Caution, amateur at work - Justice Secretary launches another consultation aimed at loading the dice in court. THE Scottish Government has today launched a Consultation on additional safeguards to the legal system, issuing new proposals which include ending the not-proven verdict, increasing the jury majority required to return a verdict and increasing the powers of trial judges to abandon cases if they feel there is a lack of evidence. The move comes after stinging criticism from all quarters of the justice system against proposals put forward by High Court judge Lord Carloway in his Carloway Review Report & Recommendations 2011 which put forward proposals that appear to give Scotland’s institutionally corrupt Crown Office & Procurator Fiscal Service (COPFS) an unfair edge in criminal prosecutions by removing long held safeguards & procedures in criminal trials.
However, one of the key controversial recommendations of the Carloway review, the ending of corroboration – a move which is being opposed by most of Scotland’s legal fraternity and the remainder of the judiciary appears to be still on the table, according to a lengthy statement issued by Scotland’s five years in the job too long Justice Secretary Kenny MacAskill, who said earlier today : “I agree with Lord Carloway’s recommendation that the requirement for corroboration should be abolished. The rule stems from another age, its usage has become confused and that it can bar prosecutions that would in any other legal system seem entirely appropriate.”
Responses to the Carloway Report from Scotland’s legal establishment almost unanimously opposed the judge’s plan to remove corroboration, and among those opposing the plan were Lord Carloway’s own colleagues in the judiciary reported here along with allegations of anger within the Crown Office, who are lobbying for corroboration to be dropped so they can obtain a higher conviction rate, even on the flimsiest of evidence.
Speaking to Scottish Law Reporter earlier today, a legal insider described Mr MacAskill’s moves as “amateurish” and little more than an attempt to appease and bolster the success rate of Scotland’s lacklustre prosecution service, the Crown Office.
He said : ”The SNP’s proposals to tinker with the justice system appear to have but one interest in mind, that of improving the Lord Advocate’s prosecution statistics at the expense of ensuring accused persons get a fair trial in Scotland.”
No one from the Scottish Government was willing to give further comment.
The Scottish Government issued the following Press Release : New safeguards for legal system proposed
New proposals for safeguards to the legal system are being proposed in the light of the responses to the Carloway consultation, published today.
The consultation responses show majority support for almost all the recommendations proposed by the independent review of Scottish law and practice, led by senior high court judge Lord Carloway.
However, while third sector organisations such as Rape Crisis and Victim Support were in favour of abolishing the requirement for corroboration, the majority of respondents from the legal profession were not in favour of this proposal. A large majority of respondents felt that safeguards should be put in place if corroboration was abolished.
Given this, the Scottish Government is today beginning a further consultation on what these additional safeguards might be.
The Scottish Government is now seeking views on:
proposals to increase the jury majority required to return a verdict;
to widen the trial judge’s power to rule that there is no case to answer and
on whether the “not proven” verdict should be abolished.
Currently a jury in Scotland can convict on a majority of 8 of 15 jurors. The consultation is now seeking views on whether this should be changed to require a majority of 9 or 10 of 15 jurors to return a verdict.
We are also consulting on plans to provide the trial judge with a power to withdraw a case from a jury on application by the accused where the judge considers that, on the basis of the evidence led, no reasonable jury could convict.
Lord Carloway stated in his report that, in the event that it was proposed to look at jury majorities, it would also be necessary to consider whether the ‘third verdict’ remained appropriate, and we are inviting views on this issue.
Justice Secretary Kenny MacAskill [issued an even longer winded than usual statement, saying: “When we consulted on Lord Carloway’s findings, we made clear that we were open to considering whether any additional changes to the justice system would be required in the light of his recommendation that the requirement for corroboration should be abolished.
“It is clear from the consultation responses we have received that the great majority of respondents think that it is necessary to consider additional safeguards, and they have highlighted, in particular, the question of jury majorities and the ‘not proven’ verdict.That is why I have decided that a further consultation on these additional safeguards to the legal system is needed, to ensure that Scotland can continue to have a legal system that is rightly regarded as one of the best in the world.
“I agree with Lord Carloway’s recommendation that the requirement for corroboration should be abolished. The rule stems from another age, its usage has become confused and that it can bar prosecutions that would in any other legal system seem entirely appropriate.
“I am confident that in a system without a requirement for corroboration we would continue to see police and prosecutors striving to find the best evidence that can practically be made available to the court. I trust Scottish judges and juries would continue to apply good judgement and would only convict on the basis of clear evidence.”
The review of the legal system, led by Lord Carloway, looked at a range of aspects of Scottish criminal law and practice in the aftermath of the Cadder decision, that detention of suspects by the police for up to six hours without access to legal advice did not comply with the European Convention on Human Rights (ECHR).
A consultation on Sheriff and Jury reform is also being published today. The consultation document seeks views on implementation of Sheriff Principal Bowen's key proposals and also includes draft bill provisions. It is intended that these provisions will be introduced to Parliament in the upcoming Criminal Justice Bill along with Lord Carloway’s recommendations.
The Bowen reforms seek to ensure that procedures in place in criminal courts for dealing with accused in sheriff and jury cases are as effective as they can be. The changes propose moving to a system where there is earlier and improved communication between the parties involved, active judicial case management and greater control by the court on the programming of cases.