Wednesday, November 20, 2013

Selective Evidence : Lord Advocate demands MSPs remove corroboration of evidence justice safeguard to give Crown Office 'a better conviction rate'

Lord Advocate Frank Mulholland

Desperately seeking prosecutions - Lord Advocate prefers dirty evidence for a result. SCOTLAND’S top law officer, Lord Advocate Frank Mulholland who heads the Crown Office & Procurator Fiscal Service (COPFS) has told MSPs on the Scottish Parliament's Justice Committee that Corroboration, a long held safeguard in Scots law requiring evidence from two separate sources for a conviction should be removed from the justice system to give Prosecutors a better chance of securing convictions, even if the evidence is dodgy and cannot be trusted.

While claim & counter claim rage over the debate about corroboration and whether it should remain or stay in the justice system, it is now generally accepted by all with a clear legal head and understanding of the pros & cons that the Lord Advocate and Crown Office and want corroboration scrapped due to mounting evidence Prosecutors are just not up to the job of catching criminals.

Over the years it has become clear that Scotland’s overfunded Crown Office which soaks up over £100 million each year in taxpayer funds, regularly fails to secure convictions in rape cases because of poor presentation of evidence, poor interviews with victims and poor quality investigations into rape and abuse cases.

Lord Advocate demands removal of corroboration safeguard (Click to watch)

With the Justice Committee scrutinising the Bill, the Lord Advocate Frank Mulholland explained to MSPs he supported abolishing corroboration because it could make it easier to prosecute offences such as domestic abuse, sexual abuse and rape, where often evidence only comes from the victim.

When asked for his view on the proposal, the Lord Advocate said: "I support it and I support it for quite a particular reason. Prosecutors see the effect of the rule of corroboration on certain areas of criminal offending, in particular sexual offending, including rape and domestic abuse."

Mulholland claimed : "I have never said the abolition of corroboration was all about increasing the conviction rate, I see it as access to justice for the victims of domestic abuse, rape and sexual offending. It seems to me that is something any modern criminal justice system should have."

Mr Mulholland said that in 2012-13 there were 2,803 charges of domestic abuse which could not be taken to court because there was insufficient admissible evidence.

He told MSPs: "That I would suggest is a matter of real concern, that we are not giving the possibility of access to justice for a sizeable proportion of victims in those charges."

He also said that over the last two years about 13% of rape cases - approximately 170 - reported to the Crown could not be proceeded with because of the requirement for corroboration, although there are claims & counter claims over how the Crown Office have manipulated the figures & statistics on these cases to use in their fight to remove what are long held legal safeguards against miscarriages of justice.

Citing an example of an abuse case which COPFS failed to prosecute, Mulholland told the Justice Committee : "I had a case where two sisters had been horrifically sexually-abused as children over a period of many years by a relative, a member of the family. The girls were told no-one would believe them if they spoke up, that no-one would love them if they spoke up. So, they didn't speak up. But eventually as adults they got the courage to speak up and make a complaint to the police.”

Mulholland continued : "We took the case up, we indicted the case in the High Court and we were prepared to proceed to trial. But one of the complainers, one of the victims, mentally could not go ahead with it.We tried to support that victim through the process, give her as much support as was necessary. But at the end of the day we couldn't force that woman to give evidence. The effect of that meant the whole case fell. That, to me, is something this Parliament, the committee, the public at large, should be concerned about."

However, critics of the Lord Advocate rounded on his claims the Crown Office supported victims of abuse, pointing to other abuse cases Prosecutors are alleged to have failed to act on, such as in the case of Hollie Greig, a downs syndrome victim who reported incidents of abuse to authorities and received compensation payments on account of evidence presented, yet strangely no one was prosecuted for the abuse.

In the case of Hollie Greig, which involved allegations against Scotland’s former Lord Advocate now Dame Elish Angiolini DBE QC (born McPhilomy), Prosecutors decided to jail the journalist and campaigner Robert Green for handing out leaflets questioning the Crown Office decision not to go ahead with a prosecution of persons accused of child abuse.

Countering arguments put forward by the legal profession for the retention of corroboration, Mr Mulholland said: "I respect people in the legal profession, their views, I respect judges' views. Everyone involved in the criminal justice system has an opinion on this. But they are not seeing the cases which cannot be taken up because of the requirement for corroboration. It's police and prosecutors that are seeing this."

Justice Secretary Kenny MacAskill has pledged to press ahead with the proposal to abolish corroboration, which is included in the Government's Criminal Justice (Scotland) Bill. In an attempt to cover up for persistent failures of Prosecutors and the Crown Office to engather evidence of crime and prosecute cases in a competent manner, MacAskill said last month the requirement to have evidence from two separate sources resulted in "the inability to prosecute offences and the denial of justice for too many".

While most of the legal profession and the judiciary are opposed to the removal of corroboration, Justice Secretary MacAskill insisted: "Laws are made by parliament, not one profession. This is about justice in our communities, not a debate between learned legal friends."

Speaking for Justice Secretary Kenny MacAskill, a Scottish Government spokeswoman said: "We remain committed to abolishing the requirement for corroboration, as recommended by the Lord Justice Clerk, Lord Carloway, in his wide-ranging review of Scots law and practice.

"Our proposals are supported by the Crown Office, Police Scotland and a range of victims' organisations including Victim Support Scotland, Scottish Womens' Aid and Rape Crisis Scotland, and are designed to make our justice system fit for the 21st century.

"As the Lord Advocate said at the Justice Committee today, abolishing the requirement for corroboration is about ensuring access to justice for victims. He gave compelling and real-life experiences of the negative impact the rule of corroboration currently has on victims. This is a barrier to justice that does not exist in any other jurisdiction in the western world.

"There is no evidence that other legal systems have an issue with miscarriages of justice due to the absence of this rule. The high standard in criminal cases of proof beyond reasonable doubt will remain."

Lord Hope – removal of corroboration is potentially dangerous LORD HOPE, who previously served as Lord Justice General of Scotland and Lord President of the Court of Session, and until June was deputy president of the UK Supreme Court has criticised plans by the Scottish Government to remove the long held safeguard of corroboration in criminal trials, where evidence is needed from two separate sources for a conviction.

In an interview for Holyrood Magazine, Lord Hope described the proposal contained in the Criminal Justice (Scotland) Bill, to abolish corroboration, as “potentially dangerous”.

The drive to remove corroboration primarily comes from the Crown Office & Procurator Fiscal Service (COPFS) who are hungry for increasing their statistics of successful prosecutions, whether the accused is actually guilty of a crime or not.

Speaking further to Holyrood Magazine, Lord Hope went on say : "I just express concern that the proposal seems very far-reaching and, potentially, quite dangerous if you have a situation where somebody is at risk of being convicted on his own confession which I would have thought was absolutely fundamentally wrong in Scots law.

"It may be that the number of cases that go to trial now on confessions are comparatively few, but we developed our law of corroboration initially as a barrier against people being taken to court on a confession which had been extracted by torture.

"This is in the early 18th century when things were very, very different, and people reacted against this, and I'd be very sad to see that kind of protection go."

It should be noted Scottish Law Reporter supports the retention of corroboration, and has reported on the issue in previous coverage HERE

1 comment:

Anonymous said...

Could the real problem not be with Corroboration or lack of it but more to do with Scotland's Prosecutor's lack of skill?