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.

Law & Order : Appeal Court judges criticised over drink driving verdict of sex attack victim

Three judges have been cricicised over their upholding of a conviction for drink driving of a woman trying to escape the scene of a sex attack.

The victim’s account of being forced into a gang rape situation is, reports the Scotsman “not in doubt”, but the original sheriff who ruled on her case and the three Court of Appeal judges, Lords Carloway, Emslie and Abernethy, argued she should not have driven off while under the influence. She should instead have used her mobile phone to call for help.

The Scotsman reports :

Judges in dock for verdict on victim of sex attack

Published Date: 19 April 2009
By David Leask

JUDGES were last night criticised for upholding the drink-driving conviction of a woman who used her car to flee the scene of a sex attack.

Victims' groups yesterday said the decision – by the Court of Appeal – was a huge blow to women trying to get a fair hearing from the justice system after suffering a sex attack.

The convicted drink-driver had argued she was "effectively" trying to escape from her attackers when she got behind the wheel while over the limit last year.

Her story – of being forced into non-consensual sexual activity with four men and then being indecently assaulted by one of them in her car – is not in doubt. But both the original sheriff in her case and the three judges sitting in the Court of Appeal, Lords Carloway, Emslie and Abernethy, argued that she should not have driven off while under the influence. She should instead have used her mobile phone to call for help, they said.

The woman was arrested near Falkirk in February 2008 after being found drunk behind the wheel in "a state of undress" and "a state of distress". She was convicted in July 2008 of drink driving by a sheriff who found her story "entirely credible and reliable".

The woman, who cannot be named for legal reasons, described how she found herself in a car in the parking lot of a social club in Falkirk with four men who, according to the court record, "made sexual advances towards her. She was sick. Said sexual activity was not consensual."

The record continued: "She was taken from the vehicle by one of the males and placed within her own car. Said male indecently assaulted her. She was sick. She was partially dressed and in a state of distress.

"The male left the car and returned to the social function." The woman, described by court insiders as "very intelligent", said she felt under threat and drove off. She was then stopped by the police, around two miles away from where the attack took place, and found to be just over the drink-driving limit.

Later, in court, advocate Andrew Brown, instructed by Falkirk firm Nelsons, argued a "defence of necessity" – a defence not normally recognised in Scots Law – saying that she had no choice but to drive away from danger.

The original sheriff, however, argued that the woman was not in immediate danger because her attackers had gone back into the social club and she could have used her phone to call for help.

He convicted her of driving under the influence but decided not to strip her of her licence given the circumstances. His decision was upheld by the Court of Appeal, which agreed that the woman should have taken "any reasonable alternative to offending behaviour"; in this case, phoning for help rather than driving off.

Their findings were yesterday criticised by experts in sex crimes, who said that few victims would have been able to think straight immediately after an attack as horrendous as the one suffered by the woman.

Mhairi McGowan, a prominent campaigner who runs the Assist programme for the victims of domestic violence in Glasgow, yesterday said she was "very disappointed" with the judgment.

She said: "It just doesn't take into account the reality of finding yourself in that situation.

"I think it's totally unreasonable to expect that after having been assaulted and in a state of undress you could be expected to stay in the very same place that you were assaulted and phone someone. Every instinct would be telling you to run, to get away as quickly as possible.

"Who's to say those men who assaulted you would not come back? They did after all go back to the social function.

"If the woman had phoned the police, how long would it have taken for them to arrive and when they did, would she have been believed?

"There were four of them and only one of her. The Sheriff and the Appeal Court have shown some understanding but, unfortunately, not enough."

The woman's MSP is Cathy Peattie, who also happens to chair the Scottish Parliament's cross-party group on male violence to woman and children. Peattie yesterday said: "This dreadful case emphasises that the Scottish criminal justice system remains unaware of many of the issues surrounding sexual violence against women."

Peattie was backed by Sandra White of the SNP, who said: "The perception really is now that sheriffs and judges don't take account of how a woman feels after she has been sexually assaulted, not just how she physically feels but her state of mind too. Sometimes I don't think the judges live in the real world."

In February an acting judge locked up an alleged rape victim overnight after she became too distraught to give evidence in his Edinburgh court.

Roger Craik was later told that his detention of Ann Robertson was "disproportionate" but will face no further action. Scotland has one of the lowest conviction rates for rape in Europe, just 2.9%.

'A harsh decision'

Psychologist Mairead Tagg writes:

This was a harsh decision. It appeared to take the view that the woman was immediately able to calm down and think clearly.

One of the main problems I have had in court is the real lack of understanding about people's behaviour when they have been traumatised. There needs to be a lot more knowledge and understanding about that. Otherwise we are going to see a lot more women being punished for being brutalised.

This is a case of a woman who was convicted of drink-driving after using her car to get away from the scene of an indecent assault. The courts have taken the view that, since she was not in immediate danger, she should have used her phone to call for help. But that is not how people react to a trauma. The conviction is harsh. This is why.

From a psychological perspective someone who has just been sexually assaulted will have a psychological reaction that is likely to result in all decisions being made in the emotional right side of the brain, rather than in the logical left cortex.

It is also fact that when people are traumatised the language centres of the brain close down. Her flight response was a far more likely outcome than calling a friend. Using the phone would be a logical thing to do, and she was not acting logically.

Mairead Tagg is a psychologist who works for Glasgow East Women's Aid, specialising in providing support to women and children who have suffered domestic and other abuse.