Corroboration to remain for now: Holyrood’s Justice Committee rebel against MacAskill’s ‘mad plan’ to remove Scotland's safeguard against miscarriage of justice

Corroboration to stay for now, says Justice Committee report. CORROBORATION, a long held safeguard against miscarriage of justice in Scots law where evidence in a criminal trial is required from two separate sources for a conviction, is to remain for now. The news comes as the Scottish Parliament’s Justice Committee have suggested Justice Secretary Kenny MacAskill ditch his plans to abolish corroboration in an effort to assist the Crown Office in obtaining higher rates of convictions, even where evidence is dodgy or practically non existent.

News of today’s development came after it was made clear in a report published today by the Scottish Parliament indicated that the majority of members of Holyrood’s Justice Committee, chaired by Christine Grahame MSP (SNP), did not support the much vaunted ‘reform’ put forward by MacAskill, who has served an unprecedented seven years as Scotland’s often accident prone Justice Secretary.

Contrary to much of the lobbying put out by the Crown Office and ‘campaign’ groups with a vested interest in removing Corroboration from Scots Law, the fact is that this long held safeguard against miscarriage of justice cuts across all criminal prosecutions, and not just rape or sexual offence cases, as anyone with an actual understanding of the law and a clear head will know.

Christine Grahame MSP: ‘Justice Committee Not Convinced Over Corroboration’

In response to the Justice Committee's rebellion against Mr MacAskill’s ill advised plan to remove corroboration, the Scottish Government have announced an inquiry to be led by former High Court judge Lord Bonomy, who will look at safeguards needed if corroboration is eventually abolished.

The terms of reference for the group headed by Lord Bonomy include consideration of the following areas:

• Whether a formal statutory test for sufficiency based upon supporting evidence and/or on the overall quality of evidence is necessary

• Whether any proposed prosecutorial test or a requirement for publication of any such test should be prescribed in legislation

• The admissibility and the use of confession evidence

• The circumstances in which evidence ought to be excluded

• The practice of dock identification

• Jury majority and size

• The future basis and operation for a submission that there is no case to answer at the end of the prosecution case

• Whether a judge should be able to remove a case from a jury on the basis that no reasonable jury could be expected to convict on the evidence before it

• Whether any change is needed in the directions that a judge might give a jury, including a requirement for special directions in particular circumstances

• Whether any additional changes are required in summary proceedings.

Appeals are not expected to be considered by the review as they are for wider consideration, not related specifically to corroboration.

The group is expected to take a year in its deliberations. Any necessary legislative and practical change to be taken forward on the back of its recommendations will then be subject to full Parliamentary scrutiny and commenced alongside the provisions in the Criminal Justice Bill, abolishing the corroboration requirement – which as before, is intended to take place in the financial year 2015-16.

Commenting on the plans announced by the Scottish Government, Lord Gill, Scotland’s top judge said: “I am grateful to the Cabinet Secretary for his sensitive response to the widespread discussion of this proposal, and for his usual courtesy in letting me see the terms of reference before they were finalised. The proposed review will enable this issue to be looked at at greater length by a body of experienced professionals. The terms of reference should allow a thorough consideration of the issues. I am pleased that Lord Bonomy has agreed to Chair the Review and I look forward to seeing the results of the Review’s work.”

In October of last year, Scotland’s top judge gave evidence to the Justice Committee, reported HERE, defining corroboration as one of the "finest features" of the country's justice system.

The Lord President’s testimony at Holyrood backing the retention of corroboration came after a terse Lord Advocate Frank Mulholland appeared before MSPs, demanding the lifting of corroboration to enable often incompetent prosecutors to gain higher rates of convictions for cases the Crown Office & Procurator Fiscal Service (COPFS) more often than not fail to take to court for one excuse or another.

And, contrary to intense lobbying by the Lord Advocate, Police Scotland, and campaign groups, it is widely known in the legal system the regular failures by COPFS in cases involving sexual offences are mostly due to the fact evidence and statements in such cases are so badly handled by prosecutors and Police, it is unlikely a prosecution could be presented in a court of law without incurring regular criticism from the benches of COPFS and the Lord Advocate himself.

The Criminal Justice (Scotland) Bill, which includes proposals to abolish the requirement for corroboration, is currently at Stage 1 in the Parliamentary process. Further information on the Bill is available from:HERE

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

BBC News reports further: Ditch corroboration plans, say Justice Committee MSPs

MSPs have suggested ditching controversial plans to abolish the requirement for corroboration from criminal justice legislation. It emerged that the majority of Justice Committee members do not support change.

