In the Media

?Innocents could pay if central pillar of the law is abolished?

PUBLISHED December 14, 2011

A leading Scottish QC suggested yesterday that police officers could end up doing the ?bare minimum? in investigating crimes if they do not have to worry in future about corroboration, leading to more miscarriages of justice.

Brian McConnachie, a former advocate depute, made the claim at a meeting of Holyrood?s justice committee which was hearing evidence from a panel of expert witnesses on the Carloway Review on overhauling Scotland?s legal system.

The review proposed the abolition of corroboration, one of the central pillars of the Scottish criminal justice system.

Mr McConnachie, representing the Faculty of Advocates, said there was a concern that if corroboration was not required, even if it was potentially available, the police will not carry out exhaustive enquiries to discover it.

?In the current climate where there are significant pressures on resources ... there is a real possibility that only the bare minimum will be done,? he said. ?This could easily have the effect of causing, rather than preventing, miscarriages of justice for the complainers, as well as for the accused.?

He said he considered it a fallacy that the abolition of corroboration would have a positive effect on convictions for sexual offences.

Bill McVicar, the convener of the criminal law committee at the Law Society of Scotland, said: ?There is a concern that I have personally, as a practitioner, that there is a move away from the theory that those who might be guilty should be acquitted to ensure that those who are definitely innocent should not be convicted. This seems to be moving to a society where we are prepared to countenance that the innocent be convicted, just so we can make sure we get the ones that are guilty.?

James Chalmers, senior lecturer at University of Edinburgh, told the committee that Lord Carloway had ?proceeded on the basis of methodologically flawed research?.

He said: ?The research involved asking lawyers to review cases that otherwise were not proceeded with. Both of these lawyers were prosecutors. I would have expected in the design of research such as this, if two lawyers were used, for one of those to have prosecution experience and one to have defence experience.?

Fiona Raitt, professor of evidence and social justice at University of Dundee, was the only one of yesterday?s five-member panel to support the abolition of corroboration.

She said: ?It addresses a long-standing deficiency in Scots law, namely the lack of a satisfactory response to women and children, who bare the brunt of sexual offences. There is an alarming range and prevalence of sexual offences which we know are calculated to take place in private spaces precisely because there will rarely be any independent witnesses or tangible evidence to provide corroboration.?

Christine Grahame, the justice committee convener, told her: ?My concern, against your argument, is that it might make it much tougher and harder for women or men who have been sexual assaulted to be in the witness box when their credibility is practically all they have.?

Ms Raitt agreed, adding that this could be circumvented by ?a wider examination of the law of evidence?.

She added: ?To take corroboration out individually is not the way to do it. I suspect what Lord Carloway has done has lobbed a grenade into the debate. ?