17/11/2011 Newsnight Scotland

financial crisis. The banks are kidding themselves if they think

we're fooled. Thank you very much Tonight: Lord Callaway's

prescription to update Scots law. The Lord tells me corruption in

criminal cases is no longer needed and abolishing it would lead to a

fairer system, but is he right? We'll discuss it with some lawyers

who aren't convinced. Good evening. Scots Law was

enshrined in the Act of Union, and for 300 years it all seemed to be

going along fine. Then a Supreme Court was established in London two

years ago and allowed the appeal of a Scottish teenager, Peter Cadder,

against his conviction for assault on the grounds that he was denied

access to a lawyer. The court ruled his human rights, as defined by the

European Convention, had been breached. A kind of courtly panic

ensued and one consequence was a review by a High Court judge

commissioned by the Justice Secretary into the operation of the

whole justice system. Today Lord Carloway reported and suggests

sweeping away some bulwarks of Scots Law. We'll debate those

changes shortly. First here's Derek Bateman

Earlier I spoke to Lord Carloway and asked him if he was surprised

it took more than a decade for the Scottish Parliament to realise that

denying people access to a lawyer after they're arrested might be a

problem under Euopean Human Rights laws.

It's a justice system that's held on to its independence and ideosink

rosys, note the not proven verdicts and has often been resistant to

change. Today it was given a rub- down by one of its changers, Lord

Carloway. The result, if the proposals were adopted, it will

change forever what happens in court by redefining the rules

governing everyone from detention to appeal. The task which faced the

review was to identify how criminal law and practising should be recast

to meet the challenges and expectations of modern society and

legal thinking. This time it had to grasp the full implications of the

European Convention and the incorporation of that convention

into Scots Law. This is the mock-up court for

students at Glasgow University. But today's proposals from Carloway are

really enough, and they go way beyond what anyone anticipated when

the Supreme Court allowed the Cadder appeal.

He suggests : a simplified system of arrest. That will trigger access

to a lawyer and a letter of rights, making the law clear, an arrested

person can be detained without charge for 12 hours. Suspects will

be brought to court within 36 hours of arrest. Anything incriminating

said without a lawyer will be inadmissible, and the general

requirement for corroboration will be dropped.

There are two fundamental elements here which overturn long-standing

conventions. The first is the right to legal representation before

being interviewed, the point at the heart of the Cadder case. It's

going down the right track. It's essential that that's established

now after the European cases. I think he's got the balance right.

The solicitor of choice - it has to be a solicitor - but access has to

be to a solicitor at the right time at the earliest possible stage, and

a solicitor has to have information that allows him to give proper

advice to the individual in custody. It is the right approach. Prior to

the recent case from the Supreme Court, there was an entitlement on

a suspect to have information of his or her detention sent to a

solicitor, but that was a theoretical right in that there was

no real practical assistance. The law has now moved on and is

recognised by Lord Carloway where a person who is being interviewed by

the police has an entitlement to have a solicitor be present to give

advice, and indeed Lord Carloway is recommending that in the caution

given to a suspected person they're told of that right of access to a

lawyer. The second fundamental change is an end to the need for

corroboration, which Scotland has steadfastly retained, while other

jurisdictions have abandoned it. Well, I am not sure that is the

right way to go. My preliminary view is we have to analyse this in

some detail. I think there should be more consultation on it. Indeed,

I would have thought there should be possibly a Royal Commission in

corroboration because this is a fundamental principle of Scots Law.

