Friday, November 18, 2011

Is Scotland’s criminal justice system ‘too Victorian’, ‘too easily manipulated’ for corroboration to be axed in Carloway Review recommendations ?

High Court judge Lord Carloway was asked to review Scotland’s criminal justice system. THE CARLOWAY REVIEW of Scotland’s criminal justice system by High Court judge Lord Carloway, commissioned by Justice Secretary Kenny MacAskill in 2010 has now been published, recommending key changes to the Scots legal system such as limiting the period of arrest before charge to twelve hours, the right to legal advice when taken into custody (coming on the heels of the HMA v Cadder ruling at the Supreme Court in London), and more controversially, the loss of corroboration, a major cornerstone of how criminal cases in Scotland are prosecuted where two witnesses or two or more separate sources of evidence are required to substantiate the essential elements of the charge before anyone can be convicted on that charge.

While the Scottish Government and Crown Office are keen to lose corroboration, apparently solely on the basis it will allow more prosecutions of cases the Crown currently claim do not proceed to court (rather than perhaps indicating the COPFS are not really up to their job of prosecuting cases honestly and leaving some room for criticism of Police tactics in certain investigations), others including senior legal figures claim, with some degree of certainty, that some of the changes proposed, including the loss of corroboration will increase injustice in Scotland, rather than bring a fairer justice system as the Scottish Government are claiming.

Key recommendations include:

The right to legal advice when taken into custody

Limit the period of arrest before charge to 12 hours

Particular protection and rights for children and vulnerable adults

Greater powers for police to conduct structured investigations

Less restrictive rules around evidence and a removal of the need for corroboration

Adjustments to the relationship between the Scottish Criminal Cases Review Commission (SCCRC) and the High Court

The full Carloway Review can be read online here: Carloway Review Report & Recommendations 2011 along with the Executive Summary and Lord Carloway's statement or can also be downloaded as pdfs from the Scottish Government website here : CARLOWAY REVIEW DOWNLOADS (Scottish Gov links are not always available as they like to vary or delete the links to stop people finding this kind of stuff – Ed)

Creating a Fair Justice System for the 21st Century

A package of proposals to overhaul Scots criminal law is being unveiled today following a year-long independent review by the High Court Judge, Lord Carloway. The Carloway Review was commissioned last year by Justice Secretary Kenny MacAskill. Lord Carloway's Report follows an extensive research and consultation process, supported by a full time team and assisted by a Reference Group of practitioners and experts in the field of criminal law. The outcome is a thorough and meticulous Report which sets out a powerful case for radical and substantial changes to the system, and details 76 recommendations to put these into practice.

In his statement launching the report, Lord Carloway says: "The task facing the Review was to identify how criminal law and practice in Scotland, from the moment a suspect is identified right through to the consideration of any appeal and beyond, should be re-cast to meet the challenges and expectations of modern society and legal thinking.

"The Report recognizes that it is not starting from a blank sheet of paper. It cannot effect total reconstruction, riding roughshod over sound existing traditions. The recommendations therefore seek to mould new elements and new thinking with existing practices in order to create a more robust, revitalised and modern system. In particular, they seek to re-structure and reinforce the system's foundations by instilling a human rights approach in larger measure and at greater depth. The aim is a system that not only surpasses minimum requirements today, but also stands up to developments for the foreseeable future."

Under the changes recommended by Lord Carloway, the revised criminal justice system will start from a simplified, unitary system of arrest, on reasonable grounds for suspicion, and detention. An arrest will trigger a set of rights for the suspect securing access to a lawyer, with particular protections for child suspects and vulnerable adults, to ensure that any proceedings against the suspect constitute a fair trial. It will also entail a system in which a suspect being charged should be brought before the court within 36 hours of arrest. Alongside this the police will have greater powers to conduct a structured investigation, with the ability to liberate a suspect on condition they return for later questioning, with other unnecessary constraints on questioning removed, subject to the supervision of the courts. This will give the police time to pursue further investigations other evidence such as phone records or DNA evidence.

