move to a power of arrest on 'reasonable suspicion' of having committed a crime, replacing the common law and statutory rules on arrest and detention? The Society believes that the current system is working well and that there is no requirement to move to a power of arrest on reasonable suspicion. The decision in Cadder v HMA [2010] [UKSC] 43 (the Cadder decision), held that the pre-existing law and practice in terms of Section the system created in terms of Section 14 of the Criminal Procedure (Scotland) Act 1995 deliberately denied the suspect one basic right which was of course the right to access legal advice and breached Article 6(3)(c) of the European Convention of Human Rights in conjunction with Article 6(1). No other criticism of the system was made. The Society notes the judgement of Salduz v Turkey 36391/02 [2008] ECHR 1542 (27 November 2008) in which the Grand Chamber of the European Court of Human Rights held unanimously that there had also been a violation of Article 6(3)(c) of the European Convention of Human Rights in conjunction with Article 6(1) because the applicant did not The Law Society of Scotland 2012 4
have the benefit of legal assistance while he was in police custody and that this was the issue at the heart of the Cadder decision. Accordingly the Society believes that the concept of detention and arrest should continue. A removal of Section 14 would, in the Society s mind result in a situation where the status of a suspect in custody could become unclear. Albeit the suspect has a right to legal advice now and this may be considered to be a reason why we move to arrest on reasonable suspicion, the Society is of the view that Section 14 should remain in place as there must come a point in time when questioning of the suspect by the Police must stop. Question 2 What are your views on Lord Carloway's recommendations for the police no longer to be required to charge a suspect with a crime prior to reporting the case to the Procurator Fiscal? How is this best achieved in practice? The Society is of the view that the police charge does not in practice serve any useful purpose and also that it often differs markedly from the charge on which the Procurator Fiscal initiates proceedings. The Society believes that the police charge can therefore cause confusion. A suspect should be informed, in detail, of the nature and cause of the accusation against him or her at the earliest possible stage. The Society therefore agrees that the police should no longer be required to charge a suspect with a crime prior to reporting the case to the Procurator Fiscal. The police (or any other investigating authority) should therefore have the right to interrogate up to 6 hours in ordinary cases with different rules for serious cases. Thereafter, whether arrested or not, a suspect should only give a statement on a purely voluntary basis. Question 3 The Law Society of Scotland 2012 5
Do you agree that a suspect in a criminal investigation, who has not been detained or arrested, does not require any statutory rights similar to those conferred had that person been arrested and detained? No. The Society believes that legal advice should be made available during questioning to a suspect who has neither been detained nor arrested. Question 4 What are your views on the recommendation that a suspect should only be detained if it is necessary and proportionate having regard to the nature and seriousness of the crime and the probable disposal if convicted? The Society agrees with Lord Carloway s recommendation that the suspect should only be detained if it is necessary and proportionate having regard to the nature and seriousness of the crime and the probable disposal if convicted. CUSTODY Question 5 Do you agree with Lord Carloway's recommendation that the maximum time a suspect can be held in detention (prior to charge or report to the Procurator Fiscal) should be 12 hours? Please explain. Yes, the Society agrees with Lord Carloway s recommendation of the maximum time the suspect is to be held in detention should be 12 hours without being charged or advised that he/she is to be reported to the Procurator Fiscal with a view to him/her being charged with a specific offence. The Society believes that the current period of 24 hours under Section 14A of the Criminal Procedure (Scotland) Act 1995 was introduced in the erroneous belief that access to legal advice may cause delay that would prejudice the investigation. The Law Society of Scotland 2012 6
The Society notes that the Cadder decision did not challenge the length of detention but rather the deliberate denial of access to legal advice during the period of detention. Question 6 What are your views on whether this 12 hour period could be extended in exceptional circumstances? How could this be regulated appropriately? The Society does not believe that the 12 hour period should be extended in any circumstances on the basis that what were once exceptional circumstances can become the norm, particularly where there are significant resource restrictions pending. The Society accepts Lord Carloway s recommendation that there should be requirement that a person cannot be kept in police custody for more than 12 hours without either being charged or advised that he or she is to be reported to the Procurator Fiscal. Question 7 What are your views on the need for the proposed 12 hour period of detention to be reviewed after 6 hours by a senior police officer? The Society refers to its answer at Question 2 above. The police should be required to review any period of detention before charge at 6 hours after detention and this review should be carried out by an officer of at least the rank of Inspector who has not been directly involved in the investigation. Question 8 What do you consider the most effective way of ensuring that no person should be detained in custody beyond 36 hours before appearing before a Court, i.e. over the weekend period? The Law Society of Scotland 2012 7
