I write this as a layman with no legal training whatsoever, but as someone who has had limited experience as a policeman some years ago, and as someone who has, both observed the work of juries during spells of court duty and, who served on a jury at a rape trial. I have also been falsely accused of the serious and heinous crimes of murder, rape and child abuse, something which was touched on in a previous blog. Those varied experiences give me a point of view about the law and the justice system in Scotland and, to some extent, makes me much more aware of the value of the protections afforded to innocent people under Scots law. Based on my own personal experience, I would be the last person to claim that Scots law is perfect or, that there are some aspects of it that do not require to be changed, but I do have concerns that some of the proposed changes will make the law in Scotland more oppressive and lead to more miscarriages of justice, particularly in the areas of sexual abuse and rape.
There will always be conflicting views on the justice system and the law. The peculiarly Scot's verdict of "Not Proven" has always divided opinion and it is not difficutl to see why, as I often heard the view expressed, when a Not Proven verdict was handed down, "Oh he/she is guilty all right, there just wasn't enough evidence to prove it." It made me sometimes wonder if it was not as bad as a "Guilty" verdict as far as the accused was concerned. The Cadder Ruling of 2010 has also divided legal opinion, to say nothing of the anger it generated among some sections of the police, but there is likely to be some serious soul searching over the latest proposals to change the law on corroboration and making known to a jury, the accused's previous convictions, prior to their deciding their verdict on the crime on which they are being asked to deliberate. These proposed changes have been variously described in the Scottish Review, as "removong the cornerstones of Scottish justice" and, "turning Scottish justice into a liar's charter".
I did court duty at several murder and rape trials and, like many policemen, worried about the calibre of some jurors. A trial which lasted several days, tested the attention span of many of them, as evidenced by their obvious agitation, and I frequently wondered how they came to some of the verdicts that were reached. When I found myself as one of them, forced to determine whether or not the man who stood before us, accused of rape and assault, was guitly as charged, I was appalled to find that what I had only suspected in the past, was all too true. The rape victim was a working class mother of three young children, whose husband had left her with the three children, all aged below five years of age. She had lived for some months with her alleged attacker but his violence towards her eventually forced her to throw him out of the house they had shared. After fuelling up on drink, he forced his way into the house late one night and beat and raped her, while her children were in the next room. She was quite overtly working class, on benefits and lacked education, a fact which affected her demeanor and made it difficult for her to express herself. She seemed to be a decent enough young woman who had been dealt a pretty rough hand in life.
The jury was made up of eight women and seven men, one of whom was interested only in getting out in time for the pubs opening. Three of the women were almost caricatures of the caricatures created by Les Dawson and Roy Barraclough, complete with handbags clutched in front of them like shields. When it was learned I had been in the police, I was voted the jury foreman, with the responsibility of conducting the discussion on the evidence we had heard. The attitude of the women, to the young victim, horrified me as they discussed her accent, her clothes and her lifestyle as a working class mother, in the most derogatory terms. It was difficult to keep the discussion to the evidence which had been led and as far as some of the jurors were concerned, it seemed to matter little to them what verdict we reached. After we had delivered a guilty verdict and sentence was being handed down, it was revealed the rapist was currently on remand in Perth prison, for a totally unrelated crime. The juror next to me immediately said, "If I had known that, I would have had no doubt he was guilty".
As a layman, I can see no good reason for the proposed change, which in my opinion, will prejudice the minds of some jurors. As we waited for our expenses, the fact the rapist was on remand was the sole topic of conversation and had that information been made known to us before we were locked away to make our deliberations, the verdict would have been given in two minutes flat. It concerns me that it will be completely lost on many jurors, that they are asked to decide an accused's guilt or innocence on the basis of the evidence laid before them, not on any previous convictions for unrelated offences. When the Birmingham Six were released after serving sixteen years for a crime they did not commit, I overheard a young financial adviser comment, "So what if they were innocent, they probably committed other crimes anyway". The men were Irish, so were the members of the IRA - evidence enough. Obviously not all jurors are as disinterested or lacking in intelligence but a strong perosnality in a jury room can make a difference to a verdict. In some cases it will not be difficult to persuade some people that if an accused is guiilty of the offence of theft or house breaking, it is just as likely they are guilty of the more serious crimes of assault or rape.
Of even greater importance to the protection of the innocent, is the proposal to abolish the need for corroboration in determining the guilt or innocence of an accused person. Corroboration is not a requirement under the law in England and Wales, which means the burden of proof is higher in Scotland but conviction can be upheld on a simple majority in Scotland whereas in England and Wales, unanimity can be required. The pressure to change the law in Scotland comes from the small number of convictions in cases of rape and sexual assault. A spokesman for Rape Crisis Scotland is reported to have said, "We are hugely supportive of the move to remove the requirement for corroboration - it is a part of Scots Law which has major impact on the prosecution of sexual offences. The majority of rape cases never make it to court and our main concern is the system as it stands today means there are guilty men still walking the street." There have always been guilty people who have escaped justice but it is the responsibility of the athorities to prove guilt, not the other way round. It was once argued that false allegations of sexaul assault and rape just did not happen because no woman would put herself through the trauma of a court appearance if it were not true. But recent history has shown that that argument no longer holds water, as the numbers of false allegations has increased as has the incidence of allegations of child abuse in custody disputes between divorcing couples.
