Radical overhaul of criminal justice
A consultation on plans to overhaul Scotland's system for the investigation and prosecution of crime, including the removal of the requirement for corroboration and reform of arrest and detention, has been published today by Justice Secretary Kenny MacAskill.
The Scottish Government has signalled its intention to accept the broad reasoning of Lord Carloway's recent review into Scots law and practice as a package, and today's consultation seeks views on the many "far-reaching" proposals set out in the report, ahead of bringing forward legislation at an early opportunity.
Key recommendations in the Carloway Report, which was published in November and followed the UK Supreme Court's Cadder ruling, included:
- The right to legal advice when taken into custody
- Limit the period of arrest before charge to 12 hours
- Particular protection and rights for children and vulnerable adults
- Greater flexibility for police in conducting investigations whilst ensuring fairness for suspects
- Less restrictive rules around evidence and a removal of the need for corroboration
- Adjustments to the relationship between the Scottish Criminal Cases Review Commission (SCCRC) and the High Court
Launching the three month consultation, Mr MacAskill said:
"As much as the UK Supreme Court's Cadder decision caused upheaval - to which we reacted quickly - it also provided the opportunity to re-evaluate our criminal justice system in more detail. The review carried out last year by Lord Carloway is not only weighty and authoritative, but far-reaching and radical.
"Lord Carloway's report provides a clear and coherent package of reforms to modernise the Scottish Criminal Justice System which I believe will resonate well into the future in the same way as the Thomson Committee's work of the 1970s still resonates today. Some of his proposals, such as the removal of the requirement for corroboration, are monumental and will overhaul many years of legal practice.
"Many of the Carloway recommendations, particularly around access to a lawyer, arrest and appeals, have already met with broad agreement in principle, though the consultation asks key questions around points of detail.
"On corroboration, the consultation paper agrees that the requirement should be abolished. It reflects that the rationale for the rule stems from another age, that its usage has become confused and that it can bar prosecutions that would in any other legal system seem entirely appropriate. The focus of our consultation is on deciding how to best achieve abolition and what, if any, additional measures require to be taken as a consequence.
"Throughout Lord Carloway’s report, there is a clear focus upon the overall quality of evidence above the application of outdated and technical rules. I am confident that in a system without a corroboration requirement we would continue to see police and prosecutors striving to find the best evidence that can practically be made available. Scottish judges and juries would continue to apply good judgement and would only convict on the basis of clear evidence.
"We all agree that our justice system as a whole needs to be fair and balanced. Lord Carloway has said that removing the requirement for corroboration does not upset that balance, but for those that do then the consultation provides a platform to tell us what they say needs to be done to redress this.
"The changes proposed by Lord Carloway are far-reaching and radical. There may be more prosecutions in serious cases. There may be a need for weekend courts. In the current climate, we cannot ignore the financial implications of the proposed changes and detailed modelling work will be required. However, our focus is firmly upon the best structure for our legal system and modernising it for the future.
"This is a balanced package of measures that will put Scotland at the forefront of human rights protections for suspects and accused, while at the same time ensuring victims are not denied justice by outdated and highly technical rules of evidence."
Lord Carloway's Review started in November 2010 as a part of the Government's response to the Cadder decision on the right of suspects to receive advice from a lawyer before police questioning. Lord Carloway's consultation ran 8 April - 3 June 2011. The Terms of Reference for the Carloway Review were as follows:
(a) To review the law and practice of questioning suspects in a criminal investigation in Scotland in light of recent decisions by the UK Supreme Court and the European Court of Human Rights, and with reference to law and practice in other jurisdictions;
(b) To consider the implications of the recent decisions, in particular the legal advice prior to and during police questioning, and other developments in the operation of detention of suspects since it was introduced in Scotland in 1980 on the effective investigation and prosecution of crime.
(c) To consider the criminal law of evidence, insofar as there are implications arising from (b) above, in particular the requirement for corroboration and the suspect's right to silence;
(d) To consider the extent to which issues raised during the passage of the Criminal Procedure (Legal Assistance, Detention and Appeals)(Scotland) Act 2010 may need further consideration, and the extent to which the provisions of the Act may need amendment or replacement; and
(e) To make recommendations for further changes to the law and to identify where further guidance is needed, recognising the rights of the suspect, the rights of victims and witnesses and the wider interests of justice while maintaining an efficient and effective system for the investigation and prosecution of crime.