Are there any practical difficulties to be overcome in delivering a model that achieves this? Bearing in mind the desire for suspects to be held for as short a period as possible, current ECHR case law which indicates a limit of 4 days and affordability issues do you consider there to be an alternative time period to the 36 hour recommendation before suspects appear before a Court? The Society agrees in principle that no suspect should be detained in custody beyond 36 hours before appearing in Court. The Society does, however, recognise resource issues in convening courts upon a Saturday. The Society identifies the clear practical difficulties of the availability of Judges, Sheriffs, Justices of the Peace, Court and administration staff, Procurators Fiscal and defence agents together with the security of Court buildings. The Society also believes that practical difficulties in achieving the principle that no one should be detained beyond 36 hours may well be exacerbated by the Scottish Court Service Consultation entitled Shaping Scotland s Courts published on 21 September 2012 which has identified a number of Sheriff Courts for potential closure. Question 9 What are your views on the police having the ability to hold an accused for court and report a case to the procurator fiscal without first charging the suspect? The Society notes that this operates in practice at present. The Society further notes, however that while there should be no reason to prevent this, in certain circumstances, the police may be uncertain as to which charges are appropriate. LIBERATION FROM POLICE CUSTODY Question 10 The Law Society of Scotland 2012 8
Do you agree with Lord Carloway's recommendations that the police should be able to liberate a suspect from custody on conditions, referred to as investigative liberation? What are the practical issues with this and what comments do you have about conditions and safeguards? The Society refers to its answer at Question 6 above and 11 below. The Society is concerned that investigative liberation will become the norm rather than the exception. Any conditions attached to investigative liberation should be strictly defined in statute and should not unduly restrict the suspect s movements or activities during the period of liberation. Question 11 Lord Carloway suggests that a limit of 28 days be set on the period that the police can liberate a suspect on investigative liberation. Do you think that 28 days is sufficient in all cases? Please explain. There is no case for liberation to be for a period of 28 days. The Society agrees with Lord Carloway s recommendation that investigative liberation should only be granted on the basis that there remains reasonable cause to suspect the person of committing the particular offence and that when it is granted the police must provide a time and place for return to the police station when, of course their rights of access to a lawyer who would revive. Reference is made to Answer 10. The Society further believes that any conditions should be attached subject always to the suspect having a right to make an application to the Sheriff for a review of any liberation conditions. Question 12 Are there practical issues with the police advising the suspect of a time and place for a return to the police station, at the point investigative bail is granted? The Law Society of Scotland 2012 9
The continuing availability of legal advice will require to be considered by the police. The police are in a better position to answer on the practical issues which may arise. LEGAL ADVICE Question 13 What are your views on the recommendation for access to a lawyer to begin as soon as practicable after the detention of the arrested suspect, regardless of questioning? What do you see as the purpose of access to a lawyer when questioning is not anticipated? What do you consider to be the best way of providing legal advice for suspects as soon as practicable after detention, whilst ensuring it is effective, practical and affordable? The Society agrees with Lord Carloway s recommendation that access to a lawyer should be provided as soon as practicable after detention regardless of questioning. The Society believes that the lawyer should provide advice to a suspect even if no questioning takes place. There may be cases where the suspect should be advised to provide a voluntary statement. The Society refers to the case of Dayanan v Turkey app no. 7377/03 where the European Court of Human Rights in Strasbourg held on 13 October 2009 that the accused is entitled to access to a lawyer regardless of questioning. In potentially serious cases, personal attendance by a solicitor should take place as soon as is reasonable and practicable. With regard to other suspects, telephone advice from an enrolled solicitor may suffice subject always to the choice of whether personal attendance is required resting in all cases with the suspect. Question 14 The Law Society of Scotland 2012 10
