Scottish Criminal Evidence Law: Current Developments and Future Trends 9781474414777

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Scottish Criminal Evidence Law

Scottish Criminal Evidence Law Current Developments and Future Trends

Edited by Peter R Duff Professor of Criminal Justice, University of Aberdeen and Pamela R Ferguson Professor of Scots Law, University of Dundee

Edinburgh University Press is one of the leading university presses in the UK. We publish academic books and journals in our selected subject areas across the humanities and social sciences, combining cutting-­edge scholarship with high editorial and production values to produce academic works of lasting importance. For more information visit our website: edinburghuniversitypress.com © editorial matter and organisation Peter R Duff and Pamela R Ferguson, 2018 © the chapters their several authors, 2018 Edinburgh University Press Ltd The T ­ un – H ­ olyrood Road 12 (2f) Jackson’s Entry Edinburgh EH8 8PJ Typeset in 10/12 Goudy Old style by Servis Filmsetting Ltd, Stockport, Cheshire, and printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY A CIP record for this book is available from the British Library ISBN 978 1 4744 1476 0 (hardback) ISBN 978 1 4744 1477 7 (webready PDF) ISBN 978 1 4744 1479 1 (epub) The right of the contributors to be identified as authors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988 and the Copyright and Related Rights Regulations 2003 (SI No. 2498).

Contents

The contributors vi Acknowledgements vii Table of cases viii Table of legislation xiv Introduction 1 Peter R Duff and Pamela R Ferguson 1. Cadder and beyond: suspects’ rights and the public interest 18 Claire McDiarmid 2. ‘Access to justice’ for complainers? The pitfalls of the Scottish Government’s case to abolish corroboration 41 Ilona Cairns 3. The relevance of sexual history and vulnerability in the prosecution of sexual offences 67 Liz Campbell and Sharon Cowan 4. ‘Similar fact’ evidence and Moorov: time for rationalisation? 97 Fraser P Davidson 5. Hearsay in Scots law: rethinking and reforming 121 Gerry Maher QC 6. Eyewitness identification evidence and its problems: recommendations for change 139 Pamela R Ferguson 7. Assessing witness credibility and reliability: engaging experts and disengaging Gage? 161 Donald Nicolson and Derek P Auchie 8. The process of criminal evidence law reform in Scotland: what can we learn? 194 James Chalmers, Fiona Leverick and Shona W Stark 9. Scottish criminal evidence law adrift? 224 Peter R Duff Bibliography 248 Index 267

The contributors

Derek P Auchie, Senior Lecturer, University of Aberdeen Ilona Cairns, Lecturer, University of Aberdeen Liz Campbell, Professor of Criminal Law, University of Durham James Chalmers, Regius Professor of Law, University of Glasgow Sharon Cowan, Professor of Feminist and Queer Legal Studies, University of Edinburgh Fraser P Davidson, Professor Emeritus, University of Stirling Peter R Duff, Professor of Criminal Justice, University of Aberdeen Pamela R Ferguson, Professor of Scots Law, University of Dundee Fiona Leverick, Professor of Criminal Law and Criminal Justice, University of Glasgow Claire McDiarmid, Reader, University of Strathclyde Gerry Maher QC, Professor of Criminal Law, University of Edinburgh Donald Nicolson, Professor of Law and Law Clinic Director, University of Essex Shona W Stark, Fellow in Law at Christ’s College, Cambridge

Acknowledgements

We would like to thank the Royal Society of Edinburgh for the funding which enabled us to hold the series of workshops which made this book possible. We are also very grateful to the various ‘guests’ who gave up their valuable time to attend these workshops and whose comments on our discussions and draft chapters were extremely useful: Professor Ragna Aarli; Gavin Callaghan; Lord Justice General, Lord Carloway; Ronnie Clancy QC; Sheriff Sir Gerald Gordon; Professor Jackie Hodgson; Professor John Jackson; Professor Jenny McEwan; Fraser Mathieson: Sheriff Graeme Napier; Dr Allard Rignalda; Professor Paul Roberts; Simon Di Rollo QC; and Dr Findlay Stark. Finally, we would like to thank Ms Cat MacQueen for her efficient and enthusiastic administrative assistance throughout this project and for preparing the tables and index.

Table of cases

AUSTRALIA Alexander v The Queen (1981)145 CLR 395...................................................144, 152 Cornwell v Riley [1999] FCA 727.......................................................................... 113 Gipp v R (1998) CLR 106..................................................................................... 113 Jacara v Perpetual Trustees WA Ltd [200] 106 FCR 51........................................... 113 Makin v AG of New South Wales [1894] AC 57...................................................... 98 Murphy v R [1989] HCA 28................................................................................. 164 Pfennig v R (1995) 192 CLR 461....................................................................113, 117 R v Adam (1999) 106 A Crim R 510..................................................................... 113 R v ATM [2000] NSWCA 475............................................................................ 113 R v Cakovski (2004) 149 A Crim R 21................................................................... 113 R v Forbes [2009] ACTSC 1 (Sup Ct (ACT).......................................................... 146 R v Fordham (1997) 98 A Crim R 359................................................................... 113 Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268............................................................................................... 164

CANADA Gilbert v Bottle 2011 BCSC 1389...................................................................169, 170 R v Abbey [1982] 2 SCR 24, 138 DLR (3d) 202, 68 CCC (2d) 394.......................... 165 R v Atfield 25 Alta LR (2d) 97 (1983).................................................................... 155 R v JA 2011 SCC 28.............................................................................................. 71 R v Johnson [2003] OJ No 3580............................................................................. 152 R v Mezzo [1986] 1 SCR 802................................................................................ 158 R v Mohan (1994) 114 DLR (4th) 419; [1994] 2 SCR 9.89 CCC (3D) 402............... 165 R v Seaboyer (1991) 83 DLR (4th) 193................................................................. 6, 71

ENGLAND Barnes v Chief Constable of Durham [1997] 2 Cr App R 505................................... 153 Beckford v R (1993) 97 Cr App R 409................................................................... 158 DPP v Boardman [1975] AC 421.............................................................. 99, 100, 102 DPP v Kilbourne [1977] AC 729....................................................................101, 110 Donnini v R (1972) 128 CLR 114.......................................................................... 106 Harris v DPP [1952] AC 694.................................................................................. 99 Maxwell v DPP [1935] AC 309............................................................................. 108 Myers v DPP [1965] AC 1001............................................................................... 124



Table of cases

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R v A 2001 (No 2) [2001] UKHL 25: [2002] AC 45................................................. 79 R v Ball [1911] AC 47............................................................................................ 99 R v Black [1995] Crim LR 640.............................................................................. 120 R v Blastland [1986] AC 41.................................................................................. 129 R v Brown [1991] Crim LR 368............................................................................. 154 R v Campbell [2007] EWCA Crim 1472............................................................... 108 R v Cokar [1960] 2 QB 207..................................................................................... 99 R v Forbes [2000] UKHL 66...........................................................................141, 147 R v Grdic [1985] 1 SCR 810................................................................................. 101 R v H (Stephen) [2014] EWCA Crim 1555............................................................ 167 R v Hanson [2005] 1 WLR 3169........................................................................... 116 R v Horncastle [2009] 2 Cr App R 15; [2010] 2 AC 373.......................................... 136 R v JH, TG [2005] EWCA Crim 1828.................................................................. 166 R v Kearley [1992] 2 AC 228................................................................................ 125 R v McLeod [1994] 1 WLR 1500.......................................................................... 106 R v Muhidinz [2005] EWCA Crim 2758............................................................... 150 R v Mullen [1992] Crim LR 735........................................................................... 119 R v Nash [2004] EWCA Crim 2696..................................................................... 158 R v Novac (1977) 65 Cr App Rep 107................................................................... 100 R v P [1991] 3 All ER 337.................................................................................... 100 R v Renda [2005] EWCA Crim 2826.................................................................... 115 R v S [2006] EWCA Crim 2389........................................................................... 166 R v Sangarie [2001] EWCA Crim 1734................................................................. 154 R v Sharp [1988] 1 WLR 7................................................................................... 122 R v Smith (1915) 11 Cr App R 229.......................................................................... 98 R v Straffen [1952] 2 QB 911.......................................................... 100, 103, 118, 119 R v T [2001] EWCA Crim 3014........................................................................... 117 R v Turnbull [1977] QB 224...........................................................................154, 158 R v Turner [1975] QB 834............................................................... 164, 165, 170, 171 R v Z [2000] 2 AC 483......................................................................................... 101 Scott v R [1989] 2 All ER 305................................................................................. 99 Teper v The Queen [1952] AC 480........................................................................ 127 Thompson v R [1918] AC 221..........................................................................99, 110

EUROPEAN COURT OF HUMAN RIGHTS Al-Khawaja and Tahery v UK (2009) 49 EHHR 1...................................135, 136, 137 Doorson v Netherlands (1996) 22 EHHR 330............................................................ 75 Horncastle and others v United Kingdom (2015) 60 EHRR 310................................ 136 Ibrahim v United Kingdom (2015) 61 EHRR 9......................................................... 38 Judge v United Kingdom 2011 SCCR 241................................................................ 75 Salduz v Turkey (2009) 49 EHRR 19...................................................... 18, 21, 35, 36 Zaichenko v Russia [2010] ECHR 185...................................................................... 38

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IRELAND People (Ag) v Casey No 2 [1963] IR 53.................................................................. 158

NEW ZEALAND R v Gooch [2009] NZCA 163................................................................................ 113 R v Healy [2007] NZCA 451................................................................................. 112 R v Tainu [2008] NZCA 119................................................................................ 113

SCOTLAND A v B (1895) 22 R 402............................................................................................ 97 A v HM Advocate 2012 JC 343............................................................................ 124 Advocate (HM) v A 2005 SLT 975....................................................................... 171 Advocate (HM) v Cowie [2011] HCJAC 111.......................................................... 198 Advocate (HM) v Joseph 1929 JC 55....................................................................... 98 Advocate (HM) v Jude 2012 SC (UKSC) 222.......................................................... 31 Advocate (HM) v McIlwain 1965 JC 40.................................................................. 99 Advocate (HM) v McLean [2009] HCJAC 97............................................. 20, 22, 232 Advocate (HM) v Paul 2012 SC (UKSC) 108.......................................................... 35 Advocate (HM) v Ronald 2007 SCCR 451......................................................... 77, 78 Advocate (HM) v Sinclair [2014] HCJAC 131........................................................ 229 AJE v HM Advocate 2002 JC 215......................................................................... 172 Ambrose v Harris 2012 SC (UKSC) 53......................................................... 25, 36–39 Anoliefo v HM Advocate 2013 SCL 106.................................................................. 27 Ashif and Ashraf v HM Advocate [2015] HCJAC 100.......................................17, 239 Bell v HM Advocate [2014] HCJAC 127........................................................139, 146 Birnie v HM Advocate 2012 SC (UKSC) 222..................................................... 30, 31 Blagojevic v HM Advocate 1995 SLT 1189............................................................ 171 Blair v HM Advocate 1994 SLT 256..................................................................... 157 Bowes v Harvie [2014] HCJAC 83......................................................................... 139 Brodie v HM Advocate 2013 JC 142...................................................................... 139 Brown v HM Advocate [2014] HCJAC 120............................................................ 139 C v M 1923 SC 1................................................................................................... 97 Cadder v HM Advocate [2010] UKSC 43..........2–4, 7, 9, 16, 18–22, 24–30, 32, 34–39, 45, 50, 195–196, 200, 202, 218, 227, 229, 230–232, 247 Cameron v HM Advocate [2012] HCJAC 164........................................................ 139 Campbell v HM Advocate 2004 SLT 397; 2004 SCCR 220.................................... 172 Campbell v HM Advocate [2013] HCJAC 104....................................................... 139 Carlin and McCluckie v HM Advocate [2014] HCJAC 122.................................... 139 Chalmers v HM Advocate 1954 JC 66...............................................22, 34, 35, 36, 38 Cumming v HM Advocate 2003 SCCR 261............................................................. 77 Daly v HM Advocate2003 SLT 773...................................................................... 135 Dixon v HM Advocate [2012] HCJAC 50................................................................ 26



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Docherty v HM Advocate [2014] HCJAC 71............................................139, 146, 152 Drury v HM Advocate 2001 SLT 1013.................................................................... 18 Dudley v HM Advocate 1995 SCCR 52................................................................. 152 Dumoulin v HM Advocate 1974 SLT (Notes) 42...............................................99, 103 Dunbar v HM Advocate [2015] HCJAC 22; 2015 SCCR 186; 2015 SCL 65............ 170 Du Plooy v HM Advocate 2003 SCCR 640............................................................ 235 DS v HM Advocate 2007 SC (PC) 1, 2007 SCCR 222.......................................75, 107 F v Kennedy (No 2) 1993 SLT 1284...................................................................... 132 F v Scottish Ministers 2016 SLT 359........................................................................ 60 Fox v HM Advocate 1998 JC 94............................................................................ 136 Frew v Jessop 1990 SLT 396.................................................................................. 122 GM v HM Advocate [2011] HCJAC 112................................................................. 27 Gage v HM Advocate [2011] HCJAC 40......... 10, 11, 12, 144, 148, 155–156, 161–165, 167–168, 171, 173, 186–189, 192 Gallagher v Paton 1909 JC 50............................................................................... 103 Gilmour v HM Advocate 2007 SLT 893..................................................... 33, 35, 171 Grimmond v HM Advocate 2002 SLT 508............................................................. 171 Haddow v Glasgow City Council 2005 SLT 1219.................................................... 133 Hamilton v HM Advocate 1934 JC 1..................................................................... 139 Haggerty v HM Advocate 2013 JC 75................................................................ 35, 36 Hanif v HM Advocate [2008] HCJAC 47.......................................................141, 147 Hartley v HM Advocate 1979 SLT 26...................................................................... 33 Hodgson v HM Advocate [2012] HCJAC 55; 2012 SCL 817................................... 171 Holland v HM Advocate [2005] UKPC D 1; 2005 SLT 263.........16, 149, 152, 242–243 Hughes (Sean Stephen) v HM Advocate 2009 JC 201.............................................. 124 Japan Leasing (Europe) plc v Weir’s Trustee (No 2) 1998 SC 543...............132, 133, 134 Jenkins v HM Advocate [2011] HCJAC 86; 2011 SCL 927.......................168–169, 173 Judge v United Kingdom 2011 SCCR 241................................................................ 75 K v HM Advocate 2011 SCCR 495...................................................................... 102 Kennedy v Cordia (Services) LLP [2016] UKSC 6; 2016 SLT 209..... 163, 165, 166, 167, 181, 192 Kinnin v HM Advocate 2003 SCCR 295................................................................. 76 Kinsella v HM Advocate [2011] HCJAC 58........................................................... 141 Lawrie v Muir 1950 JC 19; 1950 SLT 37..........................................................23, 131 Lauchlan v HM Advocate [2014] HCJAC 62......................................................... 103 LB v HM Advocate 2003 JC 94............................................................................. 171 Leggate v HM Advocate 1988 JC 127.................................................................... 106 Lord Advocate’s Reference (No 1 of 2001) 2002 SLT 466.......................................... 18 Lukstins v HM Advocate 2013 JC 124..................................................................... 21 M v HM Advocate 2011 SLT 1047....................................................................... 103 M v HM Advocate 2012 SCL 1037......................................................................... 26 M v HM Advocate (No 2) [2013] HCJAC 22, 2013 SLT 380..................77, 78, 79, 171 MacKay v HM Advocate 2005 JC 24; 2004 SCCR 478...................................169, 171 Manuel v HM Advocate 1958 JC 41.................................................................. 32, 35 Maxwell v HM Advocate 1990 JC 340.................................................................. 143

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McAvoy v HM Advocate 1991 JC 16; 1991 SCCR 123.......................................... 157 McBrearty v HM Advocate 2004 JC 122; 2004 SLT 917.................................. 170–171 McCrae v HM Advocate 2005 1 JC 182................................................................ 102 McCrann v HM Advocate 2003 SCCR 722............................................................. 44 McFadden and Spark v HM Advocate [2009] HCJAC 78........................................ 139 McGartland v HM Advocate [2015] HCJAC 23; 2015 SCCR 192; 2015 SCL 471.... 139, 170 McGowan v B 2012 SC (UKSC) 182................................................................ 30, 31 McInnes v HM Advocate 2010 SLT 266.................................................................. 26 McKenna v HM Advocate 2003 SLT 769.............................................................. 135 McLean v HM Advocate [2011] HCJAC 99........................................................... 152 McLeod v HM Advocate 1998 SCCR 77............................................................... 242 McNally v HM Advocate [2012] HCJAC 156........................................................ 139 Miln v Cullen 1967 JC 21.......................................................................... 36, 38, 131 Moir v HM Advocate 2005 1 JC 102....................................................................... 74 Moorov v HM Advocate 1930 JC 68.................................................................44, 101 Morrison v HM Advocate 1990 JC 299.................................................................. 122 Muldoon v Herron 1970 JC 30........................................................................122, 143 Mutebi v HM Advocate [2013] HCJAC 142....................................................... 44, 55 MR v HM Advocate [2013] HCJAC 8, 2013 JC 212........................................102, 194 N v HM Advocate 2003 JC 140.....................................................................134, 137 NC v HM Advocate [2012] HCJAC 139..................................139, 144, 147, 148, 152 Nelson v HM Advocate 1994 SLT 389.................................................................. 110 Neeson v HM Advocate 1984 SCCR 72................................................................. 143 Paton v Ritchie 2000 JC 271.................................................................................... 20 Ogg v HM Advocate 1938 JC 152......................................................................... 102 O’Shea v HM Advocate 2015 JC 201.................................................................... 128 Patterson v Grattan plc 2011 SLT (Sh Ct) 2............................................................ 133 Paul v HM Advocate 2014 SCL 230.................................................................. 25, 34 Poole v HM Advocate [2009] HCJAC 42; 2009 SCL 910........................................ 202 Pringle v Service 2011 SCCR 97............................................................................ 102 Reid v HM Advocate 1999 SCCR 769................................................................... 103 Reid v HM Advocate [2016] HCJAC 41; 2016 SCL 448..................................139, 170 Rigg v HM Advocate 1946 JC 1........................................................................ 22, 38 Robson v HM Advocate [2014] HCJAC 3.................................................139, 152, 155 Ross v HM Advocate [2016] HCJAC 54................................................................. 139 Russell v HM Advocate 1990 SCCR 18................................................................. 102 S v HM Advocate 2007 SLT 1026........................................................................... 98 Scottish and Universal Newspapers v Gherson’s Trs 1987 SC 27............................... 133 Sinclair v HM Advocate 2005 SLT 553............................................................16, 242 Smith v HM Advocate 1986 SCCR 135................................................................. 143 Smith v Lees 1997 JC 73................................................................................... 44, 55 Snowden and Jennings v HM Advocate [2014] HCJAC 100; 2014 SCL 736............. 139, 156, 167 Stark and Smith v HM Advocate 1938 JC 170.................................................... 22, 38



Table of cases

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Strachan v HM Advocate [2011] HCJAC 28.......................................................... 154 Strawhorn v McLeod 1987 SCCR 413................................................................... 235 Toal v HM Advocate [2012] HCJAC 123.......................................................139, 152 Wade v Robertson 1948 JC 117.......................................................................... 22, 38 Walker v HM Advocate [2015] HCJAC 122............................................................ 44 Watson v HM Advocate 1993 SCCR 875................................................................ 19 Webb v HM Advocate 1996 JC 166; 1997 SLT 170................................................ 157 Webster v HM Advocate [2013] HCJAC 161.......................................................... 103 Walsh v HM Advocate 1961 JC 51........................................................................ 103 Welsh v HM Advocate 1992 SLT 193................................................................... 139 White v HM Advocate 1986 SCCR 224................................................................ 122 Williamson v Wither 1981 SCCR 214................................................................... 154 Wilson and Murray v HM Advocate [2009] HCJAC 58; 2009 JC 136...............167, 171 Woodland v Hamilton 1990 SLT 565...................................................................... 33 Young v HM Advocate [2013] HCJAC 145; 2014 SLT 21; 2014 SCL 98.........163, 165, 181, 183, 184

UNITED STATES Commonwealth of Pennsylvania v Walker 92 A 3d 766 (2014).................................. 156 Daubert v Merrell Dow Pharmaceuticals 509 US 579 (1993).................................... 184 Frye v United States 293 F 1013 (DC Cir) (1923).................................................... 184 People v McDonald 37 Cal 3d 351; 208 Cal Rptr 236; 690 P2d 709 (Cal 1984).166, 189 Perry v New Hampshire 132 S Ct 716 (2012).......................................................... 153 United States v Ash 413 US 300 (1973)................................................................. 142 United States v Downing 753 F2d 1224 (3d Cir 1985)............................................. 166 United States v Fosher 590 F2d 381 (1st Cir 1979).................................................. 187 United States v Mathis 264 F3d 321 (2001)............................................................ 166 United States v Smith 736 F2d 1103 (6th Cir 1984)................................................. 166 United States v Smith 621 F Supp 2d 1207 (2009)................................................... 156 United States v Smithers 212 F3d 306, 314 (6th Cir 2000)....................................... 166 United States v Stevens 935 F2d 1380 (3d Cir 1991)................................................ 166 United States v Wade 388 US 218 (1967)............................................................... 142 Winship, In re 397 US 358 (1970)........................................................................... 23

Table of legislation

AUSTRALIA Evidence Act 1995 ss 97–101....................................................................................................... 113 s 116.............................................................................................................. 113 Victorian Evidence Act 2008 s 80(b)............................................................................................................ 165

ENGLAND Civil Evidence Act 1972 s 3 166 Criminal Justice Act 2003.............................................. 110, 115, 117, 118, 119, 125 ss 99–112................................................................................................101, 115 s 114(1)...................................................................................................125, 137 ss 116–118..................................................................................................... 125 s 118(1).......................................................................................................... 112 s 126.............................................................................................................. 137 Criminal Justice Act 2003 (Categories of Offences) Order 2004 (SI 2004/3346)..... 115 Police and Criminal Evidence Act 1984 ss 41–44......................................................................................................... 147 Code D................................................................ 11, 146, 147, 148, 149, 151, 154 para.3.3.......................................................................................................... 146 para 3.12........................................................................................................ 148 para 3.14........................................................................................................ 147 para 23........................................................................................................... 151 Youth and Criminal Evidence Act 1999................................................................ 89

NEW ZEALAND Evidence Act 2006.............................................................................................. 215 s 8 112 ss 37–38......................................................................................................... 112 s 43................................................................................................................ 112 s 49................................................................................................................ 112



Table of legislation

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SCOTLAND Abusive Behaviour and Sexual Harm (Scotland) Act 2016................................... 203 s 6.................................................................................................................. 222 Civil Evidence (Scotland) Act 1988.....................................................9–10, 128, 133 s 1.................................................................................................................. 196 s 2....................................................................................................128, 132, 134 Crime and Punishment (Scotland) Act 1997.......................................................... 83 Criminal Justice and Licensing (Scotland) Act 2010 s 38.............................................................................................................46–47 ss 73–76......................................................................................................... 221 s 74................................................................................................................ 228 s 85................................................................................................................ 243 s 86................................................................................................................ 220 ss 168–171..................................................................................................... 220 Part 6 221, 243 Sch 7............................................................................................................. 220 Criminal Justice (Scotland) Act 1957 s 56................................................................................................................ 235 Criminal Justice (Scotland) Act 1980................................................................... 218 s 2 23, 28 s 10.........................................................................................................210, 218 Criminal Justice (Scotland) Act 1995................................................................... 219 s 16................................................................................................................ 219 s 18................................................................................................................ 244 Criminal Justice (Scotland) Act 2016...........................2, 19, 28, 29, 40, 140, 196, 221 s 1 21 ss 9–11....................................................................................................... 28, 29 s 13.................................................................................................................. 29 s 44............................................................................................................ 29, 32 s 32....................................................................................................... 28, 30, 31 s 57.........................................................................................................147, 222 s 63............................................................................................................ 21, 28 ss 65–72......................................................................................................... 222 ss 78–83......................................................................................................... 221 s 97................................................................................................................ 222 s 109.............................................................................................................. 128 Criminal Law (Consolidation) (Scotland) Act 1995 s 1 ................................................................................................................. 218 Criminal Procedure (Amendment) (Scotland) Act 2004.........................211, 220, 235 s 16................................................................................................................ 238 Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010......................................................................2, 20, 45, 196, 199, 230 Criminal Procedure (Scotland) Act 1975 s 141A........................................................................................................... 219

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Criminal Procedure (Scotland) Act 1975 (cont.) s 141B............................................................................................................ 219 s 346A........................................................................................................... 219 s 346B............................................................................................................ 219 Criminal Procedure (Scotland) Act 1995..............................73, 83, 91, 220, 221, 238 Part 2............................................................................................................... 20 ss 14–15............................................................................... 18, 20, 21, 27, 28, 45 s 18...........................................................................................................22, 219 s 71................................................................................................................ 236 s 72................................................................................................................ 236 s 97................................................................................................................ 154 ss 107A–F...................................................................................................... 228 s 148.............................................................................................................. 236 s 196.............................................................................................................. 235 ss 257–260............................................................................... 153, 237, 237, 244 s 258(4)A....................................................................................................... 238 ss 259–262...................................................................................9, 124, 137, 219 s 261ZA......................................................................................................... 128 s 266.............................................................................................................. 106 s 270.............................................................................................................. 106 s 271..................................................................................................... 21, 83, 91 ss 274–275................................................................................................. 58, 73 ss 276–284..................................................................................................... 237 ss 281–281C................................................................................................... 143 s 290................................................................................................149, 210, 218 Criminal Proceedings etc (Reform) (Scotland) Act 2007....................................... 220 s 20................................................................................................................ 238 s 43................................................................................................................ 211 s 50................................................................................................................ 235 Double Jeopardy (Scotland) Act 2011...........................................................221, 228 s 3.................................................................................................................. 228 s 4.................................................................................................................. 228 Incest and Related Offences (Scotland) Act 1986................................................. 218 Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 s 36...........................................................................................................73, 219 Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 ss 56–59......................................................................................................... 219 s 70................................................................................................................ 219 Mental Health (Care and Treatment) (Scotland) Act 2003 s 328................................................................................................................ 83 Offences (Aggravation by Prejudice) (Scotland) Act 2009 s 2.................................................................................................................... 86 Partnerships (Prosecution) (Scotland) Act 2013................................................... 207 Prisoners and Criminal Proceedings (Scotland) Act 1993 s 28................................................................................................................ 219



Table of legislation

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s 29................................................................................................................ 219 ss 33–35......................................................................................................... 219 Sch 3............................................................................................................. 219 Sexual Offences (Procedure and Evidence) (Scotland) Act 2002........................... 220 Sexual Offences (Scotland) Act 2009..............................................................71, 221 Victims and Witnesses (Scotland) Act 2014............................................. 83, 90, 222 s1(3)(d)............................................................................................................. 59 s 10............................................................................................................ 83, 84 s 21.................................................................................................................. 91 Vulnerable Witnesses (Scotland) Act 2004................................................. 83, 84, 87 s 1....................................................................................................... 83, 91, 219 s 4...........................................................................................................143, 219 s 20................................................................................................................ 219 s 21................................................................................................................ 219

UNITED KINGDOM Contempt of Court Act 1981 s 8.............................................................................................................72, 158 Law Commissions Act 1965 s 2.................................................................................................................. 198 s 3............................................................................................ 198, 204, 205, 208

UNITED STATES Federal Rules of Evidence................................................................................... 114 Rule 403........................................................................................................ 153 Rule 702........................................................................................................ 164

INTERNATIONAL Convention for the Status of Refugees 1951.......................................................... 86

Introduction Peter R Duff and Pamela R Ferguson

The law of Scottish criminal evidence is changing rapidly. That much is incontestable. But what is driving this process and where is the destination? These are the two questions with which this collection is concerned. As the penultimate chapter by Chalmers, Leverick and Stark and the final chapter by Duff explain, the pace of change began accelerating around twenty years ago. The advent of the Scottish Parliament has undoubtedly contributed to the volume of legislation on criminal evidence, nonetheless, it is clear that there is no single overall reason explaining the rapid pace of change, far less any strategy put in place by the Scottish Government, the legal establishment, the Scottish Law Commission or any such collective mind. Thus, what is happening is not a logical ‘evolution’, pursued as part of any coherent framework, nor a ‘revolution’ being driven by a particular ideological approach.1 As this collection will show, a series of individual reforms has taken place in respect of a variety of evidentiary doctrines, practices and rules. These have occurred largely as a result of ‘events’,2 primarily political pressure brought to bear by interest groups and high-­profile cases leading to public concern, although some reforms have taken place in a more deliberate way as a result of a gradually perceived need by the legal establishment to update a particular aspect of Scottish criminal evidentiary law. The following essays will analyse the significant changes to the recent law in various areas, explain why they came about and attempt to set each reform in the broader context of the law of criminal evidence and procedure as a whole. More ambitiously, there will be some attempt to identify the future t­rajectory –o ­ r, perhaps, t­rajectories – o ­ f change, although, as Duff argues in the final chapter, it is impossible to forecast precisely what the Scottish law of criminal evidence might look like twenty years hence. In the opening two substantive chapters, the authors analyse the major 1

The successful application for research funding which led to this book was entitled: ‘Scottish Criminal Evidence: Evolution or Revolution?’. 2 We are thinking here of the possibly apocryphal response given by Harold Macmillan when asked to explain the biggest difficulty in politics: ‘Events, dear boy, events!’, E M Knowles, What They Didn’t Say: A Book of Misquotations (Oxford University Press: 2006) at vi, and 33.

­2

Scottish criminal evidence law

ramifications of Cadder v HMA.3 This decision on a human rights point by the Supreme Court in 2011 has probably had more impact on the law of Scottish criminal evidence than any other event in the past twenty years. In brief, it rendered inadmissible virtually all confessions from suspects obtained under the contemporary rules governing police interrogation because the then law allowed such questioning to take place prior to the suspect being given the opportunity to take legal advice. As explained in Chapter 1, by McDiarmid, Cadder caused considerable disruption to the Scottish criminal justice system and resulted in a large number of prosecutions proceeding at that time through the courts being abandoned because, without a confession, there was insufficient evidence to convict.4 Emergency legislation was immediately rushed through the Scottish Parliament, requiring that suspects be granted the opportunity to take legal advice before police questioning began.5 Following a report (of which more below), by Lord Carloway,6 this new regime was amended in respect of some its details, for example the time for which suspects could be held for inquiries to take place, and consolidated in the Criminal Justice (Scotland) Act 2016.7 McDiarmid explains and evaluates these changes to the rules governing the police questioning of witnesses and suspects in Scotland, which has an adversarial system of criminal procedure, and draws upon the jurisprudence espoused in the ‘Sons of Cadder’ cases that followed in the aftermath of the emergency legislation, and also went to the Supreme Court.8 In this light, she assesses, from an adversarial perspective, the strength and weaknesses of the new rules enacted by the 2016 Act. More broadly, she reflects on the balance between the witness/suspect’s rights and the public interest which has been created by the new regime governing the police interviewing of suspects. For the purposes of this analysis, she alludes to Packer’s famous ‘due process’ and ‘crime control’ ideological models of the criminal justice process.9 McDiarmid contrasts the traditionally short period in Scotland for which a suspect may be detained for questioning, both pre- and post-Cadder, before being either formally charged and arrested or released from police custody, on the one hand, with the longer period which applies in England on the other. She also draws upon the much longer English experience of Cadder v HMA 2011 SC (UKSC) 13. See also Duff, Chapter 9 in this volume. 5 Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. 6 The Carloway Review: Report and Recommendations (2011) (henceforth ‘Carloway Review’), available at: http://www.gov.scot/Resource/Doc/925/0122808.pdf (last accessed 15 March 2017) 7 At the time of writing, this legislation has not been fully implemented. 8 See R M White and P R Ferguson, ‘Sins of the father? The “sons of Cadder”’ 2012 Crim LR 357. 9 H L Packer, ‘Two models of the criminal process’ 113 (1964) University of Pennsylvania Law Review 1. 3 4



Introduction

­3

legal advice being available to the witness/suspect upon arrival at the police station to discuss the predominant form that the initial legal consultation now takes in Scotland, namely a telephone consultation with a solicitor prior to the police interview commencing. Next, McDiarmid deals with the question of whether suspects may waive their right to legal advice. As she explains, the new Scottish rules permit this and the Supreme Court has held that the use of a subsequent confession as evidence against the accused is not incompatible with the European Convention on Human Rights (ECHR). This, of course, raises the issue of the extent to which suspects realise the implications of not availing themselves of the opportunity to consult a solicitor prior to their being interviewed by the police. McDiarmid then discusses the importance of confessions to the Scottish criminal justice process and suggests that, even if the general requirement for corroboration is abolished (an issue which is the subject of Chapter 2 by Cairns), it might be argued that it should be retained in the context of confession evidence because of the well-­known danger of false confessions. There then follows a useful, brief analysis of the Scottish approach to the problem of the admissibility as evidence of the ‘fruit of the poisonous tree’. Finally, McDiarmid returns to her starting ­point – t­he stage in the criminal justice process at which a witness or suspect becomes entitled to take legal advice. As she explains, the effect of Cadder has been that it is now clear that such a person acquires this right at the point at which he is taken to, or voluntarily arrives at, the police station and the intermediate status of ‘detention’ which, for ‘crime control’ purposes, allowed the police a short window to interview the suspect/witness before the ‘detainee’ became entitled to consult a solicitor, has been abolished. In her conclusion, McDiarmid turns to the vexed question of whether, under adversarial ideology, the right to legal advice should become available to the witness/ suspect before arrival at the police station, an issue which has exercised the Supreme Court in some of the ‘sons of Cadder’ cases. In brief, she notes that the ECHR jurisprudence has come to no final conclusion on this matter but it is clear that the stance of the Supreme Court depends very much on the precise circumstances and content of the police questioning and the degree of suspicion which attaches to the person being questioned. As McDiarmid explains, there is, and can be, no obvious hard and fast rule as regards the preliminary questioning of witnesses and potential suspects and, indeed, the Supreme Court has decided such cases very much on an ad hoc basis. As indicated above, the new regime governing the conduct of the police in interviewing possible suspects was far from the only impact of Cadder. On the same day as the judgment was issued and the resulting emergency legislation was passed, the Minister for Justice announced that a senior judge, Lord Carloway, would be commissioned to produce a report making recommendations to take Scottish criminal evidence law forwards in the aftermath

­4

Scottish criminal evidence law

of Cadder.10 Lord C ­ arloway – n ­ ow Scotland’s most senior j­udge – d ­ uly ­produced his report just over one year later.11 As Cairns explains in Chapter 2, the Justice Minister included in Lord Carloway’s remit a review of the law of corroboration. This came as a surprise to many because superficially, this doctrine has nothing to do with the regime governing the police interviewing of suspects. Corroboration is the unique Scottish rule that an accused cannot be convicted in a criminal case unless there are two independent sources of evidence demonstrating his or her guilt. It is an ancient and well-­regarded rule which has attained the status in the minds of the Scottish legal establishment, and many informed citizens, of, in Sir Gerald Gordon’s words ‘one of the most notable and precious features of Scots criminal law, and as something which they will defend religiously’.12 The view of the Justice Minister appeared to be that the post-Cadder necessity of allowing a suspect access to legal advice before police interrogation commenced would make it much more difficult to obtain convictions because the legal advice to the suspect would invariably be to say nothing. In the absence of a confession, it was necessary, in his opinion, to consider the removal of the protection of corroboration for the accused in order to retain a fair balance between the rights of the accused, now bolstered by the ECHR, and the public interest in securing the conviction of the guilty. Over-shadowing all of the other recommendations made by Lord Carloway, the great bulk of which were concerned with securing an appropriate regime for police interrogation of suspects in the post-Cadder landscape, was his proposal that the safeguard of corroboration should be abolished.13 Cairns examines the way in which the Scottish Government, initially drawing upon Lord Carloway’s arguments, used an ‘access to justice’ rhetoric, focusing particularly on the victims of sexual offences and domestic abuse, to support the removal of the requirement for corroboration in the face of opposition from almost the entire legal establishment, many Members of the Scottish Parliament (MSPs), most legal commentators and even some women’s interest groups. She notes that this debate was highly politicised, a point expanded upon in Duff’s closing chapter, and that the major flaw in the Government’s case was that its ‘access to justice’ argument shifted considerably in meaning as the debate developed. As she explains, this led ultimately to the humiliating failure of the Government to abolish the doctrine of corroboration which now looks like it will remain 10

11 12

13

See H MacQueen and S Wortley, ‘The Supreme Court decides Cadder’, Scots Law News 26 October 2010: available at http://www.sln.law.ed.ac.uk/2010/10/26/thesupreme-court-decides-cadder (last accessed 15 March 2017); and Carloway Review (n 6) 1.0.6–7. Carloway Review (n 6). G Gordon, ‘At the mouths of two witnesses: some comments on corroboration’, in R F Hunter (ed), Justice and Crime: Essays in Honour of the Lord Emslie (1993: T & T Clark) at 33. Carloway Review (n 6) ch 7.



Introduction

­5

entrenched in the law of Scotland for at least the near future. In the first part of her chapter, Cairns explains that Lord Carloway based his recommendation to abolish the corroboration requirement on a number of grounds, none of which explicitly stated that this was necessary to improve the access of complainers in sexual abuse and domestic violence cases to justice. As she observes, the closest he came to this was in his controversial view that the quality of the evidence should be prioritised over the quantity and that the Scottish focus on the latter meant that the complainers in all crimes, particularly those committed in private,14 occasionally suffered a ‘miscarriage of justice’,15 in the sense that the insistence on corroboration denied them a conviction where a single piece of evidence was strongly indicative of guilt. In the next section of her chapter, Cairns shows how the Scottish Government (mis)interpreted this argument to claim that complainers in sexual cases, such as rape, and in domestic abuse cases were being denied their ‘day in court’16 as a result of the ‘archaic’17 requirement for corroboration which meant that there was no prosecution where there were not two independent items of evidence against the accused. She convincingly argues that this allowed the Government the opportunity to whip up public concern about the low prosecution and conviction rates in rape cases in a way which was almost certain to increase the Government’s electoral popularity. As the political furore increased (see Chapter 9 for a fuller account of this), the Government increasingly emphasised this ‘access to justice’ argument on behalf of alleged victims of sexual and domestic abuse, focussing strongly on the complainers in rape cases for whom, of course, the public has strong sympathy. Cairns argues that the Government never defined what it meant by ‘access to justice’: was it the denial of a prosecution and therefore to an appearance in court (which was controversially assumed by the Government to be a ‘good thing’ per se); or was it the denial of a conviction and therefore allegedly a miscarriage of justice at the expense of the victim (or, more accurately, in legal terms, the complainer)? Throughout this section of her chapter, Cairns analyses in detail how and why major differences began to emerge between Lord Carloway’s original argument concerning alleged ‘miscarriages of justice’ caused to victims as a result of the necessity for corroboration and the Government’s politicised rhetoric which increasingly seemed to be suggesting that a ‘right to be heard’ in court would somehow prove therapeutic for the alleged victims of rape and similar offences. In the final substantive section of her chapter, Cairns questions whether the removal of corroboration would actually lead to significantly more 14

15 16 17

Even here (ibid para 7.2.49), as Cairns points out, Lord Carloway did not refer specifically to sexual offences or domestic violence. Ibid paras 7.2.14 ff. See Chapter 2 in this volume at 52. Carloway Review (n 6) paras 7.2–7.3.

­6

Scottish criminal evidence law

complainers having their ‘day in court’ and whether securing procedural ‘justice’ alone would be experienced as a benefit by complainers, as the Government claimed, drawing attention to other possible and better r­ eforms – ­for example, independent legal representation for the complainer, which has not yet received any kind of official support. Cairns then criticises the Government’s traditional view that the criminal justice system, the main aim of which is to punish the offender, is the most appropriate vehicle for delivering justice to the victims of sexual and domestic abuse, citing various long-­mooted alternatives. In her conclusion, she observes that the failure of the Government’s attempt to abolish the doctrine of corroboration demonstrates that ‘penal populism’18 is a fragile basis for legal reform but that the debate has had the benefit of opening up what is meant by ‘access to justice’, particularly as regards the crime victims upon whom the Government focused. The issues raised by Cairns lead naturally on to Chapter 3 by Campbell and Cowan, whose topic is the protective measures that have been put in place in Scotland over the past twenty years or so in an attempt to improve the experience of complainers in sexual offences in the adversarial Scottish criminal justice system. They turn a sceptical eye upon the degree of protection provided to such complainers by the ‘rape shield’, which is meant to prevent them being asked in court about their previous sexual history, and by their designation as ‘vulnerable’ witnesses which brings a further range of protections, for example being allowed to testify at trial through a closed CCTV system rather than in open court. Using Scotland as a case study, Campbell and Cowan observe that, from feminist and critical perspectives, only a very small minority of sexual assaults ever end up in court and that the above, and similar, measures may serve as a distraction from the broader structural challenges faced by powerless segments of society. Furthermore, the concept of vulnerability itself is partly a social construct which may serve inadvertently to obscure problems for members of such groups in securing access to ‘substantive’ rather than procedural justice. In the first section of their chapter, Campbell and Cowan review the very low conviction rate for rapes and other sexual offences in Scotland and observe that in most cases the offender is known to the complainer. Hence, the issue at trial is usually one of consent, meaning that the relative credibility of the two parties becomes crucial. As a result, the character and previous sexual history of the complainer, particularly with the alleged offender, become crucial and, unfortunately, the research shows that ‘rape myths’19 – that an ‘unchaste’ woman is more likely to consent to sex and lacks ­credibility – a­ re still influential upon the jury. The following section of the chapter analyses the relative lack of success in Scotland of the ‘rape 18 19

See Duff’s closing chapter in this volume. R v Seaboyer (1991) 83 DLR (4th) 193 at 258 per McLachlin J.



Introduction

­7

shield’ – legislation that purportedly prevents the defence delving into the complainer’s sexual history except in the exceptional case where it is ­relevant – ­and notes the similar failure of the rape shield in other jurisdictions. The authors then turn their attention to the ‘special measures’ recently enacted in Scotland to protect vulnerable witnesses who are required to testify at trial. Campbell and Cowan examine critically the definition and concept of ‘vulnerability’ and the risks, much discussed in feminist theory, of this notion perpetuating social stereotypes, including ‘moralistic views’ about sex and gender, and ‘individualising’ complainers, rather than examining the broader social structures of inequality which create the circumstances for sexual offences and other forms of victimisation in the first place.20 The issue of the way in which legal practitioners identify vulnerable witnesses is then tackled, the conclusion being that there are shortcomings in the Scottish system similar to those that exist south of the border. There has been no research done in Scotland on the effectiveness of special measures and the impact of, for instance, witness testimony contained in pre-­recorded interviews or given through CCTV at trial. However, Campbell and Cowan review the evidence from other jurisdictions, observing that various problems remain, not least the reluctance of prosecutors and judges to rely on such mechanisms. The authors conclude Chapter 3 by emphasising the main thrust of their argument, namely that while mechanisms aimed at improving the position of individual vulnerable witnesses are welcome, nevertheless: what is needed is a more systemic focus on the ways in which certain kinds of victims become, by virtue of their circumstances, especially vulnerable, both to being sexually assaulted in the first instance and to being denigrated and disbelieved in the criminal justice process, with little likelihood of being treated with respect, dignity or indeed receiving just outcomes, however that might be understood.21

In Chapter 4, Davidson looks at the other side of the coin, as it were, namely the character of the accused, rather than the complainer, and the complex technical rules in Scots law governing the admissibility of evidence as to the accused’s previous convictions and/or bad character. At the outset, it is important to note that the highly controversial acquittal in 2007 of a convicted serial sex offender and killer for the notorious and long unsolved ‘World’s End’ murders22 led to proposals by the Scottish Law Commission (SLC) for reform of the ‘similar facts’ evidence rules in Scots law (as Davidson explains in the second part of his chapter). This process was halted while the Scottish legal system coped with the ramifications of the intervening Cadder case (see Duff’s concluding chapter for a full description of this 20 21 22

See Chapter 3 in this volume at 94. Ibid at p 96. So called because the two victims were last seen in an Edinburgh bar with that name.

­8

Scottish criminal evidence law

series of events) but the Scottish Government may well move on shortly to the implementation of the SLC’s proposals. Davidson begins by analysing critically the doctrine of similar facts evidence, a feature of most common law adversarial jurisdictions, but not recognised as a general evidentiary principle in Scotland. He explains that in Scots law what might be regarded as similar facts evidence is nevertheless admissible in various, particular, narrowly prescribed sets of circumstances which, taken together, do not comprise a logical and coherent approach. In particular, he describes the Moorov doctrine, which allows the Scottish requirement for corroboration in criminal cases to be met where two complainers testify that the accused committed similar acts against them, noting that it is limited to the situation where the accused is currently charged with two or more similar offences and therefore cannot be used where previous convictions would comprise the ‘similar fact’ evidence (which was the problem in the ‘World’s End’ case). In the second part of Chapter 4, Davidson analyses the SLC’s proposals and the draft legislation it produced, explaining that the SLC envisaged sweeping aside all the technical rules governing admissibility of the accused’s previous convictions and bad character and replacing them with a simple test of relevance, subject to some minor qualifications. This would replace both the Moorov doctrine and the current rather complicated regime whereby the accused’s previous convictions and/or bad character may become admissible if the accused gives evidence against a co-­accused, the defence attacks a complainer or other witness’s character23 or puts his own good character in issue. Davidson concludes this part of his chapter by questioning the SLC’s very broad and robust approach to the admissibility of similar facts evidence, observing tartly that its report contains no reference to the empirical research and academic reflection on the effect upon a jury of such a policy. In the next section, the similar facts evidence regime in a number of common law countries is examined to see whether there might be an alternative model to the SLC’s somewhat crude suggestion. It swiftly becomes apparent that in most jurisdictions, the court must be satisfied that the probative value or strength of the evidence must outweigh its potential prejudicial effect on the jury in order for the similar facts evidence to be admissible, a test which the SLC did not think necessary in Scotland, preferring to rely on the common sense of the jury. In his conclusion, Davidson argues that, whether or not the requirement for corroboration is eventually removed, there is a clear need for reform of the Moorov doctrine. While acknowledging that balancing the probative value of the evidence against its potentially prejudicial effect is essentially to compare apples with oranges, Davidson’s view is that this is the 23

Complicating the picture further, as Davidson explains, there are separate rules under the ‘rape shield’ legislation whereby the accused’s relevant previous convictions become admissible if the defence attacks the complainer’s character during a sexual offence trial.



Introduction

­9

most appropriate way forward for Scots law. He concludes that while this ­inevitably involves a value judgement by the trial judge, something which the Scottish judiciary has not always been keen to embrace, it is a more appropriate approach than that recommended by the SLC which sought to minimise judicial discretion as regards the admissibility of ‘similar fact’ evidence. In Chapter 5, Maher turns to the law on hearsay in criminal trials in Scotland and reflects critically upon its future.24 As is common in other jurisdictions, the general rule that hearsay evidence is inadmissible is subject to so many exceptions that the application of the rule has become the exception. Hearsay was one of the first areas addressed in the current wave of criminal evidence reforms in Scotland; this stemmed from a need, perceived by the Scottish legal establishment, for improvement of the complex and at times incomprehensible rules on this form of evidence and was not the result of any external social and political pressures. As Maher explains early in his chapter, the SLC evaluated the hearsay rule in criminal procedure, and its exceptions, during the first half of the 1990s,25 including the rules governing prior statements made, usually to the police, by witnesses. The result was a modest package of reforms implemented by the Criminal Procedure (Scotland) Act 1995, ss 259–262. Maher observes that this attempt to improve and clarify the law of hearsay was mirrored by similar and contemporaneous efforts in other adversarial systems, most notably England and Wales, Hong Kong and Ireland, and briefly analyses the results of such reforms. His conclusion is that these initiatives have amounted to tinkering with the existing law without confronting the premise(s) underlying the policy and, therefore, he proposes a major ‘rethink’ of the entire issue.26 Maher’s premise is that there are two basic rationales for excluding hearsay evidence: first, because it is unreliable and its weight is therefore difficult for a jury (or judge) to assess; second, because it would be excluded by some other evidentiary rule, outwith the scope of hearsay. For instance, the hearsay doctrine would exclude confessions extracted from the accused by the police, except for the fact that there is an exception for this type of evidence under the hearsay rules, but, as Maher points out, the accused is already given sufficient protection under Scots law because any unfair or oppressive behaviour by the police renders the statement inadmissible. Now, of course, the effect of Cadder also excludes any such statement if the suspect is not offered legal advice before police questioning begins. At this stage, Maher perceptively observes that it is the first rationale for ­exclusion – ­issues concerning the weight which should be given to the ­statement – ­that was abolished in civil proceedings by the Civil Evidence (Scotland) Act 1988, 24

25 26

The rule against hearsay in civil proceedings in Scotland was effectively abolished in 1988, a point Maher comes to later in his chapter. Evidence: Report on Hearsay Evidence in Criminal Proceedings (Scot Law Com No 149, 1994). Chapter 5 at 138.

­10

Scottish criminal evidence law

which states that evidence shall not be inadmissible simply because it is hearsay. Maher proposes that this approach should be followed in criminal procedure. As regards the second rationale, Maher proposes that each of the other principles governing admissibility should be re-­ examined to assess the extent to which they justify excluding hearsay. In Maher’s view, the combination of these two suggestions would result in a ‘reconceptualisation’ or ‘reconstruction’ of the existing law rather than the complete abolition of the hearsay regime in criminal proceedings. He notes that the new approach in civil proceedings has not given rise to any great problems, and challenges the argument put forward by the SLC that the difference in purpose between civil and criminal proceedings justifies a differential approach to the use of hearsay evidence. In the second half of the chapter, Maher works through the implications for criminal proceedings of the application of the modern Scottish civil evidence rules. He discusses in particular whether this approach could be reconciled with the potential difficulties posed by both the ‘best evidence’ rule and the so-­called ‘right to confrontation’, embodied in art 6(3)(d) of the ECHR, and concludes that any problems could relatively easily be overcome. In Maher’s view, therefore, the general rule against hearsay in the law of Scottish criminal evidence could be abolished and, with it, the complex web of exceptions and ‘fiddles’ that has grown up around it.27 In Chapter 6, Ferguson examines the vexed issue of eyewitness identification in Scots law, a controversial subject in all criminal jurisdictions. This problem came to the fore in Scotland in the recent case of Gage, where the Appeal Court ruled that expert psychological evidence as to the reliability of eyewitness identifications was inadmissible,28 and was also considered by the Bonomy Post-­Corroboration Safeguards Review (which was established following Lord Carloway’s recommendation that the requirement for corroboration should be abolished).29 As Ferguson explains at the outset, she was on the Academic Expert Group appointed by Lord Bonomy to prepare a report for his review,30 and was author of the chapter on eyewitness identification in its report, as well as a member of his Independent Reference Group which contributed to his final report. In the first part of the chapter, she reviews the current Scottish approach, including the practice of ‘dock identification’, namely identification of the accused by the witness at trial, which most commentators have long argued should be abolished. After this 27

28 29

30

D J Birch, ‘Hearsay-­logic and hearsay-­fiddles: Blastland revisited’, in P Smith (ed) Criminal Law: Essays in Honour of JC Smith (1987: Butterworths) at 24. Gage v HM Advocate [2011] HCJAC 40. Post-Corroboration Safeguards Review: Final Report, available at: http://www.gov.scot/Resou​ rce/0047/00475400.pdf (last accessed 15 March 2017). Report of the Academic Expert Group, available at: http://www.gov.scot/Resource/0046/00460650. pdf (last accessed 15 March 2017). Unsurprisingly, several other contributors to this volume were members of this group.



Introduction

­11

comparatively brief introduction, Ferguson discusses at length the weaknesses of eyewitness identification and reviews in detail the wealth of empirical research which has been carried out upon this topic. As she explains, many of these psychological studies reach counter-­intuitive conclusions, firmly at odds with the common-­sense approach favoured by the Scottish judiciary, confirmed in a series of recent appeals, whose attitude is mirrored in other jurisdictions. The estimated level of misidentifications suggested by the research is staggering and these results are reinforced by the fact that in most jurisdictions, the biggest single cause of miscarriages of justice is mistaken identifications by eyewitnesses.31 In the third section of Ferguson’s chapter, she recommends a number of changes to the current rules on eyewitness identification in Scotland, many of which were supported by Lord Bonomy in his review. As regards pre-­trial identification, she suggests that the Lord Advocate’s guidelines on the appropriate procedures should be given statutory force following the example of Code D of the Police and Criminal Evidence Act 1984 (PACE) south of the border. Any material breach of these would lead to the evidence being excluded and any other breach that calls into question the fairness or accuracy of the identification would also lead to exclusion unless the prosecution can demonstrate that the evidence is nonetheless reliable. Ferguson also recommends that the practice of dock identification should be abolished. Further, she suggests that, as in England and Wales and in the USA, the judiciary in Scotland should be given a general discretion to exclude ‘unsatisfactory’ identification evidence and that the trial judge should be given the power to direct an acquittal where the identification is particularly weak, rather than leaving this issue to the jury. The penultimate subject to be dealt with is the marked reluctance of Scottish judges, recently confirmed in Gage, to allow jurors to hear evidence from expert witnesses about the reliability of eyewitness evidence. This stance is taken by the judiciary in other adversarial jurisdictions too, although, as Ferguson briefly reveals, there are signs of change in the USA. Finally, she deals with the related subject of judicial warnings to the jury about the perils of eyewitness testimony in all cases, which are often claimed to render expert evidence superfluous, and questions whether the current Scottish approach of leaving it to the discretion of the trial judge, whether to give a warning and in what terms, should be replaced by a mandatory regime. Ferguson also explains that a failure by a judge to give a warning, even where the evidence is weak or of low reliability, is not necessarily fatal to the conviction. The conclusion to her chapter contains a list of recommendations aimed at improving the Scottish approach to eyewitness testimony. The next chapter follows on naturally from Ferguson’s discussion of eyewitness evidence in that it deals with the more general issue of expert 31

See footnote 5 to Chapter 7, by Nicolson and Auchie, in this volume, for a comprehensive list of references.

­12

Scottish criminal evidence law

psychiatric and psychological evidence (henceforth, following the authors, termed ‘psychological’ evidence) on witness credibility and reliability, focussing particularly on Gage, where, as we saw above, the Scottish High Court ruled that expert evidence about the reliability of eyewitnesses’ identification of an accused was inadmissible. The first substantive section of Nicolson’s and Auchie’s chapter deals with the Scottish approach to expert psychological evidence about ‘witnessing’ and explains that: (1) it is not clear whether the admissibility test is one of ‘helpfulness’ or ‘necessity’; (2) the courts have been more sympathetic to generalisations or ‘social framework’ evidence, based on the expert’s knowledge of her field (for example, about how human memory operates), than to ‘opinion’ evidence (for example, about the reliability of the memory of an individual witness in the particular case in which the expert may be giving evidence); (3) there has been a tendency by the courts to conflate credibility and reliability which has confused their discussion of expert psychological evidence; and (4) the rule that requires the witness to suffer from a diagnosed mental illness, or a recognised psychiatric or psychological ‘condition’, before an expert’s evidence is admissible, is slowly being relaxed to allow the admission of evidence that the witness has a ‘special feature’ which may affect his or her apparent credibility and reliability (for instance, having been the victim in a case of alleged child sex abuse). In the second part of Chapter 7, Nicolson and Auchie argue that social framework evidence should always be admissible if it is helpful, whether the witness has ‘special features’ or not, and they go on to argue that even if necessity is the test, it could be claimed that such evidence should be generally admissible. They challenge the view of the Appeal Court in Gage that the ‘common sense’ and ‘life experiences’32 of the jury will allow them accurately to evaluate the credibility and reliability of ‘normal’, as it were, witnesses. In support, Nicolson and Auchie cite a wealth of research studies from the social sciences where it is broadly agreed that many common-­sense assumptions, for instance, that the confidence with which the witness provides his or her testimony is an indicator of credibility, are, quite simply, mistaken. The same applies to juries’ evaluations of the reliability of witnesses, although in both instances, social scientists have found it difficult to assess the precise measure of the extent to which common-­sense assessments are inaccurate. Nevertheless, it is abundantly clear that common sense and life experience are not enough for jurors, or any other human beings, accurately to evaluate the credibility or reliability of witnesses’ testimony in court. The final section of their chapter begins by asking whether expert psychological evidence on witnessing is sufficiently reliable to be used in court. Unsurprisingly, Nicolson and Auchie provide a positive answer: while drawing attention to the weaknesses of such evidence, they convincingly argue that the ‘hard’ forensic sciences, for example, pathology, are given a 32

Gage (n 28) paras 30 and 35.



Introduction

­13

‘free pass’33 by the courts despite suffering from many of the same weaknesses as psychological evidence. They conclude that it would be illogical and foolish for the courts to rule out all psychological findings on the grounds of their lack of certainty and to do this would be to hold the ‘soft’ sciences to a higher standard than the ‘hard sciences’. Next, the authors distinguish evidence as to witness credibility from that relating to reliability. As regards the former, in their view, expert psychological evidence would not be sufficiently helpful to fact-­finders in assessing witness credibility to justify the fundamental change to the nature of the adversarial criminal trial that this would entail. As regards expert psychological evidence on reliability, however, their conclusion is different and they criticise the courts for adopting an attitude that a ‘little knowledge’ on the jury’s part is dangerous and somehow worse than no knowledge at all.34 They then dismiss the claim that such evidence, and the potential of a ‘battle between the experts’, would confuse and panic the jury, pointing out that this argument is equally valid when it comes to highly technical evidence from the ‘hard’ sciences, which is routinely admitted. Finally, Nicolson and Auchie argue that other techniques to assist the jury in assessing the reliability of witnesses, primarily judicial warnings and cross-­examination, are not as helpful as the admission of expert psychological evidence and, consequently, that social framework psychological evidence as to witness reliability should be rendered generally admissible in Scottish criminal trials. In the penultimate chapter, Chalmers, Leverick and Stark analyse the many and various mechanisms which have been used to bring about the recent wave of criminal evidence law reforms in Scotland. Their aims are: to determine the relative strengths and weaknesses of each approach; to suggest how potential areas for reform might be identified; and to discuss how the success of such reforms might be evaluated. The authors begin by describing briefly some of the more significant recent reforms and their outcomes.35 They then explain in more detail the way in which each of these potential reforms was identified and carried out and the relative advantages and disadvantages of each of the different approaches. For instance, Scottish Law Commission proposals tend to be very thoroughly researched but the process tends to be slow, whereas reforms suggested by reviews carried out by a single judge are faster but less thorough and sometimes reflect the views of the individual concerned, flying in the face of the opinions held by the majority of the legal establishment. In the third and longest section, Chalmers, Leverick and Stark begin by looking in detail at the way in which issues for reform are selected by, and 33 34 35

See Chapter 7 at 181. See Chapter 7 at 185. A comprehensive list of reforms can be found in the Appendix to Chapter 8, along with the methods used.

­14

Scottish criminal evidence law

for, the SLC. Using this process as a model allows them to consider how reform projects which are to be carried out through other mechanisms might best be identified. As regards the SLC, particular tasks are either referred by Government or are generated internally by the SLC after consultation as a result of its statutory duty to ensure Scots law works satisfactorily and any deficiencies are addressed. Government references have become increasingly common, particularly in the field of criminal evidence, often as a result of political pressures and, obviously, this has diverted the SLC’s limited resources from its more objective attempts to identify and reform problematic areas of law. As regards the latter, Chalmers, Leverick and Stark explain that the SLC has developed a set of criteria to determine which projects to take on, and that given the present lack of a Commissioner with expertise in criminal law and associated areas, it is unlikely to undertake a project on criminal evidence or procedure in the near future. Not surprisingly, they think that this is an undesirable situation and support the SLC’s mooted proposal to second suitable individuals from academia or elsewhere to the Commission, and further suggest that the SLC could use its statutory power to recommend that other bodies could take on reform projects for which the Commission does not have the capacity. The authors then argue that the criteria used by the SLC to identify issues to review, of which they generally approve, should be used by the other bodies concerned with law reform to determine the relative priority of legal reforms that are desirable, including in the area of criminal evidence. The authors then consider how the success of legal reform projects might be evaluated, both in terms of whether the reform process results in changes to the law and the assessment of the extent to which these changes achieve the desired aims. In terms of the former, most projects have led to implementation, but as Chalmers, Leverick and Stark explain, important parts of the recommended changes have not been carried out on some occasions. They argue that a fairly obvious ­hypothesis – ­namely that minor, technical reforms are more likely to be implemented than major ­changes – ­is not borne out by analysis but that it does appear that traditional elements of Scots law, for example distinctive approaches not used in other jurisdictions, are resistant to change, particularly when these are evidential rules appearing to offer protection to the accused from wrongful conviction. More important, however, is the extent to which a consensus for reform is built and, here, genuine consultation seems to matter, particularly when opposing arguments are addressed in the final report produced by the law reformer, a task at which the SLC is very good. Finally, the authors discuss how the success of the ensuing legislation might be assessed, drawing on a list of criteria suggested by Ormerod, an English Law Commissioner.36 36

D Ormerod, ‘Reflections on the courts and the Commission’, in Dyson et al, Fifty Years of the Law Commissions (2016: Hart) 326 at 335.



Introduction

­15

Summing up their scrutiny of the various methods by which legal reform has been attempted, Chalmers, Leverick and Stark conclude that the SLC has been the most successful, primarily because of ‘the thoroughness of its research and documentation of its reasoning’37 but observe it may not be the best model if the need for reform is urgent and that it sometimes lacks the necessary expertise. In the final chapter of the book, Duff speculates upon what is driving the current wave of reform in the Scottish law of criminal evidence and in what direction it is taking the law. He suggests that, as well as the obvious precipitating factors which have been subject to much d ­ iscussion – p ­ rimarily the new focus on the rights of crime victims (more accurately alleged victims or complainers) and the impact of the incorporation of the ECHR into the domestic l­aw – ­there are two other new factors at play. The first of these is what many theorists in the broader field of criminal justice, who invariably adopt a socio-­legal approach, term ‘penal populism’ or the increased ‘politicisation’ of criminal justice policy.38 As Duff explains, criminal justice began to arrive on the political agenda in the developed world in the 1970s as a result of rising crime rates, both real and perceived, and politicians seeking to boost electoral support by promising to reduce the level of crime, thus ensuring the safety of the public, by being tough on crime and criminals. This phenomenon has slowly trickled through the field of criminal justice and has begun to affect the law of criminal evidence, which had hitherto been left to the experts. In the first part of his chapter, the author provides two examples, both forming the basis of other chapters in this volume, of the process of politicisation being the catalyst for reform of Scottish criminal evidence law.39 The first illustration is that of the infamous ‘World’s End’ murders,40 long unsolved until a ‘cold case’ review, aided by DNA testing, found a match between a serial sexual killer, already serving a life sentence, and semen on the underclothes of the two dead girls. The trial collapsed in a welter of publicity after a controversial ruling by the judge and, in response to the public storm, the Justice Minister immediately referred three issues to the SLC: whether the Crown should be enabled to appeal against a decision by a trial judge which effectively brings the prosecution to an end; whether the long-­standing rule in Scots law against double jeopardy should remain (the aim clearly being to allow another prosecution in the World’s End case); and, at risk of simplification, whether the doctrine of similar facts evidence 37 38

39 40

See Chapter 8 at 216. For summaries of this concept and further references, see D Downes and R Morgan, ‘The skeletons in the cupboard: the politics of law and order at the turn of the millenium’, in M Maguire et al (eds), The Oxford Handbook of Criminology, 3rd edn (2002: Oxford University Press) at 286; T Newburn, Criminology (2007: Willan) at 14–15. See Chapters 1 and 4, by McDiarmid and Davidson respectively. These are briefly discussed in Chapter 4, as already mentioned above.

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Scottish criminal evidence law

should be introduced to Scotland (which would have allowed the fact that the accused in the World’s End case was a convicted sexual killer to be put to the jury). The SLC reported on the first two issues and the law was duly amended in each area (a successful prosecution in the World’s End case following). The SLC’s recommendations on the third point are the subject of Davidson’s chapter and, as he explains, have not yet been implemented.41 Duff’s second example is that of the Cadder case, which effectively brought to an end the prosecution of a host of minor cases and hundreds of serious cases. This caused public outrage, primarily whipped up by the tabloid press and politicians’ reactions. As described above, McDiarmid explains in her chapter that the judgment in Cadder led again to immediate action by the Justice Minister and radical changes to the rules under which the police questioning of suspects must take place. The politicisation of the Cadder case also led to the proposal to abolish the long-­standing corroboration rule in Scots criminal law, which caused much public and political debate but ultimately has not taken place as yet, and this is the subject of the chapter by Cairns. The second new factor driving the rapid reform of criminal evidence, according to Duff, is a culture of managerialism, identified by various commentators in the broader fields of social policy and public administration, which has attempted to import private-­sector practices to the public sector with their emphasis on targets, performance indicators, outputs and so on.42 In the broader field of criminal justice, the author cites the rise of plea bargaining and sentence discounting in Scotland, which prioritises the efficiency of the criminal justice process above that of the substantive justice the system is supposed to deliver.43 In the field of criminal evidence, the increasing emphasis given to pre-­trial hearings and their efficient management by a sometimes reluctant judiciary, in order to improve the efficiency of the criminal justice system, have been accompanied by attempts to pressurise the competing parties to agree all uncontroversial evidence prior to trial. Duff argues that the necessity of securing full disclosure by the Crown to the defence of all the evidence prior to trial, in order to comply with the ECHR,44 has been leapt upon by the proponents of managerialism who envisage this will lead to an increase in early pleas of guilty and thereby save the time and money of running a full trial. This was amply demonstrated in a recent judgment, involving a Full Bench of seven judges, where Lord Carloway’s leading judgment is imbued with the ethos of managerialism, albeit tempered 41 42

43

44

Report on Similar Fact Evidence and the Moorov Doctrine (Scot Law Com No 229, 2012). For summaries of this concept and further references, see J McEwan, ‘From adversarialism to managerialism: criminal justice in transition’ (2011) 31 Legal Studies 519; J Clarke et al (eds), New Managerialism, New Welfare (2000: Sage), in particular, E McLaughlin and J Muncie, ‘The criminal justice system: New Labour’s new partnerships’ at 169. See F Leverick, ‘Tensions and balances, costs and rewards: the sentence discount in Scotland’ (2004) 8 Edin LR 360; M McConville, ‘Plea bargaining: ethics and politics’ (1998) 25 JLS 562. See Sinclair v HM Advocate 2005 SLT 553 and Holland v HM Advocate 2005 SLT 263.



Introduction

­17

by references to the need to comply with the rights of the accused.45 Finally, Duff discusses the Scottish Courts and Tribunals Service’s current ambitious plans,46 inspired by Lord Carloway, and now in the hands of Scotland’s second most senior judge, Lady Dorrian, to reduce substantially the number of witnesses who have to be called to those few criminal trials still necessary, with the aims of sparing vulnerable (and other) witnesses the ordeal of being cross-­examined in open court, improving the quality of their evidence and, significantly, reducing the length and costs of the trial.47 In his concluding comments, Duff observes that it is very difficult to forecast the future shape of Scottish criminal evidence law because of the variety of new factors which are influencing its development, primarily the effects of the ECHR, the emphasis on victims’ rights, penal populism and managerialism. These are not necessarily always pushing in the same direction and it is impossible to predict the effect of the serendipitous phenomenon of penal populism: for instance, were it not for the scientific advances in the use of DNA, the World’s End case would not have been brought to trial, the double jeopardy rule would probably still exist and the reform of the Moorov doctrine and the introduction of similar facts evidence would not be on the agenda. What can be predicted however, in Duff’s view, is that the traditional adversarial nature of Scottish criminal evidence and procedure will be subjected to further changes as a result of the above forces.

45 46

47

Ashif and Ashraf v HM Advocate [2015] HCJAC 100. These are also cited by Chalmers, Leverick and Stark, in Chapter 8, who also emphasise their potential significance. SCTS, Evidence and Procedure – the next steps, available at: https://www.scotcourts.gov.uk/aboutthe-scottish-court-service/scs-news/2015/04/28/evidence-and-procedure---the-next-steps (last accessed 15 March 2017).

Chapter 1 Cadder and beyond: suspects’ rights and the public interest Claire McDiarmid

INTRODUCTION In a system of criminal law and justice still underlain by the common law, such as Scotland’s, individual cases do, on occasion, effect major change in legal principle.1 It is less usual, however, for such cases to have an instant and seismic effect on practice as did the Supreme Court’s decision in the case of Cadder v HMA2 in 2010, though this judgment was not unexpected.3 In their blog, MacQueen and Wortley described it as ‘a major decision shaking the Scottish criminal justice system to its roots’.4 The case concerned the system of ‘detention’5 for police questioning then operating in Scotland in the earlier stages of the criminal process (before arrest and charge) and its conformity to the article 6 fair trial guarantees of the European Convention on Human Rights. Cadder decided that the treatment of suspects at the initial interview stage in Scotland was not adequate to ensure their right to a fair trial under art 6(3)(c) – the right to ‘defend [one] self in person or through legal assistance of [one’s] own choosing or, if [one] has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’ – read in conjunction with art 6(1)’s more general right to a fair trial. There has already been extensive discussion, highlighting both positive and negative aspects of the merits of, and necessity for, the Supreme Court decision so the chapter is less concerned with this matter.6 Cadder also For example, Lord Advocate’s Reference (No 1 of 2001) 2002 SLT 466 on rape; Drury v HM Advocate 2001 SLT 1013 on the mens rea of murder. 2 2011 SC (UKSC) 13. 3 See Cadder (n 2) at para 56 on the disruption already caused to criminal practice by the decision in Salduz v Turkey (2009) 49 EHRR 19, the case upon which the reasoning in the Supreme Court’s decision in Cadder was substantially based. 4 H MacQueen and S Wortley, ‘Cadder as the dust settles’, Scots Law News 11 December 2010: available at: http://www.sln.law.ed.ac.uk/2010/12/11/cadder-as-the-dust-settles/ (last accessed 1 August 2017). 5 Criminal Procedure (Scotland) Act 1995 (‘1995 Act’) s 14. 6 See, for example, F Leverick, ‘The right to legal assistance during detention’ (2011) 15 Edin LR 352; J McCluskey, ‘Supreme error’ 15 (2011) Edin LR 276; Lord Drummond Young, 1

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provoked considerable, and ultimately worthwhile, soul-­searching7 both as to the changes to the law required by the judgments and, more reflectively, as to the fit of the rights accorded to a suspect in the preliminary stages of an investigation with the overarching framework of the criminal justice system which also accommodates the interests of victims. This issue, of the balance of the rights of suspects with victims’ interests, and the relationship to the public interest which takes account of both8 is discussed more fully here. The High Court has held that the course of justice in an individual case starts at the very beginning of a police investigation even when it is not entirely clear whether an incident constitutes a crime.9 This chapter moves ahead of that starting point to the time when the police first form the view that reasonable grounds have emerged to suspect that a particular individual is the likely perpetrator. Initially, it will briefly outline the facts of Cadder. It will then consider, from a rights perspective, the status of ‘detention’ which was the subject of the Supreme Court’s criticism, its history and development and its perceived shortcomings, which are at the heart of the decision. From there it will examine post-Cadder litigation, including the so-­called ‘sons of Cadder’10 taking into account the regime for provision of legal assistance to suspects, waiver of the right to legal representation generally when making a statement to the police, confession evidence, the fruit of the poisonous tree and the rights framework at the earliest time when an individual begins to make the shift from witness to suspect. Apart from the first issue, these matters were not directly implicated in the case but have subsequently arisen. A key question addressed in the chapter is whether the Scottish criminal justice system has now sufficiently addressed the Cadder criticisms. At the time of writing, the law is in a transitional phase in that the Criminal Justice (Scotland) Act 2016 (‘the 2016 Act’) which provides a framework for police investigation of crime (including questioning and search) has been enacted but (for the most part) not yet brought into force. Its provisions are examined where relevant.

‘Scotland and the Supreme Court’ (2013) 2 Cambridge Journal of International and Comparative Law 67. 7 See Carloway Review: Report and Recommendations (2011), available at: http://www. gov.scot/Resource/Doc/925/0122808.pdf (last accessed 1 August 2017); and the PostCorroboration Safeguards Review: Final Report (April 2015), available at: http://www.gov.scot/ Resource/0047/00475400.pdf (last accessed 1 August 2017); and Post-Corroboration Safeguards Review: Report of the Academic Expert Group (August 2014), available at: http://www.gov.scot/ Resource/0046/00460650.pdf (hereafter ‘Expert Group Report’) (last accessed 1 August 2017). 8 See Crown Office and Procurator Fiscal Service, Prosecution Code, available at: http://www. copfs.gov.uk/images/Documents/Prosecution_Policy_Guidance/Prosecution20Code20_Final 20180412__1.pdf (last accessed 1 August 2017). 9 Watson v HM Advocate 1993 SCCR 875. 10 See, for example, R M White and P R Ferguson, ‘Sins of the father? The “sons of Cadder”’ 2012 Crim LR 357.

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Scottish criminal evidence law

(1) The facts of Cadder The facts of Cadder are not remarkable but in their relative ordinariness, they reflect clearly the practice at the time. On 13 May 2007, Peter Cadder was detained at his home and taken from there to a local police station where he was interviewed under caution in a procedure which was fully in accordance with the then Scots law11 on police detention and questioning.12 He was not given the opportunity to obtain, and therefore did not have the benefit of, legal advice before or during the interview.13 He made various admissions.14 At his trial (on charges arising from an attack on two complainers by a group of youths of which he formed part) an audio recording of the police interview was played in full to the jury and they were supplied with transcripts. The sheriff made reference to the interview in his charge.15 Cadder was convicted of assault to the severe injury and permanent disfigurement of one complainer, of assault of the other and of breach of the peace.16 On 26 October 2010, the Supreme Court determined that the failure to offer legal advice in relation to the police interview contravened Cadder’s right to a fair trial under art 6. This was in direct contradiction of rulings about the adequacy of Scots law in this respect made by the Scottish appeal court, in previous cases17 and it required an immediate and emergency change to the law, effected by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (the ‘emergency legislation’) which was brought into force on 30 October 2010. Cadder thus turned a spotlight on the law of evidence in the pre-­trial stage, drawing attention to this initial period of questioning, to its central role in the criminal process as a whole, and to the key rights which the law accords to those who are held by the state in this way. The relevant legal principles are practical in that they set down the rules by which crime is to be investigated.18 They are also directly underscored by more broadly drawn, somewhat aspirational, principles derived from human rights. Thus the operation of the law involves some balancing of rights and interests, to provide protection for individuals suspected of crime from unfair forms of investigation by the state without losing sight of other objectives such as ensuring that those guilty of criminal offences are identified and convicted. The judgments in Cadder relied upon a previous decision of the European 11

12 13 14 15 16 17 18

The matter had been considered and determined in the Crown’s favour in HM Advocate v McLean 2010 SLT 73. 1995 Act ss 14 and 15. Cadder (n 2) at para 2. Ibid para 5. Ibid para 7. Ibid paras 6 and 7. McLean (n 11); Paton v Ritchie 2000 JC 271. 1995 Act Part II.

Cadder and beyond

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Court of Human Rights, Salduz v Turkey. That case had considered the compatibility with art 6 of a pre-­trial detention and interrogation procedure in Turkey which, at the time, also lacked any possibility of access to legal advice. Both cases recognise ‘the particularly vulnerable position that the accused finds himself in at the investigation stage of the proceedings’19 ‘the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence.’20 The concept of vulnerability is used in a number of legal contexts for a variety of purposes21 and applied in a technical sense to particular groups.22 Here, however it is used non-­ technically to signify the exposed situation in which a suspect held in police custody for questioning finds him/herself, given the greater resources of the state, his/her potential adversary in a possible trial. It is important to bear in mind that this vulnerability underlies the suspect’s position throughout the early investigative stages of the criminal process with which this chapter is concerned. A. THE STATUS OF ‘DETENTION’ It is necessary first of all to be clear about Cadder’s legal status at the time of his police interview. He had been detained in accordance with s 14 of the Criminal Procedure (Scotland) Act 1995. In order to detain someone, a police officer must ‘ha[ve] reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment’.23 Currently, and at the time of Cadder,24 detention precedes ‘arrest and charge’ which occurs once the initial suspicion justifying the detention has crystallised so that the police are reasonably sure that the suspect has carried out the o ­ ffence – i­.e. when sufficient evidence has been found (including but not limited to that obtained in interview) that s/he is the perpetrator. This matters because questioning of a suspect by the police must cease on arrest and charge. The issue was explored in Lukstins v HMA.25 In Lukstins, the suspect was arrested, following expiry of the detention 19 20 21

22

23 24

25

Cadder (n 2) at para 33 per Lord Hope, making reference to Salduz. Salduz (n 3) at para 54. See, for example, V E Munro and J Scoular, ‘Abusing vulnerability? Contemporary law and policy responses to sex work in the UK’ (2012) 20 Feminist Legal Studies 189. For example ‘vulnerable witness’ is defined to include children and the mentally disordered who are giving or to give evidence: 1995 Act s 271(1)(a) and (b)(i). 1995 Act s 14(1). The 2016 Act replaces the status of ‘detention’ with that of arrest (s 1) and the stage beyond that, once suspicion has crystallised to allow the suspect to be formally charged as being ‘officially accused’ (s 63). The change in terminology may bring greater clarity but one way of becoming ‘officially accused’ remains being ‘charged’ with the offence by a constable (s 63(a)). 2013 JC 124.

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Scottish criminal evidence law

period, at around 5 am. He was not, however, actually charged with the offence (rape) for a further sixteen hours and he appealed his subsequent conviction on the basis that the police had no right to take an oral DNA swab from him when his status was ‘charged’ rather than ‘detained’ or ‘arrested’.26 On the substantive point, the High Court took the view that such a swab was real evidence, and that taking it did not therefore breach Lukstins’ rights to silence and not to incriminate himself. There was no scope (unless he volunteered information) for him actually to say anything as part of the swabbing procedure.27 More significantly for present purposes, the court determined that the law operated on the assumption that arrest and charge would normally happen almost simultaneously.28 The key point is the judgment’s reiteration of the generally accepted principle that ‘questioning after charge, . . . [is] contrary to the right to silence and the privilege against self-­incrimination. After charge, the police [are] functi so far as questioning [is] concerned’.29 (1) The evolution of detention and its relevance to Cadder Clearly, then, questioning must take place in the period before arrest and ­charge – ­during ­detention – ­and the Scottish courts had, previously, been critical of any attempt to avoid arresting and charging a suspect, once suspicion had crystallised, so as to be able to continue questioning him/her.30 The reason for this enforced cessation of questioning is based in adversarial theory and has its roots in nineteenth-­century Scottish court practice. According to Duff, at that time, as soon as an individual was suspected of an offence, s/he had to be brought before a judge for an examination, the purpose of which was ‘to help the accused explain his position [rather than] to generate incriminating evidence for any subsequent trial’.31 This developed into a practice that the stage of investigating a crime came to an end once the likely perpetrator had been identified. At that point, the prosecutorial process commenced and it was not acceptable, under adversarial ideology, 26

27

28

29

30

31

Section 18 of the 1995 Act which authorises the taking of samples only applies where a person has been arrested and is in custody or is detained under s 14(1). Lukstins (n 25), especially paras 33 and 39 per Lord Carloway and paras 66–68 per Lord Doherty. This apparently allowed it to ignore the sixteen-­hour period between the two in the actual case and their consequent de facto separation. Lukstins (n 25) para 9 (from defence pleadings). See also para 64 per Lord Doherty. See also Cadder (n 2) para [27] per Lord Hope; McLean at para 27 per Lord Justice-­General Hamilton. Wade v Robertson 1948 JC 117 at 120 per Lord Justice Clerk Thomson; Stark and Smith v HM Advocate 1938 JC 170 at 173–174 per Lord Justice General Normand, and at 175 per Lords Fleming and Moncrieff. See also Rigg v HM Advocate 1946 JC 1 where the police merely asked the suspect to remain at the police station and Chalmers v HM Advocate 1954 JC 66, where the accused was cross-­examined unfairly by police before being charged. P Duff, ‘Adversarial ideology and police questioning after charge’ (2013) Juridical Review 1 at 6.