It impacts not only in evidence, but it also impacts on the juries

and the verdicts involved. In Scotland, you have to have a

majority of eight to seven for a guilty, whereas in England and

Wales, where there is no corroboration, you have to have a

unanimous jury verdict or at least under direction ten out of 12

finding for guilty. How do you balance that by taking one away and

substituting the other? Do you change the majority in juries in

Scotland? These are very important issues. I can see the strength of

what he says. In particular, Lord Carloway identifies the test of the

requirement of a conviction beyond reasonable doubt being proved as

being the real strength, and what he indicates in his report is the

present system is skewed in that instead of looking at the quality

of evidence that one looks at the quantity of evidence, and the

approach to do away with corroboration - we'd allow a jury

who are satisfied that a witness is credible and reliable and who are

satisfied that - said to be beyond reasonable doubt - to convict on

that. To many, this will appear a modernisation, to bring Scotland

into line with the rest of Europe, although legal die-hards may

quibble. The judge and jury in Carloway will be the Justice

Secretary, who has welcomed the proposals, but so far given no

commitment to implement them. Earlier I spoke to Lord Carloway,

and I asked him if he was surprised it took more than a decade for the

Scottish Parliament to realise that denying people access to a lawyer

after they'd been arrested might be a prop under European human rights

laws. The problem is slightly more complicated than that. The person

who was arrested - and I'm using that term deliberately - a person

who was arrested always - or at least since the beginning of the

last century, had the right of having intimation of a lawyer to

his arrest made, and he had the right to consult with the lawyer

before his appearance in court the next day. That was always a

fundamental principle of Scots Law of arrest. The problem stemmed from

what was introduced after the Thompson Committee in the 1980s,

which was a new system, not of arrest, but this new concept called

detention, which meant that Scots Law had a dual-track method of

putting people in custody - arrest and detention. It still seems,

despite the details you have explained, to me quite amazing

neither the justice system neither the Scottish Parliament or

government seemed to realise something was obviously in

contradiction with the European Convention. The decisions which the

Scottish courts made on this matter - in particular the more - the

recent seven-judge case in McLean, which was a year or so before

Cadder, decided that the system was convention compliant. That was the

decision of seven judges at that time, and they reasoned that

because of the other safeguards in the Scottish system. Corroboration,

that's in a way along with the right to a lawyer, is the big thing

you're proposing to change. You are quite strong about this. You say

it's an archaic rule that has no place in a modern justice system.

Why do you say that? I say that, having conducted the research into

its origins and its utility. What we did, first of all, was we looked

to see, well, does this rule - does this requirement of two witnesses -

does that reduce the risk of someone being wrongly convicted?

And one could look at past cases where it has been - where a

wrongful conviction has been deemed to have occurred, and having looked

at the various cases, we concluded that corroboration doesn't actually

reduce the risk of a wrongful conviction. So that was that one

dealt with, and we then went on to look to see whether corroboration

had the opposite effect, that it was actually creating injustices

within the system in the sense that people who ought to be prosecuted

and found guilty were not being prosecuted, and we did certain

empirical research on that matter, which is detailed in the report,

and the conclusion which was drawn from that research was that there

are many cases which are abandoned or not proceeded with because of a

failure in the technical requirement for corroboration,

which, if they were prosecuted in any other system without the

requirement, would be taken to a final conclusion. The obvious area

where I could see this applying is rape cases where, for example, it

would presumably mean DNA evidence could be conclusive on its own.

evidence can be conclusive on its own anyway. It can be, even now?

Yes, this is the problem with understanding corroboration and the

way that one of its difficulties we have raised in the report is people

genuinely do not understand what corroboration is. Supposing

someone's DNA is found on you, and you can draw an inference that you

are the attacker because of the existence of that DNA, right, the

way that corroboration operates is not that you need some other

evidence as well as the DNA evidence. All corroboration says is

you need two witnesses to speak to the DNA. That's the way

corroboration operates. I'm not sure this is entirely clear.

isn't to people. Exactly. So let's try to make it clear to people. So

the difference would be in a rape case, just to take this example -

if DNA was found on the alleged perpetrator, at the moment, you're

saying, they could still be done for that, but there would have to

be two expert witnesses, as it were, to corroborate this was their DNA?

To corroborate each other. Whereas now there is one expert witness who

had done the DNA analysis would be sufficient. That's the difference.

It's not that there would have to be DNA evidence of a rape and a

witness to the rape. That's right. In Scotland at the moment if there

is no other evidence apart from the DNA evidence, you need two experts

to speak to finding the DNA on, say, the victim. You then need two

experts to speak to the sample taken from the accused person, and

you need two experts to speak to the comparison. Now, they might be

the same experts, but you still need two. As you probably noticed

this stuff you have been involved in has not been uncontroversial.

There's been all sorts of accusations, particularly by the

Scottish Government, that the Supreme Court, as a result of which,

after all, you have been carrying out this inquiry, should not have

the right to interfere in the Scottish justice system in the way

that they see it has done. Do you think they have a point? I am not a

politician. I'm a judge. Therefore, my function is different. It's not

part of my role, nor was it part of the review. Incidentally, your

proposals in speeding things up would mean Saturday courts,

wouldn't they? What we have discovered in our researches is

there is a difference between how long somebody is going to remain in

custody if he's arrested on a Monday and when he's detained on a

Thursday. Now, your human rights and your rights to liberty ought

not to be so dependent on the day of your detention, although some of

my colleagues may not wish to operate... I'm trying to think of

the reaction you would get from the average judge if you said, "Listen,

mate. You're working next Saturday." The important thing to

notice is the recommendations in this area are not suggesting that

there should be more work done. What they they are suggesting is

there should be a closer look at when the existing work is done -

takes place. That's what we're saying. I'm sure they will be

entirely ameliorated by that thought. Lord Carloway, we have to

leave it there. Thank you very much. Thank you.