Do you foresee any difficulties with the recommendation that the standard caution prior to the interviewing of suspects outwith a police station includes information that they have a right to access a solicitor if they wish? If so, please explain what these are. The Society notes the practical difficulties in securing the attendance of a solicitor who is in a position to provide legal advice to suspects outwith a police station such as having an interview with the suspect in private, the location of said interview and also the cost of interview there are significant resource implications which require to be addressed. Given that the Scottish Government agrees that the requirement for corroboration of evidence should be abolished, the importance of having legal advice available is even more crucial, even for those cases which do not involve an attendance at a police station. Question 15 Lord Carloway recommends that it is for the accused to decide on the way legal advice is provided (by telephone, in person etc.) and whether their solicitor is present during a police interview. Do you agree with this approach? If not, please give reasons. Are there any additional considerations for the form of legal advice when questioning is not anticipated? The Society agrees with Lord Carloway s recommendation that, subject to what is determined to be reasonable remuneration in legal aid cases, it is for the suspect to decide whether the advice from a lawyer should be provided in person, or by other means such as the telephone or internet video link and whether he/she requires a solicitor to be present during any interview. The Society notes, however, that with particular reference to legal aid, solicitors may be required to attend at police stations earlier and more often than at present. Also, the Society is concerned that existing legal aid regulations will not cover solicitors for attending in a number of the situations anticipated and that these are issues with clear resource implications which require to be addressed. The Law Society of Scotland 2012 11
Question 16 It is proposed that the right to waive access to legal advice, and the expression and recording of this, should be set out in legislation - do you agree? If not, please give reasons. Lord Carloway also proposes that this right can only be waived once a person is fully informed of the right - what are your views on this? The Society agrees that the right to waive access to legal advice, and the expression and recording of this should be set out in legislation. The Society also believes that right to waive legal advice can only be waived once a person is fully informed of the right. The Society suggests that reasons for the waiver are sought and recorded by the police and that this also should be set out in legislation. Question 17 Do you agree with Lord Carloway's recommendation that the practice of only enrolled solicitors giving advice to suspects should continue? If you disagree, please set out an alternative approach. Yes. The Society refers to paragraph 6.1.26 of Lord Carloway s Report in that there was considerable delegation to non-qualified staff or to agencies when Police and Criminal Evidence Act 1984 was first introduced in England and Wales and the use of non-qualified persons posed a problem in relation to the quality of advice being tendered which of itself in turn discouraged suspects from seeking advice. QUESTIONING Question 18 The Law Society of Scotland 2012 12
Do you agree that the police should be allowed to question a suspect after charge (subject to the permission of the court and any conditions they apply), as outlined in the recommendations? Please explain. No. The Society believes that questioning should stop when the suspect is arrested irrespective of whether there is any charge brought against him or her. The Society believes that there must come a point in time at which a person who could be held in custody for 36 hours (or more under present weekend conditions) cannot be questioned further, even if legal advice is available. The current Section 14 detention/arrest split in procedure adequately deals with this issue. Question 19 Do you agree that the procedure of Judicial Examination should be removed, whilst introducing provisions to allow the Crown to apply to the court to question a suspect after charge, as outlined in the recommendations? Please explain. No. There is no compelling case to change the current arrangements which allow questioning by the Crown and a declaration by an accused in appropriate cases. Question 20 Do you agree that the present common law rules of fairness concerning the admissibility of statements by suspects should be abolished in favour of the more general Article 6 test, as outlined in the recommendations? Please explain. The Society does not agree with this recommendation. The common law rules of fairness concerning admissibility are both practical and workable. The Law Society of Scotland 2012 13
The Society notes that Article 6 sets a minimum standard. The Society firmly believes that in the determination of admissibility of statements, Scots Law should offer a higher level of protection than the minimum possible required in order to comply with the ECHR. Otherwise we face the unwarranted removal of a further safeguard for those accused of crimes and risk further miscarriages of justice. CHILD SUSPECTS Question 21 Do you agree with Lord Carloway's recommendation that, for the purposes of arrest, detention and questioning, a child should be defined as anyone under the age of 18 years? Please explain why. Yes. As a result of the United Kingdom having ratified by the United Nations Convention on the Rights of the Child (hereinafter, the UN Convention ), all parts of the country, including Scotland, are bound by it. That instrument defines a child as a person under the age of 18. Other international instruments dealing with juvenile justice take a similar approach. Thus, defining a child as a person under 18 is required by international obligations. The Carloway Report goes on to review how a number of other countries have responded to these international undertakings and, while not all define a child so clearly, it would be desirable for Scotland to reflect the gold standard in demonstrating respect for children s rights. A point not addressed in the Carloway Report is the emerging research on young people and neurological development which is demonstrating that the human brain and particularly those parts of it associated with judgment and impulse control takes rather longer to mature than was thought previously. Not only has this been found to be relevant to decisions a young The Law Society of Scotland 2012 14