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for the state, which would be the suspect’s adversary in the subsequent trial, to seek by further questioning to obtain evidence from him/her which could then be used against him/her by it, in its role as that adversary.32 It is clear, then, that detention for questioning is a recognised concept historically. It passed into modern Scots law in terms of s 2 of the Criminal Justice (Scotland) Act 1980, based on the recommendations of the Thomson Committee on Criminal Procedure in Scotland which reported in 1975.33 The Committee’s discussion on the issue reflects the balancing between the rights of the suspect to a fair trial on the one hand and the state’s interest in conviction of the guilty on the other. Duff has helpfully examined this through the prism of Packer’s enduring dichotomy between the models of due process and crime control,34 showing how Scots law has tended to move between the two.35 The due process model ultimately holds that, ‘it is far worse to convict an innocent man than to let a guilty man go free. There is no worse error in the . . . criminal justice system than the wrongful conviction of an innocent man or woman’.36 Its concern is with ensuring that the state proves its case fully against a suspect and that all of his/her rights within that process are properly respected. The crime control model, on the other hand is primarily concerned with efficiency so that the system should, with safeguards, operate to obtain the evidence to convict those who are guilty in a speedy and routinised fashion. As Lord Justice-­General Cooper stated in Lawrie v Muir in 1950: The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law.37

The Thomson Committee’s report clearly recognises the two, potentially conflicting, aims of due process and crime control and considers a number of important aspects of their practical application, placing itself, with admirable transparency, towards the crime control end. It stated that the situation must: 32 33

34

35 36

37

Ibid at 14. Scottish Home and Health Department and Crown Office, Criminal Procedure in Scotland (second report) Cmnd 6218 (1975) (‘Thomson Committee’). H L Packer, ‘Two models of the criminal process’ (1964) 113 University of Pennsylvania Law Review 1. P Duff, ‘Chalmers to Cadder: full circle on police interrogation’ (2015) 19 Edin LR 186. R A Leo et al, ‘Promoting accuracy in the use of confession evidence: an argument for pre-­ trial reliability assessments to prevent wrongful convictions’ (2013) 85 Temple Law Review 759 at 820–821 (quoting In re Winship 397 US 358 at 372 (1970) (Harlan J concurring)) (footnote omitted). 1950 SLT 37 at 40.

­24

Scottish criminal evidence law necessarily be a compromise between these two ­interests – ­that of the public as represented by the police, and that of the individual. It must meet the requirements of the police for such powers as are necessary to enable them to carry out the duties of crime-­detection in the interests of society, without giving them power to ride roughshod over individuals; it must safeguard the individual’s right to go about his lawful business free from unreasonable police interference, and his right to have his personality and human dignity respected when he is in the hands of the police, without creating a situation in which criminals can render the investigation of their crimes difficult or even impossible merely by standing on their rights. It must recognise the realities of the situation, and take account of those police practices which are accepted as fair by the public including criminals although they may be technically illegal or at least of doubtful legality. It must avoid the situation which many police officers claim exists at present in which strict adherence to the rules would so hamper their efficiency and so reduce the detection rate as to subject them to severe criticism. Such an argument would carry little weight if the practices concerned were objectionable in themselves, for example, physical ill-­treatment, but we believe that the argument does have some force in relation to practices which are not regarded by police or public as morally objectionable, and especially to practices which although formally prohibited are actually condoned. Society must make up its mind whether or not such things as detaining and questioning suspects are acceptable, and either prohibit them, or legalise them under suitable safeguards.38

Parts of this passage were quoted by Lord Hope in his judgment in Cadder39 after he had stated that it was ‘remarkable that, until quite recently, nobody thought that there was anything wrong with this [detention] procedure’.40 In justifying detention, the Thomson Committee went on to state: Although a person who has been charged with an offence is entitled to an interview with a solicitor, we recommend that a solicitor should not be permitted to intervene in police investigations before charge. The purpose of the interrogation is to obtain from the suspect such information as he may possess regarding the offence, and this purpose might be defeated by the participation of his solicitor. It is for this reason that we recommend . . . that it will be a matter of police discretion whether to allow the detainee an interview with his solicitor.41

Lord Hope commented: There was a clear signal here that in the committee’s view the public interest in the detection and suppression of crime outweighed any disadvantage to the detainee in being subjected to police questioning in the absence of his solicitor. It did not 38 39 40 41

Thomson Committee (n 33) para 2.03. Cadder (n 2) para 22. Ibid para 4. Thomson Committee (n 33) para 7.16 (italics in original).

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rule out the possibility of his being given legal advice before he was questioned. But this was to be at the discretion of the police. The rights of the detainee were to take second place to the public interest in allowing the police to question him without being deflected from their task by the presence of a solicitor. The statutory procedure was framed on this basis.42

Ferguson has persuasively argued that the right of suspects is not against self-­ incrimination, but against forced self-­incrimination.43 This position is supported by Lord Hope in Ambrose v Harris,44 and it is clear that, in individual cases, the Scottish courts have always exercised the function of identifying and excluding self-­incriminatory statements made under undue pressure.45 If, however, a legal system legislates for a situation (detention) where it is hoped that the suspect will reveal all s/he knows about the crime, and determines that, for the purposes of facilitating this, s/he should not have access to a solicitor, this suggests promotion of a culture where the balance is set towards self-­incrimination. As MacQueen and Wortley stated, ‘the Scottish rule, being explicitly based upon the proposition that the accused must be given every chance to incriminate himself, could not possibly stand’.46 Although Cadder calls Scots criminal procedure to account on the basis only that its procedural framework lacked access to legal advice in the initial stages, its corrective (the offer of legal advice) is explicitly underlain by the privilege against self-­incrimination.47 Any systemic tendency towards creating the conditions in which self-­incrimination can flourish would seem to lie outwith the spirit of the judgment. It remains important to examine the legal principles underlying the reformed system with this in mind. B. THE POST-CADDER LEGAL LANDSCAPE (1) The significance of police interviews with suspects In determining Cadder as it did, the Supreme Court was aware of the profound practical repercussions for the Scottish criminal justice system,48 in that any person who had had a police interview without access to a lawyer potentially had reason to dispute any criminal process where answers from that interview had been used in evidence. Cases currently in train where such evidence was to be used were similarly tainted. Indeed, ‘[l]ess than four 42 43

44 45 46 47 48

Cadder (n 2) para 23. P R Ferguson, ‘Repercussions of the Cadder case: the ECHR’s fair trial provisions and Scottish criminal procedure’ (2011) Crim LR 743; White and Ferguson, ‘Sins of the father’ (n 10). 2012 SC (UKSC) 53 paras 34, 56 and 57. See, for example, Paul v HM Advocate 2014 SCL 230. MacQueen and Wortley, ‘Cadder as the dust settles’ (n 4). Cadder (n 2) paras 34 and 35 per Lord Hope. Cadder (n 2) para 60 per Lord Hope.

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Scottish criminal evidence law

months after Cadder . . . was decided, it was announced that the ruling in that case had resulted in the Scottish Crown Office and Procurator Fiscal Service abandoning 867 prosecutions.’49 In terms of the application of their ruling, Lords Hope and Rodger therefore stated that the court’s decision was not retrospective and (other than by a reference from the Scottish Criminal Cases Review Commission (‘SCCRC’))50 cases which had been finally decided could not be reopened.51 Lord Hope explained the position thus: Cases which have not yet gone to trial, cases where the trial is still in progress and appeals that have been brought timeously . . . but have not yet been concluded will have to be dealt with on the basis that a person who is detained must have had access to an enrolled solicitor before being questioned by the police, unless in the particular circumstances of the case there were compelling reasons for restricting this right. As for the rest, . . . the retrospective effect of a judicial decision is excluded from cases that have been finally determined . . .52

Where the suspect had not had the offer of access to a solicitor (as in all pre-Cadder cases because the law did not provide for this or, indeed, require it) evidence from the police interview was simply excluded and a test was applied derived, again, from dicta of Lord Hope in Cadder.53 The court had to determine whether it was clear that there was insufficient evidence for a conviction without the evidence of the police interview or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them.54

In some respects, these are difficult questions for appeal courts to answer since they rest on matters which would be for the trier of fact to determine at trial. How can it be known, after the event, what verdict a jury would have reached if the evidence presented to them had been in any way different? Equally, through this formulation by the Supreme Court, these matters are now cast as legal rather than factual so that it becomes legitimate for the High Court (as the court of appeal) to determine them in individual cases. In Dixon v HMA,55 where the appellant’s answers at police interview amounted to a denial of his involvement in the offence, the view was taken that there was a 49

50 51 52 53

54

55

Ferguson, ‘Repercussions’ (n 43) at 743 (footnote omitted). F E Raitt suggested that the figure was even higher (at 1,286): Evidence: Principles, Policy and Practice, 2nd edn (2013: W Green) para 9-­08. M v HM Advocate 2012 SCL 1037. Cadder (n 2) para 60 per Lord Hope and para 98 per Lord Rodger. Cadder (n 2) para 60. This test was itself based on the non-­disclosure (of Crown evidence) case of McInnes v HM Advocate 2010 SLT 266. Cadder (n 2) para 64. For application of this test in practice see, for example, Dixon v HMA [2012] HCJAC 50, para 22 per Lady Paton. Dixon ibid.

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sufficient circumstantial case against him without this evidence.56 It was also noted that, at the time of the trial, well before Cadder, the defence might have objected to any attempt to exclude the potentially exculpatory interview answers.57 Similarly, in Anoliefo v HMA,58 an appeal, inter alia, against a rape conviction, the appeal court took the view that there was sufficient evidence in support of the complainer’s account, which the jury had clearly believed, to uphold the conviction once evidence from the appellant’s police interview had been excluded.59 In GM v HMA, on the other hand, the High Court determined that, since the evidence from the police interview could no longer be relied upon, the Crown was seeking to have the conviction upheld ‘on a different basis from that on which it presented its case at the trial’.60 This meant, in the court’s view, that there was a real possibility that, absent the interview, the jury might have reached another verdict.61 The appeal was successful on that point. Since Cadder, then, it has simply been accepted that police interviews conducted without the offer of access to a lawyer constitute inadmissible evidence and the appeal court has demonstrated its ability to identify those cases in which this inadmissibility creates a real possibility that the jury would have arrived at a different verdict. This consideration of what would have happened at trial in the absence of interview evidence also, perhaps paradoxically, focuses attention on the significance in general, within the criminal process, of such interviews and their key function in gathering evidence (whether it is incriminating or exculpatory). To reach the point of ‘reasonable suspicion’ that an individual has committed an imprisonable offence (the test for detention),62 the criminal process must already have progressed some distance. Hodgson has noted the importance of continuity through the various phases of process for a robust defence. Referring to the practice in England and Wales of using ‘accredited representatives’ (that is, not qualified lawyers) for the police station phase, she notes that such advisers have no experience of court work. In this way, their work tasks are limited to one phase of the case and they lack the practical expertise to know how things that happen at the police station (such as a breach in procedure) might play out at trial. This creates a segmented system, and builds in a model of discontinuous representation for the suspect, who will be represented by someone else at court.63

56 57 58 59 60 61 62 63

Ibid paras 26 and 30 per Lady Paton. Ibid para 32 per Lady Paton. 2013 SCL 106. Ibid paras 24 and 25 per Lord Mackay of Drumadoon. [2011] HCJAC 112 at para 25 per Lord Justice Clerk Gill. Ibid para 26. 1995 Act s 14(1). J Hodgson, ‘The role of lawyers during police detention and questioning: a comparative study’ (2015) 7 Contemporary Readings in Law and Social Justice 7 at 10.

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The importance of legal advice at the interview stage generally and in terms of both the letter and the spirit of the Cadder judgments is clear. In principle, the 2016 Act recognises this. Indeed, it demonstrates that a protracted process of law reform, even one having its origins in an emergency situation, may eventually, following wide consultation, produce well considered legislation.64 In terms of s 44, suspects have a right to a private consultation with a solicitor at any time. This must, however, be considered alongside the period for which a suspect may now be held in police custody before being ‘officially accused’.65 Until Cadder, this period was six hours66 though clearly without benefit of any consultation with a lawyer. Currently, detention (with the right to legal consultation) is a maximum of twelve hours which may be extended for another twelve.67 Lord Carloway’s review took the view that a twelve-­hour maximum with a review after six was reasonable68 on the basis that [t]he changes in available investigatory tools, such as CCTV footage and DNA, in the accuracy of police reporting and the effect of Cadder all point towards the necessity of a longer period than the original six hours for initial investigation, including questioning.69

It also took advice from the Association of Chief Police Officers in Scotland (ACPOS) which indicated that very few cases required extension beyond the first twelve hours.70 These periods (six hours with a further possible six-­hour extension) appeared in the Criminal Justice Bill as initially published.71 The 2016 Act however sticks with the emergency legislation’s p ­ osition – ­a period of twelve hours72 extendable, following review, by a further period of twelve hours.73 There must be reviews at six and, effectively, eighteen, hours, conducted by a senior police officer who has not otherwise been involved in the case.74 By virtue of s 32 of the 2016 Act, suspects have an additional right to 64

65 66

67 68

69 70 71 72 73 74

The Scottish Government claimed for the Act, inter alia, that it would enhance the protection and the rights of suspects (and, indeed, victims). Stage 1 debate, 27 February 2014. On various ways to conduct law reform, see J Chalmers, ‘Criminal law reform in Scotland’ (2015) 19 Edin LR 399 at 403. 2016 Act s 63. This was provided in s 2 of the Criminal Justice (Scotland) Act 1980 which was consolidated into the original version of s 14 of the 1995 Act. 1995 Act ss 14 and 14A. Carloway Review (n 7) paras 5.2.34 and 5.2.36. See also P R Ferguson and F E Raitt, ‘A clear and coherent package of reforms? The Scottish Government consultation paper on the Carloway Report’ (2012) Crim LR 909 at 910–912. Carloway Review (n 7) para 5.2.34. Ibid. Original ss 9–12. 2016 Act s 9. 2016 Act s 11. 2016 Act s 13.

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have a solicitor present while actually being interviewed, in police custody, about an offence,75 a provision which further strengthens their position. Arguably the sole change to the system which Cadder mandated was the provision of legal assistance for detainees. Accordingly, no increase (or, indeed, decrease) in the six-­hour detention period was actually needed76 and the (possible) quadrupling (to twenty-­four hours maximum), is significant. The 2016 Act does hedge the exercise of the power to extend for a second twelve-­hour period with some safeguards. The officer making the decision must be of the rank of inspector or above;77 the offence must be sufficiently serious as to be indictable78 and the authorising officer must be satisfied that the investigation is being conducted ‘diligently and expeditiously’.79 Lord Carloway’s discussions with ACPOS suggest that this power is likely to be used rarely. It should also be borne in mind that these are the periods which have been operating in Scots law for more than five years to date. They are ‘much lower than the total of 96 hours for which an English suspect can be held’.80 Nonetheless, the length of the period, bearing in mind that this power applies at a time when there is insufficient evidence to charge the suspect, does represent a significant inroad into his/her liberty. The s 44 right to a private consultation with a solicitor applies at any time during this period. As in the emergency legislation, ‘consultation’ means ‘consultation by such method as may be appropriate in the circumstances and includes (for example) consultation by telephone’.81 There is an indication that, since Cadder, telephone has been the predominant means by which such consultations have taken place,82 although Law Society of Scotland advice to solicitors concerning police station interviews is clear and robust in setting out ‘factors and circumstances where attendance will almost always be necessary’.83 If a suspect can be held for twenty-­four hours, this clearly 75

76

77

78 79 80

81 82

83

The legislation requires that, if they wish to be interviewed without a solicitor present, they should waive the right and have it recorded that they have done so (s 32(3) and (7)). This will be discussed below. See P Nicholson, ‘Rights under question’, The Journal Online (November 2010), available at: http://www.journalonline.co.uk/Magazine/55-11/1008872.aspx (last accessed 4 August 2017). 2016 Act s 11(2)(a)(i). Where there is reason to believe that the suspect is aged under eighteen, the authorising officer must be a chief inspector or above (s 11(2)(a)(ii)). 2016 Act s 11(3)(b)(ii). Ibid s 11(3)(b)(iii). F Stark, ‘Confession evidence’ in Expert Group Report (n 7) 67 at 71 note 42. See Police and Criminal Evidence Act 1984 ss 41–44. 2016 Act s 44(4). See the Law Society of Scotland response on the Estimated Financial Implications of the Criminal Justice (Scotland) Bill (2013) 3, available at: https://www.lawscot.org.uk/media/230055/ written%20evidence-fm-cj(scotland)bill.pdf (last accessed 4 August 2017). Law Society of Scotland, Police Station Interviews: Advice and Information from the Law Society of Scotland (2015), available at: http://www.lawscot.org.uk/media/473309/Police-Station-Adviceand-Information-March-2015-Section-F-Division-Advice.pdf (last accessed 31 May 2016) at 7–8.

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­ resents logistical difficulties for even the most dedicated and well-­ p paid lawyer in terms of being available throughout. Interviews may take place at inconvenient times for lawyers’ attendance and there is some evidence that many suspects simply waive the right. Duff notes that ‘(d)ata compiled by the Police Scotland Criminal Justice Bill project team, over a four week period between May and June 2013, recorded that, of 3,863 persons who were entitled to and offered solicitor access prior to interview, 2,896 waived their right’.84 Hodgson’s research raised the issue of whether a private telephone consultation with a lawyer (the basic right of anyone in police custody) is, in fact, an effective mechanism for protecting the suspect’s rights. She reports that the view of Scots defence lawyers was that, given the (still current) corroboration requirement, advising detainees to remain silent was the best course of action and this could just as easily be done over the phone. She notes that ‘[t]his of course fails to grasp the importance of the lawyer’s presence to support the suspect to maintain their silence during interrogation’.85 Cadder called the Scottish criminal justice system to account for the lack of availability of legal advice to suspects in detention. There is no doubt that this has been formally remedied in the Scottish Government’s legislative response, which, as will be discussed below, also makes further provision for the attendance of a lawyer during actual interviews.86 Hodgson’s question is concerned more with the spirit of the ­judgment – ­with whether telephone advice offers the level of protection of suspects when they are vulnerable which ensures equality of arms throughout the pre-­trial and trial stages. Equally the legislation can do no more than create appropriate rights. Implementation depends to some extent on resources and, indeed, culture (in terms of the level of acceptance of telephone advice as the norm) at the Scottish criminal defence bar. (2) Waivers This section addresses the issue raised before the Supreme Court in the cases of McGowan v B87 and Birnie v HMA88 as to the effect of waivers by suspects of their right to legal advice on the admissibility of statements 84

85 86 87 88

See Duff, ‘Full circle’ (n 35) at 209, note 145. This seems also to be the experience in the United States where ‘empirical studies have consistently shown that approximately eighty to ninety percent of custodial suspects waive their Miranda rights, and thus legally consent to the interrogation process’: Leo et al, ‘Promoting accuracy’ (n 36) at 789 (footnote omitted). Waivers are discussed more fully below. Hodgson, ‘The role of lawyers’ (n 63) at 13. 2016 Act s 32. 2012 SC (UKSC) 182. Referred to the Supreme Court with two other ‘sons of Cadder’ under the name of HM Advocate v Jude 2012 SC (UKSC) 222.

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which they subsequently made. In McGowan v B, the suspect had been fully informed of his right to a private consultation with a solicitor in terms of the emergency legislation. Birnie’s initial interview took place before the right to consultation had been enacted but the case related to a voluntary remark and statement which he made after the interview. Both suspects had been offered legal advice for their statements. Both had expressly refused it. The issue was whether such a refusal, made without the benefit of legal advice, could validly waive the specific right (that is, to legal advice) without impacting adversely on the overarching right to a fair trial under article 6. Lord Hope’s judgment in McGowan v B concluded that ‘[t]he jurisprudence of the Strasbourg court does not support the proposition that, as a rule, the right of access to legal advice during police questioning can only be waived if the accused has received advice from a lawyer as to whether or not he should do so’.89 In Birnie, he said: I do not think that the Strasbourg jurisprudence requires us to hold that it would necessarily be incompatible with art 6(1) and (3)(c) of the Convention for the Lord Advocate to lead and rely on evidence of answers given by a suspect during a police interview just because it was not ascertained why he did not want to speak to a lawyer.90

Issues of whether it was fair to admit the actual statements, in the individual circumstances of each case were not Convention issues and were for the relevant domestic Scottish court to determine.91 In both Supreme Court cases, Lord Kerr dissented taking the view that the suspect’s understanding of the implications of waiver of the right to legal assistance was as important to upholding the article 6 right as was the need to protect him/her from forced self-­incrimination,92 or, in other words that the right to a fair trial required any waiver to be ‘knowing and intelligent’.93 Section 32 of the 2016 Act confers on anyone being interviewed by the police (those in custody and those attending the police station voluntarily)94 about an offence which s/he is reasonably suspected of having committed the right to have a solicitor present95 such that, save in exceptional circumstances,96 the interview cannot go ahead (if the suspect exercises the right) unless the solicitor is there.97 The suspect can consent to proceed 89 90 91 92 93 94 95 96 97

McGowan v B (n 87) at para 54. Jude (n 88) para 29. McGowan v B (n 87) para 53; Jude at para 33. Ibid para 108. Jude (n 88) para 60. 2016 Act s 32(1). Ibid s 32(2). Ibid s 32(4) and (5). Ibid s 32(3).

Scottish criminal evidence law

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without a solicitor and, in that case, the time of giving this consent, and any reason given for the waiver of the right, must be noted.98 This clarifies that the norm should be for the solicitor to be present during interview thereby going further than the Cadder-mandated right to a private consultation with a solicitor at any time.99 It also puts in statutory form that the right can be waived. It does not, however, require that there should be any inquiry into the suspect’s understanding of his/her situation and it is only if s/he volunteers a reason for waiving the right that this will be recorded. As noted above, it seems that many suspects (75 per cent in the admittedly limited sample cited by Duff;100 80–90 per cent in the US)101 do waive the basic right to a private consultation with a lawyer. It remains to be seen whether this formalisation of dispensing with legal advice at interview will have a practical effect in reducing the number of waivers. At the very least though, it has the advantage that suspects must be fully informed of the existence of the right in taking any waiver decision. While this is not necessarily the same as having a full understanding of its consequences, s 32’s unequivocal phrasing that, without a waiver ‘a constable must not begin to interview the person about the offence until the person’s solicitor is present’ provides a clear, practical framework around which police, suspects and lawyers will operate, which is to be welcomed. (3) Confessions This also brings the issue of confession evidence into sharp focus, in that a confession is, simply, a self-­incriminating voluntary statement and, having waived the right to legal advice, both B and Birnie had made such statements. While Cadder was not directly concerned with confessions, it is clear that such incriminatory statements may be made and provided they are properly voluntary, there is no reason that the Crown may not rely on them in evidence.102 Such statements may be made in a variety of circumstances,103 but this essay is concerned mainly with false confessions. It is generally accepted in Scotland that ‘[a] confession is an exceptionally potent item of evidence because it is a statement made by a person against their own ­interest . . . ­therefore, if they do [confess], it is assumed these statements are more likely than not to be true.’104 Jurors, in particular, even with the benefit of expert evidence on the potential unreliability of confessions,

98 99 100 101 102 103 104

Ibid s 32(7). 2016 Act s 44. Duff, ‘Full circle’ (n 35) at 209, note 145. Leo et al, ‘Promoting accuracy’ (n 36) at 789. See, for example, Manuel v HM Advocate 1958 JC 41 at 48 per Lord Justice General Clyde. For a full and insightful discussion, see Stark ‘Confession evidence’ (n 80). Raitt, Evidence (n 49) para 9-­04 (footnote omitted).

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may still find them ‘compelling’.105 The power attached to confessions is demonstrated by the fact that the corroboration requirement is applied less stringently. The point was made in Hartley v HMA106 as follows: It is well settled that where, as here, an accused person has, by means of an unequivocal confession, identified himself with an offence, little is required by way of corroboration to meet the requirements of our law. Something however is needed, and that something must point to the accused as the perpetrator of the crime to which he has confessed. An accused person who makes an admission to a murder and tells the police where the body is to be found, and the body is duly found in that place, is properly identified as the perpetrator from two independent sources, the circumstances of the finding confirming the facts in the confession . . .107

As Davidson and Ferguson have put it, ‘a confession can almost corroborate itself in the sense that corroboration can be found in the fact that the circumstances of the crime coincide with the confession’.108 The admissibility of confession evidence is judged by the overarching principle of fairness109 ‘not only to the accused but fairness also to those who investigate crime on behalf of the public’.110 The Scottish courts have excluded confessions where the view was taken that the ‘special knowledge’ in the confession was not something that the accused could only have known if he was the perpetrator.111 Following a referral by the SCCRC, a conviction for murder and rape was quashed on the cumulative basis that much of the appellant’s confession was factually incorrect therefore not showing special knowledge, that undue pressure may have been exerted on the accused by the police and, on the basis of evidence from a professor of forensic psychology, that the appellant’s personality type was such that he would be particularly suggestible and affected by pressure from the police.112 It is this final ground which begins to suggest that, far from speaking for itself and requiring (almost) no further evidence to establish the point it vouches, a confession should be particularly closely protected by the privilege against self-­incrimination because of its powerful effect, against the accused’s interests, on the jury’s perception. Research in the US 105 106 107 108

109 110 111 112

Stark, ‘Confession evidence’ (n 80) at 82. 1979 SLT 26. Ibid at 31 per Lord Grieve. F P Davidson and P R Ferguson, ‘The corroboration requirement in Scottish criminal trials: should it be retained for some forms of problematic evidence?’ (2014) 18 International Journal of Evidence and Proof 1 at 22. Raitt, Evidence (n 49) para 9-29. Hartley at 31 per Lord Grieve. Woodland v Hamilton 1990 SLT 565. Gilmour v HM Advocate 2007 SLT 893.

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indicates that even the most principled and scrupulous police investigation may ‘contaminate’ a confession by unwittingly feeding to the interviewee all of its ‘special knowledge’ components.113 Sangero reports findings of the 1994 (Israeli) Goldman Commission for Convictions Based Solely on Confessions.114 It found that suspects might falsely confess: 1. Owing to their personality if: they do not know the difference between fantasy and reality; they wish to make up for something else wrong (which might also be imagined) which they have done; or they are in some sense self-­destructive. They may suffer from an emotional or mental disability or be under the influence of alcohol or other substances. The Commission included in this group minors (to which group Cadder and Salduz belonged).115 2. Those who wish simply to bring the interrogation to an end given the effect it is having on them. Some may believe that they will be exonerated in subsequent proceedings.116 3. Those who feel a social pressure to confess, for example, to protect the true perpetrator.117 These are similar to the groups who are likely falsely to confess identified by the Royal Commission on Criminal Justice in the UK in 1993.118 In the context of the debate surrounding the possible abolition of corroboration, Davidson and Ferguson have argued that the requirement should be retained in relation to confession evidence119 and, indeed, potentially tightened.120 Given the diluted form of corroboration currently applicable to this type of evidence, the argument that it should be one of only a very few areas singled out for ongoing corroborative protection demonstrates recognition of the fragility of the basis on which some confessions rest. It is not the function of the police to solicit confessions121 and the courts will strike at undue pressure in police questioning to obtain a self-­ incriminatory statement.122 The issue is the power attached by the law, the courts and juries to such statements once obtained. If the suspect reveals 113 114

115 116 117

118

119 120 121 122

Leo et al, ‘Promoting accuracy’ (n 36). B Sangero ‘Miranda is not enough: a new justification for demanding “strong corroboration” to a confession’ (2007) 28 Cardozo Law Review 2791. Ibid at 2798. Ibid at 2798–2799. Ibid at 2799. Sangero also notes that people have confessed for bizarre reasons such as to get quickly to a university exam or an important chess game. Royal Commission on Criminal Justice, Cm 2263 (1993). See Davidson and Ferguson, ‘The corroboration requirement’ (n 108) at 21. Davidson and Ferguson, ‘The corroboration requirement’ (n 108) especially at 25–26. Ferguson, ‘Repercussions’ (n 43) at 748. Thomson Committee (n 33) at para 7.13a; Chalmers at 78 per Lord Justice General Cooper. See Paul (n 45).

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information known to no ­one – ­say, the place where the body is buried as in Manuel v HMA123 – then this is clearly incriminating. If, however, all that is elicited is a statement of guilt, or even if the so-­called ‘special knowledge’ is known to a number of others including the investigating police, then such statements should be treated and tested in the same way as any other piece of evidence. In Gilmour v HMA,124 Lord Justice-­Clerk Gill acknowledged the considerable advances in forensic psychology in relation to criminal confessions which allowed, in that case, some testing of the appellant’s suggestibility and compliance.125 It is important that the law should continue to recognise the impact of personality type in this area and, more generally, subject confession evidence to close scrutiny rather than regarding it as speaking for itself. (4) The fruit of the poisonous tree Even where a suspect’s statement (or, indeed, answer to police questioning) is deemed to be inadmissible, the possibility remains that it will have identified a separate source of evidence on which the Crown still wishes to rely. Further post-Cadder appeals have also arisen around this so-­called ‘fruit of the poisonous tree’. The leading cases are Haggerty v HMA,126 where the appeal court applied this in a domestic Scottish case, and HMA v P,127 in which the Supreme Court set down the overarching article 6 principle. The position emerging rests on pre-­existing principles and does not, therefore, effect much (if any) change: evidence which can stand in its own right without allusion to the tainted interview can be accepted but where the evidence has meaning only by reference to the inadmissible statement, then it falls to be excluded under the same (Salduz) principle as the interview itself. Thus, where the discovered evidence ‘would not have been relevant without linking it to what was said by the accused’ in the police interview it cannot be relied upon. The example given is the case of Chalmers where the sixteen-­year old accused’s police statement had been deemed inadmissible.128 Immediately following the giving of that statement, the police asked further questions resulting in the accused leading them to the spot where the victim’s purse had been concealed, the matter of its location having been covered by the (renewed) questioning. Lord Justice-­General Cooper stated in Chalmers

123 124 125 126

127 128

1958 JC 41. 2007 SLT 893. Ibid at paras 89–90. Haggerty v HM Advocate 2013 JC 75, in which Lord Drummond Young para [7] adopted the ‘fruit of the poisonous tree’ terminology. 2012 SC (UKSC) 108. Ibid para 16 per Lord Hope. See also Haggerty at paras 10–12 per Lord Drummond Young.

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that the discovery of the purse was ‘part and parcel of the same transaction as the interrogation’ and therefore inadmissible.129 By contrast, in both P and Haggerty, the interviewee had named another person as a potentially exculpatory witness. In both cases, that third party actually provided information which turned out to be incriminating and this was held to be admissible ‘because the source of the evidence is quite independent of the suspect; the incrimination comes not from the suspect but from another source altogether’.130 Thus the view was taken that the Salduz/Cadder principle was not directly engaged, although the accused continued to be protected by the overarching requirement that the trial is not rendered unfair by the leading of such evidence.131 In essence, this is acceptable. While the test is of fairness, this encompasses ‘the public interest in the ascertainment of the truth and in the detection and suppression of crime’.132 The fact that the statement given by the third party was, in fact, potentially incriminating (when the suspect clearly expected it to be exculpatory) serves to demonstrate its independence from the inadmissible source. (5) The shift from witness to suspect Finally, then, this chapter returns to where it s­ tarted – t­he earliest point in a criminal investigation at which an individual begins to be suspected of having committed the offence in question. As mentioned in the introduction, the course of justice in individual cases is deemed to start with the police investigation of an incident which looks likely to constitute a criminal offence. This will, of necessity, involve asking questions of those who have, or may have, knowledge about that incident such that a person so questioned may make a shift from being regarded solely as a witness to being suspected of having had some criminal involvement. There is no doubt, following Cadder and Salduz, that those who are held in police custody for questioning because they are suspected of such involvement have the right to legal advice.133 Indeed, this issue has never been a grey area in Scots law. It was clear that detainees did not have a right to legal advice before Cadder and it is equally clear that such advice must now be offered. In the period before the suspect is formally detained, or taken into custody, however, s/he may give answers to police questions which could be construed as incriminating and, therefore, on which the prosecution will seek to rely in subsequent criminal proceedings. This issue was not directly raised in Cadder but clearly requires

129 130 131 132 133

Chalmers (n 30) 76. Haggerty (n 126) para 12. Ibid para 12. Miln v Cullen 1967 JC 21 at 26 per Lord Justice Clerk Grant. Ambrose (n 44) para 24.

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an extension of the case’s reasoning backwards in time. Ambrose v Harris134 conjoined three Scottish cases (otherwise known as the ‘sons of Cadder’) in a reference to the Supreme Court to examine this issue. In one reference, the case of G, the police were executing a search warrant at the suspect’s home in relation to firearms and drugs offences for which he had been indicted. They had to force entry and, following a struggle, handcuffed him. He was cautioned including being advised that he did not have to say anything and was then detained and searched. He did, however, give various answers and statements135 on which the Crown sought subsequently to rely.136 The Supreme Court decided that these were inadmissible because ‘although G had not yet been formally arrested and or taken into police custody, there was a significant curtailment of his freedom of action. He was detained and he had been handcuffed. He was, in effect, in police custody from that moment onwards.’137 Clearly, there was a level of police coercion here, in that G was handcuffed and all formulations of the privilege against self-­ incrimination strike at incriminating statements obtained by such means.138 In this respect, then, this was not a hard case. The other two references were less clear-­cut. In the first, Ambrose, the police found the suspect sitting in the passenger seat of a car in Oban following a report from a member of the public that he and his female companion, who was in the driver’s seat, were drunk. Ambrose was cautioned, because one of the officers determined that he was intoxicated, but not in connection with any specific offence. He then answered three questions, produced the car keys from his pocket and failed a breath test. He was taken to Oban police station where a further breath test revealed a level of alcohol well over the legal limit.139 In the second reference, M, the (ultimate) suspect, had given his details, as a witness, to the police immediately following a fight in a pub and had been allowed to leave the locus. Five days later, a police officer went to his home, cautioned him and asked him a total of seven questions. From his answers, the officer determined that it was likely that he had had involvement in the incident and arranged for him to attend at the police station the following evening where he was detained under s 14 and interviewed.140 In both Ambrose and M, the Supreme Court determined that the Strasbourg jurisprudence had not reached a settled position, in relation to the right to a fair trial, on the admissibility of answers to questions without the benefit of legal advice, when an individual, though sufficiently suspected to have been cautioned and ‘charged’ for art 6 purposes, was, nonetheless, not in 134 135 136 137 138 139 140

Ibid. Ibid para 10. Ibid para 11. Ibid para 71 per Lord Hope. For example, ibid para 32. See also Ferguson, ‘Repercussions’ (n 43). Ambrose (n 44) para 4. Ibid para 7.

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police custody but being questioned by the roadside or in his own home.141 Accordingly, there was no clear breach of art 6(3)(c), taken in conjunction with art 6(1), in not making legal assistance available. Lord Hope said: [q]uestions that the police need to put simply in order to decide what action to take with respect to the person whom they are interviewing are unlikely to fall into this category [of requiring the offer of legal advice to ensure that the right to a fair trial is upheld]. But they are likely to do so when the police have reason to think that they may well elicit an incriminating response from him.142

In terms of the emerging principles of Strasbourg jurisprudence, as applied in Cadder, there is scope for some sympathy with the dissenting judgment of Lord Kerr in Ambrose. Ambrose, who, in the view of the attending police officers, was drunk, was asked, ‘Are you going to drive the car?’143 M, who was being questioned about the incident in a pub in which injuries had been inflicted, was asked, ‘I am investigating a serious assault which happened on Saturday night there, within a bar named [X]. There was a large disturbance in there too. Were you there?’ and, ‘Were you involved in the fight?’144 In each case, the chances of the question eliciting an incriminating response seem high145 so that the privilege against self-­incrimination would be engaged. Equally, the European court has not said that at every point when a person passes from witness to suspect, legal representation must instantly be provided146 – nor is that point necessarily easy to determine taking into account also that ‘[t]he degree of suspicion may vary from a very slight suspicion to a clearly formed one’.147 It is important to avoid a situation where questions are asked once there is some suspicion of an individual but without immediately moving to detention or arrest with the purpose that incriminating answers may be given.148 Equally, the police must have some room for manoeuvre in assessing the nature of an individual’s relationship to an apparently criminal act. There is a risk that more people would be detained if the police could ask no further questions at all, without legal representation being offered, once there was even a modicum of suspicion. Ambrose and 141 142 143 144 145 146

147 148

Ibid paras 67–70. Ibid para 65. Ibid para 4. Ibid para 7. See ibid para 153 per Lord Kerr. Indeed, in Zaichenko v Russia [2010] ECHR 185 (discussed in Ambrose) and in Ibrahim v United Kingdom (2015) 61 EHRR 9, where the applicants (the fourth applicant in Ibrahim) were each interviewed in circumstances where suspicion had clearly crystallised, the court held that there had been no breach of article 6(3)(c) in conjunction with article 6(1) by virtue of the failure to provide legal assistance. Miln v Cullen 1967 JC 21 at 30 per Lord Wheatley. The Scottish courts have been critical of similar practice in the past. See, for example, Wade v Robertson 1948 JC 117; Stark and Smith v HM Advocate 1938 JC 170; HM Advocate v Rigg 1946 JC 1 and Chalmers.

Cadder and beyond

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M had both been cautioned (though Ambrose was heavily intoxicated when it was administered). Cadder should require a conscious recognition of any propensity in the system towards encouraging self-­incrimination, even if a practice is ultimately deemed unobjectionable. In this particular situation, given the often marginal decisions to be taken in potentially pressurised situations, it seems appropriate that the High Court should apply the principles of fairness on an individual basis, as the Supreme Court has left it open for them to do.149 C. CONCLUSION Cadder brought into focus the issue of balancing the rights and interests of the accused against those of the victim, under the overarching umbrella of the public interest, which spans both. In his judgment, Lord Rodger encapsulated the consequences of the decision in these terms. He said: [i]t must follow that the recognition of a right for the suspect to consult a solicitor before being questioned will tilt the balance, to some degree, against the police and prosecution. Although inescapable, that consequence is one that many of those who are familiar with the way the present system operates may well find unpalatable.150

At the time of the enactment of the emergency legislation, Dale-­Risk commented that ‘[t]he impression is given that because the Cadder decision is perceived as enhancing the rights of those accused of crime, then a “rebalancing” is required, with other rights eroded or lost altogether’ giving rise to a ‘feeling that suspects are going to have to pay for their increased rights’.151 Lord Drummond Young commented that the Crown Office perception was that ‘the non-­availability of evidence obtained at police interviews has tipped the balance too far in favour of the accused’.152 Ferguson’s concern has been that any rebalancing to correct this perception would result in the removal of other, even more fundamental rights of suspects, such as the corroboration requirement.153 Arguably, Cadder required only that, during the then applicable six-­hour 149

150 151

152 153

In Ambrose, the High Court ultimately determined (following the Supreme Court’s remit back) that the answer given by the accused (‘aye [or ah] well she wisnae well’) was not clearly incriminating. It allowed his appeal on the basis that his defence had not been properly considered and the sheriff had not clearly indicated on which parts of the evidence he had relied in convicting: Ambrose v Harris [2011] HCJAC 116. Cadder (n 2) at para 97. K Dale-­Risk, ‘Cadder v HM Advocate: a matter of (mis)representation’ (2010) 398 SCOLAG 258: available at: http://www.scolag.org/system/files/Scolag398_Student_2010.pdf (last accessed 4 August 2017) at 259. Drummond Young, ‘Scotland and the Supreme Court’ (n 6) at 72. Ferguson, ‘Repercussions’ (n 43) at 748.

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detention period, suspects should have the benefit of the offer of legal advice. At that stage, suspects are vulnerable, the police interview is a significant part of the criminal process and art 6(3)(c)’s express provision, in the context of the general right to a fair trial, of the right to defend oneself through legal assistance rendered this provision of access to a lawyer necessary. It is not surprising, in view of the extreme practical ramifications of the decision, that the whole system of criminal justice was put under a spotlight. It is less clear, however, that providing a corrective to a recognised deficiency for suspects would require a subtraction from their other rights or the addition of other powers for the state. As Hoyano has said, ‘a fair trial does not involve abstract balancing between the rights claims of the defendant and the complainant . . . Measures to protect one do not inevitably detract from the rights of the other in a zero-­sum game.’154 Even if the matter is perceived in this way, the provision of legal advice during detention could be said merely to bring the suspect’s end of the equation back into balance from its previous inadequacy. The overarching principle, as the Scottish courts have consistently stated, should be fairness to all participants. In their final form, the provisions in the 2016 Act for legal advice and support to suspects have respected their rights, as required but without, as yet, trading other protections for the accused within the trial process, such as corroboration, for the purposes of balance. As such, they are cautiously welcomed.

154

L Hoyano, ‘Reforming the adversarial trial for vulnerable witnesses and defendants’ (2015) Crim LR 107 at 107.

Chapter 2 ‘Access to justice’ for complainers? The pitfalls of the Scottish Government’s case to abolish corroboration Ilona Cairns

INTRODUCTION As this collection as a whole aims to demonstrate, recent years have been marked by a Scottish Government drive to reform and ‘modernise’ various features of the Scottish criminal justice system and Scots criminal evidence law. In order to justify this reform and modernisation agenda, the Scottish Government has increasingly relied upon ‘access to justice’ rhetoric. The debate over whether to abolish the corroboration rule is a particularly striking example of this and one that clearly illustrates that ‘access to justice’ is increasingly presented by the Scottish Government as something beneficial to, and necessary for, complainers1 in sexual offence and domestic abuse cases. Using the corroboration debate as a case study, this essay explores the motivations behind, and consequences of, the Scottish Government’s reliance on this principle in this particular way. It argues that ‘access to justice’ language has been, and continues to be, relied upon without full explanation, but that a very particular understanding of what justice entails for complainers, namely direct engagement with the criminal justice system and an increase in prosecution rates, appears to inform its use. This latter observation fits with the claim that penal populism is one of the factors driving reform of Scots criminal evidence law2 and, as this chapter will demonstrate, is problematic on a number of different levels. Although the ‘access to justice’ claim was pursued relentlessly by the Scottish Government in the corroboration debate (particularly in its latter stages) the argument was, ultimately, unsuccessful. For the time being at least, it appears that the corroboration rule is here to stay. As explained in more detail later in this chapter, the debate ground to a halt following the publication of the report of the Post-­Corroboration Safeguards Review (the

1

The term complainer, as opposed to victim, survivor or victim-­survivor, is used throughout this essay, unless it is contextually appropriate to use a different term, or reference is made to other studies, legislation or literature in which different terminology is used. 2 See Duff, Chapter 9 in this volume.

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‘Bonomy Review’) in April 20153 and the subsequent announcement by the Justice Secretary that the Government was no longer pushing forward with abolition via s 57 of the Criminal Justice (Scotland) Bill 2013.4 This ‘U-­turn’ was broadly welcomed by many MSPs, members of the legal profession and legal commentators who, to varying degrees and for a host of reasons, were critical of the Government’s original plans. Perhaps more surprisingly, the decision was also supported by Rape Crisis Scotland,5 which represents and protects the interests of the very individuals the Government claimed abolition would most benefit. While it is accepted that there are various reasons why the proposals to abolish corroboration were dropped (many of which are unconnected to the weaknesses of the ‘access to justice’ argument), this essay will show that the Government’s case for abolition was misguided and flawed in several ways and argue that this partially explains why its proposals failed so catastrophically. Moreover, important insights about the reform and evolution of Scots criminal evidence law can be gleaned from focusing on the precise way in which the Government framed and justified the case for abolition, and how its case was received and challenged. For example, the corroboration debate as a whole demonstrates the fragility, dangers and superficiality of populist ­arguments – ­particularly those which promote reform as being necessary to improve the position of complainers in sexual offence and domestic abuse ­cases – ­that were core to the Government’s case for reform. The chapter begins in Part A with a brief introduction to the corroboration rule and the key features of the ‘injustice argument’6 that was advanced in the Carloway Review. Part B will explain how Lord Carloway’s ‘injustice’ argument morphed into a more specific and arguably more problematic ‘access to justice’ argument once the Scottish Government endorsed Lord Scottish Government, The Post-Corroboration Safeguards Review: Final Report (April 2015), available at: http://www.gov.scot/Topics/archive/reviews/post-corroboration-safeguards (last accessed 29 August 2016). 4 Ministerial Statement to Parliament on Lord Bonomy’s Post-Corroboration Safeguards Review (April 2015), available at: http://news.scotland.gov.uk/Speeches-Briefings/Ministerial-Statement-toParliament-on-Lord-Bonomy-s-Post-corroboration-Safeguards-Review-1865.aspx (last accessed 29 August 2016). 5 Rape Crisis Scotland’s Sandy Brindley was quoted as saying: ‘It’s probably a good thing that they are going to take some time to properly look at the implications . . . In particular, it would not have been a good thing if the size of the minimum jury majority had been increased without the not proven verdict being abolished . . . This could have led to a reduction in the number of rape convictions’. See ‘Plans to abolish corroboration in Scottish cases dropped’, BBC News, 21 April 2015, available at: http://www.bbc.co.uk/news/uk-scotland-scotland-politics-32398065 (last accessed 29 August 2016). 6 D Nicolson and J Blackie, ‘Corroboration in Scots law: “archaic rule” or “invaluable safeguard”?’ (2013) 17 Edin LR 152. These authors identify the ‘injustice argument’ as one of three principal claims underpinning the case for abolition. This terminology is borrowed for the purposes of this essay. 3



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Carloway’s proposal to abolish corroboration. The fundamental ways in which the ‘injustice’ argument and the ‘access to justice’ argument differed from one another will be emphasised. The latter, it will be suggested, arose as a consequence of the Government’s swift realisation that removal of the corroboration requirement would be unlikely to have a positive impact on conviction rates, and appears to have been inspired by assumptions about the value of procedural justice to complainers in sexual offence and domestic abuse cases. Part C, which comprises the bulk of the chapter, teases apart the various difficulties with the Scottish Government’s ‘access to justice’ argument. It will be suggested that the way in which the Scottish Government developed and framed this argument sent the misleading message that the criminal justice system is inherently ‘therapeutic’;7 implied that the objective of facilitating complainer participation should be taken into account in a decision over whether or not to prosecute an individual case; and obscured alternative perspectives on what it means for complainers in domestic abuse and sexual offence cases to have ‘access to justice’. A. THE ORIGINS OF THE ‘ACCESS TO JUSTICE’ ARGUMENT: THE CARLOWAY REVIEW (1) The corroboration requirement in Scots law As a matter of law, an accused cannot be convicted in Scotland unless the ‘essential’ or ‘crucial’ facts of the c­ ase – t­ hat a crime was committed and that it was the accused that committed the c­ rime – ­are corroborated. In practice, this means that the actus reus of the crime, as well as the identity and mens rea of the accused, must be confirmed by two independent sources of evidence. This rule is ingrained in the Scottish criminal justice system and process, both in the sense that it is familiar to (and applied by) criminal justice actors at all stages of the investigation and prosecution of crime, and in the sense that other rules of Scots criminal evidence law have been justified by it, or designed around it.8 However, judicial efforts directed at ensuring that the corroboration requirement is not too effective at preventing the successful conviction of crime have resulted in an increasingly flexible and complex rule. There are now a number of doctrines and rules which essentially allow corroboration to be found when it is likely to be missing and which, taken together, have prompted some to argue that the corroboration requirement 7

The idea of a court as ‘therapy’ or ‘therapeutic’ was touched on by the Convener of the Justice Committee during the debate. See Scottish Parliament, Official Report, Justice Committee, cols 3960 and 3961 (10 Dec 2013), available at: http://www.parliament.scot/parlia mentarybusiness/28862.aspx?r=8787&mode=pdf (last accessed 29 August 2016). 8 J Chalmers, ‘Abolishing corroboration: three bad arguments’ (2014) SLT (News) 7 at 10. For example, many Scots lawyers understand there to be a connection between the corroboration requirement and the simple majority jury verdict.

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‘is not as strong a safeguard against miscarriages of justice as many of its supporters believe’.9 A number of these doctrines originated in sexual offence cases, and it is in such cases that they still tend to be applied by the courts. Perhaps the most notable example is the Moorov doctrine, which allows the account of one complainer to corroborate the account of a different complainer (‘mutual’ corroboration) where separate crimes are charged together and are sufficiently connected in terms of ‘time, place and circumstance’.10 The Scots law of corroboration also allows a complainer’s testimony to be corroborated by his or her distress, albeit in quite narrow circumstances.11 Although such rules are undoubtedly valuable and go part of the way to alleviating the difficulties with proof that the corroboration requirement deliberately creates, the judicial development of the corroboration rule has not altogether averted discussions about whether more radical reform is necessary. Prior to the publication of the Carloway Review, these discussions tended to be focused on the acute difficulties in proving crimes that occur in private, such as child abuse, rape and domestic abuse.12 However, it is important to stress that the idea of removing the corroboration requirement for certain types of offences ­only – ­a so-­called ‘special treatment’ approach13 – has never found much favour in Scotland, even amongst victims’ rights groups. For example, the majority of (but not all) groups representing the interests of victims of sexual offences responded in the negative when the Scottish Law Commission (SLC) asked for their view on whether the corroboration requirement should be removed for proof of sexual offences (or particular sexual offences) as part of its review of the law of sexual offences

9

10 11

12

13

P Duff, ‘The requirement for corroboration in Scottish criminal cases: one argument against retention’ (2012) Crim LR 513. Duff’s article discusses the various ways in which corroboration has been ‘diluted’. Moorov v HM Advocate 1930 JC 68. See Chapter 4 in this volume at 101. The courts have held that distress must be observed within a certain timeframe (McCrann v HM Advocate 2003 SCCR 722) and that, in sexual offence cases, distress can only corroborate lack of consent and not the complainer’s account of precisely what took place (Smith v Lees 1997 JC 73). More recently, it has been held that diary entries cannot provide evidence of the complainer’s distress (Walker v HM Advocate [2015] HCJAC 122) and that distress cannot corroborate a complainer’s account in non-­forcible rape cases (Mutebi v HM Advocate [2013] HCJAC 142). For an analysis of some of the difficulties the courts have faced in this area see J Chalmers, ‘Distress as corroboration of mens rea’ (2004) SLT (News) 141 and M Redmayne, ‘Corroboration and sexual offences’ (2006) Juridical Review 309. For an overview of criticisms of the corroboration requirement prior to the recent corroboration debate, see Post-Corroboration Safeguards Review: Report of the Academic Expert Group 9–12, available at: http://www.gov.scot/Resource/0046/00460650.pdf (last accessed 29 August 2016). F E Raitt, ‘Corroboration in cases of gender violence: a case for special treatment?’ (2014) 18 Edin LR 93. See also P R Ferguson, ‘Corroboration and sexual assaults in Scots law’, in M Childs and L Ellison (eds), Feminist Perspectives on Evidence (2000: Cavendish).



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in 2006.14 Concerns were expressed that a special treatment approach would result in a higher number of successful defence appeals in sexual offence cases, ‘leading to a general perception that all convictions based solely on the word of the complainer are unsound’ which may, in turn, discourage reporting.15 (2) Lord Carloway’s injustice argument As is widely known, the recent corroboration debate arose out of the publication of the Carloway Review in 2011,16 which was commissioned in the immediate aftermath of the Supreme Court decision in Cadder v HMA.17 This required that persons ‘detained’18 by the police have the right to consult with a lawyer prior to being interviewed. Recognising that the judgment heralded a ‘new dawn’ for Scots criminal justice,19 and in anticipation of the high level of interest and controversy that would surely follow, the Scottish Government announced on the day of the Cadder decision that Lord Carloway was to lead a review tasked with examining various areas of Scots criminal procedure and evidence law.20 The corroboration requirement was included in the review’s terms of reference, as a result of a concern that corroborative evidence, and therefore convictions, would be more difficult to obtain if lawyers advised their clients to remain silent at interview.21 In the Government’s view, this meant that ‘the criminal justice process required “rebalancing” in some way to ameliorate this consequence’.22 Although the notion of rebalancing the ‘scales of justice’ was initially endorsed by the Scottish Government,23 it appeared to move away from this argument as the debate progressed.24 However, despite 14

15

16

17 18 19

20

21 22 23

24

Scottish Law Commission, Discussion Paper on Rape and Other Sexual Offences (Scot Law Com DP No 131, 2006) para 7.26. Scottish Law Commission, Report on Rape and Other Sexual Offences (Scot Law Com No 209, 2007) para 6.4. Carloway Review: Report and Recommendations (2011), available at: http://www.gov.scot/Resource/ Doc/925/0122808.pdf (last accessed 29 August 2016). Cadder v HMAdvocate [2010] UKSC 43, 2010 SLT 1125. See Chapter 1 in this volume at 20. Criminal Procedure (Scotland) Act 1995 s 14. J Chalmers and F Leverick, ‘“Substantial and radical change”: a new dawn for Scottish criminal procedure’ (2012) 75 MLR 837 at 851. As noted in Duff’s conclusion to this book, on the same day the then Justice Secretary Kenny MacAskill announced that he would be introducing emergency legislation to the Scottish Parliament in the form of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. Chalmers and Leverick (n 19) at 851. Ibid at 839. Claims of this nature were made by the Justice Secretary in the early stages of the debate. See Scottish Parliament, Official Report, cols 29,557, 29,560 and 29,673 (27 Oct 2010). It is significant to note that Lord Carloway denied that his Review was motivated by a desire to ‘re-­adjust’ or rebalance the criminal justice system: Carloway Review (n 16) para 4.0.6 and Post-Corroboration Safeguards Review: Report of the Academic Expert Group (n 12) 14.

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changes in tone, specificity and language as time went on, the Government’s case for abolition remained rooted in the same idea throughout the debate: that the removal of the corroboration requirement would benefit complainers. The seeds for this argument are contained in the Carloway Review itself which, after twelve short months, reached the controversial conclusion that the requirement of corroboration should be abolished for all crimes. While the review contained other important recommendations,25 the level of attention that these recommendations attracted paled in significance compared to the proposal to abolish the corroboration rule.26 It has been noted elsewhere that Lord Carloway ‘did not base his argument on any difficulties with prosecuting specific crimes such as sexual offences’.27 This claim is not disputed here. Indeed, but for perceived difficulties with respect to how the corroboration rule impedes the prosecution and conviction of sexual offences and domestic abuse, it is highly likely that Lord Carloway would still have reached the conclusion that corroboration should be abolished. His case for abolition was multifaceted yet general, and built upon a number of core claims that are separable from the idea that corroboration acts as an ‘impediment to justice’28 for particular categories of crimes. Instead, he argued that: corroboration does not ‘serve its purpose’ of preventing miscarriages of justice;29 it is ‘archaic’ and out of place in a ‘modern’ criminal justice system;30 and it is confusing and inconsistently applied.31 Moreover, although the Carloway Review touched on the idea that corroboration may be a more significant ‘hurdle of proof’32 for crimes that occur in private, neither sexual offences nor domestic abuse were provided as examples.33 Indeed, the only crimes that were explicitly mentioned in the 25

26 27 28 29

30

31 32 33

See generally, Carloway Review (n 16). The review examined a variety of issues relating to custody, investigation, evidence and appeals, and made recommendations spanning across all of these areas. Nicolson and Blackie, ‘Corroboration in Scots Law’ (n 6) at 153. Post-Corroboration Safeguards Review: Report of the Academic Expert Group (n 12) at 14. Carloway Review (n 16) para 7.2.34. Ibid para 7.2.14. This claim proved particularly controversial. For a selection of commentary on the extent to which the corroboration requirement is effective at preventing wrongful convictions and the difficulties with measuring the rate of miscarriages of justice see Duff, ‘The requirement for corroboration’ (n 9); Nicolson and Blackie, ‘Corroboration in Scots law’ (n 6); Chalmers, ‘Abolishing corroboration’ (n 8). This argument is threaded throughout the discussion of corroboration in the Carloway Review (see, for instance, paras 7.2–7.3) and is connected to the claim that the Scottish corroboration rule is ‘unique’. For criticism of the ‘uniqueness’ claim, see Chalmers, ‘Abolishing corroboration’ (n 8) at 8–9. Carloway Review (n 16) paras 7.2.44–7.2.48. Ibid para 7.1.17. At the time of writing, domestic abuse is not a distinct crime in Scotland and is most commonly prosecuted as threatening or abusive behaviour under s 38 of the Criminal Justice and Licensing (Scotland) Act 2010, common law breach of the peace, or common assault. However, the police can record these crimes with a domestic aggravator, and the Scottish



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review as being particularly burdensome to corroborate were minor assaults and theft: Corroboration is more likely to exist in relation to some offences than others . . . Where crimes are usually committed in private, the only potential evidence may be from the testimony of a complainer. There may be nothing else, or very little, in the absence of statements made by suspects at interview. Equally, with minor assaults or thefts, where there may also be little evidence other than that of the complainer, it may simply not be cost effective to put the level of effort into investigating such cases, and thereby finding corroboration, as is appropriate to more serious offences.34

Even if Lord Carloway had sexual offences and domestic abuse in mind when he referred to ‘crimes usually committed in private’ (this is highly likely) it is still clear that his case for abolition did not rest upon the proposition that such crimes are more difficult to corroborate than others. If this were the case, one might have expected the review to deal directly with the question of whether corroboration should be abolished for particular offences. However, this possibility received no attention in the review, and minimal attention in the corroboration debate itself.35 To accept that Lord Carloway’s case for abolition did not stand or fall on the idea that corroboration is more difficult to obtain for certain crimes is not to suggest that the Government was not in any way influenced by, or did not draw on, the review’s arguments for abolition in framing its own case. The idea that the corroboration requirement leads to injustice through arbitrarily rendering convictions impossible in cases where there is an absence of corroboration has clear roots in the Carloway Review and, as will be explained, is the precursor to the ‘access to justice’ argument that came to characterise the Government’s position on corroboration reform. In the review itself, the injustice argument was intertwined with the claim that the quantity of the evidence should not be privileged over quality,36 and this view was stretched to the extent that the corroboration requirement was blamed for creating ‘miscarriages of justice’ through

34

35 36

Government publishes annual figures showing the number of crimes recorded with this aggravator as well as the number of convictions. See Scottish Government, Criminal Proceedings in Scotland, 2014–15, available at: http://www.gov.scot/Resource/0050/00501678.pdf (last accessed 29 August 2016). In 2015, the Scottish Government published a consultation paper on whether a criminal offence of domestic abuse should be introduced: see Scottish Government, A criminal offence of domestic abuse, Scottish Government Consultation Paper (2015), available at: https://consult.scotland.gov.uk/criminal-law-and-sentencing-team/criminaloffence-domestic-abuse/user_uploads/00491481.pdf (last accessed 29 August 2016). Carloway Review (n 16) para 7.2.49. Here, of course, the concern seems to relate more to effective use of resources: see also para 7.1.17. Although see Raitt, ‘Corroboration’ (n 13). Carloway Review (n 16) paras 7.2.42–7.2.43.

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rendering convictions impossible in cases where there is only one source of evidence. Lord Carloway claimed that ‘especially in circumstances where it would be unlikely that there could ever have been corroboration’ the requirement ‘should not prevent a judge or jury from deciding that the evidence of a complainer or other witness is believable and sufficient to establish guilt’37, implying that it may be justifiable to apply a different, laxer standard to offences which are, by their very nature, more difficult to corroborate. Lord Carloway argued that a rule that prevents a conviction in the above circumstances is ‘creating’ an injustice.38 Leaving aside potential difficulties with the precise way in which unjustified acquittals were characterised as ‘miscarriages of justice’,39 it is notable that his injustice argument was inspired by the view that the corroboration requirement can sometimes operate as an arbitrary barrier to prosecution and conviction. Empirical research, carried out by the Crown Office and Procurator Fiscal Service (COPFS), was included in the report with the clear purpose of lending support to this line of argument40 and led Lord Carloway to conclude that ‘the requirement for corroboration may be preventing the prosecution of cases that could result in convictions’.41 While Lord Carloway did not explicitly state in the review that conviction rates would rise if corroboration were abolished,42 one can infer from such comments that he believed abolition would have some impact in this regard.43 Indeed, he would not have formulated his injustice argument in the way he did (namely that corroboration is capable of causing miscarriages of justice in cases where there is only one credible and reliable source of evidence) if he did not believe that abolition would remedy this perceived arbitrariness, and increase the proportion of such cases in which a judge or jury could (and would) reach a guilty verdict. When giving evidence to the Scottish Parliament Justice Committee following the publication of the review, Lord Carloway clarified that he did not expect the overall number of prosecutions or convictions to increase dramatically, but did ‘hope’ that ‘if there is a focus on quality, the number of convictions per prosecution ought perhaps to go 37 38 39

40

41 42

43

Ibid para 7.2.42. Ibid. For an explanation of why this characterisation is particularly problematic, see Nicolson and Blackie, ‘Corroboration in Scots law’ (n 6) at 167. Carloway Review (n 16), paras 7.2.31–7.2.34 and Annex A pages 371–378. The methodology of this research has been criticised: see Chalmers and Leverick, ‘Substantial and radical change’ (n 19) at 852. Carloway Review (n 16) para 7.2.33. Indeed, Lord Carloway expressed scepticism that abolition would result in a significant rise in convictions. At para 7.2.41, the review states: ‘Removing the formal requirement for corroboration may not result in significant changes to conviction rates, at least in cases of the type currently prosecuted’. Nicolson and Blackie, ‘Corroboration in Scots law’ (n 6) at 166.



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up’.44 Two points are noteworthy about this statement. First, the use of the word ‘hope’ in this context implies that Lord Carloway perceived there to be a problem with conviction rates and is supportive of reform that has increasing conviction rates as one of its underlying aims. Second, the core idea advanced h ­ ere – t­hat the number of prosecutions would not increase with abolition but the proportion of prosecuted cases that resulted in a conviction w ­ ould – i­s at odds with the position taken by many other legal professionals, academics and politicians who argued throughout the debate that abolition would likely result in more prosecutions, but not necessarily more convictions.45 It was suggested that this was especially likely to be the case for sexual offences and domestic abuse, offences that prosecutors are under political pressure to bring to court, but which are notoriously difficult to prove.46 It is therefore clear that Lord Carloway’s injustice argument was primarily grounded in the idea that miscarriages of justice can result when there is a wrongful acquittal, namely a lack of conviction, rather than the idea that justice is denied when a case is not prosecuted and complainers do not get their ‘day in court’. This latter idea was articulated only after the Scottish Government had endorsed Lord Carloway’s proposal to abolish corroboration and had begun to push for concrete reform via s 57 of the Criminal Justice (Scotland) Bill 2013.47 B. ACCESS TO ‘PROCEDURAL’ JUSTICE? THE GOVERNMENT’S CASE FOR ABOLITION OF THE CORROBORATION RULE The Scottish Government was quick to accept Lord Carloway’s proposals but, like Lord Carloway, denied that change was being ‘propounded in

Scottish Parliament, Official Report, Justice Committee, col 528 (29 Nov 2011), available at: http://www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=6788&mode=pdf (last accessed 29 August 2016). 45 Scottish Parliament, Justice Committee, Stage 1 Report on the Criminal Justice (Scotland) Bill para 268 (6 Feb 2014), available at: http://www.parliament.scot/S4_JusticeCommittee/Reports/ juR-14-03w.pdf (last accessed 29 August 2016). This report notes that, ‘There was also a general expectation that abolishing the requirement for corroboration would increase the number of cases prosecuted, particularly in the case of sexual abuse, rape and domestic violence’. 46 Scottish Parliament, Official Report, Justice Committee, cols 3956 and 3965 (10 Dec 2013). 47 Section 57 of the Criminal Justice (Scotland) Bill 2013 provided as follows: ‘(1) This section – (a) relates to any criminal proceedings, (b) is subject to sections 58 and 59. (2) If satisfied that a fact has been established by evidence in the proceedings, the judge or (as the case may be) the jury is entitled to find the fact proved by the evidence although the evidence is not corroborated.’ 44

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order to favour the prosecution of crime’.48 Almost immediately, however, the Government focused on the relationship between the corroboration requirement and sexual offences and domestic abuse. In the consultation paper that followed the review’s publication, the Government drew specific attention to the injustice argument when outlining Lord Carloway’s case for corroboration reform, describing the review’s principal conclusion as being that ‘the requirement for corroboration could itself lead to miscarriages of justice by making it too difficult to prosecute certain offences, for example those typically committed in private (such as rape)’,49 and referring to the empirical evidence contained in the review. While it is noteworthy that the Government chose to present Lord Carloway’s case for abolition in this way given the range of arguments in the review, and the fact that the review does not explicitly refer to rape complainers as a category of complainers who are more likely to experience miscarriages of justice, it is perhaps unsurprising given political interest in low conviction rates for domestic abuse and sexual offences, the interest of victims’ groups in the Carloway Review and its recommendations, and the focus of past discussions in the area. As already explained, to the minimal extent that the Scottish corroboration rule was criticised prior to Cadder, this was predominantly in the context of discussions about whether and to what extent the corroboration requirement presents unique challenges in terms of proving domestic abuse and sexual offences. It is therefore clear that there was a connection between the injustice argument advanced in Lord Carloway’s review and the main justification that the Scottish Government initially advanced for supporting the abolition of corroboration. From the very beginning of the debate, however, the Government’s case was more specific (insofar as it focused on the difficulties with prosecuting particular crimes) and more political. As time went on and resistance to abolition grew stronger, the Government’s argument became narrower and further removed from the injustice argument advanced in the Carloway Review. By the time that the Criminal Justice (Scotland) Bill 2013 was introduced to the Scottish Parliament, the Cabinet Secretary and other MSPs were consistently claiming that ‘a whole category of victims’ is being ‘routinely denied access to justice’50 owing to the corroboration 48

49

50

Scottish Government, Reforming Scots Criminal Law and Practice: The Carloway Report 41, available at: http://www.gov.scot/resource/0039/00396483.pdf (last accessed 29 August 2016). Ibid para 9.5. Lord Carloway’s conclusions were summarised in a similar way in the Scottish Government’s Analysis of Consultation Responses Document: see Scottish Government, Reforming Scots Criminal Law and Practice: The Carloway Report, Analysis of Consultation Responses at 69, available at: http://www.gov.scot/Resource/0041/00410913.pdf (last accessed 29 August 2016). Scottish Parliament, Official Report, col 28323 (27 Feb 2014), available at: http://www.parliament.scot/S4_Bills/Stage_1_debate.pdf (last accessed 29 August 2016). This report contains numerous references to ‘access to justice’.



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requirement. The number of references to ‘access to justice’ in both the parliamentary debates and Justice Committee reports on the Criminal Justice (Scotland) Bill is quite startling.51 At no point during the corroboration debate did the Scottish Government clearly and explicitly define or explain its use of the term ‘access to justice’.52 However, the precise meaning and scope of the term was questioned on various occasions by the Justice Committee53 which, while taking evidence on the Bill, uncovered a lack of clear consensus as to how exactly abolition of corroboration would provide complainers in domestic abuse and sexual offence cases with ‘access to justice’. Indeed, in the Stage 1 debate on the Criminal Justice (Scotland) Bill, the Convener of the Justice Committee, Christine Grahame, indicated that members of the Justice Committee were themselves confused over the term’s meaning, noting that ‘we could not reach agreement on whether removing such an integral part of the criminal justice system would improve for victims of those crimes access to justice –whatever that means to ­members – i­n a meaningful way’.54 According to the Justice Committee, the primary source of confusion was whether a complainer could be said to have had ‘access to justice’ simply because his or her case had been brought to court, or if there had also to be a successful conviction.55 However, of those who indicated that they were in favour of abolition during the debate, few openly admitted that their support was motivated by a desire to increase conviction rates. Indeed, several of those who gave evidence to the Justice Committee suggested that increasing conviction rates and providing ‘access to justice’ were quite separate goals, positing that abolition 51

52

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54 55

While ‘access to justice’ rhetoric was most noticeable in discussions relating to corroboration and the way in which abolition would impact complainers, the term also cropped up in discussions about other sections of the Bill. For example, it was suggested by one QC that sections 76 and 77 of the Bill ‘narrowed access to the appeal court’ and that this would ‘restrict access to justice’ for the accused. See Scottish Parliament, Justice Committee, Stage 1 Report on the Criminal Justice (Scotland) Bill at 93. During the corroboration debate, the view was also expressed that the corroboration requirement ensures that an accused person has ‘access to justice’ insofar as it allows them to challenge the quality and quantity of evidence against them. See Scottish Parliament, Justice Committee, Official Report, col 3899 (3 Dec 2013) (Shelagh McCall, Scottish Human Rights Commission), available at: http://www.parliament. scot/parliamentarybusiness/28862.aspx?r=9247&mode=pdf (last accessed 29 August 2016). However, the Government’s website states that widening ‘access to justice’ involves ‘improving information and advice services, giving people greater options to resolve disputes without court action wherever possible, having a flourishing legal services market and, where necessary, providing legal aid for court proceedings’: http://www.gov.scot/Topics/Justice/policies/ widening-access (last accessed 29 August 2016). Scottish Parliament, Justice Committee, Official Report (3 Dec 2013); Scottish Parliament, Justice Committee, Official Report (26 Nov 2013), available at: http://www.parliament.scot/ parliamentarybusiness/28862.aspx?r=9444&mode=pdf (last accessed 29 August 2016); See also Scottish Parliament, Official Report (27 Feb 2014). Scottish Parliament, Official Report, col 28332 (27 Feb 2014) (emphasis added). Ibid.

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was not about conviction rates but instead about ‘access to justice’.56 During the course of the debate, ‘access to justice’ was also described as a ‘simple’ but ‘wide-­ranging’ concept that ‘starts with the victim being believed and receiving information and support’57 and as involving victims reporting to the police, having complaints investigated, and having the opportunity for their case to be passed to COPFS.58 Although no clear definition of ‘access to justice’ was offered by the Scottish Government, it was presented as a process or state of affairs whereby complainers would have their cases brought to court. ‘Access to justice’ rhetoric was frequently accompanied by the claim that complainers have a right ‘to be heard’ and ‘deserve their day in court’,59 creating the impression that the criminal justice system is in some way ‘therapeutic’ and that there is merit in prosecuting cases on the basis that it helps individual complainers (rather than because a prosecution is in the public interest).60 However it must be emphasised that at no point (even in the early stages of the debate) did the Government openly argue that abolition was necessary in order to secure justice for complainers through a conviction. This distinguishes the Government’s ‘access to justice’ argument from the injustice argument advanced in the Carloway Review which, as already explained, was more general and rooted in the idea that miscarriages of justice can occur when there is unjustified acquittal or, in other words, no conviction. The Government’s focus on prosecution and process, rather than conviction and outcome, suggests that it understood access to justice to be fundamentally about procedural justice. There are several explanations for why the Scottish Government sought to distance itself from the idea that abolition may result in fewer unjustified acquittals, and therefore more convictions. Firstly, it became very clear in the early stages of the debate that any direct claim that the abolition of corroboration is necessary to improve conviction rates, whether generally or in sexual offences and domestic abuse cases specifically, would be strongly contested. Commentators, members of the legal profession and even victim 56

57

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60

This was the view expressed by COPFS and the Lord Advocate. See Scottish Parliament, Justice Committee, Stage 1 Report on the Criminal Justice (Scotland) Bill at 52 and 54. Scottish Parliament, Justice Committee, Official Report, col 3898 (3 Dec 2013) (Alan McCloskey, Victim Support Scotland). Ibid col 3868 (Assistant Chief Constable Graham). There is some discussion over the meaning and appropriateness of these phrases, in particular the phrase ‘day in court’, in the various Justice Committee reports on the Criminal Justice (Scotland) Bill and in the Stage 1 debate on the Bill in the Scottish Parliament: see for example, Scottish Parliament, Official Report, cols 28359, 28354 and 28357 (27 Feb 2014). This concern was expressed on several occasions in the meetings of the Justice Committee, Alison McInnes MSP, for example, stated that ‘the issue [corroboration reform] seems to be driven by a desire to give victims their day in court rather than by the need to secure prosecutions in the public interest’, Scottish Parliament, Justice Committee, Official Report, col 3810 (26 Nov 2013).



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support groups were quick to quell the spread of the myth that abolition would have a dramatic impact on conviction rates by drawing attention to empirical research carried out by the Royal Commission on Criminal Justice in the 1990s which considered whether a supporting evidence requirement should be introduced in England and Wales,61 and by pointing out that police, prosecutors, judges and juries would be likely to continue to seek out corroborative evidence ‘informally’ even if the ‘formal’ corroboration rule was abolished.62 With respect to sexual offences specifically, it was stressed that the conviction rate for rape in other jurisdictions, where there is no formal corroboration rule, including England and Wales, is comparable to that in Scotland,63 and that myths about false reporting and complainer credibility might mean that police, prosecutors and fact-­finders would be more likely to informally seek corroboration for rape than for other offences.64 The Faculty of Advocates, on the other hand, suggested later in the debate that abolition might mean that the police would be less thorough in their investigations, weakening the case against the accused, and resulting in a fall in the number of prosecuted cases that would result in a conviction.65 This view, taken together with the others noted immediately above, indicate that the Government would have faced a great challenge in convincing interested parties that abolition would have a positive impact on conviction rates. This would have been almost immediately clear to the Government and may very well have influenced its decision to frame its case for abolition in somewhat vague ‘access to justice’ language. If the Government had openly argued that the rule’s removal is necessary in order to improve conviction rates, this might also have played into the hands of those who are fundamentally opposed to abolition on the basis that the corroboration requirement serves its purpose of preventing miscarriages of justice. If it had been argued that abolition would increase conviction rates, this would have (somewhat ironically) created more room for, and perhaps even have lent support to, claims that abolition would lead to more unsafe convictions, especially in the early stages of the debate before there was proper certainty over whether

61 62

63

64 65

Chalmers and Leverick, ‘Substantial and radical change’ (n 19) at 852–853. See the response from Pamela Ferguson in Scottish Government, The Carloway Review: Responses to the Consultation Document at 28, available at: http://www.gov.scot/About/Review/ CarlowayReview/Consultationprocess (last accessed 29 August 2016) and I Cairns, ‘Does the abolition of corroboration in Scotland hold promise for victims of gender-­based crimes? Some feminist insights’ (2013) Crim LR 640 at 646. See, for example, the consultation response from Rape Crisis Scotland to Scottish Government, Reforming Scots Criminal Law and Practice: The Carloway Report at 2, available at: http://www.gov.scot/Resource/0041/00411080.pdf (last accessed 29 August 2016). Cairns, ‘Does the abolition of corroboration hold promise’ (n 62) at 647. Faculty of Advocates, Written Submission to the Justice Committee on the Criminal Justice (Scotland) Bill (2013) at 2, available at: http://www.parliament.scot/S4_JusticeCommittee/Inquiries/ CJ42._Faculty_of_Advocates.pdf (last accessed 29 August 2016).

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additional safeguards would accompany abolition and what these safeguards might look like. In sum, it is suggested here that the Government’s ‘access to justice’ argument was not intended to be understood as an argument for increasing the number of convictions in sexual offence and domestic abuse cases. This is not to deny that a surreptitious desire to increase conviction rates in these areas may have been what truly lay behind the Government’s enthusiasm for reform, but rather that the Government recognised the potential weaknesses of a conviction rate argument early on, and chose instead to couch its case for abolition in ‘access to justice’ language. The precise way in which this ‘access to justice’ argument was deployed sent the message that procedural ­justice – ­involving direct engagement with the criminal justice system via ­prosecution – ­is inherently beneficial for complainers in sexual offence and domestic abuse cases. The fact that the Government’s case for abolition appeared to be hinged on the idea that there is intrinsic value in bringing more cases to court is especially noteworthy in light of the Government’s initial denial that change was being ‘propounded in order to favour the prosecution of crime’.66 C. THE PITFALLS OF THE GOVERNMENT’S ‘ACCESS TO JUSTICE’ ARGUMENT At the outset, it should be emphasised that the argument being developed in the following sections is neither a critique of the concept of ‘access to justice’ nor a rejection of the idea that the concept can or should apply to complainers. It is accepted that the corroboration requirement can operate to prevent sexual offence and domestic abuse cases proceeding to court, and that this can cause frustration, distress and pain for complainers. Moreover, it is not disputed that many complainers in sexual offences and domestic abuse cases want to see the accused prosecuted and convicted, and that a successful conviction is capable of giving complainers a real sense of justice. Those who deal directly with victims of sexual offences and domestic abuse, and whose opinions must be given significant weight, made such points persuasively during the course of the debate.67 Nevertheless it is suggested that the tunnel-­ vision focus on prosecution and criminal justice solutions in the corroboration debate presented an overly simplistic image of what justice means to complainers and rendered their diverse justice needs almost invisible. It is also accepted that the corroboration rule operates particularly unsatisfactorily in sexual cases. This is confirmed by the fact that there are examples of high-­profile sexual offence cases that likely would have been 66 67

Scottish Government, Reforming Scots Criminal Law and Practice: The Carloway Report at 41. See, for example, the consultation responses from Victim Support Scotland, Scottish Women’s Aid, Say Women and Rape Crisis Scotland to Scottish Government ibid.



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decided differently on appeal if the corroboration requirement did not exist. Smith v Lees,68 in which a conviction for lewd and libidinous practices was overturned by the High Court on the basis that the complainer’s distress following the alleged incident could not corroborate her account of what had happened, is one example. It has been suggested that such a conviction would have stood if there had been no corroboration requirement because ‘[t]he complainer’s testimony would itself be sufficient proof; the distress would simply be supporting circumstantial evidence’.69 The more recent case of Mutebi v HMA70 is another example and one which illustrates that there are particularly acute difficulties with corroborating mens rea in rape cases. In this case, the conviction for rape was quashed because, in the High Court’s view, the circumstantial evidence relied upon by the C ­ rown – w ­ hich included observed distress on the part of the ­complainer – ­could not provide corroboration of the accused’s mens rea in the short interval (around twenty seconds) after the complainer apparently withdrew consent during intercourse.71 In confirming that an accused’s mens rea requires corroboration in rape cases, and that distress is incapable of corroborating the complainer’s account when the alleged rape does not involve force, Mutebi effectively renders many non-­forcible rapes non-­provable, and thus beyond the reach of the criminal law. Technical difficulties of this nature would evaporate if corroboration were abolished.72 It is clear, then, that there was logic and basis to the Government’s stance that corroboration presents particular difficulties in rape cases. However, the Government did not draw specific attention to the technical difficulties with the corroboration requirement in presenting its case for abolition, but instead choose to present corroboration reform as an ‘access to justice’ issue. (1) How many more complainers would get ‘access to justice’? The first and most obvious difficulty with the ‘access to justice’ argument is that there is a lack of clarity as to whether the removal of the corroboration requirement would have resulted in a marked increase in the number of cases that proceed to court. While many of those who participated in the corroboration debate appeared to be of the view that an increase in prosecution rates was more likely than an increase in the proportion of prosecuted cases that would result in a conviction, concrete evidence to this effect was 68 69 70 71 72

1997 JC 73. Post-Corroboration Safeguards Review: Report of the Academic Expert Group (n 12) at 27. [2013] HCJAC 14. Ibid para 14. Or if the requirement to corroborate mens rea in rape cases was dispensed with. Over a decade ago, Redmayne suggested that ‘[t]his minimal erosion of the corroboration doctrine hardly seems politically contentious, and would go a long way towards solving problems in this area’; Redmayne, ‘Corroboration and sexual offences’ (n 11) at 323.

