:00:02. > :00:12.financial crisis. The banks are kidding themselves if they think
:00:12. > :00:16.
:00:16. > :00:22.we're fooled. Thank you very much Tonight: Lord Callaway's
:00:22. > :00:26.prescription to update Scots law. The Lord tells me corruption in
:00:26. > :00:31.criminal cases is no longer needed and abolishing it would lead to a
:00:31. > :00:34.fairer system, but is he right? We'll discuss it with some lawyers
:00:34. > :00:37.who aren't convinced. Good evening. Scots Law was
:00:37. > :00:45.enshrined in the Act of Union, and for 300 years it all seemed to be
:00:46. > :00:48.going along fine. Then a Supreme Court was established in London two
:00:49. > :00:51.years ago and allowed the appeal of a Scottish teenager, Peter Cadder,
:00:52. > :00:55.against his conviction for assault on the grounds that he was denied
:00:55. > :00:57.access to a lawyer. The court ruled his human rights, as defined by the
:00:58. > :01:00.European Convention, had been breached. A kind of courtly panic
:01:01. > :01:03.ensued and one consequence was a review by a High Court judge
:01:03. > :01:05.commissioned by the Justice Secretary into the operation of the
:01:05. > :01:08.whole justice system. Today Lord Carloway reported and suggests
:01:08. > :01:09.sweeping away some bulwarks of Scots Law. We'll debate those
:01:09. > :01:12.changes shortly. First here's Derek Bateman
:01:13. > :01:16.Earlier I spoke to Lord Carloway and asked him if he was surprised
:01:16. > :01:19.it took more than a decade for the Scottish Parliament to realise that
:01:19. > :01:20.denying people access to a lawyer after they're arrested might be a
:01:20. > :01:23.problem under Euopean Human Rights laws.
:01:23. > :01:25.It's a justice system that's held on to its independence and ideosink
:01:25. > :01:28.rosys, note the not proven verdicts and has often been resistant to
:01:28. > :01:30.change. Today it was given a rub- down by one of its changers, Lord
:01:30. > :01:34.Carloway. The result, if the proposals were adopted, it will
:01:34. > :01:38.change forever what happens in court by redefining the rules
:01:38. > :01:42.governing everyone from detention to appeal. The task which faced the
:01:42. > :01:46.review was to identify how criminal law and practising should be recast
:01:46. > :01:52.to meet the challenges and expectations of modern society and
:01:52. > :01:58.legal thinking. This time it had to grasp the full implications of the
:01:58. > :02:03.European Convention and the incorporation of that convention
:02:03. > :02:08.into Scots Law. This is the mock-up court for
:02:08. > :02:12.students at Glasgow University. But today's proposals from Carloway are
:02:12. > :02:16.really enough, and they go way beyond what anyone anticipated when
:02:16. > :02:23.the Supreme Court allowed the Cadder appeal.
:02:23. > :02:29.He suggests : a simplified system of arrest. That will trigger access
:02:29. > :02:33.to a lawyer and a letter of rights, making the law clear, an arrested
:02:33. > :02:38.person can be detained without charge for 12 hours. Suspects will
:02:38. > :02:42.be brought to court within 36 hours of arrest. Anything incriminating
:02:42. > :02:45.said without a lawyer will be inadmissible, and the general
:02:45. > :02:49.requirement for corroboration will be dropped.
:02:49. > :02:54.There are two fundamental elements here which overturn long-standing
:02:54. > :03:00.conventions. The first is the right to legal representation before
:03:00. > :03:03.being interviewed, the point at the heart of the Cadder case. It's
:03:03. > :03:08.going down the right track. It's essential that that's established
:03:08. > :03:12.now after the European cases. I think he's got the balance right.