person may make about offending in the first place, but it is also relevant to how he or she may respond to questioning by the authorities at a later stage. Children and young people are empowered to make adult-type decisions in other legal contexts prior to reaching 18 years old. Often, the child s capacity here either relates so something of no great significance (common transactions) or operates subject to professional supervision (making a will, consenting to adoption, consenting to medical treatment). There are exceptions, of course, one being the young person s capacity to consent to marriage or civil partnership registration from the age of 16, but that is because the legal system recognises that young people may form strong personal relationships by that age and there is no benefit in denying them the opportunity to gain the legal protections associated with formalising such a relationship. In any event, such graduated empowerment is wholly consistent with the UN Convention since it reflects recognition of the child s evolving capacity (art 5). It might be argued that the corollary of graduated empowerment is graduated responsibility. However, experiencing the criminal justice system is not the same as civil empowerment since the short- and long-term consequences for the young person of a criminal conviction may be very serious indeed. In the criminal context, the UN Convention requires regard to be had to the desirability of promoting the child s reintegration and the child s assuming a constructive role in society (art 40(1). It is important that consideration is given to the civil/criminal distinction. It may be that 16 and 17 year-olds in the criminal context are more like the under-16s than they are like adults. Question 22 Do you agree that there should be a general statutory provision that, in taking any decision regarding the arrest, detention, interview and charging of a child, the best interests of the child shall be a primary consideration? Yes. How would such a provision work in practice? The Law Society of Scotland 2012 15
It can be anticipated that there may be some opposition to this proposal from those who, quite correctly, highlight the plight of the victims of crime or emphasise the myriad goals of the criminal justice system. Their concerns may be assuaged by noting the requirement here is that the best interests of the child would be a primary consideration not the primary consideration, far less the paramount consideration. It is encapsulated well in the Carloway Report where it explains the effect of making the best interests a primary consideration in the following terms: This does not mean that it is the only consideration or that it is, in all cases, the most important consideration. (para 6.3.15). Taking such an approach is wholly consistent with the requirements of the relevant international instruments and, in particular, the UN Convention. How such a provision would work in practice is a very difficult question and answering it would require analysis of all the permutations of decision-making (or a reasonable sample thereof) at the various stages of arrest, detention, interview and charging. The Society respectfully suggests that the Scottish Law Commission should provide comment on these issues raised by Lord Carloway. Question 23 Do you agree with the terms of the Report that the general role of the parent, carer or responsible person should be to provide any moral support and parental care and guidance to the child and to promote the child's understanding of any communications between the child, the police and the solicitor? Should the responsibilities of a parent, carer or responsible person be provided for in statute or achieved through guidance and the possible provision of support or in some other way? Parents obligations to the child are already provided for in the Children (Scotland) Act 1995. Of course, many parents are unaware of the 1995 Act s provision but, where that is the case, The Law Society of Scotland 2012 16
they are likely to be equally unaware of any new statutory provision. Much the same can be said for carers. With regard to other responsible persons, how far they understand their role may depend on who they are. While one might reasonably expect that a social worker, for example, would understand his or her function, the same may not be true of a relative who steps in because a parent is unavailable. Thought could be given to providing a simple, brief statement of the adult s role and making it available to the adult when he or she becomes involved the Society suggests that a postcard with bullet points could be handed out. Question 24 Do you have comments on the recommendation for children aged 16 or 17 years to be able to waive their right of access to a lawyer only with the agreement of a parent, carer or responsible person? It is submitted that 16 and 17 year-olds should be afforded the same protection as is proposed for the under-16s (question 26, below) by simply not being permitted to waive their right to a lawyer at all. Some parents are intelligent, engage and show sound judgment, while others are lacking in some or all of these qualities. It creates something of a lottery if the legal protection afforded to the young person by having a lawyer present depends on what kind of parent he or she has. Indeed, it may be adding a layer of disadvantage to a young person who has already suffered the effects of poor parenting. Question 25 Do you have comments on the recommendation for children aged 16 or 17 years to be able to waive their right of access to a parent, carer or responsible person, but that in such cases they must be provided with access to a lawyer? The Law Society of Scotland 2012 17