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somewhat lacking. Aside from the rather questionable empirical research contained in the Carloway Review, the only other evidence indicating that abolition would lead to a rise in the overall number of prosecutions was that contained in the Financial Memorandum which accompanied the Criminal Justice (Scotland) Bill 2013. This suggested that any increase in the number of cases prosecuted by COPFS would be relatively modest: between 0.5 per cent and 6.3 per cent for summary prosecutions (best estimate of 2.5 per cent) and between 3.5 per cent and 12.4 per cent for solemn prosecutions (best estimate of 7.6 per cent).73 These figures give an important sense of perspective to the Government’s contention that abolishing corroboration would help to solve the problem of complainers being ‘routinely denied access to justice’, although they do not reveal much about how abolition would impact upon the prosecution of sexual offences and domestic abuse. Following the publication of the Bill, however, a representative from COPFS confirmed to the Justice Committee that an internal shadow marking exercise, focused specifically on domestic abuse cases, had also been carried out and that this exercise revealed ‘that the majority of the increase in the number of cases that we are likely to take to court on the summary side will be in domestic abuse cases’.74 Although no equivalent assertions were made with respect to sexual offences, it may be argued that prosecution rates for crimes such as rape would also have risen more sharply due to political pressure and prosecution policies. However, the extent to which this would have been the case, and precisely how many additional domestic abuse and sexual offence cases would have made it to court, remains unclear. Some of the estimates provided by shadow reporting and marking exercises are somewhat speculative given that a new sufficiency test for prosecutors may have accompanied abolition.75 It is difficult to predict with accuracy or certainty how a new test would have been applied by prosecutors in a post-­corroboration Scotland. What seems certain, on the other hand, is that abolition could only have been one possible part of the solution to the problem of complainers in sexual offence and domestic abuse cases being denied ‘access to justice’, and that a high proportion of cases reported to Police Scotland would still have either failed to be referred to COPFS in the first place, or to make it to court. 73

74

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Scottish Parliament, Criminal Justice (Scotland) Bill: Financial Memorandum at 44–45, available at: http://www.parliament.scot/S4_Bills/Criminal%20Justice%20(Scotland)%20Bill/b35s4introd-en.pdf (last accessed 29 August 2016). Scottish Parliament, Official Report, Justice Committee, col 3741 (20 Nov 2013), available at: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=9164&mode=pdf (last accessed 29 August 2016). Post-Corroboration Safeguards Review: Report of the Academic Expert Group (n 12) at 124–131. A representative from COPFS giving evidence to the Justice Committee about domestic abuse cases said that a new prosecutorial test had been applied. See Scottish Parliament, Justice Committee, Official Report, col 3741 (20 Nov 2013).



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Recent police and court statistics support this assertion. In 2014–2015, for example, there were 59,882 incidents of domestic abuse recorded by the police in Scotland,76 and 15,452 convictions for offences with a domestic abuse aggravator.77 Even if there were 1,000 additional domestic abuse prosecutions per year in a post-­corroboration Scotland,78 these figures suggest that the vast majority of those who initially reported an incident of domestic abuse would still have failed to see their case proceed to court. Given that the prosecution and conviction rates for sexual offences are currently lower than those for domestic abuse,79 it seems uncontroversial to conclude that sexual offence complainers would have faced a similarly bleak reality. In light of this, it is obviously problematic and misleading to insinuate, as the Government seemed to do, that abolition of corroboration is a solution to the problem of complainers being denied ‘access to justice’ on a routine basis. Paradoxically, such an approach masks the fact that so many complainers in sexual offence and domestic abuse cases have their cases dropped, and the fact that this often occurs very early on in the criminal justice process. The focus on corroboration reform as a legal solution to the ‘access to justice’ problem also shifts attention away from other persuasive, non-­legal explanations for the poor criminal justice response to sexual offences and domestic abuse, most notably the pervasiveness of outdated, problematic attitudes and myths about the motivations and credibility of complainers.80

76

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78

79

80

Scottish Government, Domestic Abuse Recorded by the Police in Scotland, 2013–2014 & 2014–15 at 10, available at: http://www.gov.scot/Resource/0048/00487981.pdf (last accessed 29 August 2016). Scottish Government, Criminal Proceedings in Scotland, 2014–15 at 6. These two sets of figures may not be directly comparable as reported domestic incidents sometimes lead to the recording, prosecution and conviction of more than one crime or offence. For example, one recorded domestic abuse incident may ultimately result in the same accused being convicted of breach of the peace and common law assault. The internal shadow marking exercise carried out by COPFS suggested that 1,000 additional domestic abuse cases per year could be prosecuted under a new prosecutorial test. See Scottish Parliament, Justice Committee, Official Report, col 3741 (20 Nov 2013). In 2014–15, 1,901 incidents of rape and attempted rape were recorded by Police Scotland. See Scottish Government, Recorded Crime in Scotland, 2014–15 at 27 and 72, available at: http:// www.gov.scot/Resource/0048/00484776.pdf (last accessed 29 August 2016). In this same time period, 270 people were proceeded against for rape and attempted rape, and there were 125 convictions (Scottish Government, Criminal Proceedings in Scotland, 2014–15 at 13, 16 and 46). Although the police figures and the Scottish court figures are not directly comparable because the former measure by offence and the latter by offender, these figures clearly show that the vast majority of rape and attempted rapes reported to the police do not proceed to court or result in a conviction. See, Campbell and Cowan, Chapter 3 in this volume at p 71.

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(2) Is procedural justice of stand-alone value to complainers? It has already been established that the Government’s vision of ‘access to justice’ in the context of the corroboration debate was not (at least, ostensibly) about increasing conviction rates but instead about enabling more cases to proceed to court, thereby allowing more complainers to be heard and to ‘have their day in court’. Underlying this particular version of ‘access to justice’ is the apparent assumption ‘that social justice is available through procedural justice’81 and the idea that the criminal justice system has ‘therapeutic’82 or healing qualities. The difficulty with such ideas is that there is relatively limited evidence, especially in Scotland, to indicate that complainers in sexual offence and domestic abuse cases feel that they have had ‘access to justice’ simply through having their case brought to court and being given the opportunity to give evidence. In contrast, there is an abundance of evidence and literature confirming that the adversarial process is emotionally traumatic, confusing and stressful for complainers in sexual offence and domestic abuse cases.83 During the corroboration debate, it was even suggested that abolition would exacerbate the difficulties currently faced by sexual offence and domestic abuse complainers when giving evidence, because defence counsel would be more robust and thorough in their attempts to undermine the complainer’s credibility.84 Even if one doubts that the removal of the corroboration requirement would have this particular effect (and such doubts were expressed during the course of the debate),85 the claim that complainers would benefit from direct engagement with the criminal justice system, when there is little increased prospect of this engagement leading to a conviction, is highly debatable. While it might be suggested that legislative rules on the admission of sexual history and character evidence, the widening of the availability of special measures, and the introduction of domestic abuse courts have ameliorated the complainer’s experience of the court process, questions have been raised about the impact 81 82 83

84

85

D L Rhode, Access to Justice (2004: Oxford University Press) at 5. Scottish Parliament, Justice Committee, Official Report, cols 3960–3961 (10 Dec 2013). Most of this literature is focussed on sexual offences. See, for example, S Lees, Carnal Knowledge: Rape on Trial (1996: Hamish Hamilton); L Ellison, ‘Rape and the adversarial culture of the courtroom’, in M Childs and L Ellison (eds), Feminist Perspectives on Evidence (2000: Cavendish); J Temkin, Rape and the Legal Process (2002: Oxford University Press). Cairns, ‘Does the abolition of corroboration hold promise’ (n 62) at 651–652. More specifically, it was suggested that the number of defence applications to lead sexual history evidence under s 275 of the Criminal Procedure (Scotland) Act 1995 would rise, and that there would be increased efforts to obtain confidential medical records. The Reference Group to the Bonomy Review were unconvinced by the arguments that, post-­ abolition, the court would either protect complainers’ privacy rights any differently, or that more s 275 applications would be successful. See Post-Corroboration Safeguards Review: Final Report (n 1) paras 15.6–15.7. Rape Crisis Scotland was also sceptical that abolition would mean that complainers would ‘face a harder time in the dock’: http://www.rapecrisisscotland. org.uk/news/corroboration-briefing/#Complainersindock (last accessed 29 August 2016).



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and effectiveness of all of these developments.86 As it stands, the weight of evidence and opinion still seems to point towards the conclusion that the Scottish criminal justice system is the very opposite of therapeutic. Although the Government may have implicitly exaggerated the healing properties of the criminal justice system for sexual offence and domestic abuse complainers, it is difficult to criticise one tenet of its case for abolition: that complainers have a right to be heard and to participate in criminal proceedings. Indeed, it is worth noting that the Government’s ‘access to justice’ argument in the corroboration context appears to be connected to the third policy objective set out in the Scottish Strategy for Victims, namely ‘to encourage greater participation in the criminal justice system’ through, inter alia, giving victims a ‘voice’,87 and also to art 10 (the ‘right to be heard’) of the EU Victims’ Directive which provides that ‘Member States shall ensure that victims may be heard during criminal proceedings and may provide evidence’.88 The Government’s stance in the corroboration debate therefore appears consistent with a wider commitment, on both a European and domestic level, to more actively involve the complainer in criminal proceedings and therefore to improve procedural justice. Facilitating and encouraging complainer participation in the criminal justice process is undoubtedly a worthy goal. And it is important to stress that there is some evidence that procedural justice matters to some sexual offence complainers.89 In their well-­known study of the rape attrition rate in England and Wales, for example, Kelly et al found that there was a much greater sense of procedural justice amongst those whose cases were prosecuted and who received support compared to those who had their cases dropped before they reached court and did not receive support.90 However, the fact that a complainer who has seen his/her case proceed and received relevant support may feel a greater sense of justice than one who has not is not particularly surprising and appears less significant when one considers that the justice bar is so low to begin with. Likewise, it is misguided to presume that procedural justice matters equally to all complainers, when, in reality,

86

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88

89

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For an analysis of current issues in Scotland relating to sexual history, character evidence and special measures, see Campbell and Cowan, Chapter 3 in this volume. Scottish Executive, Scottish Strategy for Victims (2001) at 13–14, available at: http://www.gov. scot/Resource/Doc/158898/0043164.pdf (last accessed 29 August 2016). Section 1(3)(d) of the Victims and Witnesses (Scotland) Act 2014 also provides that ‘in so far as it would be appropriate to do so, a victim or witness should be able to participate effectively in the investigation and proceedings’. European Parliament and Council Directive 2012/29/EU of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime [2012] OJ L315/57. L Kelly et al, A Gap or a Chasm? Attrition in Reported Rape Cases (Home Office: 2005). No such evidence was referred to by the Scottish Government. Ibid.

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it may be more, or less, important to some complainers than to others. The Government’s case for abolition did not capture such nuances. Care should also be taken not to overstate the ability of prosecution alone to deliver procedural justice. In the study by Kelly et al, the participants’ sense of procedural justice came from prosecution and participation which was accompanied by access to proper information and support, not simply from having ‘a day in court’ or the opportunity to tell their story. In Scotland, there are presently barriers to complainer participation and support which, in some cases, may counteract any sense of justice that complainers gain from having their case brought to court. One such barrier was exposed in the recent case of F v Scottish Ministers,91 in which it was held that the Scottish Ministers’ refusal to order the Scottish Legal Aid Board to make legal aid available to a complainer in a domestic abuse case, to allow her to secure legal representation to oppose defence recovery of her medical records, constituted a breach of art 8 of the European Convention on Human Rights. Lord Glennie rejected the Scottish Ministers’ proposition that the complainer had ‘no right to appear or be represented in the petition proceedings before the sheriff’92 and opined that ‘if the complainer has a right to be heard, whether initially or at some later stage, it must follow that she is entitled to legal representation’.93 Despite this decision, there are still no concrete proposals to introduce independent legal representation for complainers,94 which, compared with the abolition of corroboration, would be a more certain and effective way of securing procedural justice for complainers in sexual offence and domestic abuse cases. In suggesting that the corroboration rule should be abolished in order for more complainers to have access to procedural justice via prosecution, the Government seemed to imply that the aim of improving procedural justice 91 92 93 94

2016 SLT 359. Ibid para 7. Ibid para 46. It is beyond the scope of this chapter more fully to explore the issue of independent legal representation in Scotland. However it should be emphasised that discussions in this area have been focused on whether Scotland could and should introduce a system of independent legal representation for rape complainers specifically: see F Raitt, ‘Independent legal representation in rape cases: meeting the justice deficit in adversarial proceedings’ (2013) Crim LR 729 and F E Raitt, Independent Legal Representation for Complainers in Sexual Offence Trials, Research Report for Rape Crisis Scotland (2010), available at: http://www.rapecrisisscotland. org.uk/linkservid/98D24F9E-C2D4-11E5-BBF348D705D43CE3/showMeta/0/ (last accessed 29 August 2016). Since the decision in F v Scottish Ministers, the Scottish Government has put measures in place allowing complainers access to state funding in order to challenge the recovery of medical or personal records. However, concerns have been expressed about the extent to which women are being made aware of their right to seek legal aid in these circumstances: ‘Alleged rape victims not being told they can challenge moves to reveal medical history in court’, The Herald, 30 August 2016, available at: http://www.heraldscotland.com/ NEWS/1471385.Campaigners_Lack_of_advice_on_fighting_medical_records_access_in_rape_ and_domestic_cases/ (last accessed 30 August 2016).



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for individual complainers should play a role in justifying the investigation and prosecution of crime. This is potentially problematic. While it is now widely accepted that complainers should be kept informed, respected, consulted and offered support throughout the investigation, prosecution and court processes, as well as given the opportunity to participate in court, it is more controversial to suggest that an individual case should be prosecuted in order to facilitate these ends.95 They should be an integral part of the investigation and prosecution of crime, but not a primary motivation for it. Similarly, one might question whether the objectives contained in the Scottish Strategy for Victims and the EU Victims’ Directive are sufficiently weighty (when unaccompanied by evidence that they are of stand-­alone value to complainers) to justify reform as contentious as the abolition of corroboration, which would have far-­reaching consequences for the Scottish criminal justice system. Again, the intention here is not to downplay the importance of complainers having access to procedural justice, or being given a voice, but rather to expose the tensions surrounding the Government’s ‘access to justice’ argument, its over-­simplicity, and the lack of concrete evidence that was advanced in support of it. Had the Government: been clearer that the justice it believes complainers deserve access to is procedural justice, explaining precisely what this entails; provided evidence that complainers value procedural justice even when they do not see the accused convicted; and presented increased complainer participation (and therefore access to procedural justice) as a positive consequence of abolition rather than a reason to pursue and prosecute individual cases, its case for abolition may have been more persuasive. (3) The complexity of what constitutes ‘justice’ for complainers in sexual offence and domestic abuse cases In whatever way the Government intended ‘access to justice’ to be interpreted, it was clearly assumed that the criminal justice system is the primary vehicle through which justice can and should be delivered to complainers. One might question, however, whether justice for complainers in sexual offence and domestic abuse cases necessitates engagement with the criminal law or justice system. In the context of sexual violence, for example, feminists have argued that justice ‘has come to be so closely associated with punitive, carceral punishment that other means of securing justice have been almost completely obscured’96 and that ‘a more multivalent approach to justice that is not solely reliant upon the state or the criminal law as the adjudicator of wrongdoing, or the sole provider of justice’97 is necessary. 95 96 97

Although one might argue that facilitating procedural justice is in the public interest. C McGlynn, ‘Feminism, rape and the search for justice’ (2011) 31 OJLS 825 at 825–826. A Powell et al (eds), Rape Justice: Beyond the Criminal Law (2015: Palgrave) at 7.

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This increasingly common rejection of narrow and traditional understandings of justice is a reaction to disquiet over the way in which the adversarial system re-­victimises and denies victims a voice,98 which persists even following decades of legislative reform and policy changes aimed at improving procedural justice.99 Beyond the criminal law and justice system, Henry et al have suggested that the following may provide sexual offence complainers with a sense of justice:100 customary law, online and offline activism and consciousness-­raising; truth and reconciliation commissions; civil remedies; memorials and other forms of commemorations; film, art and literature; reparations through compensation and restitution; public apologies; royal commissions; and other formalised independent investigations.

These avenues may be equally, or in some cases more, capable of meeting the justice needs of sexual offence complainers which, according to McGlynn, include: the exposure of the perpetrator as a perpetrator; community and bystander validation; the opportunity to tell their story in a safe and respectful environment; and an admission of responsibility by the perpetrator.101 While not without its problems or limits, restorative justice is another avenue through which these needs may be addressed, and one that McGlynn is particularly interested in. She has urged feminists and others to open their minds to the possibilities offered by restorative justice as an alternative (or an addition) to punitive state measures,102 contending that it offers possibilities that should at least be explored by those concerned with securing meaningful justice for victims of sexual violence. While the Government website hints at an openness to restorative justice through defining ‘access to justice’ as involving ‘giving people greater options to resolve disputes without court action wherever possible’,103 the rhetoric used in the corroboration debate makes it clear that this not a feature of the ‘access to justice’ that the Scottish Government perceives to be applicable in sexual offence cases. With respect to domestic abuse, many have expressed concerns about the value and appropriateness of restorative justice, primarily due to the power dynamics between the parties, the ongoing nature of domestic abuse, and concerns about victim safety.104 However, there is still a very rich l­iterature 98 99 100 101 102

103 104

See footnote 83, above. Powell et al, Rape Justice (n 97) at 7. Ibid at 6. McGlynn, ‘Feminism, rape and the search for justice’ (n 96) at 838–839. Ibid. See also C McGlynn et al, ‘‘I just wanted him to hear me’: sexual violence and the possibilities of restorative justice’ (2012) 39:2 Journal of Law and Society 213. See full definition at footnote 51, above. J Stubbs, ‘Beyond apology? Domestic violence and critical questions for restorative justice’ (2007) 7(2) Criminology and Criminal Justice 169.



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– ­dealing with issues such as choice, agency and mandatory arrest,105 the effectiveness and value of civil protection orders and the limits of the criminal justice system,106 and the need for, and usefulness of, specialist domestic abuse courts107 – which problematises the question of what constitutes effective justice for victims of domestic abuse. Again, a common theme in this literature is that punishment of the accused and direct engagement with the conventional criminal justice system is not always the top priority for victims of domestic abuse.108 Instead, guaranteeing safety and bringing an end to the ­violence – ­something that cannot be guaranteed by prosecution ­alone – t­ ends to be the primary concern, together with ‘vindication from the community as a rebuke to the offender’s display of contempt for their rights and dignity’.109 There is also growing recognition, reflected by the opening of specialist domestic abuse courts across the UK, that there are particular difficulties with prosecuting domestic abuse cases and that recourse to the conventional criminal justice system is not the most effective way to obtain the best evidence. Chief among these difficulties is guaranteeing complainer participation and reducing the number of victims and witnesses who retract their original statements. In light of this and the other points made above, the Scottish Government’s portrayal of ‘access to justice’ as synonymous with ‘standard’ criminal prosecution, intertwined with the idea that complainers deserve ‘their day in court’, appears overly simplistic. Not only does it obscure recent discussions and policy developments which confirm that securing justice in domestic abuse cases is about more than prosecution and conviction, but the fact that encouraging complainers to participate, and to have their voices heard, is a problem in and of itself. While it is beyond the scope of this chapter to further explore the connection between restorative justice and violence against women, or to delve more deeply into the question of what precisely justice means to victims of sexual offences and domestic abuse, it is important to acknowledge that these conversations are currently taking place, and have been for quite some time. They illustrate the complexity of what justice means for complainers, and challenge the assumption that it is only direct engagement with the criminal justice system that can deliver a meaningful sense of justice. Paradoxically, it might be suggested that some of the above lines of argument could have lent 105

106

107

108 109

C Hoyle and A Sanders, ‘Police response to domestic violence: from victim choice to victim empowerment’ (2000) 40 Brit J Crim 14. C Connelly and K Cavanagh, ‘Domestic abuse, civil protection orders and the ‘new criminologies’: is there any value engaging with the law?’ (2007) Fem LS 259. M Burton, ‘Judicial monitoring of compliance: introducing ‘problem solving’ approaches to domestic violence courts in England and Wales’ (2006) 20 International Journal of Law, Policy and Family 366; M Coulter, A Alexander and V Harrison, ‘Specialized domestic violence courts: improvement for women victims?’ (2007) 16 Women & Criminal Justice 91. J Herman, ‘Justice from the victim’s perspective’ (2005) 11 Violence Against Women 571. Ibid at 597.

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support to the Government’s case for the abolition of corroboration, which appeared to rest upon the idea that there does not need to be conviction and punishment in order for a complainer to obtain ‘access to justice’. Instead, however, the Government’s vague, under-­explained and one-­dimensional ‘access to justice’ rhetoric masked the complexities about what justice constitutes for complainers in sexual offence and domestic abuse cases. A picture therefore emerges of the Scottish Government deploying victims’ rights language strategically to advance a particular political agenda, at the cost of precluding broader and more progressive discussion about what justice really means to complainers in sexual offence and domestic abuse cases. D. CONCLUSION In April 2015, the Scottish Government announced that s 57 would be removed from the Criminal Justice (Scotland) Bill 2013. This was a direct and immediate response to the publication of the Bonomy Review. The Justice Secretary at the time indicated that the Government’s change in position was not a permanent ‘U-­turn’, insisting ‘that there is still a case to be made for the abolition of the corroboration requirement’110 but that ‘it would be neither appropriate nor feasible’ to proceed with abolition in light of ‘the numerous and complex safeguards’111 proposed by the Bonomy Review. While this sent the public message that the decision to kick corroboration reform into the long grass had nothing to do with the weaknesses of its ‘access to justice’ argument, the change in position demonstrates that the Government’s commitment to complainers has its limits and is, ultimately, vulnerable to political pressure. However, the political pressure that the Government faced in the latter stages of the corroboration debate is not indicative of a widespread lack of a commitment to improving the position of complainers in domestic abuse and sexual offence cases. Political pressure came from those who were fundamentally opposed to abolition of the corroboration requirement on the basis that it is a crucial safeguard against miscarriages of justice. However, it also came from those who were supportive of, or ambivalent about, corroboration reform in principle but who strongly felt that reform was being rushed and that much more time was needed to properly assess how abolition (and the accompanying changes in the proposed Bill) would impact on other features of the Scottish criminal justice system. Although strong supporters of abolition, even Rape Crisis Scotland appeared to be 110

111

C Marshall, ‘U-­turn over plan to scrap corroboration’, The Scotsman, 21 April 2015, available at: http://www.scotsman.com/news/u-turn-over-plan-to-scrap-corroboration-1-3749791 (last accessed 29 August 2016). Ministerial Statement to Parliament on Lord Bonomy’s Post-Corroboration Safeguards Review (April 2015).



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sympathetic to this view, expressing concern about the impact that the Bill’s proposed increase to the minimum requirement for a jury majority112 would have on conviction rates in rape cases, especially if the ‘not proven’ verdict remained.113 It is argued elsewhere in this collection that the Government’s case for abolition was motivated by naked penal populism and a desire to please the ‘victims’ lobby’.114 This chapter lends support to this conclusion. However, if one accepts that penal populism explains the Government’s enthusiasm for corroboration reform, then one must surely also accept that the failure of the Government’s case illustrates the fragility and superficiality of populist arguments. In the end, penal populism did not win; the Government’s position was challenged heavily, with many openly accusing it of unfairly pitting the interests of complainers and the legal profession against one another, and questioning whether abolition would make a real difference to complainers. Indeed, at points in the corroboration debate there was focused and well-­intentioned discussion of what can and should be done to improve the position of complainers. There was also heavy engagement and consultation with victims’ rights groups, which helped to bring the limits and potential unintended consequences of corroboration reform into sharp focus. It has been argued in this chapter, however, that conversations about the extent to which the abolition of corroboration would or would not benefit complainers in sexual offence and domestic abuse cases took place within narrow parameters and were hampered by the Government’s overestimation of the criminal justice system’s ‘therapeutic’ qualities and by a more general assumption that the criminal justice system is the primary and sole provider of justice to complainers. In this way, the corroboration debate illustrates that there is still considerable uncertainty in Scotland with respect to what justice means to complainers in domestic abuse and sexual offence cases, as well as how to remedy the ‘justice deficit’115 in such cases. While the corroboration debate suggests that the Scottish Government currently perceives improving procedural justice to be pivotal in this respect, this was not explicitly acknowledged, meaning that there was little fruitful or meaningful discussion of the features, virtues or limits of procedural justice, or of the most effective way in which to deliver it. This lack of precision characterised the Government’s position throughout the debate and did nothing to allay the unhelpful misconception that 112

113

114 115

Section 70(2) of the 2013 Bill increased the jury majority required for a guilty verdict from eight to ten. ‘Plans to abolish corroboration in Scottish cases dropped’, BBC News, 21 April 2015; Rape Crisis Scotland, Briefing on the Post Corroboration Safeguards Review Consultation Paper (November 2014), available at: http://www.rapecrisisscotland.org.uk/RCS/assets/File/briefing_on_the_bonomy_review_nov14-1final.pdf. Duff, Chapter 9 in this volume. Raitt (n 94).

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abolition would involve giving undeserved ‘special treatment’ to complainers in sexual offence and domestic abuse cases.116 Moreover, the confusion that resulted from the Government’s decision to frame abolition as an ‘access to justice’ issue meant that time and energy was expended trying to disentangle the vagaries of the Government’s position, rather than on exploring reform possibilities short of outright abolition that may have improved the way that the corroboration rule operates in sexual offence and domestic abuse cases. Perhaps the only positive to emerge from the problematic way in which the Government framed its case is that the elusiveness of the concept of ‘access to justice’, as used during the corroboration debate, has been exposed. It is hoped that this chapter has drawn further attention to the deceptive simplicity of the term and the paradox of monopolising it for sexual offence and domestic abuse complainers when: the majority still fail to see their cases make it to court; there is still considerable room for improvement in terms of the support they can expect to receive during the criminal justice process; and it is now increasingly widely acknowledged that they have diverse and complex conceptions of justice.

116

There were signs of resistance to the idea that corroboration should be abolished simply because certain crimes are more difficult to corroborate than others. See ibid at 93.

Chapter 3 The relevance of sexual history and vulnerability in the prosecution of sexual offences Liz Campbell and Sharon Cowan

INTRODUCTION The investigation and prosecution of sexual offences remains one of the most fraught and problematic aspects of criminal justice. Even with the introduction of various protective measures for vulnerable witnesses and complainers, deep and justifiable concerns persist about the level of reporting to the police, the extent of attrition, and the conviction rates.1 The treatment (actual and perceived) of complainers2 in the courtroom has a significant influence on these matters. Sexual offence trials frequently involve the leading of sexual history evidence and the cross-­examination of complainers about their previous sexual experience, behaviour and partners. This is despite the introduction of so-­ called ‘rape shield’ provisions, which purport to restrict the use of sexual history evidence and to curb judicial discretion as regards its admission. Such provisions have been enacted in various common law jurisdictions including England and Wales, Canada and Scotland, in an effort to improve the courtroom experience for complainers and thus encourage greater reporting of sexual violence.3 The rationale for these measures is to address the pervasive culture of disbelief regarding complainers and to offset the secondary victimisation or re-­traumatisation that occurs through, and as a consequence of, the trial process. Rape shield legislation aims to protect the complainer’s right to privacy and dignity, as well as to increase accuracy in fact-­finding. Although ‘rape shield’ protections have been embedded within criminal justice systems for some time, it has been suggested by commentators See Report by Baroness Vivien Stern CBE of an Independent Review into How Rape Complaints are Handled by Public Authorities in England and Wales (2010: Home Office). 2 In Scotland, those who allege offences are termed ‘complainers’; in England and Wales, the term is ‘complainants’. Likewise, those standing trial in Scotland are the ‘accused’, but are ‘defendants’ in England and Wales. 3 For discussion of the provisions introduced in a variety of jurisdictions, see Scottish Executive, Vulnerable and Intimidated Witnesses: Review of Provisions in Other Jurisdictions (2002: Scottish Executive Central Research Unit). 1

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in various jurisdictions that these legislative efforts remain susceptible to being sidestepped either through defence trial strategies or through ‘judicial override’,4 such that the law in action is less protective and useful than was hoped.5 As we shall see below, this observation is borne out in Scotland. This chapter examines the ways in which laws designed to protect sexual assault6 complainers in Scotland fail in practice. We will argue that focusing on the ‘rape shield’ provisions, as well as the measures designed to protect vulnerable witnesses, as ‘solutions’ to the problems faced by sexual assault complainers in an adversarial system allows us to ignore more systemic questions about how those complainers become vulnerable within the criminal justice system, as well as how the criminal justice system understands and perpetuates a certain view of what it means to be vulnerable. Focusing on Scotland as a case study, the chapter outlines legislation limiting the use of sexual history evidence in criminal trials, and evaluates the impact of this legislation, before examining provisions introduced to help criminal justice agents identify vulnerable complainers, and in particular those who have alleged sexual assault. We argue that since only a tiny minority of vulnerable sexual assault complaints make it to trial, such provisions cannot properly protect the vast majority of sexual assault victims who are vulnerable, and that in the absence of a more radical systemic and holistic review of criminal law, and evidence and procedure relating to sexual assault, the provisions may serve as a distraction from, or an apparent panacea to, more significant, serious and entrenched challenges faced by vulnerable sexual assault victims. Although in what follows we refer primarily to legislation and practice in the Scottish criminal justice system, given the widespread use of similar protections in many other jurisdictions, our conclusions have relevance for the promotion of just outcomes in sexual assault proceedings more generally. Moreover, we aim to contribute both to contemporary critical scholarship on sexual assault, and to ongoing debates about the importance of recognising vulnerability as partly produced by social institutions and structures.7 The vulnerability lens through which many feminists and other critical scholars analyse legal and policy interventions across a broad spectrum of L Ellison, ‘Commentary on R v A (No 2)’, in R Hunter, C McGlynn, E Rackley (eds), Feminist Judgments: From Theory to Practice (2010: Hart) at 205, citing A McColgan, Women under the Law: The False Promise of Human Rights (1999: Longman). 5 See for example L Kelly, J Temkin and S Griffiths, Section 41: An Evaluation of New Legislation Limiting Sexual History in Rape Trials (2006: Home Office); M Burman, L Jamieson et al, Impact of Aspects of the Law of Evidence in Sexual Offence Trials: An Evaluation Study (2007: Scottish Government). 6 In what follows, we use the term sexual assault as a general term, inclusive of rape, unless otherwise specified. 7 M A Fineman ‘The vulnerable subject: anchoring equality in the human condition’ (2008) 20 Yale Journal of Law and Feminism 1. 4



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issues (including sex work, hate crime, family law, welfare rights and so on) has yet to be applied in the context of criminal evidence and procedure, where the criminal justice system formally recognises the vulnerability of some but fails to properly engage with more meaningful substantive questions of access to justice for others. In this chapter, we use the lens of vulnerability to examine the problematic ways in which criminal evidence and procedure in Scotland fails to protect many of the most vulnerable victims of sexual assault, despite recent reforms. We suggest that more research is urgently required to shed light on the extent of the ‘justice gap’, and that further and deeper reform is needed, at the substantive, procedural and cultural levels. A. SEXUAL HISTORY: THE SCOTTISH CONTEXT As the rates of other sorts of crime continue to drop,8 the recording of sexual crimes in Scotland has increased and is at the highest level since 1971, the first year for which comparable crime groups are available.9 This may be explained by a growing likelihood of a report being made and the reporting of ‘historical’ offences, rather than solely as a result of increased offending. But it is unlikely that the rise in recorded incidences can, in its entirety, be explained by increased reporting: it is reasonable to suppose that it can also be at least partially explained by an increase in offences. Regardless, the growing rate of recorded offences is not matched by a high conviction rate. The highest acquittal rate for any offence in Scotland is for rape and attempted rape, where 34 per cent of those prosecuted in 2014–2015 were acquitted on a ‘not guilty’ verdict.10 Further sexual assault has an acquittal rate of 21 per cent, in contrast to a general acquittal rate of 5 per cent. In 2014–2015, a further 19 per cent of those tried for rape and attempted rape received a ‘not proven’ verdict, the highest rate overall, followed by sexual assault at 11 per cent.11 This gives a total acquittal rate of 53 per cent for rape and attempted Recorded Crime in Scotland 2014–15, available at: http://www.gov.scot/Resource/0048/00484776. pdf p1 (last accessed 3 November 2016): ‘Crimes recorded by the police in Scotland decreased by 5% from 270,397 to 256,350. This is the lowest level of recorded crime since 1974.’ 9 Ibid. 10 Criminal Proceedings in Scotland, 2014–15, available at: http://www.gov.scot/Resour​ce​/00​49/0049 4474.pdf (last accessed 3 November 2016) at 13. 11 Ibid. Scotland has three possible criminal verdicts: guilty, not guilty and not proven. The effect of the not proven verdict is the same as that of not g­ uilty – ­that is, acquittal. The not proven verdict has long been controversial, not least for its i­llogicality – i­f the case is not proven, then surely the accused should be found not guilty. See for example P Duff, ‘The not proven verdict: jury mythology and “moral panics”’ (1996) Juridical Review 1. The Scottish Parliament’s Justice Committee has recently re-­examined the verdict in the Criminal Verdicts Bill 2016, and supported its abolition, though the Bill ultimately failed to receive support. See http://www.bbc.co.uk/news/uk-scotland-scotland-politics-35527022 (last accessed 1 September 2016). 8

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rape. Moreover, the conviction rate as a proportion of reported cases of rape is low. In 2009, it stood at a mere 3 per cent12 though, as Rape Crisis Scotland highlighted, this figure may be somewhat inaccurate: the two sets of data from which the 3 per cent rate was derived measure slightly different things, one focusing on offences, the other on offenders.13 Matters are improving somewhat: in 2014–2015 there were 125 convictions for rape and attempted rape,14 with a total of 1,901 reports of rape and attempted rape during the same year, 1,797 of which were reports of rape.15 This represents a conviction rate of 6.6 per cent of reported cases. The proportion of prosecuted rapes that result in a conviction has also risen to 46 per cent.16 However, the fact remains that the majority of sexual crimes are not reported, and of those that are reported the majority do not result in conviction. According to the Scottish Crime and Justice Survey 2014/15, most (87.4 per cent) adults who have experienced serious sexual assault17 in Scotland said that that they knew the offender in some way, while 54.8 per cent said that the perpetrator was their partner.18 Amongst those who had reported more than one form of serious sexual assault since the age of sixteen, 95.2 per cent said that they knew the offender and 76.8 per cent said the offender was their partner. This underlines the fact that many allegations of rape and other sexual offences hinge on the presence or otherwise of consent, rather than identity. A claim of lack of consent can be corroborated by, for example, evidence of physical injury; however, as is often said, consent frequently 12

13

14 15 16

17

18

This is similar to, if a little lower than, the conviction rate in other jurisdictions. See M Burman, L Lovett and L Kelly, ‘Different systems, similar outcomes? Tracking attrition in reported rape cases in eleven countries. Country briefing: Scotland’ (2009), available at: http:// www.sccjr.ac.uk/wp-content/uploads/2012/11/Daphne_Scotland_Briefing-__Different_Systems,_ similar_outcomes(3).pdf (last accessed 1 September 2016). Of course, conviction rates are not by themselves an indicator that sexual assault is being taken seriously; nor, as Larcombe has argued, are they necessarily the sole or even main objective that feminists ought to be pursuing. See W Larcombe ‘Falling rape conviction rates: (some) feminist aims and measures for rape law’ (2011) 19 Feminist Legal Studies 27. See also C McGlynn, ‘Feminism, rape and the search for justice’ (2011) 31 OJLS 825 at 825–826; S Cowan ‘Taking a break from the legal to transform the social’, in D Cowan and D Wincott (eds), Exploring the ‘Legal’ in Socio-Legal Studies (2015: Palgrave MacMillan). http://www.rapecrisisscotland.org.uk/blog/the-contested-3-conviction-rate-for-rape-in-scotland-whatis-the-real-story/ (last accessed 1 September 2016). Criminal Proceedings in Scotland (n 10) at 4. http://www.gov.scot/Publications/2015/09/5338/318214 (last accessed 1 September 2016). http://www.rapecrisisscotland.org.uk/news/rape-crisis-scotland-welcomes-a-40-increase-in-thenumber-of-people-convicted-for-rape-and-attempted-rape-in-scotland/ (last accessed 1 September 2016). Serious sexual assault is defined as forcing or attempting to force someone to have sexual intercourse or other sexual activity (The Scottish Crime and Justice Survey 2014/15: Sexual Victimisation & Stalking at 10). Less serious sexual offences include indecent exposure; sexual threats; or being touched sexually when it was not wanted (for example, groping or unwanted kissing): ibid at 11. Ibid at 36.



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comes down to which of the competing testimonies the jury believes. Thus, the cross-­examination of the complainer about her (or his) sexual history, and ultimately character, becomes central in assessing whether or not the complaint is credible, and finding corroboration of the lack of consent is extremely challenging. A pre-­existing relationship or connection with the accused compounds the complexity of sexual offence trials in which sexual history evidence is used.19 As Burman et al note, in practice the complainer’s sexual history evidence is regarded as relevant to establishing the guilt of the accused, particularly when it concerns a past history between the complainer and accused.20 This persisted until the enactment of s 1 of the Sexual Offences (Scotland) Act 2009 which allowed men to be recognised legally as potential victims of rape. Many have commented that the old common law rules of evidence about corroboration and inferences of credibility from those rules have left a legacy of disbelief in cases in which the complainer is regarded as ‘unchaste’. Historically, of course, the complainer had to be female. These ‘myths’21 about rape and complainers endure, with many people still maintaining that ‘unchaste women’ are more likely to consent to sex, and that such women are ‘less worthy of belief’.22 As Temkin and Krahé have shown, such beliefs impact on judicial reasoning, the views of barristers and the determinations 19

20 21

22

Even where physical injury is present, a previous/current partner might still argue c­ onsent – ­see the Canadian case of R v JA 2011 SCC 28, and for comment, K Busby, ‘Every breath you take: erotic asphyxiation, vengeful wives, and other enduring myths in spousal sexual assault prosecutions’ (2012) 24 Canadian Journal of Women and the Law 328; J Koshan, ‘Consciousness and consent in sexual assault cases’ (2011), available at: http://ablawg. ca/2011/06/17/consciousness-and-consent-in-sexual-assault-cases/ (last accessed 28 July 2016). Burman et al (n 5) at 4. J Temkin, ‘Prosecuting and defending rape: perspectives from the bar’ (2000) 27 Journal of Law and Society 219. The notion of ‘rape myths’ is not an uncontroversial one. Some argue that rape myths are themselves m ­ yths – s­ ee H Reece, ‘Rape myths: is elite opinion right and popular opinion wrong?’ (2013) 33 OJLS 445. Others suggest that myths (and stereotypes), particularly about what the behaviour, dress or demeanour of the complainer signifies, deeply permeate the ways in which sexual offences are perceived in public opinion and dealt with at all stages of the criminal justice system (see for example E Finch and V E Munro, ‘Of bodies, boundaries and borders: intoxicated sexual consent under the law of Scotland and England’ (2005) Juridical Review 53; L Ellison and VE Munro, ‘A stranger in the bushes, or an elephant in the room? Critical reflections upon received rape myth wisdom in the context of a mock jury study’ (2010) 13 New Criminal Law Review 781; L Ellison and V E Munro, ‘Of “normal sex” and “real rape”: exploring the use of socio-­sexual scripts in (mock) jury deliberation’ (2009) 18 Social and Legal Studies 291; J Temkin and B Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (2008: Hart); B Krahé, ‘Myths about rape myths? Let the evidence speak: A comment on Reece’ (2013), available at: http://www.unipotsdam.de/sozialpsychologie/fileadmin/projects/sozialpsychologie/assets/Comment_Reece_Paper.pdf (last accessed 1 September 2016); J Conaghan and Y Russell, ‘Rape myths, law, and feminist research: “myths about myths?”’ (2014) 22 Feminist Legal Studies 25). R v Seaboyer (1991) 83 DLR (4th) 193 at 258 per McLachlin J. She continued: ‘These twin myths are now discredited’ (rightly so, in her view).

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of juries. For instance, some degree of victim blaming is evident in a recent survey on Scottish social attitudes, and this is closely linked with judgement about behaviour and character.23 Just over half (58 per cent) of those surveyed believed that a woman who wore revealing clothing on a night out was ‘not at all to blame’ for being raped, and 60 per cent said the same of a woman who was very drunk. But this still leaves around 40 per cent who believed that such women were to some degree to blame for their assault. What is more, 23 per cent of respondents agreed with the statement that ‘women often lie about being raped’, with women, older people and less educated people more likely to agree to this. There are further gender differences in this context. In evaluations of sexual assault, other studies suggest that women are harsher in their verdicts towards the accused and more believing, compared to men, of the complainant’s claim.24 Sexual history evidence can impact negatively on complainer credibility in that juries may perceive particular witnesses to be more credible or trustworthy than others. Previous apparent or actual promiscuity can be conflated with likelihood of consenting to any subsequent sexual act. Of course, there is limited capacity to ascertain the workings and deliberations of juries, since s 8 of the Contempt of Court Act 1981 prevents research with ‘real’ juries. That being said, rigorous research producing robust findings about the perceptions and decisions of mock juries allows us to draw some conclusions about the likely impact of sexual history evidence on actual juries. In this respect there is a noteworthy study by Schuller and Hastings on the impact of complainant sexual history evidence on mock jurors’ decisions.25 This showed that prior history evidence influenced participants’ judgements of cases, with the impact of this information most pronounced when the sexual history information involved sexual intercourse.26 Sexual history evidence was used by the mock jurors to assess the complainant’s credibility and the likelihood that she consented and these perceptions were related directly to their judgements of guilt. The introduction of complainant sexual history evidence was not used to support the defendant’s defence of an 23

24

25 26

Scottish Social Attitudes Survey 2014: Attitudes to Violence against Women in Scotland (2015: Scottish Government). R A Schuller and P A Hastings, ‘Complainant sexual history evidence: its impact on mock jurors’ decisions’ (2002) 26 Psychology of Women Quarterly 252 at 254, citing S T Bell, P J Kuriloff and I Lottes, ‘Understanding attributions of blame in stranger rape and date rape situations: an examination of gender, race, identification, and students’ social perceptions of rape victims’ (1994) 24 Journal of Applied Social Psychology 1719 at 1734, and R L Quackenbush, ‘A comparison of androgynous, masculine sex-­typed, and undifferentiated males on dimensions of attitudes toward rape’ (1989) 23 Journal of Research in Personality 318. See also R Schuller and A Wall, ‘The effects of defendant and complainant intoxication on mock jurors’ judgments of sexual assault’ (1998) 22 Psychology of Women Quarterly 555. Schuller and Hastings, ‘Complainant sexual history evidence’ (n 24). Ibid at 257.

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honest but mistaken belief in consent, which was ‘in the context of the study’ a legally permissible inference, but rather was used in a legally inappropriate manner to assess the complainant’s credibility and likelihood that she had consented.27 The study has significant implications for rape shield legislation in its findings regarding the improper use of sexual history evidence by jurors. B. SEXUAL HISTORY: THE EVIDENCE (1) Law in the books ‘Rape shield’ legislation has been enacted in various jurisdictions since the early 1970s in an effort to limit the use of sexual history and character evidence in criminal proceedings. In Scotland, this first took the form of s 36 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, which amended the Criminal Procedure (Scotland) Act 1975 to introduce ­restrictions on the use of sexual history and sexual character evidence of complainers in sexual offence trials. This section was repealed in 1995 and replaced by ss 274 and 275 of the Criminal Procedure (Scotland) Act 1995, which essentially replicated its predecessor but also extended the protection’s scope to a broader range of sexual offences. The then Scottish Executive sought views in 2000 regarding the reform of the law,28 leading to the enactment of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, which amended the 1995 Act. This altered the landscape radically, introducing new provisions to limit the scope of questioning relating to a complainer’s character and sexual history in sexual offence trials.29 The relevant provisions with respect to introducing sexual history evidence remain ss 274 and 275 of the 1995 Act.30 These provisions relate to sexual offences and indecent assaults but other forms of intimate interpersonal (or domestic) violence are not included within their scope.31 Section 274 has four distinct and alternative subsections. Section 274(1) (a) prohibits the leading of evidence or questioning that would show or tend to show that the complainer is not of ‘good character (whether in relation to sexual matters or otherwise)’. Section 274(1)(b) prevents the complainer from being questioned, or evidence being led, about any ‘sexual behaviour not forming part of the subject matter of the charge’. Section 274(1)(c) prohibits evidence that the complainer has at any time ‘other than shortly 27 28

29 30 31

Ibid at 258–259. See Redressing the Balance: Cross-Examination in Rape and Sexual Offence Trials (Scottish Executive: 2000). Section 288C. As amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002. For an analysis of this legislation, see P Duff, ‘The Scottish “rape shield”: as good as it gets?’ (2011) 15 Edin LR 218.

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before, at the same time as, or shortly after’ the alleged offence ‘engaged in behaviour, not being sexual behaviour’ which might found an inference that she consented or is not a credible or reliable witness. Section 274(1)(d) restricts evidence of ‘any condition or predisposition’ to which the complainer is subject which might lead to the inference being drawn that the complainer consented or is not a credible or reliable witness. Together these provisions were intended to draw a tight net around the scope of questioning related to previous sexual behaviour, particularly where evidence related to sexual history was being used tactically as a defence strategy to undermine the credibility of the complainer. In order to protect the fair trial rights of the accused, however, crucially, s 275 contains an exception to these restrictions, which allows the defence to make an application to introduce sexual history evidence, notwithstanding s 274. It sets out a three-­stage cumulative test which must be satisfied before the trial judge can allow questioning or evidence to be led about sexual history or character. First, the evidence must relate to a specific occurrence or occurrences of behaviour, or to specific facts regarding the character, condition or predisposition of the complainer. Second, the behaviour or facts must be relevant to establishing the accused’s guilt. Third, the probative value of the material must be significant and outweigh any risk of prejudice to the administration of justice, which includes the appropriate protection of the complainer’s dignity or privacy. A devolution issue was raised in Moir v HMA on the ground that ss 274 and 275 were inconsistent with the right to a fair trial in terms of art 6 of the European Convention on Human Rights and were accordingly invalid.32 Moir had been charged with rape and sexual assault, and argued that art 6 was breached by the excessive extent of the s 274 prohibition and the restricted extent to which the prohibition could be over-­ridden. The High Court refused the appeal, holding that s 275 was a reasonable and flexible response to the problem of the ‘embarrassment and humiliation of a complainer in a rape trial’33 and a legitimate means of achieving the legislative objective, and that the legislation did not have a disproportionate effect per se.34 However, it was observed by Lord Justice-­Clerk Gill that a prior course of cohabitation by a complainer with an accused would not constitute engaging in sexual behaviour ‘not forming part of the subject matter of the charge’ (s 274(1)(b)), and therefore such cohabitation would be beyond the scope of s 274’s protections.35 In other words, evidence of cohabitation may be admitted. Such matters were considered further by the Privy Council in DS

32 33 34 35

Moir v HM Advocate 2005 1 JC 102. Ibid para 29. Ibid paras 36–38. Ibid para 27.

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v HMA,36 examining the admissibility of evidence regarding the behaviour of the complainer. The Privy Council also held that the power to exclude evidence of ‘sexual behaviour’ in s 274(1)(b) did not extend to a prior course of cohabitation between the accused and the complainer. What is more, the exclusion of evidence of non-­sexual behaviour under s 274(1)(c) did not extend to evidence that is directed simply to words that the complainer may have said to a third party, as opposed to ‘behaviour’, which bears on her credibility or reliability. So, while the protection afforded to complainers by s 274 is ‘very wide’,37 according to the Privy Council, it does not apply to words the complainer might have said to a third party, nor to cohabitation. The European Court of Human Rights has held that the ‘principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify’.38 Thus, it is not surprising that the Court approved of the Scottish scheme in Judge v United Kingdom,39 dismissing Judge’s claim that the UK had breached his art 6 rights. The Court emphasised that it was for domestic courts to decide whether it was appropriate to call a witness, and an issue would arise under art 6(3)(d), which guarantees the right of the accused to examine or have examined witnesses against him, only if restrictions placed on the right to examine witnesses were so extensive as to deprive that provision of its effect. The European Court remarked that the Scottish Parliament had introduced these provisions on the basis that, in criminal trials for sexual offences, evidence as to the complainer’s sexual history and character was rarely relevant and, even where it was, its probative value was usually weak when compared with its prejudicial effect. Accordingly, the Parliament was entitled to take action to protect the rights of complainers and to generally prohibit the introduction of bad character evidence against them, whilst providing for an exception where such evidence was relevant or probative. Therefore, s 274 and s 275 were regarded as a reasonable and flexible response to the problem of the questioning of complainers in cases concerning sexual offences and a legitimate means of achieving the objectives pursued by the legislature.40 (2) Law in practice So what happens in practice when counsel wants to adduce evidence about the sexual behaviour of the complainer in a sexual offences trial? First of 36 37 38 39 40

DS v HM Advocate 2007 SC (PC) 1. Ibid para 27. Doorson v Netherlands (1996) 22 EHHR 330 at para 70. Judge v United Kingdom 2011 SCCR 241. See Scottish Executive (n 3) section 5 for a discussion of similar ‘tensions’ in a number of international jurisdictions, relating to the balancing of the fair trial rights of the accused with the privacy rights of the witness.

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all, it is necessary that a written application be submitted to the court, in advance of trial. This requirement applies to both the prosecution and the defence. This is regarded as resulting in greater transparency as to the reasoning behind applications, but not as resulting in discussion of the relevance of the evidence by the court.41 The different formulations of Scottish rape shield legislation have been independently evaluated.42 The most recent of these studies, published in 2007, indicated that 72 per cent of all High Court sexual offence trials in 2004–2005 included a s 275 application,43 with 76 per cent of rape trials involving such applications.44 These figures represented an increase in the use of sexual history and character evidence since the introduction of the amendments in the 2002 Act. Just 7 per cent of the s 275 applications were disallowed, and in all but a small number of cases, all evidence allowed in the application was introduced in the trial, usually through cross-­examination of the complainer.45 Several of the interviewed practitioners considered it relatively easy to demonstrate that sexual history/character evidence is relevant.46 These findings are both surprising and w ­ orrying – a­ nd yet to date there has been no further research in Scotland indicating whether the figures have changed or whether the success of s 275 applications has remained at such a high level, demonstrating a real and urgent need for more scrutiny and data on this issue. In addition, case law on these provisions is rather chequered, with some dubious decisions. For instance, in Kinnin v HMA,47 the appeal court held that evidence of comments made by the complainer to K’s son in the weeks prior to the alleged incident indicating that she wanted a sexual relationship with K’s son was an essential part of K’s defence and had been wrongly excluded. Remarkably, the Crown offered no objection to the admission of the evidence and admitted that it appeared relevant and might have a bearing on the issues. The Court accepted that the evidence was not too remote in time or in its relationship to the issue of whether the physical contact had been consensual. It seems extraordinary that the complainer’s willingness to have sex with the accused’s son was deemed to be relevant to consent to sex with Kinnin himself. Some of the legal practitioners interviewed in Burman’s study viewed this decision, along with similar decisions (in 41 42

43 44 45 46 47

Burman et al, Impact of Aspects (n 5) at 4. B Brown, M Burman and J Jamieson, Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials (1992: Scottish Office Central Research Unit); B Brown, M Burman and J Jamieson, Sex Crimes on Trial: Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials (1993: EUP); Burman et al, Impact of Aspects (n 5). Burman et al, Impact of Aspects (n 5) at 41. Ibid at 2 and 115. Ibid at 2. Ibid at 133. Kinnin v HM Advocate 2003 SCCR 295.



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Cumming v HMA,48 for example), as a reason for the subsequent increase in s 275 applications.49 Evidence or questioning concerning the character of the complainer ­featured in approximately 24 per cent of cases in the 2007 study by Burman et al, often concerning the complainer’s use of alcohol or drugs.50 The admissibility of such evidence, regarding former inconsistent complaints, borderline personality disorder and alcohol dependency syndrome, was considered and upheld in HMA v Ronald.51 Ronald was charged with rape; he claimed that he and the complainer had had consensual sexual intercourse, but that following a disagreement she made an allegation of rape. The defence sought to bring evidence of a previous allegation by the complainer, which they claimed was false. The Court held that where, as here, a complainer was diagnosed with a borderline personality disorder and an alcohol dependency syndrome, evidence about not only the disorder and the syndrome but also other aspects of a person’s behaviour would be relevant to the existence of a ‘predisposition’, in the sense in which the word was used in s 275(1) (a). Moreover, the Court held that this complainer’s recorded accounts of the incidents were relevant to the defence both as an example of impulsiveness and lack of self-­control relevant to her diagnosis and also as a means of challenging her credibility. Nonetheless, it was held that it would have been inappropriate to allow the accused to lead evidence or cross-­examine the complainer in an attempt to prove that she had not been raped or otherwise abused on other occasions. Such issues were considered further in M v HMA,52 where M was convicted of the historic sexual abuse of three children. He had applied under s 275 to question one of the complainers about a false claim she had made to the police of sexual assault by a third party when in her teens. The complainer had been cautioned and charged with wasting police time but not prosecuted. The defence argued that this matter was relevant as it went to the credibility of her complaint of abuse by M. Nonetheless, the issue was deemed by the trial judge to be collateral and ‘removed in time and character to the charges on the indictment’53 and so inadmissible under common law. On appeal, this ruling was upheld, though there was a divergence of views as to the admissibility of the making of false complaints and the propensity to do so. Thus, the case was remitted to a Full Bench.54 As Duff states, however,

48 49 50 51 52 53 54

Cumming v HM Advocate 2003 SCCR 261. Burman et al, Impact of Aspects (n 5) at 49–50. Ibid at 3. HM Advocate v Ronald 2007 SCCR 451. M v HM Advocate (No 2) [2013] HCJAC 22. Also known as CJM (No 2) v HM Advocate. M v HM Advocate [2012] HCJAC 83, para 23.

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the matters for ‘consideration and determination’55 were not resolved,56 leaving the law somewhat uncertain. The Lord Justice General, giving the leading opinion, repeated that the common law is not circumvented by s 275 to allow the admission of evidence that would otherwise be excluded as collateral. As for whether a relevant prior false complaint would always be inadmissible as a collateral issue, he stressed that such a complaint could only go to witness credibility.57 He considered the dishonesty of a witness as an exception to the general rule against collateral evidence only where a prior allegation could be proved to be false ‘by reference to established fact in the form of a previous conviction’.58 Critically, there was no conviction here, and so the matter was deemed to be inadmissible. Lord Clarke expressed a different opinion, though agreeing with the ultimate conclusion regarding admissibility in this instance. He rejected a ‘prescriptive regime’59 predicated on conviction, preferring instead a proportionate approach which would involve careful scrutiny of any claims. As Duff outlines, while Lord Clarke’s ‘nuanced’ approach could lead to lengthy ‘satellite litigation’, it is more likely to avoid injustice.60 Furthermore, the Lord Justice General distinguished the facts of Ronald on the basis that there the complainer had an ‘objectively diagnosed medical condition’61 which could contribute to the making of false complaints whereas in M, she did not. He observed that ‘[e]vidence that a complainer suffers from an objectively diagnosed medical condition and that such a condition may, as a generality, have a bearing on a person’s ability to know or tell the truth is admissible, but the matter stops there as a matter of expediency’.62 So, he disapproved of the admission in Ronald of expert evidence beyond that concerning the complainer’s psychiatric conditions which could affect her ability to know or tell the truth.63 The Lord Justice General invited the court to disapprove Ronald, though this was not necessary for the disposal of the present case. Lord Clarke preferred to postpone such matters.64 Duff has disagreed with such disapprobation of Ronald, suggesting that this would lead to a rigid (and arbitrary) rule limiting the factors which a psychiatrist can cite.65 However, his objection overlooks the degree 55 56

57 58 59 60 61 62 63 64 65

Ibid. P Duff, ‘The admissibility of previous false allegations of sexual assault: CJM (No 2) v HM Advocate’ (2013) 17 Edin LR 381. M v HM Advocate (No 2) at para 27. Ibid para 32. Ibid para 51. Duff, ‘The admissibility of previous false allegations’ (n 56) at 384–385. M v HM Advocate (No 2) [2013] HCJAC 22 at para 39. Ibid. Ibid. Ibid para 53. Duff, ‘The admissibility of previous false allegations’ (n 56) at 387.



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to which allowing judicial discretion in this context in the past has facilitated the introduction of speculation and stereotyping (see below). Overall, concern was raised by some of the judges interviewed in Burman’s study about the intricacy of the law in this area,66 and the provisions themselves were described as an ‘elaborate code’ in M v HMA.67 Taken together, these cases do seem to overly constrain the ‘rape shield’, and could indicate that the protections can be undermined somewhat indiscriminately, thereby circumventing the intentions of the legislators and impeding certainty in the law. However, Duff suggests that: One must be cautious about reading a pattern or trend into these cases because there are examples from the previous shield regime where judges took a very robust approach to the issue of relevance and, thus, individual decisions may reflect little more than the attitudes of different judges rather than any underlying change as a result of the new legislation.68

This focus on individual judges calls to mind Ellison’s observation regarding the all-­male composition of the House of Lords in R v A in 2001.69 Similarly, there is a striking gender imbalance in the Scottish courts. At the time of writing, nine of the thirty-­four Senators of the College of Justice are female. The Lord Justice Clerk is now, for the first time, a woman: Lady Dorrian. While Baroness Hale has emphasised the difference that having female judges can make more generally in the legal system,70 it remains to be seen what, if any, the difference will be in terms of attitude towards, or outcomes in, sexual assault cases, particularly given the relative infrequency of sexual assault appeal cases in Scotland. The study by Burman et al indicated that Crown applications to introduce sexual history evidence usually related to evidence required to enable a jury to make sense of subsequent evidence or to contextualise the alleged events.71 But the reforms in 2002 had the ‘largely unanticipated and unintended consequences of the introduction of more sexual history and character evidence than occurred under the 1995 legislation’.72 As Duff has stated: ‘It is perhaps significant that the 2007 study indicates that judges have difficulty imagining circumstances where they would rule out otherwise

66 67 68 69 70

71 72

Burman et al, Impact of Aspects (n 5) at 82. M v HM Advocate (No 2) [2013] HCJAC 22, para 44. Duff, ‘The Scottish “rape shield”’ (n 31) at 236, footnote omitted. Ellison, ‘Commentary’ (n 4) at 206. See, for example, Lady Hale, Deputy President of the UK Supreme Court, ‘Appointments to the Supreme Court’, Conference to mark the tenth anniversary of the Judicial Appointments Commission, University of Birmingham, 6 November 2015, available at: https://www.supremecourt.uk/docs/speech-151106.pdf (last accessed 3 November 2016). Burman et al, Impact of Aspects (n 5) at 3. Ibid at 7 (emphasis in original).

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relevant evidence in order to protect the complainer’.73 This lack of judicial imagination speaks to a lack of understanding of the secondary victimisation often suffered by rape complainers and their potential vulnerability when giving evidence, or regarding their treatment in the criminal justice system more generally (see below). As Bain concludes, referring to Burman’s study: ‘it is clear that the legislation has failed to achieve its goals’.74 Furthermore, ‘the more formalised procedure means that the evidence sought is “far more detailed and extensive” than under verbal procedures, and “greater emphasis on early preparation” means that the defence has become even more skilled at ensuring its introduction, often through the use of multiple applications.’75 Finally, and notably, where the court allows questioning or evidence under s 275, this triggers disclosure of the accused’s previous convictions for sexual offences or any offence where a substantial sexual element was present in its commission.76 This provision, which instantiates a quid pro quo, is unique to Scotland. Burman et al provide the most up to date figures we have on this, again highlighting a pressing need for more research in this area. They highlight that in eight rape cases in their study, the accused had a previous conviction for assault, assault to injury or assault to severe injury in the context of domestic abuse;77 these convictions would not be disclosed under s 275A as they do not involve a substantial sexual element. Yet, as Burman et al stress, prior convictions relating to domestic abuse could be relevant in a sexual offence case in demonstrating a previous history of violence against a woman, even more so where the same woman is involved.78 Reform is needed here so as to permit the inclusion of such previous convictions alongside previous sexual assault convictions. Having set out these provisions and problems relating to the use of sexual history evidence in Scottish sexual assault trials, it is worth examining other measures that have been considered to ameliorate the difficulties faced by complainers in sexual assault trials. One possible way forward is independent legal representation, via legal aid, for complainers. This issue has been discussed in some detail in England and Wales by Ellison,79 and in Scotland by Raitt,80 and Chalmers.81 It was also debated by the Scottish Parliament’s 73 74

75 76 77 78 79 80

81

Duff, ‘The Scottish “rape shield”’ (n 31) at 238. L Bain, ‘The failures of “shield legislation”: sexual history evidence, feminism and the law’ (2010) 96 Aberdeen Student Law Review 96 at 99. Ibid at 101. Section 275A. Burman et al, Impact of Aspects (n 5) at 97. Ibid. L Ellison, The Adversarial Process and the Vulnerable Witness (2002: Oxford University Press). F E Raitt, ‘Independent legal representation’, in C McGlynn and V Munro (eds), Re-Thinking Rape Law – International and Comparative Perspectives (2010: Routledge Cavendish); F Raitt, ‘Independent legal representation in rape cases: meeting the justice deficit in adversarial proceedings’ (2013) Crim LR 729. J Chalmers, ‘Independent legal representation for complainers in sexual offence cases’, in



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Justice Committee, with respect to an amendment to the Criminal Justice (Scotland) Bill 2013 that would have allowed legal aid funding for representation of sexual assault complainers who want to challenge the defence use of ‘private’ information, including medical records, in sexual assault trials.82 We will not rehearse further the arguments made by Raitt and others on the merits or otherwise of legal representation for those alleging sexual assault. However, it is worth noting that while the Justice Committee failed to agree to the amendment on legal aid for representation, their discussion sparked a request from the Cabinet Secretary for Justice to the Crown Office and Procurator Fiscal Service (COPFS), and Scottish Courts and Tribunal Service (SCTS) for a short monitoring exercise regarding the number of s 275 applications made and granted. The resulting data, published in a letter from the Cabinet Secretary for Justice on 26 June 2016,83 shows that from 11 January to 11 April 2016, fifty-­seven applications were made under s 275 (fifty-­two in the High Court and five in the Sheriff Courts).84 Of these, fifty-­one were unopposed by the Crown (forty-­eight in the High Court and three in the Sheriff Courts), and six were opposed (four in the High Court and two in the Sheriff Courts). Of the fifty-­two High Court applications, forty-­two were granted in full, five were granted in part and five refused. In other words, forty-­seven of the fifty-­ two ­applications – ­90 per ­cent – ­were at least partially granted at the High Court. At the Sheriff Courts, only one of the five applications was granted and the other four were refused. Without more detailed information, it is difficult to offer any nuanced analysis of these figures. We cannot say whether this is higher or lower than previous years, because we have no comparative statistics, and we do not know whether a three months’ sample is necessarily indicative of any particular trend or pattern. While we can say that forty-­seven of fifty-­two applications were granted in full or in part and that this seems a high success rate, without more data, such as the number of sexual assault cases coming before the courts during that period, it is impossible to know whether this demonstrates the same kind of worryingly high rate of successful applications as

82

83

84

J Chalmers, F Leverick and A Shaw (eds), Post-Corroboration Safeguards Review Report of the Academic Expert Group (2014: Scottish Government) at 185–189. Official Report of the Justice Committee (22 September 2015), available at: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=10100&mode=pdf (last accessed 1 September 2016). Letter from Michael Matheson to Margaret Mitchell, MSP, available at http://www.parliament.scot/General%20Documents/20160624CSfJtoConvenerILR.pdf (last accessed 1 September 2016). The Sheriff Court is a court of first instance in Scotland, usually with one sitting sheriff. There is a right of appeal in solemn cases to the High Court of Justiciary, which also is a court of first instance for more serious cases, hence the higher number of sexual assault cases coming before the High Court than the Sheriff Court.

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seen in the Burman et al study. There is a pressing need for more sustained data generation in this area in order to be able to understand the experiences of those complainers who go through sexual assault trials, the practices of those who make, challenge and assess applications, and the question of whether further interventions, such as independent legal representation, are needed. What we can say, interestingly, is that at the High Court, four of the five rejected applications were not challenged by the Crown; at the Sheriff Courts, two of the rejected applications were similarly not challenged. Although these numbers are small, and it is difficult, as suggested above, to reach any robust conclusions, the data does draw attention to the claim made by Margaret Mitchell MSP, who introduced the independent legal representation amendment to the Criminal Justice (Scotland) Bill. She argued that based on the evidence of victim support groups, the Crown is not proactive enough in its challenges to s 275 applications.85 Clearly, more research is needed here. Leaving aside independent representation, there are a number of other provisions designed to support victims and witnesses who give evidence at trial, including those who claim to have been sexually assaulted. Here we turn to the issue of ‘special measures’. C. SPECIAL MEASURES FOR VULNERABLE WITNESSES AND VICTIMS Although complainers in sexual assault trials may be subject to humiliating and discrediting questions about their sexual (or medical) history, they do have access to mechanisms within the criminal process that may help to minimise (though not eliminate) the detrimental effects of having to speak about intimate details of the offence, and of their lives more generally, in a public courtroom. If deemed to be ‘vulnerable witnesses’ complainers may be able to at least partially shield themselves from some traumatic aspects of giving evidence (though not from cross-­examination, as discussed below) through the use of what are commonly termed ‘special measures’ such as screens or live video links. Since it has been acknowledged that giving evidence in a sexual assault trial may be experienced as a secondary form of victimisation that causes further trauma,86 special measures are not only an attempt to achieve the ‘best evidence’ possible in criminal proceedings87 but also go 85 86

87

See http://www.parliament.scot/parliamentarybusiness/report.aspx?r=10100&mode=pdf col 32. See, for example, S Lees, Carnal Knowledge: Rape on Trial (2002: Hamish Hamilton); M Burman, ‘Evidencing sexual assault: women in the witness box’ (2009) 56 Probation Journal 379; L Ellison and V E Munro, ‘Taking trauma seriously: critical reflections on the criminal justice process’ (2016) International Journal of Evidence & Proof 1. P Richards, S Morris and E Richards, Turning up the Volume: The Vulnerable Witnesses (Scotland) Act 2004 (2008: Scottish Government).



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some way to recognising that the process itself can be a significant disincentive for victims to report such offences. But who is defined as a vulnerable witness? To what extent are these attempts to protect complainers realised, and what is the impact of such protections on sexual assault victims? (1) Who are ‘vulnerable’ witnesses and how are they identified? (a) Who is vulnerable? In Scotland, provisions on the treatment of vulnerable witnesses and special measures were first introduced by s 271 of the Criminal Procedure (Scotland) Act 1995. Under this Act, only children under twelve were understood to be vulnerable witnesses. This was extended to adults with mental disorders by the Crime and Punishment (Scotland) Act 1997, and again by s 1 of the Vulnerable Witnesses (Scotland) Act 2004, which amended the 1995 Act to include those who are under sixteen; and those for whom there is a ‘significant risk that the quality of the evidence to be given by the person will be diminished’88 either because of a mental disorder, (as defined by s 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003), or because of fear or distress about giving evidence at trial. Richards et al89 suggest that although the 2004 Act largely reproduced existing provisions, it was felt by the Scottish Government that a firm, clear legislative statement with a more inclusive definition of vulnerability and specific details of special measures was needed, as those who were vulnerable were not always getting the appropriate necessary support.90 The category of ‘vulnerable’ was then further extended by the Victims and Witnesses (Scotland) Act 2014, which raised the age threshold for children to eighteen.91 In addition, the alleged victims of human trafficking, domestic abuse, stalking ­and – i­mportantly for our ­purposes – ­sexual assault offences are also now seen as vulnerable.92 It is important to understand from this rather fragmented approach, that it is only this latter category of alleged victims of specific offences, and children under the age of eighteen, who are deemed automatically vulnerable. Those who fall into the other categories must apply to and be deemed, according to the court’s discretion, to be vulnerable. With regards to deciding whether a person is vulnerable, s 271(2) of the 1995 Act (as amended) states that the court must take into account the following factors: (a) the nature and circumstances of the alleged offence to which the proceedings relate, 88 89 90

91

92

Criminal Procedure (Scotland) Act 1995 s 271(1)(b). Richards et al, Turning up the Volume (n 87) para 1. For discussion of the international context in which the 2004 Act came about, see Richards et al, ibid ch 2. Victims and Witnesses (Scotland) Act 2014 s 10(a), amending the Criminal Procedure (Scotland) Act 1995 s 271(1). Ibid s 10(c).

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Scottish criminal evidence law (b) the nature of the evidence which the person is likely to give, (c) the relationship (if any) between the person and the accused, (d) the person’s age and maturity, (e) any behaviour towards the person on the part of – (i) the accused, (ii) members of the family or associates of the accused, (iii) any other person who is likely to be an accused or a witness in the proceedings, and (f) such other matters, including –93 (i) the social and cultural background and ethnic origins of the person, (ii) the person’s sexual orientation, (iii) the domestic and employment circumstances of the person, (iv) any religious beliefs or political opinions of the person, and (v) any physical disability or other physical impairment which the person has, as appear to the court to be relevant.

The best interests (and any views) of the witness (or their parents/guardians) as to special measures also have to be taken into account.94 There is, as yet, no evaluation of the most recent 2014 expansion of the measures. But in their evaluation of the 2004 framework, Richards et al interviewed seventy-­four justice professionals and eleven vulnerable witnesses or their representatives about their experiences.95 They found that many welcomed the new Act, despite some reservations by the judiciary;96 however, as well as some problems around resourcing and the availability of technology and equipment, the authors of the study highlight particularly strong concerns about how criminal justice practitioners identify vulnerable adults, especially since, as they point out, many of the factors detailed in subsection (f) above are not immediately discernible: ‘Many examples were given of adults who may well have been vulnerable witnesses but received no offer of special measures.’97 This finding raises the question, first, of what is meant by vulnerability, and secondly, how criminal justice practitioners might recognise it. When debating the Policing and Crime Bill in the UK Parliament in 2009, Jacqui Smith MP stated in relation to prostitution that: ‘The mark of any 93

94

95 96 97

That is, this is a non-­exhaustive ­list – o ­ ther relevant issues can be taken into consideration according to the 2004 Act’s Explanatory Notes, available at: http://www.legislation.gov.uk/ asp/2004/3/notes/division/3/1/1/1 (last accessed 1 September 2016). Victims and Witnesses (Scotland) Act 2014 s 10(e). A witness can also be considered vulnerable if ‘there is considered to be a significant risk of harm to the person by reason only of the fact that the person is giving or is to give evidence in the proceedings’ (s 10(d)). Richards et al (n 87). Ibid para 27. Ibid para 41.



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civilised society is how it protects the most vulnerable.’98 As Munro and Scoular have documented, vulnerability discourses proliferate in contemporary criminal justice debates but this proliferation does not help with the question of what constitutes vulnerability, and whether we can ever reach a common understanding of vulnerability, so that we can ‘know it when we see it’.99 According to vulnerability’s contemporary academic champion, Fineman, vulnerability is ‘universal and constant, inherent in the human condition’,100 and as such we all share ‘common vulnerabilities’101 even while specific vulnerabilities are ‘particular’ to the individual.102 Fineman argues that rather than press for state recognition of the liberal autonomous choosing subject, we should embrace the notion of the ‘vulnerable subject’ as ‘[f]ar more representative of actual lived experience and the human condition’.103 In contrast to negative interpretations of vulnerability as coterminous with victimhood, Fineman urges us to ‘reclaim’ vulnerability as a ‘heuristic’ concept.104 This would, she seems to suggest, allow us to examine how factors that are commonly folded into vulnerability are socio-­ politically and institutionally constructed. Other commentators are more sceptical of the progressive potential of vulnerability, however. Munro suggests that using vulnerability to particularly mark out specific groups of people ‘risks “othering” those individuals or groups in ways that further entrench their difference and stigma, whilst leaving unchallenged the residual norm of unbounded, empowered, and capable human agency’.105 Similarly, Haas and García have suggested that: ‘Whenever the deployment of vulnerability is only applied to “marginal” subjectivities and exceptional situa­ tions, ideologies about the body as a naturally-­ given are reified, effacing the deep­ ly political, exclusionary, and gendered and cultural affiliations . . .’106 Munro argues that vulnerability might also replicate some of the problems faced in more traditional 98

99

100 101 102 103

104 105

106

Available at: http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090119/deb​text/ 90119-0010.htm col 524 (last accessed 1 September 2016). V E Munro and J Scoular, ‘Abusing vulnerability? Contemporary law and policy responses to sex work and sex trafficking in the UK’ (2012) 20 Feminist Legal Studies 189. Fineman, ‘The vulnerable subject’ (n 7) at 1. Ibid. Ibid at 10. Ibid at 2; see also J Butler, Precarious Life: The Powers of Mourning and Violence (2006: Verso) at 29–31; R Braidotti, ‘Affirmation versus vulnerability: on contemporary ethical debates’ (2006) 10 Canadian Journal of Continental Philosophy 235. Fineman, ‘The vulnerable subject’ (n 7) at 9. V E Munro ‘Shifting sands? Consent, context and vulnerability in contemporary sexual offences policy in England and Wales’ (2017) 26 Social and Legal Studies (417). N Haas and A García, ‘Encounters with vulnerability: the victim, the fragile, the monster, the queer, the abject, the nomadic, the feminine, the shameful, and the rest . . .’ (2015) 11 Graduate Journal of Social Science 151 at 152.

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rights-­based claims related to the hierarchising of harms and hence vulnerability claims. Her concerns are echoed by Craig, who highlights the potential for group and community based markers of vulnerability to simply perpetuate ‘entrenched social hierarchies’ including but not confined to those related to moralistic views about sex, gender stereotypes and ‘the individualized rather than systemic response structure of the criminal justice system’.107 In short, anxieties about relying on the concept of vulnerability seem to centre around a worry that, as conceptualised by, for example, Fineman, vulnerability runs the risk of being over-inclusive; that it essentialises some charactistic(s) about an individual; or that the potential for any practical or political application of it is mitigated by a tendency to over-individualise vulnerability in a way that focuses on individual solutions without addressing the question of how and why people end up vulnerable. In concentrating on how a particular person is vulnerable, we might neglect more systemic fractures that perpetuate existing social inequalities and hierarchies. In the present context, this translates into a potential neglect of the ways in which the criminal justice system itself creates vulnerabilities as well as the current political and legal failure to take seriously the significant and structural vulnerabilities of many sexual assault victims. The use of vulnerability in the Scottish legislation, which focuses on particular groups, arguably risks prompting all of the concerns mentioned here. For example, do the characteristics listed in s 271(2)(f) (set out above) indicate inherent vulnerability? Notwithstanding the explicit statement of the Scottish Executive that the use of the term vulnerability in the legislation was not intended to denote any inherent personal factor or deficit,108 it is hard to see how sexual orientation or any of the other factors do not relate to something personal and inherent to the individual, even if not strictly seen as a ‘deficit’. And what makes these characteristics the correct ones to include in such a list? At one level it is easy to see how this list was ­generated – ­it corresponds closely with the list of characteristics protected in hate crimes legislation (ethnicity, sexual orientation, religion, disability), though it does not mention transgender identity (which was added as a hate crime by s 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009); and it includes a broader range of potentially vulnerable people since it includes consideration of a person’s social and cultural background, their domestic and employment circumstances and their political opinions. Some of these characteristics are protected in other sorts of rights frameworks such as the Convention for the Status of Refugees 1951 (ethnicity, sexual orientation, social and cultural background, political opinion), or equality-­ based anti-­discrimination laws. The relevance and meaning of ‘domestic and 107 108

E Craig, ‘Capacity to consent to sexual risk’ (2014) 17 New Criminal Law Review 103 at 127. Scottish Executive, Vulnerable and Intimidated Witnesses (n 3) at 4.