I'm joined now from Edinburgh by the Solicitor-Advocate John Scott

and by Lily Greenan, who speaks for Scottish Women's Aid. Lily Greenan,

all the focus seems to be on this business about abolishing the need

for corroboration. What's your view of that? We certainly welcome the

move towards a focus on quality of the evidence available rather than

on the quantity of it and think that that is definitely the path we

should be going down. We I would say cautiously welcome it. There

are some concerns about if you move to single evidence that, first of

all, there could be an increase in the number of cases that the Crown

office is having to respond to. Secondly, we have a slight concern

that what'll happen is they're only sure when, if you like, cases will

go forward to trial. Just explain the first bit - what you're

positive about. What do you mean by a focus on the quality of evidence?

In the average case, what would that mean? In domestic abuse cases,

one of the difficulties we have is that those cases often happen

behind closed doors. There often are other witnesses. You're talking

about a woman who has experienced abuse by a partner. By the time the

police get there, he's calmed down. She's still distressed. It can be

difficult to know how to go forward with that. What we would welcome

about this is the opportunity for a more robust examination of all of

the circumstances surrounding her testimony and perhaps... So your

interpretation would be that it would be more likely that if - that

her uncorroborated testimony under this new system would actually be

sufficient to secure a conviction? If she's able to put forward

credible and reliable testimony, then yes. John Scott, I know you

have your doubts about abolishing this need for corroboration, but

it's a fairly nuanced issue, isn't it? It's not a straight-forward for

or against. It isn't. There are a lot of really good recommendations

in the report relating to how we treat suspects in police stations,

and there I think there will, if the report is implemented, be a

significant increase in fairness, but I have concerns that at the

trial stage, we'll be taking away from that, and trials will be less

fair. When the seven judges in Scotland looked at the question of

solicitor access, they said there are 15 safeguards in place, which

mean that we don't need slirst. This was -- solicitors. This was

before the Supreme Court said that was wrong. One of the prime

safeguards was corroboration. It may be old, but I don't think it's

archaic. I think it serves a useful purpose. Actually, I think it

serves a purpose in terms of assuring the quality of the

evidence which goes to the jury. If you don't have corroboration, there

is no suggestion in this report as far as I can see for any other

quality control, so anything goes to the jury. Right. But Lily

Greenan, what are the implications -- one of the implications of this

is Lord Carloway quite explicitly says himself that if you take away

the need for corroboration, you'll have to build in other things which

add to the quality of evidence, and he says, "Well, I am not going to

do that." He says, "The Lord Advocate may have to do that." The

Lord Advocate may decide, for example, convicting somebody on the

basis of a single witness testimony should never be allowed. There is

going to have to be a debate. certainly not suggesting we should

move straight to this. I think that the suggestion in the film earlier

on that we should have some - a robust inquiry into theins and outs

of the removal of the requirement for corroboration would be

something we would support. There is no doubt whatsoever that you

can't simply remove the requirement for corroboration in Scots Law

without looking at the rest of it because it's all interlinked. I

tend to agree with John Scott's position on that we would want to

see the robust inquiry and look in- depth at what the implications

would be of removing corroboration. There are implications for victims

as well as accused persons. As I understand your position on this as

well as reading some of the document that was produced is, OK,

if you get rid of this you have to have almost a whole body of law put

in place in order to - not directly substitute for it, but isn't one of

your points that other jurisdictions who don't have this

have got other wives dealing with the same issue, and now we're left

with nothing? In fact, overall corroboration is a formal

evidentiary requirement only in Scotland and not elsewhere. In fact,

corroboration comes into other systems. In England where

corroboration is not a formal requirement, the police and the

Crown will still try and find it. If they've got it, they'll make a

great play of that with the jury. If it's not there, then the defence

will make great play of it, and the conviction rate in rape cases in

England is not significantly different than it is in Scotland.

Can I finally, Lily Greenan, ask you one question. I know that some

people are worried that, particularly in rape cases, this

stress on the quality of evidence could actually be a bad thing for

rape victims because it could encourage a return to the situation

where defence lawyers' only avenue is basically to impugn the

character of the alleged victim. the risk of sounding cynical I

would have to say that wouldn't be a change from the situation we

currently have, regardless of the fact that at the moment there is a

requirement for corroboration in that the evidence that's supposed

to be tested in court is the full range of evidence. The reality is