There seems less of a danger in permitting 16 or 17 year-olds to waive their right of access to a parent provided that access to a lawyer would follow automatically. The Society refers to its response to question 24 above, parents vary enormously and, indeed, a 16 or 17 year-old may be in an ideal position to assess how helpful his or her parent would be in the circumstances. Question 26 What are your views on the recommendation that children under 16 should not be able to waive their rights to legal advice? The Society agrees with Lord Carloway s recommendation that children under 16 should not be able to waive their rights to legal advice and believes that a consequence of such an interview should ordinarily render evidence obtained from that child to be inadmissible in subsequent proceedings. VULNERABLE ADULT SUSPECTS Question 27 Do you agree with Lord Carloway's recommendation that there should be a statutory definition of a "vulnerable suspect" Do you agree with the definition proposed by Lord Carloway? If not, what do you think the definition should be? The Society agrees with Lord Carloway s recommendation that there should be a statutory definition of vulnerable suspect but believes that the definition should be tied into the definition of vulnerable witness in terms of Section 271 of the Criminal Procedure (Scotland) Act 1995 in that there should be a significant risk that the quality of information to be given by the person will be diminished either by reason of mental disorder (within the meaning of The Law Society of Scotland 2012 18
Section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 or fear or distress in connection with answering questions. The Society is concerned, however, that Lord Carloway recommends that the definition should be, in broad terms, a person who, in the view of the police officer authorising the suspect s detention, is not able to understand fully the significance of what is said to him/her, of questions posed of his/her replies because of apparent (a) mental illness; (b) personal disorder; or (c) learning disability. The reason for the Society s concern is that a police officer may not be qualified or trained to recognise incapacity or mental disorders. The Society suggests that if police officers are to make such determinations then, as an absolute minimum, training and guidance should be provided to ensure that any initial determination of the suspect s vulnerability is well grounded. The Society has been made aware of recent guidance from Crown Office to Chief Constables, stating that any cases involving suspects of any age who require the support of an appropriate adult must be provided with access to a solicitor prior to interview and that they should not be allowed to waive this right. Question 28 Do you agree with Lord Carloway's recommendation that the role of an Appropriate Adult should be defined in statute? Do you agree with the definition proposed by Lord Carloway? If not, what do you think the definition should be? The Society agrees with Lord Carloway s recommendation that the role of an appropriate adult should be defined in statute and that with the definition as set out as being to assist in ensuring that the effective communication takes place between the suspect, the police and the suspect s solicitor (if any) and that the suspect is not disadvantaged, relative to the nonvulnerable suspect, in the detention and interview process by reason of his/her vulnerability. Question 29 The Law Society of Scotland 2012 19
Do you agree with Lord Carloway's recommendation that statute should provide that a vulnerable suspect must be provided with the services of an Appropriate Adult as soon as practicable after detention and prior to any questioning? If so, do you agree that the current role of an Appropriate Adult should be extended so that a vulnerable suspect can only waive their right of access to a lawyer if the appropriate adult also agrees to this? The Society is concerned that the proposal extends the authority of Appropriate Adult beyond that at which it is at present. The Society refers in particular to the United Nations Convention on the rights of persons with disabilities. Question 30 Do you agree with Lord Carloway's recommendation that statutory provision should be made to define the qualifications necessary to become an Appropriate Adult? If so, what steps do you think are required to decide what these qualifications should be? The Society has no particular view with regard to the definition of qualifications necessary to become an Appropriate Adult and suggests that the appropriate professionals - such as Local Authority Social Work Directors are best placed to determine as to what qualifications should be appropriate. The Society, however, does believe that it is important to ensure that any person attending in the role of appropriate adult is fully experienced in mental disorders and in dealing with persons who lack capacity and who fully understand that capacity can fluctuate given the particular circumstances. CORROBORATION Question 31 The Law Society of Scotland 2012 20