:03:12. > :03:18.The solicitor of choice - it has to be a solicitor - but access has to
:03:18. > :03:23.be to a solicitor at the right time at the earliest possible stage, and
:03:23. > :03:27.a solicitor has to have information that allows him to give proper
:03:27. > :03:32.advice to the individual in custody. It is the right approach. Prior to
:03:32. > :03:36.the recent case from the Supreme Court, there was an entitlement on
:03:36. > :03:39.a suspect to have information of his or her detention sent to a
:03:39. > :03:43.solicitor, but that was a theoretical right in that there was
:03:43. > :03:46.no real practical assistance. The law has now moved on and is
:03:46. > :03:51.recognised by Lord Carloway where a person who is being interviewed by
:03:51. > :03:55.the police has an entitlement to have a solicitor be present to give
:03:55. > :03:59.advice, and indeed Lord Carloway is recommending that in the caution
:03:59. > :04:06.given to a suspected person they're told of that right of access to a
:04:06. > :04:11.lawyer. The second fundamental change is an end to the need for
:04:11. > :04:15.corroboration, which Scotland has steadfastly retained, while other
:04:15. > :04:21.jurisdictions have abandoned it. Well, I am not sure that is the
:04:21. > :04:24.right way to go. My preliminary view is we have to analyse this in
:04:24. > :04:29.some detail. I think there should be more consultation on it. Indeed,
:04:29. > :04:33.I would have thought there should be possibly a Royal Commission in
:04:33. > :04:37.corroboration because this is a fundamental principle of Scots Law.
:04:37. > :04:41.It impacts not only in evidence, but it also impacts on the juries
:04:41. > :04:45.and the verdicts involved. In Scotland, you have to have a
:04:45. > :04:50.majority of eight to seven for a guilty, whereas in England and
:04:50. > :04:54.Wales, where there is no corroboration, you have to have a
:04:54. > :04:58.unanimous jury verdict or at least under direction ten out of 12
:04:58. > :05:02.finding for guilty. How do you balance that by taking one away and
:05:02. > :05:06.substituting the other? Do you change the majority in juries in
:05:06. > :05:10.Scotland? These are very important issues. I can see the strength of
:05:10. > :05:14.what he says. In particular, Lord Carloway identifies the test of the
:05:14. > :05:19.requirement of a conviction beyond reasonable doubt being proved as
:05:19. > :05:23.being the real strength, and what he indicates in his report is the
:05:23. > :05:26.present system is skewed in that instead of looking at the quality
:05:26. > :05:30.of evidence that one looks at the quantity of evidence, and the
:05:30. > :05:34.approach to do away with corroboration - we'd allow a jury
:05:34. > :05:38.who are satisfied that a witness is credible and reliable and who are
:05:38. > :05:42.satisfied that - said to be beyond reasonable doubt - to convict on
:05:43. > :05:47.that. To many, this will appear a modernisation, to bring Scotland
:05:47. > :05:51.into line with the rest of Europe, although legal die-hards may
:05:51. > :05:55.quibble. The judge and jury in Carloway will be the Justice
:05:55. > :05:59.Secretary, who has welcomed the proposals, but so far given no
:05:59. > :06:03.commitment to implement them. Earlier I spoke to Lord Carloway,
:06:03. > :06:07.and I asked him if he was surprised it took more than a decade for the
:06:07. > :06:11.Scottish Parliament to realise that denying people access to a lawyer
:06:11. > :06:17.after they'd been arrested might be a prop under European human rights
:06:17. > :06:21.laws. The problem is slightly more complicated than that. The person
:06:21. > :06:25.who was arrested - and I'm using that term deliberately - a person
:06:25. > :06:32.who was arrested always - or at least since the beginning of the
:06:32. > :06:35.last century, had the right of having intimation of a lawyer to
:06:35. > :06:38.his arrest made, and he had the right to consult with the lawyer
:06:38. > :06:43.before his appearance in court the next day. That was always a
:06:43. > :06:48.fundamental principle of Scots Law of arrest. The problem stemmed from
:06:48. > :06:53.what was introduced after the Thompson Committee in the 1980s,
:06:53. > :07:00.which was a new system, not of arrest, but this new concept called
:07:00. > :07:04.detention, which meant that Scots Law had a dual-track method of
:07:04. > :07:11.putting people in custody - arrest and detention. It still seems,
:07:11. > :07:15.despite the details you have explained, to me quite amazing
:07:15. > :07:19.neither the justice system neither the Scottish Parliament or
:07:19. > :07:22.government seemed to realise something was obviously in
:07:23. > :07:29.contradiction with the European Convention. The decisions which the
:07:29. > :07:34.Scottish courts made on this matter - in particular the more - the
:07:34. > :07:37.recent seven-judge case in McLean, which was a year or so before
:07:37. > :07:40.Cadder, decided that the system was convention compliant. That was the
:07:40. > :07:47.decision of seven judges at that time, and they reasoned that
:07:47. > :07:53.because of the other safeguards in the Scottish system. Corroboration,
:07:53. > :07:59.that's in a way along with the right to a lawyer, is the big thing
:07:59. > :08:04.you're proposing to change. You are quite strong about this. You say
:08:04. > :08:09.it's an archaic rule that has no place in a modern justice system.