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employment circumstances of a person’ are more opaque but it seems that we might interpret this as circumstances of duress or where there is a heavily unbalanced power relationship, such that the witness might feel significant pressure not to give certain kinds of evidence. In any case, despite the fact that these listed factors are all commonly recognised vectors of vulnerability, reliance upon these as ways of recognising and marking out vulnerability may at first glance merely perpetuate a problematic, individualistic and essentialised understanding of what it is to be vulnerable. For example, Piggott suggests that focusing on the characteristic of the victim of hate crime, rather than the social circumstances that make hate crime possible ‘depends on the identification of a person as different, thereby reinforcing culturally embedded ideas of normality’.109 The individualising tendencies of the legislation are especially noticeable when we take the factors listed in the 2004 Act as relevant to establishing vulnerability as independent of each other; that is, there is no recognition of the complex ways in which different vectors of vulnerability intersect and are compounded. For example, research in England and Wales has shown that sexual assault victims who have mental health problems are less likely to report the incident, less likely to have the incident recorded by police, and are less likely to be believed by criminal justice agents.110 Indeed, Ellison et al emphasise that although many studies point to the high rate of prevalence of sexual violence against those with mental health issues or learning disabilities, due to massive under-­reporting, the scale of this problem is not known111 (though of course this is true of sexual offences more generally). This is a pattern replicated at the international level, where research has shown that those who experience mental ill health are especially at risk of sexual assault.112 Stanko has described this as the de facto decriminalisation of sexual assault of those who suffer from mental ill health or have learning difficulties: one report of her research suggests that: ‘Those with learning difficulties were 67% less likely to have their case referred by police for prosecution than those without. Mental illness reduced the chance by 40 per cent.’113 109

110

111 112

113

L Piggott, ‘Prosecuting disability hate crime: a disabling solution?’ (2011) 5 People, Place and Policy Online 25 at 25. See also C MacQueen, ‘Special measures and the principle of orality in the Scots criminal trial: ensuring fairness to the witness and accused’ (2016) (unpublished LLM thesis, University of Edinburgh, on file with authors), arguing against automatic eligibility, and recommending that the court should hear arguments from both sides on the special measure application. L Ellison, V E Munro et al, ‘Challenging criminal justice? Psychosocial disability and rape victimisation’ (2015) 15 Criminology and Criminal Justice 225. Ibid. L Ellison, ‘The use and abuse of psychiatric evidence in rape trials’ (2009) 13 International Journal of Evidence and Proof 28 at 48. Cited in D Orr, ‘A new way of investigating rape could transform attitudes to sex crime’,

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The ways in which various factors related to, for example, drug or alcohol use, mental health, a previous relationship with the accused, or a previous allegation of sexual assault, as well as difficulty in narrating a coherent account, interact with the long-­documented, existing gendered ‘blind spots’ in a sexual assault trial are complicated.114 This means that an atomistic approach to vulnerability in the courtroom does not adequately capture or reflect the reality of victims’ experiences. Indeed, many, if not most, sexual assault victims are unlikely to get anywhere near the criminal trial in the first place, particularly where they experience one or more of these other factors, such as drug use and/or poor mental health.115 When they do, Ellison has highlighted the frequent inappropriate use of psychiatric and confidential mental health records in sexual assault cases in England and Wales, despite procedures being put in place for complainants to challenge applications for the disclosure of such records.116 Similarly, Raitt has argued that recent amendments to rules of disclosure in Scotland have widened the duty to disclose to the point where they fail to sufficiently protect the privacy rights of complainers, in particular those of sexual assault complainers who have a history of mental illness.117 Similar arguments have been made in other jurisdictions regarding medical records and even simply records of previous counselling.118 There may also be a culture of victim blaming and scepticism around those with mental health issues who allege sexual assault, particularly where they have been subject to multiple victimisation.119 The ameliorative effects of the vulnerable witness provisions are unlikely in practice to

114

115 116 117

118

119

The Guardian, 8 March 2014, available at: https://www.theguardian.com/commentisfree/2014/ mar/08/rape-consent-vulnerability-barfield-stanko (last accessed 1 September 2016). See, for example, Lees, Carnal Knowledge (n 86); Temkin and Krahé (n 21); Temkin, ‘Prosecuting and defending rape’ (n 21). See also Cairns, Chapter 2 in this volume. Ellison, ‘The use and abuse’ (n 112). See also Burman, ‘Evidencing sexual assault’ (n 86). F E Raitt, ‘Disclosure of records and privacy rights in rape cases’ (2011) 15 Edin LR 33 at 40. Raitt points out that there are few formal rights afforded to the complainer, with respect to privacy, in the criminal justice context. She suggests that only articles 2, 6 and 8 of the ECHR give the complainer any formal recourse, but that these are so broad that they may be difficult to pin down. However, see the recent case of WF (2016) CSOH 27, where the Scottish Court of Session held that a complainer’s article 8 rights would be infringed by the disclosure of private medical records, and that she was entitled to legal aid to challenge the application for disclosure: http://www.bbc.co.uk/news/uk-scotland-35562009. Case may be found at: https://www.scotcourts.gov.uk/search-judgments/judgment?id=2af906a7-8980-69d2b500-ff0000d74aa7. For discussion of the history of the reform of disclosure rules, see Duff, Chapter 9 in this volume. See, for example, E McDonald, ‘Resisting defence access to counselling records in cases of sexual offending: does the law effectively protect clinician and client rights?’ (2013) 5 Sexual Abuse in Australia and New Zealand 12; L Gotell, ‘Colonization through disclosure: confidential records, sexual assault complainants and Canadian law’ (2001) 10 Social and Legal Studies 315. Ellison et al, ‘Challenging criminal justice’ (n 110).



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make much of a dent in the problem of ‘access to justice’ in the sense of complainers having their ­claim – ­and their ­personhood – ­treated with dignity and respect.120 (b) Identifying vulnerable witnesses So how is vulnerability, as complex as it is, recognised and acted upon by criminal justice agents? Burton et al conducted research in England and Wales, evaluating the effectiveness of special measures, introduced by the Youth and Criminal Evidence Act 1999, in real-­life cases, though not specifically sexual assault cases.121 Their findings are similar to that of Richards et al in Scotland, discussed above: generally, the treatment of vulnerable and intimidated witnesses (VIWs) has improved but implementation is inconsistent. Having interviewed criminal justice agents and victims, tracked prosecution cases and observed court practice, they concluded that the processes for identifying VIWs significantly underestimated the number of those who were truly vulnerable: on a ‘very conservative estimate’ they concluded that 24 per cent as opposed to the official figures of 7–10 per cent were probably VIWs.122 Like Richards et al, they found that police officers had problems identifying VIWs, particularly those with mental disorders or learning disabilities, and those who were intimidated, and also did not always communicate effectively about the cases where someone was identified as a VIW. They also found that the Crown Prosecution Service (CPS) rarely identified individuals as VIWs, with some being identified for the first time by Victim Support at court, often too late for measures to be implemented.123 And although interviewed complainants reported that special measures enabled them to give evidence that they might otherwise not have given, Burton et al concluded 120

121

122 123

See Cairns, Chapter 2 in this volume, for a critical discussion of what is meant by ‘access to justice’; see also Larcombe (n 12), critiquing the way in which feminist interactions with the criminal justice system’s treatment of rape too often end in an unreflective call for more prosecutions. M Burton, R Evans and A Sanders, Are Special Measures for Vulnerable and Intimidated Witnesses Working? Evidence from the Criminal Justice Agencies (2006: Home Office), summarised in M Burton, R Evans and A Sanders, An Evaluation of the Use of Special Measures for Vulnerable and Intimidated Witnesses (2006: Home Office Research Findings 270). See also M Burton, R Evans and A Sanders, ‘Vulnerable and intimidated witnesses and the adversarial process in England and Wales’ (2007) International Journal of Evidence and Proof 1; M Burton, R Evans and A Sanders, ‘Implementing special measures for vulnerable and intimidated witnesses: the problem of identification’ (2006) Crim LR 229; and Ellison, The Adversarial Process (n 79). Burton et al, An Evaluation of the Use of Special Measures (n 121) at 1. Ibid at 3. Ewin (2016) also found in his study of CJS practitioners that early identification of VIWs, while crucial, was sporadic and inconsistent; nonetheless, special measures when applied did seem to have a positive impact on VIWs. See R Ewin ‘The vulnerable and intimidated witness: a study of the special measure practitioner’ (2016) 2(1) Journal of Applied Psychology and Social Science 12.

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that there was a significant unmet need.124 Importantly, and chiming with concerns raised above, they also found an informal hierarchy in VIW identification (presumably for pragmatic reasons) where children and victims of sexual offences were more easily and therefore more readily identified than others, and therefore more likely to benefit from special measures.125 This resonates with the findings of the 2010 Stern Review – that prosecutors were generally reluctant to apply to use video evidence with adults, partly because of the quality and length of some of the videos. Stern therefore recommended that the format and use of video evidence be reviewed.126 In response to the Victims and Witnesses (Scotland) Act 2014, and, apparently, the European Directive on the rights, support and protection of victims of crime,127 there is now a joint protocol between COPFS, SCTS, Police Scotland and Victim Support Scotland, last updated in September 2015.128 This document aims to allow agencies to ‘identify best practice and obtain consistency of approach to improve victims and witness engagement and support . . . to understand and meet victim and witness needs, treating them appropriately, professionally and with respect at all times’.129 Those deemed vulnerable by way of status (children, those with mental disorders and victims of specified offences) will be identified automatically, and a special arm of COPFS, called Victim Information and Advice (VIA), contacts these people to discuss the most appropriate special measures and make applications to court, amongst other things. For ‘other’ vulnerable witnesses, the identification process is not so straightforward. VIA contacts those identified as potentially vulnerable by investigating police officers,130 or they can be identified by Victim Support, other agencies, or other members of COPFS throughout the criminal justice process; they can also self-­refer or be referred by a representative at the point of citation.131 However, a true understanding of how this process works in practice requires evaluation, not only of the extent to which the criminal justice process allows for identification and communication amongst its agents of potentially vulnerable witnesses, but also the extent of, for example, mental health training received by criminal justice agents such as the police and the Crown Office, as well as 124 125 126 127

128

129 130 131

Burton et al, An Evaluation of the Use of Special Measures (n 121) at 4. Ibid at 3. Stern Review (n 1) at 68–70. Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime: http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1421925131614&uri= CELEX:32012L0029 (last accessed 30 November 2016). Working together for Victims and Witnesses: Protocol Between Crown Office and Procurator Fiscal Service (COPFS), Scottish Courts and Tribunal Service (SCTS), Police Scotland and Victim Support Scotland (VSS) (2015: Scottish Courts and Tribunal Service). Ibid para 3. Ibid para 23. Ibid para 94.



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defence solicitors and even judges. The views and experiences of those who are (and are not) categorised as vulnerable are, of course, also central to such an evaluation. It is not clear then that the statutory protections offered through special measures have in themselves given us an adequate understanding of what constitutes vulnerability, and how we might recognise it, in the context of sexual offences. Alongside these concerns about the meaning of vulnerability and how it is applied in practice is the question of the impact of the measures themselves. (2) What impact do special measures have in sexual offence trials? If a witness is found to be vulnerable, the 1995 Act (as amended) sets out a range of special measures designed to protect them from the harsh realities of engaging with the criminal justice process. These are: the use of a screen, a live TV link, the opportunity for the witness to have a person supporting them as they give evidence, the use of a video-­recorded prior statement, use of evidence taken by a court-­appointed ‘commissioner’, and ‘any other measure’ the Scottish Ministers may prescribe.132 The first three are termed ‘standard measures’, to which children under eighteen are automatically entitled, providing the TV link is from inside the building.133 The 2014 Act also added provision for closed courts.134 Those who are not automatically deemed vulnerable can apply for any of these special measures, to be granted at the court’s discretion.135 How effective are these special measures for complainers and what is their impact on a sexual assault trial? No evaluative study has been conducted in Scotland since the study by Richards et al was published in 2008, as discussed above, although the Evidence and Procedure Review undertaken by the Scottish Court Service does provide figures on applications for and take-­up of special measures.136 In England and Wales, Hamlyn et al surveyed VIWs 132

133 134 135 136

Criminal Procedure (Scotland) Act 1995 s 271, as amended by the Vulnerable Witnesses (Scotland) Act 2004 s 1. 1995 Act s 271A(14). The 2014 Act raised the age from sixteen to eighteen years. Victims and Witnesses (Scotland) Act 2014 s 21. 1995 Act s 271C. For discussion of the increase in take-­up of special measures see Scottish Courts Service, Evidence and Procedure Review Report (2015), available at: http://www.scotcourts.gov.uk/docs/ default-source/aboutscs/reports-and-data/reports-data/evidence-and-procedure-full-report---publication-version-pdf.pdf?sfvrsn=2 and Scottish Court and Tribunal Service, Evidence and Procedure Review – Next Steps (2016), available at: https://www.scotcourts.gov.uk/about-the-scottish-courtservice/scs-news/2016/02/26/evidence-and-procedure-review---next-steps. It may well be that the Scottish criminal justice system is generally moving in the direction of updating much of its evidential process through wider use of electronic and digital technology for reasons of cost efficiency, as well as to better ‘ascertain the truth’ (see Duff, Chapter 9 in this volume). The SCTS 2015 report makes recommendations, such as taking all vulnerable witness statements

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to ask whether they themselves thought special measures were working.137 The study, published in 2004, was not focused on sexual assault complainants (although 15 per cent of their respondents had alleged sexual assault) and was conducted before the full range of special measures was rolled out, but they found that 33 per cent of VIWs using any special measure said they would not have felt able to give evidence without it.138 More recently, Ellison and Munro investigated the impact of three special measures upon mock juror evaluations of adult rape testimony: (1) live-­links; (2) video-­recorded evidence-­in-­chief followed by live-­link cross-­examination; and (3) protective screens.139 They found that with respect to verdicts, jurors’ evaluations of responsibility often had more to do with prior expectations regarding ‘appropriate’ responses to rape and ‘normal’ socio-­sexual behaviour than they did with the mode by which the complainant’s testimony was delivered.140 Their findings also ‘provide little support for the suggestion that the emotional impact of testimony will be reduced when a witness appears on a screen, translating into a loss of juror empathy’.141 Overall they found that special measures themselves did not seem to have any discernible impact on jurors’ assessments of the complainant’s credibility, and that they could equally work ‘in favour’ as much as ‘against’ the complainant.142 Some criminal justice agents are, however, reluctant to grant special measures applications. Hamlyn et al found that some judges preferred adults to give live oral testimony.143 Likewise, as mentioned above, the 2010 Stern Review found that prosecutors in England and Wales were generally reluctant to make special measures applications for pre-­recorded video interviewing with adults.144 More recently, Westera et al in Queensland, Australia,

137

138 139

140

141 142

143 144

and cross-­examinations by video as a matter of course. Whether or not this would bring us closer to an inquisitorial system is beyond the scope of this chapter. But see C MacQueen, ‘Special measures’ (n 109) which examines special measures in Scotland, asking whether they achieve a balance of fairness between the complainer and the accused. B Hamlyn, A Phelps, J Turtle and G Sattar, Are Special Measures Working? Evidence from Surveys of Vulnerable and Intimidated Witnesses (2004: Home Office). Ibid at 78. L Ellison and V E Munro, ‘A “special” delivery? Exploring the impact of screens, live-­links and video-­recorded evidence on mock juror deliberation in rape trials’ (2014) 23 Social & Legal Studies 3; L Ellison and V E Munro, ‘Special measures in rape trials: Exploring the impact of screens, live links and video-­recorded evidence on mock juror deliberation’ (2012: ESRC Briefing Report). However, as they point out, ‘verdict outcome alone offers a limited indicator of influence, and myriad other variables can play a part in its framing. It is necessary, therefore, to delve further into the substantive content of the deliberations to explore more subtle signs of influence’; Ellison and Munro, ‘Special measures’ (n 139) at 3. Ibid. Ibid. For a useful review of the limited and mostly outdated evidence on different kinds of special measures see C MacQueen, ‘Special measures’ (n 109). Hamlyn et al, Are Special Measures Working? (n 137) at 113. Stern Review (n 1) at 68–70.



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tried to explain this prosecutorial hesitancy in their own criminal justice system.145 They evaluated police video interviews as evidence-­in-­chief in sexual assault trials and found that police officers often used over-­wordy instructions, the interviews lacked logical structure, and interviewers were often ‘relentless’ in the pursuit of unnecessary detail, such that the interviews were not seen by prosecutors as the best form of evidence to present to the court.146 However, they found in their 2013 New Zealand study that when compared with recorded police interviews, live evidence-­in-­chief at trial failed to elicit over two thirds of the detail of evidence relevant to establishing whether or not the alleged offence had occurred.147 So while the use of pre-­recorded interviews might be essential to protect complainers and produce ‘best evidence’, they must be conducted in a way that is useful to prosecutors if the special measure is to be fully effective. Criminal justice agents must also be willing to apply for, and grant, the special measures in the first instance. Special measures are obviously essential, not ‘to provide [witnesses] with an unfair advantage, but to allow them to participate in a meaningful way’.148 Sexual assault is clearly a traumatic experience, and having to recount the assault at trial compounds the trauma for many complainers.149 This is to some extent recognised through explicit inclusion of sexual assault claimants as vulnerable within the terms of the Vulnerable Witnesses (Scotland) Act 2014. However, Hardy et al have shown in their study that ‘trauma memory’, incoherence of the account and dissociation all affect not only the ways in which sexual assault is recounted to the police, and the quality of evidence available to the prosecution, but the way in which a complainer is treated by criminal justice agents and, therefore, whether or not complainers decide to take the allegation forward in the first instance.150 In other words, vulnerability arising from the trauma of the assault, or from some other characteristic such as drug or alcohol use, mental health issues or some combination 145

146 147

148 149

150

N Westera, M Kebbell and B Milne, ‘Want a better criminal justice response to rape? Improve police interviews with complainants and suspects’ (2016) Violence Against Women 1; N Westera, M Powell and B Milne, ‘Lost in the detail: Prosecutors’ perceptions of the utility of video recorded police interviews as rape complainant evidence’ (2015) Australian and New Zealand Journal of Criminology 1. Westera et al, ‘Lost in the detail’ (n 145) at 5. N Westera, M Kebbell and B Milne, ‘Losing two thirds of the story: A comparison of the video-­recorded police interview and live evidence of rape complainants’, (2013) Crim LR 290. Scottish Executive, Vulnerable and Intimidated Witnesses (n 3) at 99. Burman, ‘Evidencing sexual assault’ (n 86). See also I Callander, ‘The challenge of “best ­evidence” in rape trials: the Victims and Witnesses (Scotland) Act 2014’ (2014) 18 Edin LR 279. A Hardy, K Young and E Holmes, ‘Does trauma memory play a role in the experience of reporting sexual assault during police interviews? An exploratory study’ (2009) 17 Memory 783. See also G H Gudjonsson, ‘Psychological vulnerabilities during police interviews. Why are they important?’ (2010) 15 Legal and Criminological Psychology 161.

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of these issues, as well as the treatment of complainants by criminal justice agents, has an impact on whether sexual assault cases drop out of the criminal justice system, or even enter the criminal justice system at all. As Ellison and Munro have recently argued, the impact of trauma on victims of crime at every stage in the criminal justice process and, in particular, on sexual assault victims, has barely been acknowledged either by policy makers or practitioners.151 Legislation relating to the treatment of evidence in sexual assault trials does not address these issues; treating special measures as a solution ignores the extent to which witnesses are made more vulnerable by the criminal justice system itself. It also ignores the ways in which trauma and vulnerability can affect both the quality of a complainer’s testimony and the credibility it is afforded by the judge and jury.152 That is not to detract from the importance of protecting witnesses in sexual offences trials. But an overly narrow focus of our energy on refining provisions that deal only with the way in which a complainer’s evidence is presented in court can distract us from addressing questions about the deep-­seated vulnerabilities that lead certain complainers to be both more vulnerable to sexual assault and yet less likely to have access to criminal justice redress, or indeed to be re-­traumatised by the adversarial process, for example through cross-­examination. D. CONCLUSION It is frequently lamented that law ‘in action’ often does not reflect law ‘in the books’. This is perhaps especially so in the area of sexual assault where feminist commentators, amongst others, have noted the obduracy of assumptions and stereotypes about ideal victim behaviour, despite repeated attempts at substantive and procedural law reform. The spectre of sexual history looms over every individual who considers reporting a sexual offence. Laws introduced to limit defence lawyers’ reliance upon sexual history evidence to cast doubt on a complainer’s behaviour have been shown to be ineffective in practice, and in some cases can exacerbate the most problematic aspects of referring to a complainer’s sexual history, for example rendering them especially ‘vulnerable’ to being humiliated and disempowered in the criminal justice process. Although it appears that the majority of sexual assault trials ultimately do include evidence of sexual history, special measures can protect complainers from some of the embarrassment and trauma of having to give evidence and having their credibility and sexual integrity challenged in a courtroom and/or in the media. But we do not know enough about vulnerability in sexual offences; there 151 152

Ellison and Munro, ‘Taking trauma seriously’ (n 86). Ibid. See also J Herlihy and S Turner, ‘Untested assumptions: psychological research and credibility assessment in legal decision-­making’ (2015) 6 European Journal of Psychotraumatology, available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4439408/.



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is a dearth of data on these issues, particularly in Scotland, where little is ­known – ­excepting anecdotal accounts and reports from victim support ­organisations – ­about sexual assault complainers’ contemporary experiences in the criminal justice system, not only of their experience leading up to and during the trial process, including applications to introduce their sexual history and other private information, but also if, when, and how the vulnerable witness procedures impact upon them. We do not know how vulnerability is currently identified or communicated by police officers, or by COPFS or other agencies, or whether there is reluctance to apply certain kinds of special measures to certain kinds of complainers. We do not know the experiences of those who are deemed ­vulnerable – ­and those who may need to be so defined, but are not. Neither do we have data on whether or not particular measures such as police interviews provide the best kind of courtroom evidence, or the impact that any of the special measures have on the courtroom dynamics or outcomes. It might well also be true that there is an informal hierarchy of identification. Scotland deems certain categories of people vulnerable, who are automatically identified and contacted (children, those with mental disorders and those who have alleged particular offences). However, those who do not fall within those categories may not be easily identifiable as vulnerable. Again, given that neither sexual history evidence applications nor the vulnerable witnesses scheme has been evaluated in the past decade,153 there is an urgent need for more research in S ­ cotland – a­ nd in England and W ­ ales – t­ o better understand the reliance on sexual history evidence, the gaps in provision of special measures, the impact that the use of sexual history and other private information, as well as the special measures themselves, have on witnesses and other trial participants, and if possible, trial outcomes. Nonetheless, a better understanding of the processes currently in place should not distract us from important questions about the socially embedded structures that prompt vulnerability. While protecting individual complainers and allowing them to have a voice in the criminal justice process are 153

Though in England and Wales, there have been studies of the experiences of people with learning disabilities and learning difficulties within the criminal justice system, including suspects and defendants: J Talbot and J Jacobson, ‘Adult defendants with learning disabilities and the criminal courts’ (2010) 1 Journal of Learning Disabilities and Offending Behaviour 16; J Jacobson, No One Knows: Police Responses to Suspects with Learning Disabilities and Learning Difficulties: A Review of Policy and Practice (2008: Prison Reform Trust), available at: http:// www . prisonreformtrust . org . uk / Portals / 0 / Documents / No % 20One % 20Knows % 20police % 20 responses % 20to % 20suspects % 20with % 20learning % 20disabilities % 20and % 20difficulties . pdf (last accessed 30 November 2016). In addition, Plotnikoff and Woolfson have evaluated the UK Government’s commitment to young witnesses: J Plotnikoff and R Woolfson, Evaluation of Young Witness Support: Examining the Impact on Witnesses and the Criminal Justice System (2007: Home Office); J Plotnikoff and R Woolfson, Measuring up? Evaluating Implementation of Government Commitment to Young Witnesses in the Criminal Justice system (2009: NSPCC).

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laudable aims, this cannot come at the expense of a proper inquiry as to what is meant by vulnerability, and the ways in which the justice process itself is implicated in compounding vulnerability and trauma. We have argued that what is needed is a more systemic focus on the ways in which certain kinds of victims become, by virtue of their circumstances, especially vulnerable, both to being sexually assaulted in the first instance and to being denigrated and disbelieved in the criminal justice process, with little likelihood of being treated with respect, dignity or indeed receiving just outcomes, however that might be understood. Cardwell and Hervey recently observed that critical analysis of the use of legal techniques can highlight the way that law itself ‘sustains certain assumptions that support structures of power as “background rules of the game”, essentially by hiding them from scrutiny’.154 We have argued that the laws of evidence and criminal procedures relating to sexual assault must be held up to closer scrutiny. There has also been a proliferation of rules, exceptions, policies, protocols and case law relating to the use of sexual history evidence and to the proper treatment of vulnerable victims and witness; as has been suggested, ‘when controversies flare up the literature becomes technical’.155 We have seen the policy and academic landscape become arguably overly technical in this legal area; what we have not seen is any real engagement with what it means to be vulnerable regarding sexual assault. A concerted attempt must be made by academics, policy and lawmakers, and practitioners properly to understand the underlying dynamics and the reality of the depth and breadth of lived vulnerability in this context.

154

155

P Cardwell and T Hervey, ‘Bringing the technical into the socio-­legal: the metaphors of law and legal scholarship of a 21st century European Union’, in D Cowan and D Wincott (eds) Exploring the ‘Legal’ in Socio-Legal Studies (2015: Palgrave MacMillan) 171. A Riles, ‘A new agenda for the cultural study of law: Taking on the technicalities’ (2005) 53 Buffalo Law Review 973 at 1008, citing B Latour, Science in Action: How to Follow Scientists and Engineers Through Society (1987: Harvard University Press) at 30.

Chapter 4 ‘Similar fact’ evidence and Moorov: time for rationalisation? Fraser P Davidson

INTRODUCTION This chapter analyses the operation of so-­called ‘similar fact’ evidence in Scots law, the relationship between similar fact and the Moorov doctrine, and the possibility that this relationship has to an extent distorted the use of ‘similar fact’ evidence in our law. It considers the potential for the placing of ‘similar fact’ evidence on a more logical basis. In that context, it examines the proposals of the Scottish Law Commission and asks whether they stand up to scrutiny. Finally, it considers alternatives to the regime suggested by the Scottish Law Commission and offers suggestions for the future direction of the law. A. ‘SIMILAR FACT’ EVIDENCE IN SCOTS LAW (1) Background Scots law has always taken the position that evidence of character is prima facie ­inadmissible – ­whether it is the character of an accused, a complainer, a party to a civil case, or indeed a w ­ itness – u ­ nless an individual’s character is itself central to the proceedings, such as that of the pursuer in an action for defamation.1 The basis of inadmissibility has always been legal irrelevance, in the sense that the evidence is insufficiently relevant to justify the court considering such matters.2 Yet, despite this exclusionary rule, evidence which happens to reflect incidentally on an accused’s character may be admissible if it relates directly to the issue of his guilt. In England, although the law in this area has now been placed on a statutory footing, the heading under which evidence of this kind has traditionally been discussed is that of ‘similar fact’. As will be seen, this is a rather misleading designation, since a great variety of evidence has tended to be grouped under a single label, whether or not it refers to acts of the accused similar to those with which he is now charged. 1 2

See Lord President Clyde in C v M 1923 SC 1 at 5. See Lord President Robertson in A v B (1895) 22 R 402 at 404.

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Thus, while Lord Hope in the Privy Council case of S v HMA3 insists that ‘Scots criminal law has never admitted similar fact evidence’, what he means is that Scots law has never admitted such evidence in the true sense of the term, although other types of evidence which tend to be classified under this heading would certainly be admitted in a Scottish criminal trial. How then does similar fact operate in Scots law? For a useful starting point in that discussion one might look not to a Scottish case, but to the statement of Lord Chancellor Herschell in the Privy Council case of Makin: It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused had been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.4

That this is also the law of Scotland receives support from Lord Murray’s statement in HMA v Joseph that: it is the law in Scotland, as in England, that it is open to the prosecution to prove any facts relevant to the charge, notwithstanding that they may show or tend to show the commission of another crime, if they show or tend to show that the act charged was done of design and did not arise by accident, or if they tend to rebut a defence of innocence . . .5

Looking at how these principles might be applied in practice, the cases do indeed show that one way evidence of the accused’s past misdeeds (possible or actual) may be admissible is where it illuminates the issue of whether the acts charged may have resulted from an accident.6 Another use of such evidence is to show that the accused has acted in similar fashion in the p ­ ast – ­not in order to suggest that he is the sort of person who is liable to commit a particular type of ­crime – ­but in order to cast light on his knowledge or intention, usually with a view to showing that he had mens rea.7 Additionally, S v HM Advocate 2007 SLT 1026 at para 34. Makin v AG of New South Wales [1894] AC 57 at 65. 5 HM Advocate v Joseph 1929 JC 55 at 56–57. 6 As in the Makin case itself and R v Smith (1915) 11 Cr App R 229 (the celebrated ‘brides in the bath’ case). 7 An example is Joseph (n 5). Joseph was charged with uttering forged bank drafts. Evidence was allowed that earlier that month he had done the same thing in Belgium. The point of the evidence was not that it suggested that he had a tendency to do this sort of thing, but that it undermined his defence that he did not know they were forged. 3 4



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evidence of past misdeeds may be admitted in order to establish that the accused had a motive for committing the crime.8 As regards ‘similar fact’ evidence being employed to rebut a defence which would otherwise be open to the accused, certain cases show such evidence being used to rebut a defence actually relied on by the accused,9 while another strand in the case law allows evidence that the accused has previously attempted to use the same sort of rather unusual defence to a similar charge.10 The idea that the evidence is employed to rebut a defence which would otherwise be open to the accused suggests that it is not actually necessary for the accused to have relied on a particular defence to make the evidence admissible.11 The fear has sometimes been expressed that the principle permits the prosecution to invent unlikely defences simply to allow ‘similar fact’ evidence by way of rebuttal.12 In particular, concern has been expressed with regard to the so-­called defence of innocent association,13 since ‘similar fact’ evidence can sometimes be led purportedly to rebut that defence when the defence seems to consist of little more than the fact that the circumstances of the case demonstrate little evidence of a crime.14 (2) From propensity to probativity It is seen above that both Scots and English law traditionally admit evidence, whether it might be accurately described as similar fact or not, which reflects on the character of the accused if it is relevant to questions of motive or intention, or tends to undermine a possible defence, or more generally casts doubt on the innocence of the accused. However, evidence of mere criminal propensity has traditionally not been admissible. This is clear from the views of Lord Herschell in Makin, and is echoed by Lord Griffiths in Scott v R:15 ‘English law does not regard a propensity to commit crime as probative of the particular crime with which the accused is charged.’ Yet this is subject to a major qualification in that evidence that an accused has a propensity to 8 9 10 11

12

13

14 15

See Dumoulin v HM Advocate 1974 SLT (Notes) 42. See HM Advocate v McIlwain 1965 JC 40. See R v Cokar [1960] 2 QB 207. This seems to be confirmed by Viscount Simon’s assertion in Harris v DPP [1952] AC 694 at 705, that he did not ‘understand Lord Herschell’s words to mean that the prosecution must withhold such evidence until after the accused has set up a specific defence which calls for rebuttal’. So in Thompson v R [1918] AC 221 at 232, Lord Sumner stated that ‘[t]he mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defences in order to rebut them with some damning piece of prejudice.’ In DPP v Boardman [1975] AC 421 at 443, Lord Wilberforce described the defence as ‘a specious matter of outflanking the exclusionary rule’. See R v Ball [1911] AC 47. Scott v R [1989] 2 All ER 305 at 311.

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commit a particular crime in a particular way has always been admissible in English law. The classic example is perhaps R v Straffen,16 where the features of the crimes the accused had previously committed, which coincided with the crime with which he was then c­ harged – ­manual strangulation of young girls, with no apparent motive, nor any attempt to interfere sexually with the victim, nor to conceal the ­body – ­were so peculiar that this evidence was admitted to prove his guilt, although there was little other evidence against him, save for the fact that he was in the area at the time the crime was committed. Lord Salmon sought to explain the law in DPP v Boardman: If a crime charged is committed in a uniquely or strikingly similar manner to other crimes committed by the accused, the manner in which the other crimes were committed may be evidence on which a jury could reasonably conclude that the accused was guilty of the crime charged. The similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence.17

The above then describes true ‘similar fact’ evidence. Nonetheless, the approach has been criticised, partly because it was difficult to establish the boundaries of what was or was not ‘strikingly similar’18, but also because it did not explain the whole basis on which evidence of previous conduct might be admissible. A different, rather wider, approach was suggested by the House of Lords in R v P19 where Lord Mackay of Clashfern, in part relying on a statement in Hume,20 suggested that it was the ‘probative force’ of such evidence which allowed its admission, and ‘the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved’. Thus, in that case, evidence of incest given by both of the alleged victims was held to be admissible in relation to the other charge, despite the absence of striking similarities in the evidence regarding how the offence was committed. Lord Mackay observed that: the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence.21

16

17 18 19 20

21

R v Straffen [1952] 2 QB 911. Slade J (at 916) observed that ‘[a]bnormal propensity is a means of identification’. Boardman (n 13) at 462. See Bridge L J in R v Novac (1977) 65 Cr App Rep 107 at 112. R v P [1991] 3 All ER 337 at 346. The statement in Hume on Crimes, 3rd edn (1844: Bell and Bradfute) vol II, at 384 that ‘the aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponing to the same facts’. R v P (n 19) at 348.



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He continued that while ‘striking similarity’ in the manner in which the crime is committed might be one way of establishing the ‘necessary relationship’ between the evidence, this relationship could take many forms, so that a relationship in ‘time and circumstances’, such as existed in the case in question, could also be important. This concentration on probativity then allowed the House of Lords in R v Z22 to take the view that in appropriate circumstances evidence of previous acquittals may be admissible. Their Lordships held that where the defendant was facing a charge of rape, evidence of previous acquittals where he had advanced a similar defence could be relevant. (3) Similar fact and Moorov Of course the analysis in the previous paragraph is only of historical interest as an account of English law, since s 99(1) of the Criminal Justice Act 2003 abolished the common law rules on the admissibility of bad character, replacing them with a detailed statutory scheme. Its continuing relevance therefore relates to the potential lessons it offers for Scots law. Lord Mackay chose to cite Hume in support of his approach in R v P, so is it fair to say that Scots and English law in this area has developed along similar lines? The answer is that there are significant divergences. Any Scots lawyer seeing a reference to ‘striking similarity’ would be bound to think of the celebrated Moorov doctrine,23 whereby the testimony of one witness to an alleged criminal act can provide mutual corroboration where another individual witness testifies to an alleged criminal act of a similar kind. The doctrine was thus expressed by Lord Justice General Clyde: Before the evidence of a single credible witness to separate acts can provide material for mutual corroboration, the connexion between the separate acts (indicated by their external relation in time, character, or circumstance) must be such as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign, or adventure, which lies beyond or ­behind – b ­ ut is related ­to – ­the separate acts.24

Indeed, it might be thought that the Moorov doctrine in some ways developed along similar lines to the doctrine of ‘similar fact’ in England25 in that, 22

23 24 25

R v Z [2000] 2 AC 483, see especially Lord Hobhouse at 509B. Certain other Commonwealth jurisdictions insist that an acquittal must mean that an accused is treated as entirely innocent of the offence, so cannot be raised in subsequent proceedings; see Lamer J in R v Grdic [1985] 1 SCR 810 at 825. However, the House of Lords was adamant that, although the rule against double jeopardy prevented an accused being tried for the same offence more than once, it did not preclude evidence of those earlier charges being led if it was practically relevant to the question of the accused’s guilt of the offence in question. See Lord Hope in R v Z at 487. After Moorov v HM Advocate 1930 JC 68. Ibid at 73. Indeed, in DPP v Kilbourne [1977] AC 729 Lord Hailsham (at 740) clearly believed that Scots

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while striking similarity in the way offences are carried out would indeed invite the application of the doctrine, such striking similarity is not now necessary if offences are related in other ways, as where for example members of the same family allege that the accused committed the same sort of crime against them.26 Thus in cases involving sexual misbehaviour the doctrine has been applied in relation to quite different offences. In MR v HMA, a bench of five judges stated: the law has moved on since 1930 in an attempt to keep pace with modern societal understanding of sexual and other conduct and, in particular, what are perceived to be characteristic links between the perpetration of different types of sexual and physical abuse . . . The court today will not proceed upon outdated perceptions . . . but upon its own developing knowledge of sexual and other behaviour and how one type of illegal activity can often be intimately connected with other types of different, but still illegal, acts.27

The original rigour of the doctrine has also been weakened in other ways. The relationship of the alleged acts in time was for a long time a very important aspect of the doctrine.28 However, as the doctrine has developed, the idea that a single course of criminal conduct must be established, with fairly tight time intervals being crucial to that task, has declined in importance. In Russell v HMA, a gap of over three years between two alleged instances of lewd and libidinous conduct towards two young girls was fatal, the court observing that while ‘no hard and fast rule can be laid down as far as time is concerned . . . it is significant that we were referred to no case where there was an interval of three years or more between the similar offences’.29 Yet that three-­year barrier was breached in McCrae v HMA30 and the extent of the potential period between offences has been growing ever since,31 so that in K v HMA32 a thirteen-­year gap did not prevent the application of the doctrine. It may be thought then that Scots law is tending more and more towards the view that the fact that two or more individuals separately accuse an individual of the same broad category of crime is inherently probative, so that the approach taken by the House of Lords in R v P might strike a chord with Scots lawyers. The limitation of the Moorov doctrine, however, is that it can only operate in

26

27 28 29 30 31 32

and English law were the same in this area, and relied heavily on the Scottish authorities, especially Moorov. As in McCrae v HM Advocate 2005 1 JC 182. There are echoes of this sort of approach in Boardman (n 13) in that, in the absence of striking similarity, evidence can be probative simply because a number of individuals make similar allegations against the ­accused – ­see Lord Hailsham at 457. MR v HM Advocate 2013 HCJAC 8 at para 17. See Lord Justice Clerk Aitchison in Ogg v HM Advocate, 1938 JC 152 at 158. Russell v HM Advocate 1990 SCCR 18. 2005 1 JC 182. See Pringle v Service 2011 SCCR 97. K v HM Advocate 2011 SCCR 495.



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relation to evidence of actual crimes with which the accused is then charged. No matter how striking the similarity, if the accused has actually admitted the behaviour in question in relation to one of the charges, it cannot be led as evidence in relation to a similar charge.33 The same is true if the accused has previously been acquitted or even convicted of a similar offence.34 Thus a case like Straffen could not be repeated in Scotland. Equally, a prosecutor cannot bring forward evidence of very similar behaviour committed outside Scotland,35 unless it is part of a continuing crime36 or part of a course of conduct.37 As to whether this is an entirely sensible position for Scots law to take, Duff38 and Raitt39 have separately argued that the fact such evidence was regarded as providing the vital function of affording mutual corroboration where no other corroboration was available had led Scots law to the entirely illogical conclusion that this type of ‘similar fact’ evidence is only admissible where it is required to afford mutual corroboration. ‘Similar fact’ evidence and the Moorov doctrine might therefore be regarded as ripe for reform. Yet how might they be reformed? This question is examined in the next section. B. REFORMING ‘SIMILAR FACT’ EVIDENCE (1) The Scottish Law Commission’s proposals A blueprint for reform already exists in the form of the report by the Scottish Law Commission (SLC) on ‘similar fact’ evidence and Moorov.40 The background to this lies in a notorious case involving an individual who 33 34

35

36

37

38

39 40

See Lord Justice Clerk Thomson in Walsh v HM Advocate 1961 JC 51 at 55. And since Moorov is based on the idea of mutual corroboration, it is also not possible for an accused facing two charges where Moorov is to provide corroboration to be convicted of one but not the ­other – ­see Lord Justice-­Clerk Cullen in Reid v HM Advocate 1999 SCCR 769 at 773B–E. See M v HM Advocate 2011 SLT 1047 at para 12. However, such evidence might be admissible as ‘similar fact’ evidence, if it cast light on motive or i­ntention – s­ ee Lord McLaren in Gallagher v Paton 1909 JC 50 at 55. See Dumoulin v HM Advocate 1974 SLT (Notes) 42. A continuing crime relates not merely to an ongoing criminal scheme carried out in more than one jurisdiction, such as featured in the aforementioned cases, but to different instances of similar types of criminal conduct committed against the same complainer both within and outwith S ­ cotland – s­ ee Lauchlan v HM Advocate [2014] HCJAC 62. This is arguably another example of how the doctrine has been liberalised in that it was previously supposed that it was not possible to libel a separate crime committed outside Scotland under Moorov – see M v HM Advocate 2011 SLT 1047 at para 12 This is also illustrated by Lauchlan where evidence of sexual assaults in Polmont and Blackpool were held capable of corroborating evidence of a sexual assault committed against a different complainer in Spain. See also Webster v HM Advocate [2013] HCJAC 161. P Duff, ‘Towards a unified theory of “similar facts evidence” in Scots law: relevance, fairness and the reinterpretation of Moorov’ (2002) Judicial Review 143. F E Raitt, ‘The evidential use of “similar facts” in Scots criminal law’ (2003) 7 Edin LR 174. SLC, Report on Similar Fact Evidence and the Moorov Doctrine (Scot Law Com No 229, 2012).

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was alleged to have raped and murdered two young women some twenty years earlier. He admitted to having sex with the women, but insisted that it had been consensual, and denied having behaved violently towards them. He was acquitted when a plea of no case to answer was upheld, on the basis that there was insufficient evidence that he had raped or murdered the victims. Following the trial, it then emerged that he was a convicted murderer and serial sex offender, matters which the prosecution was unable to lay before the court. Considerable concern regarding this outcome and what it suggested regarding the state of Scots law was then expressed in both the media and the Scottish Parliament, and within weeks of the verdict, on 20 November 2007, the Justice Secretary invited the Scottish Law Commission to consider, inter alia, ‘the law relating to the admissibility of evidence of bad character or previous convictions, and of similar fact evidence’. A discussion paper41 and the aforementioned report ensued. In the report the SLC recommends the sweeping away of the Moorov and similar doctrines and their replacement with ‘a coherent restatement’ of the law on the ‘admissibility of evidence as to bad character, similar fact evidence and previous convictions’.42 This is intended to be achieved via the enactment of legislation based on a draft Criminal Evidence (Scotland) Bill, which forms an appendix to the report. Essentially, the SLC favours the admission of evidence on the basis that it is relevant. Evidence would be relevant if it tended ‘to prove or disprove a fact’, which is either ‘at issue in the proceedings, or otherwise of consequence in the context of the proceedings as a whole’.43 Relevant evidence would only be inadmissible if it has been obtained unfairly, or is inadmissible hearsay, or is protected by legal professional privilege, or is otherwise excluded by an enactment.44 As regards the sort of evidence which might have previously fallen within Moorov, s 4 of the Bill indicates that evidence of the accused having committed an offence of the same or similar nature45 to that with which s/he is currently charged is relevant to whether the accused committed the latter offence, irrespective of whether the similarities between the offences ‘are 41

42 43 44 45

SLC, Discussion Paper on Similar Fact Evidence and the Moorov Doctrine (Scot Law Com DP No 145, 2010). SLC, Report on Similar Fact Evidence (n 40) para 1.9. Ibid Appendix s 1(1). Ibid s 1(2). Ibid s 11(1) indicates that offences are the same or of a similar nature if both are: offences of dishonesty, sexual offences, violent offences, offences of disorder, offences involving damage to property, offences against the course of justice, offences involving drug trafficking or the misuse of drugs, road traffic offences. Section 11(2) then continues that it is possible for offences to be the same or of a similar nature on some other basis, for example where the offences involved very similar conduct, but were labelled in different ways. Equally, s 11(3) makes it clear that offences may straddle the categories, so that an offence which is both sexual and violent is of a similar nature to a sexual offence or indeed an offence involving violence.



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such as to indicate a course of conduct on the part of the accused’. However, it is not necessary that the evidence of previous misconduct should actually show that the accused committed a criminal offence. Section 5, in amplifying when such evidence is relevant, indicates that it is immaterial ‘whether that conduct resulted in, or could have resulted in, the accused’s being charged with an offence’. If the accused was charged with an offence as a result of that conduct, it is similarly immaterial whether s/he was acquitted or convicted. Nor does it matter how widely that conduct and the offence with which the accused is currently charged were separated in time or differed in seriousness or effect. Equally, it does not matter whether that conduct occurred before or after the offence with which the accused is currently charged. Section 10 then indicates that any reference to the accused having committed an offence, or engaged in a form of conduct, embraces committing an offence, or engaging in conduct, furth of Scotland. It can be seen from the above that the aim is to be rid of the restrictions which are currently part of the Moorov doctrine. If it is intended to lead evidence of the kind described, then the prosecutor must, by virtue of s 6, serve notice on the accused. The accused may then under s 7 object to the leading of the evidence. If it is evidence of the accused having committed an offence, objection may be taken on the grounds that the offence is not of the same or similar nature to that with which s/he is currently charged. If it is evidence of the accused having engaged in conduct which did not result in her/him being convicted of an offence, objection may be taken on the grounds that, taking into account the likely probative value of the evidence, to admit it would either introduce unjustifiable complexity, or could be expected to require the expenditure of a disproportionate amount of time. (In other words, while the evidence is ‘relevant’ in the broadest sense, it is insufficiently relevant to justify the court spending time on it. A court may, in terms of s 8, also come to such a view of its own accord without objection being taken by the defence.) Where objection is taken on these grounds, the prosecutor has the burden of persuading the court that it should not be entertained. Finally, in solemn proceedings objection may be taken on the ground that the offence of which the accused was convicted or the conduct in which he was alleged to have engaged is much more serious than the offence with which s/he is currently charged, and thus to admit it could be expected unduly to influence the deliberations of a jury. Where objection is taken on this ground, the objector has the burden of persuading the court that it should be entertained. The sort of situation anticipated by this last ground is where, for example, it is thought that the jury would set too much store by the fact that the accused facing trial on a sexual assault charge had been convicted of a brutal rape some years earlier. However, it would be for the accused to persuade the trial judge that this is the case. If he failed to do so, or failed to make the objection in the first place, the evidence would go before the jury. Moreover, objection may only be taken on the ground that

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the offence or the conduct is ‘much more serious’ than the offence with which the accused is currently charged. If it is simply rather more serious, or just as serious, or less serious, then it will go before the jury, no matter what the circumstances of the previous offence, and no matter how far in the past it was committed. (2) The use of character evidence under the SLC Bill The SLC Bill clearly takes the view that the fact that the accused has engaged in similar misconduct to that encompassed in the charge s/he is facing is invariably relevant, no matter when it occurred, and that save in exceptional circumstances it should go before the court, including in jury trials. What use would the SLC allow the court to make of it? Section 2 would allow such evidence to be corroborative. In this, the SLC sought to address what is regarded as a particularly unsatisfactory aspect of the law relating to the evidence of previous convictions and bad character. Section 266(4) of the Criminal Procedure (Scotland) Act 1995 does not allow an accused who gives evidence on his own behalf to be cross-­examined on his previous convictions or bad character, unless inter alia, s/he has given evidence against a co-­accused, or has made character an issue by seeking to establish her/his own good character, or by attacking the character of a prosecution witness or the complainer. Where the accused has become subject to be cross-­examination on his previous convictions or bad character, Lord Justice Clerk Ross in Leggate v HMA explained the use to which that evidence could be put: In cases where cross-­examination of an accused person on his previous convictions or character is permitted the reason is that these may have a bearing on his credibility. Such evidence is not, however, relevant to his guilt of the offence charged in the indictment.46

In other words, the fact-­finder may regard evidence of bad character or previous convictions (even for offences involving no element of dishonesty) as undermining the credibility of the accused as a witness, but may not consider whether such evidence makes it more likely that s/he is guilty. Further, section s 270 of the Criminal Procedure (Scotland) Act 1995 allows the court to permit the prosecutor to lead evidence of the accused’s previous convictions or bad character, where the defence has sought to establish the accused’s good character or impugn the character of prosecution witnesses or the complainer. Somewhat later s 275A was introduced to the Act. This states that if in a sexual offence case a court has granted an application by the accused to admit evidence or allow questioning which bears on the character 46

1988 JC 127 at 146. See to similar effect R v McLeod [1994] 1 WLR 1500; and Barwick CJ in Donnini v R (1972) 128 CLR 114 at 123.



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of the complainer, the prosecutor shall place before the court any previous conviction of the accused of an offence of a sexual nature. This can then be taken into consideration by the court, unless the accused objects. The question soon arose whether such evidence could only be taken into account in assessing the accused’s credibility. The matter was considered by the Privy Council in DS v HMA.47 It took the view that it made no sense to assume that the sole reason why such evidence is led is to reflect on the credibility of the accused. First, the provision applies whether or not the accused t­ estifies – a­ point which can also be made in relation to s 270. Secondly, the type of conviction which it demands that the prosecutor lays in front of the court is any conviction in respect of a sexual offence. If the accused has been convicted of crimes bearing directly on her/his honesty and credibility, such as perjury or fraud, then the prosecutor may seek permission to lead this evidence under s 270, but is not obliged to lay such convictions before the court. Thus Lord Hope opined: The proposition that evidence of previous convictions has a bearing only on the accused’s credibility seems to me to understate the use that may legitimately be made of it . . . [S]ection 275A must be approached on the basis that the main reason why previous relevant convictions are to be disclosed or taken into consideration is because they may be regarded as relevant to the accused’s propensity to commit other sexual crimes.48

Thus a judge or jury may take such convictions into account in deciding on the accused’s guilt, but could they have corroborative effect? The Privy Council thought not, as the convictions were not evidence that he had committed the instant crime.49 Such a conclusion perhaps accords with the internal logic of the current corroboration rule, which takes the view that, apart from the Moorov situation, evidence of past misdeeds cannot be corroborative. However, that does not mean that this is a sensible position for the law to take. Once it becomes possible, as under Moorov, for evidence of the commission of Crime A to be treated as evidence of guilt of Crime B, it is difficult to hold a consistent line. Indeed, evidence of proven past misdeeds is arguably stronger evidence than that allowed under Moorov, which inevitably will consist of alleged misconduct. There is surely merit in the view of the SLC that it defies common sense to say that such evidence can be admitted and taken into account in determining the accused’s guilt,50 but cannot be 47 48 49 50

2007 SCCR 222. Ibid paras [41]–[42]. Ibid Lord Rodger para [86]. The SLC believes that evidence of the accused’s past misconduct should invariably be available to support a finding of guilt where it is relevant. It is probably a welcome step to avoid the situation whereby a jury is acquainted with the accused’s bad character, but informed that it can only consider whether this makes the accused less believable as a witness and the one thing they must not do is consider whether this makes the accused more likely to be

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corroborative.51 Certainly, if Scotland were to abandon a strict corroboration rule in favour of admitting any evidence which supported the prosecution case, such evidence should surely be available. Moreover, there would need to be some consideration of the basis on which such evidence might be admitted following the demise of the corroboration requirement. The SLC notes that the points it makes ‘would apply even if corroboration were no longer necessary but merely desirable’,52 and its suggested regime certainly offers a potential way forward. Nonetheless, it must be questioned whether it is the correct way forward. Doctrines such as Moorov and ‘similar fact’ evidence have evolved because evidence of other misbehaviour on the accused’s part can, in a variety of ways, be very telling evidence pointing towards an accused’s guilt of the charge currently facing her/him. However, few systems admit evidence designed to indicate that the accused is likely to be guilty of the offence with which s/he is charged simply because s/he is a bad person. The statement of Lord Chancellor Herschell in Makin,53 to the effect that the prosecution may not lead evidence that the accused has committed other criminal acts in order to suggest that he is a person likely by reason of his criminal character to have committed the offence for which he is being tried, is the traditional position taken by all common law systems, and was said by Viscount Sankey to be ‘one of the most deeply rooted and jealously guarded principles of our criminal law’.54 Admittedly, the SLC would not propose to admit evidence simply on the basis that it shows that the accused is a bad person. For example, it would not allow the prosecution to invite a jury to conclude that an accused is more likely to have committed fraud because of a previous conviction for assault. Yet the SLC would be happy, subject to fairly modest restrictions, to admit evidence designed to indicate that the accused is likely to be guilty of the offence with which s/he is charged simply because s/he is a person who is bad in a particular way. For example, where the accused is facing a charge of rape, the prosecution could show that thirty years earlier he was convicted of using lewd, libidinous and indecent practices towards a child. Equally, if the accused is charged with bank robbery, the prosecution could freely lay his many convictions for shoplifting before the jury.

51 52 53 54

guilty. Judges around the world have doubted whether jurors understand or heed such an ­instruction – s­ ee Lord Philips CJ in R v Campbell [2007] EWCA Crim 1472 at para [20], a view supported by extensive empirical evidence, for example, J Ogloff et al, The Jury Report (Australian Institute of Judicial Administration, 2006) at 34–35. SLC, Report on Similar Fact Evidence (n 40) paras 5.57–5.60. Ibid para 1.25. Makin (n 4) at 65. In Maxwell v DPP [1935] AC 309 at 317.

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(3) Is the SLC correct? Some would agree with the SLC that bringing forward such evidence is entirely appropriate,55 most recently and extensively Redmayne in an important monograph on the subject.56 He and several other commentators have suggested that statistics show that someone who has committed a crime is very much more likely than the general population to commit another crime,57 especially another crime of a similar type,58 and the tendency to re-­ offend becomes more pronounced the higher the number of convictions an offender has.59 Such views have not gone unchallenged,60 with a number of commentators suggesting that behaviour is much more influenced by situation rather than personality,61 and even Redmayne accepts that (with the possible exception of sex offenders)62 older convictions are poor predictors of a propensity to re-­offend.63 Yet even supposing his argument to be broadly correct, and leaving aside the potential distorting effect of the fact that previous offenders are much more likely to be investigated, identified, prosecuted and convicted,64 it is difficult to see that previous convictions are particularly strong evidence of an accused’s guilt of a specific charge.65 Redmayne argues that admitting evidence of character is no different from admitting evidence

55

56

57 58 59 60

61

62

63 64

65

Some systems around the world agree that character evidence is relevant and lay it before the court at the outset of the p ­ roceedings – s­ ee J Spencer, Evidence of Bad Character (2006: Hart) para 1.8. M Redmayne, Character in the Criminal Trial (2015: Oxford University Press). Although I shall be disagreeing with his conclusions, Redmayne’s case is impressively argued, and it is difficult to do it justice in an essay of this length. Considerations of space prevent me listing the extensive literature he cites in support of his views, but equally inhibit me from citing more than a fraction of the material which might rebut his views. Ibid at 30. Ibid at 22. Ibid at 17. See M Mendez, ‘The law of evidence and the search for a stable personality’ (1996) 45 Emory LJ 221. But see Redmayne, Character (n 56) at 23 on such work. See H Bowers, ‘Situationism in psychology’ (1973) 80 Psychological Review 307. But S Epstein, ‘The stability of behaviour’ (1979) 59 Journal of Personality and Social Psychology 202, argues that personality remains a significant predictor of behaviour. Redmayne, Character (n 56) at 155. Indeed he records that R Hanson et al, ‘Long-­term recidivism of child molesters’ (1993) 61 Journal of Consulting and Clinical Psychology 646 at 650, observe that those who commit child sex offences pose ‘a significant risk of reoffending’ throughout their lives, a finding confirmed by other North American studies. Redmayne, Character (n 56) at 26. See M Maguire and C Norris, The Conduct and Supervision of Criminal Investigations, Research Study 5 for the Royal Commission on Criminal Justice (1992) at 8. Even Redmayne, Character (n 56) at 24, acknowledges this tendency. Nonetheless he argues (at 25) that this is appropriate and defensible, as the suspects rounded up tend to be known recidivists. This is especially true when a significant period of time separates the crime(s) committed and the crime currently being tried – s­ ee K Soothill and B Francis, ‘When do ex-­offenders become like non-­offenders?’ (2009) 48 Howard Journal of Criminal Justice 373.

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of motive66 or indeed any real evidence, including DNA evidence,67 since all such evidence simply makes it more likely that the accused committed the offence. However, the difference is surely that the other types of evidence to which he refers directly indicate that the individual accused is more likely to be guilty of that individual crime, whereas character evidence suggests that the accused is more likely than others to commit crimes or particular sorts of crimes. As Lord Sumner stated many years ago in Thompson v R, ‘(t)here is all the difference in the world between evidence proving that the accused is a bad man and evidence proving that he is the man’.68 There is also the question of whether the probative value of such evidence is likely to be considerably outweighed by the prejudicial effect it may have on the minds of a jury.69 Although the research is not entirely consistent in its findings,70 there is plenty of evidence to suggest that jurors71 exposed to bad character evidence, and especially evidence of certain types of offence,72 tend to be much more inclined to believe the accused is guilty73 and/or less concerned about convicting an innocent person, since the accused has ceased to be innocent in their eyes.74 Redmayne argues that this is not really a problem, since it is appropriate for the jury to assume 66 67 68 69

70

71

72

73

74

Redmayne, Character (n 56) at 16–17. Ibid at 37. [1918] AC 221 at 234. There is indeed a line of authority in England to the effect that this is the true basis of the exclusionary r­ ule – s­ ee Lord Simon in DPP v Kilbourne [1977] AC 729 at 757. While this has never been the basis of exclusion in Scotland, there are indications that the Scottish courts are aware of the possibility of such evidence having an unduly prejudicial i­mpact – s­ ee Lord Justice-­General Hope in Nelson v HM Advocate 1994 SLT 389 at 395–396. A study of actual juries in New Zealand in W Young et al, Jury Trials in New Zealand: A Survey of the Jurors (1999: unpublished) at 163–165 suggests that juries do not ascribe improper weight to evidence of previous convictions. There has also been an empirical study of the effect of admissibility of propensity-­based bad character evidence under the Criminal Justice Act 2003 – Research on the Impact of Bad Character Provisions on the Courts (2009: Ministry of Justice Research Series 5/09). This suggests that such evidence has minimal impact on jury decisions, but the study is of limited value, being based on the views of judges and practitioners rather than juries. And perhaps other fact-­finders; see S Lloyd-­Bostock, ‘The effect on lay magistrates on hearing that a defendant is of good character, being left to speculate, or hearing that he has a previous conviction’ (2006) Crim LR 189. But compare M Damaska, ‘Propensity evidence in continental legal systems’ (1994) 70 Chicago-­Kent LR 55. Thus the study recorded in Appendix D to the Law Commission’s Consultation Paper (1996, No 141) on Evidence in Criminal Proceedings: Previous Misconduct of a Defendant suggests that evidence of previous indecency towards children is particularly likely to influence the minds of a jury. See A Sealy and W Cornish, ‘Jurors and their verdicts’ (1973) 36 MLR 496; J Hunt and T Budesheim, ‘How jurors use and misuse character evidence’ (2004) 89 J Applied Psychology 347. See C Williams and S Daraganich, ‘Admissibility of propensity evidence in paedophilia cases’ (2006) 11 Deakin LR 1.



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that a person of bad character is more likely to be guilty.75 However, legislatures across the world tend not to agree with him. He later points out that research has shown that juries come to all sorts of dubious conclusions about character based on appearance, demeanour, race and so on, but we continue to trust them to make judgments.76 This is no doubt true, but the fact that prejudice may unavoidably affect the thinking of juries is hardly an argument for exposing them to a further obvious and avoidable source of prejudice. Where does the SLC stand in this debate? Almost entirely apart from it, might be the best description. There is practically no reference in its report to the relevant literature. As far as the SLC is concerned, character evidence is ‘relevant’ and should prima facie be admissible. As to whether the jury might attribute undue weight to evidence of bad character, the matter tends to be obfuscated by reference to largely irrelevant considerations77 such as the fact that there is ‘no widespread public dissatisfaction with the jury system’.78 The only empirical reference is ‘anecdotal evidence, from a survey of judges, that only in a very few cases did they consider that the jury had convicted someone whom they themselves would not have convicted’.79 The SLC therefore stuck to its conclusion, expressed in its earlier discussion paper,80 that ‘(t)here is no reason to suppose that a jury, properly directed, would not be able to accord a proper significance to evidence of relevant previous convictions’. It is not clear how the above view relates to the issue under consideration. What does the fact that judges would usually have come to the same view as the jury indicate about how juries would react to evidence of bad character, especially since it occurs within the context of a system in which such evidence is rarely admissible? Moreover, what does the assumption that juries generally follow directions tell us about that matter? How would judges direct the jury in such a context? Given that the SLC is saying that such evidence is relevant, presumably juries would be directed that they may and should take it into account? Even leaving aside such considerations, the SLC’s proposals for such a radical change seem to have a basis of gossamer flimsiness. C. ALTERNATIVE MODELS What then might be the alternative to the model proposed by the SLC? A number of possible alternatives can be found in the SLC report itself, 75 76 77 78 79

80

Redmayne, Character (n 56) at 34. Ibid at 61. SLC, Report on Similar Fact Evidence (n 40) paras 3.37–3.43. Ibid para 3.39. Ibid para 3.35. The study in question is Lundmark, ‘Split verdicts in Scotland: a judicial survey’ (2010) 14 Edin LR 225. SLC, Discussion Paper on Similar Fact Evidence (n 41) at 133.

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in that chapter 4 lays out how certain Commonwealth jurisdictions deal with ‘similar fact’ evidence, albeit that this survey appears hardly to have informed its discussion of the issue. (1) New Zealand Section 49 of the New Zealand Evidence Act 2006 makes propensity evidence81 generally admissible, but importantly, s 43(1) only permits such evidence to be led if its probative value in relation to an issue in the proceedings outweighs the risk of it having an unfairly prejudicial effect on the defendant.82 The remaining subsections of s 43 then provide detailed guidance for a judge who has to consider whether the test set out in s 43(1) is met. In assessing the probative value of propensity evidence, a judge may take into account such matters as the frequency of the acts in question, the connection in time and extent of similarity between these acts and the alleged offence, the number of persons making similar allegations against the defendant, whether such allegations may be the result of collusion or suggestibility and the extent to which the acts which constitute the alleged offence are unusual. When assessing the prejudicial effect of evidence, the judge must consider whether it is likely to unfairly predispose the fact-­ finder against the defendant and whether the fact-­finder will tend to give it disproportionate weight. A further safeguard exists in the form of s 7 which demands that evidence be relevant if it is to be admitted in the first place.83 The relevant provisions largely give effect to a discussion paper and subsequent report by the New Zealand Law Commission (NZLC) on bad character and previous convictions.84 The latter notes that the intention of the draft legislation had simply been to restate the common law (following DPP v P) in statutory terms.85 However, in R v Healy,86 the New Zealand Court of Appeal held that the common law no longer applied, with the provisions of the Act falling to be regarded as a fresh start. A later report on a review of the Evidence Act 2006 by the NZLC87 observed that a line of case law had already emerged which avoided the restrictions imposed by s 43 by labelling what is clearly propensity evidence as part of the narrative 81 82

83 84

85 86 87

As defined in s 40. Section 8 is in similar terms, but refers to a prejudicial effect on the proceedings rather than the defendant. Sections 37–38 deal separately with veracity. New Zealand Law Commission (NZLC), Discussion Paper on Evidence Law: Character and Credibility (1997, No 26) and Report on Disclosure to the Court of a Defendant’s Previous Convictions, Similar Offending and Bad Character (2008, No 103). Ibid para 3.61. [2007] NZCA 451 at para [54]. New Zealand Law Commission (NZLC), Review of the Evidence Act 2006 (2013, No 127) at 258–260.

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of the facts of the case88 or as simply being relevant to the question of guilt.89 Nevertheless, the review added90 that no miscarriage of justice seemed to have arisen as a result, and so made no recommendation for revision of the legislation. (2) Australia In Australia, s 97(1) of the Evidence Act 1995 renders admissible ‘[e]vidence of the character, reputation or conduct of a person or a tendency that a person has or had’, while s 98(1) renders admissible ‘[e]vidence that two or more related events occurred’. The former category of evidence is known as tendency (propensity) evidence and the latter as coincidence evidence. However, neither category of evidence can be admitted unless ‘the court thinks that the evidence would . . . have significant probative value’.91 Moreover, s 101(2)92 provides: Tendency evidence about a defendant or coincidence evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

Nonetheless, the restriction imposed by s 101(2) does not apply if evidence of past misconduct is used for purposes other than showing tendency or coincidence.93 So such evidence may freely be used if it is required to cast light on the state of mind of an alleged victim,94 or to explain key facts in the case,95 or to illuminate the nature of the relationship between the defendant and the alleged victim,96 or if it is simply important circumstantial evidence,97 although the Federal Court has warned that ‘merely to label evidence of previous conduct as circumstantial evidence does not demonstrate that it is tendered for a purpose other than to prove that a person had a tendency to act in a particular way’.98 The legislation has generated a wealth of case law,99 and in particular there has been judicial debate as to what actually amounts to tendency.100 Yet an Australian Law Reform Commission Report insists 88 89 90 91 92 93 94 95 96 97 98 99 100

See R v Tainu [2008] NZCA 119. See R v Gooch [2009] NZCA 163 para [8]. NZLC, Review (n 87) at 261. Evidence Act 1995 ss 97(1)(b) and 98(1)(b). See also the explanation of this test by McHugh J in Pfennig v R (1995) 192 CLR 461 at 483. See R v ATM [2000] NSWCA 475 para [76]. See R v Fordham (1997) 98 A Crim R 359 at 369. See R v Adam (1999) 106 A Crim R 510. See Gipp v R (1998) CLR 106. See Cornwell v Riley [1999] FCA 727. In Jacara v Perpetual Trustees WA Ltd [2000] 106 FCR 51 at 65 See J Gans and A Palmer, Australian Principles of Evidence, 2nd edn (2004: Routledge) ch 13. See R v Cakovski (2004) 149 A Crim R 21, comparing the views of Hodgson JA paras [36]–[37] and Hulme J para [56], with those of Hidden J para [70].

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that this need not be a problem, as even if evidence is wrongly described as not being tendency evidence, its admissibility can be controlled by s 135 which allows a court to refuse to admit any sort of evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.101 (3) The USA Outside of the Commonwealth the US Federal Rules of Evidence 1975 generally outlaw character evidence102 via Rule 404(a), although evidence of other crimes, wrongs or acts may be admitted under Rule 404(b) for such purposes as to prove motive or intent, or to exclude the possibility of accident.103 Additionally, Rules 413 and 414, introduced in 1994, allow evidence of similar crimes or even allegations of similar crimes in sexual assault and child molestation cases. These rules are based partly on the view that such crimes are inherently difficult to prove,104 and partly on the idea that patterns of past behaviour are more likely to be repeated in relation to crimes of that nature.105 However, these provisions were highly controversial when they were introduced,106 and experience of their operation has not rendered them less so.107 Admittedly, there is general discretion under Rule 403 to exclude any evidence, if its probative value is substantially outweighed by the danger of unfair prejudice. Yet the fact that such evidence is made prima facie admissible by these rules seems to have made courts reluctant to exclude evidence of propensity in such cases.108 Other legislators have been unpersuaded of the merits of Rules 413 and 414,109 and it is submitted that, even if other aspects of the Federal Rules offer some attraction, the approach of Rules 413 and 414 should be rejected, especially as propensity evidence in such cases has been shown to make juries significantly more likely to convict.110

101 102 103 104 105 106 107

108

109 110

Australian Law Commission, Report: The Uniform Evidence Law (2006, No 102) para 11.9. As defined by Rule 405. See T Leach, ‘“Propensity” evidence and FRE 404’ (2001) 68 Tennessee LR 825. See D Leonard and V Gold, Evidence: A Structured Approach, 2nd edn (2008: Aspen) at 339. See J Spencer and R Flin, The Evidence of Children, 2nd edn (1993: Blackstone) at 222–229. See D Piedeschi, ‘Federal Rule of Evidence 413’ (1995) 107 University of Pittsburgh LR 107. See F King, ‘Rules of Evidence 413 and 414: where do we go from here?’ (2000) Army Lawyer 4. See A Orenstein, ‘Deviance, due process and the false promise of Federal Rule of Evidence 403’ (2005) 90 Cornell LR 1487. See NZLC, Discussion Paper (n 84) para 241. The English Law Commission’s Report on Evidence of Bad Character in Criminal Proceedings (2001, No 273) para 6.61, states that ‘since sexual misconduct tends to be more prejudicial than other misconduct the arguments for a general exclusionary rule seem if anything to be stronger in this case’ (emphasis in original).

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(4) England There is of course an obvious model much closer to home to be considered, in the shape of the Criminal Justice Act 2003 in England. Section 99(1) of that Act abolished the common law rules on the admissibility of bad character, replacing them with a detailed statutory scheme in the form of ss 100 to 112. The key provision as far as a criminal defendant is concerned is s 101(1). This indicates that evidence of the defendant’s bad character111 is admissible only under certain conditions. For present purposes the key condition is that it is relevant to an important matter112 in issue between the defendant and the prosecution.113 Some explanation of this concept is provided by s 103 which indicates that such matters include the question whether the defendant has a propensity to commit offences of the kind with which he is charged (except where having such a propensity makes it no more likely that he is guilty of the offence),114 and the question whether he has a propensity to be untruthful (except where it is not suggested that his case is untruthful in any respect).115 His propensity to commit such offences may be established inter alia by evidence that he has been convicted of an offence of the same description116 or category117 as the one with which he is charged.118 However, that will not be so if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust so to establish the propensity in his case.119 Moreover, s 101(3) states that the court must not admit evidence under subsection (1)(d) if, on an application by the defendant to exclude it, the court concludes that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it should not be admitted. Section 101(4) then continues that in deciding such an application the court must have 111

112 113 114 115 116

117

118

119

In terms of s 98, evidence of a person’s bad character means evidence of, or of a disposition towards, misconduct on his part, other than evidence which has to do with the alleged offence. Section 112(1) then indicates that misconduct means the commission of an offence or other reprehensible behaviour. The court in R v Renda [2005] EWCA Crim 2826 agreed that ‘the word “reprehensible” carries with it some element of culpability or blameworthiness’. A matter of substantial importance in the context of the case as a ­whole – s­  112(1). Section 101(1)(d). See s 103(1)(a). See s 103(1)(b). Offences are of the same description if the statement of the offence in the indictment would be in the same t­ erms – ­see s 103(4)(a). Offences are of the same category if they belong to the same category of offences prescribed by order made by the Secretary of S ­ tate – ­see s 103(4)(b). See also the Criminal Justice Act 2003 (Categories of Offences) Order 2004 (SI 2004/3346). See s 103(2). This would include situations where he is convicted of an offence of the same description or category outside of England and Wales, provided the conduct concerned would constitute an offence in England and ­Wales – ­see s 103(7)–(8). See s 103(3).

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regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged. This set of provisions was the subject of authoritative pronouncement by the Court of Appeal in R v Hanson.120 The court noted, inter alia, that there was no minimum number of events necessary to demonstrate propensity. A single previous conviction for an offence of the same description or category may show propensity where, for example, it shows a tendency to unusual behaviour (such as child sexual abuse), or where it has probative force in relation to the offence charged, for example by showing striking similarity. In considering the fairness of the proceedings, the judge may take into consideration the degree of similarity between the previous conviction and the offence charged and the respective gravity of the past and present offences: He or she must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are.121

Moreover, [o]ld convictions, with no special feature shared with the offence charged, are likely seriously to affect the fairness of proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity.122

D. CONCLUSION Do any of the above models offer a possible way ahead for Scotland? For the reasons rehearsed above, whether or not corroboration is retained as an essential requirement of the Scots law of evidence in the future, the distorting effect of the Moorov doctrine upon the operation of ‘similar fact’ evidence calls out for reform, reform which, given the current state of the law, can only be achieved through statute. If the approach recommended by the Scottish Law Commission is rejected, then any of the examples considered above might provide a blueprint for reform. Each of the statutory solutions has its strengths and weaknesses. The conceptual apparatus of the Australian system, while perfectly intelligible, is perhaps not sufficiently familiar to Scots lawyers to be enthusiastically endorsed, and might also be said to be insufficiently inclusive. The US approach is bedevilled by the inclusion of Rules 413 and 414, allowing evidence of past misconduct in precisely the types of cases where its admission is most fraught with danger. With the omission of those provisions, the US approach becomes beguilingly simple, perhaps overly so. It is in some ways quite similar to the New 120 121 122

R v Hanson [2005] 1 WLR 3169. Ibid para [10]. Ibid para [11].



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Zealand approach, albeit that the latter provides the judiciary with reasonably detailed guidelines to be followed in weighing probative value against potential prejudicial effect. Given that the New Zealand provision aimed to encapsulate the common law approach to similar fact as it was then understood, it might be a relatively comfortable fit. The English regime has already been penetratingly analysed by Stark,123 who considers the advantages of the 2003 Act’s approach in comparison with existing Scots law and the proposed SLC regime. He notes that the strengths of the 2003 Act include a definition of bad character, the treatment of the entire subject in fourteen sequential sections, the way in which the Act tends to focus the trial judge’s mind on why a piece of bad character evidence is being admitted, and the fact that bad character evidence may ultimately be excluded in the interests of fairness. The weaknesses include the fact that the fourteen sections are not a model of clarity, and the fact that some of the case law on the 2003 Act contains threads of contradictory opinion or betrays confusion. However, the former weakness is regarded as mainly a cosmetic problem, while Stark suggests that the Court of Appeal has largely managed to construct a workable practical model. It is true that the 2003 Act has developed a fairly elaborate scheme to deal with character evidence, but this scheme regulates the admission of character evidence as a whole, and not just ‘similar fact’ evidence. Arguably, its approach as regards propensity evidence is no more elaborate and indeed probably less elaborate than that taken by the New Zealand legislation, as well as representing a more decisive break from the common law. It might indeed be suggested that the 2003 Act more clearly identifies the questions which a judge must ask, avoiding any reference to weighing probative value against potential prejudicial effect. Redmayne notes that although the test was introduced by Lord Mackay in DPP v P, the judiciary seemed less than comfortable in employing it and generally avoided doing so.124 Its intelligibility was also criticised on more than one occasion by the Law Commission,125 while the Court of Appeal in R v T recognised the ‘intellectual difficulty in balancing the probative force of the evidence against the prejudice that its admission would engender’.126 Yet, as pointed out by McHugh J in the Australian case of Pfennig v R: The use of the term ‘outweigh’ suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no

123

124 125

126

F Stark, ‘Wiping the slate clean: reforming Scots law’s approach to evidence of the accused’s bad character’ (2013) 76 MLR 346. See also F Stark, ‘Bad character, bad answer’ (2012) 16 Edin LR 420. Redmayne, Character (n 56) at 134. (English) Law Commission, Consultation Paper on Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996, No 141) para 10.17 and Report on Evidence of Bad Character (n 110) 50. [2001] EWCA Crim 3014 para [72].

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standard of comparison. The probative value of evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial . . . [T]he prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit. In no sense does the probative value of evidence disclosing propensity, when admitted, outweigh its prejudicial effect. On the contrary, in many cases the probative value either creates or reinforces the prejudicial effect of the evidence . . . [E]vidence that discloses the criminal or discreditable propensity of the accused is admitted not because its probative value outweighs its prejudicial effect but because the interests of justice require its admission despite the risk, or in some cases the inevitability, that the fair trial of the charge will be prejudiced. If there is a real risk that the admission of such evidence may prejudice the fair trial . . ., the interests of justice require the trial judge to make a value judgment, not a mathematical calculation.127

Thus whether one asks if the probative value of evidence outweighs its prejudicial effect or if the admission of evidence would have such an adverse effect on the fairness of the proceedings that it should not be admitted, as under the 2003 Act, a judge is always required to make a value judgment. This of course means that under such systems and indeed all the systems considered as possible legislative models in this chapter, there is considerable scope for judicial discretion, and thus for cases to be decided in such a way that one decision is difficult to reconcile with another. This can be contrasted with the scheme proposed by the Scottish Law Commission, which while not entirely excluding judicial discretion, certainly leaves less scope for its exercise than the alternatives considered. Certain commentators suggest that basing judgments on key issues upon discretion rather than rules is to be deplored and may even be inimical to the rule of law.128 Yet while conceding the force of these views, it is difficult to see how the concession of a degree of discretion can be avoided in an area such as propensity evidence. It is of course possible to exclude all forms of character evidence, but then one would surely have to create exceptions for evidence bearing on questions such as motive, intention and ­accident – ­all categories which in themselves provide scope for judicial discretion. Equally, a bar on ‘pure’ propensity evidence might struggle to be maintained in the face of cases such as Straffen. The other alternative is of course not to exclude character evidence at all, but such a rule is surely not preferable to allowing some measure of judicial discretion. A sensible approach to appellate scrutiny can root out the more egregious examples of misuse of discretion,129 while discretion can operate within a set of clear guidelines, such as exists under the New Zealand 127 128 129

(1995) 182 CLR 461 at 528–529. This matter is discussed by Redmayne, Character (n 56) at 168–172. Ibid at 172.



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legislation or has been provided by the Court of Appeal under the 2003 Act – ‘principled discretion’ in the terminology of Roberts and Zuckerman.130 As those authors point out, hard rules may increase the risk of wrongful conviction: notably where they entrench legal wrong-­turnings as common law precedents or allow judges to take refuge in refined technical distinctions. The old and unlamented ‘categories’ approach to ‘similar fact evidence’ exemplified such tendencies. In theory, categories of admissibility, once identified in litigated cases, gave clear guidance on the situations in which extraneous misconduct could be admitted against the accused. But in reality trial judges retained extensive discretion to develop new categories of admissibility or modify existing ones, meanwhile paying lip-­service to a categorical approach which absolved them of the need to justify the admission of often highly prejudicial evidence.131

It may be suggested that the risk of inconsistency attendant upon the retention of judicial discretion is far preferable to the certainty of injustice which any sort of hard and fast rule would be bound to create in this context. It was noted above that the Scottish Law Commission had indicated that its suggested regime could operate whether or not the corroboration requirement was abolished. However, if the requirement is abolished, there remains the question of the role which evidence of character might potentially play in convicting an accused. In particular, if evidence of character is admissible and corroboration is not required, would it be possible for an accused to be convicted on evidence of bad character alone? At first glance that would appear to be an absurd proposition, and might be thought to be the sort of question which only a Scots lawyer would ask, since other common law systems which admit evidence of character (albeit subject to certain safeguards) have no corroboration requirement, but do not witness accused persons being convicted on the basis of their bad character. Nonetheless, cases do exist where individuals appear to have been convicted on little more than evidence of a specific propensity. Straffen is the main example of such a case. Of course, many would say that it would be perfectly appropriate to allow a conviction in such a case, so would welcome such a development. Yet other cases might provide cause for concern. In R v Mullen,132 a conviction for burglary proceeded on the basis of some slight forensic evidence, but mainly on the basis that the accused was only one of twenty-­three individuals known to the authorities who employed a blowtorch in order to crack glass so as to effect entry to the premises, and only one of six such individuals who lived in the north-­east. Equally, in R

130 131 132

P Roberts and A Zuckerman, Criminal Evidence (Oxford University Press: 2004) at 30–32. Ibid at 29. R v Mullen [1992] Crim LR 735.

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v Black,133 the accused’s conviction for abducting a small girl in Scotland was held to be admissible evidence in order to identify him as the perpetrator of three murders of young girls over a six-­year period in different parts of England. In some ways, these were strikingly similar crimes, with the victims being murdered a considerable distance away from where they had been abducted, but there were also dissimilarities. More importantly, even if it were accepted that the same individual had perpetrated the three crimes, apart from evidence of opportunity (the accused being a long-­distance delivery driver), the main evidence against him was that of the crime committed in Scotland. In both these cases, the Court of Appeal upheld the conviction. Many might agree with the Court of Appeal that it is entirely sensible for an accused to be convicted on the basis of such evidence, but others might consider that such decisions testify to the potential dangers of abolishing the corroboration requirement at the same time as making evidence of character more generally admissible. To sum up, this chapter has concluded that the relationship between ‘similar fact’ evidence and the Moorov doctrine has distorted the use of ‘similar fact’ evidence in our law. If corroboration were to be abolished, there would be no need for the Moorov doctrine, but even if corroboration were to be retained the illogicalities of the doctrine argue for it to be replaced with a coherent statutory restatement of the law on the admissibility of evidence as to bad character, ‘similar fact’ evidence and previous convictions. The Scottish Law Commission’s report on Similar Fact Evidence and the Moorov Doctrine offers a model for such restatement, but it is suggested that in certain respects its approach is alarmingly misguided. Consequently, attention might be paid to alternative statutory models in other jurisdictions, with England and New Zealand in particular offering potential blueprints for reform. It should of course be conceded that the focus of this chapter on ‘similar fact’ evidence means that the wider picture has not really been discerned. Any reform of this area of the law would have to consider how the law regarding the admissibility of character evidence operates as a whole, and indeed the various statutory regimes considered, as well as that suggested by the Scottish Law Commission, deal much more extensively with the subject than is considered above. One of the weaknesses of current Scots law in this area is that it is partly based on statute and partly based on the common law, with the statutory provisions having emerged in a piecemeal way, hardly adding up to a coherent regime. However, it is clear that while a fresh start is required, the direction suggested by the Scottish Law Commission is not the most sensible way forward.

133

R v Black [1995] Crim LR 640.