The government said an inquiry led by former high court judge Lord Bonomy would look at safeguards needed if corroboration was abolished.Opposition leaders called on ministers to wait until after the inquiry. The reform is included in the Scottish government's Criminal Justice Bill.

Justice Secretary Kenny MacAskill said he remained "committed to this essential and long-overdue reform as the corroboration rule can prevent strong cases which could be prosecuted in other jurisdictions from being taken forward".

He added: "Scotland is the only country in the world which has been identified as having the requirement and this is acting as a barrier to justice and denying too many victims their opportunity to have their day in court."

But MSPs on the Justice Committee said they were "concerned that the case for abolition has paid insufficient regard to the importance of this requirement within the Scottish criminal justice system".

Opposition party leaders pressed First Minister Alex Salmond during his weekly question time to delay abolition until Lord Bonomy's inquiry had concluded.

Scottish Conservative leader Ruth Davidson said: "What we as members are being asked to do is to vote through a bill which we know to be deeply flawed on the grounds that Kenny MacAskill says he'll sort it later. "There is an obvious solution here. Leave the scrapping of corroboration out of the bill. "Ask Lord Bonomy to report on the whole issue and then let us look at it again."

Liberal Democrat leader Willie Rennie argued: "Appointing Lord Bonomy doesn't restore justice, it simply papers over the cracks with a veneer of respectability." He urged the first minister to overrule his justice secretary "before he does serious damage".

But Mr Salmond responded: "It's not a quick fix, it's a distinguished judge who's looking to make absolutely certain that as this change is made, appropriate safeguards are there to prevent miscarriages of justice."
'Archaic rule'

The committee has been scrutinising the Scottish government's Criminal Justice (Scotland) Bill, which includes plans to abolish the centuries-old requirement for corroboration - which means that currently evidence against an accused person must come from more than one source.

One of Scotland's top judges, Lord Carloway, called for the change in a review of the criminal justice system, insisting corroboration was "an archaic rule that has no place in a modern legal system".

Supporters include the police, victims' groups and prosecutors. Some have argued that the removal of corroboration could also help widen access to justice for victims, particularly in cases of rape and domestic violence.

Opponents, including many from within the legal profession, have said it could lead to rises in miscarriages of justice. Justice Committee convener Christine Grahame said the proposal had divided opinion among the MSPs.

The SNP MSP said: "The committee could not reach agreement on whether removing such a significant and integral part of the criminal justice system would improve 'access to justice' for victims of sexual offences in a meaningful way or indeed secure more convictions. "Some therefore asked the cabinet secretary to consider removing the relevant sections on corroboration from the bill. "Others felt that the case had been proved."

Ms Grahame also said the Scottish government needed to provide "much more information on its plans to review additional safeguards" before the Scottish Parliament as a whole voted on the general principles of the bill.

Mr MacAskill said he noted the committee's recommendations and hoped its members would "welcome today's announcement on safeguards".

He said: "I have always been clear that we are willing to listen and to work with stakeholders on building further safeguards into our reforms. "I therefore welcome the fact that Lord Bonomy has agreed to chair this reference group. "I am confident that he and his team will carry out a robust and thorough exploration of any additional safeguards which may be required in the light of the corroboration requirement being abolished."

The group is expected to take a year for its deliberations, and will not make any recommendations before the bill is voted on at Holyrood.

MSPs gained little from Lord Gill in private meeting as Scotland’s top judge battles Holyrood call for judicial transparency & register of interests

Click to watch: little gains from Lord Gill at private meeting with MSPs. IT HAS EMERGED Scotland’s top judge, Lord Brian Gill held a private meeting with two MSPs from the Scottish Parliament’s Public Petitions Committee who are currently investigating calls to create a register of judicial interests in Scotland. The meeting, of which there is now a debate about exactly what was recorded, what was left out and whether or not the Lord President objected to notes being taken at all, was discussed at last week’s Public Petitions Committee hearing on Tuesday the 28th January.

AND, contrary to claims of progress, discussions on what gains had emerged from the  private meeting between Gill, Petitions Committee Convener David Stewart and Deputy Convener Chic Brodie, now appear to show the Lord President led the two msps into believing a small change in how the lumbering Scottish Court IT database reports information on recusals might suffice as an improvement enabling data to be made more public even though in many cases where counsel have dared to raise the issue of a recusal, no note of what was said, or any reference has in fact been placed on the official record or within the IT database referred to during the committee’s discussions.