No one would argue that those who are guilty of a crime deserve to be punished and the surprisingly small number of rape convictions (41 out of 884 cases reported in 2010) suggests there is something wrong with the system but is it right that changes in the law should be determined by the need/desire to increase the number of convictions? If the need to convict drives the law, what happens to the presumption of innocence? The Scottish Criminal Cases Review Commission (SCCRC) was set up in April 1999 to examine alleged miscarriages and in the first seven years of its existence examined 696 cases, of which 57 were referred to the appeal court and 23 sentences were quashed. As a consequence of the Cadder Ruling in 2010, Lord Carloway produced a package of changes, which included the abolition of the requirement for corroboration, which he described as, "an archaic rule that has no place in a modern legal system." What kind of legal system are we heading for if the need to have more than just an allegation of guilt, is condemned as "archaic"? Does modern society now demand that in order to be acceptable, the presumption of innocence is also "archaic"? I have a very strong personal interest in this, more of which below.
There can be few people who have any interest in current affairs, who will not have heard of Angela Canning and Sally Clark, both of whom were victims of miscarriages of justice in Engalnd, when they were wrongfully imprisoned for the murder of their children. Both women lost children to cot death but were convicted on the evidence of Sir Roy Meadow, a leading paediatrician. The evidence of so-called "experts" can be crucial and his evidence was the determining factor in the convictions of both Canning and Clark. In another infamous case from England, the Shieldfield case in Newcastle, where two young nurses were accused of child abuse, the performance of another paediatrician, Dr San Lazaro caused the presiding judge so much concern that he reported her to the GMC. Despite admitting there was sufficient evidence to find her guilty of "serious professional misconduct" the GMC decided to dismiss the charges against Lazaro after hearing pleas in mitigation that she was "overworked" and "under stress".
When the decision of the GMC was published, the Daily Telegraph made the following comment, "Such a decsion is troubling for those who are facing charges of sexual or child abuse. Unreliable evidence from social workers and doctors often lie behind allegations that turn out to be false. Medical experts often give opinions in court without even having seen the child or carer, using inaccurate hospital records as the basis for conclusions that have a shattering effect on the lives of the accused. Yet it appears that they cannot be held accountable if they plead tiredness and overwork - even if they are being paid large fees for their expert opinion."
If the need for corroboration is removed in Scotland, where will that place the "expert witness" in terms of the hierarchy of credible witnesses? Where will it place the police or other professionals, with an interest in finding the accused guilty? It is well established that "expert witnesses" will lie to protect their reputations as will the police, in order to get a conviction. Will the temptations be even greater once the need for corroboration is removed? Will the testimony of professionals carry more weight than that of "ordinary" people? My own case has had wide coverage but each time the details re-appear, the more the public will come to realise the need for reform. My daughter received an out-of-court settlement but my attempt to sue the Health Trust was struck out on the grounds that they owed me no duty of care and those responsible for the trauma to which my daughter, myself and our family were subjected, had a general immunity. The "expert witness" employed by the Health Trust to bolster their case that I had committed murder, rape and child abuse, produced two reports which were no more than a figment of his imagination.
In the first report he was intent to show we were such a disfunctional family that he assumed extended abuse in our entire family, with my three sons not only having been abused themselves but having witnessed my daughter's abuse as well as participating in it. He never met any of the family except my wife, my daughter and myself. He alleged my wife had repeatedly been admitted to hospital for alcohol detoxification and that she and I had both been abused. In his first report he thought he heard me say I had been abused in a TV or radio interview and in his second report, he was sure I had been abused. Records would have shown my wife had never been admitted to hospital for alcohol detoxification nor was she abused. I met the "expert" only once for no more than 45 minutes. Did he ask me if I had been abused? No he didn't. Did he ever hear me admit I had been abused? No he didn't. Did he ever read I was abused? No he didn't. Was I ever abused? No I wasn't. But "experts" in this field have a theory that those who were abused themselves have a tendency to become abusers and he was intent on "proving" that I had abused my youngest daughter.
Without the need for corroboration what impact would such a report have had on a jury? As I was owed no duty of care, I was unable to get the "expert", the social work department and the psychiatrist who treated my daughter, into court to have them forensically cross-examined. In my book "Unbreakable Bonds" my daughter and I give detailed accounts of what they did to her in the name of psychiatry and her admission to a psychiatric ward, as a consequence of medical negligence, with the names of all of those involved. I attempted to persuade the SNP government to change the law as it stands on third party duty of care, so that people who were placed in my position could have some redress through the courts. Kenny MacAskill refused to consider it, asking me instead to address the House of Lord's ruling of 2005 which said, "Child abuse is a serious social problem and health care professionals (HCPs) play a vital role in combating the risk - it is best attacked by relieving HCPs of legal proceedings...Uncompensated innocent parents pay the price but that is a necessary price".
That is an appalling statement but no more appalling than the Carloway judgement that corroboration "is an archaic rule that has no place in a modern legal system". I had always hoped that an independent Scotland would be a beacon for justice and human rights but some of the attitudes of those likely to be in government do little to give me confidence that it will be, at least in the short term.