Chapter 5 Hearsay in Scots law: rethinking and reforming Gerry Maher QC

INTRODUCTION This chapter considers ways in which the Scots law of hearsay evidence in criminal proceedings can and should be developed. If anything is uncontroversial about the law of hearsay it is that it is complicated, difficult to apply in legal practice and highly challenging to teach. It is clear that there is a ‘rule against hearsay’1 but beyond that there is little else that is straightforward or generally accepted. Hearsay is sometimes divided into primary and secondary but the meanings of these terms are counter-­intuitive. Primary hearsay is direct evidence that a statement was made (irrespective of its truth or falsehood) and is admissible for that (or similar) purpose. But for some writers such evidence does not amount to hearsay at all.2 By contrast secondary hearsay is evidence of the truth of what is contained in a statement made by someone other than a witness. This is often viewed as the only type of hearsay in its proper sense. There is a second distinction that largely, but not entirely, corresponds to the distinction between the two types of hearsay. This is concerned with the purpose for which hearsay evidence can be used. Here the distinction is between (1) evidence which is used to prove the fact contained within the statement (secondary or ‘proper’ hearsay); and (2) evidence used for some other purpose. This purpose could be to prove the fact that a statement was made, irrespective of its truth (primary hearsay); but it could be some other purpose (for example, relating to the credibility or reliability of a witness). These last uses of evidence involve the seemingly difficult task of accepting hearsay as evidence for such a purpose whilst ignoring the possible truth of the statement it contains. Yet the law is content to leave this task to fact-­finders in criminal trials, both judges and juries.3 This chapter 1

The section name of s 259 of the Criminal Procedure (Scotland) Act 1995 is ‘Exceptions to the rule that hearsay evidence is inadmissible’. 2 See, for example, F E Raitt, Evidence: Principles, Policy and Practice, 2nd edn (W Green: 2013) ch 11. 3 This last point is important when considering a particular argument which is used to justify the rule against hearsay, namely that juries are unable to assess this evidence properly.

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will be concerned with hearsay in its more obvious and direct sense, that is, so-­called secondary hearsay. A definition of hearsay in this sense which has been often adopted is one first formulated by Rupert Cross in describing the rule against hearsay: an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.4 If there is a rule against hearsay, it is also clear that there are exceptions to this rule but these exceptions themselves straddle two categories. One is in the sense that an exception ‘proves’ the rule, i.e. evidence is undoubtedly hearsay but none the less is admissible despite the rule (for example where the evidence is of some res gestae). The other is where it is less certain that the evidence is admissible but it is not clear that it is really a category of hearsay. Scots law has long puzzled over the scenario where a witness states in court that she made an earlier identification of a culprit to a police officer but cannot now remember who she had earlier identified, and the police officer then gives evidence of what the witness had previously said to him.5 Similarly evidence from expert witnesses often involves what the witnesses report about what other experts in a particular field of study have written. Does this constitute hearsay or is it hearsay but an exception to the rule?6 The imprecisions about hearsay and the range of characterisations of its elements once famously led Birch to talk of hearsay ‘fiddles’ which allowed the courts in cases where it suited them to get around the rule against hearsay by simply asserting that the evidence in question did not amount to hearsay at all.7 Birch makes clear that what allows this characterisation manoeuvre is the lack of a full and binding definition of hearsay.8 A. FUTURE DEVELOPMENT OF THE LAW ON HEARSAY EVIDENCE When discussing how legal rules develop, two metaphors often used are evolution and revolution. It is always to be borne in mind that these are metaphors, derived from other disciplines or discourses and are accordingly R Cross and C Tapper, Cross on Evidence, 7th edn (London: 1990), approved in Morrison v HM Advocate 1990 JC 299 at 312 which followed the adoption of Cross’s formulation in R v Sharp [1988] 1 WLR 7 at 11. 5 In Muldoon v Herron 1970 JC 30, the majority of the court stated that this situation did not involve hearsay, whereas in Frew v Jessop 1990 SLT 396, it was held that it was hearsay but that the evidence was admissible as an exception to the general rule. 6 See White v HM Advocate 1986 SCCR 224 which suggests that it is not hearsay at all. In English law, expert evidence is hearsay but constitutes an exception to the exclusionary rule (Criminal Justice Act 2003 s 118(1)). 7 D J Birch, ‘Hearsay-­logic and hearsay-­fiddles: Blastland revisited’, in P Smith (ed), Criminal Law: Essays in Honour of J C Smith (Butterworths: 1987) 24. 8 Ibid at 25. 4



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prone to misunderstanding or misuse. For a start they are not alternative, either/or ways of describing or advocating change in legal doctrines. Rather they present different models for accounting for change or development. At the core of evolution thinking is the idea that life forms must adapt to changing environments to survive or else end up extinct. Indeed historically writers like Bentham saw the extinction of all the rules of evidence law as the way forward, and today some commentators take a similar approach to the law on hearsay.9 The concept of revolution is less easy to encapsulate, mainly because of the range of phenomena to which it has been applied. One particular use has been influential in social sciences, which borrows an approach in the philosophy of science used to describe fundamental changes in natural sciences. This is Kuhn’s well-­known (though one suspects little-­read) book on paradigm shifts in the basic principles and presuppositions of science which lead to revolutions in scientific thinking.10 But using Kuhn’s writings in a different setting or context from that in which he presented his own argument involves a wide range of difficulties. One is that revolutions, or so-­ called paradigm shifts, result in radical discontinuities in the discipline such that concepts, presuppositions, hypotheses and so on from one paradigm cannot be carried over to its revolutionary replacement. This consequence does not appear to be sought by evidence scholars in Scotland, no matter how critical they may be of current legal doctrines or their empirical applications. Another difficulty with Kuhn’s ideas is that the key idea of paradigm is lacking in clear meaning, and indeed is used in a huge variety of contrasting ways.11 (1) Does the law on hearsay need to change? So, if we are to use a metaphor for discussing hearsay and its possible development, let us look at evolutionary ideas. Before doing so, it is worth bearing in mind whether there is any need for change in the law at all. A perhaps forgotten option in law reform is that of doing nothing, either because the law is already satisfactory or because any reform will make the law worse than it currently is. But it would be difficult to find any evidence scholar who would claim that the Scots law of hearsay is free from problems and 9

10 11

Bentham’s attacks on all artificial, exclusionary rules of evidence, including the rule against hearsay, are set out in his Treatise upon Judicial Evidence (1825) and Rationale of Judicial Evidence (1827). For a summary of Bentham’s views on hearsay, see J R Spencer, Hearsay Evidence in Criminal Proceedings, 2nd edn (Oxford: 2014) at 4–5. Spencer (at 20–22) presents subsequent juristic debates on hearsay in terms of writers who have ignored or disagreed with Bentham and those who have followed his views. T S Kuhn, The Structure of Scientific Revolutions, 4th edn (University of Chicago Press: 2012). M Masterman, ‘The nature of a paradigm’, in I Lakatos and A Musgrave (eds), Criticism and the Growth of Knowledge (Cambridge University Press: 1970) 59.

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difficulties. Moreover, whether no reform is preferable to reform cannot be assessed in the abstract and must wait until details of proposals for change have been articulated. A variant of this argument is to say that any changes to the law on hearsay evidence are best left to the courts to develop on a case by case approach. However, the courts have shown little willingness to develop the law on hearsay and take the view that this is a matter for legislatures.12 (2) Changing the law by adaptation So let us return to the idea of adaptation as a means of survival of the law of hearsay. We only have to look at the work of law reform bodies to find examples of this survival strategy, namely that the law on hearsay can be changed both to remove problems in the content of the law and also to present the law in a better and clearer structure. It is noticeable that hearsay has been on the agenda of various law reform bodies in relatively recent times. (a) Scotland The Scottish Law Commission examined hearsay in criminal proceedings in a project in the mid 1990s.13 Its report also dealt with the topic of the admissibility of prior statements of witnesses which the Commission treated as allied to but not part of the law of hearsay. The Commission’s recommendations were modest and were restricted to clarifying and putting on a statutory basis what were already exceptions to the rule against hearsay at common law, namely the admissibility of statements by people who at the time of trial were deceased, too ill to give evidence, were absent abroad and could not practicably be made to attend, or who had disappeared and could not be found after reasonable steps had been taken to find them. A further recommendation was to extend the logic of these existing exceptions to statements made by someone who is called to give evidence at a trial but refuses to take the oath or give evidence. Finally a recommendation was made which would allow a witness at a trial to adopt a statement made by him prior to the trial.14 Virtually all of the Commission’s recommendations were enacted and are now contained in ss 259–262 of the Criminal Procedure (Scotland) Act 1995. 12

13

14

In Myers v DPP [1965] AC 1001 the House of Lords in an English law appeal stated that the courts could no longer develop the law of hearsay, at least in the sense of creating new exceptions to the rule against hearsay. There is some Scottish authority that the Scottish courts retain such a power but there are no signs that they have exercised it and indeed seem inclined to favour legislative reform. For discussion see P Duff, ‘Hearsay issues: a Scottish perspective’ (2005) Crim LR 525 at 531–533. SLC, Evidence: Report on Hearsay Evidence in Criminal Proceedings (Scot Law Com Report No 149, 1994). This last provision has given rise to major difficulties of interpretation. See Hughes (Sean Stephen) v HM Advocate 2009 JC 201; A v HM Advocate 2012 JC 343.



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(b) England and Wales English law on hearsay in criminal proceedings is now contained in the Criminal Justice Act 2003. The immediate influences to the reforms made by the 2003 Act were reports made by the Law Commission and a review of criminal courts by Lord Justice Auld.15 It is noticeable that these reports adopted quite different emphases on how the law should be reformed and made noticeably contrasting recommendations.16 The provisions in the Act were an amalgam of these two reports. The Act presents a new definition of hearsay in the rule that ‘a statement not made in oral evidence in the proceedings . . . as evidence of any matter stated in it’.17 However the general rule remains exclusionary and hearsay is admissible only where various exceptions apply.18 These include various common law exceptions that are retained (for example res gestae, confession evidence, common enterprise, expert evidence) and some statutory exceptions (evidence of statements where the maker is unavailable at the trial, business records). The Act also allows for judicial discretion to admit hearsay where this would be in the interests of justice and to exclude hearsay where admitting it would result in an undue waste of time. Hearsay would also be admissible where both parties agreed to allowing it as evidence. The general view among commentators is that the Act is an improvement on the previous law but that it should have gone much further in making hearsay evidence admissible.19 (c) Hong Kong The Hong Kong Law Commission made various recommendations for the law of hearsay in criminal proceedings.20 The general strategy was to m ­ aintain 15

16

17

18 19

20

Law Commission, Report on Evidence in Criminal Proceedings: Hearsay and Related Topics (Report No 245, 1997); Lord Justice Auld, Review of the Criminal Courts of England and Wales (2001). For discussion of the background to the 2003 Act, see Spencer, (n 9) at 27–32. The Commission favoured the strategy of retaining the current structure of a rule against hearsay subject to a wider range of exceptions, whereas Auld favoured a more radical approach of introducing a rule that hearsay should generally be admissible on the basis of a best evidence principle. Section 114(1). This definition removed problems about so-­called implied assertions which had much troubled English law since the case of R v Kearley [1992] 2 AC 228 but were freely admitted in Scots law. The Scottish Law Commission (n 13) paras 5.8–5.13 noted that in Scottish practice such assertions are not regarded as hearsay. However, P Duff, ‘Hearsay issues’ (n 12) at 526–531 has pointed out that some Scottish decisions are at odds with this position. Sections 116–118. See, for example, D Birch, ‘Criminal Justice Act 2003: (4) ­Hearsay – ­same old story, same old song’ (2004) Crim LR 556; T Worthern, ‘The hearsay provisions of the Criminal Justice Act 2003: so far, not so good?’ (2008) Crim LR 431; D Birch and M Hirst, ‘Interpreting the new concept of hearsay’ (2010) Cambridge Law Journal 72. The Law Reform Commission of Hong Kong, Report on Hearsay in Criminal Proceedings (2009).

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an exclusionary rule but to allow for the continuation of many common law exceptions or qualifications (for example statements against interest, expert opinion evidence, res gestae). In addition, hearsay evidence would be admissible where it satisfied the tests of necessity and threshold reliability. The necessity condition broadly corresponds to the usual common law exceptions where the maker of the statement is dead or otherwise unable to give evidence in person. The threshold reliability condition is that the circumstances provide a reasonable assurance that the hearsay statement is reliable and in assessing this test regard is to be had to all circumstances relevant to reliability including such factors as the content of the statement, the circumstances in which it was made, circumstances concerning the truthfulness of the maker and the accuracy of the observation of its making, and whether it is supported by other admissible evidence. In addition hearsay would be admissible where both parties agree to it being admitted as evidence. The effect of these proposals would be to make some previously excluded hearsay evidence admissible but the scheme for testing the threshold reliability seems complex and puts too much weight on judicial discretion. (d) Ireland The Law Reform Commission of Ireland considered the law of hearsay in a consultation paper in 2010.21 But its recommendations for the criminal law did not extend beyond a statutory restatement of the existing law of having a general exclusionary rule subject to inclusionary exceptions.22 Overall the changes recommended by these law reform bodies and the statutory provisions which gave effect to some of them have been useful in making some clarification of the law, but overall the reforms were modest in aim, and more significantly, left many of the problems with the law on hearsay unresolved.23 B. RETHINKING THE ‘RULE’ AGAINST HEARSAY If law reform attempts to adapt the law on hearsay have so far been disappointing, what of a different approach suggested by the evolution metaphor of adaptation or ‘extinction’?24 I am not here advocating the complete aboli 21

22

23

24

Law Reform Commission, Hearsay in Civil and Criminal Cases (LRRC CP, 60-­2010). Given the nature of the Commission’s recommendation, no final report has been issued. The Commission rejected any proposal for abolition or radical reform of the hearsay rule in civil law though it did make some recommendations designed to move the law towards a more inclusionary approach. The report of the Hong Kong Commission provides summaries of attempts at law reform on hearsay in Australia, Canada, New Zealand and South Africa: (n 20) at 51–79. It may be noted that the great abolitionist for rules of evidence in Scots law, Lord Carloway, has proposed the extinction of the rule against hearsay but only if resort is made to more accurate, mainly electronic, ways of recording information. Lord Carloway, ‘Scots criminal



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tion of all rules which exclude the admissibility of hearsay as evidence but rather a re-­consideration of the rationales for objecting to hearsay. Consider again Birch’s paper on hearsay fiddles. What was involved in this judicial technique was a matter of classification of an item of evidence which seems to be hearsay. But if the courts wanted to admit the evidence and it did not fit into any existing exception it would be re-­characterised as not being hearsay at all. The key is in the concept of hearsay itself. Of course the scope for such fiddles is much reduced when, as with current English law, there is an authoritative definition of hearsay. But my concern is not with the definition of hearsay but with the nature and concept of the ‘rule’ against hearsay. Consider the well-­known rationale for this ‘rule’ in Teper v The Queen:25 The rule against the admission of hearsay is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-­examination and the light which his demeanour would throw on his testimony is lost.

The Scottish Law Commission also set out a list of rationales for the rule. These included the best evidence rule, evidence not on oath or affirmation, lack of observation of demeanour, ability of a jury to evaluate hearsay, absence of cross-­ examination, distortion through repetition, superfluity, concoction. These justifications for the rule against hearsay have been much repeated.26 These rationales fall into two quite different types. One sort of rationale is concerned with problems of assessing the weight or value of hearsay evidence. The other sets out legal rules or policies with which hearsay evidence comes into conflict. Examples of these latter rules are the best evidence rule, and the right to cross-­examine (which is better understood more generally as the right to confrontation). A way of re-­conceptualising the law on hearsay is suggested by this classification. Excluding hearsay evidence because of concerns about its weight or reliability is a rule against hearsay precisely because the evidence is hearsay, and by its very nature gives rise to these problems. That is certainly a rule against hearsay. But the other rationales for the traditional rule present a quite different picture. On these rationales hearsay evidence is not excluded because of its hearsay nature as such but because it infringes other rules of evidence. Here there is no single rule against hearsay but either different rules against hearsay or perhaps a better way of describing these scenarios is that there is no rule against hearsay

25 26

evidence and p ­ rocedures – m ­ eeting the challenges and expectations of modern society and legal thinking’ (Criminal Law Conference, Murrayfield, 9 May 2013). Carloway’s proposals on hearsay are radical but his focus is on reforming criminal procedure and the implications which such changes would have on the rules about hearsay. For further discussion, see Duff, Chapter 9 in this volume. [1952] AC 480 at 486. They are rehearsed in the Report of the England and Wales Law Commission, Report on Evidence in Criminal Proceedings (n 15) at 23–34.

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simply because it is hearsay. There is a need to assess each of these ‘rules’ to see how far they justify excluding hearsay. The exclusion of hearsay evidence because of concerns about its weight will be examined separately. But note the situation where hearsay evidence is not admitted because it conflicts with some other rule of evidence. Here there is no application of a ‘rule’ against hearsay; rather it involves the application of the other rules of evidence. In Scots law, this is precisely how the civil law approaches hearsay. Section 2(1)(a) of the Civil Evidence (Scotland) Act 1988 states that in any civil proceedings evidence shall not be excluded solely on the ground that it is hearsay. The result is that hearsay evidence can be excluded but not simply because of its hearsay nature.27 It is only excluded if it conflicts with another legal rule. What I want to explore is how this same approach would apply to the rule or rules on hearsay in criminal proceedings. It must be emphasised that this re-­conceptualisation does not involve the complete abolition of all rules on the admissibility or inadmissibility of hearsay evidence. It is rather a reconstruction of the existing law but one that allows for moving the law on from its present limits and perhaps also resolving some of its difficulties. It is worth noting that the rule in s 2 of the 1988 Act is often referred to as the ‘abolition’ of the hearsay rule in civil proceedings,28 but that term is not used in the statute itself (unlike s 1 where the section heading is ‘rule requiring corroboration abolished’). (1) Analogy with hearsay in civil proceedings In the 1988 Act, the civil law removed the rule against hearsay based on weight or reliability concerns and restricted the issue of inadmissibility of hearsay to situations where hearsay was inconsistent with an exclusionary rule of evidence. Several points can be made about this so-­called ‘abolition’ of the rule against hearsay in civil proceedings. One is that the changes have generally worked in practice and there is no feeling that civil justice has been weaker since their introduction. But a more fundamental question is why the criminal law on hearsay evidence should differ from the civil law. One answer is that the civil law of hearsay is or was so fundamentally different that we would not be comparing like with like so that there is no sort of inconsistency in abolishing hearsay in one area of the law but retaining it in others. In O’Shea v HMA,29 the Court held that there had been a divergence between the civil and criminal law of 27

28 29

A similar formulation has been used in the provision in criminal proceedings which removed the rules on the admissibility of ‘mixed’ statements: ‘Evidence of a statement to which this subsection applies is not inadmissible as evidence of any fact contained in the statement on account of the evidence being hearsay’ (Criminal Justice (Scotland) Act 2016 s 109, adding s 261ZA to the Criminal Procedure (Scotland) Act 1995). Raitt, Evidence (n 2) at 200; Spencer, Hearsay Evidence (n 9) at 25–27. 2015 JC 201.



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hearsay but that was only in relation to one very specific issue of what constituted res gestae. But most of the law of hearsay does seem to be the same in the civil and criminal law. If so, why should radically different approaches be taken on the question of so-­called abolition? At one time, the Scottish Law Commission took the view that the rules of evidence should be identical in civil and criminal proceedings unless there were good reasons to the contrary,30 but later either abandoned this general principle or had identified one of these good reasons.31 The Commission argued that different courts and tribunals have different natures and purposes, and the rules of evidence as ways of guiding correct decisions or outcomes would depend on those aims. Criminal proceedings are primarily concerned with deciding whether an accused person has been shown by the state to be guilty of the charge brought against him, which in turn involves seeking to reconcile the public interest in convicting the guilty and the public interest in avoiding the erroneous conviction of the innocent. By contrast civil proceedings are concerned with resolving disputes between individuals, and these different aims justify different rules of evidence. Yet at the same time the Commission accepted that there are areas where the same rules apply in civil and criminal proceedings alike, and gave as examples relevancy, burdens of proof, privileges, distinction between admissibility and weight of evidence. But nowhere does the Commission explain why hearsay evidence in particular is a necessary feature of criminal law but not of civil law, as might be the case with the asymmetric requirement of corroboration, which applies only to Crown but not defence evidence.32 (2) Objection to hearsay on basis of its nature as hearsay Hearsay may be excluded because it is in conflict with the principles and legal goals of the law of evidence. This topic will be considered below. But a different approach to justifying the rule against hearsay looks at the very nature of hearsay as such. Hearsay evidence is excluded because it is a type of evidence that is not helpful in a fact-­finding process or is even dangerous to it. But this approach faces a twin problem. Problems in fact-­finding where evidence is hearsay concern the weight of such evidence but cannot directly justify an exclusionary rule. Furthermore if admitting hearsay evidence is inimical to fact-­finding, then it becomes difficult to explain why this type of 30 31

32

SLC Consultative Memorandum No 46, Law of Evidence (1980) para A.03. Scottish Law Commission, Evidence: Report on Hearsay Evidence in Criminal Proceedings (Scot Law Com No 149, 1995) at 4–6. A famous case in English law where an accused was barred from using hearsay evidence in his defence is R v Blastland [1986] AC 41 (evidence of a third party confessing to the crime held to be inadmissible).

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evidence is admissible when one of the ‘true’ exceptions to the rule applies. It can hardly be said that allowing evidence of some res gestae or of a statement made by someone who has since died presents lesser problems for fact-­ finding than other categories of evidence which are excluded by the rule. The main grounds for this objection are: 1. Hearsay evidence is difficult for a jury to assess. Virtually no commentator gives weight to this argument. The Scottish Law Commission doubted whether the rule against hearsay in Scots law was based on concerns about trial by jury, and dryly noted that in the existing law the rule applies in both jury and summary trials.33 This justification for excluding hearsay evidence rests in an unexplained assumption that whereas legally trained judges can properly assess hearsay as part of practical reasoning, members of a jury must lack this ability, despite the fact that narratives using hearsay are part of everyday life. Moreover other types of evidence can be difficult for any fact-­finder to assess (for example expert evidence or eye-­witness identification evidence) but it would be absurd to exclude all types of such evidence in jury trials. And if juries cannot deal properly with hearsay simply because it is hearsay then there would be no principled basis for allowing evidence to be presented to juries when the evidence falls within one of the exceptions to the general rule, as where the maker of the statement has died.34 2. Evidence not given on oath or affirmation. This objection proceeds on the assumption that evidence given by a witness who has affirmed or taken the oath is by that fact alone more reliable and more likely to be truthful than evidence of a statement made by someone who did not do so. That may be doubted but in any event does little to justify the exclusion of hearsay evidence, as opposed to going to its weight. 3. Lack of observation of demeanour. The same is true of the argument that disallowing hearsay evidence is justified on the basis that a fact-­ finder requires to observe the demeanour of a witness in order to assess their credibility and reliability. Again, the same sort of objections can be made. First, much psychological research suggests that observation of a witness is only one factor and at times not a strong one, in assessing

33

34

The Commission refers to a paper by Wilkinson which argues that the rule reflected a civilian distrust of oral testimony (see A W Wilkinson, ‘Hearsay: a Scottish perspective’, in R F Hunter, Justice and Crime: Essays in Honour of the Lord Emslie (1993: T & T Clark) 66. Spencer, Hearsay Evidence (n 9) at 11 notes a wide range of objections that have been made to this justification in English law and concludes with the comment: ‘it is so obviously unconvincing that in retrospect, one wonders why it has been taken so seriously in the past’. As noted earlier, juries are trusted with the seemingly challenging task of having regard to primary hearsay for purposes of assessing the credibility of a witness while at the same time ignoring any question of the possible truth of the statement’s content.



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the truthfulness of a witness.35 But more to the point issues about credibility and reliability are concerned with the weight of evidence, not its admissibility. (3) Disallowing hearsay where it clashes with other principles of the law of evidence The proposed change to the law on hearsay evidence in the criminal law is to follow the route taken by the civil law that evidence is not inadmissible simply because it is hearsay in nature. This formulation would still disallow hearsay where the evidence is caught by an exclusionary rule of evidence but it is the direct application of these other rules which plays the key role in questions of the admissibility of any evidence which happens to be hearsay in nature. What exclusionary rules would interact with hearsay evidence to make the evidence inadmissible? In some cases, the interaction would be straightforward. For example, the admissibility of illegally obtained evidence depends on the balancing test in Lawrie v Muir,36 and there is nothing problematic in applying that test to illegally obtained hearsay. Confession evidence is by its nature hearsay but admissibility is determined by the separate test of fairness.37 Some more detailed comment is required on the relationship between hearsay and three other exclusionary rules, namely relevancy, best evidence, and the fair trial requirements of the European Convention on Human Rights (ECHR). (a) Relevancy In one sense relevancy, along with admissibility, is one of the most fundamental principles of the law and practice of evidence. It requires that evidence must have a probative connection with a fact in issue in a trial. What is or is not relevant is not governed by legal rules but requires considerations of logic and practical reasoning. Yet at the same time relevancy feeds into a basic rule of the law of evidence, as evidence which is irrelevant is never admissible at a trial. A classic statement of the position is by Thayer: The two leading principles should be brought into conspicuous relief, (1) that nothing is to be received which is not logically probative of some matter requiring to be proved; and (2) that everything which is thus probative should come in, unless a clear ground of policy or law excludes it.38

35

36 37 38

Law Commission, Evidence in Criminal Proceedings and Related Matters (Consultation Paper No 138, 1995) paras 6.20–6.30. 1950 JC 19. Miln v Cullen 1967 JC 21. J B Thayer, A Preliminary Treatise on Evidence at Common Law (1898) at 530. This passage has

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These principles support the approach being advocated here. If hearsay evidence is relevant it should be admitted unless its exclusion from proof is required by the application of a rule which embodies an important policy or goal of the law of evidence. Considerations of relevancy buttress this approach in another way by pointing to the proper limits of its application. Admitting more types of evidence might cause concern that trials will be flooded with increased quantities of evidence which could confuse fact-­finders and make their task more difficult. But it is difficult to see any basis for this concern once it is remembered that evidence, including evidence which is hearsay in nature, will be admitted only if it has a logical relevance to the facts to be determined. (b) Best evidence As noted earlier, s 2(1)(a) of the Civil Evidence (Scotland) Act 1988 states that in any civil proceedings evidence shall not be excluded solely on the ground that it is hearsay. Two further provisions in s 2 could also be carried over to the proposed change to hearsay in criminal proceedings. These are (1) that a statement made otherwise than in the course of a proof is admissible as evidence of anything contained in that statement if direct oral evidence by that person would have been admissible; and (2) a fact-­finder if satisfied that a fact has been established by evidence shall be entitled to find that fact proved by the evidence notwithstanding that the evidence is hearsay. It seems to have been generally accepted that these provisions opened up the admissibility of hearsay evidence in civil proceedings. In F v Kennedy (No 2),39 part of the evidence presented in a proof on the grounds of referral to a children’s hearing consisted of evidence of what a child had earlier said to a social worker. The child did not give evidence before the sheriff but was available to do so. The evidence given by the social worker was challenged on the basis that it was not the best evidence but it was held in the Inner House that s 2 had the effect of overriding the best evidence rule. However another Inner House decision reached the opposite conclusion. In Japan Leasing (Europe) plc v Weir’s Trustee (No 2),40 the question was whether evidence of witnesses who spoke to copies of principal documents was evidence of the content of the principals. The court held the evidence inadmissible partly because a copy of a document did not fall within the category of evidence within the range of s 2(1)(b) but also because evidence as to copy documents, as opposed to evidence as to the principals, was not the best evidence. In this case no reference was made to F v Kennedy so that there are two conflicting

39 40

been frequently cited, including by the Scottish Law Commission (Report on Hearsay Evidence in Criminal Proceedings (n 13) para 2.30). 1993 SLT 1284. 1998 SC 543.



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decisions of equal weight as precedents on whether the best evidence rule survived the changes made by the 1988 Act.41 It should be noted that in Japan Leasing, unlike the earlier case, the court did not address this point but simply assumed that the best evidence rule continued to apply in civil proceedings. How would a similar approach involving the ‘abolition’ of hearsay in criminal cases deal with the best evidence rule? Remember that the strategy of reform is that there should be no objection to hearsay evidence as such but only where the evidence is inconsistent with some other rule on the admissibility of evidence. There are several ways of responding to the state of affairs following on from Japan Leasing. One is to say that there are and should be different applications of the best evidence rule for oral and documentary evidence but it is difficult to find any principled rationale for such a distinction. Indeed historically the trend has been a greater relaxation of the so-­called rule against hearsay in respect of documentary evidence than oral evidence. Another, bolder, approach is to argue that the requirement to produce the best evidence is not a rule of evidence at all. In Haddow v Glasgow City Council,42 Lord Macphail expressed the view that ‘the “best evidence” rule is not a general exclusionary rule of evidence but a counsel of prudence’. His Lordship explained the development of this ‘rule’ as deriving from eighteenth-­century writings in English law, especially in Gilbert’s book of 1754,43 and that it was an attempt to provide an unifying explanatory principle for the whole law of evidence. Moreover, the best evidence rule has now largely disappeared from the English law of evidence. He also points to a logical fallacy in saying that because the best evidence rule makes ‘not-­best’ evidence inadmissible, then all types of inadmissible evidence breach the best evidence rule. Rather certain categories of evidence, including hearsay, are inadmissible for other reasons, specifically relating to each category.44 Primary and secondary authorities continue to assert the existence of the best evidence rule but fail to address the issues whether the nature of the rule is normative in the sense of a legal rule or merely descriptive of good practice.45 Perhaps a more direct response to the Japan Leasing conundrum is that the provisions of the 1988 Act make no sense if the so-­called best evidence 41 42 43 44

45

A Poole, ‘Productions, hearsay and the best evidence rule’ 1998 SLT (News) 211. 2005 SLT 1219 paras [14]–[15]. J G Gilbert, The Law of Evidence (1754). 2005 SLT 1219, para [15]: ‘The specific rules have different origins and different rationales. The rule against hearsay, for example, is a discrete rule of evidence and predates Gilbert’s best evidence rule (Stair, IV, 43, 15).’ Scottish and Universal Newspapers v Gherson’s Trs 1987 SC 27; Patterson v Grattan plc 2011 SLT (Sh Ct) 2. Raitt (n 2) at 14 also asserts the continuing role of the best evidence rule but begins her discussion by saying: ‘The best evidence rule is both an aspiration and a statement of common sense’.

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rule continues to apply to hearsay evidence. In some circumstances, hearsay evidence can be the best evidence, for example where the original maker of statement has died, but in these cases the evidence is admissible as an exception to the ‘rule’ against hearsay. On the Japan Leasing approach, s 2 of the 1988 Act has effect only to allow as admissible hearsay, evidence which is in any case already admissible at common law. A better view is that the decision in Japan Leasing is wrong and the proper interpretation of s 2 is that the best evidence rule, whatever its correct status, does not exclude the admissibility of hearsay evidence. (c) The ECHR and the right of confrontation Article 6(1) of the ECHR provides that everyone charged with a criminal offence has the right to a fair trial.46 Article 6(3) enumerates certain minimum rights, including 6(3)(d) the right ‘to examine or have examined witnesses against him’. A traditional objection to the admission of hearsay evidence is that such evidence involves the lack of cross-­examination of the maker of the hearsay statement, but this objection is concerned with assessing the weight of the evidence. The Convention goes further by elevating this issue to a right in the general context of guaranteeing a fair trial. However, the Convention right to examine witnesses differs from corresponding rights in some legal systems which are virtually absolute in nature (for example, the United States).47 By contrast, it is clear that there are limits to the right under art 6(3)(d). There has been very little Scottish discussion of this right by the Scottish courts. In N v HMA,48 a complainer gave evidence in chief at a trial which had to be deserted pro loco et tempore. At the second trial that witness had become unfit to give evidence and the Crown led as evidence an audio recording of her evidence at the first trial.49 The trial judge rejected a submission for the accused that admitting such evidence infringed his right to a fair trial under art 6 by pointing to three safeguards against unfairness, namely (1) the requirement of corroboration; (2) the opportunity for the defence to lead evidence to attack the credibility of the original witness; and (3) the power of the trial judge to make suitable directions to the jury about any difficulties arising from the use of hearsay evidence. In an appeal by the accused, the appeal court quashed the conviction on the basis that the use of the hearsay evidence had breached the accused’s right under art 6(1) and 46

47 48 49

The Scottish Law Commission (Report on Hearsay Evidence in Criminal Proceedings (n 13) paras 4.14–4.17) had noted that an exclusionary rule might breach an accused’s right under article 6(1) of the Convention by not permitting him to present hearsay evidence of his innocence. As the change to the law being proposed in this chapter is to allow hearsay evidence unless rendered inadmissible by another rule of evidence, this point will not be pursued further. See Crawford v Washington 541 US 36 (2004). 2003 JC 140. Note that this removed any concerns about hearsay not being evidence given on oath.

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6(3)(d). On the face of it this decision seems to support a strong version of the right to examine witnesses whereby any hearsay evidence which excludes such examination automatically triggers a breach of the right and therefore denies a fair trial. However, although the court noted that the appellant in his submissions had cited several decisions of the European Court of Human Rights, the court did not identify nor examine these decisions but instead relied upon a concession by the Crown that the appellant had been deprived of a fair trial by the use of the hearsay evidence. Moreover, the court summarily dismissed the three safeguards which the trial judge had advanced as removing any unfairness in using hearsay evidence.50 As regards corroboration as a safeguard, the appeal court argued that if the evidence in question is per se unfair to the accused, there is nothing worthwhile in providing corroboration of it. So, this case seems to suggest that the admission of hearsay evidence as such involves a trial being unfair in terms of the ECHR. However, in two other cases decided by the same bench on the same day, a quite different, and in certain ways an inconsistent, approach was taken. In McKenna v HMA,51 the accused had lodged a special defence of incrimination. The Crown led evidence of statements made by the incriminee who had since died. Moreover the trial judge had given directions to the jury pointing out that this evidence had not been given on oath, had not been subject to cross-­examination and that the jury could not have observed the incriminee’s demeanour. The judge did not however state that the evidence should be viewed with suspicion given the incriminee’s self-­interest. The court held that although the hearsay evidence was an important part of the Crown’s case, the accused’s conviction was not based to a decisive extent on it nor did it play a central role in his conviction. In this case there was further evidence in the form of admissions made by the accused to various people shortly after the crime and also forensic evidence linking the accused to the locus of the crime. The court also held that there was no fault in the directions given by the trial judge. A similar approach was taken in Daly v HMA,52 which also involved hearsay evidence of statements by an incriminee who had disappeared shortly after the start of the trial. The court held that there had been no breach of art 6 as this evidence was not of great materiality in the case against the accused and that there had been clear evidence from the complainer and another witness that the accused had carried out an attack on the complainer. Since these cases there have been pronouncements by the European Court of Human Rights on hearsay and art 6(3)(d) of the ECHR. The starting point is a decision of the Fourth Section of the Court in Al-Khawaja 50

N v HM Advocate at 148 H-­149A.

51

2003 SLT 769. 2003 SLT 773.

52

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and Tahery v UK (Al-Khawaja),53 which concerned the use of hearsay evidence in criminal proceedings in England. The Fourth Section seemed to suggest that where the sole or decisive evidence against an accused was evidence which could not allow for cross-­examination by the accused, then there was an automatic violation of art 6(3)(d), resulting in an unfair trial. Whilst the decision was under appeal to the Grand Chamber of the Court, both the Court of Appeal and UK Supreme Court in an English appeal, R v Horncastle,54 disagreed with this sole or decisive test as determinative of the issue but instead argued that proceedings involving hearsay evidence could constitute a fair trial where there were additional counterbalancing factors. When the Grand Chamber later issued its judgment on the appeal it ruled there had to be a good reason for the non-­attendance of the maker of the statement. It also repeated the point that the appropriate criterion was the sole or decisive test but accepted that certain counterbalances could result in a trial being fair.55 Decisive here means determinative of the outcome of the case. The Court noted that where the hearsay evidence is supported by other evidence then whether or not the hearsay evidence is decisive will depend on the strength of the corroborative evidence. The Horncastle case was itself appealed to the European Court, which largely followed its prior decision by the Grand Chamber in Al-Khawaja.56 I will not here examine in any detail what these counterbalances might be57 but will make some comments on the implications of this ruling for the proposal to change the law on admissibility of hearsay set out earlier. The first and crucial point is that hearsay evidence as such does not engage art 6(3)(d). This arises only where the hearsay evidence is the sole or decisive incriminating evidence. In almost all criminal cases in Scotland, the requirement for corroboration of the Crown case will result in there being two rather than a ‘sole’ source of evidence against the accused. However, as the European Court noted, the existence of corroborative evidence by itself does not answer the question whether the hearsay evidence was decisive. The problem for Scots law is that an additional source of evidence does not have to be directly incriminating to be corroborative, as long as it supports or confirms the other evidence.58 Furthermore the sole or decisive test would not be met where evidence against the accused consisted entirely of hearsay from two or more sources. Accordingly, there are two different situations which require consideration. One is that where hearsay evidence has been used by 53 54 55 56 57

58

(2009) 49 EHHR 1. [2009] 2 Cr App R 15; [2010] 2 AC 373. (2012) 54 EHRR 23. Horncastle and others v United Kingdom (2015) 60 EHRR 310. For a detailed discussion of the implications of this ruling for English law, see Spencer Hearsay Evidence (n 9) ch 2. A useful survey of Scots law is F Stark, ‘Hearsay evidence’, PostCorroboration Safeguards Review: Report of the Academic Expert Group (2014) ch 8. Fox v HM Advocate 1998 JC 94 at 100.



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the prosecution in a trial but there is additional evidence which incriminates the accused. Here no issue arises of breaching art 6(3)(d). However, matters are different where there was no corroborative evidence which was itself incriminating in nature. It would then be a requirement of Scots law to show that there were counterbalancing factors for a conviction based on hearsay evidence to be justified. As illustrated in some of the earlier Scottish cases, many of these factors already exist, and would not be affected by making hearsay more admissible than under the existing law. These include jury directions on the dangers of hearsay evidence, and the ability of the accused to attack the credibility of the maker of the original statement under s 259(4) of the 1995 Act. Furthermore, in cases which are caught by the sole or decisive test, the prosecution would have to show good reasons for the absence of the maker of the statement. This might limit the use of hearsay evidence in these cases to situations where the hearsay evidence is best evidence because of the death or unavailability of that person, as well as the other situations presently covered by s 259(2) of the 1995 Act. A further possible counterbalance would be to introduce a discretion for a trial judge to exclude hearsay evidence.59 Although the Scots law of evidence does use some open-­ended criteria in certain contexts,60 it has tended to avoid conferring discretion on questions of the admission and exclusion of evidence.61 However, in N v HMA,62 one of the appeal court judges noted with regret that s 259 of the 1995 Act (which widened the scope of admissible hearsay) had removed a discretion to exclude hearsay evidence, which he claimed trial judges had previously enjoyed. That case had examined the compatibility of hearsay evidence with the ECHR before the European Court’s guidance in Al-Khawaja and subsequent decisions. It is difficult to see what role a discretion to exclude evidence would play as a counterbalancing factor where hearsay has been the sole or decisive evidence at a trial. In these cases, the issue is whether a trial constitutes fair proceedings. If it held that the trial is not fair then the existence of a discretion to exclude hearsay adds nothing to what the court is obliged to do in any case in applying the Convention in the light of the Al-Khawaja test.

59

60

61

62

For a useful general discussion of discretion and hearsay evidence, see Duff, ‘Hearsay issues: (n 12) at 541–547. Such as the fairness test for the admissibility of confession evidence and the balancing test used in relation to irregularly obtained evidence. In the context of hearsay evidence, English law has both inclusionary and exclusionary discretion (Criminal Justice Act 2003 ss 114(1)(d) and 126). Given the nature of the changes being proposed here, there would be no scope for an inclusionary discretion for the Scots law on hearsay. 2003 JC 140 paras [23]–[25] per Lord Justice Clerk Gill, who argued that ‘there are bound to be cases in the circumstances of which hearsay evidence would be so prejudicial to the fairness of the trial that the only just and proper course would be to exclude it’.

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C. CONCLUSION Scots law has not been alone in attempting to achieve clarity in the law of hearsay in criminal proceedings. Traditional approaches to reforming the law by way of recommendations made by the Scottish Law Commission have made only modest changes, an experience shared by other legal systems in the common law world. While the problems with hearsay evidence have for a long time been recognised, suitable solutions have been elusive. In these circumstances, the time has come to follow William Twining’s general example and to subject the law of hearsay to rethinking.63 This chapter has argued that the commonly accepted notion of the ‘rule’ against hearsay should be critically scrutinised. There are a number of grounds for hesitancy or reluctance in allowing hearsay as admissible in criminal trials but these objections are of two general types. One focuses on problems which hearsay presents in relation to fact-­finding but such objections relate to questions of reliability and weight and not admissibility, and are not a basis for a ‘rule’ against hearsay. A different set of reasons for excluding hearsay is that it clashes with other values and principles in the law of evidence, such as relevancy, the best evidence rule and the right to confront witnesses. But in these situations, hearsay is not excluded simply because it is hearsay but rather to bring about coherence within the general law of evidence. This exercise in rethinking the law of hearsay points to its reform. There should be no objection to any evidence which is hearsay in nature. Rather the law of criminal evidence should follow the approach in civil law and provide that in criminal proceedings evidence should not be excluded solely on the ground that it is hearsay but is otherwise admissible.

63

W Twining, Rethinking Evidence. Exploratory Essays, 2nd edn (2006: Cambridge University Press).

Chapter 6 Eyewitness identification evidence and its problems: recommendations for change Pamela R Ferguson*

INTRODUCTION Identification of the accused as the perpetrator of a crime has been the subject of many Scottish appeals.1 Where identification is a contested issue, the prosecution may establish that the accused and the perpetrator are synonymous by a variety of means, such as fingerprint2 or DNA evidence,3 voice recognition,4 or eyewitness identification.5 This chapter focuses on

* The author was a member of Lord Bonomy’s Academic Expert Group, and the Bonomy Committee, but the views expressed in this chapter are those of the author alone. My thanks are due to the workshops’ many participants for comments on earlier drafts of this chapter, and in particular to Ronnie Clancy QC and Simon Di Rollo QC, for acting as discussants for the chapter at the final workshop. 1 For recent appeals relating to eyewitness identifications, in particular, see note 5 below. 2 Hamilton v HM Advocate 1934 JC 1. For a more recent case in which the sole evidence incriminating the appellant was a single fingerprint, see Cameron v HM Advocate [2012] HCJAC 164. See also Ross v HM Advocate [2016] HCJAC 54. 3 Welsh v HM Advocate 1992 SLT 193; Maguire v HM Advocate 2003 SLT 1307. More recent cases include Reid v HM Advocate [2016] HCJAC 41 and McGartland v HM Advocate 2015 SCCR 192. 4 McFadden and Spark v HM Advocate [2009] HCJAC 78; Bowes v Harvie [2014] HCJAC 83. 5 See Bell v HM Advocate [2014] HCJAC 127; Carlin and McCluckie v HM Advocate [2014] HCJAC 122; Brown v HM Advocate [2014] HCJAC 120; Snowden and Jennings v HM Advocate [2014] HCJAC 100; Docherty v HM Advocate [2014] HCJAC 71; Robson v HM Advocate [2014] HCJAC 3; Brodie v HM Advocate [2012] HCJAC 147; Campbell v HM Advocate [2013] HCJAC 104; McNally v HM Advocate [2012] HCJAC 156; NC v HM Advocate [2012] HCJAC 139; Toal v HM Advocate [2012] HCJAC 123. For consideration of issues which arise in relation to some other forms of identification evidence, see D C Ormerod, ‘Sounds familiar? Voice identification evidence’ (2001) Crim LR 595; C Carracher, ‘Voice identification evidence’ (1991) 16 Legal Service Bull 27; F Bates, ‘Identification from photographic evidence’ (1977) 6 Anglo-­Am L Rev 90; W de Villiers, ‘Fingerprint evidence has been under sustained attack in the United States of America for the last number of years: Is the critique with regard to reliability sufficiently penetrating to warrant the exclusion of this valuable evidence?’ (2012) 12 OUCLJ 317. For discussion of the problems associated with perpetrator identification from images, such as CCTV footage, see A Roberts, ‘Eyewitness identification and facial image comparison evidence in common law jurisdictions’, in T Valentine and J P Davis (eds), Forensic Facial Identification: Theory and Practice of Identification from Eyewitnesses, Composites and CCTV (2015: Wiley & Sons).

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the last of these, since it is widely accepted that the most common cause of wrongful convictions is mistaken eyewitness identification.6 The chapter is in three parts: Part A describes the various forms of eyewitness identification procedures employed in Scotland; Part B considers the problems associated with this type of evidence and critiques the Scottish approach; and Part C argues that we need to reform our processes if we are to avoid wrongful convictions. It makes ten principal recommendations for change. As explained in Cairns’s earlier chapter, the Carloway Review of 2010 recommended that the corroboration requirement be abolished. The controversy this engendered caused the Scottish Government to establish an Independent Reference Group (the Post-­Corroboration Safeguards Review), chaired by Lord Bonomy, to make further recommendations.7 His Lordship formed an Academic Expert Group (AEG) whose remit was to prepare a preliminary report for the Bonomy Committee on types of evidence which are notorious for causing miscarriages of justice.8 These included false or fabricated confessions; evidence given by accomplices and informers; hearsay evidence; and eyewitness misidentifications.9 As a member of the AEG, I was responsible for reporting on the last of these topics. The removal of the corroboration requirement could prove particularly problematic in respect of these forms of evidence. On the day on which Lord Bonomy’s committee submitted its report,10 the Scottish Government announced that it would reconsider its decision regarding corroboration.11 This review process has revealed that our laws and procedures in relation to eyewitness identification evidence are in need of ­reform – a­ nd this is so, whatever the fate of the corroboration requirement.

6

See E S Higgins and B S Skinner, ‘Establishing the relevance of expert evidence regarding eyewitness identification: comparing forty recent cases and psychological studies’ (2003) 30 Northern Kentucky Law Review 471 at 474. 7 The terms of reference for the Bonomy Review are available at: http://www.scottish.parliament. uk/S4_JusticeCommittee/Inquiries/20140205_CSfJ_to_CG_Ref_GP.pdf (last accessed 12 May 2016). 8 The Report of the Academic Expert Group is available at: http://www.gov.scot/Resource/0046/ 00460650.pdf (last accessed 12 May 2016). 9 See also L Dufraimont, ‘Regulating unreliable evidence: can evidence rules guide juries and prevent wrongful convictions?’ (2007–8) 33 Queen’s LJ 261 at 264, which lists ‘mistaken eye-­ witness identification evidence, perjured jailhouse informant testimony, false confessions and “junk” science from untrustworthy forensic experts’. 10 The Review completed its report in April 2015: see Post-Corroboration Safeguards Review: Final Report, available at: http://www.gov.scot/Resource/0047/00475400.pdf (last accessed 12 May 2016). 11 On 21 April 2015, the Scottish Justice Minister announced that the Criminal Justice (Scotland) Bill would proceed without the provision abolishing the corroboration requirement: http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/20150421_CSfJ_to_CG_ Bonomy.pdf (last accessed 12 May 2016). See now the Criminal Justice (Scotland) Act 2016.



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A. SCOTTISH EYEWITNESS IDENTIFICATION PROCEDURES (1) Pre-trial identification A witness to a crime may point out the perpetrator to the police during or in the immediate aftermath of a crime. This so-­called ‘street identification’ could be spontaneous, where the witness takes the initiative,12 or the police may show a suspect to a witness and ask whether or not the witness can confirm that this is the perpetrator. In 2007, the Scottish Lord Advocate issued revised Guidelines on the Conduct of Visual Identification Procedures.13 These provide that where a witness has made such an identification, the police officer should record the details, including where and how the identification was made, and the conditions at the time, including the distance between witness and suspect, the weather and lighting conditions, etc.14 Another informal method of identification is the ‘showup’, in which the police show a single photograph of a suspect to a potential witness, sometimes several weeks or months after the incident. The Guidelines specify that this should be done using an emulator sheet15 containing photographs of at least eleven other persons who resemble the suspect.16 A record of these photographs should be kept and they should be available for production in court if required. If a positive identification is made as a result of this process, the police will generally organise a formal identification parade, which may be ‘live’ or electronic. In the former, a suspect is placed in a lineup, and witnesses are asked, one at a time, to indicate whether they recognise anyone in the parade as the perpetrator. The Scottish police are now more likely to conduct electronic parades, such as video identification parade electronic recording (VIPER), which uses photographs of people who resemble the suspect (known as ‘foils’) compiled from a central UK database.17 Once the foils have been selected, the witness sits at a TV or laptop and the images are 12 13

14 15

16 17

An example of this is the English case of R v Forbes [2000] UKHL 6. Guidelines on the Conduct of Visual Identification Procedures, available at: http://www.copfs. gov.uk/images/Documents/Prosecution_Policy_Guidance/Lord_Advocates_Guidelines/Lord%20 Advocates%20Guidelines%20-%20Conduct%20of%20Visual%20Identification%20 Parades%20-%20February%202007.PDF (last accessed 12 May 2016) (henceforth ‘Guidelines’). These were not the first such guidelines: the appeal court in Hanif v HM Advocate [2008] HCJAC 47, para [16] referred to ‘Guidelines on the Conduct of Identification Parades published in 1982 by the Scottish Home & Health Department’. Guidelines, ibid, Appendix B. This is also referred to as an ‘emulator board’ (Hanif v HM Advocate [2008] HCJAC 47), or a ‘photo-­spread’ (Kinsella v HM Advocate [2011] HCJAC 58). In the USA, the term ‘photo array’ is used to refer both to procedures similar to emulator boards and to video parades (National Research Council, Identifying the Culprit: Assessing Eyewitness Identification (2014: The National Academies Press) at 23. Guidelines (n 13) Appendix A. PROMAT (Profile Matching) is generally used in England and Wales. Both VIPER and PROMAT use photographs taken from a database.

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displayed one at a time, starting with a head and shoulders shot in which the person is looking directly at the camera. The head turns slowly to one side, then the other, to present a full right profile and a full left profile, and back to a front view.18 Each image is viewed for thirty seconds. The witness can view the parade twice before being asked to make a decision. The Guidelines state that: ‘Every precaution should be taken to ensure visual identification procedures are conducted in a manner that excludes any suspicion of unfairness or risk of erroneous identification,’19 and that it is ‘highly desirable’ that the suspect’s lawyer attend any formal identification parade.20 The officer conducting the parade and any other officers assisting him/her must have no connection with the suspect’s case.21 In a live parade, the stand-­ins should, so far as possible, resemble the suspect in terms of ‘age, height, dress and general appearance’.22 Suspects can chose their position in the lineup23 and are to be advised of their right to object to the composition of the parade or to any of the arrangements made.24 Reasonable requests should be accepted.25 In a VIPER, the suspect should be permitted to see the complete set of images before it is shown to a witness, and any objections noted.26 The Guidelines provide that immediately before the parade the police should read out a statement to the witness, worded to suit the witness’s age and capacity. The example given states that ‘the person you referred in your statement to the police . . . may or may not appear in the images shown’.27 This is an important safeguard:28 in a study which examined the rate of 18

19 20

21 22

23 24 25 26 27 28

A useful summary is given in A Memon et al, ‘A field evaluation of the VIPER system: a new technique for eliciting eyewitness identification evidence’ (2011) 17 Psychology, Crime & Law 711. This concluded that ‘video parades and live parades are not producing any differences in the rate of suspect identifications’ (at 723). Guidelines (n 13) 1. Ibid 2. In the US, a suspect has a right to have a lawyer present at a live parade, but only if this takes place after the suspect has been indicted (United States v Wade 388 US 218 at 235–237 (1967)) and has no right to have a lawyer present at a photo array procedure (United States v Ash 413 US 300 at 321 (1973)). Guidelines (n 13) Appendix C at 9. Guidelines ibid Appendix D, at 18. By contrast, in a VIPER procedure, the foils should resemble the suspect in terms of age, build (rather than ‘height’), dress and general appearance (Appendix C, 11). This is presumably because height is not easy to ascertain when looking at a photograph of a person’s head and shoulders. Guidelines (n 13) Appendix D, at 21. Ibid at 17. Ibid at 18. Ibid Appendix C, at 11. Ibid Appendix C, at 13 (VIPER) and Appendix D, at 21 (‘live’ parade) (emphasis added). This recommendation is frequently made in the literature: see L Gould et al, ‘Reforming the use of eyewitness testimony’ (2010) 35 Okla City UL Rev 131; G L Wells et al, ‘Eyewitness identification procedures: recommendations for lineups and photospreads’ (1998) 22 Law and Human Behavior 1 at 23, and S Rabner, ‘Evaluating eyewitness identification evidence in the 21st century’ (2012) 87 NYUL Rev 1249 at 1265.



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‘identifications’ using mock lineups where the ‘perpetrator’ was not in fact present, 78 per cent of witnesses made a ‘positive’ (but, of course, incorrect) identification when no warning was given. This dropped to 33 per cent when the witness was reminded that the suspect might not be present.29 (2) Identification at trial Legislation provides that the prosecution can use a report of a pre-­trial identification procedure as evidence at trial, and there is a presumption that the person identified in the report is the accused.30 When a witness testifies that s/he recognises the person seated in the dock as the perpetrator this is known as ‘in-­court’ or ‘dock’ identification. In many jurisdictions, including England and Wales, Australia and Ireland, this process is treated as of little value unless it is used merely to confirm an earlier identification made by the same witness. Dock identification does, however, constitute a primary means of identifying the accused in Scottish trials. Although there will often have been a time interval of several months between the commission of a crime and the trial, if the witness does purport to be able to identify the accused at trial, this is regarded as strong evidence; indeed, the Jury Manual advises Scottish judges that dock identification is ‘the best evidence’ that the accused was the perpetrator.31 A witness who is unable to make a dock identification is permitted to testify to having made a positive identification of the perpetrator on a prior occasion. Police officers are permitted to testify that the accused was identified by the witness on that earlier occasion.32 Such evidence is capable of corroborating a positive identification by another witness, and the appeal court has held that the police can testify about the prior positive identification, even if the witness testifies at trial that the accused is not the perpetrator.33 29

30

31

32

33

Wells et al, ‘Eyewitness identification procedures’ (n 28) at 11, citing R S Malpass and P G Devine, ‘Eyewitness identification: lineup instructions and the absence of the offender’ (1981) 66 Journal of Applied Psychology 482. The NRC Report also recommends this instruction be given ((n 15 at) 107). Criminal Procedure (Scotland) Act 1995 s 281A, inserted by the Vulnerable Witnesses (Scotland) Act 2004 s 4. The accused has seven days in which to challenge the contents of this report: s 281A(2) and (3) of the 1995 Act. Jury Manual: Some Notes for the Guidance of the Judiciary (Judicial Institute for Scotland, 2015) ch 16, 1). Available at: http://www.scotland-judiciary.org.uk/Upload/Documents/ JuryManual2015.pdf (last accessed 12 May 2016). Muldoon v Herron 1970 JC 30: ‘Not infrequently one has . . . the situation where a witness who identified the driver of a motor car to the police at the time and so depones in the [witness] box, is unable, by reason of lapse of time perhaps, to identify the accused in court. This gap in his evidence is completed by police evidence that the accused was the person so identified’ (at 34 per Lord Justice-­Clerk Grant). Muldoon v Herron, ibid. See also Smith v HM Advocate 1986 SCCR 135; Neeson v HM Advocate 1984 SCCR 72; Maxwell v HM Advocate 1990 JC 340.

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B. THE PROBLEMATIC NATURE OF EYEWITNESS IDENTIFICATION EVIDENCE The potential for miscarriages of justice inherent in eyewitness identification evidence has been a focus of concern in many jurisdictions.34 More than forty years ago the English Criminal Law Revision Commission concluded that this type of evidence constituted the greatest cause of actual or potential wrongful convictions.35 The advent of DNA analysis has shown such concerns to be justified; eyewitness misidentification is said to have featured in 50–75 per cent of wrongful convictions in the USA.36 Its dangers have also been recognised by the Scottish appeal court, which has referred to the ‘notorious’ risk of miscarriages of justice in cases based on eyewitness identification.37 (1) Estimator variables The United States’ National Research Council (NRC) recently assessed the scientific research on eyewitness identification and made recommendations for best practice.38 Its report notes the many factors which can affect the accuracy of eyewitness identifications, and distinguishes between ‘estimator’ and ‘system’ variables.39 The former are inherent in the nature of the witness, the locus of the incident, or the processes of memory. Each of these phenomena has been well documented by empirical research. Some are matters of common sense, for example, that one’s ability to recognise a perpetrator is reduced if the crime takes place at night or in other circumstances involving reduced lighting conditions; and, similarly, that the greater the distance between the perpetrator and the witness or the longer the time interval between the crime and the identification (ID) parade, the less likely it is that the witness will be able to identify the perpetrator. However, many 34

35 36

37

38 39

England: Criminal Law Revision Commission, Evidence (Cmnd 4991, 11th Report, 1972); Australia: Law Reform Commission, Report on Uniform Evidence Law (ALRC Report 102, 2006) para 13.4, citing Alexander v The Queen (1981) 145 CLR 395 at 426; Canada: Dufraimont, ‘Regulating unreliable evidence’ (n 9) at 266–267; see also J Burchill, ‘“That’s the man!” Admission of positive assertions in court and police identification procedures’ (2013–14) 37 Manitoba Law Journal 195; USA: M M Koosed, ‘Reforming eyewitness identification law and practices to protect the innocent’ (2008–9) 42 Creighton L Rev 595 at 596. Criminal Law Revision Commission, Evidence (n 34) para 196. Koosed, ‘Reforming eyewitness identification law’ (n 34) at 597. Wells et al note that it has been suggested that ‘cases of proven wrongful convictions of innocent people have consistently shown that mistaken eyewitness identification is responsible for more of these wrongful convictions than all other causes combined’: Wells et al, ‘Eyewitness identification procedures’ (n 28). See also G L Wells, ‘Eyewitness identification: systemic reforms’ (2006) Wis L Rev 615. Gage v HM Advocate [2011] HCJAC 40 para [29], reiterated in NC v HM Advocate [2012] HCJAC 139 para [10]. NRC Report (n 15). Ibid at 16–17. See also at 72.



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other estimator variables are counter-­intuitive. We may believe that our ability to remember faces is rather good, but in fact people are generally not adept at recognising someone with whom they are not well acquainted, and this is exacerbated where witness and perpetrator are from different ethnic groups.40 People sometimes misidentify even those whom they know ­well – s­omething most of us have experienced in our own lives.41 It may be thought that unusual experiences, such as witnessing a crime, would be remembered more clearly than other, mundane events. In fact, stressful situations such as a violent crime lead to a decrease in the likelihood of later accurate identification of the perpetrator.42 In particular, the presence of a weapon, for example in an armed robbery, decreases the likelihood of accurate identification of the perpetrator.43 We tend to assume that a witness who seems certain is more likely to be right than one who seems hesitant or less sure,44 and the confidence with which eyewitnesses express their identifications at trial is often regarded as crucial in determining accuracy.45 There is, however, less correlation than is generally supposed between confidence at t­rial – a­ s distinct from during a pre-­trial identification procedure – and accuracy of identification.46 This makes it very difficult for a judge or jury to assess such evidence. Although estimator variables are not amenable to correction by the criminal justice process, it is important that juries be made aware of their potential to impact

40

41 42

43

44

45 46

See Rabner, ‘Evaluating eyewitness identification evidence’ (n 28) at 1267, citing thirty-­nine studies and 5,000 identifications. Roberts also cites several studies in support of this: A Roberts, ‘The problem of mistaken identification: some observations on process’ (2004) International Journal of Evidence and Proof 100 at 101, n 7. See also A Baxter, ‘Identification evidence in Canada: problems and a potential solution’ (2007) 52 Crim LQ 175 at 178 (the author refers to this as the ‘other-­race effect’; B L Cutler and S D Penrod, Mistaken Identity: The Eyewitness, Psychology and the Law (1995: Cambridge University Press) at 104. E F Loftus, Eyewitness Testimony (1996: Harvard University Press) at 40. S G Thompson, ‘Beyond a reasonable doubt? Reconsidering uncorroborated eyewitness identification testimony’ (2008) 41 UC David L Rev 1487 at 1501. Cutler and Penrod, Mistaken Identity (n 40) at 101–102. The authors call this ‘weapon focus’. See also Thompson, ‘Beyond a reasonable doubt’ (n 42) at 1493, and Rabner, ‘Evaluating eyewitness identification evidence’ (n 28) at 1266–1267. Baxter, ‘Identification evidence in Canada’ (n 40) at 180, citing P Wall, Eye-Witness Identification in Criminal Cases (1965: CC Thomas) at 19. See also B L Cutler et al, ‘Juror sensitivity to eyewitness identification evidence’ (1990) 14 Law and Human Behavior 185; K A Deffenbacher and E F Loftus, ‘Do jurors share a common understanding concerning eyewitness behavior?’ (1982) 6 Law and Human Behavior 15; Cutler and Penrod, Mistaken Identity (n 40) at 179. Wells et al, ‘Eyewitness identification procedures’ (n 28) at 15. A point often made in the literature: see ALRC Report (n 34) para 13.5; R A Wise et al, ‘A tripartite solution to eyewitness error’ (2007) 97 J Crim L & Criminol 807, 855. See also C Sheehan, ‘Making the jurors the experts: the case for eyewitness identification jury instructions’ (2011) 52 B C L Rev 651 (Notes) at 658: ‘there is very little correlation between an eyewitness’s expressed confidence in an identification and its actual accuracy’.

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on the accuracy of an identification. How best to educate juries about this is discussed further below.47 (2) System variables In contrast, ‘system variables’ are characteristics of particular procedures and practices, such as the instructions given to witnesses participating in a lineup.48 Research has shown that biases can be introduced at this stage, even subconsciously, affecting the likelihood of a witness making an incorrect identification or expressing greater confidence in that identification than is warranted.49 These types of variables can be reduced, for example by requiring the police to employ standardised procedures. Street identifications or showups, as described above, are less amenable to standardised procedures. Although one UK study claimed that street identification is no less reliable than a video identification,50 the literature from the US is less sanguine:51 studies have shown that the one-­to-­one nature of showups makes them more likely to lead to misidentification than other forms of pre-­trial identification.52 A witness is permitted to testify at trial that the person s/he pointed out during a street identification or later showup was the perpetrator. The defence can attempt to cast doubt, during cross-­examination of the witness, on the accuracy of this type of identification, given the inherently suggestive circumstances, but the weight to be given to the identification remains an issue for the jury. This was stressed by the appeal court in Docherty v HMA53 in rejecting the defence’s challenge to the use of emulator sheets, and the court also noted that the jury had been given a cautionary direction by the trial judge.54 In England, witnesses may not be shown photographs of a suspect who is known to the police and available to take part in a formal ID procedure.55 47

48 49 50 51

52

53

54 55

Higgins and Skinner, in ‘Establishing the relevance’ (n 6) at 483, refer to five cases in which the accused had been convicted on eyewitness identification evidence, but later exonerated by DNA evidence, where ‘eyewitnesses who were subsequently contacted refused to give up their mistaken notion that the identified individual was guilty. This remarkable finding demonstrates how firmly impressions, once burned into the mind of an eyewitness, can be almost impossible to dislodge’. NRC Report (n 15) at 16. These are described in more detail below. A Roberts et al, ‘Should we be concerned about street identifications?’, (2014) Crim LR 633. A Luria, ‘Showup identifications: a comprehensive overview of the problems and a discussion of necessary changes’ (2008) 86 Nebraska L Rev 515. Ibid at 516. The same point is made in: B H Agricola, ‘The psychology of pretrial identification procedures: the showup is showing out and undermining the criminal justice system’ (2009) 33 Law & Psychology Review 125 at 127. [2014] HCJAC 71. See also Bell v HM Advocate [2014] HCJAC 127. For an Australian case, see R v Forbes [2009] ACTSC 1 (Sup Ct (ACT). Judges’ directions on identification evidence are considered further below. PACE Code D para 3.3.



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Empirical research has suggested that eyewitnesses identify a known wrong person (a stand-­in or filler) in approximately 20 per cent of police ID parades.56 As one author concludes, this means that a fifth of witnesses who are prepared to give sworn testimony that the accused is the perpetrator are unquestionably mistaken.57 This is especially problematic if the only evidence that the accused is the perpetrator is this erroneous identification. Legislation regulates eyewitness ID procedures in fourteen states in the US,58 and Code D of the Police and Criminal Evidence Act 1984 (‘PACE’) does likewise in England.59 A trial court may require the police to account for any failure to follow the procedures prescribed in Code D. Breach of its provisions will not necessarily result in a quashing of the conviction,60 but serious breaches may render an identification inadmissible. In Perry v UK,61 the applicant had failed to attend an ID parade, so the police modified their security cameras and recorded him in their custody suite. The video images were used to make a film which included footage from eleven volunteers who had copied the applicant’s actions as captured by the video. The European Court of Human Rights, noting that the English courts had found that the police had failed to comply with PACE Code procedures, ruled that this constituted a breach of art 8 of the European Convention on Human Rights (ECHR).62 As previously noted, Scottish police have recourse to the Lord Advocate’s Guidelines, but the current Guidelines do not have statutory force, and the appeal court has repeatedly stressed their non-­binding nature.63 Following the recommendations of the Bonomy Committee,64 this is set to change. Section 57 of the Criminal Justice (Scotland) Act 2016 now provides that the Lord Advocate ‘must issue a code of practice on . . . the conduct of identification procedures’, which must be laid before the Scottish Parliament.65 Once the new code has been issued and comes into operation, the criminal courts must take its requirements into account ‘when determining any 56 57 58 59

60

61 62 63

64

65

Thompson, ‘Beyond a reasonable doubt’ (n 42) at 1489. Ibid at 1489–1490. NRC Report (n 15) at 36. Police and Criminal Evidence Act 1984 Code D para 3.14, available at: https://www.gov.uk/ police-and-criminal-evidence-act-1984-pace-codes-of-practice (last accessed 12 May 2016). See R v Forbes [2000] UKHL 66, in which the police refused the appellant’s request for an ID parade, preferring to rely on a positive street identification. (2004) 39 EHRR 3. Article 8 protects the right to privacy. ‘[T]he guidelines to which we were referred are of course, only guidelines by the executive branch of government to police forces and beyond that have no legal status’ (Hanif v HM Advocate [2008] HCJAC 47 para [27]), reiterated in NC v HM Advocate [2012] HCJAC 139 at para [11]. Post-Corroboration Safeguards Review: Final Report (n 10) para 7.28. See also the Report of the Academic Expert Group (n 8) para 5.5(c). Criminal Justice (Scotland) Act 2016 s 57(6). At the time of writing, this is not yet in force.

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question arising in the proceedings to which the code is relevant’.66 This is a welcome reform; breaches of the current Guidelines have rarely impacted on the admissibility of identification evidence. For instance, we have noted previously that the Guidelines require a record to be kept of any objections made by suspects or their solicitors to the composition of the lineup, but in practice a parade may well proceed despite such objections. If the suspect refuses to participate, dock identification may be employed instead. In Gage v HMA,67 for example, both the suspect and his solicitor complained that the stand-­ins were aged between eighteen and twenty, while the suspect was thirty-­one. The officer conducting the parade accepted that there was a large age difference but concluded that this would not be unfairly prejudicial since masks were to be used to cover part of the participants’ faces, and the stand-­ ins were of the same ‘general height/build’ as the suspect. The parade had to be abandoned since the suspect was adamant that he would not participate. This was something of a Pyrrhic victory for Mr Gage; dock identification was nonetheless permitted at his trial. It may be argued that until s 57 is brought into force and a new code is drafted, the right to object is rather an empty one. In England, Code D of PACE states that whenever there is a witness who expresses an ability to identify the perpetrator, or where there is a reasonable chance of the witness being able to do so, an identification procedure ‘shall be held’.68 By contrast, in the Scottish case of NC v HMA,69 the appellant had requested a pre-­trial identification parade, but this had not been organised by the Crown. Despite this, dock identification was permitted at trial. The Scottish Jury Manual offers a form of wording which trial judges can adopt or adapt in cases where a dock identification has been made but either no pre-­trial identification parade was held or the witness failed to identify the accused pre-­trial.70 In the latter case, the recommendation is that the trial judge reiterate the defence’s assessment of such an identification to the jury, namely that the dock identification may be regarded as unreliable since, unlike an ID parade, there are no stand-­ins present in the dock. In fairness to the prosecution, however, the trial judge is advised to remind the jury that the witness had been cross-­examined about his identification.71 It is curious that the defence’s criticisms of the dock identification come first in the Jury Manual’s specimen charge, followed by the Crown’s rebuttal. This does not

66 67 68

69 70 71

Ibid s 57(7). [2011] HCJAC 40. PACE Code D para 3.12. There is an exception where it is not practicable to hold the parade or it would serve no useful purpose to do so. An example of the latter is where the suspect is already well known to the witness. [2012] HCJAC 139. Jury Manual ch 16, (n 31) at 6. Ibid at 6–7.



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reflect the order of the speeches to the jury, nor the principle that the defence ought to have the last word. In Holland v HMA,72 it was argued before the Supreme Court that dock identification infringed art 6 of the ECHR since it breached the privilege against self-­incrimination by compelling the accused to assist the prosecution in making its case. This argument was described by Lord Rodger as devoid of merit,73 but he did state that judges should give appropriate directions concerning the dangers of dock identification where a witness had failed to pick out the accused pre-­trial.74 He also noted that identification parades offer greater safeguards than dock identification, since the former generally take place much nearer the time of the offence, when a witness’s memory is fresher, and the use of stand-­ins lessens the risk that the witness is simply picking out someone who resembles the perpetrator. He acknowledged that the physical position of the accused during the ­trial – ­in the dock between two security ­guards – ­may imply that the accused is indeed the perpetrator, and that this poses a ‘considerable risk’ that the witness may be influenced towards making a positive identification, increasing the possibility of a wrongful conviction.75 Lord Rodger’s observations may have led defence practitioners to believe that pre-­trial identification procedures would become the norm, at least for solemn cases. This has not, however, transpired.76 C. RECOMMENDATIONS FOR CHANGE (1) Pre-trial procedures The way in which pre-­trial identification procedures are conducted is of great importance if we are to minimise the risks of mistaken eyewitness identification.77 As previously noted, a crucial difference between the current Scottish Guidelines and the English PACE Codes is that at present only the latter have statutory force: a breach of Code D by the police is likely to lead to the identification evidence being inadmissible at trial. Some such breaches may 72 73 74 75

76

77

[2005] UKPC D 1. Ibid para [36]. Ibid para [58]. Ibid para [47]. For a critique see F E Raitt and P R Ferguson, ‘Re-­configuring Scots criminal ­procedure – s­ eismic shifts?’ (2006) 10 Edin LR 102 at 109–112. See C Shead, ‘Identification and the statutory right under s. 290 of the Criminal Procedure (Scotland) Act 1995’ (2012) SCL 343. See Memon et al, ‘A field evaluation’ (n 18) at 726. For detailed recommendations for composing and conducting identification parades, see A D Rikard, ‘Why and how New York should enact mandatory statewide eyewitness identification procedures’ (2010–11) 74 Albany L Rev 1525 at 1549–1550, and also R C Park, ‘Eyewitness identification: expert witnesses are not the only solution’ (2003) 2 Law, Probability and Risk 305 at 308.

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be rectified by the trial judge giving an appropriate jury direction, but failure to give an adequate direction may lead to a conviction being quashed on ­appeal – ­even where the case against the appellant was a strong one.78 Once the Guidelines are replaced by a statutory code, if the code’s requirements are breached in a way which calls into question the accuracy or fairness of any identification, it is suggested that the Crown should have to establish at a pre-­trial hearing that this evidence is nonetheless reliable, and that if there is a material breach, this should result in the exclusion of the evidence. Although the current Guidelines note that it is ‘highly desirable’ that a suspect be legally represented during an ID parade,79 something being ‘desirable’ is not, of course, the same as it being mandated. The new code should make clear that suspects have a right to have a solicitor present during such procedures. Similarly, the Guidelines provide that there should be at least five stand-­ins/foils, but note that ‘justice may more clearly be seen to be done’ if there are six, seven or eight others.80 Thus there can be as few as six participants in a Scottish parade, compared to the minimum of nine required in England. Since the probability of false identification is inversely related to the number of lineup members,81 the new code should require a minimum of eight stand-­ins. Although the Guidelines specify that a witness can view a VIPER twice before being asked to make a decision, it seems that in practice many witnesses make a remark on first viewing, either to the effect that they are certain that a particular photo is that of the perpetrator, or that the perpetrator is not present.82 It would be preferable for the witnesses to be required to view the parade twice. The Guidelines provide that the officer-­in-­charge of the case should not be present during any part of a video ID process,83 but may be present in a live parade, so long as s/he takes ‘no active part’.84 This is not appropriate. Indeed, the research literature suggests that even the officer who is conducting the parade should not know the identity of the suspect.85

78

79 80 81

82

83 84 85

See, for example, R v Muhidinz [2005] EWCA Crim 2758. For a commentary on the case, see A Roberts, ‘Identification evidence: duty to conduct identification procedure’ (2006) 70 J Crim L 197. Guidelines (n 13) at 2. Ibid Appendix C, at 11 (VIPER) and Appendix D, at 19 (‘live’ parade). Wells et al (n 28) at 27. Thus where there are six people in a lineup, there is a one in six chance of a false identification. If there are nine participants, this drops to a one in nine chance. I am grateful to DSI Pat Campbell, Specialist Crime Division, Police Scotland, for insights into the practice of VIPERs. Guidelines (n 13) Appendix C, at 9. Ibid Appendix D, at 16. This safeguard is recommended by Rabner, ‘Evaluating eyewitness identification evidence’ (n 28) at 1265; Rikard, ‘Why and how’ (n 77) at 1540; D M Risinger, ‘Inquiry, relevance, rules of exclusion, and evidentiary reform’ (2010) 75 Brook L Rev 1349 at 1365; and Sheehan, ‘Making the jurors the experts’ (n 46) at 660.



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This is known as ‘double-­blinding’.86 Subconscious ­signals – ­a shift in body language, a slight sigh if the ‘wrong’ person is c­ hosen – c­ an influence a witness’s final choice of ‘perpetrator’.87 It is to be hoped that the code will introduce double-­blinding for ID parades. This may be more difficult to achieve in live parades, but it should be possible for VIPERs to be organised such that one officer prepares the images and notes which number corresponds to the suspect, with a different officer showing these images to the witnesses. The NRC Report favours double-­blinding.88 It also recommends that the officer conducting the parade should use standardised instructions to the witness to minimise bias,89 and that trial judges should make inquiries pre-­trial about the procedures used, including whether the lineup had been administered ‘blindly’.90 The current Guidelines provide for a written record to be made of the parade,91 but in contrast to the PACE Code, there is no requirement that the procedure be video recorded.92 The NRC Report recommends that the video recording of ID procedures should become standard practice in the US,93 and the Scottish code should contain a similar requirement. This would allow both the trial court and the appeal court to assess an ID parade’s fairness. Learning that other witnesses have identified the same person, that the police have other evidence suggesting that the suspect is indeed the perpetrator, or that the suspect has previous convictions, can each increase witnesses’ professed ‘confidence’ that they have identified the ‘right’ person, but these factors are, of course, unrelated to their remembrance of the incident.94 To avoid such artificial enhancements of ‘recollection’, the research literature suggests that witnesses should be asked immediately following an identity procedure about their level of confidence in their identification.95 The new code ought to include this requirement. Some of the research literature suggests that identifications should be 86 87

88 89 90 91 92

93 94 95

Sheehan, ‘Making the jurors the experts’ (n 46). L Garrioch and C A E Brimacombe, ‘Lineup administrators’ expectations: their impact on eyewitness confidence’ (2001) 25 Law and Human Behavior 299 at 306. It should be noted that the ‘lineup administrators’ in this study were psychology students. NRC Report (n 15) at 106 (Recommendation # 2). Ibid at 107 (Recommendation # 3). See also at 25. Ibid at 109 (Recommendation # 6). Guidelines (n 13) 4. Pace Code D, para 23. If this is impractical, a photograph should be taken of the parade. In 1998, the Executive Committee of the American Psychology/Law Society Sub-­Committee drafted good practice guidelines for constructing and conducting lineups and photospreads (see Wells et al, ‘Eyewitness identification procedures’ (n 28) at 32). They did not recommend that parades be video-­recorded for financial reasons, but this is now more affordable. NRC Report (n 15) at 108–109 (Recommendation # 5). Ibid. Wells et al, ‘Eyewitness identification procedures’ (n 28) at 27–28. This is also recommended by the NRC Report (n 15) (Recommendation # 4).

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done sequentially, with an image being shown to a witness and the witness being asked whether the image is or resembles the perpetrator, before being shown the next image.96 This approach is controversial, and more work needs to be done to verify the findings of studies which have used this method.97 The key point, however, is that in drafting the new code there is a wealth of empirical data which ought to be consulted and applied to improve Scottish practice in this area. (2) Abolition of dock identification While reforming pre-­trial identification procedures would go a long way in minimising miscarriages of justice based on mistaken identification, this will not be fully effective if Scotland continues to allow dock identification. More than forty years ago the Thomson Committee recommended that this should no longer be permitted where the witness had failed to identify the accused at an earlier ID parade.98 The recommendation was not implemented, and the appeal court has repeatedly rejected the argument that it is unfair to allow a witness to attempt to identify the person in the dock where there had been no pre-­trial identification.99 In one case, the court had been cleared of members of the public, leaving the accused as the only person who could be identified: dock identification was nonetheless permitted.100 As previously noted, the Scottish approach is in contrast to that taken in other jurisdictions, where this form of identification is generally regarded as being of little probative value when made by a witness who has no prior knowledge of the accused.101 The Devlin Report made a similar recommendation for English law to that of 96

97

98

99

100 101

See the US Department of Justice’s recommendations: witnesses are to be instructed that: ‘Individual photographs will be viewed one at a time . . . The photos are in random order. . . . Take as much time as needed in making a decision about each photo before moving to the next one’ (Eyewitness Evidence: A Guide for Law Enforcement (1999) at 34 (emphasis added)). For an assessment, see Z L Winzeler, ‘Whoa, whoa, whoa . . . one at a time: examining the responses to the Illinois study on double-­blind sequential lineup procedures’ (2008) 4 Utah Law Review 1595. The NRC Report noted that there is at present no consensus as to whether sequential or simultaneous procedures result in greater accuracy (at 24). Departmental Committee on Criminal Procedure in Scotland (Cmnd 6218, 1975) paras 46.10 and 46.13. A working party chaired by Sheriff Principal Bryden also considered the question, but ‘decided against proscribing dock identifications where these have not been preceded by an identification outwith the court’ (Bryden Report on Identification Procedures Under Scottish Criminal Law (Cmnd 7096/1978) cited in Holland v HM Advocate [2005] UKPC 1 paras [54]–[55]). See, for example, McLean v HM Advocate [2011] HCJAC 99; NC v HM Advocate [2012] HCJAC 139; Toal v HM Advocate [2012] HCJAC 123 and Macklin v HM Advocate [2013] HCJAC 80; Robson v HM Advocate [2014] HCJAC 53; Docherty v HM Advocate [2014] HCJAC 71. Dudley v HM Advocate 1995 SCCR 52. For example, Australia: Alexander v The Queen (1981)145 CLR 395 at 426–427, cited in ALRC Report (n 34) para 13.93; Canada: R v Johnson [2003] OJ No 3580.