:08:09. > :08:13.Why do you say that? I say that, having conducted the research into
:08:13. > :08:17.its origins and its utility. What we did, first of all, was we looked
:08:17. > :08:23.to see, well, does this rule - does this requirement of two witnesses -
:08:23. > :08:27.does that reduce the risk of someone being wrongly convicted?
:08:27. > :08:31.And one could look at past cases where it has been - where a
:08:31. > :08:36.wrongful conviction has been deemed to have occurred, and having looked
:08:36. > :08:42.at the various cases, we concluded that corroboration doesn't actually
:08:42. > :08:48.reduce the risk of a wrongful conviction. So that was that one
:08:48. > :08:52.dealt with, and we then went on to look to see whether corroboration
:08:52. > :08:56.had the opposite effect, that it was actually creating injustices
:08:56. > :09:03.within the system in the sense that people who ought to be prosecuted
:09:03. > :09:06.and found guilty were not being prosecuted, and we did certain
:09:06. > :09:09.empirical research on that matter, which is detailed in the report,
:09:09. > :09:16.and the conclusion which was drawn from that research was that there
:09:16. > :09:18.are many cases which are abandoned or not proceeded with because of a
:09:18. > :09:23.failure in the technical requirement for corroboration,
:09:23. > :09:27.which, if they were prosecuted in any other system without the
:09:27. > :09:34.requirement, would be taken to a final conclusion. The obvious area
:09:35. > :09:38.where I could see this applying is rape cases where, for example, it
:09:38. > :09:43.would presumably mean DNA evidence could be conclusive on its own.
:09:43. > :09:47.evidence can be conclusive on its own anyway. It can be, even now?
:09:47. > :09:51.Yes, this is the problem with understanding corroboration and the
:09:51. > :09:55.way that one of its difficulties we have raised in the report is people
:09:55. > :10:00.genuinely do not understand what corroboration is. Supposing
:10:00. > :10:06.someone's DNA is found on you, and you can draw an inference that you
:10:06. > :10:09.are the attacker because of the existence of that DNA, right, the
:10:09. > :10:13.way that corroboration operates is not that you need some other
:10:13. > :10:17.evidence as well as the DNA evidence. All corroboration says is
:10:17. > :10:19.you need two witnesses to speak to the DNA. That's the way
:10:19. > :10:24.corroboration operates. I'm not sure this is entirely clear.
:10:24. > :10:28.isn't to people. Exactly. So let's try to make it clear to people. So
:10:28. > :10:34.the difference would be in a rape case, just to take this example -
:10:34. > :10:39.if DNA was found on the alleged perpetrator, at the moment, you're
:10:39. > :10:44.saying, they could still be done for that, but there would have to
:10:44. > :10:49.be two expert witnesses, as it were, to corroborate this was their DNA?
:10:49. > :10:53.To corroborate each other. Whereas now there is one expert witness who
:10:53. > :10:57.had done the DNA analysis would be sufficient. That's the difference.
:10:57. > :11:01.It's not that there would have to be DNA evidence of a rape and a
:11:01. > :11:05.witness to the rape. That's right. In Scotland at the moment if there
:11:05. > :11:11.is no other evidence apart from the DNA evidence, you need two experts
:11:11. > :11:14.to speak to finding the DNA on, say, the victim. You then need two
:11:14. > :11:20.experts to speak to the sample taken from the accused person, and
:11:20. > :11:25.you need two experts to speak to the comparison. Now, they might be
:11:25. > :11:28.the same experts, but you still need two. As you probably noticed
:11:28. > :11:33.this stuff you have been involved in has not been uncontroversial.