Lord Carloway concludes that the requirement for corroboration has no place in a modern legal system and should be abolished. Setting aside any question about whether this would require other changes to be made, do you agree with that conclusion? No. The Society refers to its general comments and regards the requirement for corroboration an essential safeguard the purpose of which is to protect against miscarriages of justice. The Society believes that there requires to be very good reason for the requirement for corroboration to be removed and does not believe that the case has been made. In particular, the Society refers to paragraph 7.0.6 of Lord Carloway s Report where it is stated that independent research was commissioned to assess the impact of corroboration in the progress of criminal cases through the system and that after thorough consideration of this research alongside all other information, evidence and submissions on the subject, the review is able to recommend with confidence that the system would be best served by removing the requirement. The Society believes that, with reference to Annex A of Lord Carloway s Report, this research was neither independent nor compelling. The Society understands that reasonable prospect of conviction is not a standard which has been utilised in Scotland before. The Society believes that on such a crucial issue, independent research should be commissioned by Scottish Government and respectfully suggests that such an issue should be properly considered by the Scottish Law Commission. The Society further notes that other safeguards incorporated in other criminal jurisdictions such as weighted majority verdicts and rules of admissibility of eye witness identification evidence and the possibility of withdrawal of unreliable evidence by a judge from a jury as safeguards are non-existent in Scottish Criminal Procedure precisely because there is a requirement for corroboration. The Law Society of Scotland 2012 21
It is for this reason that the Society reiterates its previously stated position that any change to the law in Scotland regarding corroboration requires to form part of a full scale review of Scottish criminal procedure and should under no circumstances be contemplated in isolation in order to prevent miscarriages of justice from taking place. Question 32 If the requirement for corroboration is removed, do you think additional changes should be made to the criminal justice system? If you think additional changes should be made, what specific changes would you suggest and why? For example, if altering the size of jury majority required or verdicts what would a new system require or include? What evidence do you have to support your position? With reference to question 31 above, the Society believes that a consequence of the removal of corroboration may be that cases are less likely to be thoroughly investigated by Procurators Fiscal taking into account resource issues and that there will be less evidence presented at trial. An additional change which should be considered is the power of the judge to remove a case from the jury as is the position in terms of Section 76 and 78 of the Police and Criminal Evidence Act 1984 with regard to confession evidence and unfair evidence. The Society notes that Scottish Government should commission proper research into the removal of the requirement for corroboration as referred to above in that, any change to the size of jury majority may well have resulted in acquittals in cases where there had previously been a conviction on a majority verdict. The Society believes that that it does not necessarily follow that removing the requirement for corroboration will result in more convictions if, as an additional change, the threshold for the majority verdict of guilty is raised. It is for this reason that the Society suggests that proper research into the finding of juries in Scotland be undertaken as there is at present no information available regarding jury verdicts in Scotland. The Law Society of Scotland 2012 22
As far as the Society is aware, no jurisdiction has ever carried out such a radical step as the abolition of a requirement for such a fundamental evidential safeguard as corroboration and accordingly no comparable experience can be cited save that in other jurisdictions the judge s power to remove evidence from a jury and either unanimous jury verdicts or weighted majority verdicts are in place. These proposals, in the Society s view, run the risk of changing the criminal justice system in Scotland from one that has strong safeguards for the innocent to one with weaker procedural safeguards. The Society notes that the presence of the corroboration rule in Scots Law has consistently been cited by successive governments as a reason for not introducing into Scots Law safeguards against wrongful conviction which are common in other jurisdictions. Removing the corroboration requirements without, as a minimum, reassessing the case for these other safeguards something which the Carloway Review failed to do would be wholly inappropriate. In summary, the removal of the requirement for corroboration will expose a large crosssection of the public, including police officers, prison officers, teachers, medical professionals, legal professionals and anyone who deals with the public on a one-to-one basis to the possibility of inappropriate prosecutions. OTHER CRIMINAL EVIDENCE ISSUES Question 33 Do you agree that the test for sufficiency of evidence at trial and on appeal should remain as it is now? If not what do you believe should change? The Society considers that corroboration is an integral part for the test of sufficiency of evidence at trial and on appeal and it is incorrect to suggest that the test at trial under appeal would remain the same in the absence of a requirement for corroboration as recommended by Lord Carloway. The abolition of corroboration would bring Scots Law into line with English Law and accordingly the Society notes that this would now be problematic given that the The Law Society of Scotland 2012 23