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the Thomson Committee.102 As with Thomson, this was not implemented. However, while dock identifications are not technically inadmissible in England, they are regarded as undesirable, particularly in jury trials.103 The Scottish Parliament should provide by legislation that where the identity of the accused as the perpetrator is at issue and there has been no pre-­trial identification of the accused by the witness, dock identification evidence should generally be inadmissible. An exception should be made where the accused refused, without good reason, to cooperate in the holding of a pre-­trial identification procedure, or it was not otherwise reasonable for such a procedure to be held. It would then become important to ascertain at an early stage whether identification is likely to be a contested issue at the trial, so that identification may be attempted while witnesses’ memories are fresh. Current legislation allows the prosecution to serve notice on an accused that certain evidence is considered to be uncontroversial, and will be taken to be undisputed unless challenged by the accused at the first court appearance.104 This legislation could be amended to allow identification evidence to be subject to a similar pre-­trial agreement, unless challenged. If it is challenged, an ID parade should then be held. (3) Judicial discretion to rule that evidence is inadmissible105 Rule 403 of the US Federal Rules of Evidence provides that evidence may be excluded ‘if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury’. In a recent case on identification evidence, the US Supreme Court referred to Rule 403 as one of the safeguards of the adversarial system, designed to ‘caution juries against placing undue weight on eyewitness testimony of questionable unreliability’.106 In England, the Devlin Report recommended that the law be amended to allow a trial judge to exclude evidence of a pre-­trial identification where a breach of police procedures has rendered the identification unsatisfactory.107 Instead, a more general provision was enacted: s 78(1) of PACE 102

103

104

105 106 107

Report of the Departmental Committee on Evidence of Identification (1976: HMSO) para 8.7. The report is available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/ file/228523/0338.pdf (last accessed 12 May 2016). In Barnes v Chief Constable of Durham [1997] 2 Cr App R 505, it was recognised that dock identifications could be employed for practical reasons in driving cases in the magistrates’ court. The procedure involves serving a statement of uncontroversial evidence: see the Criminal Procedure (Scotland) Act 1995 s 258. This is recommended by Baxter, ‘Identification evidence in Canada’ (n 40) at 176–177. Perry v New Hampshire 132 S Ct 716 (2012) at 728–729. Report of the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (Cmnd 338, HMSO 1976 (Devlin Report)) para 8.8, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/ file/228523/0338.pdf (last accessed 17 May 2017).

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now provides that a judge may refuse to allow evidence whose admission ‘would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’. This provision has been applied to quash convictions where there have been breaches of PACE Code D.108 A similar provision should be enacted for Scotland. (4) Judicial discretion to direct an acquittal At present, a Scottish trial judge may rule at the close of the Crown evidence that there is no case for the accused to answer, and acquit the accused.109 The test is whether there is sufficient evidence for ­conviction – ­that is, whether there is corroboration. In cases conducted under solemn procedure, the judge may not usurp the jury’s decision purely on the basis that the quality of one or more pieces of evidence is too weak to sustain a conviction.110 In England, the Devlin Report recommended that trial judges be given discretion to direct an acquittal where the prosecution cases comprised problematic identification evidence,111 and this was adopted in R v Turnbull.112 In the words of Lord Widgery CJ: When, in the judgment of the trial judge, the quality of the identifying evidence is poor as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions . . . (the) judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.113

In similar fashion, it is suggested that Scottish legislation should specify that where identification is particularly weak, a trial judge has discretion to direct an acquittal. (5) Expert testimony114 In one study in the US, the authors examined forty recent cases in which convictions based on erroneous eyewitness identification had later been 108

109 110 111 112 113 114

See, for example, R v Sangarie [2001] EWCA Crim 1734, and contrast R v Brown [1991] Crim LR 368. For a critique, see A Roberts, ‘Pre-­trial defence rights and the fair use of eyewitness identification procedures’ (2008) 71 MLR 331. In R v Quinn [1990] Crim LR 591 (CA (Crim Div)), Lord Lane CJ stated that the function of the judge under s 78 was to protect the fairness of the proceedings, and that proceedings may become unfair ‘where there has been an abuse of process, e.g. because evidence has been obtained in deliberate breach of procedures laid down in an official code of practice’. Criminal Procedure (Scotland) Act 1995 s 97. Williamson v Wither 1981 SCCR 214. See also Strachan v HM Advocate [2011] HCJAC 28. Devlin Report (n 107) paras 4.55 and 4.83. [1977] QB 224. Ibid at 229–230. See also R v Fergus (1994) 98 Cr App R 313. For a more detailed critique of the issues relating to expert testimony, see Nicolson and



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quashed due to DNA evidence. In not one of these forty cases had the jury heard expert evidence relating to the reliability of eyewitness testimony.115 In the Scottish case of Gage,116 the defence sought to introduce evidence from a psychologist to explain to the jury that stressful events such as witnessing a crime (in this case, a murder) tend to decrease identification accuracy; and that information acquired by a witness after an incident can distort the memory of that incident. In rejecting expert testimony, the appeal court listed several objections to it: the credibility and reliability of eyewitness evidence is a question for the jurors;117 the ‘invariable practice’ is for the trial judge to give them ‘a specific and thorough direction’ that warns them that such evidence may be unreliable;118 and the ability of the defence to highlight potential unreliability during cross-­examination and lead evidence of factors that might affect the reliability of the identification.119 Cross-­examination is often regarded as one of the great strengths of the adversarial process, and the Scottish courts have put great store on its ability to uncover ‘the truth’.120 Although it can be useful in detecting when a witness is lying, cross-­examination is less successful in determining the accuracy of an identification.121 As one Canadian judge put it, the danger of mistaken visual identification lies in the fact that the identification comes from witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken. Because they are honest and convinced, they are convincing.122

115 116

117 118 119 120

121

122

Auchie, Chapter 7, in this volume, ‘Assessing witness credibility and reliability: engaging experts and disengaging Gage?’. Higgins and Skinner, ‘Establishing the relevance’ (n 6) at 478. [2011] HCJAC 40. The case is described in more detail by Nicolson and Auchie, Chapter 7, in this volume. Ibid para [28] per LJC Gill. Ibid para [29]. Ibid para [30]. See Robson v HM Advocate [2014] HCJAC 53. It has been remarked that the right to cross-­ examine is ‘enveloped with clouds of eulogy, almost apotheosized for its role in truth-­ discovery’ (M R Damaška, Evidence Law Adrift (1997: Yale University Press) at 77). ‘Cross-­examination . . . is largely useless for detecting witnesses who are trying to be truthful but are genuinely mistaken’: Wells et al, ‘Eyewitness identification procedures’ (n 28) at 6. According to the Devlin Report, with honest but mistaken eyewitness identifications the ‘weapon of cross-­examination is blunted’ (para 1.24). See also J C Brigham and R K Bothwell, ‘The ability of prospective jurors to estimate the accuracy of eyewitness identifications’ (1983) 7 Law and Human Behavior 19; G L Wells and R Lindsay, ‘How do people infer the accuracy of eyewitness memory?’, in S M Lloyd-­Bostock and B R Clifford (eds), Evaluating Witness Evidence (1983: Wiley-­Blackwell); Wise et al, ‘A tripartite solution’ (n 46) at 828. The limits of cross-­examination as a safeguard are also considered in Cutler and Penrod, Mistaken Identity (n 40) at 143. R v Atfield 25 Alta LR (2d) 97 (1983) para [3] per Belzil J. See also Roberts, ‘The problem of mistaken identification’ (n 40) at 106.

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Even the most thorough of cross-­examinations is unlikely to reveal that an identification is in fact mistaken, and the Scottish appeal court should no longer treat it as a reliable forensic technique in such cases. The court in Gage stressed that jurors’ judgment of the reliability of any identification was ‘a matter of life experience’123 but this fails to recognise that lay people have been shown to be generally ignorant of many of the dangers associated with some forms of identification evidence, as described above. Australia is similar to Scotland in holding that expert evidence is not required for issues which are matters of ‘common knowledge’, but its Law Reform Commission has been critical of this, pointing out that it deprives the courts of the benefits of research into the way the memory works in relation to identification.124 Concern that expert testimony would ‘create a climate of disbelief’, leading to jurors becoming overly sceptical of all eyewitness identifications, was also expressed by the court in Gage.125 Empirical studies with mock juries have shown that this need not occur: exposure to expert testimony caused participants in one study to assess the prosecution case as weaker when the perpetrator was disguised and armed, and when there was a lengthy time period between the crime and the identification, but to regard the case as stronger when the opposite conditions were ­present – ­all of which seems reasonable.126 The admission of expert testimony has been advocated for many years, and by many authors,127 and in 2009 the US Supreme Court finally held that the value of expert evidence far outweighed any prejudice or confusion it might cause.128 The Court ruled that an expert witness could educate jurors: about the psychological literature on the impact of stress on identifications; on cross-­racial identifications; on the distorting effects of post-­event information; and the weak correlation between witness confidence at trial and accuracy of identification.129 The NRC Report recommends that judges in the 123

124 125 126

127

128

129

[2011] HCJAC 40 para [30]. Gage was followed in Snowden and Jennings v HM Advocate [2014] HCJAC 100. ALRC Report (n 34) para 9.125. [2011] HCJAC 40 para [32]. B L Cutler et al, ‘The eyewitness, the expert psychologist, and the jury’ (1989) 13 Law and Human Behavior 311. See S D Penrod and B Cutler, ‘Preventing mistaken convictions in eyewitness identification trials’, in R Roesch et al (eds), Psychology and Law (1999: Springer) 89; Wise et al, ‘A tripartite solution’ (n 46); Dufraimont, ‘Regulating unreliable evidence’ (n 9) at 321 and 324–352; Rikard, ‘Why and how’ (n 77) at 1542; J Copeland, ‘Helping jurors recognize the frailties of eyewitness identification evidence’ (2002) 46 Crim LQ 188; E Stein, ‘The admissibility of expert testimony about cognitive science research on eyewitness identification’ (2003) 2 Law, Probability and Risk 296. United States v Smith 621 F Supp 2d 1207 (2009). See also Commonwealth of Pennsylvania v Walker 92 A 3d 766 (2014). Ibid at 1218. See M Stoneman, ‘United States v Smith: an example to other courts for how they should approach eyewitness experts’ (2011) 60 Cath U L Rev 533.



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US be given discretion to allow testimony from specialists in eyewitness identifications.130 It may, however, be suggested that expert evidence would not be required if instead jurors were given more ­detailed – a­ nd ­mandatory – ­judicial warnings. We turn now to this final potential safeguard. (6) Mandatory judicial warnings Nearly forty years ago, the then Lord Justice-­General issued a practice note which suggested that in cases based on a ‘fleeting glance’ or similarly problematic identification, trial judges should ‘continue to follow the sound practice’ of warning the jury to approach the assessment of the evidence with particular care.131 The Jury Manual also suggests that juries be reminded that powers of observation can be fallible, and that errors can occur in identification.132 Jurors may be invited to consider the opportunity the witness had to see the perpetrator: the state of the lighting; whether there was time for a reliable observation to be made; whether the perpetrator was clearly visible or the sighting obscured in some way; whether the perpetrator was someone previously known to the witness and recognised as such, or a stranger; whether the perpetrator had some easily distinguishable feature; whether the witness’s memory might have been affected in any way. Less happily, the Manual suggests that jurors be asked to consider how positive the identifications were, both in court and pre-­trial.133 As previously noted, however, confidence in identification at the trial is not strongly correlated to accuracy of identification. In practice, the nature and extent of warnings is largely at the discretion of the trial judge and detailed directions are not always given.134 Although failure to give any warning in a case in which identification is at issue may amount to a misdirection,135 this need not be fatal to a conviction. Of course, even when detailed warnings are given, juries may not always understand and abide by them,136 and the prohibition on asking jurors about their 130 131

132 133 134 135

136

NRC Report (n 15) at 111 (Recommendation # 8). See the Commentary to McAvoy v HM Advocate 1991 SCCR 123 at 131 per Lord Emslie, and Appendix H of the Bryden Report. Jury Manual (n 31) ch 16 at 3. Ibid at 5. See McAvoy v HM Advocate 1991 JC 16 at 26; Blair v HM Advocate 1994 SLT 256 at 259. See Webb v HM Advocate 1996 JC 166 (a case in which the witnesses had been drunk when the crime was committed). Wise et al, ‘A tripartite solution’ (n 46), cite studies that demonstrate jurors’ inability to understand trial judges’ instructions relating to assessment of identification evidence (at 831–833). One American study found that jurors understood about half of the instructions they receive from trial judges: A Reifman et al, ‘Real jurors’ understandings of the law in real cases’ (1992) 16 Law and Human Behavior 539. It has, however, been suggested that jury instructions can be effective: see F Leverick, ‘Jury instructions on eyewitness identification evidence: a re-­evalution’ (2016) 49 Creighton Law Review 567.

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­ eliberations makes it difficult to know whether one ought to have confid dence in their abilities in this regard.137 It might be suggested that too many, detailed judicial directions on a variety of evidentiary issues may risk jurors becoming bamboozled by a surfeit of information. Evidence from other jurisdictions, however, suggests that jurors are able to cope.138 Following the decision in Turnbull,139 trial judges in England must warn juries of the dangers inherent in some forms of disputed eyewitness identifications where this forms the whole or main part of the prosecution case, and of the special need for caution in assessing such evidence. The jury must be instructed to examine closely the circumstances in which the identification came to be made. Turnbull provided a list of questions, covering similar issues to those noted above from the Scottish Jury Manual.140 Failure to give a Turnbull warning is generally sufficient per se to invalidate a conviction which is substantially based on identification evidence.141 Likewise, in Australia, Canada and Ireland, trial judges must warn juries about the need to be particularly cautious in assessing certain forms of identification evidence, and should list the factors which can affect the reliability of such evidence.142 The Australian Law Reform Commission considered whether to amend the relevant statute to specify that such warnings were required only where the reliability of the identification evidence was in dispute. It concluded that this was not ­necessary – ­largely because other, similar sections of the legislation would also require to be amended.143 It is submitted that Scotland ought to include this factor; detailed warnings would be likely to confuse jurors if given in cases in which the identification evidence is uncontested. Trial judges should, however, be required to warn juries of the dangers of convicting in cases involving fleeting-­glance or similarly problematic identification evidence, if identification is a central issue at trial. A form of wording should be specified in the Jury Manual to minimise appeals, but some discretion is needed to allow for the circumstances of 137

138 139 140

141 142

143

Research into juries’ deliberations is prohibited in the UK by the Contempt of Court Act 1981 s 8, and by the common law. For a critique see P R Ferguson, ‘The criminal jury in England and Scotland: the confidentiality principle and the investigation of impropriety’ (2006) 10 International Journal of Evidence and Proof 180. Research by Cheryl Thomas on mock juries has, however, concluded that a high percentage of jurors cannot retain even quite simple i­nstructions – ­see Are Juries Fair? (2010: Ministry of Justice) para 3.3. See Leverick, ‘Jury instructions’ (n 136). [1977] QB 224. No particular form of words needs to be used but ‘the trial judge must ensure that the full force of the Turnbull direction is conveyed to the jury in whatever words are chosen’: R v Nash [2004] EWCA Crim 2696 para [8] per Mr Justice Hedley. Beckford v R (1993) 97 Cr App R 409 at 415 per Lord Lowry (emphasis in original). Australia: Uniform Evidence Act 1995 s 116; Canada: R v Mezzo [1986] 1 SCR 802, cited by Dufraimont, ‘Regulating unreliable evidence’ (n 9) at 268; Ireland: People (Ag) v Casey No2 [1963] IR 33. ALRC Report (n 34).



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each case. Juries should be informed that confidence in asserting a ‘positive’ identification at trial is not necessarily associated with accuracy. Written guidance which jurors can consult during their deliberations should supplement the judge’s oral charge to the jury, thereby increasing jurors’ ability to understand these directions. It should, however, be borne in mind that the vast majority of criminal cases are dealt with by way of summary procedure, in which there is no jury. It is unnecessary, and in some cases may even be incompetent, for a party to lead evidence concerning a matter which is ‘within judicial knowledge’, but although judges are aware that identification evidence is potentially problematic, it is unlikely that they all have a sufficiently detailed knowledge of the true nature and extent of the problem. It is advisable, therefore, for there to be regular judicial training on the perils of eyewitness identification evidence. D. CONCLUSIONS The proposed abolition of the corroboration rule has prompted a re-­ examination of many aspects of the Scottish law of evidence. Whether corroboration remains an essential requirement or not, there is much that is wrong with our approach to eyewitness identification evidence, with some of the traditional features of criminal procedure which have been championed as safeguards against wrongful conviction offering insufficient protection for the innocent accused. Rather than assume that a positive identification of the accused as the perpetrator is always a strong piece of evidence, requiring little to corroborate it, we need to recognise that some forms of eyewitness identification are inherently ­problematic – ­however confidently expressed at ­trial – a­ nd that strong corroborative evidence should be required before convicting someone on this basis. This chapter therefore makes several recommendations for change:   1. The new code of practice should require ID parades to have a minimum of eight foils, employ ‘double-­blinding’ procedures, and be video-­recorded.   2. Where the code’s requirements have been breached in a way which calls into question the accuracy or fairness of any identification, the Crown should have to establish at a pre-­trial hearing that the identification evidence is nonetheless reliable.   3. The code should make clear that suspects have a right to have a solicitor present during such procedures.   4. The code should require witnesses to view a parade twice before being asked whether the perpetrator is present, and be asked immediately thereafter about their level of confidence in any identification they have made.  5. In cases in which there has been no pre-­trial identification, and the

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identity of the accused as the perpetrator is at issue, dock identification evidence should generally be inadmissible.   6. If dock identification is not abolished, jurors should be informed that confidence in asserting a ‘positive’ identification at trial is not necessarily associated with accuracy. The Jury Manual should be amended to reflect this.   7. Scottish trial judges should be given similar authority to exclude evidence to that found in s 78(1) of PACE, they should have discretion to direct a jury to acquit where ID evidence is particularly weak, and they should be required to warn juries of the dangers of convicting in cases involving fleeting-­glance or similarly problematic identification evidence.  8. More research should be done on the impact of expert eyewitness testimony.   9. The judge’s charge to the jury should be supplemented by written guidance which jurors can consult during their deliberations. 10. There should be greater judicial training on the perils of eyewitness identification evidence. The most pressing reform is the fifth of these: the abolition of dock identification. Many of the other reforms proposed above could be achieved by their inclusion in the new code, and the decision to replace the Lord Advocate’s Guidelines with a statutory code is to be welcomed. Much will depend, however, on whether trial judges are prepared to exclude eyewitness identification ­evidence – ­and the appeal court is prepared to allow a conviction to be ­quashed – ­where there has been a material breach of the code’s provisions. This in turn requires judges to appreciate the real dangers inherent in some forms of eyewitness identifications.

Chapter 7 Assessing witness credibility and reliability: engaging experts and disengaging Gage? Donald Nicolson and Derek P Auchie

INTRODUCTION Notwithstanding the increasing ‘scientisation’1 of proof as represented by the rapid growth of new forms of evidence like CCTV and computer records, and the increasing (and now expected)2 use of forensic evidence in criminal cases, the evidence of witnesses who observe events and other facts remains crucially important in the criminal justice system. Certainly, witness reports are the most common reason for launching police investigations3 and, along with confessions, the principal determinant of whether crimes are solved.4 Furthermore, the fact that errors of identification always head the l­ ist – a­ nd by some ­margin – ­whenever attempts are made to assess the causes of miscarriages of justice5 provides another reason why witness evidence remains of prime importance for evidence lawyers. Ferguson, in this volume, has demonstrated problems that witnesses have in accurately perceiving, remembering and recalling the identity M R Damaška, Evidence Law Adrift (1997: Yale University Press) at 143–144. R Wheate, ‘The importance of DNA evidence to juries in criminal trials’ (2010) 14 International Journal of Evidence and Proof 129 on the so-­called ‘CSI effect’. 3 See, for example, P A Tollestrup, J W Turtle and J C Yuille, ‘Actual victims and witnesses to robbery and fraud: an archival analysis’, in D F Ross, J D Read, and M P Toglia (eds), Adult Eyewitness Testimony Current Trends and Developments (1994: Cambridge University Press) 144 at 152. 4 P W Greenwood, J M Chaiken, J R Petersilia, L L Prusoff, R P Castro, K Kellen and S Wildhorn, The Criminal Investigation Process Volume III: Observations and Analysis (1975) at ix, ch 6; M McConville, A Sanders and R Leng , The Case for the Prosecution: Police Suspects and the Construction of Criminality (1993: Routledge) at 57. 5 Estimates range around 74–90 per cent of US cases involving post-­conviction exoneration through DNA evidence: see K A Findley, ‘Learning from our mistakes: a criminal justice commission to study wrongful convictions’ (2002) 38 California Western Law Review 333 at 339–340; G L Wells, M Small, S Penrod, R S Malpass, S M Fulero and C A E Brimacombe, ‘Eyewitness identification procedures: recommendations for lineups and photospreads’ (1998) 22 Law and Human Behavior 603 at 615. Although Scottish pre-­trial identification procedures are somewhat better than those in the US, the problems they cause are swamped by the impact of inherent limits to witnessing ability: cf C Walker, ‘Miscarriages of justice in Scotland’, in C Walker and K Starmer (eds), Miscarriages of Justice: A Review of Justice in Error (1999: Oxford University Press) 323 at 324–325, on Scottish miscarriages of justice. 1 2

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of criminal suspects.6 However, another reason why witness testimony is so problematic for the criminal justice system is the difficulties jurors and other fact-­finders face in assessing, not just the accuracy, but also the honesty of witnesses. Thus, another significant cause of miscarriages of justice is the failure of fact-­finders to detect perjury by prosecution witnesses, especially accomplices and others testifying in return for favourable treatment.7 This chapter explores the extent of these difficulties and whether expert witnesses on the psychology of witnesses can and should assist fact-­finders in improving their evaluation of witnesses of fact. At present, the Scottish courts have set their face against allowing psychologists and psychiatrists to testify about the general credibility and reliability of witnesses. Such experts (henceforth simply called psychological experts)8 have long been allowed to testify where issues of psychology and psychiatry are directly raised, for instance, by accused persons denying their fitness to plead or pleading mental disorder or diminished responsibility. More recently, as we shall see,9 expert testimony has been admitted on the indirect issue of whether witnesses as to facts in issue can be relied on, but only where such witnesses have ‘a recognised medical condition’ or other ‘special feature’ which affects their ability to provide reliable evidence. In all other cases of witness reliability and credibility, the High Court has authoritatively declared in Gage v HMA10 that such evidence is inadmissible as it is not ‘necessary for the proper resolution of the dispute’ and for jurors or other fact-­finders to reach ‘a sound conclusion’. This is because, as Lord Gill put it, relying on both reasons of alleged fact and legal policy: Questions of credibility and reliability are pre-­eminently matters for the tribunal of fact. Our system of jury trial proceeds on the basis that jurors, as people of ordinary intelligence and experience, are capable of assessing the credibility and reliability of a witness without expert assistance. For opinion evidence to be admissible . . . [it] must not usurp the function of the jury.11 6

See Chapter 6. Findley (n 5), ‘Learning from our mistakes’ at 339–340; G Gudjonsson, The Psychology of Interrogations and Confessions: A Handbook (2003: Wiley) ch 7; S Kassin, ‘Judging eyewitnesses, confessions, informants and alibis: what is wrong with juries and can they do better?’, in A Heaton-­ Armstrong, E Shepherd, G Gudjonsson and D Wolchover (eds), Witness Testimony: Psychological Investigations and Evidential Perspectives (2006: Oxford University Press) 345 at 357–358. 8 Given that psychology is concerned with both healthy minds and those afflicted by various problems, whereas psychiatry is only concerned with the latter: F E Raitt and M S Zeedyk, The Implicit Relation of Psychology and Law: Women and Syndrome Evidence (2000: Routledge) at 16–17. 9 Section A.4. 10 [2011] HCJAC 40; 2011 SCL 645, discussed by A Roberts, ‘Expert evidence on the reliability of eyewitness i­dentification – ­some observations on the justifications of exclusion: Gage v HM Advocate’ (2012) 16 International Journal of Evidence and Proof 93. 11 Ibid para 21. 7



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In addition, Lord Gill pointed to two other sets of reasons for the categorical exclusion of expert testimony on ‘normal witnesses’. The first, which seems to contradict the assumptions about fact-­finders’ evaluation abilities to discern witness unreliability,12 involves the already existing safeguards against unreliable evidence, namely judicial warnings to juries about potentially unreliable evidence which refer to specific considerations that might affect its reliability as well as defence lawyers highlighting potential problems in cross-­examination.13 The second involves the worry that expert testimony on witness psychology will lead to trials being inordinately prolonged and degenerating into battles of the experts, which might create a ‘climate of disbelief’ about witness testimony and distract jurors from making a ‘proper appraisal’ of witnesses.14 This chapter has three aims. The first is to question the empirical validity of the High Court’s faith in the ability of fact-­finders to reach sound conclusions about witness credibility and reliability and in existing safeguards against them making mistakes, and its assumption about the dangers of psychological experts. Secondly, it questions the High Court’s choice of an admissibility test for expert evidence based on necessity. Finally, it argues that the law should instead embrace a test of helpfulness or assistance and, illustrates how such a test incorporates all relevant admissibility inquiries. These include the additional two reasons Lord Gill gives for excluding psychological experts, as well as the very recently introduced requirement that expert testimony is based on ‘a reliable body of knowledge or experience’.15 Combining both these empirical and legal questions, we argue that the categorical rejection of all expert evidence on the credibility and reliability of witness testimony is not justified, but nor is an approach which admits all such evidence. Instead, admissibility should depend on weighing up a variety of contextual and legal factors relating to the content, function, value and reliability of expert evidence, the relevance of which will emerge in the course of our critique of the Gage decision. A. THE LAW GOVERNING THE ADMISSIBILITY OF EXPERT TESTIMONY (1) The necessity test: built on shaky foundations Prior to Gage, no Scottish case had discussed any distinction between necessity and assistance as tests for the admission of expert evidence. With physical evidence, even of a novel nature, no such test was mooted because it was 12

13 14 15

E Stein, ‘The admissibility of expert testimony about cognitive science research on eyewitness identification’ (2003) 2 Law, Probability and Risk 295 at 298. Gage (n 10) paras 29–30. Ibid para 32. Kennedy v Cordia (Services) LLP [2016] UKSC 6; 2016 SLT 209 para 44. See also Young v HM Advocate 2014 SLT 21; 2014 SCL 98 and the discussion below.

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always assumed that such expert testimony was necessary since fact-­finders will not know about DNA, ballistics and the like unless such matters are explained by an expert. It seemed equally clear that evidence about a medical condition or illness affecting the mind requires to be explained by someone with relevant professional knowledge. Consequently, psychiatrists and psychologists were allowed to give expert evidence where witnesses were subject to some form of ‘abnormality’. In Gage, however, the proffered expert evidence related to the witnessing ability of a ‘normal’ witness, and for the first time the Scottish courts explicitly adopted an admissibility test of necessity rather than the helpfulness test argued for by defence counsel and assumed by one of the few commentators to touch on the issue.16 According to Lord Gill, a helpfulness test was ‘not supported by authority’ and was ‘unworkable in practice’.17 No justification was given for the latter point, but in support of his adoption of a necessity test, Lord Gill quoted the leading English case of R v Turner in which Lawton LJ famously stated that: An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does.18

However, it is not clear that Lawton LJ intended to lay down a necessity test. He refers to the expert being ‘helpful’ and thus could be said to be saying that expert evidence which is not helpful is not necessary, but that which is helpful is necessary. Indeed, in England and Wales the Turner test has been interpreted as one of ‘helpfulness’19 (which incidentally has been taken to apply to all expert evidence rather than just that of psychologists). Consequently, it is arguable that Lord Gill’s approach in Gage was based on a misreading of Turner. Moreover, it is out of line with not only English but also US20 and Australian law.21 16

17 18 19

20 21

I D MacPhail, Research Paper on the Law of Evidence of Scotland, (Scottish Law Commission, 1979) para 17.06. Gage (n10) para 22 [1975] QB 834 at 841, quoted in Gage ibid para 25. See, for example, P Roberts and A Zuckerman, Criminal Evidence, 2nd edn (2010: Oxford University Press) at 486 ff. Federal Rules of Evidence, Rule 702. See, for example, Murphy v R [1989] HCA 28; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 para 33. In fact, here legislation has expressly provided that opinion evidence is not inadmissible only on account of the fact that it is about ‘a



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Indeed, in Scotland there have been recent signs of a more liberal helpfulness or assistance test, albeit not specifically in relation to expert evidence on the credibility or reliability of witnesses. Thus in Young v HMA22, a case involving proffered psychological evidence on case analysis linkage, a form of offender profiling, the High Court stated that: Evidence about relevant matters which are not within the knowledge of everyday life reasonably to be imputed to a jury or other finder of fact may be admissible if it is likely to assist the jury or finder of fact in the proper determination of the issue before it.23

Admittedly, the possibility of a more stringent necessity test had not been raised and therefore the helpfulness test cannot be said to have been expressly adopted. Moreover, the Scottish courts have always taken a more liberal approach to psychological experts whose testimony relates to ‘the proper determination of the issue’ before the court, rather than credibility and reliability of specific witnesses. On the other hand, no Scottish court has ever suggested that different types of evidence demand different admissibility tests. Instead, the dicta suggest a single test; it is just that it is bypassed where it is clearly met and only discussed in cases of doubt. Nor should it be thought that the distinction between a necessity and helpfulness test is merely one of semantics. Helpfulness denotes something that the jury can manage without, but which enables them to do a better job. Necessity, on the other hand, involves a categorical ­distinction – ­evidence is either necessary or it is ­not – ­and a necessity test is far more difficult to satisfy. Courts which are keen to exclude certain types of expertise are thus more likely to adopt a necessity test, as the High Court did in Gage, presumably motivated by the desire to uphold the fact-­finding authority of the jury, and that of all fact-­adjudicators, and perhaps also to resist the suggestion that for centuries courts have made unsound decisions about witnesses. (2) Opinion versus social framework evidence That the distinction between necessity and helpfulness is significant was implicitly recognised by the Supreme Court in Kennedy v Cordia (Services) LLP,24 a Scottish personal injury appeal, which has further eroded the reach of the Gage necessity test. Here, the correctness of a necessity test was specifically raised and was expressly limited by the Court to experts

22 23 24

matter of common knowledge’: see the Victorian Evidence Act 2008 s 80(b). In Canada, the Supreme Court moved in R v Mohan [1994] 2 SCR 9, from the previous ‘helpfulness’ test in R v Abbey [1982] 2 SCR 24, to one of necessity, despite both cases having been based on Turner. [2013] HCJAC 145; 2014 SLT 21; 2014 SCL 98. Ibid para 54 (emphasis added). [2016] UKSC 6; 2016 SLT 209.

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who give opinion evidence rather than the separate category of ‘skilled evidence of factual matters, in which he or she draws on knowledge that is not derived solely from personal observation or its equivalent’.25 Although the Court did not define the difference between these expert functions,26 from the examples given of the latter (engineers describing how machines are configured, or how motorways are built) and from the application of the law to the facts, it seems to have distinguished an expert who merely provides background knowledge which assists a court in making a decision on proffered facts in issue from an expert who goes further to suggest what inference should be drawn from the proffered facts. In the case of the former the Court held that the admissibility test ‘cannot be strict necessity as, otherwise, the court could be deprived of the benefit of a skilled witness who collates and presents to the court in an efficient manner the knowledge of others in his or her field of expertise’.27 While Kennedy did not involve psychological experts, there is nothing to suggest that the Supreme Court only intended its distinction to apply to the health and safety experts involved in that case. The Court did acknowledge that it has no jurisdiction to lay down a test for criminal cases,28 but equally there seems to be no justification for a different approach in criminal cases from that used in civil cases. Prima facie, this suggests that the Scottish courts may, in future, be prepared to apply a weaker assistance or helpfulness test where, as often occurs in the US,29 psychological experts merely testify as to relevant research findings on the accuracy of witness accounts without giving an opinion on the likely accuracy of the witnesses at trial. This is sometimes called ‘social framework evidence’30 because it provides evidence as to the social and psychological context relevant to the actions and state of mind of legal actors, thus enabling fact adjudicators ‘to arrive at a more informed 25 26

27 28 29

30

Ibid para 41. This distinction is recognised in England where it has statutory status in civil cases: Civil Evidence Act 1972 s 3, a provision not mentioned in Kennedy. Kennedy (n 24) para 46. Ibid para 37. See for, example, People v McDonald 37 Cal3d 351 208 Cal Rptr 236 (California Supreme Court) 1984, 371; US v Downing 753 F2d 1224 (3d Cir 1985); US v Smith 736 F2d 1103, 1105 (6th Cir 1984); US v Stevens 935 F2d 1380, 1397 (3d Cir 1991); US v Mathis 264 F3d 321, 333; US v Smithers 212 F3d 306, 314 (6th Cir 2000). The concept was introduced by L Walker and J Monahan, ‘Social frameworks: a new use of social science in law’ (1987) 73 Virginia L Rev 559 and while usually associated with various means to counter myths about rape, domestic violence etc, it is also regarded as applying to witness testimony: Raitt and Zeedyk, The Implicit Relation (n 8) at 177. There is some indication that such evidence may be accepted in England too, even on credibility i­ssues – i­n R v S [2006] EWCA Crim 2389, the Court of Appeal declared psychological evidence of the general functioning of autistic children was admissible (although a general rule was not explicitly laid down). Such evidence was also admitted on early memories in R v JH, TG [2005] EWCA Crim 1828.



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interpretation of the facts’.31 Social framework evidence thus plays the same role as generalisations about how the world works in providing the necessary basis to draw inferences from facts. In other words, just as fact-­finders are enabled to make inferences from facts based on knowledge provided by an expert about how machines are configured, so are they enabled to draw inferences from knowledge provided by an expert on how minds are configured. Social framework evidence is clearly far less problematic as regards Lord Gill’s concern regarding the usurpation of juries and other fact-­adjudicators because it leaves them far freer to draw their own inferences from the witnesses’ testimony than the more definitive opinion of an expert. Moreover, it remains unclear how Kennedy can be reconciled with Gage. Certainly, if they conflict, Gage is the authoritative criminal law case and there are hints of Lord Gill’s resistance to even the provision of skilled evidence of fact relating to the reliability of witnesses. Thus, he stated: In all of the cases in which expert evidence has been admitted in our courts, the evidence was specific to the facts of the case, and usually specific to a particular witness. Professor Valentine has conducted no case specific tests or research. He can only alert the court to some of the factors that might in general affect the reliability of identification evidence. Much of his report has no bearing on the facts of this case.32

However, it is not clear whether he is suggesting a blanket ban on ‘social framework evidence’ relevant to witnesses, reinforcing the need for special features on the part of the witness in question, or upholding the general requirement that all expert evidence must be relevant to issues at stake,33 or simply supporting his conclusion34 that: ‘[i]t is not for Professor Valentine now to offer a view on whether a particular witness was reliable’.35 Nevertheless, whatever the exact import of Lord Gill’s comments, and their relation to the distinction made in Kennedy, the latter does provide some support for a more liberal test of the admissibility of expert evidence on witness psychology. (3) Credibility versus reliability Additional support may be derived from another distinction overlooked in Gage – and indeed all modern Scottish c­ ases – w ­ hich can also be used to 31

32

33 34 35

F E Raitt, ‘Expert evidence as context: historical patterns and contemporary attitudes in the prosecution of sexual offences’ (2004) 12 Fem LS 233 at 236. Gage (n 10) para 36. Evidence of a similar kind was offered in Snowden v HM Advocate 2014 SCL 736, and was excluded on the application of Gage – see para 67. Though here he only said that ‘much’ of the evidence has no bearing on the case. Gage (n 10) para 35. If Lord Gill meant this, it is not controversial either in Scotland (Wilson and Murray v HM Advocate [2009] HCJAC 58; 2009 JC 336) or in England and Wales (R v H (Stephen) [2014] EWCA Crim 1555).

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challenge the court’s categorical approach to the exclusion of psychological evidence on witnesses without ‘special features’. Like all other relevant cases, Gage conflates the credibility and reliability of witnesses without recognising an important distinction between them pertaining to the admissibility of psychological experts. In ordinary language, which is consistent with the apparent understanding of some writers36 and courts37 on the rare occasions where they discuss the concepts,38 the term ‘credibility’ is used to refer to the question of whether someone is telling the truth and ‘reliability’ to whether their honest testimony is likely to be accurate. No Scottish evidence text since 1825 has discussed these concepts in much detail.39 Sometimes, credibility is said to include reliability questions, and sometimes, even in the same breath, given its own heading.40 However, there is another, overlapping but different distinction which relates more closely to the reason why courts may want to exclude expert evidence on witness psychology. This was recently highlighted by the High Court in Jenkins v HMA,41 albeit in relation to the finality of a jury’s decision on appeal. Thus, having stated that questions of credibility and reliability are normally to be regarded as quintessentially jury questions (emphasis added), Lord Clarke went on to say that:

36

37

38

39

40

41

See M L Ross and J Chalmers, Walker and Walker: The Law of Evidence in Scotland, 4th edn (2015: Bloomsbury) para 12.9.3; F E Raitt, Evidence: Principles, Policy and Practice, 2nd edn (2013: Thomson/W Green) paras 12–19; A N Brown, Criminal Evidence and Procedure: An Introduction, 3rd edn (2010: Avizandum) at 4; M Stone, Cross-Examination in Criminal Trials, 3rd edn (2009: Tottel) ch 3 (reliability) and ch 4 (credibility); and M Stone, Proof of Fact in Criminal Trials (1984: W Green) chs 2–5 passim. Early evidence writers tended to concentrate on the motivations which might lead to a lack of credibility and on prior inconsistent statements, and rarely discussed concepts such as demeanour or how a witness’s credibility is assessed based on testimony: see, for example, W G Dickson, A Treatise on the Law of Evidence in Scotland, 3rd edn (1887, vol II, Title II: Bell and Bradfute) paras 1616–1634, but cf W J Lewis, Manual of the Law of Evidence in Scotland (1925: W Hodge & Co) at 253. For example, Dickson J in the Supreme Court of British Columbia (Gilbert v Bottle 2011 BCSC 1389 para 9) stated: ‘truthfulness and reliability are not necessarily synonymous. A witness may sincerely attempt to be truthful, but lack the perceptive, recall or narrative capacity to provide reliable testimony on a given matter.’ Cf I D Macphail, Scottish Criminal Evidence: Procedure and Practice (2012: Avizandum Publishing) para 4.10, noting that credibility and reliability are matters ‘about which law of evidence textbooks have traditionally had little to say’. See Bentham’s discussion of credibility and reliability, the latter in terms of perception, judgement, memory, expression and imagination: J Bentham, A Treatise on Judicial Evidence (1825: Baldwin, Cradock and Joy) at 21. See, for example, E Bell, ‘An introduction to judicial fact-­finding’ (2013) 39 Commonwealth Law Bulletin 519 at 525. [2011] HCJAC 86; 2011 SCL 927.



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it is important to have in mind that while questions of credibility and reliability are said often to shade into each other, they are distinct concepts.42 A witness may come across as entirely credible but, on reflection, be held to be unreliable. A person who is credible is one who is believed. A person who is reliable is one upon whom trust and confidence can be placed. Credibility may be judged on the moment, whereas reliability may be only capable of being addressed having regard to the person’s ‘track record’, so to speak.43

If credibility, unlike reliability, is something which is judged ‘in the moment’, we can see why courts would not want to allow experts to opine on credibility. Credibility is purely about what witnesses say and how they present themselves in the witness box. It is about consistency, confidence, hesitancy, demeanour and reaction under pressure. The common law has always ­assumed – ­albeit not entirely correctly, as we shall see44 – that these matters can be evaluated by the jury and other fact-­finders as well as by anyone.45 Consequently, it is no surprise that, in terms of the importance of orality and lay adjudication, credibility has been regarded as a matter entirely for the fact-­finders’ common sense and past experiences of those who turned out to be lying or mistaken. Over time, however, this understandable approach to credibility seems to have been extended to the different and much less discussed question of reliability, without any apparent realisation that reliability is different from credibility and that different considerations might apply. Jenkins seems to suggest that reliability is solely about a witness’s propensity and ability to give testimony that can instil ‘trust and confidence’ in the decision-­maker. As Ferguson makes clear in Chapter 6 of this volume, there are many other reasons why witnesses might not be reliable, flowing from, for instance: • the conditions under which facts are observed (for instance the duration of observation, distance between witness and events, visibility, whether line of observation impeded, whether the perpetrator was known to the witness); • the nature of the facts themselves (violent versus non-­violent events, rapidly changing or static facts); • when and how recall is elicited; 42

43 44 45

See also the Scottish Jury Manual: Judicial Studies Committee, Jury Manual: Some Notes for the Guidance of the Judiciary (2012) para 2.1.1. [2011] HCJAC 86; 2011 SCL 927 para 44. See Section B below. Cf Lord Justice-­General Cullen in MacKay v HM Advocate 2005 1 JC 24 para 8, who stated that at least one reason why ‘[e]xpert evidence may be given . . . as to the existence in a witness of a medical, psychiatric or psychological condition which could account for the witness giving an untrue account . . . is that it relates to matters which a jury do not have the opportunity to investigate or the expertise to diagnose’ (emphasis added).

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• the abilities of the witness (as affected, for instance, by age, vulnerability, illness and intoxicants). Indeed, if credibility relates to ‘in the moment’ evaluations of witness honesty in terms of factors internal to the testimony, reliability can be said to involve all factors external to the testimony affecting the capacity,46 propensity and ability of the witness honestly and accurately to recall relevant facts. To allow expert evidence on reliability would thus not involve experts testifying as to whether witnesses are honest but rather whether their testimony can be trusted, given certain factors external to their testimony.47 Jurors will have seen and heard the testimony for themselves, and will have considered any non-­expert attacks on reliability. They will have heard the rest of the evidence too, enabling them to assess witness testimony in the context of the whole case. Jurors will have been directed on issues of reliability and credibility. They will then put all of this together (including the expert’s contextual reliability evidence) in order to make a decision on reliability. It is simply inaccurate, then, to refer to the psychologist ‘substituting’ the common sense of the jury,48 and it is equally wrong to refer to ‘trial by psychiatrist’,49 because the expert evidence simply gives the jury more information to make their assessment of the reliability of the witness’s evidence. This is especially so when one considers the law’s acceptance of what can, with more justification, be called ‘trial by forensic scientist’ which happens whenever full legal proof is constituted, for instance, by DNA or fingerprint evidence alone.50 Moreover, the impact of such scientific evidence is more powerful on fact-­finders as it points directly to guilt and comes from the more socially authoritative ‘hard’ sciences,51 whereas psychological expert testimony on reliability evidence merely offers assistance to the jury on how reliable evidence pointing to guilt is likely to be. (4) ‘Special features’ versus ‘normal’ witnesses That the law does, in fact, take a more permissive approach to expert evidence on reliability (as opposed to credibility) can be seen from greater 46 47 48 49 50

51

Cf Gilbert v Bottle 2011 BCSC 1389 para 10, which refers to capacity. Cf McBrearty v HM Advocate 2004 JC 122; 2004 SLT 917 para 49 per LJC Gill. R v Turner [1975] QB 834 at 843. Ibid. For example, only recently have the Scottish courts had to consider some of the arguments around the reliability of DNA evidence: McGartland v HM Advocate [2015] HCJAC 23; 2015 SCCR 192; 2015 SCL 471; Dunbar v HM Advocate [2015] HCJAC 22; 2015 SCCR 186; 2015 SCL 465; and Reid v HM Advocate [2016] HCJAC 41; 2016 SCL 448. For a critique of the hard/soft science distinction, see for example D L Faigman, ‘To have and have not: assessing the value of social science to the law as science and policy’ (1989) 38 Emory Law Journal 1005.



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judicial and legislative willingness to allow psychological experts on reliability of witnesses. Thus, mirroring the English and Welsh courts’ approach to the alleged ‘abnormality rule’ laid down in Turner,52 the Scottish judiciary has gradually expanded the qualification to the prohibition on psychological evidence on witnessing to the effect that it only applies to ‘ordinary and normal’53 witnesses. At first this qualification was confined to testimony on witnesses suffering from a ‘mental illness’,54 ‘objective medical condition’,55 or ‘medical, psychiatric or psychological condition’.56 Then it was extended, as noted in Gage,57 to witnesses with ‘special features’58 and increasingly over the years, such ‘special features’ have moved further away from an association with abnormal mental conditions. Thus in Blagojevic v HMA59 the court made clear that it would have allowed a clinical psychologist to testify that the accused had a tendency, under stress, to be suggestible had the accused laid the necessary foundation in fact by giving evidence. Then, in Gilmour v HMA,60 another case on confession reliability, a forensic psychologist was allowed to testify that according to tests he had developed, the accused was highly suggestible and highly compliant at the time of his interview.61 No attempt was made to link this to a diagnosable medical, psychiatric or psychological condition or even some other special feature such as low IQ.62 Further support for the ever widening 52

53 54

55

56 57 58

59 60 61

62

See, for example, Roberts and Zuckerman, Criminal Evidence (n 19) at 487 describing the ‘abnormality rule’ as ‘nothing more than an eminently defeasible presumption about the type of evidence jurors usually find helpful’. Grimmond v HM Advocate 2002 SLT 508 para 11. Ibid, holding that evidence that the complainer was a pathological liar would have been admissible had this been the case. McBrearty (n 47) para 49. This view has persisted even after the advent of the ‘special features’ test, which is clearly wider: see the comments in M v HM Advocate (No 2) [2013] HCJAC 22; 2013 SLT 380 at paras 38–39. Mackay v HM Advocate 2004 SCCR 478 para 8. [2011] HCJAC 40 para 17. In HM Advocate v A 2005 SLT 975 where evidence from a psychiatrist that a complainer suffered from ‘false memory syndrome’ was admitted because she was in ‘a complex mental state that was likely to be outside the experience of the members of a jury’, para 15 per Lord Macphail. 1995 SLT 1189. See Lord Justice General Hope at 1192. [2007] HCJAC 48; 2007 SLT 893. But cf Wilson v HM Advocate [2009] HCJAC 68; 2009 JC 336, where the High Court adopted a less charitable view of Professor Gudjonsson’s evidence because it was regarded inter alia as addressing the ultimate issue. Cf Hodgson v HM Advocate [2012] HCJAC 55; 2012 SCL 817, where evidence of psychologists on the very low (borderline) IQ of the complainer was allowed to explain the complainer’s difficulty in discussing sexual matters; LB v HM Advocate 2003 JC 94, where no objection was taken to using expert opinion on the impact of low IQ on the ability to understand the caution. For a discussion of some of the English cases on IQ and the artificiality of distinguishing between ‘normal’ and ‘abnormal’ witnesses, see R D Mackay and A M Colman, ‘Excluding expert evidence: a tale of ordinary folk and common experience’, (1991) Crim LR 800.

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ambit of special features derives from AJE v HMA63 in which a social worker who was present at the interview of two children alleging rape had testified that in her opinion they could give reliable evidence of sexual abuse despite denials and inconsistencies in prior statements. All three judges regarded the evidence, which had not been objected to at trial, as problematic, but seemed to be more exercised by the social worker’s lack of relevant expertise than the fact that she was commenting on reliability64 and in fact Lord McCluskey stated that the evidence of a child psychologist in this case would have been admissible.65 Moreover, the High Court was also critical of the trial counsel’s decision not to adduce evidence of a report from a forensic criminologist on the techniques used to interview children effectively, clearly thinking that such evidence would have been admissible.66 It could be argued that children occupy a special group, but the courts in these cases do not indicate that this is the case, and an age-­based approach could, at least to some extent, apply to the elderly. Finally, in Campbell v HMA67 the High Court condoned the admission of the evidence of a forensic linguist and a cognitive psychologist called to establish the extreme unlikelihood of the accounts of various police officers (in noting a short incriminating statement) converging on a verbatim basis, and hence that they must have colluded in compiling the statements in their notebooks, despite their denials at the original trial. There was no suggestion that the police witnesses were anything other than of ‘ordinary and normal’ mind or particularly susceptible to pressure because of ‘special features’. This latter requirement seems to have simply been ignored in favour of admitting relevant and useful evidence by psychological experts. Such an approach is also endorsed by Parliament. Thus, s 275C of the Vulnerable Witnesses (Scotland) Act 1995 makes admissible ‘[e]xpert psychological or psychiatric evidence relating to any subsequent behaviour or statement of the complainer . . . for the purpose of rebutting any inference adverse to the complainer’s credibility or reliability as a witness which might otherwise be drawn from the behaviour or statement’. While admittedly very narrow in being confined to the evidence of complainers in sexual offence charges, this provision indicates that Parliament does not always regard the admission of testimony of psychological experts as an unjustified

63 64

65 66

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2002 JC 215. Ibid paras 13 and 14 per Lord Justice Clerk Gill; paras 12 and 13 per Lord Hamilton; para 18 per Lord McCluskey. Ibid para 18 per Lord McCluskey. See Lord McCluskey’s comments, ibid para 18 and HM Advocate v G 2010 SLT 239 para 17 where Lord Brodie appears to have considered expert evidence on child interviewing techniques to be admissible, in principle. 2004 SLT 397; 2004 SCCR 220.

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usurpation of the role of the jury and other fact-­adjudicators68 in the absence of special features of witnesses. B. COMMON SENSE AND WITNESS EVALUATION (1) Introduction There is thus great potential, if not for wholesale replacement of the necessity test with one based on helpfulness, then at least for the necessity test to be confined narrowly only to expert opinion as opposed to social framework evidence and/or to questions of witness credibility (as defined in Jenkins), as opposed to reliability (defined as all external factors affecting the ability of a witness to provide credible and reliable testimony). However, another means of challenging Gage is to question whether its prohibition on expert testimony on witness credibility and reliability absent ‘special features’ in fact flows from the application of the necessity requirement. Here, it is important to note that Lord Gill specifies that expert evidence must be necessary for a ‘sound conclusion’ or ‘proper resolution of the dispute’.69 A sound decision can be defined as one which is ‘free from error, fallacy, or misapprehension’.70 A ‘proper resolution’ of a dispute extends beyond a sound decision to encompass appropriate consideration of the values of the criminal justice system, including not just those of lay adjudication, orality and the day in court idea which underpin the prohibition on experts on witness testimony, but also crucially for our purposes, the notion of ‘principled asymmetry’71 which leads the law to ‘overprotect’72 criminal accused against unjust convictions through measures such as the allocation of the burden of proof, the criminal standard of proof, the right to silence, a right to legal representation, rules protecting suspects against unfair and oppressive police questioning, limits on the prosecution’s adversarial stance, prosecutorial duties of disclosure, the retention of exclusionary rules of evidence (abandoned in civil cases) and, for now at least, the corroboration requirement. Understood in this way, it is possible to argue that expert evidence on credibility and reliability is necessary even in the absence of special features of witnesses. The High Court held otherwise because of its assumption that assessing 68

69 70

71 72

Cf Roberts and Zuckerman, Criminal Evidence (n 19) at 489, arguing that only Parliament can authorise trial by expert. [2011] HCJAC 40 para 22 (emphases added). Merriam-­Webster Online Dictionary, available at: http://www.merriam-webster.com/dictionary/ sound (last accessed 3 September 2017). Roberts and Zuckerman, Criminal Evidence (n 19) at 19. See D Luban, Lawyers and Justice: An Ethical Study (1988: Princeton University Press) at 60–63; and see D Nicolson and J Blackie, ‘Corroboration in Scots law: “archaic rule” or “invaluable safeguard”?’ (2013) 17 Edin LR 152, for the reasons behind this overprotection.

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the credibility and the reliability of witnesses is merely a matter of ‘life experience’ and ‘common sense’.73 To some extent, this is belied by the number of miscarriages of justice flowing from mistaken misidentifications and lying prosecution witnesses which were not picked up by jurors and other fact-­ finders.74 However, it is notoriously difficult to gain an accurate idea of the extent of such failures.75 A more persuasive source of evidence on the issue lies in the wealth of psychological studies on the accuracy of fact-­finders in evaluating witness credibility and reliability, to which we now turn. (2) Credibility Starting with ‘in the moment’ assessments of witness believability, a major focus for study has been the ability of fact-­finders to discern honesty from demeanour. Here, folk wisdom holds that people are betrayed by the three ‘communication channels’ of face, body and voice.76 Apparently, ‘from the United States across Europe, we look for a change in voice pitch, hesitations and speech errors, pauses, gaze aversion, fidgeting, smiling, and blinking’.77 According to research, however, only some of these ‘common sense’ cues have a basis in reality. Given that facial cues are easily controlled, this is the least revealing communication channel. For instance, there is no evidence that liars are prone to averting their gaze or smiling less. More reliable signs emanate from the less controllable communication channels of body and voice. Thus, some studies reveal that liars frequently shift body posture and make fidgety feet and hand movements, though other studies reveal that liars tend to perform fewer body movements, particularly hand gesticulations. More consistently reliable is the tendency of liars to speak with raised voice pitch, more hesitantly and with greater speech errors. Unfortunately, however, people pay most attention to faces and, after 73 74

75 76

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[2011] HCJAC 40 paras 30 and 35, respectively. See also more generally on the limits to common sense in this regard: Mackay and Colman, ‘Excluding expert evidence’ (n 62); F E Raitt, ‘A new criterion for the admissibility of scientific evidence?’, in H Reece (ed), Law and Science: Current Legal Issues Volume 1 (1998: Oxford University Press) especially at 157. See references cited at n 5 above. The following discussion draws on A Kapardis, Psychology and Law: A Critical Introduction, 4th edn (2014: Cambridge University Press) ch 8; M Stone, ‘Instant lie detection? Demeanour and credibility in criminal trials’ (1991) Crim LR 821; J McEwan, The Verdict of the Court: Passing Judgment in Law and Psychology (2003: Hart Publishing) at 94–117; O G Wellborn, ‘Demeanor’ (1991) 76 Cornell L Rev 1075; A Vrij, ‘The assessment and detection of deceit’, in D Carson and R Bull (eds), Handbook of Psychology in Legal Contexts, 2nd edn (2003: Wiley) 67; A Vrij, ‘Credibility assessments in a legal context’, in D Carson, R Milne, F Pakes, K Shalev and A Shawyer (eds), Applying Psychology to Criminal Justice (2007: Wiley) 81; J A Blumenthal, ‘A wipe of the hands, a lick of the lips: the validity of demeanor evidence in assessing witness credibility’ (1993) 72 Nebraska Law Review 1157. McEwan, The Verdict of the Court (n 76) at 107.



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that, the body. And here, not only are some commonly assumed signs of lying misconceived, but even the more reliable signs may, in fact, be caused by the stress and anxiety involved in testifying in court. Ironically, it may be the worry that one is not being believed that leads to the signs associated with lying. Similarly, averting one’s gaze or other supposed indicia of lying, such as evasive or vague answers to questions may reflect shyness or different cultural n ­ orms – a­ n endemic problem in immigration cases.78 Moreover, there are problems even with the more reliable cues. One is that they cannot be easily detected with the naked eye or ear, but require special training or equipment. Secondly, not everyone displays the same signs or reacts in the same way when anxious, guilty or lying. Accordingly, unless we know a particular person’s usual behaviour, we cannot assess the significance of the presence or absence of certain behavioural signs. For example, raised voice pitch may reflect anger or excitement rather than untruthfulness, or, as in one Australian case, a voice tremor turned out to be caused by a speech impediment rather than uneasiness as was assumed.79 Finally, practised liars can train themselves to avoid showing signs commonly thought to indicate untruthfulness. Even children learn at very young ages to lie effectively.80 In summary, ‘there is nothing like Pinocchio’s nose’81 which betrays liars. Consequently, it is not surprising that the studies in laboratories (where admittedly lying ‘witnesses’ are less likely to be affected by anxiety and guilt than in real-­life situations) suggest that fact-­finders have little more than an even chance of assessing witness honesty based only on demeanour.82 As regards other credibility cues which derive from the way witnesses testify,83 here studies suggest that common sense fares better in focusing primarily on the consistency of a witness’s account,84 the amount of detail 78

79

80

81 82

83

84

See, for example, R Byrne, ‘Assessing testimonial evidence in asylum proceedings: guiding standards from the International Criminal Tribunals’ (2007) 19 International Journal of Refugee Law 609. See P McClellan, ‘Who is telling the truth? Psychology, common sense and the law’, Local Courts of New South Wales Annual Conference 2006, available at: http://www.austlii.edu.au/ au/journals/NSWJSchol/2006/14.pdf (last accessed 1 November 2016). See, for example, A Vrij and F W Winkel, ‘Detection of false statements in first and third-­graders: the development of a nonverbal detection instrument’, in G Davies, S Lloyd-­ Bostock, K McMurran and C Wilson (eds), Psychology, Law, and Criminal Justice (1996: de Gruyter) at 221. Vrij, ‘The assessment’ (n 76) at 68. Success rates have rarely been above 60 per cent, with most studies reporting levels of 45–60 per cent: P Ekman and M O’Sullivan, ‘Who can catch a liar?’ (1991) 46 American Psychologist 913. See generally, E F Loftus, Eyewitness Testimony (1996: Harvard University Press) ch 2; B L Cutler and S Penrod, Mistaken Identification: The Eyewitness, Psychology and the Law (1995: Cambridge University Press) chs 12–13; M R Leippe, ‘The appraisal of eyewitness testimony’, in Ross et al, Adult Eyewitness Testimony (n 3) at 385. See Byrne, ‘Assessing testimonial evidence’ (n 78); J Cohen, ‘Questions of credibility: omissions, discrepancies and errors of recall in the testimony of asylum seekers’ (2002) 13

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provided, the witness’s speech-­style (most notably whether it is in narrative as opposed to fragmented form85 and involves what is called ‘powerful’ as opposed to ‘powerless’ speech)86 and above all87 witness confidence either expressly stated or inferred. Thus, recent research shows that these factors do have some value as indicators of accuracy. For instance, the recall of events actually experienced, rather than imagined or the result of misleading suggestions, contain more contextual, spatial and sensory detail (time, place, colour and shapes), and are delivered more confidently, and with fewer verbal hedges, admissions of uncertainty and more reference to cognitive processing, such as what witnesses were thinking while observing facts. Unfortunately, however, experiments suggest that people are not particularly good at assessing accuracy from such ‘reality monitoring’ clues. In any event, these cues are less helpful in the much more common situation of assessing whether the recall of actually observed facts is mistaken and incomplete. Thus, witnesses with accurate memory of central details of events may remember few or no peripheral details.88 Peripheral details are also more susceptible to subsequent alteration, especially if witnesses are required to make repeated reports and are questioned closely on these

85

86

87

88

International Journal of Refugee Law 293; J McEwan, ‘Reasoning, relevance and law reform: the influence of empirical research on criminal adjudication’, in P Roberts and M Redmayne (eds), Innovations in Evidence and Proof: Integrating Theory, Research and Teaching (2007: Hart Publishing) 187 at 196–197; M Boyce, J Beaudry and R C L Lindsay, ‘Belief of eyewitness identification evidence’, in R C L Lindsay, D F Ross, J D Read and M P Toglia (eds), The Handbook of Eyewitness Psychology: Volume II: Memory for People (2012: Psychology Press) 501 at 510–511. Namely a coherent uninterrupted account as opposed to one derived from questions and answers: see for example W M O’Barr, Linguistic Evidence: Language, Power and Strategy in the Courtroom (1982: Academic Press) especially at 76–83. With powerless speech being characterised by: the use of hedges, such as ‘it seemed’; modifiers like ‘sort of and ‘kind of’; hesitation forms like ‘um’; rising intonation as if seeking approval; repetition as an indication of insecurity; intensifiers such as ‘very close friends’; frequent direct quotations as indicating a deference to others’ authority; polite forms of address; and empty adjectives such as ‘divine’ and ‘charming’: see for example O’Barr, Linguistic Evidence (n 85); J M Conley W M O’Barr and E A Lind, ‘The power of language: presentational style in the courtroom’ (1978) Duke Law Journal 1375. Perceived witness confidence accounted for more than 50 per cent of the variance in participants’ assessment of witness accuracy: see for example G L Wells, R C Lindsay, and T Ferguson, ‘Accuracy, confidence, and juror perceptions in eyewitness identification’ (1979) 64 Journal of Applied Psychology 440; and see also Cutler and Penrod, Mistaken Identification (n 83) at 207–209; R C L Lindsay, ‘Expectations of eyewitness performance: jurors’ verdicts do not follow from their beliefs’, in Ross et al, Adult Eyewitness Testimony (n 3) 362 at 373. Moreover, the impact of confidence is difficult to shake even when fact-­finders are faced, as some real-­life cases show, with conflicting evidence such as a confession by someone other than the accused or, as experiments show, where confidence is debunked as an accurate clue by expert evidence: (M R Leippe, ‘The case for expert testimony about eyewitness memory’ (1995) 1 Psychology, Public Policy and Law 909 at 926 and 942, respectively). Loftus, Eyewitness Testimony (n 83) at 63.



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details.89 Moreover, skilled questioners can easily induce witnesses into contradicting themselves. Conversely, even important details may be omitted from accounts because of their traumatic impact,90 embarrassment or other understandable reasons. Fact–finders thus ought to be very cautious about reading too much into reports which contain inconsistencies or lack detail, not least because witnesses with accurate recall of central details of events may make mistakes on peripheral details91 and consistent accounts may reflect an ability to organise information rather than a coherent memory. Similar caution also needs to be exercised in making inferences about witnesses who appear to lack confidence or speak hesitantly, as this may be due to personality traits like shyness or due to gender, race or class rather than unreliability. Unfortunately, research shows that people are influenced by the social origins of speakers as revealed by accent and the educational sophistication of the language used.92 As regards confidence, years of research reveals that, while it may be a reliable indicator of accuracy in certain circumstances, such as when witnesses are confident about one aspect of the facts but not others,93 and for out-­ of-­ court identifications rather than courtroom testimony, more commonly there is at best only a modest link between witness confidence and accuracy, sometimes no link at all, and in rare cases even a negative correlation.94 More worryingly, confidence can be artificially boosted by repeated questioning on issues on which witnesses have already provided information, asking witnesses to repeatedly think about their responses to questions, preparing witnesses for trials, and providing positive feedback on witness reports or when they pick out suspects.95 Fortunately, the ban 89 90 91

92

93

94

95

J McEwan, ‘Reasoning, relevance and law reform’ (n 84) at 196–97. See Cohen, ‘Questions of credibility’ (n 84). See, for example, G L Wells and M R Leippe, ‘How do triers of fact infer the accuracy of eyewitness identifications? Using memory for peripheral detail can be misleading’ (1981) 66 Journal of Applied Psychology 682. The classic study is H Giles and P F Powesland, Speech Style and Social Evaluation (1975: Cambridge University Press). But even then there is a 15 per cent error rate: H L Roediger, J Wixted and K A Desoto, ‘The curious complexity between confidence and accuracy in reports from memory’, in L Nadel and W P Sinnott-­Armstrong (eds), Memory and Law (2012: Oxford University Press) 84 at 109. See, for example, Roediger et al, ‘The curious complexity’ (n 93); J S Shaw, K S McLure and J A Dykstra, ‘Eyewitness confidence from the witnessed event through trial’, in M P Toglia, J D Read, D F Ross and R C L Lindsay (eds), The Handbook of Eyewitness Psychology: Volume 1: Memory for Events (2007: Psychology Press) 371; C A E Luus and G L Wells, ‘Eyewitness identification confidence’, in Ross et al, Adult Eyewitness Testimony (n 3) 223. More specific references are given below. See, for example, R P Fisher and M C Reardon, ‘Eyewitness identification’, in Carson et al, Applying Psychology (n 76) 21 at 32–33; N Brewer, N Weber and C Semmler, ‘A role for theory in eyewitness identification research’, in Lindsay et al, The Handbook of Eyewitness Psychology (n 84) 201 at 213–214.

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on investigating officers conducting VIPERs and traditional live lineups (but not other forms of formal identification) prevent these lineup abuses, while the Lord Advocate’s Guidelines also require officers to take steps to prevent witnesses communicating with each other and thereby boosting confidence levels. On the other hand, confidence (or at least the appearance of it) can be reduced by aggressive cross-­examination, as well as the general unfamiliarity of and stress associated with court and other legal proceedings.96 Nevertheless, a recent summary of research on witness confidence concludes that it is a relatively reliable but imperfect indicator of ­accuracy – a­ t least in the absence of any possible sources of post-­event memory and confidence ­manipulation – a­ nd pertinently, in relation to recognition and recall shortly after the relevant incidents rather than much later in court.97 More generally, we can conclude that reliance on witness confidence and speech-­style and the consistency and detail of their accounts is not completely misguided, but will not necessarily lead to sound decisions, given their nuanced and sometimes misleading impact. (3) Reliability A similarly nuanced picture applies to the extent to which common sense is sufficient to evaluate witness reliability. Admittedly, many studies of the factors that affect witness reliability merely confirm what many already know, for instance, that memory fades with time or children are less reliable witnesses than adults. However, such intuitions are unlikely to extend to the nuances of such phenomena, such as how memory fades or how soon children catch up with adults.98 Moreover, many phenomena discussed in Ferguson’s chapter in this volume (Chapter 6) (such as the impact of stress or the ineffectiveness of training on perceptual ability) are counter-­intuitive. The apparent limits to common sense in assessing witness reliability are supported by numerous studies over more than thirty years, albeit predominantly in the sphere of eyewitness identification. Most commonly, subjects’ knowledge of the various factors affecting witnessing has been directly sought by asking them to identify from a choice of statements about witnessing, or simply to agree or disagree with such statements and then comparing answers with those of experts taking the same survey. While early surveys revealed an average agreement rate as low as 24 per cent, lay subjects’ agreement with the experts has steadily increased,99 with an agreement rate as high 96

97 98 99

McEwan, The Verdict of the Court (n 76) at 99; Leippe, ‘The appraisal of eyewitness testimony’ (n 83) at 396. Roediger et al, ‘The curious complexity’ (n 93) especially at 111–112. Roberts, ‘Expert evidence on the reliability’ (n 10) at 101. Possibly due to increased knowledge of the issues caused, inter alia, by greater media focus



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as 80 per cent in a recent survey.100 Gaining an overall picture of accuracy is, however, impossible because the surveys do not always focus on the same factors or use the same wording. However, a meta-­analysis of twenty-­three studies involving 4,669 respondents revealed an average agreement rate of 68 per cent on sixteen factors most commonly included in studies on which more than 80 per cent of experts agreed.101 On some factors agreement was ­high – ­for instance over 80 per cent on the impact of intoxication, pre-­ existing attitudes and expectations, and question wording, and the malleability of witness ­confidence – ­but on others relatively ­low – ­for instance less than 60 per cent on weapon focus, the cross-­race effect on identification, and the link between witness confidence and accuracy. Admittedly these surveys beg the question as to whether the experts’ views are themselves c­ orrect – e­ ven an 80 per cent agreement rate between experts suggests room for doubt, while today’s psychological ‘truth’ can always become tomorrow’s ‘fallacy’.102 Nevertheless, many of the lay misconceptions revealed by the surveys are replicated by studies which indirectly test lay knowledge by ascertaining how it is used in making decisions. One method involves presenting subjects with actual studies on the impact of various factors affecting witnessing accuracy and asking them to predict the outcome.103 Other methods involve asking subjects either to identify factors which determine witness reliability in particular situations or to assess witness accuracy either directly or through delivering a verdict in response to situations presented in written descriptions, videotapes or even mock trials in which different witnessing factors are manipulated. All paint a far less optimistic picture of fact-­finders’ abilities to make accurate assessment of witness testimony than the surveys where subjects can make educated or lucky guesses at the ‘correct’ response from the answers provided. Thus, even when prompted, participants in these studies tended

100

101 102

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on miscarriages of justice, but also because of the greater use of agree/disagree formats and more comprehensible questionnaires. See S L Desmarais and J D Read, ‘After thirty years, what do we know about what jurors know? A meta-­analytical review of lay knowledge regarding eyewitness factors’ (2011) 35 Law and Human Behavior 200. See also R S Schmechel, T P O’Toole, C Easterly, and E F Loftus, ‘Beyond the ken? Testing jurors’ understanding of eyewitness reliability evidence’ (2005–6) 46 Jurimetrics 177, especially at 211, who found, for instance, that 89 per cent of respondents accepted that that even a witness who identifies the same person on multiple occasions could be wrong, but also that 46 per cent of respondents wrongly thought memory operates like a video camera in relation to traumatic events. Ibid. In addition, results always depend on the questions’ wording and subjects are never given what is usually the most accurate answer, namely that the impact of any factors usually depends on interactions with others: E B Ebbesen and V J Konecˇni, ‘Eyewitness memory research: probative v prejudicial value’ (1996) 5 Expert Evidence 2 at 19. Here again the ‘prediction studies’ are dependent on the validity of the findings the subjects are asked to predict as well as on how accurately studies are described to the subjects.

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to be insensitive to the impact of a wide variety of factors when assessing testimony, including those that the surveys suggest are relatively well-­ understood, such as the effect of lighting, stress, weapon focus and crime duration on perception and of delay104 between the incident and recall on memory, and most notably that of ‘system variables’.105 Furthermore, when subjects do take into account relevant factors, they sometimes apply them in a way which is contrary to their actual effect, or underestimate their impact. While there are numerous problems with methodology and consistency of results, overall the studies ‘converge’ on the broad findings that lay adjudicators have an incomplete and sometimes incorrect understanding of the factors which affect witness accuracy and that even when they correctly understand such factors, they do not necessarily incorporate them into their decision-­making. This suggests that they have, at best, only a moderate ability to discern witness accuracy. For instance, in relation to identification evidence, studies repeatedly show that subjects are rarely able to outdo chance in assessing accuracy, with rates never rising above 61 per cent.106 However, while such poor performance should lead fact-­finders to wrongly reject accurate accounts as often as they wrongly accept inaccurate witness accounts, in fact study participants tend to overestimate the accuracy of eyewitness evidence, both as a general proposition in surveys107 and in indirect studies of witness evaluation.108 For instance, in one study 83.7 per cent of subjects asked to assess the accuracy of witnesses overestimated the chances of them accurately identifying a suspect present in a lineup.109 Moreover, fact-­finders’ faith in eyewitnesses may be very hard to shake, even in e­ xperiments when their evidence is discredited by an opposing lawyer.110 It is also possible that fact-­finders’ confidence in witnesses 104

105 106

107

108 109

110

But cf R C L Lindsay, ‘Expectations of eyewitness performance: jurors’ verdicts do not follow from their beliefs’, in DF Ross et al, Adult Eyewitness Testimony (n 3) at 67. Cf Chapter 6 in this volume on the difference between ‘system’ and ‘estimator’ variables. Leippe, ‘The case for expert testimony’ (n 87) at 925; Boyce et al, ‘Belief of eyewitness identification evidence’ (n 84) at 506–507; D D Caputo and D Dunning, ‘Distinguishing accurate identifications from erroneous ones: post-­dictive indicators of eyewitness accuracy’, in Lindsay et al, The Handbook of Eyewitness Psychology (n 84) 427 at 442–443. Possibly because of a transference of most people’s confidence in their own abilities to others: cf Schmechel et al, ‘Beyond the ken?’ (n 100) at 196 (77 per cent of jurors surveyed rated their own memories as excellent). Cutler and Penrod, Mistaken Identification (n 83) at 179 and 186. J C Brigham and R K Bothwell, ‘The ability of prospective jurors to estimate the accuracy of eyewitness identifications’ (1983) 7 Law and Human Behavior 19. See also Boyce et al, ‘Belief of eyewitness identification evidence’ (n 84) at 508–509; Leippe, ‘The appraisal of eyewitness testimony’ (n 83) at 388; M R Leippe and D Eisenstadt, ‘The influence of eyewitness expert testimony on jurors’ beliefs and judgments’, in B L Cutler (ed), Expert Testimony on the Psychology of Eyewitness Identification (2009: Oxford University Press) 169 at 171. See Cutler and Penrod, Mistaken Identification (n 83) at 191–195; Leippe, ‘The case for expert testimony’ (n 87) at 930–1002.



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and their lack of ability to accurately assess the factors influencing witness accuracy are linked in a vicious circle: because fact-­finders cannot assess testimony accurately they overestimate its accuracy and because they overestimate its accuracy they underestimate the impact of factors detracting from witness reliability. C. EXPERT TESTIMONY AND SOUND DECISIONS ON CREDIBILITY AND RELIABILITY (1) Is psychological research on witnessing sufficiently reliable? The above analysis provides little support for Lord Gill’s assertion that fact-­ finders’ ‘experience of life and human affairs’ render them capable of sound decisions on witness credibility and reliability. This opens the way to argue that expert testimony on the psychology of witnessing may be necessary or at least helpful in reaching such sound decisions. However, a necessary, but certainly not sufficient, condition for such testimony itself is that it is based on evidence which is ‘sufficiently reliable’; otherwise, as recognised in Young v HM Advocate,111 it ‘will not assist the finder of fact in the proper determination of the issue’. According to Young, expert evidence must proceed on theories which have been tested (both by academic review and in practice) and found to have a practical and measurable consequence in real life. It must follow a developed methodology which is explicable and open to possible challenge, and it must produce a result which is capable of being assessed and given more or less weight in light of all the evidence before the finder of fact.112

As the first Scottish case to lay down a reliability requirement for the admission of expert evidence, it is not surprising that Young leaves many unanswered questions.113 Most114 of these are beyond the scope of this article because it can be argued that the psychological research on witnessing is at least as reliable as much of the research which supports many ‘hard’ forensic sciences, and these other sciences have been accepted by the courts.115 Indeed, the more traditional sciences have been given a ‘free pass’ in terms of the question of their reliability. Yet as psychological research on 111 112 113

114 115

[2013] HCJAC 145; 2014 SLT 21; 2014 SCL 98. Ibid para 54. However, the suggestion that all expert evidence much be based on an academic discipline rather than experience has now been implicitly overruled in Kennedy v Cordia (Services) LLP [2016] UKSC 6 para 44 which states as one of the conditions for expert evidence admissibility that it is based on a ‘reliable body of knowledge or experience’) (emphasis added). But see below. Cf National Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009), available at: https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf (last accessed on 1 November 2016); compare Young v HM Advocate (n 15) para 55.

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witnessing shows, such differential treatment between the ‘hard’ and ‘soft’ sciences is difficult to justify.116 Thus, most of the research on which psychological experts might rely has been peer-­reviewed and is based on falsifiable hypotheses which have been tested through experiments designed to ensure ‘internal validity’ through isolation of study variables, exclusion of rival hypotheses, random selection of subjects, etc.117 More problematic is the argument118 that the studies lack realism or in scientific jargon ‘external’ or ‘ecological’ validity, and hence their findings are not generalisable to ‘real-­life’ witnessing and witness evaluation. Due to cost, ethical constraints and the desire for strict control of the variables studied, studies often involve fairly artificial witnessing and witness evaluation experimental conditions. For example, even when witness evaluation studies involve video-­taped trials rather than subjects reading witness testimonies or transcripts, such trials are heavily edited and devoid of the tensions and/or tedium of real trials, and the impact of the personalities and demeanour of legal actors and other factors prompting peripheral rather than central route processing.119 Moreover, most studies are of individual decision-­ making, whereas juries decide collectively, and this may affect individual views. There are fewer problems with creating realistic witnessing conditions, though ethical considerations may limit, for example, the extent to which witnesses can be exposed to stressful and traumatic events, especially as victims. On the other hand, it can be noted that many witnesses are not involved in the incidents they observe, nor are most legal incidents violent, emotionally arousing or otherwise striking. Moreover, as noted by Ferguson, stress and other forms of emotional arousal can have negative as well as positive effects.120 More generally, one can ask whether the fact that a theory has not been 116

117

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120

See, more generally, Faigman, ‘To have and have not’ (n 51); and cf Raitt, ‘A new criterion’ (n 74) at 153 on the law’s reluctance to engage with the reliability of social science research. The following discussion of the validity of the research draws on McEwan, The Verdict of the Court (n 76) ch 7 and ‘Reasoning, relevance and law reform’ (n 84); Cutler and Penrod, Mistaken Identification (n 83) especially ch 4; Leippe, ‘The case for expert testimony’ (n 83); R Bagshaw, ‘Behavioural science data in evidence teaching and scholarship’, in Roberts and Redmayne, Innovations in Evidence (n 84); J Copeland, ‘Helping jurors recognize the frailties of eyewitness identification evidence’ (2002) 46 Criminal Law Quarterly 188, and the more partisan discussions from within psychology of B L Cutler, R S Malpass, S J Ross, C A Meissner, and J L Marcon ‘The need for expert psychological testimony on eyewitness identification’, in Cutler, Expert Testimony (n 109) at 3. For example, Stone, Proof of Fact in Criminal Trials (n 36) ch 1; Ebbesen and Konecˇni, ‘Eyewitness memory research’ (n 102); H D Flowe et al, ‘Limitations of expert psychology testimony on eyewitness identification’, in Cutler, Expert Testimony (n 109) at 201; R Elliott, ‘Expert testimony about eyewitness identification: a critique’ (1993) 17 Law and Human Behavior 423. See W Weiten and S S Diamond, ‘A critical review of the jury simulation paradigm: the case of defendant characteristics’ (1979) 3 Law and Human Behavior 71. See Ferguson, Chapter 6 in this volume at 145.