:11:33. > :11:35.There's been all sorts of accusations, particularly by the
:11:35. > :11:39.Scottish Government, that the Supreme Court, as a result of which,
:11:39. > :11:42.after all, you have been carrying out this inquiry, should not have
:11:42. > :11:48.the right to interfere in the Scottish justice system in the way
:11:48. > :11:52.that they see it has done. Do you think they have a point? I am not a
:11:52. > :11:59.politician. I'm a judge. Therefore, my function is different. It's not
:11:59. > :12:02.part of my role, nor was it part of the review. Incidentally, your
:12:02. > :12:07.proposals in speeding things up would mean Saturday courts,
:12:07. > :12:10.wouldn't they? What we have discovered in our researches is
:12:10. > :12:13.there is a difference between how long somebody is going to remain in
:12:13. > :12:19.custody if he's arrested on a Monday and when he's detained on a
:12:19. > :12:24.Thursday. Now, your human rights and your rights to liberty ought
:12:24. > :12:29.not to be so dependent on the day of your detention, although some of
:12:29. > :12:32.my colleagues may not wish to operate... I'm trying to think of
:12:32. > :12:36.the reaction you would get from the average judge if you said, "Listen,
:12:36. > :12:40.mate. You're working next Saturday." The important thing to
:12:40. > :12:44.notice is the recommendations in this area are not suggesting that
:12:44. > :12:49.there should be more work done. What they they are suggesting is
:12:49. > :12:54.there should be a closer look at when the existing work is done -
:12:54. > :12:56.takes place. That's what we're saying. I'm sure they will be
:12:56. > :13:00.entirely ameliorated by that thought. Lord Carloway, we have to
:13:00. > :13:02.leave it there. Thank you very much. Thank you.
:13:02. > :13:07.I'm joined now from Edinburgh by the Solicitor-Advocate John Scott
:13:07. > :13:12.and by Lily Greenan, who speaks for Scottish Women's Aid. Lily Greenan,
:13:12. > :13:16.all the focus seems to be on this business about abolishing the need
:13:16. > :13:20.for corroboration. What's your view of that? We certainly welcome the
:13:20. > :13:25.move towards a focus on quality of the evidence available rather than
:13:25. > :13:28.on the quantity of it and think that that is definitely the path we
:13:28. > :13:33.should be going down. We I would say cautiously welcome it. There
:13:33. > :13:37.are some concerns about if you move to single evidence that, first of
:13:37. > :13:41.all, there could be an increase in the number of cases that the Crown
:13:41. > :13:45.office is having to respond to. Secondly, we have a slight concern
:13:45. > :13:49.that what'll happen is they're only sure when, if you like, cases will
:13:49. > :13:53.go forward to trial. Just explain the first bit - what you're
:13:53. > :13:58.positive about. What do you mean by a focus on the quality of evidence?
:13:58. > :14:03.In the average case, what would that mean? In domestic abuse cases,
:14:03. > :14:07.one of the difficulties we have is that those cases often happen
:14:07. > :14:11.behind closed doors. There often are other witnesses. You're talking
:14:11. > :14:15.about a woman who has experienced abuse by a partner. By the time the
:14:15. > :14:19.police get there, he's calmed down. She's still distressed. It can be
:14:19. > :14:24.difficult to know how to go forward with that. What we would welcome
:14:24. > :14:28.about this is the opportunity for a more robust examination of all of
:14:28. > :14:33.the circumstances surrounding her testimony and perhaps... So your
:14:33. > :14:36.interpretation would be that it would be more likely that if - that
:14:36. > :14:40.her uncorroborated testimony under this new system would actually be
:14:40. > :14:46.sufficient to secure a conviction? If she's able to put forward
:14:46. > :14:49.credible and reliable testimony, then yes. John Scott, I know you
:14:49. > :14:54.have your doubts about abolishing this need for corroboration, but
:14:54. > :14:57.it's a fairly nuanced issue, isn't it? It's not a straight-forward for
:14:57. > :15:01.or against. It isn't. There are a lot of really good recommendations
:15:01. > :15:05.in the report relating to how we treat suspects in police stations,
:15:05. > :15:09.and there I think there will, if the report is implemented, be a
