Hansard

I refer to my entry in the register of members’ interests. I acknowledge the care and time that Lord Carloway and his team have afforded to this important review. It is a big report with a lot in it, and we can only touch the surface today.

In the foreword to the report, Lord Carloway states:

“The underlying and long-lasting implication of Cadder is that the system must fully embrace and apply a human rights based approach.”

We must consider his review in that context.

The proposal for removing the requirement for corroboration in criminal cases is perhaps the most ambitious proposal in the report. I agree whole-heartedly with Lord Carloway that the most important aspect in establishing the value of evidence should be its quality and not its quantity.

We have heard that the concept of corroboration has a very long history. Until relatively recently, it used to be part of the civil process in Scotland as well as operating in criminal cases, although that is seldom mentioned today. The requirement for corroboration in civil cases was abolished in 1988, and the civil system has functioned without the need for corroboration quite adequately, even if it must be accepted that, in a case based on a conflict of oral evidence, two witnesses in support are better than one.

The term “corroboration” is often misunderstood by the layperson; it means that there must be two separate sources of evidence. It does not mean that there should necessarily be two independent witnesses to confirm every piece of evidence. As has been said, it is a hangover from medieval times at least: a security mechanism to protect accused persons from mistakenly being hanged from the gallows in an age in which there was no such thing as an appeals process.

Thankfully, we have moved on. As Lord Carloway has said, the principal reason that is advanced nowadays for retaining corroboration is to prevent miscarriages of justice. As has been said, his review found no evidence to suggest that the rates of miscarriage of justice in Scotland are any lower than they are in comparable countries that do not have a corroboration rule. Moreover, he argues that the requirement for corroboration increases the likelihood of a miscarriage of justice. If a complainer has a good case, but there is no evidence other than the complainer’s own evidence, the complainer is, because of the rule of corroboration, not able to obtain justice as the case does not proceed.

Those are powerful arguments, but I do not believe that removing corroboration is a silver bullet that will necessarily increase efficiency and improve justice—and it may not, in human rights terms, be more than neutral. The cabinet secretary has referred to the research on the 468 cases. The second table shows that 95 out of 141 sexual offences could have been prosecuted. However, Lord Carloway himself admits:

“it is important to remember that the removal of the requirement for corroboration would not guarantee a conviction”

in the cases in which there was deemed to be a reasonable prospect of conviction. The reasonable prospect of conviction that is assessed by the Crown Prosecution Service in England is an objective test in which a prosecutor assesses whether it is more likely than not that a conviction will be obtained. The figure is something in excess of 50 per cent but perhaps not much more, and in reality convictions do not always follow. Therefore, we should not be overwhelmed by the figures and, as David McLetchie has rightly said, the difference between conviction rates in Scotland and those in England and Wales is minimal.

We should perhaps counter that point by remembering the comments of Helena Kennedy when she was talking about human trafficking this week. In her view, the rule on corroboration may be a bar to convictions for trafficking, and I cannot see any real argument against that.

We obviously acknowledge that the test to be applied in criminal cases is whether the Crown has proved its case beyond reasonable doubt. In Carloway’s view, that is the essential safeguard to protect the accused. In particular, he believes that safeguards, such as an automatic warning to the jury of the risk of convicting on the basis of uncorroborated evidence, should not be required. Similarly, he believes that a judge at first instance should not be entitled to acquit an accused in a solemn case even if he or she considers that it would be unreasonable for a jury to return a verdict of guilty on the evidence adduced.

It is in the area of safeguards that I believe that the Government would be wise to listen to the arguments. Justice Scotland has said that it is

“dismayed by the suggested wholesale removal of corroboration absent alternative safeguards”.

The Government needs to listen to that argument, and others, so that we can have a full and meaningful debate on the point.

I will move away from corroboration and touch on the review’s comments on adverse inference. I agree with Lord Carloway’s recommendation that there should be no change to the current position—that is, that no inference should be drawn from silence on the part of a suspect when they are questioned. There is no strong case for replicating the English experience, and indeed in England the matter is rarely an issue in trials. Similarly, I believe that, post-Cadder, the distinction between section 14 detention and arrest is no longer meaningful.

In the remaining time, I will touch on the question of rights of access. Lord Carloway’s analysis is that there is nothing in European jurisprudence that precludes suspects from waiving their right of access to a lawyer, but he goes on to consider the position of vulnerable adults and children. Most significantly, he makes a recommendation that under-16s cannot waive their right of access to a lawyer, which seems a sensible recommendation. It is unusual that under-16s, who may not consent to many things in life, are able to waive something that is so important to their human rights.

On a waiver generally, Lord Carloway does not specifically suggest in his review that the police should record the reasons why a suspect waives their right of access when they are at a police station or wherever—Lord Hope made that suggestion in a Scottish case heard by the Supreme Court in which judgment was given last week. However, in the evidence that Lord Carloway gave to the Justice Committee on Tuesday, he agreed with the proposal that the reasons why an accused has used the waiver should be recorded. It is a helpful suggestion, and it may be a useful addition to any Association of Chief Police Officers in Scotland manual.

There is an awful lot in the Carloway review. It is an important contribution to the debate, and I look forward to a full and meaningful debate on it.

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