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‘found to have a practical and measurable consequence in real life’121 should, for that reason alone, be refused admission as the High Court suggests. For one thing, the courts have long relied on many disciplines, such as pathology, whose theories are based on inference from first principles and practitioner experience which cannot, for obvious reasons, be tested in real life,122 and others, like psychiatry, which are based on methods other than the paradigmatic scientific method of testing falsifiable hypotheses through controlled laboratory experiments.123 In addition, many laboratory experiments are increasingly being confirmed in field experiments which are conducted in real-­life situations, and by some archival studies, where researchers look at the record of actual cases. Moreover, the vast majority of the findings cited in this and Ferguson’s chapter are supported by ‘multiple studies conducted in systematic programmes of research carried out by multiple investigators working independently of each other’ and involve ‘methodological variability across paradigms and investigators’.124 It would indeed be startling if, as Leippe and Eisenstadt note, ‘somehow, most experts are wrong about most eyewitness matters’.125 Conversely, there is little clear indication that real-­life conditions make a difference to the phenomena observed, let alone what the direction of effect would be. It is one thing to say that laboratory conditions are unrealistic; quite another to say that real-­life conditions will cause an observed phenomenon to be reversed, negated or diminished rather than enhanced. Of course, if such evidence emerges, theories based on laboratory experiments need to be altered, just as when earlier findings are not replicated, or their details complicated, by later studies. But until evidence contradicting otherwise consistent and generally accepted research findings emerges, it seems better to take cognisance of the prima facie case for the existence of phenomena established by consistent laboratory findings, rather than ignore them because they might not be replicated in real life126 or are later found to require modification. These possibilities counsel for modesty in the claims 121 122

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Young v HM Advocate [2013] HCJAC 145, para 54. See, for example, G Edmond and D Mercer, ‘Trashing “junk science”’ (1998) 3 Stanford Technology Law Review paras 1–86, available at: https://journals.law.stanford.edu/sites/default/files/ stanford-technology-law-review-stlr/online/edmund-mercer-trashing-junk-science.pdf (last acces­sed 1 November 2016); E J Imwinkelried,‘The meaning of “appropriate validation”, in Daubert v Merrell Dow Pharmaceuticals, Inc, interpreted in light of the broader rationalist tradition, not the narrow scientific tradition’ (2002–2003) 30 Fla St U L Rev 735 at 742–743. See, for example, Faigman, ‘To have and have not’ (n 51); A E Taslitz, ‘Myself alone: individualizing justice through psychological character evidence’ (1993) 52 MLR 1 at 30 ff. Leippe, ‘The case for expert testimony’ (n 87) at 915. Leippe and Eisenstadt, ‘The influence of eyewitness expert testimony’ (n 109) at 174. In fact, it is arguable that evidence from actual cases can never trump laboratory experiments because we can only very rarely derive definitive answers from observing actual incidents. This, in turn, is because one cannot sufficiently control for the impact of independent variables outside experiments. More importantly, there is rarely verification of the truth

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of experts127 and for courts to assess the validity of individual psychological research findings, not for categorically rejecting all psychological expertise on witnessing. To dismiss all psychological findings for a lack of certainty would be to hold psychological research to higher standards than those that apply to the so-­called ‘hard sciences’ where scientists acknowledge that they (or at least their colleagues!)128 are not capable of providing infallible and unchanging knowledge. More radically, post-­Kuhnian sociological studies of science argue that ‘the procedures and conclusions of science are, like all other cultural products, the contingent outcome of interpretive social acts’ and that ‘the factual as well as the theoretical assertions of science depend on speculative and socially derived assumptions’.129 In other words, truth claims are the product of negotiation within particular scientific communities, and the best we can expect in terms of reliability is a consensus amongst the scientific community based on consistent findings.130 Perhaps more pertinently, legal fact-­finders constantly rely on generalisations whose applicability and existential validity are far from certain. While it could be argued that this is unavoidable, unlike reliance on unproven psychological findings, it seems bizarre to reject the latter where this would leave fact-­finders to rely on ‘fireside inductions’131 about human psychology which experts consistently find to be misplaced.132

127 128

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of witness accounts to allow for inferences about the effect of witnessing conditions, or the accuracy of witnesses and evaluations of their reliability. Faigman, ‘To have and have not’ (n 51) at 1030 and 1051. B L Campbell, ‘Uncertainty as symbolic action in disputes among experts’ (1985) 15 Social Studies of Science 429. M Mulkay, ‘Knowledge and utility: implications for the sociology of knowledge’ (1979) 9 Social Studies of Science 63 at 65. This is not to argue that the only test of admissibility should be one of consensus or the earlier US test of general acceptance (Frye v United States 293 F 1013 (DC Cir 1923)). There are well-­documented problems with this test (see, for example, D L Faigman, ‘Expert evidence: the rules and the rationality the law applies (or should apply) to psychological expertise’, in Carson and Bull, Handbook of Psychology (n 76) 367, not least that it requires deciding on how much consensus is required amongst psychologists (cf H M Hosch, K W Jolly, L A Schmersal and B A Smith, ‘Expert psychology testimony on eyewitness identification: consensus among experts?’, in Cutler, Expert Testimony (n 109) 146, regarding the different but increasing levels of consensus amongst witnessing researchers), and the dangers that consensus might be subconsciously encouraged by the fact that psychological researchers, as both academics carving out a relatively new discipline and potential hired experts, have an interest. On the other hand, one wonders how capable the courts are of evaluating the validity of the methods, never mind the results, of unfamiliar disciplines as required by Young. Cf the criticism of the similar new US test (Daubert v Merrell Dow Pharmaceuticals 509 US 579 (1993)) by, for example, S A Cole, ‘Where the rubber meets the road: thinking about expert evidence as expert testimony’ (2007) 52 Villanova Law Review 803. Cf P E Meehl, ‘Law and the fireside inductions: some reflections of a clinical psychologist’ (1971) 27 Journal of Social Issues 65. Cf Roberts, ‘Expert evidence on the reliability’ (n 10) at 104–105; McEwan, The Verdict of the Court (n 76) at 8.



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(2) Can psychological experts assist fact-finders? However, even if it is accepted that fact-­finders need help in reaching sound decisions on witness credibility and reliability, and that such help can be based on sufficiently reliable research findings, it still needs to be established that expert testimony will actually help fact-­finders, both in the abstract and when weighed against associated harms and other less harmful forms of assistance. Looking at credibility first, here there seems to be little more experts can do than warn fact-­adjudicators about the difficulties of inferring credibility from demeanour and other clues relating to the way witnesses testify. Given the simplicity of such a message, this can quite easily be done by lawyers arguing the case and/or judges instructing juries. To provide more than a general ‘lecture’ on this topic (which at any ­rate – ­at least in the case of warnings about overvaluing confidence ­levels – ­do not seem to work)133 by commenting on or even just providing an explanation of the reliability (or lack thereof) of particular cues based on the way witnesses testify would require the expert’s presence in the court throughout the trial. In fact, the trial’s adversarial nature would require both prosecution and defence experts or a significant change in procedure to allow for a court-­appointed commentator on witness credibility. In addition, there seems little point in informing jurors of the more reliable signs of lying if they cannot be detected by non-­ experts. And, even if courts were prepared to allow experts to sit in court and observe all witnesses, allowing experts to provide an opinion on whether they think a witness is credible would fundamentally alter the nature of the Scottish trial and go very far towards usurping the role of those appointed to find the facts, especially if experts have to use special equipment to detect demeanour clues. Thus, while the High Court was wrong to assert that the common sense and life experience of juries and other fact-­finders will ensure sound decisions on credibility, it does not seem worthwhile to use experts to help make such assessments. Some psychological insiders argue for the same conclusion as regards the usability of expert evidence on reliability. Thus, whereas supporters of the use of experts assume that ‘[w]hile a little knowledge can sometimes be a dangerous thing, it is rarely more dangerous than no knowledge at all’,134 critics argue that ‘a little learning is dangerous and . . . a little more may be more dangerous still’.135 One reason given is that the impact of variables affecting witnessing is too often small or its contours too imprecise to justify being applied. For instance, while studies consistently find a cross-­race effect

133 134 135

See Leippe, ‘The case for expert testimony’ (n 87) at 942. Faigman, ‘To have and have not’ (n 51) at 1047. Elliott, ‘Expert testimony’ (n 118) at 425. See also, for example, Ebbesen and Konecˇni (n 102).

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for face identification,136 it is very small, and while longer exposure time clearly enhances memory of faces, the exact ratio between exposure time and memory improvement is unclear.137 Secondly, it is argued that even if we can be precise about the effect of some witnessing conditions, research can only report an average affect. For actual witnesses, this effect may be magnified, nullified or diminished because of other factors. The effect of some of these factors might be unknown, especially when it comes to variations in witnesses’ personalities. For example, stress clearly affects different people differently, and, counter-intuitively, some elderly witnesses may have impeccable memories.138 Even where we are dealing with factors whose effect is known in isolation from others or the way in which they combine with some other factors (for instance that longer witness exposure to an event mitigates the speed and extent of memory loss), there are simply too many variables potentially affecting witness accuracy to allow for any ‘scientific’ prediction. These are valid points, but it can be noted that the courts are content to allow experts to provide opinions on the reliability of those with special features, even though such features might be exacerbated or mitigated by other factors to which fact-­finders are not alerted. So, once it is recognised that expert evidence is not validly confined to ‘special features pertaining to a witness or to his evidence’139 or that consistently observed factors affecting reliability constitute such special features, the way is open to admitting an opinion on the impact of individual factors, at least if they have more than a minimal impact. This could even be extended to an opinion based on the consistently observed combined effect of factors, though as one moves from two to more factors, such an opinion becomes increasingly speculative. But where a witness’s reliability is likely to have been affected by too many different factors or where there are only a few but their impact on each other is unknown, expert testimony could be confined to merely providing juries with an idea of their observed impact, the possible size of impact, and that other factors might mitigate or enhance these. As long as experts make it clear that some effects are smaller than others,140 that particular findings have been challenged or may lack ecological validity, and that there may be many different witnessing conditions which affect accuracy, such social 136 137 138

139 140

See Ferguson, Chapter 6 in this volume. Cutler and Penrod, Mistaken Identification (n 83) at 101. On the capacities of elderly witnesses, see, for example, D J LaVoie, H K Mertz and T L Richmond, ‘False memory susceptibility in older adults: implications for the elderly eyewitness’, in Toglia et al, The Handbook of Eyewitness Psychology (n 94) 605; and C J A Moulin, R G Thompson, D B Wright and M A Conway, ‘Eyewitness memory in older adults’, in ibid 627. Gage (n 10) para 22. Even though this might negate the impact of their evidence, as has occurred in mock jury studies: see Elliott, ‘Expert testimony’ (n 118) at 433.



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framework evidence can be argued to play an important role. It may help to educate about the factors affecting witnessing and serve to caution them about over-­estimating witness accuracy. This can be done without coming close to usurping the court’s fact-­finding function. (3) Are the benefits of expert testimony outweighed by the harms? It is, however, still arguable that even if the information is useful in the abstract, exposure to a plethora of relevant findings, but with no means of weighing them up against each other and applying them to the case before them, might lead to fact-­finders becoming confused or paralysed by information overload. This seems an especial danger where jurors have been exposed to the minutiae of research in a ‘battle of the experts’.141 This, in turn, may lead them to abandon attempts to evaluate witness accuracy in terms of its content, and focus instead on irrelevant and misleading credibility cues such as witnesses’ status or attractiveness, and whether they look questioners in the eye.142 Leaving aside the question of whether it is better to run the risk of confusing fact-­finders than allowing them to labour under misapprehensions about witness testimony,143 it can be noted that evidence for such ‘peripheral route processing’144 is confined to lay rather than professional fact-­finders, who presumably will be far more likely to focus on the more valuable content and witness reliability-based cues involved in ‘central route processing’. Moreover, expert warnings about overestimating witness accuracy and relying on common-­sense signs of witness accuracy and honesty may have the effect of encouraging lay fact-­finders to concentrate on the content of testimony. In any event it is noteworthy that worries about juror ­confusion – ­like those of jurors being dazzled by experts’ credentials and ‘aura of special reliability and trustworthiness’145 – are not regarded as dispositive when it comes to forensic and other so-­called ‘hard’ science experts who carry much greater epistemological authority than those from the ‘soft’ sciences.146 More importantly, decades of US research suggests that fact-­finders, including jurors in 141 142

143 144

145 146

Gage (n 10) para 32 per Lord Gill. See Leippe, ‘The appraisal of eyewitness testimony’ (n 83) at 391–392; C Fife-­Schaw, ‘The influence of witness appearance and demeanour on witness credibility’, in A Heaton-­ Armstrong, E Shepherd and D Wolchover (eds), Analysing Witness Testimony: A Guide for Legal Practitioners and Other Professionals (1999: Blackstone Press) 253. Cf Raitt, ‘A new criterion’ (n 74) at 165. R E Petty and J T Cacioppo, ‘The elaboration likelihood model of persuasion’, in L Berkowitz (ed), Advances in Experimental Social Psychology: Volume 19 (1986: Academic Press) 123. United States v Fosher 590 F2d 381 (1st Cir 1979) 383. See, for example, P Alldridge, ‘Forensic science and expert evidence’ (1994) 21 Journal of Law and Society 136, especially at 138.

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actual cases, do not simply defer to experts nor are necessarily paralysed by competing experts, but attempt to weigh the merits of their evidence in the context of the case as a whole and do so with reasonable though by no means perfect competence.147 Studies have also addressed the specific effect of exposing mock fact-­ finders to research findings by experts.148 Ideally, such exposure should make fact-­finders more likely to accept accurate, and less likely to accept inaccurate, evidence. Initially, such a ‘sensitivity effect’ only rarely appeared in the relatively large number of experiments involving expert evidence. Instead, some showed no effect at all, whereas most resulted in heightened disbelief in witness testimony, irrespective of its accuracy.149 However, other studies150 have shown less of this latter ‘scepticism effect’ and more of a sensitivity effect, at least when experts tailored their testimony to the case rather than providing an overview of all research findings. In any event, given fact-­finders’ tendency to overestimate witness accuracy, one can ask whether general scepticism (as in Lord Gill’s climate of disbelief)151 is so undesirable. According to Leippe and Eisenstadt,152 scepticism occurs usually when it should (for example, when witness testimony is both central to the case and weak) and only sometimes when it should not. Moreover, it is arguable that where such scepticism relates to prosecution as opposed to defence witnesses, it is in fact desirable given both the general overestimation of witness reliability by fact-­finders and the law’s adoption of ‘principled asymmetry’153 in favour of ‘overprotecting’ criminal accused.154 If so, it can be argued that while expert evidence might not ensure a sound decision understood solely in terms of accuracy, it may contribute to a proper resolution of the dispute in terms of accepted criminal justice values. For this reason, it is arguable that expert testimony on witness reliability 147

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N Vidmar and S S Diamond, ‘Juries and expert evidence’ (2001) 66 Brooklyn Law Review 1121; S K Ivkovic and V P Hans, ‘Jurors’ evaluations of expert testimony: judging the messenger and the message’ (2003) 28 Law & Social Inquiry 441. See Cutler and Penrod, Mistaken Identification (n 83) chs 14–17; Leippe, ‘The case for expert testimony’ (n 87) at 934–947 passim; L Dufraimont, ‘Regulating unreliable evidence: can evidence rules guide juries and prevent wrongful convictions?’ (2007–8) 33 Queen’s LJ 261 at 301–306; R A Wise, K A Dauphinais and M A Safer, ‘A tripartite solution to eyewitness error’ (2007) 97 Journal of Criminal Law and Criminology 807 at 837–841. See Cutler and Penrod, Mistaken Identification (n 83) at 218–224; Leippe, ‘The case for expert testimony’ (n 87) at 934 ff; R A Wise et al, ‘A tripartite solution’ (n 148) at 840–841. Cutler and Penrod, Mistaken Identification (n 83) ch 15; R A Wise et al, ‘A tripartite solution’ (n 148) at 837–839. Gage (n 10) para 33. Leippe and Eisenstadt, ‘The influence of eyewitness expert testimony’ (n 109) at 188–189; see also Dufraimont, ‘Regulating unreliable evidence’ (n 148) at 300–301; Leippe, ‘The case for expert testimony’ (n 87). Roberts and Zuckerman, Criminal Evidence (n 19) at 19. Luban, Lawyers and Justice (n 72) at 60–63.



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should be confined to situations where the possible impact of common-­ sense assumptions about witnessing is likely to lead to patent injustice to an accused.155 Even if there remain doubts about the effectiveness of expert testimony on witness reliability156 the cautionary principle suggests that, if there is any potential for experts to safeguard the accused against unsafe convictions based on the failure to make sound decisions about witness reliability, they should be used. A similar response can be directed at the worry expressed by the High Court that expert testimony will substantially extend the length of trials,157 especially if each side calls its own psychological experts, and courts have to spend time deciding whether their testimony is based on sufficiently reliable research findings. (4) Are there better alternatives to psychological experts? On the other hand, these costs and the other risks associated with p ­ sychological – ­and indeed a­ ll – ­experts (their propensity to dazzle, confuse or engender undue scepticism) can still be dispositive if they can be shown, as the High Court assumed,158 to be unnecessary due to safeguards against reliance on unreliable evidence in the form of judicial instruction and cross-­examination. We have already argued that warnings about the unreliability of demeanour and other credibility clues can just as ­ easily – ­ and certainly more ­efficiently – ­be provided by lawyers and judges given the simplicity of the message involved. But what about reliability? Here, such a role can only be played by judges and lawyers if their knowledge of the psychology of witnessing is a lot more advanced than that of US judges and lawyers. Thus, while their performance has not been subjected to the more insightful means of indirect testing, neither judges nor lawyers performed better than lay subjects in survey studies of their knowledge of factors affecting witnessing.159 155

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157 158 159

For instance, in the US, expert evidence on the impact of eyewitness psychology is permitted only where such evidence is a key element in the prosecution case and where it is not substantially c­ orroborated – ­see the leading case in this area, People v McDonald 690 P2d 709 (Cal 1984) at 727. See K A Martire and R L Kemp, ‘The impact of eyewitness expert evidence and judicial instructions on juror ability to evaluate eyewitness testimony’ (2009) 33 Law and Human Behavior 225; and K A Martire and R L Kemp, ‘Can experts help jurors to evaluate eyewitness evidence? A review of eyewitness expert effects’ (2011) 16 Legal and Criminological Psychology 24, reporting a few studies based on evidence given by witnesses who have actually viewed an event rather than fictional eyewitness statements which failed to discern any impact of expert testimony on jury evaluations. Gage (n 10) para 32. Ibid paras 29–30. T R Benton, S McDonnell, D F Ross, N Thomas and E Bradshaw, ‘Has eyewitness testimony research penetrated the American legal system? A synthesis of case history, juror knowledge, and expert testimony’, in Lindsay et al, The Handbook of Eyewitness Psychology (n 84) 453, at 485–487; H M Hosch, K W Jolly, L A Schmersal and B A Smith, ‘Expert

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Indeed, in one survey, law students performed better than judges with years of legal experience.160 Consequently, the effectiveness of these safeguards requires the proper training of all professional adjudicators and lawyers involved in the criminal justice system. Indeed, this seems desirable whatever role psychological experts might play.161 In the case of judges, the only problems are ones of cost and possible resistance from judges who might think that they have nothing to learn from psychology. Law schools will, however, understandably resist adding to an already crammed compulsory curriculum, and thus this safeguard is dependent on lawyers being sufficiently dedicated to clients to find the time to undertake the necessary research on witness reliability. But even assuming that judges and lawyers are exposed to relevant knowledge about the reliability of witnesses, their knowledge is likely to be less current than psychological experts. This is not necessarily problematic, as the law is appropriately cautious about using new findings before they become accepted wisdom, lest they prove to be idiosyncratic. Arguably, however, experts are also likely to be seen to be and to actually be, given their overriding duty to truth and the court rather than those calling them, more impartial than counsel, as well as more authoritative than both lawyers and judges. More importantly, they will be able to provide a far more comprehensive, accurate and nuanced picture of research findings on witness reliability, especially if their views are probed by opposing counsel, judges and other fact-­adjudicators. Consequently, experts would seem to be the most effective means of contributing to sound decisions on witness reliability, even when appropriately trained judges sit without juries. These predictions are supported by research which suggests that cross-­ examination rarely counters the impact of eyewitness testimony162 and is ‘largely useless’ for detecting truthful but mistaken witnesses.163 This is doubtless because it is not aimed at helping fact-­finders to evaluate testimony

160

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162 163

psychology testimony on eyewitness identification: consensus among experts?’, in Cutler, Expert Testimony (n 109) 143 at 156–158; J L Devenport, C D Kimbrough and B L Cutler, ‘Effectiveness of traditional safeguards against erroneous conviction arising from mistaken eyewitness identification’, ibid 51 at 53–59. R A Wise and M A Safer, ‘A survey of judges’ knowledge and beliefs about eyewitness testimony’ (2003) 40 Court Review 6. M D MacLeod and D H Sheldon, ‘From normative to positive data: expert psychological evidence re-­examined’ (1991) Crim LR 811 at 820; A Heaton-­Armstrong, D Wolchover and E Shepherd, ‘Problematic testimony’, in Heaton-­Armstrong et al, Analysing Witness Testimony (n 142) 335 at 336–338; W Young and S Katkhuda, ‘Judicial training’, in Heaton-­Armstrong et al, Witness Testimony (n 7) 425. Leippe, ‘The case for expert testimony’ (n 87) at 924. Wells et al, ‘Accuracy, confidence, and juror perceptions’ (n 87) at 609. See also Wise et al, ‘A tripartite solution’ (n 147) at 828–830; Devenport et al, ‘Effectiveness of traditional safeguards’ (n 159); Roberts, ‘Expert evidence on the reliability’ (n 10) at 98–99; B L Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011: Harvard University



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accurately, but at undermining unfavourable, and strengthening favourable, testimony, and its impact may well owe more to cross-­examination ability than witness accuracy. Particularly in a criminal justice system where many legal aid defence lawyers are underfunded and overworked, judicial instructions are a potentially more effective safeguard. But here also the research does not suggest much cause for optimism about the positive effect of judicial warnings as to potentially unreliable evidence and the factors affecting reliability.164 Like jury instructions in general,165 they may not be sufficiently comprehensible to be effective and are delivered at the end of trials when jurors’ minds may already be made up or where jurors are struggling to cope with information overload. Unsurprisingly, the few studies that have been undertaken reveal that jury instructions have little impact, and certainly less than that of expert witnesses, and that when they do have an impact, they tend to engender scepticism rather than sensitivity.166 Admittedly, these studies suffer from problems of external validity and use US jury instructions, which lack sufficient relevant information. But, while better-­designed studies and improved jury instructions may in the future r­eveal – ­and, according to Leverick,167 are already r­ evealing – ­a more positive impact, currently there is some justification for thinking that the best means of assisting fact-­finders to make sound decisions about witness reliability is through expert evidence.168 Certainly, it has been shown to produce a sensitivity rather than merely a scepticism effect, and experts who may precede and specifically refer to relevant problems of witness testimony are likely to be able to convey specialist knowledge better than judges and lawyers, and are always open to adversarial challenge.

164

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Press) ch 3, in relation to actual cases involving miscarriages of justice based on misidentification evidence. Leippe, ‘The case for expert testimony’ (n 87) at 949; Roberts, ‘Expert evidence on the reliability’ (n 10) at 99; C J O’Hagan, ‘When seeing is not believing: the case for eyewitness expert testimony’ (1993) 81 Georgetown LJ 741 at 753–754. See, for example, McEwan, The Verdict of the Court (n 76) at 138 ff; V G Rose and J R P Ogloff, ‘Evaluating the comprehensibility of jury instructions: a method and an example’ (2001) 25 Law and Human Behavior 409. See Cutler and Penrod, Mistaken Identification (n 83) ch 17; Devenport et al, ‘Effectiveness of traditional safeguards’ (n 159) at 61–64. F Leverick, ‘Jury instructions on eyewitness identification evidence: a re-­evaluation’ (2016) 49 Creighton Law Review 555. See also L Ellison and V E Munro, ‘“Telling tales”: exploring narratives of life and law within the (mock) jury room’ (2015) 35 Legal Studies 201. As argued for both by psychologists (for example, Copeland, ‘Helping jurors’ (n 117); Leippe, ‘The case for expert testimony’ (n 87); Cutler et al, ‘The need for expert psychological testimony’ (n 117)), and legal commentators (for example, MacLeod and Sheldon, ‘From normative to positive data’ (n 161)); Stein, ‘The admissibility of expert testimony’ (n 12); O’Hagan, ‘When seeing is not believing’ (n 164); Heaton-­Armstrong et al, Analysing Witness Testimony (n 142); D Ormerod and A Roberts, ‘The admissibility of expert evidence’, in Heaton-­Armstrong et al, Witness Testimony (n 7) 401 at 408.

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D. CONCLUSION In this chapter we have argued that the categorical exclusion of all experts on the psychology of witnessing as unnecessary for the proper resolution of disputes is based on an application of the wrong test for admissibility and, in any event, a misapplication of that test given what is known about the nature of witnessing and the evaluation of witnesses. Instead of a necessity test, we have argued in favour of a test of helpfulness or assistance (supported by Kennedy,169 at least in relation to social framework as opposed to opinion evidence) which justifies the reception of expert evidence if it would improve the soundness of fact-­finders’ decisions. Then, in looking at the admissibility of psychological experts, we considered a number of factors, all of which can be brought under a helpfulness test of admissibility. Thus, in order to be admissible it can be argued that all expert evidence must be reliable, usable, more helpful than harmful and, to the extent that any assistance carries associated risks and other costs, not available in a less costly form.170 Applying this test to the specific case of experts on the psychology of witnessing, we argued that there is little value and overriding system-­based problems with calling experts on issues of credibility. On the other hand, absent extensive exposure to research on the psychology of witnessing which is impossible to provide in the case of jurors, there is an argument for admitting opinion evidence of psychological experts on the reliability of witnesses in limited circumstances, and a much greater role for expert testimony as a form of social framework evidence. At the very least, we hope to have shown that, even if the conclusion in Gage on the admissibility of psychological experts is correct, it is not correct for the right reasons. If such evidence is to be excluded it should be on the grounds that, as things currently stand, the research lacks sufficient external validity or precision to be helpful, in which case there is always the possibility that these problems will be overcome as research continues. But we have argued that it is wrong to hold that expert evidence on the psychology of witnessing is never necessary for sound or proper decision-­making unless the special features exception applies, that other safeguards are adequate, and that the practical costs of such evidence outweigh its benefits. Such reasoning suggests a judiciary unaware of the true nature of the psychology of witnesses (thus ironically suggesting that common sense and lived experience, even of lawyers and judges, are not sufficient bases to adequately inform witness 169 170

Kennedy v Cordia (Services) LLP para 41. For similar approaches, see Roberts and Zuckerman, Criminal Evidence (n 19) at 487–448 (noting that helpfulness has both a positive and negative aspect); T M Massaro, ‘Experts, psychology, credibility, and rape: the rape trauma syndrome issue and its implications for expert psychological testimony’ (1985) 69 Minnesota Law Review 395 at 432. But see Raitt, ‘A new criterion’ (n 74) especially at 154 where she argues that reliability subsumes helpfulness rather than vice versa.



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evaluation). Alternatively, or in addition, it suggests an excessive judicial zeal to uphold the assumed value of lay adjudication, and with it the authority of all judicial fact-­finders, and far less concern to ensure that criminal accused are only convicted on as reliable evidence as possible. How these competing issues are to be balanced is, of course, a complex question which is beyond the scope of this chapter. It is to be hoped, however, that our argument that the necessity test and its application to exclude psychological research on witnessing is unpersuasive will clear the ground for a more principled debate about the proper role of all experts in a system which simultaneously values factual truth, the protection of the criminal accused, lay adjudication and the efficient resolution of disputes.

Chapter 8 The process of criminal evidence law reform in Scotland: what can we learn? James Chalmers, Fiona Leverick and Shona W Stark1

INTRODUCTION This chapter analyses law reforms that have taken place in the field of criminal evidence in modern-­day Scotland. It does so at a busy time in the law reform arena, with two recent projects having the potential to radically change the landscape of Scottish criminal evidence.2 The chapter charts the main law reform projects and their outcomes and, drawing on these experiences, identifies the lessons that might be learned. The focus is on three areas: the bodies that might undertake law reform projects and the strengths and weaknesses of each; how projects might best be selected by those bodies; and how success might best be evaluated. A. CHARTING THE TERRITORY At the outset, it should be said that our focus is on law reform projects, not law reform that takes place as a result of judicial decisions. There have, undoubtedly, been occasions on which the Scottish courts have engaged in a degree of criminal evidence law reform, either by developing the common law3 or by interpreting legislation,4 but the focus of this chapter is on law reform exercises undertaken outside the courts. As such, our initial task was to identify all Scottish law reform projects with a criminal evidence component since the 1970s.5 The results of 1

The authors would like to thank Emma Ainsley for her invaluable assistance in helping us to write this chapter, and the Leverhulme Trust for funding her work as a research assistant. 2 Lord Carloway’s proposal to abolish the requirement for corroboration in criminal cases and the Scottish Courts and Tribunals Service’s evidence and procedure review. Both are discussed in more detail in section A. 3 See MR v HM Advocate [2013] HCJAC 8; 2013 JC 212 (on the application of the Moorov doctrine). 4 See CJM v HM Advocate (No 2) [2013] HCJAC 22; 2013 SLT 380 (on the admissibility of sexual history evidence). 5 We have taken the landmark work of the Thomson Committee as the starting point for our examination, and defined criminal evidence widely to include issues relating more broadly to criminal procedure. Some assistance in this task was gained from P R



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this exercise are contained in the Appendix, which charts these ­projects – ­and their ­outcomes – ­in chronological order. The table is i­nclusive – a­ s the Appendix shows, sometimes a project had only a small evidential component. The first major p ­ roject – p ­ robably still the most e­xtensive – w ­ as the Thomson Committee’s examination of criminal procedure in the 1970s,6 in which a team of thirteen members was appointed to ‘examine trial and pre-­ trial procedures in Scotland (including appeal procedure)’.7 Three reports were issued,8 leading to a number of significant changes, including the introduction of the modern regime governing the detention of suspects for questioning.9 Since then there have been several further major projects focusing on criminal evidence, including the Scottish Law Commission (SLC)’s examination of hearsay evidence (resulting in changes to the admissibility of hearsay evidence in the 1990s);10 the (then) Scottish Executive’s project on cross-­examination in rape and other sexual offence trials (which led to the accused being prohibited from personally conducting his or her own defence and placed further restrictions on the admissibility of sexual history evidence);11 Lord Coulsfield’s review of the law of disclosure (which led to more extensive duties of disclosure being placed on the prosecution and defence);12 and the SLC’s review of the law of double jeopardy (which led to a number of limited exceptions to the rule).13 The most notable Scottish law reform exercise of the modern era, however, is undoubtedly that which stemmed from Lord Carloway’s review of the law of evidence and procedure following Cadder v HMA.14 In Cadder, the Supreme Court ruled that the use at trial of admissions made by a suspect who had not been offered legal assistance would be incompatible with article 6 of the European Convention on Human Rights (ECHR). The Scottish Government immediately introduced emergency legislation Ferguson, ‘Criminal law and criminal justice: an exercise in ad hocery’, and F P Davidson, ‘Evidence’, both in E E Sutherland, K E Goodall and G F M Little (eds), Law Making and the Scottish Parliament: The Early Years (2011: Edinburgh University Press) at 208 and 250 respectively. 6 Thomson Committee, Criminal Procedure in Scotland (Second Report) (Cmnd 6218, 1975). 7 Ibid para 1.01. 8 The other two being Criminal Appeals in Scotland (First Report) (Cmnd 5038, 1972) and Criminal Appeals in Scotland (Third Report) (Cmnd 7005, 1977). 9 See F Leverick, ‘The right to legal assistance during detention’ (2011) 15 Edin LR 352 at 355–357. 10 SLC, Report on Hearsay Evidence in Criminal Proceedings (Scot Law Com No 149, 1995). 11 Scottish Executive, Redressing the Balance: Cross Examination in Rape and Sexual Offence Trials (2000). 12 Lord Coulsfield, Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland (2007). 13 SLC, Report on Double Jeopardy (Scot Law Com No 218, 2009). 14 [2010] UKSC 43; 2010 SCT 1125.

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giving suspects a right to legal assistance during detention,15 but commissioned Lord Carloway to review ‘the law and practice of questioning suspects in a criminal investigation in Scotland’16 in the light of Cadder and the ECHR jurisprudence. His report contained seventy-­six recommendations, many of which were uncontroversial and widely supported.17 It was his more controversial recommendation to abolish the requirement for corroboration in criminal cases18 that gained the most attention and resulted in a lengthy aftermath that is still ongoing at the time of writing. Despite widespread opposition to this proposal,19 the Government pressed ahead, but commissioned a second review, this time into the safeguards necessary to protect against wrongful conviction in the absence of the corroboration requirement. This was led by Lord Bonomy, assisted by an Academic Expert Group,20 and it reported in 2015,21 recommending among other things a programme of research into jury reasoning and decision-­making prior to any major decisions on safeguards being taken.22 The provision abolishing the corroboration requirement was dropped from the relevant legislation23 and jury research has, at the time of writing, yet to commence. Finally, this account would not be complete without mentioning what is, at the time of writing, the most recent reform project and what may turn out to be one of the most radical, the Scottish Courts and Tribunals Service (SCTS)’s Evidence and Procedure Review.24 This too has been led by Lord 15 16

17

18

19

20

21 22 23

24

The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. Carloway Review, Report and Recommendations (2011) para 1.07 (henceforth ‘Carloway Review’). J Chalmers and F Leverick, ‘“Substantial and radical change”: a new dawn for Scottish criminal procedure?’ (2012) 75 MLR 837 at 841–845 (arrest, custody and police powers); 845–849 (access to legal assistance); and 857–860 (right to silence and adverse inferences). Carloway Review at 286. The corroboration requirement was abolished in civil cases by s 1 of the Civil Evidence (Scotland) Act 1988 as a result of an SLC project: Report on Corroboration, Hearsay and Related Matters in Civil Proceedings (Scot Law Com No 100, 1986). See, for example, Chalmers and Leverick, ‘Substantial and radical change’ (n 17) at 849–855; P R Ferguson and F E Raitt, ‘A clear and coherent package of reforms? The Scottish Government consultation paper on the Carloway Review’ (2012) 12 Crim LR 909; D Nicolson and J Blackie, ‘Corroboration in Scots law: “archaic rule” or “invaluable safeguard”?’ (2013) 17 Edin LR 152. J Chalmers, F Leverick and A Shaw (eds), Post-Corroboration Safeguards Review: Report of the Academic Expert Group (2014). Lord Bonomy, The Post-Corroboration Safeguards Review: Final Report (2015). Ibid para 12.24. See Scottish Government, ‘Corroboration abolition removed from Bill’ (press release) 21 April 2015, available at: http://news.scotland.gov.uk/News/Corroboration-abolition-removed-fromBill-1866.aspx (last accessed 8 December 2016). The provision had been in the Criminal Justice (Scotland) Bill, which also contained a number of Lord Carloway’s less controversial requirements. This Bill gained Royal Assent as the Criminal Justice (Scotland) Act 2016. Two reports have so far been produced: Scottish Court Service, Evidence and Procedure Review: Report (2015) (henceforth ‘Evidence and Procedure Review Report’) and SCTS, Evidence and Procedure Review – Next Steps (2016).

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Carloway, this time at the invitation of the SCTS, after he made a speech calling for ‘clear sky thinking’ to help modernise trial procedures and, in particular, the collection and presentation of evidence.25 If the proposals in the report are accepted by the Scottish Government, this may see measures being introduced such as a presumption that the evidence of children and vulnerable witnesses (including any cross-­examination) be captured in advance of trial and presented at the trial in pre-­recorded form26 and a regime whereby guilty pleas in summary cases can be submitted online.27 B. METHODS OF LAW REFORM A number of different methods of law reform have been used in the various reform projects identified: SLC projects; projects led by an individual supported by a team; and Government in-­house reviews. This section considers the strengths and drawbacks of each. (1) SLC projects Some of the major modern-­day reforms of Scottish criminal evidence and procedure have stemmed from SLC projects, including reforms relating to evidence in sexual offence cases,28 the admissibility of hearsay evidence,29 and the introduction of limited exceptions to the rule preventing double jeopardy.30 The SLC has also undertaken a major project on the admissibility of character evidence,31 although its recommendations attracted some criticism32 and have not yet been implemented.33

25

26 27 28

29 30 31

32

33

Lord Carloway, ‘Scots criminal evidence and p ­ rocedure – m ­ eeting the challenges and expectations of modern society and legal thinking’, Criminal Law Conference, Murrayfield, 9 May 2013, available at: http://www.scotland-judiciary.org.uk/26/1045/Lord-Justice-Clerks-speechat-the-Criminal-Law-Conference (last accessed 8 December 2016). Evidence and Procedure Review – Next Steps (n 24) para 74. Ibid para 36. SLC, Report on Evidence in Cases of Rape and other Sexual Offences (Scot Law Com No 78, 1983). SLC, Report on Hearsay Evidence in Criminal Proceedings (Scot Law Com No 149, 1995). SLC, Report on Double Jeopardy (n 13). SLC, Report on Similar Fact Evidence and the Moorov Doctrine (Scot Law Com No 229, 2012). See, for example, F Stark, ‘Wiping the slate clean: reforming Scots law’s approach to evidence of the accused’s bad character’ (2013) 76 MLR 346. The Scottish Government has stated that it will take time to consider the report, ‘with a view to legislating for change at an appropriate opportunity’: SLC, Similar Fact Evidence and the Moorov Doctrine, available at: http://www.scotlawcom.gov.uk/law-reform/law-reform-projects/completed-projects/similar-fact-evidence-and-the-moorov-doctrine (last accessed 8 December 2016). This statement was now made some time ago, though, and there are no signs that reform is on the horizon: see section C(2) of this chapter.

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As a method of law reform,34 an SLC project has a number of advantages. The reform process is generally extremely thorough,35 with SLC discussion papers and reports typically running to several hundred pages and including extensive surveys of the law in other jurisdictions.36 Prior to the SLC’s final report, there is usually a wide-­ranging consultation process that is carried out in response to detailed proposals contained in a discussion paper. This means that, as Sir Geoffrey Palmer has put it, ‘[t]he law commissions produce legislation that is better thought through than that produced by governments, it is more likely to work and it has been rigorously tested before enactment’.37 This has a further advantage, in that extensive explanatory material is available to Parliament when any resulting legislation is debated.38 The SLC’s thorough documentation of its reasoning also means that the courts can look to ­this – i­f they ­wish – w ­ hen interpreting the resulting legislation and indeed have done so on a number of occasions.39 This possibility is not unique to the ­SLC – ­it would in theory be possible with any reform ­project – ­but it is the comprehensiveness of the SLC’s documentation compared in particular with Government-­led reform that makes this easier. The reform process also benefits from the considerable expertise of the Commissioners concerned.40 Projects are typically led by a single Commissioner with expertise in the area,41 but recommendations are debated by the Commission as a whole in an attempt to reach consensus.42 It is only on rare occasions that this has not proved possible,43 one of these being in the double jeopardy project where the Commissioners were unable 34

35

36

37 38 39

40

41

42 43

For an account from an ex-­Commissioner of the process by which the SLC undertakes its projects, see G Gretton, ‘Of law commissioning’ (2013) 17 Edin LR 119 at 138–144. There is also some useful discussion from another ex-­Commissioner in G Maher, ‘Principles and politics in law reform: sexual offences in Scots law’ (2013) Juridical Review 563 at 570. G Palmer, ‘The law reform enterprise: evaluating the past and charting the future’ (2015) 131 Law Quarterly Review 402 at 415. Indeed, the SLC has a duty ‘to obtain such information as to the legal systems of other countries as appears to the Commissioners likely to facilitate the performance of any of their functions’: Law Commissions Act 1965 s 3(1)(f). Palmer, ‘The law reform enterprise’ (n 35) at 415. Ibid at 416. See, for example, HM Advocate v Cowie [2011] HCJAC 111 at para 15 (referring to SLC, Report on Evidence: Blood Group Tests, DNA Tests and Related Matters (Scot Law Com No 120, 1989)). For discussion, see G Maher, ‘Statutory interpretation and Scottish Law Commission reports’ 1992 SLT (News) 277. Something that is, of course, only possible if the SLC has a Commissioner with relevant experience: see section C(1) of this chapter. Gretton, ‘Of law commissioning’ (n 34) at 136. Commissioners must be ‘suitably qualified by the holding of judicial office or by experience as an advocate or solicitor or as a teacher of law in a university’: Law Commissions Act 1965 s 2(2). Gretton, ‘Of law commissioning’ (n 34) at 138. Ibid. The existence of dissent is noted, although it has not been common practice for dissenting Commissioners to issue separate opinions.



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to agree on whether an exception should be made to the rule in cases where new evidence (other than admissions) emerges.44 In the event, with there being four Commissioners evenly split, no recommendation was made.45 The main drawback of SLC-­led law reform is that it can be slow. Projects typically take two to three years to be completed46 and that is without taking account of any further processes undertaken by the Government prior to implementation. It is too simplistic, though, to view this as a disadvantage. It may be perceived as such, but projects take time to complete because they are thoroughly researched and consulted o ­ n – ­something that cannot be achieved quickly. One might also question how frequently law reform really is urgently required.47 Slowness may, however, act as something of a political disincentive to the Government to use this route.48 There is also no guarantee that recommendations made by the SLC will make it onto the statute b ­ ook – t­ hey may be left unimplemented or ‘watered down’49 by the Government, although it does have to be said that on the whole Commission-­led projects in our sample were mostly implemented in full and criminal law and evidence projects have a better ‘success rate’ than other areas the SLC has tackled.50 It might also be said that the Commission method is heavily reliant on comparative research to inform its conclusions. It rarely engages in or commissions original empirical research,51 although 44 45

46 47

48

49 50

51

Ibid. SLC, Report on Double Jeopardy (n 13) paras 4.43–4.44. An even split in opinion is not usually a possibility because the SLC usually operates with five Commissioners at any given t­ ime – ­there was one vacant position when the Double Jeopardy report was finalised. J Chalmers, ‘Criminal law reform in Scotland’ (2015) 19 Edin LR 399 at 402. And if it is, Parliament can always pass emergency legislation pending the results of a more thorough reform project, as it did with the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. Although it might equally be seen as politically beneficial to the Government if it wishes to deflect interest from a controversial issue: see M Dyson, J Lee and S W Stark, ‘Introduction’, in M Dyson, J Lee and S W Stark (eds), Fifty Years of the Law Commissions: The Dynamics of Law Reform (2016: Hart) 3 at 9; and J Beatson, ‘Challenges for independent law reformers from changing external priorities and shorter timescales’, in ibid 245 at 256. Maher, ‘Principles and politics’ (n 34) at 564. All but two of the SLC reports listed in the Appendix were implemented in whole or in part, giving an implementation rate of 85 per cent: see section C(2). The overall implementation rate for SLC projects in devolved areas has been closer to 50 per cent in recent years: M McMillan, ‘The role of law reform in constitutionalism, rule of law and democratic governance’, Association of Law Reform Agencies of Eastern and Southern Africa Conference (2011) 4, available at: http://www.scotlawcom.gov.uk/files/4014/3532/8140/ALRAESA_paper__1_Nov_2011.pdf (last accessed 8 December 2016). Admittedly much depends on how implementation rates are calculated, on which see S W Stark, ‘Promoting law reform: by means of draft Bills or otherwise’, in Dyson et al, Fifty Years of the Law Commissions (n 48) 139 at 146–148. For an occasion on which it did (albeit not in criminal evidence law), see M Adler, ‘Social research and legal reform: reflections on the politics of commissioned research’, in I Ramsay (ed), Debtors and Creditors: A Socio-Legal Perspective (1986: Butterworths) 317.

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there is no reason why this could not be done (other than perhaps a lack of financial resources) if it was thought necessary. (2) Individual with team An alternative approach that has found particular favour in recent times is for the Government (or sometimes another body)52 to appoint an individual to conduct a review, ­usually – ­but not always53 – a judge. The individual concerned is normally assisted by a team, although the use made of that team has varied, with two broad approaches being taken. The first is a model involving a group led by a Chair, the best example perhaps being that of the Thomson Committee, a group of thirteen experts led by Lord Thomson.54 The group met on 122 occasions55 and worked towards its recommendations using a genuinely collaborative process,56 noting as well in the final report any recommendations where dissent existed.57 The second is a model whereby an individual has undertaken the project advised by a separate reference group. This was the approach used by Lord Bonomy’s review of post-­corroboration safeguards,58 in which he played the lead role assisted by an eighteen-­person reference group with a broad-­ based membership of academics, criminal justice practitioners and interest groups.59 The group met on twelve occasions and dissenting views were recorded in the final report.60 He also commissioned academic research to inform his review and drew on this extensively in his final report.61 As such, in terms of the process involved there is little practical difference between this model and the ‘group’ model noted above.62 This might be contrasted, though, to Lord Carloway’s post-Cadder

52 53

54 55 56 57 58 59 60

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See the Evidence and Procedure Review commissioned by the SCTS. See, for example, John Scott QC’s review of stop and search procedures: J Scott, The Report of the Advisory Group on Stop and Search (2015): available at http://www.gov.scot/About/Review/ stopandsearch (last accessed 8 December 2016). Thomson Committee (n 6) at iii. Ibid para 1.07. Ibid paras 1.07–1.08. See, for example, recommendations 141–143 on juries. Lord Bonomy, The Post-Corroboration Safeguards Review: Final Report (n 21). See C(2) below. See, for example, para 9.25 (where three reference group members opposed the retention of the corroboration requirement in cases of sole or decisive hearsay). See para 2.7 (stating that the Academic Expert Report should be seen as a ‘companion piece’ that ‘provides the foundation for much of the Review’s thinking’). For other examples of this approach, see Lord Coulsfield, Review of the Law and Practice of Disclosure (n 12) (membership of the reference group is listed at para 2.4) and Sheriff Principal Bowen’s Independent Review of Sheriff and Jury Procedure (2010) (membership of the reference group is listed at para 2.3).



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review.63 He appointed a reference group, but the use he made of it was rather different. As Lord Carloway put it in his report:64 The role of the Group was to provide the Review with advice, as it developed its ideas on the range of issues to be addressed, and to act as a sounding board, offering insights, criticisms and comments in the development of the Review’s work. The Group was not required to reach a consensus view on any issue or to endorse the report and its recommendations.

The group met in plenary session four times over the year-­long course of the review and Lord Carloway also held meetings with individual members of the group (or met sub-­groups) on occasion.65 But the ­recommendations – i­ncluding the controversial recommendation to abolish the corroboration ­requirement – w ­ ere very much his own.66 Indeed, Lord Carloway, when giving evidence to the Justice Committee about his review, could not answer a question from the convener about who in his reference group had disagreed with his proposals on corroboration, stating that ‘we did not have a system whereby the final report was put to the reference group and we noted who was in favour of one part of the report and who was in favour of the other’.67 The individual review method has a number of strengths. It allows for the choice of an individual who possesses particular specialist expertise relevant to the project in question, perhaps even more so than for Law Commission projects where a Commissioner’s expertise in the general area may not precisely coincide with the subject under review.68 It a­ lso – ­potentially – possesses many of the advantages noted in relation to SLC projects, such as thoroughness of approach, extensive consultation and detailed reports which can be drawn upon by Parliament and the courts, although this is more variable than with SLC projects and depends very much on the approach taken by the particular review. The individual method is not without disadvantages. It can m ­ ean – ­depending on the extent to which the individual engages with the views of ­others – t­hat the views of a single individual can frame subsequent debate and gain a momentum that is difficult to counter, even if there is little or 63

64 65 66 67 68

For a more detailed discussion of the process used in this review, see Chalmers and Leverick, ‘Substantial and radical change’ (n 17) at 839–841. Carloway Review (n 16) para 1.0.9. Ibid. See the Foreword to the Review at 4. Scottish Parliament, Official Report, Justice Committee, col 3241 (24 Sept 2013). Lord Carloway, ‘To “mend the lawes that neids mendement”: a Scottish perspective on lawyers as law reformers’, speech made at the Commonwealth Association of Law Reform Agencies (CALRAs) Biennial Conference, 11–12 April 2015, at 19 of the transcript, available at: http://www.scotlawcom.gov.uk/files/6614/3030/0488/CALRAs_Biennial_Conference_-_Lord_ Justice_Clerk_-_11_April_2015.pdf (last accessed 8 December 2016).

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no wider support for the proposals among the relevant community.69 It might also be said that it leaves the appointed person open to personal criticism, a point that has been made by Lord Carloway in relation to his proposal to abolish the corroboration requirement.70 It does have to be said, though, that the extent to which an individual leading a review is open to such personal criticism must relate at least in part to the approach taken. The recommendations of a review carried out by an individual with a reference group can be presented as the collective views of the reviewer and that group, which was not the case with the Carloway Review. It might also be said that the SLC’s collective approach has not insulated it from criticism,71 although admittedly this has not been ‘personal’ in the sense described by Lord Carloway. It is perhaps significant that in the next major review he ­led – ­the SCTS Evidence and Procedure Review – Lord Carloway initially convened a small expert steering group (consisting of another High Court judge, a Sheriff Principal and the Chief Executive of the SCTS)72 that appears to have played a more substantive role in the project than the reference group did in the post-Cadder review, conducting research into the academic literature, taking part in study visits to other jurisdictions, and holding discussions with academics and practitioners.73 This was followed by a second phase, in which the steering group ‘took advice and guidance from a reference group consisting of representatives from justice agencies, the legal professions, third sector organisations and academia’.74 (3) Government in-house review The third approach that has sometimes been taken is for the Government to undertake an in-­house review, issuing a consultation paper followed by a Bill. This was the method used in, for example, the most recent review of evidential issues in sexual offence prosecutions75 and the Equally Safe project,76 which made recommendations including the introduction of 69

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A criticism that has been made about the Carloway Review: Chalmers and Leverick, ‘Substantial and radical change’ (n 17) at 840. Lord Carloway, CALRAs speech (n 68) at 19–20. See, for example, N v HM Advocate 2003 JC 140 at para 25 (criticising hearsay reforms); Poole v HM Advocate [2009] HCJAC 42, 2009 SCL 910 at 924 (case commentary criticising reforms to Crown appeals). Evidence and Procedure Review Report para 1.4. Ibid para 1.29. Evidence and Procedure Review – Next Steps para 11. Scottish Executive, Redressing the Balance: Cross Examination in Rape and Sexual Offence Trials (2000). Scottish Government, Equally Safe – Reforming the Criminal Law to Address Domestic Abuse and Sexual Offences (2015), available at: http://www.gov.scot/Publications/2015/03/4845 (last accessed 8 December 2016).



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mandatory jury directions in sexual offence trials on delayed reporting and the absence of force.77 In terms of its advantages, Government in-­house review does tend to be quicker than other methods of law reform, although some projects led by individuals have also been undertaken very ­quickly – ­the Stop and Search Review undertaken by John Scott QC, for example, reported within five months (at the Government’s request).78 As discussed earlier, however, speed is not necessarily a ­positive – ­it may be achieved at the cost of thorough research and consultation. In-­house review almost certainly has advantages in terms of c­ ost – ­no additional expenditure is required if internal expertise is utilised. The danger of utilising in-­house review is that a lack of appropriate expertise leads to proposals that are not thoroughly researched or reasoned (and potentially poor-­quality enacted law). The section on mandatory jury directions in the Equally Safe report, for example, runs to only four pages and makes no reference whatsoever to the extensive body of research on the effectiveness of jury directions.79 This danger may be mitigated to an extent by consultation, although there is a limit to what consultees can do and there is no guarantee that those with appropriate expertise will respond. It may also be mitigated by the efforts of the Scottish Parliament Justice Committee when the resulting Bill passes through the parliamentary process, which consults on the proposed legislation and takes evidence from invited experts. Even if this scrutiny is effective, however, it cannot make up for the absence of thorough reasoning behind the proposals that might have been useful for Parliament or for the courts. C. EVALUATING LAW REFORM This section of the chapter critically discusses two issues: how law reform projects are selected and how their success can be evaluated. (1) Project selection When reforming the laws of any legal system, it is axiomatic that priority must be given to those laws most in need of reform. Such prioritisation is necessary given the resources needed to craft reform proposals, and the 77

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For discussion of these proposals, see I Callander, ‘Jury directions in rape trials in Scotland’ (2016) 20 Edin LR 76. Scott (n 53) para 9. Callander, ‘Jury directions’ (n 77) at 78. The consultation paper’s coverage of the offences of domestic abuse and non-­consensual sharing of private, intimate images, the latter of which has been enacted as part of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, has been even more extensively criticised: see Chalmers, ‘Criminal law reform in Scotland’ (n 46) at 400; G Robertson, ‘There ought to be a law’ (2015) 60 Journal of the Law Society of Scotland 26.

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limited parliamentary time available to implement them. Prioritisation is particularly important in small jurisdictions such as Scotland where the number of people with sufficient expertise to propose reforms is small, but the number of laws potentially in need of reform is the same as a larger jurisdiction.80 This section will therefore detail how law reform projects are, and should be, chosen in Scotland. By focusing on project selection at the SLC, improvements to project selection more generally will be advanced which could help ensure that the reform of criminal evidence does not lag behind other areas of law. Scottish Law Commission projects stem from two sources. First, projects can be referred to the SLC by the UK or Scottish Governments.81 Since devolution, the SLC has received considerably more references, with the result that references have ‘taken on greater significance and occupied more . . . resources’.82 Most of the SLC’s recent (and some of its not-­so-­recent) criminal evidence and criminal law projects have resulted from governmental references.83 The SLC could refuse to undertake a reference, but in practice it has never done so. The reality is that references are negotiated between the parties before they are made official. The problem is that at the time of writing there is no Commissioner with expertise in criminal law or procedure and this seems to be preventing any references from getting either to or beyond the negotiation stage. In June 2013, the then Justice Secretary, Kenny MacAskill, indicated his intention to refer a project to the SLC on the not proven verdict.84 No project was ever commenced, perhaps because of a lack of suitable expertise, or perhaps because of the Scottish Government’s desire for prior research into jury ­behaviour – ­no explanation has been given by the SLC or by Scottish Ministers. Where the SLC is unable to complete a project, alternative reform methods must be found. Scottish Law Commission references are similar to ad hoc law reform methods in that they will often be politically motivated as a result of a high-­ profile event or in response to a topical issue.85 The topical nature of references is evidenced by the fact that the SLC admits that they may be ‘given priority’ over its programmes of law reform.86 This prioritisation reflects a 80

81 82 83

84 85

86

As argued by the SLC in its formative years when seeking additional resources: Draft memorandum by the SLC seeking a second full-­time Commissioner, 20 July 1967, National Archives of Scotland (NAS) file HH83/702. Law Commissions Act 1965 s 3(1)(e). SLC, Annual Report 2006 (Scot Law Com No 205, 2007) 8. Of the thirteen SLC projects listed in the Appendix, eight resulted from references. The remaining five stem from the SLC’s First Programme of Law Reform (Scot Law Com No 1, 1965) where the SLC set out to complete an evidence code (paras 8–9). SLC, Annual Report 2014 (Scot Law Com No 241, 2015) at 20. For example, the project that led to the Report on Double Jeopardy was referred to the SLC as a result of the infamous collapse of the World’s End murder trial in 2007. See Duff, Chapter 9, in this volume at 227. SLC, Ninth Programme of Law Reform (Scot Law Com No 242, 2015) para 1.13.



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change of attitude, as the SLC once said that it would ‘generally be inconsistent with the aims for which the Law Commissions were established for [the SLC] to be deflected from work on programme subjects merely to deal with particular social or political issues which had gained topical prominence’.87 The SLC’s recent change of attitude is beneficial for its criminal procedure output, given that, as noted above, most such projects stem from references. The second source of SLC projects is more novel. Unlike ad hoc law reform methods, the SLC can independently select areas of law to review. The SLC has duties to ‘take and keep under review all the law’88 and to prepare programmes of law reform to submit to Scottish Ministers for approval.89 This source of projects allows for less politically motivated law reform, and can be useful to allow problematic areas of law to be examined that might otherwise remain untouched. Projects for inclusion in programmes of law reform are selected after wide consultation.90 Despite its statutory duty, the SLC cannot review all the law of Scotland. It must therefore choose its projects carefully in order not to waste its limited (and publicly funded) resources. In the past, the SLC has been criticised for taking on projects where it did not have the requisite expertise,91 or which were not ‘of pressing importance’ but were instead chosen based on a Commissioner’s own interests.92 With such criticisms in mind, the SLC has adopted project-­selection criteria, first developed by the Law Commission of England and Wales, to enable it to select the most worthy projects.93 The three project selection criteria are: the availability of resources, the suitability of the project and the importance of the project.94 Taken together as they presently stand, these criteria make it unlikely that a criminal law or procedure project will be selected by the SLC in the foreseeable future. No such

87 88 89 90

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SLC, Fifteenth Annual Report: 1979–1980 (Scot Law Com No 61, 1980) para 2.4. Law Commissions Act 1965 s 3(1). Ibid s 3(1)(b). The list of thirty-­seven respondents (including academics, judges, practitioners and various interest groups) to the SLC’s ninth programme can be seen at: http://www.scotlawcom.gov. uk/law-reform/ninth-programme-of-law-reform/consultation-responses-to-the-ninth-programme/ (last accessed 8 December 2016). W W McBryde, ‘Law reform: the Scottish experience’ (1998) 3 Scottish Law and Practice Quarterly 86 at 95, discussing the SLC’s Report on Bankruptcy and Related Aspects of Insolvency and Liquidation (Scot Law Com No 68, 1981). McBryde describes how that report ‘contained an error which cost taxpayers millions of pounds’ (at 93). McBryde, ‘Law reform’ (n 91) at 95, citing T B Smith’s pet projects on corporeal moveables in the 1970s, only one of which reached report stage: SLC Memoranda ibid at 24–31 inclusive, all 1976. The SLC’s first mention of the project selection criteria was in its Seventh Programme of Law Reform (Scot Law Com No 198, 2005) para 1.2. Since then it has routinely mentioned the selection criteria in its programmes and usually in its annual reports. SLC, Ninth Programme (n 86) para 1.4.

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projects are contained in its Ninth Programme, and a project on homicide from the Eighth Programme has been suspended.95 In terms of the availability of resources, the SLC considers:96 the expertise and experience of Commissioners and legal staff and, in relation to projects where there may be a substantial role for a consultant, the availability of adequate funding; and the need for a mix of projects in terms of scale and timing in order to achieve a balance of workload among Commissioners and facilitate effective management of the Programme.

Given that at the time of writing there is no Commissioner with expertise in criminal law or procedure, this criterion seems unlikely to be satisfied in relation to projects in those areas. The Chairman, Lord Pentland, could potentially oversee a project in an area within his expertise as a judge, such as trial procedure. But the Chairmanship of the SLC is a part-­time role, and Lord Pentland already leads two law reform projects as well as overseeing the SLC’s consolidation and repeals work.97 New appointments to the SLC are strongly influenced by the need to appoint candidates with the necessary expertise to complete unfinished projects. As a result, it is often necessary to appoint in specific, and often very narrow, fields.98 A vicious circle is thereby created where having no criminal projects results in no criminal Commissioner, and no criminal Commissioner results in no criminal projects. In terms of the suitability of a project, the SLC takes into account:99 (a) whether the issues concerned are predominantly legal rather than political; and whether there is any other body better placed to examine the topic in question; and (b) whether a Bill on the topic may be suitable for the special Parliamentary law reform processes, in particular the new procedure in the Scottish Parliament.

Part (a) is an eminently sensible project-­selection criterion for a body consisting solely of lawyers. The distinction between legal and political issues is important in criminal evidence projects where technical issues of procedure clash with more social questions of how to deal, for example, with children and other vulnerable witnesses. It is unlikely, however, that there could be a criminal evidence project in which the SLC could not play a part, even if some input was required from elsewhere.100 95

96 97 98

99 100

SLC, Eighth Programme of Law Reform (Scot Law Com No 220, 2010) paras 2.13–2.14; SLC, Ninth Programme (n 86) para 1.5 and Appendix A. SLC, Ninth Programme (n 86) para 1.4. See SLC, Annual Report 2015 (Scot Law Com No 244, 2016) at 14, 19 and 21. In the last round of appointments (early 2015), no Commissioner with criminal expertise was appointed. SLC, Ninth Programme Reform (n 86) para 1.4. Cf Adler, ‘Social research and legal reform’ (n 51) at 329.



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Part (b) of the suitability test, a recent addition, is more problematic. It refers to special parliamentary law reform processes introduced in the House of Lords and Holyrood in 2008 and 2013 respectively to aid the implementation of relatively technical SLC ­Bills – ­those which have historically been more prone to gather dust after publication. The Holyrood procedure specifically excludes matters which ‘relate directly to criminal law reform’.101 By contrast, the House of Lords procedure (for Law Commission of England and Wales reports and SLC reports on reserved matters) makes no such exclusion. Indeed, the Partnerships (Prosecution) (Scotland) Act 2013 was passed using the House of Lords procedure. The exclusion of criminal matters from the Holyrood procedure was partly motivated by the need not to create, in effect, a second Justice Committee,102 as well as by the typically ‘sensitive’ nature of such reforms.103 The new parliamentary procedures are noble attempts to level the playing field for ‘unspectacular but worthy’ reforms.104 By adding suitability for the Holyrood procedure in particular to the selection criteria, however, the balance may have been tilted too far in the other direction. The criteria for establishing which SLC Bills are suitable for the new procedure could possibly be adjusted in future.105 Unless or until that happens, the selection of a new criminal evidence or procedure project has not been rendered impossible, but has been made difficult, especially given the current lack of resources.106 When considering the importance of a potential project, the SLC considers: ‘the extent to which the law is unsatisfactory (for example, unfair, unclear, inefficient, unduly complex or outdated); and the potential benefits likely to accrue from undertaking reform of the law’.107 This criterion is self-­ explanatory and can be where the SLC really makes an impact on otherwise neglected areas of law. It can only do so, however, subject to the other two criteria. It is therefore of concern that areas of criminal procedure which are unfair, unclear, inefficient, unduly complex or outdated are unlikely to

101

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Scottish Parliament, Official Report col 20377 (28 May 2013) (Nigel Don); Scottish Parliament Business Bulletin (93/2013) 1. Scottish Parliament, Official Report col 20375 (28 May 2013) (Dave Thompson); M McMillan, ‘Implementation of law reform reports: developments in Scotland’, in Dyson et al, Fifty Years of the Law Commissions (n 48) 369 at 374. McMillan, ‘Implementation of law reform reports, ibid at 375. Hansard HL Deb, vol 710, 28 Apr 2009 col GC2 (Lord Bach), discussing the House of Lords procedure. Such adjustment could be made relatively easily: see McMillan, ‘Implementation of law reform reports (n 102) at 376–377. Realistically, the criteria must be looked at holistically so that a project that ‘scores’ poorly in one criterion may still be viable if it ‘scores’ particularly highly in the others. For more detail on how the Commissions do, and should, use the criteria, see S W Stark, The Work of the British Law Commissions: Law Reform . . . Now? (forthcoming 2017: Hart). SLC, Ninth Programme (n 86) para 1.4.

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be examined by the SLC because of a lack of resources and through being deemed less suitable than other potential projects. The project-­selection criteria must be read alongside the SLC’s duty, as mentioned above, to ‘take and keep under review all the law’.108 Of course the SLC cannot actually review all the law single-­handedly, but it could be argued that it has a duty not to neglect criminal evidence and procedure entirely. Even if the resources are not available to undertake a project, if the SLC believes that a project is sufficiently suitable and important, it could ask whether the Government might make those resources available. The SLC has signed a ‘landmark agreement’ to facilitate academic secondments to the SLC, with the first secondment underway at the time of writing.109 This scheme could be a fruitful method of securing appropriate expertise. Alternatively, if the project is important but not necessarily suitable, the SLC should recommend that some other body carries out the work.110 Fostering links between different law reform bodies would also help with the problem of parallel law reform projects working at cross-­purposes. The Carloway Review and the SLC’s project on Similar Fact Evidence and the Moorov Doctrine111 overlapped considerably. Evidently the two groups collaborated little, despite the related subject matter. Given the scarcity of resources mentioned at the outset of this section, such overlap is obviously regrettable. Project selection, if done in isolation from other law reformers, can cause tension. The current Chairman of the SLC has queried whether the SLC should have been asked to examine the law on corroboration, rather than it being examined in the Carloway Review.112 Although care must be taken not to strain relationships, more robustly-­worded annual reports could address that concern, particularly since the SLC clearly feels aggrieved about missing out on a project which it had no clear expertise to carry out. The SLC should explain why it has not sought out, or not felt able to seek out, that expertise. It should capitalise on its duty to prepare annual reports which are submitted to the Justice Secretary and laid before Parliament by him.113 The SLC’s continuing existence gives it an edge which ad hoc bodies lack. 108 109

110

111 112

113

Law Commissions Act 1965 s 3(1). SLC, ‘Scottish Law Commission and Scottish Law Schools to work more closely together on law reform’ (press release) 15 September 2016, available at: https://www.scotlawcom.gov.uk/ files/7614/7394/4811/Press_Release.pdf (last accessed 8 December 2016). The SLC has an explicit power to make such recommendations under the Law Commissions Act 1965 s 3(1)(b) and did so in its Second Programme of Law Reform (Scot Law Com No 8, 1968). Its recommendation that the reform of criminal procedure should be undertaken by a departmental committee (at 7–8) led to the Thomson Committee being set up: see section B(2) of this chapter. Scot Law Com No 229, 2012. Lord Pentland, ‘The Scottish Law Commission and the future of law reform in Scotland’, in Dyson et al, Fifty Years of the Law Commissions (n 48) 340 at 350. Law Commissions Act 1965 s 3(1)(3).



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How, then, should law reform projects be selected, and how does such selection impact on the reform of criminal procedure? Unless the Holyrood procedure is extended to cover criminal reform, the SLC’s project-­selection criteria should be amended to remove a project’s qualification for the special parliamentary procedures as an element of its suitability. The criteria can otherwise be praised for their transparency and their simplicity. They are, self-­evidently, the things ­anyone – ­a law reform body, a Government minister or a c­ onsultee – s­ hould consider before undertaking or referring a project. Use of the three broad criteria could, therefore, be extended beyond the SLC to aid more joined-­up thinking between our various law reformers. Obviously the first two criteria would have to be formulated differently to reflect the available or obtainable resources and the suitability of a project depending on the particular law reform method, but the importance criterion is universally applicable as it currently stands. The drawbacks of being a small jurisdiction in terms of the smaller number of available experts was mentioned above. There is a related benefit, however, in bodies being ‘nearer and friendlier to each other’.114 More advantage should be taken of this benefit in order to forge links between law reformers. What is clear is that many areas of criminal procedure are in need of reform. For example, Duff’s decade-­old concerns that the law on evidence of prior identification lacks ‘intellectual coherence’ and that the whole area of implied assertions is ‘confused and illogical’ have yet to be addressed.115 Such areas are unlikely to be examined by the SLC as things currently stand. But if the SLC is more vocal about the need for reform despite its inability to undertake such projects, if wider use is made of the project-­selection criteria, and if SLC secondments become more commonplace, the outlook for criminal evidence reform may be brighter. (2) Evaluating success ‘Success’ in the context of law reform might be understood in two ways. The first is in terms of implementation: does the project actually result in legal change? And the second, assuming success in the first respect has been achieved, is in terms of s­ ubstance – ­are the changes of high quality?116 Exceptionally, of course, a law reform project might conclude that reform

114

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W Murrie to R H Law (Scottish Office), 27 November 1964, NAS file HH41/2048 (on the comparative ease of establishing the SLC as compared to the Law Commission of England and Wales). P Duff, ‘The uncertain scope of hearsay in Scots criminal evidence: implied assertions and evidence of prior identification’, (2005) Juridical Review 1 at 2, 17–18. See A T H Smith, ‘Criminal law and the Law Commission 1965–2015’ (2016) Crim LR 381 at 392–393. An unimplemented project can hardly be called a ‘success’, even if it might be the case that it contains perfectly good proposals and as such is not necessarily a ‘failure’.

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is not required at all, and that the law is satisfactory as it stands.117 None of the projects considered here falls into that category. The Bryden Report comes closest, having proposed only one change to the law: the creation of a right for the accused to apply to the court for an identification parade to be held.118 Such an outcome is unlikely for obvious ­reasons – ­the very fact that a problem has been considered to justify a review makes it almost certain that recommendations of some sort will follow in order that the problem be addressed119 – although if this was ever thought to be a concern, having a preliminary examination of the law prior to a full project taking place could address it, as could systematic use of the project-­selection criteria. (a) Success in terms of implementation A cursory glance at the projects listed in the Appendix would suggest a very high level of success in terms of implementation.120 With one exception, where issues of evidence and procedure formed a small part of a larger report,121 all of the reports listed there can be described as having been implemented or (being recent reports) as still being under active consideration by the Scottish Government. More careful consideration, however, shows that picture to be slightly misleading. On a number of occasions, some of the most significant recommendations made in these reports have been abandoned even as other aspects of the reports have been implemented. These include the Thomson Committee’s recommendation to reduce the size of the Scottish jury to twelve,122 Lord Bonomy’s recommendation that acts of the Lord Advocate should be excluded from the definition of devolution issues (so that human rights issues could be dealt with under normal procedure and without recourse to the Judicial Committee of the Privy Council),123 the McInnes 117

118

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121 122 123

The ­classic – p ­ erhaps the o ­ nly – e­ xample is the SLC’s Report on Boundary Walls (Scot Law Com No 163, 1997), which makes (para 1.14) a single recommendation: ‘It is not necessary to introduce legislation either to reform or restate the existing law on boundary walls.’ Identification Procedure under Scottish Criminal Law: Report by the Working Group Appointed by the Secretary of State for Scotland and the Lord Advocate (Bryden Report) (Cmnd 7096, 1978) para 6.21. This was implemented by the Criminal Justice (Scotland) Act 1980 s 10. See now Criminal Procedure (Scotland) Act 1995 s 290. The report did also recommend certain changes to practice. In this respect, the Bryden Report was unusual: the review was a response to problems identified in English law which had been considered by the Devlin Committee (Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (HC338, 1976)); Bryden’s working group had been asked to consider whether changes to Scots law were required in light of that report. On why 100 per cent implementation, at least for SLC proposals, is not desirable, see Stark, ‘Promoting law reform’ (n 50) at 149. SLC, Report on Child Abduction (Scot Law Com No 102, 1987). Thomson Committee (n 6) para 51.11. Improving Practice: 2002 Review of the Practices and Procedure of the High Court of Justiciary (2002) para 17.14. Subsequent reforms which have transferred the relevant jurisdiction to



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Committee’s recommendation that Scotland should no longer use lay judges to determine criminal cases,124 and Lord Carloway’s recommendations that the ‘fairness test’ for the admissibility of confession evidence, and the corroboration requirement in criminal cases, both be abolished.125 In addition to these, although the SLC’s recommendations on ‘similar fact’ evidence and the Moorov doctrine might still be regarded as under consideration, it is over four years since those recommendations were made,126 they have been criticised,127 and there is no sign of legislation being brought forward in the immediate future.128 Why did these recommendations fail when so many others succeeded? Occasionally, legislative competence might play a ­role – ­the recommendation by Lord Bonomy mentioned in the previous paragraph would have required Westminster legislation, whereas the remainder of the report could be implemented by Holyrood.129 Elsewhere, however, there are some common features which can be identified. Does it matter whether the proposals are ‘minor’ or ‘major’?  One possible explanation is that reforms which are largely technical in nature are less likely to meet resistance. Lord Bonomy’s review of High Court procedure130 and Sheriff Bowen’s review of sheriff and jury procedure131 are good examples of this. It would seem wrong, however, to describe this as a difference between ‘minor’ and ‘major’ proposals. The effects of detailed procedural changes such as these can be very significant, and might even be thought to raise important questions of principle. Consider, for example, the recommendation of the McInnes Committee that the sentencing power of sheriffs sitting in summary procedure should be quadrupled from three months’ imprisonment to twelve.132 This was implemented with little if any controversy,133 despite the substantial change which it represented in the use of jury trials in Scotland. However, the notion of a ‘right’ to jury trial appears to have little purchase in Scotland, where it is regarded with relative indifference compared to the position in

124 125 126 127 128

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the Supreme Court and created a separate category of ‘compatibility issues’ do not follow Lord Bonomy’s recommendation. The Summary Justice Committee: Report to Ministers (2004) para 7.72. Carloway Review (n 16) at 201 and 286. SLC, Report on Similar Fact Evidence and the Moorov Doctrine (Scot Law Com No 229, 2012). See section B(1) above. Unlike other recent reform projects, this project was not mentioned in the SNP manifesto for the 2016 Holyrood elections: see SNP Manifesto 2016 (2016) at 37–40. See the Criminal Procedure (Amendment) (Scotland) Act 2004. Improving Practice: 2002 Review of the Practices and Procedure of the High Court of Justiciary (2002). Independent Review of Sheriff and Jury Procedure (2010). The Summary Justice Committee (n 124) para 7.87. Criminal Proceedings etc (Reform) (Scotland) Act 2007 s 43.

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England.134 By contrast, the distinctive features of the Scottish jury (fifteen members, three verdicts, decisions by simple majority) clearly are perceived within the jurisdiction as being important, and proposals to change those ­features – ­such as that made by the Thomson Committee regarding the jury’s ­size – ­have gained little traction. A slightly different hypothesis may be that it is the distinctive features of Scottish criminal justice which have proved resistant to change, such as the corroboration rule, the jury, the uncodified nature of the law of evidence and the substantive criminal law, and the use of single lay judges. It is perhaps a matter of concern that the areas of the law which are most resistant to change are those where the Scottish system is out of line with comparative practice elsewhere, and where there is necessarily little or no research into the efficacy of the unusual approaches taken. A more positive account of this conservatism might note the importance of seeking to guard against wrongful conviction. While it may not be possible accurately to quantify the extent to which any system achieves this goal,135 there are good reasons to be sceptical of any proposals which would appear to undermine the current level of protection against wrongful conviction offered by the system.136 That concern does not apply to proposals to reform distinctive features of the civil law, so offering a partial explanation as to why it proved possible to remove the requirement of corroboration in civil cases despite it being an equally distinctive feature of the civil justice system as the criminal justice system. Building a consensus for change. A second possible explanation may relate to the extent to which law reform projects succeed in building a consensus for change. The point may be put in a trite ­fashion – ­reform projects are of course more likely to be successful if they build such a consensus. But how is such a consensus best achieved? This chapter has already examined the different methods of law reform that have been employed in Scotland, which range from broadly-­ based review groups involving a wide range of persons, to projects strongly associated with a single reviewer and where the recommendations are made by that reviewer rather than by the group as a whole. A broadly-­based group may have advantages in a number of respects. First, the input of a broad range of people, with the perspectives and knowledge that they bring, may ensure a better informed and higher-­quality report, thus improving the chances of the proposals being implemented. Secondly, in terms of ‘practical politics’,137 134 135

136 137

P Duff, ‘The defendant’s right to trial by jury: a neighbour’s view’ (2000) Crim LR 85. And Scots lawyers have been accused of complacency or even ‘blind arrogance’ in this respect: C Walker, ‘Miscarriages of justice in Scotland’, in C Walker and K Starmer (eds), Miscarriages of Justice: A Review of Justice in Error (1999: Blackstone) 323 at 352. See Chalmers and Leverick, ‘Substantial and radical change’ (n 17) at 863–864. K Roach, ‘The role of innocence commissions: error discovery, systemic reform or both’ (2009) 85 Chicago-Kent Law Review 89 at 121.



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it may be easier for a government which wishes to implement a report to present the report itself as carrying weight if its recommendations come from a broadly-­based group. Against this, two caveats should be noted. First, a broadly-­based group is more likely to include dissenting members, as where two members of the McInnes Committee wrote a note of dissent arguing against the committee’s recommendation that lay justices be abolished.138 Those dissenting members were successful, and the recommendation was not implemented. Secondly, it is possible that in order to achieve consensus, a broadly-­based group will agree on proposals which are unduly conservative and represent a minimalist approach to reform, although whether this is in fact the case is difficult if not impossible to evaluate.139 It may be possible to build external consensus through the consultation process, although consultation here serves a broader purpose than this. Regardless of whether consensus is in fact achieved, the process of consultation may assist in demonstrating the legitimacy of the proposals that have been made, by showing that alternative viewpoints have been given careful consideration, even if they are ultimately rejected. SLC reports are particularly good at engaging expressly with the views of consultees which have been expressed in response to the Commission’s discussion papers.140 Without such express engagement, however, the mere fact of consultation is unlikely to lead to proposals being seen as legitimate. A good example of this is the Carloway Review, where an extensive process of consultation took place, including a consultation document and a series of ‘roadshows’.141 There is nothing in the report, though, which evidences what influence (if any) this process had on the recommendations which were later made. Aside from references to the fact of the roadshows having taken place and when they happened, they are mentioned only once in the report, and then only to summarily dismiss the point made ‘[t]hroughout the course of the Review’s 138 139

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The Summary Justice Committee (n 124) Annex A. It seems apparent from Gretton (n 34) that compromises sometimes have to be made to ‘give a united view’ (at 138). A current SLC Commissioner has, though, stressed that the SLC does not simply recommend ‘the minimum that all stakeholders involved are prepared to accept’: H L MacQueen, ‘Implementation by statute: what the future holds’, in Dyson et al (n 48) 201 at 209. Compromises may, however, have to be made based on the scope of the project. For example, the Government’s terms of reference to the Law Commission of England and Wales to review the law of homicide explicitly directed that the mandatory life sentence for murder was not for review. The lead criminal Commissioner at the time would perhaps have proposed different reforms had that not been the case: see J Horder, Homicide and the Politics of Law Reform (2012: Oxford University Press) ch 8, especially at 235. Such engagement is self-­ evident from reading any SLC report. It is particularly clear, however, when the SLC changes a proposal between Discussion Paper and Report stage based on consultees’ views. See, for example, SLC, Report on Rape and Other Sexual Offences (Scot Law Com No 209, 2007) paras 3.36–3.37. Carloway Review (n 16) paras 1.0.11–1.0.14.

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consultation and roadshows’ that the corroboration requirement should not be considered in isolation from other evidential rules.142 The views expressed by consultees are similarly absent from the report.143 This is not to say that a law reform body should treat a consultation as a referendum and simply accept the prevailing views which are expressed during that process. It is perfectly proper for a review to engage with the views expressed and offer reasoned explanations as to why they have been rejected. In the case of the SLC’s very first law reform report, recommending the abolition of the corroboration requirement in civil cases,144 the fact that the Commission was willing to press this recommendation despite widespread opposition from the legal establishment was important in setting the tone for the Commission’s independence.145 (b) Success in terms of quality If a reform project results in legislation, how might the quality of that legislation be assessed? In the context of reforms to the substantive criminal law, Ormerod has tentatively suggested that measures of the ‘success’ of a piece of legislation might include the following:146 (1)  academic reviews on its merits, clarity, etc; (2) the number of appeals generated compared to appeals under equivalent predecessor provisions as an indicator of the number of ambiguities; (3) whether judges feel that the offences work ‘effectively for courts’; (4) whether the proportion of cases prosecuted leading to convictions is high, thereby indicating that the offences work well in court in attacking their intended ‘mischief’; and (5) whether the offence is cost e­ ffective – b ­ y hearings being shorter, leading to more guilty pleas, fewer appeals and so on.

As Ormerod notes, some of these measures might be difficult to apply. With (2) and (4) in particular, there are many other variables which might affect the relevant figures, while it is possible that any new legislation might lead to an initial spike in appeals.147 Those caveats aside, Ormerod’s measures (with the exception of (4)) have the potential also to be relevant to reforms of evidence and procedure, although (2) may be difficult to apply in the Scottish context given the 142 143

144

145 146

147

Ibid para 7.0.3. Aside from an observation (ibid para 7.2.1) that corroboration was ‘one of the issues that has attracted most comment in the consultation responses, workshops and other meetings’. SLC, Proposal for Reform of the Law of Evidence Relating to Corroboration (Scot Law Com No 4, 1967). Lord Pentland, ‘The Scottish Law Commission’ (n 112) at 344–345. D Ormerod, ‘Reflections on the courts and the Commission’, in Dyson et al, Fifty Years of the Law Commissions (n 48) 326 at 335. Ibid at 335.



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relatively limited volume of cases taken to the appellate level. Much will rest on identifying the intended ‘mischief’ at which any reform is aimed. Where reforms are expressly designed to have effects on the way in which cases proceed through the courts, these should be measurable.148 The success of reforms aimed at improving the quality of fact-­finding cannot, by contrast, be measured in this way, but some of the other measures suggested by Ormerod remain relevant in this context. In addition to the possibility of academic review, Scottish Parliament committees have a role to play in terms of post-­legislative scrutiny, although arrangements for such scrutiny are ad hoc and depend on the views and workload of particular committees.149 The Justice Committee has had such a high volume of work in scrutinising new legislation over recent years that it has had very little time to carry out such work, and the proportion of legislation which is subject to post-­legislative scrutiny is very small,150 and such reviews may be very cursory in nature.151 Furthermore, if decisions to review are only taken on an ad hoc basis, opportunities to gather ‘baseline data’ on how the law is operating in practice prior to reform will be lost,152 and without such data it may not be possible properly to evaluate the effect which reform has had. It may be that there is a useful role for the SLC to play in this respect. It rarely evaluates the legislation stemming from its own reform proposals153 but, resource constraints aside, there is no reason why it could not do so. Indeed, it would be in an advantageous position in this respect as it would be able to draw on the relevant report, which would contain an evaluation of the pre-­reform legal provisions. A useful model in this context is the New Zealand Evidence Act 2006, which was drafted by the New Zealand Law Commission and which provides for review every five years.154 148

149

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See, for example, J Chalmers, P Duff, F Leverick and Y Melvin, An Evaluation of the High Court Reforms arising from the Criminal Procedure (Amendment) (Scotland) Act 2004 (Scottish Executive: 2007). See Standards, Procedures and Public Appointments Committee, Post-Legislative Scrutiny (8th Report, 2013 (Session 4)) especially paras 60–61. See Justice Committee, Legacy Paper (8th Report, 2016 (Session 4)) paras 3–5. In Session 4, the Justice Committee considered seventeen Bills, of which fourteen became Acts. Over the same period, it undertook post-­legislative scrutiny of four Acts. In three cases, the scrutiny was narrowly focused and concerned only with specific provisions of the relevant Acts. In its last piece of post-­legislative scrutiny in Session 4, the Justice Committee decided to undertake post-­legislative scrutiny on 26 January 2016 and agreed the terms of its report on 15 March 2016. See Justice Committee, Post-Legislative Scrutiny of the Family Law (Scotland) Act 2006 (6th Report, 2016 (Session 4)) Annexe A. See, for example, M Burman, L Jamieson and J Nicholson, The Law of Evidence in Sexual Offence Trials: Base Line Study (Scottish Executive: 2005). An exception to this (although not a formal evaluation as such) is its decision to revisit the Prescription and Limitation (Scotland) Act 1973, which stemmed from a previous SLC project: SLC, Discussion Paper on Prescription (DP No 160, 2016) para 1.5. For discussion, see G Hammond, ‘The legislative implementation of law reform proposals’ in Dyson et al, Fifty Years of the Law Commissions (n 48) 175 at 180.