:15:09. > :15:12.significant increase in fairness, but I have concerns that at the
:15:12. > :15:18.trial stage, we'll be taking away from that, and trials will be less
:15:18. > :15:22.fair. When the seven judges in Scotland looked at the question of
:15:22. > :15:27.solicitor access, they said there are 15 safeguards in place, which
:15:27. > :15:31.mean that we don't need slirst. This was -- solicitors. This was
:15:31. > :15:35.before the Supreme Court said that was wrong. One of the prime
:15:35. > :15:38.safeguards was corroboration. It may be old, but I don't think it's
:15:38. > :15:41.archaic. I think it serves a useful purpose. Actually, I think it
:15:41. > :15:44.serves a purpose in terms of assuring the quality of the
:15:44. > :15:47.evidence which goes to the jury. If you don't have corroboration, there
:15:47. > :15:51.is no suggestion in this report as far as I can see for any other
:15:51. > :15:56.quality control, so anything goes to the jury. Right. But Lily
:15:56. > :16:01.Greenan, what are the implications -- one of the implications of this
:16:01. > :16:04.is Lord Carloway quite explicitly says himself that if you take away
:16:04. > :16:08.the need for corroboration, you'll have to build in other things which
:16:08. > :16:15.add to the quality of evidence, and he says, "Well, I am not going to
:16:15. > :16:19.do that." He says, "The Lord Advocate may have to do that." The
:16:19. > :16:22.Lord Advocate may decide, for example, convicting somebody on the
:16:22. > :16:28.basis of a single witness testimony should never be allowed. There is
:16:28. > :16:31.going to have to be a debate. certainly not suggesting we should
:16:31. > :16:37.move straight to this. I think that the suggestion in the film earlier
:16:37. > :16:40.on that we should have some - a robust inquiry into theins and outs
:16:40. > :16:43.of the removal of the requirement for corroboration would be
:16:43. > :16:47.something we would support. There is no doubt whatsoever that you
:16:47. > :16:54.can't simply remove the requirement for corroboration in Scots Law
:16:54. > :16:58.without looking at the rest of it because it's all interlinked. I
:16:58. > :17:02.tend to agree with John Scott's position on that we would want to
:17:02. > :17:05.see the robust inquiry and look in- depth at what the implications
:17:05. > :17:09.would be of removing corroboration. There are implications for victims
:17:09. > :17:12.as well as accused persons. As I understand your position on this as
:17:12. > :17:16.well as reading some of the document that was produced is, OK,
:17:16. > :17:22.if you get rid of this you have to have almost a whole body of law put
:17:22. > :17:24.in place in order to - not directly substitute for it, but isn't one of
:17:24. > :17:28.your points that other jurisdictions who don't have this
:17:28. > :17:33.have got other wives dealing with the same issue, and now we're left
:17:33. > :17:36.with nothing? In fact, overall corroboration is a formal
:17:36. > :17:39.evidentiary requirement only in Scotland and not elsewhere. In fact,
:17:39. > :17:42.corroboration comes into other systems. In England where
:17:42. > :17:46.corroboration is not a formal requirement, the police and the
:17:46. > :17:49.Crown will still try and find it. If they've got it, they'll make a
:17:49. > :17:55.great play of that with the jury. If it's not there, then the defence
:17:55. > :17:57.will make great play of it, and the conviction rate in rape cases in
:17:57. > :18:02.England is not significantly different than it is in Scotland.
:18:02. > :18:06.Can I finally, Lily Greenan, ask you one question. I know that some
:18:06. > :18:10.people are worried that, particularly in rape cases, this
:18:10. > :18:14.stress on the quality of evidence could actually be a bad thing for
:18:14. > :18:18.rape victims because it could encourage a return to the situation
:18:18. > :18:24.where defence lawyers' only avenue is basically to impugn the
:18:24. > :18:27.character of the alleged victim. the risk of sounding cynical I
:18:27. > :18:32.would have to say that wouldn't be a change from the situation we
:18:32. > :18:34.currently have, regardless of the fact that at the moment there is a
:18:34. > :18:38.requirement for corroboration in that the evidence that's supposed
:18:38. > :18:45.to be tested in court is the full range of evidence. The reality is