terms of Section 97D of the Criminal Procedure Scotland Act 1995 where a judge has no power to direct the jury to return a not guilty verdict on any charge on the ground that no reasonable jury, properly directed on the evidence, could convict on the charge and accordingly no submission based on that ground or any ground of like effect is to be allowed. Accordingly, on the basis that corroboration is to be abolished, it should be possible for a Court to sustain a no case to answer submission on the basis that no reasonable jury could convict on the evidence led as the Scottish Law Commission has previously recommended and as is already the case in English Law. (Report on Crown Appeals (Scot Law Com no. 212, 2008)) Question 34 Do you agree the rules distinguishing treatment of incriminatory, exculpatory and mixed statements should be simplified allowing the courts to assess them more freely? If you do not agree, should any other change be made regarding these statements? The Society has some concerns with regard to this proposal and notes that existing rules stem from the consideration of a 9 Judge bench in the case of McCutcheon v HMA 2002 SLT 27 regarding mixed statements. The Society believes that no compelling case for change has as yet been made out. The Society questions whether there is a proper basis for suggesting whether the nine judges in the McCutcheon case were in error in their decision. Question 35 Currently no adverse inference can be taken from an accused person failing to answer police questions. Do you agree that this should not change? The Law Society of Scotland 2012 24
Yes, the Society agrees that there should be no change to the law. Accordingly, the Society agrees with Lord Carloway s recommendation that no change is made to the current law of evidence that prevents inferences being drawn at trial from an accused s failure to answer questions during the police investigation. APPEAL PROCEDURES Question 36 Do you agree that time limits in appeal cases should be enforced? What sanctions do you consider might be appropriate? The Society, while noting that there are no time limits within which a Court must hear and determine an appeal and while recognising that some appeals are not determined expeditiously, does not agree that time limits in appeal case should be enforced. It is important to strike a balance between the administration of justice and the interests of justice in ensuring that justice is done. The Society recognises that it is of course preferable that appeals are dealt with expeditiously, but this should never be to the exclusion of an individual s right to receive a fair trial which also extends to appeal proceedings. In particular, a situation may arise where the applicant s failure to appeal on time is not his or her fault. Question 37 Do the amendments Lord Carloway recommends to sections 74 and 174 of the 1995 Act, together with the retention of the nobile officium, cover all situations in which Bills of Advocation and Suspension might reasonably be used? If not, what other situations can you envisage? The Law Society of Scotland 2012 25
The Society believes that there should be a procedure to review earlier decisions in every case and that there is no good reason for preventing the catchall system allowing for the general right of appeal. The Court at first instance could remain for matters of which leave must be granted such as pleas to the competency or relevancy, pleas in bar of trial and other preliminary issues. The Society identifies the main difficulty is having to obtain leave from the Court of first instance regarding appeals against preliminary rulings. For all remaining interlocutory appeals, a sifting system may well be the best option in order to allow access to justice within a reasonable timescale. Question 38 Do you have any comments on Lord Carloway's other recommendations for appeals? The Society has no other comment to make on Lord Carloway s other recommendations for appeals. FINALITY AND CERTAINTY Question 39 Do you agree that section 194C(2) of the 1995 Act should be retained and that there should be no further statutory listing of the criteria included in the "interests of justice" test for SCCRC references? No. The Society notes that the Scottish Criminal Cases Review Commission will take finality and certainty into account regardless of whether it requires to do so in legislation. Accordingly, the Society believes that Section 194C(2) of the 1995 Act is superfluous. Question 40 What are your views on Lord Carloway's recommendation that section 194DA of the 1995 Act should be repealed? The Law Society of Scotland 2012 26
The Society agrees with Lord Carloway s recommendation that Section 194DA of the 1995 Act should be repealed. Question 41 Do you agree with the recommendations that, when considering appeals following upon references from the SCCRC, the test for allowing an appeal should be: (a) there has been a miscarriage of justice; and (b) it is in the interests of justice that the appeal be allowed. If not, what do you think the criteria should be? No. While the Society welcomes Lord Carloway s recommendation to remove the High Court s gatekeeping role as outlined in Section 194DA, the Society does not agree with this recommendation. The SCCRC should be in a position to decide the interests of justice point or otherwise. The Society sees no merit in a repeal of Section 194DA of the 1995 Act as referred to above only to be reintroduced as an interest of justice test at the point when the appeal is to be determined. The Law Society of Scotland 2012 27
For further information and alternative formats please contact: Alan McCreadie Tel: 0131 476 8188 Email: alanmccreadie@lawscot.org.uk The Law Society of Scotland 26 Drumsheugh Gardens Edinburgh EH3 7YR www.lawscot.org.uk The Law Society of Scotland 2012 28