The situation on a further point, relating to declarations by judges Gill, Carloway, Sheriff Principal Alistair Dunlop and judicial colleagues who serve on the board of the Scottish Court Service also became murkier when it was claimed that information of this nature had come as a revelation to the msps who privately met the Lord President and would be part of an expected letter from Gill to the Petitions Committee.

However, clerks to the committee have since confirmed the information on Gill’s SCS Board disclosures, which are of a narrow focus and limited declaration, was already on the Scottish Parliament’s website and was referred to in briefing notes for the Petitions Committee months before the private meeting with Gill took place.

Sunday Herald reports:

Scotland's top judge offers tiny concession as calls grow for judicial transparency

Paul Hutcheon
Sunday 2 February 2014

SCOTLAND'S top judge, who refuses to back a register of interest for members of the judiciary, has conceded a minor reform to boost transparency.

The Lord President, currently Lord Gill, is looking at pulling together information about judges declining to rule on cases due to a perceived conflict of interest.

MSPs who have criticised the lack of openness in the judiciary welcomed the shift in direction.

Holyrood's Public Petitions Committee is considering a proposal that would require judges and sheriffs to file a register of financial interests, which could include shareholdings and directorships.

Unlike other public servants such as MPs, MSPs and quango board members, judicial office-holders do not have to give details of their outside interests.

Gill, head of the Judicial Office for Scotland, told MSPs last year there were "sufficient safeguards" in place to ensure judicial impartiality.

He added that a register could infringe a judge's "freedom from harassment" from "aggressive media or hostile individuals".

The row deepened after Gill refused to give oral evidence to the committee: MSPs cannot legally compel a judge to attend.

As a compromise, committee convener Dave Stewart MSP and his deputy Chic Brodie held a private meeting with Gill at Holyrood.

At last week's Public Petitions Committee, Stewart revealed progress had been made with Gill.

He said the senior judge, while maintaining his opposition to a register of financial interests, had promised to "check whether the IT systems can be adapted to provide aggregate information about recusals".

A recusal is when a judge takes himself off a case due to a perceived conflict of interest. No list of them exists, but Gill is looking at pulling together the information.

Stewart added that such an outcome would mean "ordinary individuals with an interest here could find out how many recusals there were across Scotland".

He said that Gill would write to MSPs with further details.

Jackson Carlaw, a Tory member of the committee, said at the meeting: "But for the belligerence of this committee in pursuing the issue, there would be no letter forthcoming, and there would be no investigation. I think it rather vindicates the tenacity with which we pursued the matter."

However, SNP MSP John Wilson, who also sits on the committee, had concerns about the private meeting.

He told the committee it "should not be in a position to hold private discussions with individuals who we ask evidence from".

Wilson also asked for the note of the meeting to be made public.

A spokeswoman for the Judicial Office for Scotland said: "The Lord President is examining whether it is possible to capture the information on formal recusal to enable it to be made public.

"The Lord President will write to the convener [Stewart] in due course and no further comment can be made at this time."

EDITORIAL: JUDGES SHOULD NOT BE ABOVE SCRUTINY

It is always welcome when senior figures in public life agree to positive change.

The Lord President, who is the country's top judge, is against requiring his colleagues to list their financial interests, but he seems to have recognised political concerns about a lack of transparency.

To this end, he is investigating the possibility of compiling a register of "recusals", which means examples of judges ceasing an interest in a court case due to a perceived conflict.

However, the concession is only a tiny step forward and does not compensate for the way the Lord President has dealt with the bigger issue over the past six months.

To recap, Holyrood’s Public Petitions Committee is considering a call for judges and sheriffs to submit a full list of their "pecuniary" interests.

Such a requirement is not unusual in the public sector, where MPs, MSPs and a host of other public servants have to provide details of shareholdings and directorships.

However, the Lord President believes the judiciary is different.

In written evidence to the committee, he argued that the disclosure of financial information could infringe a judge's privacy and encourage harassment from "aggressive media or hostile individuals".

MSPs on the committee wanted to question the Lord President about these views in person - an entirely reasonable expectation.

However, our most senior judge had other ideas and cited a little known legislative clause that means judges cannot be compelled to give parliamentary evidence.

In other words, he dodged scrutiny.

The standoff led to two MSPs on the committee holding a private meeting with Gill: out of sight, and out of mind.

It was in this context that Lord Gill made his concession.

This is clearly not an appropriate way to conduct public debate, and should prompt the government to do two things.

The first is to launch a consultation on whether legislation should be introduced requiring judges to lodge a register of interest.

The second is to open talks with the UK Government about closing the bizarre loophole that allows members of the judiciary to refuse requests to give parliamentary evidence.

Judges, like everyone else in society, are not above scrutiny.