Similarly, there will be a less rule-bound approach to the evidence gathered. Judges and juries should assess the quality and relevancy of evidence, free of the current restrictive rules and principles, such as the general requirement for corroboration, that belong to an earlier age and, as research has indicated, may now operate as an impediment to justice. And if a judicial decision at first instance is to be challenged, there will be a single, streamlined and well-regulated appeal process to follow, rather than the various and archaic procedures currently in place. The Scottish Criminal Cases Review Commission will be reinforced as the final safeguard against miscarriages of justice.

Lord Carloway has acknowledged the potential impact the Report may have, saying "I do not underestimate the size of the steps I am recommending. However, I hope and trust that this Report will make a significant contribution to the development of a modern, fair, effective and distinctly Scottish criminal justice system for the future."

Justice & Scots expectations to the right of a fair trial is not like picking up a 2 for 1 at the local brewery : Justice Secretary Kenny MacAskill. Welcoming the Carloway review on behalf of the Scottish Government and prior to taking a hatchet to the rights of Scots to expect a fair trial in Scotland’s at best, inconsistent criminal courts, Mr MacAskill said: "I am grateful to Lord Carloway for this weighty and authoritative review which takes a long-term view on our criminal justice system and how it can be reformed and improved for Scottish citizens. Following the UK Supreme Court's ruling on the Cadder case last year, we immediately passed emergency legislation to protect the victims of crime and make sure our police could continue to investigate crime effectively. In addition to the emergency legislation, the Lord Advocate also acted early to protect live cases ahead of the Cadder ruling.”

Mr MacAskill continued, at length (sadly) : "We continue to work closely with our criminal justice partners to ensure that Scotland has a modern robust justice system fit for the 21st century. I am grateful for the committed engagement of police, prosecutors and defence agents in implementing the necessary changes to date. The Carloway Review builds upon the actions we took last October and will frame longer term reform. The recommendations are far reaching and, while respectful to traditional systems that have served us well over centuries, seek to reshape and respond to present-day obligations and expectations.”

"The Carloway Review is very welcome; it gives us considered advice on how we ensure our justice system continues to cope with unprecedented pressures and offers long lasting solutions to some of the challenges we face. I look forward to considering these significant recommendations in detail as a basis of making further and wide reaching improvements to Scotland's distinct justice system."

The Law Society of Scotland raised serious concerns regarding the recommendation to dump corroboration in their own statement issued to the media :

Removal of corroboration raises grave concerns, warns Law Society

The Law Society of Scotland today welcomed the publication of the Carloway Review (17 November 2011), but raised serious concerns over the proposal to remove the requirement for corroboration in Scots law.

Law Society of Scotland President Cameron Ritchie. Cameron Ritchie, President of the Society and member of the working group that considered the Review said "We congratulate Lord Carloway on his detailed and authoritative report that provides a vast range of recommendations, the details of which will need to be worked out. However, we have grave concerns in respect of the proposal to abolish the requirement for corroboration. Before taking the radical step of abolishing what has been an integral part of Scots criminal law since time immemorial, there would have to be an overwhelming case for that change presented and in our opinion the review in itself does not achieve that. We believe there is a case for a wider and broader based review of the law of evidence and criminal procedure.”

Ritchie continued: "We are however pleased to see that the report recommends the introduction of police bail and the reduction of the maximum detention period without charge to 12 hours. The introduction of greater support for vulnerable suspects is also good to see and we are very supportive of a 'letter of rights' being introduced, and look forward to working with the relevant parties to work out the detail of that."

The Review started in November 2010 as a part of the Government's response to the Cadder decision on the right of suspects to receive advice from a lawyer before police questioning. Lord Carloway's consultation ran 8 April - 3 June 2011.

1 comment:

Anonymous said...

If truth be told; the Crown Office have used 'insufficient corroboration' as a convenient excuse NOT to prosecute sensitive cases or cases involving lawyers.

It has been too easy for the Crown Office to defeat the ends of justice by hiding legitimate behind this category and by removing this caveat makes it harder for the Crown Office to deceive the public any longer.

A good thing surely?

Once the new rules on corroboration are adopted, there should be a independent review carried out of cases refused to go forward to prosecution based on this criteria over the past 10 years, to determine how many cases were wrongly hidden from prosecution under this criteria.