Alison McInnes: Scots law is not safe in the hands of the SNP

As the Scottish Parliament continues to debate the removal of corroboration from our legal system, I thought it would be a good idea to publish Alison McInnes MSP's speech to Scottish Liberal Democrat conference in September which gives a good summary of the arguments why this may not be a good idea. Alison is as committed as I am to ensuring justice for victims of domestic and sexual assault, but she doesn't think that removing corroboration will help.

I am pleased to have the opportunity to move this motion today.

A number of key principles must always underpin any justice system.

·         It must be impartial.

·         It must be proportionate.

·         And it must be fair.

Corroboration is the requirement that each crucial fact in a criminal case – namely that a crime was committed and by the accused - must be supported by two different, but mutually enforcing, pieces of evidence.

Now, ours is the only criminal justice system in Europe to require corroboration. So why should we be precious about it?

For hundreds of years, since the foundations of our Scots law were laid, it has been established that that no individual should be convicted of a crime based on the testimony of a single witness.

But I don’t defend it because of tradition.

Rather, I defend it because it protects against miscarriages of justice. The fact is that the word of one person, regardless of their status or perceived character, is not enough.  Similarly, a sole piece of forensic evidence should not be enough to convict.

You cannot remove this pillar of our justice system, without making the whole structure unstable.

In other jurisdictions, in the absence of a corroboration rule, there are a whole series of checks and balances to protect against wrongful conviction.   

For example, England, Wales and Northern Ireland have

·         greater regulation of police investigations.

·         Preliminary hearings to test the quality of evidence.

·         Judges have the power to exclude poor quality or prejudicial evidence.

·         Unanimous verdicts are required in the first instance.

·         And there are wider grounds for appeal following a verdict that could be deemed unsafe.

We do not have any of these necessary safeguards.

But the SNP intends to remove corroboration without ensuring that there are sufficient alternative safeguards in the trial process to give that protection.

Indeed taken with their other reforms – changes to double jeopardy and proposals on the admissibility of evidence of bad character or previous convictions, and we should be very worried. This is a profound change – sweeping aside centuries of well-established Scottish legal practice.

Conference, Scots Law is not safe in the hands of the Scottish National Party.

In Scotland the Crown prosecutes in the public interest. We must guard against any shift towards prosecuting in the victim’s interest. That would be at odds with our fundamental liberal belief in the need for a robust, transparent and independent justice system.

We need to defend the principle of the presumption of innocence and safeguard against false accusation, wrongful conviction and miscarriages of justice.

The SNP’s proposals will mean that someone could be convicted on the basis of the testimony of just one person, even if five of the fifteen jurors believe that they are innocent.

Witnesses can be honest yet mistaken. Their evidence persuasive but wrong.

And, unfortunately, witnesses do sometimes lie to the police and in court- out of earnest to ensure that the accused is convicted, because of the strength of their convictions or through spite.

I am concerned that scrapping corroboration could mean that false accusations could become more common. The Law Society of Scotland warns that trials could be reduced to “a contest between two competing statements on oath”.

Corroboration should not be seen as a cumbersome requirement that blocks cases being taken to trial.

It does not simply deliver a quantity of evidence. It is ensures the quality of it. It reinforces facts. It confirms facts. It is a way to test the reliability and credibility of evidence. It is key to determining the guilt or otherwise of the accused.

We cannot allow trials to hinge on lesser evidence. Wrongful convictions bring the law into disrepute. Justice Scotland has said the removal of corroboration will risk “justice being undone”.

The SNP claim that corroboration is a barrier to justice, particularly for those victims of sexual crimes.  But the research they rely on is scant - a cursory desk top study carried out by the Crown Office. In the absence of clear in-depth evidence, it would be reckless to proceed in blind hope.

Now, Conference, I am sure that you will agree with me that conviction rates for rape remain stubbornly low.

Liberal Democrats wholeheartedly share the aspiration to improve conviction rates.  No one should be beyond the reach of our justice system. We must strive to ensure that the victims of rape, sexual assaults and domestic abuse receive the justice they deserve.

There are a number of ways to tackle that – for example a much more rigorous approach to the gathering of forensic evidence, and we could examine the idea of rape victims being represented by a lawyer in the court, something that happens in Belgium. 

However, contrary to the SNP’s claim, there is a real danger that scrapping corroboration could actually reduce the chances of victims of these crimes securing justice.

We might get more cases into court, but there is no evidence that we would secure any more convictions. The alleged victim could face a much more aggressive cross examination in the absence of supporting evidence. Juries are less likely to convict on the say so of one piece of evidence. More acquittals or not proven verdicts in these cases will not help anyone.

There’s a long list of those who warn against losing this vital safeguard.

·         The Senators of the College of Justice.

·         The Law Society of Scotland.

·         The Faculty of Advocates.

·         Justice Scotland.

·         The Scottish Human Rights Commission

The Justice Secretary would be foolish to ignore all those voices.

Like you, I am proud to say that I joined the Liberal Democrats because I believe in a just, free and fair society.

It is therefore a privilege to be my party’s justice spokesperson, to have the opportunity to champion these values, and to lead the fight against a succession of ill-considered and botched reforms from Kenny MacAskill and the SNP.

In the face of their dogged desire to centralise services, increase ministerial control, and push reforms through without hesitation or due consideration, we need strong liberal voices at Holyrood and across Scotland.

They abolished our local police forces. They are closing our local courts.  And now, through the Criminal Justice Bill, they want to get rid of corroboration.

We are on a slippery slope, not to independence but to injustice. 

If our justice system fails to uphold the right to a fair trial then it also fails to serve victims of crime. It fails to serve Scotland.

I urge members to join me in voting for this motion. Join me in sending a message to the SNP that it cannot cut corners when it is dealing with those issues that matter most to us as Liberal Democrats - justice, freedom and fairness.