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D. CONCLUSION As the Appendix to this chapter demonstrates, law reform projects dealing with criminal evidence and procedure have been numerous over recent decades. In this chapter, we have reviewed projects from the 1970s onwards, highlighting some of the lessons which might be learned. We have examined a number of different methods that have been used to undertake law reform, and have outlined the advantages in particular of conducting such projects via the S ­ LC – p ­ rimarily the thoroughness of its research and documentation of its reasoning (which can be drawn upon by Parliament in debate and by the courts in interpretation) and its expertise. Commission projects also have considerable advantages in terms of the process by which consultation is ­undertaken – ­notably the production of a discussion paper with specific well developed proposals for reform which is then put out for comment. This means that informed opinion can be obtained and this has, as we have noted, sometimes meant that the Commission has changed its position in response. It also has a distinct advantage in terms of the legitimacy that attaches to the reform proposals as a result and which may contribute to their ease of implementation. That is not to say that other law reform methods cannot achieve these advantages, but Commission projects do seem to be more successful than other law reform bodies in attracting consultation responses from key stakeholders in the criminal justice system. In the area of criminal evidence and procedure most of the major Commission-­led projects have achieved full implementation and, as far as can be gleaned from the operation of the laws stemming from these projects, have resulted in legislation that appears to be working well in practice. No law reform method is perfect, of course, and criticisms can be made of the C ­ ommission – ­its most recent report (less well received than some others) on character evidence and its failure to make a recommendation on an important aspect of the reform of double jeopardy law are the most obvious examples. A Commission project will not always be the most suitable method if reform is urgently required (although how often this is genuinely the case, as opposed to being driven by political considerations, must be open to question). The Commission will not always have the skill set necessary to conduct particular projects. It will sometimes lack expertise in a particular area of law or in a particular research m ­ ethod – e­ mpirical research in ­particular – ­and if such expertise cannot be brought in then for pragmatic reasons it will be necessary to look to other bodies that do possess this expertise. As a general model for law reform, however, the SLC project method can perhaps be regarded as the gold standard. We have also examined the criteria by which law reform projects are selected, concluding that the SLC’s project selection criteria have a lot to be said for them in terms of their transparency and simplicity. There are, of course, details that might benefit from being a­ mended – m ­ ost notably the



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emphasis on any reform project’s ability to produce a Bill suitable for the special parliamentary law reform processes. That amendment is important so that criminal evidence does not miss out on proposals for reform that have been developed through the ‘gold standard’ method. In general terms, though, they cover the factors that any law reform b ­ ody – ­not solely the ­Commission – ­should consider before undertaking or referring a project, although in practice it would be naive to think that political considerations will not continue to drive, at least in part, the selection of particular areas of the law for reform. The need to engage in joined-­up thinking in respect of project choice and timing is also apparent from the Scottish e­ xperience – ­that two projects engaged in related law reform exercises worked at cross-­ purposes with each other was far from ideal and as a small jurisdiction we ought to be able to avoid such overlap by forging better links between law reform bodies. Finally, we have reviewed the factors relevant to the success of law reform projects. Success might be measured in different ways. Implementation is the most obvious measure and, of the twenty-­seven projects listed in the Appendix, twenty-­four have been implemented in whole or in part, giving an implementation rate of 89 per cent. This does not tell the full story, though, and of the projects that were only partially implemented, it was often the more radical or controversial proposals that did not make it onto the statute book. This highlights the difficulty of reforming especially distinctive areas of Scots law, particularly where the risk of wrongful conviction is potentially increased by any proposals. It also highlights the potential advantages (albeit with caveats) of broad-­based law reform projects in building a consensus for change. Implementation, though, is not the only measure of success. The quality of the resulting legislation is also important and here one might look to some of the measures proposed by Ormerod in relation to substantive criminal law, such as academic commentary on the law, the number of appeals generated (as an indicator of the legislation’s ambiguities), judicial opinion (either any overt comments made in judgments or s­ peeches – w ­ hich will be very ­rare – ­or more informal discussion) and whether the law is proving cost-­effective. There will, of course, be other more specific ways of measuring ‘success’ depending on the nature of the legislation in question and what the stated aims of the project were. Post-­reform evaluation is an important area where much more could be done and where, we suggest, the SLC would be particularly well placed to play a useful role.

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APPENDIX: CHRONOLOGICAL LIST OF CRIMINAL EVIDENCE AND PROCEDURE LAW REFORM PROJECTS 1975 Criminal Procedure in Scotland (2nd Report) (Thomson Committee) (Cmnd 6218)155

Wide-­ranging recommendations across all areas of the criminal justice system. Recommendations on detention of suspects and the introduction of a ‘no case to answer’ submission were implemented by the Criminal Justice (Scotland) Act 1980. The introduction of a right to legal assistance during detention was canvassed but unanimously rejected, leading over thirty years later to Cadder and the proposal to abolish the corroboration requirement. The recommendation (by majority) to decrease the size of the jury to twelve was not adopted. (Note also that the majority recommended that Scotland retain its three-­ verdict system and majority jury verdicts.)

1978 Identification procedure under Scottish criminal law. Report by the working group appointed by the Secretary of State for Scotland and the Lord Advocate (Bryden Report) (Cmnd 7096)

Most recommendations did not require law reform; the group generally concluded that the law was adequate as it stood or that only changes to practice were required. The one exception seems to be a suggestion that the accused should have the right to apply to the court for an identification parade to be held (para 6.21). This was implemented by the Criminal Justice (Scotland) Act 1980 s 10;156 see now the Criminal Procedure (Scotland) Act 1995 s 290.

1981 SLC, Report on the Law Implemented by the Incest and Related Offences (Scotland) Act 1986 (now repealed). of Incest in Scotland See now the Criminal Law (Consolidation) (SLC 69)157 (Scotland) Act 1995 s 1. 155

156

157

The project stemmed from an SLC recommendation that this area of law should be examined. In its Second Programme of Law Reform (Scot Law Com No 8, 1968), the SLC recommended the reform of criminal procedure, but it recommended that the project should be undertaken by a departmental committee, not by the SLC (see the wording of the Law Commissions Act 1965 s 3(1)(b)). A Current Law Statutes annotation to this provision notes that there was a difference of opinion between Thomson and Bryden as to whether an identification parade should be required before all jury trials. Thomson thought yes; Bryden thought no, and Bryden’s was the view that prevailed. The reference from the Secretary of State for Scotland does not explicitly mention evidence or procedure but section V of the report includes a brief consideration of those issues.



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1983 SLC, Report on Evidence in Cases of Rape and other Sexual Offences (SLC 78)

First reform of the law on admissibility of complainer’s sexual history evidence (see later Redressing the Balance). Implemented by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 s 36 (which inserted ss 141A, 141B, 346A and 346B into the Criminal Procedure (Scotland) Act 1975).

1987 SLC, Child Abduction (SLC 102)158

Not implemented.

1989 SLC, Report on Evidence: Blood Group Tests, DNA Tests and Related Matters (SLC 120)

Recommendation 5 implemented by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 s 70 (civil); recommendations 1–4 implemented by the Prisoners and Criminal Proceedings (Scotland) Act 1993 s 28 (now in Criminal Procedure (Scotland) Act 1995 s 18).

1990 SLC, Report on the Evidence of Children and Other Potentially Vulnerable Witnesses (SLC 125)

Recommendations 12–14 and 15 implemented in part by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 ss 56–59; recommendations 10 and 11 implemented by the Prisoners and Criminal Proceedings (Scotland) Act 1993 ss 33–35. For implementation of recommendations 9 and 23, see Vulnerable Witnesses (Scotland) Act 2004 ss 1, 4, 20 and 21.

1992 SLC, Evidence: Report on Documentary Evidence and Proof of Undisputed Facts in Criminal Proceedings (SLC 137)

Recommendations 1–19 implemented by the Prisoners and Criminal Proceedings (Scotland) Act 1993 s 29 and Sch 3; Recommendations 25–35 implemented by the Criminal Justice (Scotland) Act 1995 s 16.

1994 SLC, Report on Confiscation and Forfeiture (SLC 147)159

Implemented by the Criminal Justice (Scotland) Act 1995.

1995 SLC, Report on Hearsay Implemented by the Criminal Justice Evidence in Criminal (Scotland) Act 1995 (now in s 259 of the Proceedings (SLC 149) Criminal Procedure (Scotland) Act 1995).

158

159

The reference from the Secretary of State for Scotland does not explicitly mention evidence or procedure but section VII.11 of the report includes a brief consideration of those issues. The reference the SLC received from the Secretary of State for Scotland was, inter alia: ‘To consider the adequacy of the present law and the procedure relating to the forfeiture, in criminal proceedings in Scotland’ (emphasis added, SLC 147 para 1.1) and Part VI of the report considers evidence and procedure.

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2000 Scottish Executive, Redressing the Balance: Cross-­Examination in Rape and Sexual Offence Trials

Implemented by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (amending the Criminal Procedure (Scotland) Act 1995). The provisions prohibit the personal conduct of defence by the accused and place further restrictions on sexual history evidence of the complainer.

2002 Improving Practice: The 2002 Review of the Practices and Procedure of the High Court of Justiciary by the Honourable Lord Bonomy

Main recommendations were implemented by the Criminal Procedure (Amendment) (Scotland) Act 2004 (amending the Criminal Procedure (Scotland) Act 1995). Introduced mandatory preliminary hearings to High Court procedure, extended 110-­day rule to 140 days, and strengthened provisions on sentence discounting following a guilty plea.

2004 The Summary Justice Review Committee: Report to Ministers (McInnes Committee)

Recommendations on trial in absence of the accused (with minor modification) and alternatives to prosecution were implemented by the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (amending the Criminal Procedure (Scotland) Act 1995). Recommendations on sentence discounting (which mirrored those of Lord Bonomy in Improving Practice) were implemented by the Criminal Procedure (Amendment) (Scotland) Act 2004 (amending the Criminal Procedure (Scotland) Act 1995). The recommendation that Scotland employ only professionally qualified judges to determine criminal cases (recommendation 6) was not adopted.

2004 SLC, Insanity and Diminished Responsibility (SLC 195)160

Partially implemented by Part 7 (ss 168–171) and Sch 7 of the Criminal Justice and Licensing (Scotland) Act 2010.

2006 Scottish Executive, Consultation Paper on Proposals to Amend the Law on Compellability of Spousal Witnesses

Implemented by s 86 of the Criminal Justice and Licensing (Scotland) Act 2010.

160

The reference from Scottish Ministers included the consideration of ‘issues of the law of evidence and procedure involved in raising and establishing insanity and diminished responsibility’ (SLC 195 para 1.1) and Part 5 of the report covers evidence and procedure.



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2007 Lord Coulsfield, Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland

Implemented by Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010. The Government went further than some recommendations, requiring routine disclosure of Crown witness convictions and mandatory defence statements.161

2007 SLC, Report on Rape and other Sexual Offences (SLC 209)162

Substantive criminal law recommendations implemented (with some amendment) by the Sexual Offences (Scotland) Act 2009. Evidential matters considered but no recommendations made.

2008 SLC, Crown Appeals (SLC 212)

Implemented by the Criminal Justice and Licensing (Scotland) Act 2010 ss 73–76 (amending the Criminal Procedure (Scotland) Act 1995).

2009 SLC, Report on Double Jeopardy (SLC 218)

Implemented in part (and with minor modification) in the Double Jeopardy (Scotland) Act 2011. Note that the SLC made no recommendation on a ‘new evidence’ exception but this was included in the Act.

2010 Independent Review of Sheriff and Jury Procedure (Bowen Review)

Implemented by the Criminal Justice (Scotland) Act 2016 ss 78–83.

2011 The Carloway Review

Most recommendations relating to police investigation and the right to legal assistance are now contained in the Criminal Justice (Scotland) Act 2016. The recommendation to abolish the corroboration requirement in criminal cases appeared in the Bill as introduced, but was removed, pending research into jury decision-­making. Recommendations relating to the Scottish Criminal Cases Review Commission appeared in the Bill as introduced, but not in the Act.

161

162

See F McCallum, SPICe Briefing, Criminal Justice and Licensing (Scotland) Bill: Disclosure of Evidence (2009) at 11. The reference from Scottish Ministers was ‘To examine the law relating to rape and other sexual offences and the evidential requirements for proving such offences and to make recommendations for reform’ (SLC 209 para 1.1) and Part 6 of the report deals with evidence.

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2012 Scottish Government, Making Justice Work for Victims and Witnesses. Victims and Witnesses ­Bill – ­A Consultation Paper

Implemented in the Victims and Witnesses (Scotland) Act 2014. Imposed duty on Lord Advocate to publish rules on the complainer’s right to review prosecution decisions (which has now been done); widened categories of witness presumed to be vulnerable.

2012 SLC, Report on Similar Fact Evidence and the Moorov Doctrine (SLC 229)

Undertaken in parallel with the Carloway Review (but with little collaboration) despite related subject matter.

2015 The Post-­Corroboration Safeguards Review (Chair: Lord Bonomy)

See Criminal Justice (Scotland) Act 2016: s 57 (code of practice to be published for questioning and identification procedures); s 97 (prosecutorial test to be published).

Recommendations (on character evidence in particular) have been criticised and have not yet been implemented.

Recommendation that research be conducted into the Scottish jury to be taken forward by the Scottish Government. 2015 Scottish Government, Equally ­Safe – ­Reforming the Criminal Law to Address Domestic Abuse and Sexual Offences

Proposed, inter alia, amendment of the Criminal Procedure (Scotland) Act 1995 to provide for mandatory jury directions in sexual offence cases where (a) there was a delay in reporting or (b) there was an absence of physical force from the accused/ physical resistance on the part of the complainer. Implemented in s 6 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

2015 Report of the Advisory Group on Stop and Search (Chair: John Scott)

Implemented by Criminal Justice (Scotland) Act 2016 ss 65–72. Timing was an ­issue – t­ he group was given only five months to carry out its review (para 9).



The process of criminal evidence law reform

2016 Scottish Courts and Tribunals Service, Evidence and Procedure Review (Chair: Lord Carloway)163

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Makes recommendations concerning the digitalisation of summary criminal procedures (including setting up a digital evidence vault and permitting online pleas) and the evidence of child and other vulnerable witnesses (including the pre-­recording of evidence and cross-­examination in advance of trial). Proposals submitted for consideration of Scottish Government in February 2016.

163

Two reports have so far been produced: Scottish Court Service, Evidence and Procedure Review: Report (2015) and Scottish Courts and Tribunals Service, Evidence and Procedure Review: Next Steps (2016).

Chapter 9 Scottish criminal evidence law adrift? Peter R Duff

INTRODUCTION In a controversial book, Evidence Law Adrift, Damaska, probably the most influential, contemporary theorist of comparative criminal procedure, claimed that the law of criminal evidence in Anglo-­American common law systems had lost its moorings in its traditional adversarial ideology.1 To what extent is this true of Scottish criminal evidence law? This collection demonstrates that over the past twenty years or so, Scots law in this area has undergone unprecedented change and is, in the eyes of many practitioners and commentators, in a state of flux. The issue to be tackled in this chapter is whether any pattern to this change can be discerned and any future direction of development identified. On first sight, it might be argued that the process of change has simply been a chaotic result of new pressures, such as the rise of the victim movement, the incorporation of the European Convention on Human Rights (ECHR) into Scots law, the attempt to rationalise and modernise the law, and the need to husband scarce resources and increase efficiency, all combined with various knee-­jerk political responses to high-­ profile cases and more general political pressures. This might lead to the conclusion that the law has indeed cast free of its adversarial anchorage and that there is little point in trying to predict the future. In my opinion, however, the latter view is rather too pessimistic2 and it might be possible to foresee, somewhat indistinctly, the future evolution, rather than total revolution, of Scottish criminal evidence law. There exist various well-­known analytical tools for identifying tensions and/or shifts of policy and practice in the law of criminal evidence and ­procedure – ­for example, Packer’s dichotomy of due process and crime M Damaska, Evidence Law Adrift (1997: Yale University Press). For a convincing refutation of this claim, see P Roberts, ‘Faces of justice adrift: Damasaka’s comparative method and the future of common law evidence’, in J Jackson et al (eds), Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska (2008: Hart) 295. 2 In this regard, I agree with Roberts, ‘Faces of justice’ (n 1). 1



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control values3 and Damaska’s contrasting models of adversarial and inquisitorial models of the criminal process.4 These theoretical devices date respectively from the 1960s and 1970s and have been used extensively, and usefully, in the analysis of criminal evidence and procedure. More recently, Jackson has suggested a ‘participative’ model of the criminal process, which places a premium on the active engagement of all the parties concerned, including the accused, the complainer and witnesses,5 while Roberts and Hunter have emphasised the supranational ‘human rights revolution’ as a useful perspective to adopt in understanding developments in common law criminal evidence law.6 Away from the strict confines of criminal law, evidence and procedure, many theorists in the broader field of criminal justice, who invariably adopt a socio-­legal approach, have pointed to the rise of ‘penal populism’ or the increased ‘politicisation’ of criminal justice policy as a key concept to aid the analysis of developments in the field.7 Other commentators on criminal justice have identified a new culture of ‘managerialism’, which has attempted to import private-­sector practices to the public sector with their emphasis on targets, performance indicators, outputs and so on.8 Space precludes any attempt to define these factors precisely, much academic effort having already been devoted to what exactly is meant by each and its utility as an analytical tool, and these concepts will be further explained to the extent necessary as my argument develops. In my view, it would be naive to think that any one theory, model, perspective or factor could explain the recent turmoil in Scottish criminal evidence law or point to its likely future. The criminal process and, more narrowly, the law of criminal evidence are complex social constructions or

H Packer, The Limits of the Criminal Sanction (1969: Stanford University Press) ch 8. M Damaska, ‘Evidentiary barriers to conviction and two models of criminal procedure: a comparative study’ (1973) 121 University of Pennsylvania Law Review 506; and The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986: Yale University Press). For an excellent, critical summary of Damaska’s theorisation, see Roberts, ‘Faces of justice (n 1). 5 J Jackson, ‘Justice for all: putting victims at the heart of criminal justice’ 30 (2003) Journal of Law and Society 309; J Jackson and S Summers, The Internationalisation of Criminal Evidence (2012: Cambridge University Press) at 372–380. 6 P Roberts and J Hunter, ‘Introduction – the human rights revolution in criminal evidence and procedure’, in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights (2013: Hart) 1. 7 For summaries of this concept and further references, see D Downes and R Morgan, ‘The skeletons in the cupboard: the politics of law and order at the turn of the millenium’, in M Maguire et al (eds), The Oxford Handbook of Criminology, 3rd edn (2002: Oxford University Press) 286; T Newburn, Criminology (2007: Willan) at 14–15. 8 For summaries of this concept and further references, see J McEwan, ‘From adversarialism to managerialism: criminal justice in transition’ (2011) 31 Legal Studies 519; J Clarke et al (eds), New Managerialism, New Welfare (2000: Sage), in particular, E McLaughlin and J Muncie, ‘The criminal justice system: New Labour’s new partnerships’ at 169. 3 4

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‘artefacts’,9 embodying a range of social, moral, cultural and political factors, both historical and contemporary. My aim in the limited space available is to highlight the influence of the new agendas of ‘penal populism’ and ‘managerialism’ in Scottish criminal evidence law over the past twenty years or so because, in my view, these been largely overlooked by evidence scholars in the analysis of recent reforms in the area.10 Consequently, drawing attention to their impact will improve any attempt to glimpse into the possible future of Scottish criminal evidence law. It is fair to say that commentators on criminal evidence have traditionally adopted a doctrinaire, ‘black letter law’ approach to the subject, focusing on doctrines and concepts which are ‘internal’, as it were, to the academic discipline of law, rather than the wider socio-­legal perspective often taken by theorists in the broader field of criminal justice, which examines ‘external’ social, political and economic pressures.11 Scottish academic commentators on the recent extensive changes to criminal evidence law have tended to maintain the traditional approach which explains why they have largely ignored the wider picture.12 Where an attempt has been made to broaden analysis, this has tended to stay within the discipline of law and to focus on more obviously legal topics, such as the impact of human rights, the treatment of victims as (legal) witnesses and the traditional adversarialism of criminal procedure,13 although it is becoming more common to draw upon psychological research to illuminate, for example, the perils of identification evidence, the behaviour of rape victims and the role of expert evidence.14 It is important to note that I am not claiming that ‘penal populism’ and ‘managerialism’ are now the only driving forces behind developments in Scottish criminal evidence law; rather, I am arguing that it is essential to realise their increased influence on the process in order to understand the recent changes and make sensible predictions about the future. These two factors have acted as general pressures on criminal justice policy, as criminal justice theorists and penologists have recognised for some time, but they 9 10

11 12

13 14

D Garland, Punishment and Modern Society (1990: Oxford University Press) at 193. Some Scottish criminal justice scholars, however, have drawn attention to these factors but seldom touch upon the law of criminal evidence because, I suspect, they are sociologists and rarely delve into the intricacies of the law. See, for example, L McAra, ‘Crime, criminology and criminal justice in Scotland’ (2008) 5 European Journal of Criminology 481; G Mooney et al, ‘Scottish criminal justice: devolution, divergence and distinctiveness’ (2015) 15 Criminology and Criminal Justice 205. See R Nobles and D Schiff, ‘Miscarriages of justice: a systems approach’ (1995) 58 MLR 299. One exception to this has been in the arguments over the need to improve the position of victims of sexual assaults through mechanisms like the ‘rape shield’ and the abolition of corroboration. For references to the sociological literature, see P Duff, ‘The Scottish “rape shield”: as good as it gets?’ (2011) 15 Edin LR 218; I Cairns, ‘Does the abolition of corroboration in Scotland hold promise for victims of gender based crimes?’ (2013) Crim LR 640. I confess to having been guilty of this in much of my writing. See Nicolson and Auchie, Chapter 7 in this volume.



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are now filtering through into the law of criminal evidence which hitherto has been relatively untouched, largely because politicians and policy-­makers have perceived it to be a highly specialised and technical arena, unlike, for example, sentencing policy upon which most citizens have a view and which consequently provokes political debate. I would emphasise that the perceived need for changes to the law of criminal evidence and the subsequent direction of reform are usually a product of more than one factor, and penal populism and managerialism now interact with the more traditional, ‘internal’ legal influences. As we shall see, two or more factors will often combine on a specific issue to force change in a particular direction whereas on other occasions the same factors will emerge on opposing sides of a debate. For instance, the advent of human rights and the culture of adversarialism influenced the Supreme Court decision in Cadder and its aftermath whereas these factors tend to pull in opposite directions when it comes to restricting the cross-­examination of complainers in cases of sexual assaults. The new factors of ‘managerialism’ and ‘penal populism’ have simply increased the number of factors at work and, in my view, decreased the importance of the existing legal or ‘internal’ factors which have previously comprised the ideology underpinning the law of criminal evidence. A. PENAL POPULISM (1) The ‘World’s End’ case As various commentators have pointed out, for most of the twentieth century, criminal justice policy was the province of experts, with little direct interference by politicians or interest from the electorate.15 With the politicisation of criminal justice towards the end of the century, politicians increasingly used ‘law and order’ issues as a rallying cry towards the electorate, exemplified by Tony Blair’s promise to be ‘tough on crime and tough on the causes of crime’ or Michael Howard’s claim that ‘Prison works!’ despite all the evidence to the contrary.16 A clear example of the impact of penal populism upon Scottish criminal procedure and evidence came after the collapse of the first ‘World’s End’ murder trial, some thirty years after the rape and murder of two girls last seen in the World’s End pub in Edinburgh, when the trial judge ruled that the accused, Angus Sinclair, had no case to answer,17 a ruling against which the Crown had no right to appeal. Sinclair 15

16 17

Downes and Morgan, ‘The skeletons in the cupboard’ (n 7). This is a generalisation of course: a notable exception would be the debate over the abolition of capital punishment in the UK in the 1950s and 1960s. See Downes and Morgan, ‘The skeletons in the cupboard’ (n 7). See S Di Rollo, ‘HM Advocate v Sinclair: legitimate inference and illegitimate speculation’ 2008 Scottish Criminal Law 151 for a convincing critique of the decision.

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was already serving a life sentence for various serious sexual offences and murder and there was little doubt in anyone’s mind that he was the perpetrator in this case too. His acquittal caused a public furore, with MSPs, the victims’ families and the press criticising both the Crown’s conduct of the case and the trial judge. This led to the Lord Advocate making a statement in the Scottish Parliament which was critical of the trial judge and the subsequent unprecedented and public exchange of angry letters between the Lord Advocate and the Lord Justice General.18 Within days, the Cabinet Secretary for Justice made a reference to the Scottish Law Commission (SLC), asking it to consider (1) the rights of appeal against the ruling of a trial judge that can bring a case to an end, (2) the principle of double jeopardy, (3) the admissibility of evidence of bad character and previous convictions and of ‘similar fact’ evidence and (4) the Moorov doctrine.19 The SLC’s first report20 led inter alia to the introduction of a Crown right of appeal against judicial rulings of no case to answer or insufficient evidence.21 Its second report recommended that the principle of double jeopardy should be subject to exception in serious cases in certain exceptional circumstances.22 This was a radical change to a long-­standing tradition, albeit similar reforms had recently been carried out south of the border and elsewhere, and provoked a considerable amount of debate. The proposal attracted considerable public and political support because it ensured that those guilty of serious crimes, such as Angus Sinclair, could no longer walk free if new, damning evidence of their guilt emerged subsequent to their acquittal. The SLC’s recommendations were carried out by the Double Jeopardy (Scotland) Act 2011 which enables the setting aside of an acquittal and a fresh prosecution in two principal situations. The first is where ‘new’ evidence emerges and it meets four conditions: (1) it ‘substantially strengthens’ the prosecution case; (2) it was not available and could not with ‘the exercise of reasonable diligence’ have been available at the original trial; (3) it is ‘highly likely that a reasonable jury’ would have convicted if it had heard that evidence first time around; and (4) it is in the ‘interests of justice’ to set aside the acquittal.23 The second situation is where the acquitted person subsequently admits to committing the offence, subject to very similar conditions to those described above.24 The first application by the Crown to 18

19

20 21

22 23 24

H MacQueen and S Wortley, ‘World’s End murder trial’ (2008) 12 Edin LR 3, provide an account of the aftermath of the trial and the relevant references. Scottish Government, available at: http://www.gov.scot/News/Releases/2007/11/21103557 (last accessed 16 February 2016). SLC, Report on Crown Appeals (No 212, 2008). Criminal Justice and Licensing (Scotland) Act 2010 s 74. This added ss 107A–F to the Criminal Procedure (Scotland) Act 1995. SLC, Report on Double Jeopardy (No 218, 2009). Double Jeopardy (Scotland) Act 2011 s 4. Ibid s 3. The admission must (1) not have been known and could not with ‘the exercise



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bring a new prosecution, very gratifyingly to virtually all concerned, related to Angus Sinclair on the basis that there was new and compelling DNA evidence which was not reasonably available at the time of the original trial because the particular techniques used to produce it had not yet been properly tested and certified. Sinclair was subsequently retried and convicted of the ‘World’s End’ murders to much public satisfaction.25 The SLC’s third report26 essentially recommended the adoption of the doctrine of ‘similar fact’ evidence, widespread in other common law, adversarial, Anglo-­American legal systems, but absent in Scotland as a result, in my opinion, of historical accident.27 The draft legislation suggested by the SLC renders admissible evidence of ‘relevant’ previous misconduct by the accused whether or not that led to the accused being charged, acquitted or convicted.28 This means that evidence of Angus Sinclair’s previous convictions for sexual assault and for rape and murder would have been rendered admissible at his initial trial, an outcome which seems entirely sensible to the public and which would already have been possible in most other jurisdictions. Nevertheless, this would clearly represent a radical change to Scottish criminal evidence law because previous convictions have previously been inadmissible as evidence, except in a very range of tightly prescribed circumstances. Consequently, there has been considerable disquiet about this suggestion within legal circles, not least in relation to the width of the definition of ‘relevance’ proposed by the SLC.29 At the time of writing, the Scottish Government has not yet proposed implementing this proposal, largely because its attention turned to the urgent need to deal with the ramifications of Cadder v HMA30 (to which I shall shortly turn). It would seem likely that in the relatively recent future the Government’s attention will return to the issue of ‘similar fact’ evidence and the admissibility of previous convictions, although this step may be delayed if it decides to proceed with the abolition of corroboration in the aftermath of Cadder.

25

26 27

28

29

30

of reasonable diligence’ have been known at the time of the acquittal, (2) substantially strengthen the prosecution case, (3) make it ‘highly likely that a reasonable jury in the light of the admission’ would have convicted at the original trial and (4) render it in the interests of justice to set aside the acquittal. For the application by the Crown to set aside the original acquittal and authorise a new prosecution, see HM Advocate v Sinclair [2014] HCJAC 131. He was tried and convicted later that year; available at: http://www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-29933928 (last accessed 16 July 2015). SLC, Report on Similar Fact Evidence and the Moorov Doctrine (No 229, 2012). P Duff, ‘Towards a unified theory of “similar facts evidence” in Scots law: relevance, fairness and the reinterpretation of Moorov’ (2002) Juridical Review 143. SLC, Report on Similar Fact Evidence (n 26) Appendix A: Criminal Evidence (Scotland) Bill ss 4–5. See F Stark, ‘Wiping the slate clean: reforming Scots law’s approach to evidence of the accused’s bad character’ (2013) 76 MLR 346 at 360–369; Davidson, Chapter 4 in this volume. Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125.

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(2) Cadder and corroboration The second example of penal populism acting as a major driver of Scottish criminal evidence law reform stemmed from the decision in Cadder by the Supreme Court in 2010. This had the immediate effect of rendering most confessions in criminal cases currently within the criminal justice process inadmissible in court because the accused had not been given the opportunity to seek legal advice before being interrogated by the police, as was necessary under the ECHR.31 The Scottish Government was ready for this eventuality, the Lord Advocate having issued interim guidance to the police in June of that year, requiring them to offer detained suspects access to a solicitor before interview in serious cases, and that had been rolled out to all cases the following month.32 Further, the Cabinet Secretary for Justice (henceforth ‘Justice Minister’) introduced emergency legislation, the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 the morning after Cadder and this went through Parliament the same day. The Act required all suspects to be offered legal advice before being asked any questions by the police at a police station. During this debate, the Justice Minister admitted that 120 ‘serious cases’ which were current, pending or under appeal would be likely to be abandoned.33 Unsurprisingly, Cadder caused a furore, with the media claiming that it could lead to ‘thousands’ of appeals affecting the most serious of cases and citing the Crown Office’s estimates of 3,500 cases affected, including the 120 solemn cases to which the Justice Minister had referred.34 Politicians and lawyers were happy to add to the general commotion, with many blaming the Scottish Government for failing to predict the decision and others critical of the Supreme Court’s unwelcome intervention, as it was portrayed, into the Scottish criminal justice system. In February 2011, the Justice Minister announced that the Crown Office had abandoned 867 prosecutions, sixty of these being serious cases of which five were for the crime of rape.35 On the same day as the Cadder decision, the Justice Minister announced that the emergency legislation was simply a stop-­gap and that the appropriate regime for the police questioning of witnesses and related wider issues would be subject to a review by Lord Carloway.36 The topics for review included 31

32

33 34

35 36

For a detailed account of the immediate ramifications of Cadder, see P R Ferguson, ‘Repercussions of the Cadder case: the ECHR’s fair trial proceedings and Scottish criminal procedure’ (2011) Crim LR 743. The Carloway Review: Report and Recommendations (2011) para 2.0.43, available at: http://www. gov.scot/Resource/Doc/925/0122808.pdf (last accessed 17 February 2016). The guidelines were issued in June 2010. Scottish Parliament, Official Report, col 29,580 (27 Oct 2010). BBC News, 28 October 2010, available at: http://www.bbc.co.uk/news/mobile/uk-scotland-11622 138 (last accessed 17 February 2016). Scottish Parliament, Official Report, col 33,332 (23 Feb 2011). See H MacQueen and S Wortley, ‘The Supreme Court decides Cadder’, (2010) Scots Law



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the status of ‘detention’, a concept introduced to Scotland in 1980, the right to silence and, most controversially, the requirement for corroboration. As Chalmers and Leverick noted, it is not obvious that the decision in Cadder raised the issue of corroboration, although there was a worry that early legal advice would lead to suspects saying nothing at the police station instead of confessing, thus removing potentially corroborating evidence.37 It is significant that during the Parliamentary debate on the emergency legislation, the Justice Minister referring to ‘the scales of justice’, observed ‘(w)hen they are changed in one direction, in the interests of the rights of the accused, they require to be balanced in the other direction, in the interests of the rest of our community’.38 This fairly crude notion of rebalancing the system was soon joined by a related argument almost guaranteed to find public support: Scotland already had a very low rate of conviction in rape and other sexual offence cases and, without an admission by the suspect to corroborate the complainer’s account, it was claimed, this unsatisfactory situation would worsen.39 Research carried out for Lord Carloway’s review seemed to substantiate this fear: it was estimated that for a six-­month period in 2010, there would have been a ‘reasonable prospect of conviction’ in 67 per cent of serious sexual offence cases which were not prosecuted owing to the lack of corroboration. A similar picture emerged from an analysis of a larger more general sample of serious cases.40 In his report, published one year later, Lord Carloway concluded that the requirement for corroboration is an ‘archaic rule’,41 riven with complications and frequently misunderstood.42 He went on to argue that the need for corroboration creates ‘miscarriages of justice’, in the sense that it prevents the prosecution of the probably guilty; in contrast, there is ‘no evidence or even anecdote to support the idea that the formal requirement for corroboration reduces miscarriages of justice’ by preventing the conviction of the innocent.43 The implication that both types of erroneous decision are of equivalent importance is controversial, of course, but nevertheless

37

38

39

40

41 42 43

News 26 October 2010, available at: http://www.sln.law.ed.ac.uk/2010/10/26/the-supreme-courtdecides-cadder (last accessed 16 July 2015); and Carloway Review (n 32) paras 1.0.6–1.0.7. J Chalmers and F Leverick, ‘“Substantial and radical change”: a new dawn for Scottish criminal procedure’ (2012) 75 MLR 837 at 851. Scottish Parliament, Official Report, col 29,557 (27 Oct 2010). He made similar references to rebalancing the ‘scales of justice’ at cols 29,560 and 29,673. The Conservative spokesman, John Lamont, used a similar metaphor at col 29,664. P R Ferguson and F E Raitt, ‘A clear and coherent package of reforms? The Scottish Government Consultation Paper on the Carloway Report’ (2012) Crim LR 909 at 914–925. Carloway Review (n 32) 7.2.31, Appendix A. For trenchant criticism of the methodology used in this research, see Chalmers and Leverick, “Substantial and radical change” (n 37) at 852, who describe it as ‘badly flawed’. Carloway Review (n 32) para 7.2.55. Ibid paras 7.2.44–7.2.48, 7.2.56 Ibid para 7.2.56.

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Lord Carloway concluded that the requirement for corroboration should be abolished.44 This recommendation made headlines, overshadowing the rest of the report’s proposals, and immediately aroused hostility among most sectors of the legal profession.45 On the other hand, the Crown Office (and the police) supported abolition, understandably seeing this as making it easier to secure convictions, and pressure groups such as Rape Crisis Scotland, Scottish Women’s Aid and Victim Support also welcomed the proposal. The latter group portrayed themselves as championing the cause of victims, especially those of sexual offences, and argued that critics of the proposal were standing in the way of progress in defence of the sacred cow46 of the requirement for corroboration.47 Despite widespread opposition to abolition, the Scottish Government pressed ahead, making much in public of its desire to improve the situation for the victims of sexual abuse and domestic violence on the basis that because these crimes tend to take place in private their prosecution is particularly problematic because of the need to find corroboration.48 The debate over the Cadder case and its aftermath became further politicised when a few months after the decision the First Minister criticised the Supreme Court for ‘intervening aggressively’ in Scotland’s traditionally independent legal system, observing that he did not see why ‘Lord Hope’s law’ should replace Scots law which had already been determined by seven judges.49 It should be noted that this comment closely followed the SNP’s stunning success in the 2011 election and probably reflected an element of political triumphalism. The Justice Minister compounded the public row by claiming that the Supreme Court judges’ only knowledge of Scotland was through attending the Edinburgh festival and threatened to stop paying 44 45

46

47

48

49

Ibid paras 7.2.55–7.2.57. See, for instance, the responses from the Law Society of Scotland, Glasgow Bar Association, the Faculty of Advocates, the Sheriffs’ Association, the Senators of the College of Justice and Crown Office to the Carloway Review consultation, available at: http://www.scotland.gov.uk/ About/CarlowayReview/Consultationprocess (last accessed 24 July 2015). Twenty years ago Sir Gerald Gordon observed that Scots lawyers would ‘defend religiously’ the requirement for corroboration: ‘At the mouth of two witnesses: some comments on corroboration’, in R Hunter (ed), Justice and Crime: Essays in Honour of the Lord Emslie (1993: T&T Clark) 33. See Cairns, ‘Does the abolition of corroboration hold promise’ (n 12) at 640; Cairns, Chapter 2 in this volume; Ferguson and Raitt, ‘A clear and coherent package’ (n 39) at 914–925. For instance, see ‘Ending corroboration “could protect domestic abuse victims”, claims Solicitor General’, Scottish Legal News, 16 January 2011. The Guardian, ‘Alex Salmond provokes fury with attack on Supreme Court’, 1 June 2011, available at: http://www.theguardian.com/uk/2011/jun/01/alex-salmond-scotland-supreme-court (last accessed 17 July 2015). Lord Hope, of course, was one of the two Scottish judges on the Supreme Court bench in Cadder, Lord Rodger being the other. In HM Advocate v Mclean [2009] HCJAC 97, a Full Bench of seven judges, almost exactly a year earlier, had decided that such confessions were admissible.



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Scotland’s share of the Supreme Court’s running costs.50 This claim was risible because Lords Hope and Rodger, who gave the leading judgments in the Supreme Court, had both respectively held Scotland’s most senior judicial post before moving south of the border.51 Back in the legal world, the Criminal Justice (Scotland) Bill 2013 contained a provision to abolish the requirement for corroboration but the SNP-­dominated Justice Committee, perhaps surprisingly, opposed this move, suggesting that it was not supported by the majority of members and that, if abolition were to go ahead, the issue required further consideration.52 This was despite the Justice Minister, now being criticised on all sides for pressing ahead so hastily, having written to the Committee two days before it reported, undertaking that if the provision were to be passed, it would not be implemented until Lord Bonomy, a retired senior judge, and a Reference Group had reviewed the matter and recommended, absent corroboration, what safeguards against wrongful conviction might be needed.53 The Parliamentary debate at Stage 1 of the Bill revolved mainly around the issue of corroboration and was extremely heated. The ­high – ­or perhaps ­low – p ­ oint of the political furore came when the Minister for Justice, as well as reiterating the by now standard claim that the removal of corroboration would improve the position of rape victims,54 also alleged that those who opposed the reform were doing so because they were supporters of the Union, a claim which was vehemently denied.55 Again this row made headlines and demonstrated how politicised the whole issue had become,56 a situation previously unknown in the reform of Scottish criminal evidence law. Soon afterwards, the Government retreated, announcing that it would not take the Bill to Stage 2 until after Lord Bonomy had reported.57 Lord Bonomy’s 50

51

52

53

54

55 56

57

Available at http://www.theguardian.com/uk/2011/jun/01/alex-salmond-scotland-supreme-court (last accessed 17 July 2015). During the emergency debate, the Justice Minister had repeatedly claimed that ECHR challenges were ‘undermining’ the historical ‘supremacy’ of the High Court, although he had also commented that it would be ‘scandalous’ for a justice minister to criticise a decision of the Supreme Court: Scottish Parliament, Official Report, cols 29,553; 29,557; 29,580-­29,581; 29,672-­29,673 (27 Oct 2010). Justice Committee, 3rd Report, 2014 (Session 4), Stage 1 report on the Criminal Justice (Scotland) Bill, 6 February 2014, ‘Summary of Recommendations’ 27–32. The Justice Committee explained that this letter came too late to be considered and, in any case, did not contain enough details, ibid 416. Scottish Parliament, Official Report, cols 28,322–28,323 (27 Feb 2014), emphasising that this was supported by Victim Support Scotland, Rape Crisis Scotland and Scottish Women’s Aid. See also Christine McKelvie (SNP) ibid cols 28,341–28,343. Ibid cols 28,371–28,376. See Daily Telegraph, 1 March 2014, available at: http://www.telegraph.co.uk/news/uknews/ scotland/scottish-politics/10669195/Major-SNP-split-emerges-over-ministers-vitriolic-corroborationspeech.html (last accessed 25 July 2015). See Post-Corroboration Safeguards Review: Consultation Document (October 2014) 1, available at: http://www.gov.scot/Resource/0046/00460866.pdf (last accessed 18 February 2015).

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report was published just over a year later, and included suggested provisions, drafted with the help of the Scottish Government’s Parliamentary Counsel office, which he recommended should be incorporated into the Bill.58 These were fairly extensive59 and the new Justice Minister, his predecessor having been replaced earlier that year, announced that the Bill would proceed to Stage 2, without the provision which abolished the requirement for corroboration while further thought was given to the matter.60 Whether the abolition of corroboration will eventually proceed, which is the Government’s position, remains to be seen. However, the whole saga illustrates that the reform of criminal evidence law is now prone to the pressures of penal populism and consequently can become heavily politicised. B. EFFICIENCY AND ‘MANAGERIALISM’ It is clear that in recent years, there has been considerable pressure both in Scotland and most other developed societies to make the criminal justice process more efficient. This is part of a more general, governmental pressure on the public sector, labelled by social theorists as the ‘New Public Management’, which places an increased emphasis on performance measurement, league tables and competition with the private sector.61 In the criminal justice system, this has been largely a result of increasing case loads from roughly the middle of the twentieth century, driven by sharp rises in reported crime,62 and the greater complexity of criminal procedure. The latter is a product of various factors, for example, the growing need to conform to due process or, more recently, human rights requirements, a better educated population more aware of their legal rights, more scientific evidence and the increased involvement of defence lawyers in the system. There has been a consequent desire on the part of governments to control costs by making the criminal justice system work more efficiently. As McEwan has argued, this renders the traditional models for analysing the criminal justice ­process – ­the opposing values of due process and crime control or the ‘suggestive 58

59 60

61

62

Post-Corroboration Safeguards Review: Final Report (April 2015), available at: http://www.gov. scot/Resource/0047/00475400.pdf (last accessed 18 February 2015). Ibid ch 16: ‘Draft provisions’. ‘Plans to abolish corroboration in Scottish cases dropped’, BBC News, 21 April 2015, available at: http://www.bbc.co.uk/news/uk-scotland-scotland-politics-32398065 (last accessed 25 July 2015). T Newburn, Criminology (2007: Willan) at 13 and 553–554; see also J Ward, ‘Transforming “summary” justice through police-­led prosecution and “virtual courts”’ (2015) 55 Brit J Crim 341, for a recent discussion of the imposition of the ‘managerialist project’ across adversarial criminal justice systems and further references. The volume of crime reported in Scotland seems to have levelled out over the past few years but there are still far more criminal cases to be dealt with than in the early 1960s; see http:// www.gov.scot/Topics/Statistics/Browse/Crime-Justice/TrendVol and http://www.gov.scot/Topics/ Statistics/Browse/Crime-Justice (last accessed 19 February 2016).



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caricatures’ of inquisitorial and adversarial procedure –much less useful as an aid to understanding reforms of criminal procedure and evidence.63 In McEwan’s view, adversarialism is being displaced by a new culture of ‘managerialism’ in England and Wales. The norms embodied in the former culture have been ‘diluted’ by the ‘emergence of an administration-­centred management ethos engaged in inventing new ways to “process” large numbers of criminals or suspected criminals at minimal cost’, influenced by ‘an ideological preference for the methods of manufacturing industry and the discipline of the market’.64 I would argue that, unsurprisingly, the same tendency has been evident in Scotland. There is no better illustration of managerialism than the rise in plea bargaining, even in inquisitorial jurisdictions where it is disliked as the antithesis of the ­aim – ­the discovery of the ­truth – w ­ hich the system represents.65 In Scotland, we have gone from the High Court disapproving the practice in 198766 to the situation where it is almost obligatory for the judge to award a sentence discount of one-­third for an early guilty plea.67 As a result, trials have becoming increasingly rare, particularly in the lower courts, and all under the rubric of efficiency and saving money, as the High Court acknowledged in Du Plooy.68 Similarly, there has been a massive rise in the number of cases diverted from prosecution69 with the express aim of efficiency and cost-­cutting, exemplified by the greatly increased use of fixed penalties issued by the police for traffic offences, and latterly some minor common law offences, and the very similar system of conditional offers (known as fiscal fines) issued by the fiscal, introduced to Scotland in 1988 at a flat rate of £2570 and subsequently increased incrementally so that the fiscal can now issue a fiscal fine of any amount between £25 and £300.71 The latter ­mechanism 63

64 65

66 67

68

69

70 71

See McEwan (n 8). See also A Frieberg, ‘Managerialism in Australian criminal justice: RIP for KPIs’ (2005) 31 Monash LR 12. McEwan (n 8) at 522. See T Weigend, ‘The decay of the inquisitorial ideal; plea bargaining invades German criminal procedure’, in J Jackson et al (eds), Crime, Procedure and Evidence in an International Context (2008: Hart) 39. Strawhorn v McLeod 1987 SCCR 413. Criminal Procedure (Amendment) (Scotland) Act 2004 which amended s 196 of the Criminal Procedure (Scotland) Act 1995. Du Plooy v HM Advocate 2003 SCCR 640. In 2014–2015, criminal proceedings were launched against 123,242 people, resulting in 106,507 pre-­trial guilty pleas (86.4 per cent). At the trial diet, a further 9,322 people (7.6 per cent) did not proceed to trial because either a plea of not guilty was accepted or the Crown deserted the case (these two possibilities are not distinguished in the figures). See Scottish Government, Criminal Proceedings in Scotland 2014–2015 (February 2016) Table 2(a), available at: http://www.gov.scot/Publications/2016/02/6001 (last accessed 11 March 2016). The figures are available at http://www.gov.scot/Topics/Statistics/Browse/Crime-Justice/PubCrim inalProceedings (last accessed 19 February 2016). Criminal Justice (Scotland) Act 1957 s 56. Criminal Proceedings etc. (Reform) (Scotland) Act 2007 s 50.

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covers many minor offences, including breach of the peace, theft, assault and less serious drugs cases, thus avoiding the costs of a prosecution in such cases, and does not result in a criminal conviction. If the recipient rejects the offer, she or he will normally be subject to a criminal prosecution. There has been considerable opposition to such developments on the basis that justice, by which is meant an appropriate stigma and sentence, has been sacrificed to expediency with the aim of ensuring the courts can deal with the volume of cases more efficiently and speedily while keeping costs down.72 (1) Pre-trial hearings and the agreement of evidence As part of this trend, the UK and, latterly, Scottish Governments have placed a growing emphasis on active case management by the judiciary to reduce ‘churn’, that is, repeated adjournments, ‘cracked’ trials (that is, trials which fail to take place on the appointed date), long delays and so on, with the aim of pushing cases through the system more efficiently in order to minimise costs.73 In Scotland, from the early 1990s onwards, this led to the introduction of compulsory pre-­trial hearings in all criminal proceedings74 in order to check that (1) the parties are ready to proceed, (2) all witnesses are available, (3) the accused is adhering to his not guilty plea and (4) uncontroversial evidence has been agreed. I shall return to this latter topic shortly. Previously, I have argued that these developments represented an inadvertent shift to a more inquisitorial style of procedure and, while I still suspect this is true,75 I now think these reforms are better understood as part of the more general governmental thrust to render the public sector more efficient and accountable.76 As a result, the whole panoply of targets, 72

73

74

75

76

M McConville, ‘Plea bargaining: ethics and politics’ (1998) 25 Journal of Law and Society 562; F Leverick, ‘Tensions and balances, costs and rewards: the sentence discount in Scotland’ (2004) 8 Edin LR 360. For details and references, see P Duff, ‘Intermediate diets and the agreement of evidence: a move towards an inquisitorial culture?’ (1998) Juridical Review 349, and ‘Changing conceptions of the Scottish criminal trial: the duty to agree uncontroversial evidence’, in A Duff et al (eds), The Trial on Trial: Volume 1 (2004: Hart) 29. See also Auditor General, Efficiency of Prosecuting Criminal Cases through the Sheriff Courts (September 2015), available at: http:// www.audit-scot​land.gov.uk/report/efficiency-of-prosecuting-criminal-cases-through-the-sheriff-courts (last accessed 28 March 2016). Under summary procedure, these are termed ‘intermediate’ diets (Criminal Procedure (Scotland) Act s 148) and, under solemn procedure, as ‘first’ diets in the Sheriff Court (s 71) and ‘preliminary hearings’ in the High Court (s 72). See Duff, ‘Changing conceptions’ (n 73). On the other hand, Roberts, ‘Faces of justice’ (n 1) at 320–323, might well claim that these changes are simply part of the constantly developing common law and are still consistent with an adversarial ideology, but I do not have space to reflect upon this argument here. See also A Ringnalda, ‘Procedural tradition and the convergence of criminal procedure systems; the case of the investigation and disclosure of evidence in Scotland’ (2014) 62 American Journal of Comparative Law 1133. My revised view would probably be supported by Ringnalda ibid.



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performance indicators, measures of outputs and so on was introduced to the Scottish criminal justice process77 and the judiciary was charged with active case management, a task which was not particularly welcomed by a legal profession whose traditional adversarial culture saw the judicial role as almost entirely passive. Another excellent example of this new approach to the criminal justice process has been the reforms to criminal legal aid through the introduction of fixed fees and the creation of the Public Defence Solicitors’ Office. The underlying purpose of such reforms, of course, has been to reduce spiralling costs and speed up the processing of cases, resulting in repeated, and to some extent justified, assertions by the legal profession that Government is no longer interested in justice. It is fair to say that the new emphasis on managerialism has had more impact on criminal procedure, broadly speaking, than on criminal evidence but it has contributed to movement in the latter field. As regards the agreement of evidence prior to trial, s 257 of the Criminal Procedure (Scotland) Act 1995 imposes a duty on the prosecution and defence to ‘take all reasonable steps’ to agree uncontroversial evidence and the judge is now required to take active steps at the pre-­trial hearing to ascertain that the parties have indeed attempted to do this.78 It is illuminating to note the SLC’s perception that this reform was based on narrow ‘managerial’ considerations rather than stemming from any reappraisal of fundamental values and it expressed reservations about the change in role of the traditionally ‘passive’ judge to one of ‘interventionist’ case management.79 The mechanism for the agreement of such evidence is that one party, almost invariably the prosecution, serves a statement of uncontroversial evidence on the other party, referring if necessary to documents included as an annex (for example, a witness statement), shortly before the pre-­trial hearing.80 Unless the other party responds with a notice challenging the evidence, the facts specified in the statement of uncontroversial evidence are deemed to have been conclusively proved. 77

78

79

80

See, for example, http://www.copfs.gov.uk/images/Documents/Statistics/COPFS%20Perfor​m​a​nce %20Measurse.pdf (last accessed 21 March 2016); http://www.copfs.gov.uk/images/Documents/ Statistics/Performance%20Against%20Key%20Targets%20April%202015%20to%20 September%202015.pdf (last accessed 19 February 2016); http://www.scotcourts.gov.uk/docs/ default-source/SCS-Annual-Report/scs-annual-report-accounts---2014-15---final.pdf?sfvrsn=2 (last accessed 21 March 2016). See Duff, ‘Changing conceptions’ (n 73). It should be noted that there has also been an expansion in the use of similar devices for other types of uncontentious evidence (for example ‘documentary’ evidence, ‘routine’ evidence, evidence of biological material and so on), which either reduce the number of witnesses needed to introduce expert reports and similar documents or require the defence actively to challenge the evidence before any witnesses are necessary at all: Criminal Procedure (Scotland) Act 1995 ss 276–284. Scottish Law Commission, Responses to 1993 Review of Criminal Evidence and Criminal Procedure and Programming of Procedure in Business in the Sheriff Courts (1993) paras 1–12. Criminal Procedure (Scotland) Act 1995 s 258.

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In practice, little use was made of these statements,81 largely because, as Lord Bonomy explained in his 2002 review of High Court procedure, the defence usually responded by ‘automatically challenging’ the statement thereby rendering it ‘defunct’.82 In order to improve matters, Lord Bonomy suggested that the defence should be required to give reasons for any challenge to a statement of uncontroversial evidence and, if the Crown thought these did not justify contesting the evidence, the matter should be settled by the judge at the pre-­trial hearing. In other words, the judge would be empowered to determine inter alia which witnesses it was necessary to call at trial; if she decided that the facts in a witness statement (or a summary of it) were incontrovertible, it could simply be read to the jury at trial.83 As a result, s 258(4)A was inserted into the 1995 Act to provide that in solemn proceedings where a notice of uncontroversial evidence is challenged, the court at the pre-­trial hearing may on the application of the other party direct that an ‘unjustified’ challenge is to be disregarded.84 Two years later, the McInnes Committee came to a similar but more timid conclusion.85 However, the subsequent legislation took a bolder approach and simply extended the existing s 258(4)A to summary procedure.86 Although the above provisions appear to deal with dry procedural matters, in practice, they are radical in nature. The pre-­trial agreement of uncontroversial evidence impinges upon the traditional principles of orality and immediacy, requiring more of the evidence to be ‘frozen’87 and preserved before trial and then either read to the judge or jury or put before them in documentary form.88 Further, the idea that during the pre-­trial procedure, a judge is empowered to make decisions about which witnesses are needed at trial is completely alien to the adversarial model, which sees this as the exclusive province of the Crown and defence, whereas in the inquisitorial model the judge has invariably held the power to determine which witnesses are required to attend the trial. Initially, it is fair to assume that the power contained in s 258(4)A was

81

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83 84 85

86 87 88

See F McCallum and P Duff, Intermediate Diets, First Diets and Agreement of Uncontroversial Evidence in Criminal Cases: An Evaluation (2000: Scottish Executive Central Research Unit) ch 6. Lord Bonomy, Improving Practice: 2002 Review of the Practices and Procedure of the High Court of Judiciary (2002: HMSO) para 8.9. Ibid. This was done by the Criminal Procedure (Amendment) (Scotland) Act 2004 s 16. The Summary Justice (McInnes) Review Committee, Report to Ministers (2004: Scottish Executive) paras 20.23–20.29. Criminal Proceedings etc (Reform) (Scotland) Act 2007 s 20. Damaska, ‘Evidentiary barriers’ (n 4) at 520. The commentary to the 1995 Act notes that the Act does not specify how statements of uncontroversial facts are to be dealt with, suggesting that they may be read to the jury by the court clerk or, in a summary trial, simply given to the sheriff: R Shiels et al, Green’s Annotated Acts: Criminal Procedure (Scotland) Act 1995, 9th edn (2010: W Green).



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rarely, if ever, used: up until the end of 2014, neither Renton and Brown nor the Annotations to the Act cited any cases concerned with this provision.89 However, in late 2015, a Full Bench of seven judges, which demonstrated the significance of the issue, tackled the provision following a decision in the Sheriff Court that a defence challenge to a statement of uncontroversial evidence was unjustified.90 An appeal by the defence was upheld but what is significant in this context is the High Court’s interpretation of the provision. In the leading opinion, the Lord Justice General (Carloway) recounted in some detail the history of the legislation,91 emphasising repeatedly that the refusal by defence lawyers to agree even the most uncontroversial of evidence had increasingly wasted ‘scarce public resources’, added to the ‘administrative burdens’ on the courts, and caused ‘inordinate delays’ leading to the inconvenience of witnesses and putting ‘the integrity of the trial at risk’.92 Having emphasised these managerialist concerns, Lord Carloway also stated that counsel have duties towards the court and are not obliged to act ‘in all respects’ as their clients may wish.93 In his view, if evidence is tendered as uncontroversial, the statutory duty to agree evidence under s 257 means that counsel should not challenge it unless there is ‘good and sufficient reason’ for so doing, just as the legislation requires.94 Critically, Lord Carloway observed that the traditional defence attitude of non-­cooperation was based on the right to silence and the right to put the Crown to proof, which meant that the defence did not have to assist the Crown in any way.95 In the present case, the defence, having taken advice from the Dean of the Faculty,96 were under instructions not to agree to any of the matters in the minute of uncontroversial evidence and declined to explain the reason for this stance. The defence argued that s 258(4)A, namely the judicial power to disregard an objection to uncontroversial evidence and admit the minute, was incompatible with art 6 of the ECHR because 89

90 91 92 93 94 95

96

Renton and Brown: Criminal Procedure, 6th edn, para 24.90, available at: http://login.westlaw. co.uk/maf/wluk/app/tocectory?ao=o.I2058C0A04EEC11DF9311B123160301C2&sttype=stdtemp late&ndd=2 (last accessed 22 February 2016); Shiels et al, Greens Annotated Act. Additionally, anecdotal evidence supports this assumption. Ashif and Ashraf v HM Advocate [2015] HCJAC 100. Ibid paras 6–15. Ibid para 4. Ibid para 70. Ibid para 72. Ibid paras 8–9. For detailed exploration of this argument in the present context, see P Duff, ‘The agreement of uncontroversial evidence and the presumption of innocence: an insoluble dilemma’ (2002) 6 Edin LR 25 (cited by Lord Clarke at para 83). See also A Owusu-­Bempah, ‘Defence participation through pre-­trial disclosure’ (2013) 17 International Journal of Evidence & Proof 183, for further discussion of this point. Such was the significance of this issue that at the appeal, the High Court invited the Faculty and the Law Society to make written submissions and also allowed the Dean of Faculty to make a statement to the court: Ashif and Ashraf (n 90) paras 20, 28.

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it was contrary to the rights of the defence to remain passive and silent.97 The Appeal Court rejected this argument, stating that s 258(4)A, properly construed, would rarely extend to evidence constituting the species facti of the libel (that is, particular acts constituting an element of the relevant crime) or a ‘key fact’98 and was intended to cover evidence, ‘typically documentary, which on the face of what is what it bears to be’, for instance, the accused’s bank statements, invoices, a video clip from CCTV at a particular place and time, or a report detailing the finding of an item of real evidence.99 Lord Carloway observed that the right to silence had never been ‘absolute’100 in Scots law and, further, that the art 6 right to cross-­examine the other side’s witnesses was not compromised by the provision because if the defence could show a ‘proper basis’ for opposing a statement of uncontroversial evidence, the judge would find the challenge to the allegedly uncontroversial evidence was justified.101 While Lord Carloway did not think the right to silence was infringed at all by s 258(4)A, if it were, the provision represented a ‘reasonable and proportionate’ qualification in order to accommodate various other legitimate interests, principally the public interest in the efficient running of criminal trials without unnecessary expense.102 The accused was not entitled to ‘prolong a prosecution in the off-­chance that a witness will abscond or that the prosecutor will make a blunder’ or in the hope that the sheer volume of evidence will bewilder a jury.103 In the instant case, however, the statement tendered by the Crown rested on ‘an obtuse misunderstanding’ of the section because it extended well beyond evidence which could be categorised as uncontroversial and called on the accused to admit facts that went to the ‘heart of the case’, including the fact that ‘certain transactions were “fraudulent”, which is the essence of the libel’.104 Put simply, if the defence were to accept the statement of allegedly uncontroversial evidence, that would be tantamount to a guilty plea because the accused would have accepted that they had acted fraudulently, the precise point which would be at issue in the trial. In essence, the court was stating that, while the Crown in the instant case had gone too far, in the interests of efficiency, the defence would no longer be allowed to run a ‘blunderbuss’ defence, questioning every aspect of the prosecution case and insisting on cross-­examining every witness but

97 98

99 100 101 102 103 104

Ibid paras 17–18. Ibid para 75 per the Lord Justice Clerk, with a less technical phrase than that used by the Lord Justice General. Ibid paras 42–43 per the Lord Justice General. Ibid para 47. Ibid para 53. Ibid paras 54–57. Ibid para 58. Ibid para 67.

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would have to focus upon what was genuinely at issue and could realistically be challenged. (2) Disclosure Against this backdrop, the advent of a greatly strengthened system of disclosure, a mechanism through which the prosecution must disclose all relevant evidence to the defence before trial and to some extent vice versa, is also highly significant. For the past twenty-five years, the various official reports concerned with introducing meaningful pre-­trial hearings have emphasised the need for the Crown to disclose more of its evidence before trial.105 As well as allowing the agreement of e­ vidence – a­ fter all, the defence is unlikely to agree to evidence that it has not ­seen – ­it has long been argued that many accused, if made fully aware of the strength of the case against them, would not adhere to their original not guilty plea, but would plead guilty and enjoy the benefit of a sentence discount.106 In other words, from the last decade of the twentieth century until the present, the Government and the various official review groups which examined criminal procedure concluded that full disclosure by the prosecution of its evidence to the defence would improve case throughput by increasing the number of early guilty pleas and shortening those trials that did take place. Therefore, initially, the pressure for disclosure was driven by the need to increase efficiency and thereby to cut costs.107 At this point, it needs to be noted that in the early 1990s, the prosecution had no legal duty to disclose any of its evidence to the defence but because, traditionally, it was expected to adopt a neutral role, rather than seeking a conviction at all costs, it would normally disclose on a ‘grace and favour’ basis any evidence which might be favourable to the defence.108 It was, of course, open to the defence to precognosce any witnesses, a full list of which was given to them by the Crown, prior to trial.109 At that time, however, the Crown usually supplied the defence with police statements prior to trial but was extremely reluctant to disclose civilian statements for reasons of 105

106

107

108 109

For the history of disclosure in Scotland and detailed references for the following narrative, see P Duff, ‘Disclosure in Scottish criminal procedure: another step in an inquisitorial direction’ (2007) International Journal of Evidence & Proof 153. For a slightly different view, see Ringnalda, ‘Procedural traditions’ (n 73). Scottish Office, The 1993 Review of Criminal Evidence and Criminal Procedure (1993) paras 27, 89–95; Scottish Office, Firm and Fair: Improving the Delivery of Justice in Scotland (Cmnd 2600, 1994) ch 2; Lord Bonomy, Improving Practice: 2002 Review of the Practices and Procedure of the High Court of Judiciary (2002: HMSO) paras 5.9–5.21, 7.3–7.7, 8.8–8.13; the Summary Justice (McInnes) Review Committee, Report to Ministers (2004: Scottish Executive) paras 14.2–14.5. Owusu-­Bempah, ‘Defence participation’ (n 95) describes the same pressures driving disclosure in England. See Duff, ‘Disclosure in Scottish criminal procedure’ (n 105) at 158–163. See Renton and Brown (n 89) ch 13.

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confidentiality and out of a concern about the poor quality of such statements.110 Further, the defence was becoming increasingly unlikely to precognosce witnesses because of cutbacks in expenditure on criminal legal aid. In 1998, the disclosure regime began to change when in McLeod the Crown, after standing by its traditional stance of non-­disclosure, at the initial hearing, changed its position when the case came before a Full Bench and accepted that it could no longer claim confidentiality for all statements given to the police but argued that the defence had to show why it needed them. Giving the leading opinion, Lord Rodger disapproved of earlier dicta favouring the ‘grace and favour’ position and observed that the Crown was under a legal duty to inform the defence of any exculpatory statement and also to hand over any statements which the defence could show might be of ‘material assistance’ to it.111 The ‘revolution’112 in disclosure was completed in 2005 in the conjoined cases of Sinclair and Holland113 when the Privy Council decided that in order to conform with the article 6(1) right to fair trial under the ECHR, the Crown had to disclose to the defence all ‘material evidence . . . for or against the accused’, regardless of whether the defence had asked for it but subject to a ‘public policy interest’ (PPI) exception if disclosure would, for example, jeopardise national security or witness safety.114 Sinclair and Holland represented a radical change to the Scottish law of evidence and procedure and also to the adversarial model of justice, which in the ideal envisages the two competing parties each collecting their own evidence to present at trial and, in true competitive fashion, not helping their opponent in any way. It is interesting that it was the new emphasis on human rights which led to this shift in the law, rather than the managerialist agenda which had been seeking movement in this direction for several years, an example of two of the factors which drive reform combining over one specific issue. In the wake of the Privy Council’s decision, the Justice Minister asked a judge to review the issue of disclosure and make recommendations for a new regime.115 While Lord Coulsfield was primarily concerned with ensuring that the new rules conformed with the article 6 right to a fair trial by ensuring equality of arms, he did comment that ‘proper preparation for and performance of the duty (of disclosure) can enhance the efficiency and

110

111 112

113 114 115

The latter reason is to some extent anecdotal but see also Lord Bonomy, Improving Practice (n 106) paras 7.4–7.6. McLeod v HM Advocate 1998 SCCR 77 at 99. P Duff, ‘Sinclair and Holland: a revolution in “disclosure”’ 2005 SLT (News) 105; F E Raitt and P R Ferguson, ‘Re-­configuring Scots criminal ­procedure – ­seismic shifts?’ (2006) 10 Edin LR 102. Sinclair v HM Advocate 2005 SLT 553 and Holland v HM Advocate 2005 SLT 263. Per Lord Hope’s leading judgment in Sinclair para 33. Lord Coulsfield, Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland (2007) Scottish Government para 1.3.



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coherence of the process of investigation, prosecution and trial’.116 In 2008, the Crown issued a lengthy Disclosure Manual, giving instructions to all its employees that were in compliance with the principles set out in Sinclair and Holland.117 Thereafter, a somewhat convoluted statutory scheme was enacted in Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010 with a complex PII procedure, based on the English model, to deal with information that the Crown does not wish to disclose on the basis of the public interest. It is important to note, however, that despite the intervention of the human rights issue, the Government did not lose focus on its agenda of increasing efficiency through disclosure. For instance, in 2009, it commissioned research to evaluate the effects of recent reforms to criminal legal aid and disclosure and the remit was primarily concerned with the effect on ‘case trajectories’ and the ‘economic impact’ of these changes.118 Unsurprisingly, the rapidly changing disclosure regime has given rise to a number of further evidential and procedural issues, only one of which need be mentioned in the present context because it has led to a focus on the nature of criminal trials and further discussion about how to make them shorter and more efficient.119 It is significant to note that in 2007, Lord Coulsfield had commented that it was now ‘the norm’ for the previous statements of witnesses to be available to the prosecution and defence, but not to the witness, ‘too often’ resulting in the trial becoming a ‘one-­sided memory-­ test’ where any difference between the witness’s statement and testimony in court was subject to ‘meticulous cross-­examination’.120 His consequent recommendation that witnesses should be given copies of their statements to refer to while giving evidence was given effect by the Criminal Justice and Licensing (Scotland) Act 2010 s 85. As Lord Carloway, then Lord Justice Clerk, observed in a paper delivered at a conference on Scottish criminal law in 2013, in combination with the witnesses being allowed to ‘adopt’ prior 116 117

118

119

120

Ibid para 1.5. COPFS, Disclosure Manual (Version 1, March 2008). The latest version can be found at http://www.crownoffice.gov.uk/publications/prosecution-policy-and-guidance#DM (last accessed 20 July 2015). P Bradshaw et al, Evaluation of the Reforms to Summary Criminal Legal Assistance and Disclosure (Scottish Government Social Research, 2012). See, in particular, the ‘Executive Summary’ at 6–16. Perhaps the most interesting issue is the extent to which public interest immunity should be sought by the Crown to justify the non-­disclosure to the defence of normally confidential personal records (for example, medical or social work reports) about complainers and witnesses, particularly in sexual offence prosecutions. See F E Raitt, ‘Disclosure of records and privacy rights in rape cases’ (2011) 15 Edin LR 33. Lord Coulsfield, Review of the Law and Practice of Disclosure (n 115) para 5.42. See also Scottish Court and Tribunal Service, Evidence and Procedure Review Report (March 2015) para 1.21, available at: https://www.scotcourts.gov.uk/docs/default-source/aboutscs/reports-anddata/reports-data/evidence-and-procedure-full-report---publication-version-pdf.pdf?sfvrsn=2 (last accessed 17 August 2015).

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statements in 1995,121 this has led to ‘trial by statement’, where the main focus of questioning at trials is the witness’s previous statements.122 As a more sensible and modern alternative, Lord Carloway in his paper envisaged a future where it would no longer be the case that at trial ‘the singular feature of the proof is oral testimony’, observing that this tradition took shape during the Victorian era. In his view, the legal rules have not adapted to an era where ‘what a person says can be accurately recorded electronically at any time’, and he speculated that, for instance, a video recording of a witness shortly after an event is more likely to be accurate than oral testimony at trial many months later.123 Having noted the introduction of provisions covering routine evidence, uncontroversial evidence, testimony given by live CCTV link and evidence taken on commission, Lord Carloway then suggested a ‘much more radical approach’ to save the courts time and witnesses inconvenience, namely: ‘Why should it not be competent for all evidence to be given in the form of a video and audio recording of the witness’s account?’124 He went on to argue, correctly, that the ECHR does not create a right to cross-­examine every witness at trial and that the right to examine opposition witnesses may be satisfied in the pre-­trial process.125 The use of pre-­recorded statements, in place of much oral testimony at trial, would of course require major change to the rule against hearsay but, as Lord Carloway pointed out, this principle has been abandoned in civil proceedings and has been substantially weakened by the creation of numerous exceptions in criminal litigation.126 Shortly afterwards, the Scottish Court and Tribunal Service (SCTS), in conjunction with Lord Carloway, set up a review to move the trial process into the ‘digital age’.127 As its report states, the SCTS and the Scottish Government were becoming ‘increasingly concerned’ that, despite the various reforms described above, the criminal justice system was not getting ‘significantly quicker or more efficient’ and cited various statistics demonstrating a high degree of ‘churn’, much of which was due to witness absence.128 The report suggested that greater use could be made of technology, citing in particular various experiments in the use of body cameras by 121

122

123 124 125 126 127 128

Criminal Justice (Scotland) Act 1995 s 18, subsequently Criminal Procedure (Scotland) Act 1995 s 260. Lord Carloway, ‘Scots criminal evidence and p ­ rocedure – m ­ eeting the challenges and expectations of modern society and legal thinking’ (9 May 2013, Criminal Law Conference, Murrayfield) at 14, available at: http://www.scotland-judiciary.org.uk/26/1045/Lord-JusticeClerks-speech-at-the-Criminal-Law-Conference (last accessed 25 February 2016). Ibid at 6. Ibid at 7. Ibid at 8–10. Ibid at 12–15. See Maher, Chapter 5 in this volume. SCTS, Evidence and Procedure Review (n 120) para 5.1 Ibid paras 1.3, 1.5–1.19.



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the police, resulting in the ‘widespread use of pre-­recorded statements in place of testimony in court’.129 This would enable not only a better quality of evidence and improved ascertainment of the truth but also better ‘case management’, because the evidence would be available to both parties at an earlier stage in proceedings, allowing the trial to focus only on what was relevant, and reducing the problem of the non-­attendance of witnesses.130 The report concentrated particularly on the procedures for taking the evidence of children and vulnerable witnesses, strongly recommending that their testimony and cross-­examination should take place at an early stage in proceedings, when it is fresh in their minds, in order to spare them the ordeal of testifying at trial and to allow the healing process to begin as soon as possible.131 More generally, the report concluded that there should be much more use of pre-­recorded statements as evidence, suggesting that, ‘despite the strength of adversarial traditions’, experience elsewhere indicated that ‘practitioners are prepared to adapt’ to such new procedures. This would, of course, require a major reform of the law on hearsay, drastically reducing the scope of the inadmissibility of this type of evidence.132 The SCTS emphasised that such a new approach to witness testimony would require ‘leadership’ from the judiciary with ‘a willingness to adopt a robust approach to case management’.133 Following a public consultation process,134 the SCTS issued a further report, outlining what issues could be tackled in the immediate future.135 It rehearsed much of what had been said in its earlier report, again emphasising at the outset that the need for reform was driven by two factors: developments in technology which could ‘enhance the system’s ability to ascertain the truth’; and the need to tackle current inefficiencies in the process.136 However, given that there was further ‘internal’ work to be done on making ‘full use of digital technology’, extending well beyond pre-­recorded statements,137 the SCTS focused on the ways in which modern technology could be used in the short term to improve the lot of child and vulnerable witnesses,138 its main recommendation being that the pre-­trial recording of both examination in chief and cross-­examination of such witnesses should 129 130 131 132 133 134

135 136 137 138

Ibid para 1.23. Ibid paras 1.24–1.25. Ibid ch 2. Ibid paras 3.29–3.33. Ibid para 5.5. This simply summarises much of chapters 3 and 4. SCTS, Evidence and Procedure – Next Steps, available at: https://www.scotcourts.gov.uk/docs/ default-source/SCS-Communications/evidence-and-procedure-report---next-steps---february-2016. pdf?sfvrsn=2 (last accessed 16 March 2016). Ibid. Ibid paras 2–6. Ibid para16. Ibid paras 7–17 and part B.

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become the norm.139 Before dealing with vulnerable witnesses, however, the report did consider the wider ‘modernisation’ issues.140 In brief, the SCTS argued that that a new ‘digital vault’141 to store all types of evidence, including witness statements, well before trial in all cases would not only improve the quality of the evidence but would provide ‘efficiency and savings’ across the system. It might ‘also provide the basis for earlier decision-­making, including early pleas, and help to reduce the churn and the unnecessary citation of witnesses’.142 This would enable most court procedure to be ‘conducted administratively and digitally’ by a judiciary applying ‘a rigorously applied case-­management’ process which would require only issues in dispute to be resolved in traditional court hearings.143 What all the above entails is that witnesses would no longer be expected to attend trials as ‘a matter of routine’.144 The trial would simply take place at the time when all the relevant information had been placed before the c­ ourt – i­n solemn trials, the pre-­recorded statements and any examination of the witness would simply be played to the ­jury – a­ nd the lawyers would make submissions. As the SCTS put it, the trial would become ‘the culmination of an evidence gathering and testing exercise, rather than the entire exercise’.145 This, of course, bears a remarkable resemblance to the inquisitorial trial although in his initial paper Lord Carloway was at pains to argue that his proposals were ‘not a move towards an inquisitorial system’ because it would remain for each party to assemble its own evidence.146 However, the SCTS report accepted, more realistically in my view, that this ‘would move the concept of the trial further away from the traditional adversarial approach . . . and closer to methods deployed successfully to record what is regarded as evidence in inquisitorial systems’.147 Be that as it may, Lord Carloway’s and the SCTS’s advocacy for this new approach is clearly motivated by considerations of efficiency and cost rather than any theoretical considerations, because their primary argument is that the use of pre-­recorded witness testimony and firm judicial management would increase the number of early guilty pleas, reduce the number of ‘cracked’ trials, prevent inconvenience to witnesses, render less problematic the non-­appearance of accused (their account already being on record), and make the courts far more accessible to all kinds of ‘relevant’ evidence.148 139 140 141 142 143 144 145 146 147 148

Ibid para 74. Ibid part A. Ibid para 21. Ibid para 23. Ibid para 20. Lord Carloway, ‘Scots criminal evidence and procedure’ (n 122) at 17. SCTS, Evidence and Procedure Review (n 120) para 4.1. Lord Carloway, ‘Scots criminal evidence and procedure (n 122) at 18. SCTS, Evidence and Procedure Review (n 120) para 4.1. Lord Carloway, ‘Scots criminal evidence and procedure’ (n 122) at 17–19. See also SCTS, Evidence and Procedure Review (n 120) ch 4.

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C. CONCLUSION In this essay, I have argued that a variety of factors, both old and new, and the complex interplay between them have contributed to the current period of flux in Scottish criminal evidence. It is certainly clear that several new pressures have emerged over recent years, including the increased emphasis on victim/witness rights and, of course, the hugely increased importance attached to the European Convention on Human Rights (ECHR). Scottish commentators have already recognised the impact of these two influences, both on the criminal justice system as a whole and on the law of criminal evidence in particular. In this piece, I have identified, somewhat tentatively, two further factors which have emerged over recent years, namely that of politicisation and managerialism. These further complicate any attempt to predict the future shape of criminal evidence in Scotland. By its very nature, it is difficult to forecast the impact of politicisation because one can never be sure what cases or issues will catch media, public and political attention. As I have shown, the impact of the ‘World’s End’ case was considerable but one could plausibly argue that if the trial judge had not controversially ruled that there was no case to answer at the end of the prosecution case, the double jeopardy rule would not have been abolished nor would there be any question of the accused’s previous convictions being rendered admissible as evidence in court. Many commentators did predict the Cadder judgment, because it was clear that the Scottish law governing the interrogation of suspects by the police meant that the use of any subsequent confession as evidence against the accused might well be argued to be a breach of the ECHR. However, it was not evident that this would lead to a review of the requirement of corroboration, far less an attempt by the Scottish Government to abolish this rule. On the other hand, the impact of managerialism, while perhaps harder to spot, is easier, in broad terms, to predict: an active judiciary taking more control over cases; more pre-­trial agreement of evidence; the increased use of technology; the abolition or major qualification of the hearsay rule; a reduced number of witnesses being required to attend court; the increased importance of the pre-­trial process; and a corresponding decrease in the significance attached to the trial. Nevertheless, while a broad direction of travel might be relatively easy to forecast, it is almost impossible to predict the precise path that will be taken to meet the demands of managerialism. It is clear that the traditional adversarial culture which permeates the Scottish criminal process will remain influential but also that it will increasingly come under pressure, particularly from the new managerialist ethos.149 149

Thus, to an extent I agree with the prognosis of McEwan, ‘From adversarialism to managerialism’ (n 8) but I suspect that adversarial culture is so well rooted that it will be more resistant to change than McEwan suggests. Unfortunately, I do not have the space here to explore this issue further.

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Index

‘access to justice’, 4, 5, 6, 41–66, 69, 89; see also appeals; complainers; COPFS; corroboration; public interest; victims accused absent, 220app, 246 character of, 7–8, 97–9, 106, 108–10, 118–20 co-accused, 8, 106 confessions, 3, 9, 33, 176n, 247 identification of, 10, 12, 139, 143, 146n, 147–9, 152–3, 159–60, 210, 218app impact of corroboration on, 4–5, 43, 51n, 53, 54, 55, 57n, 136 incrimination of, 22, 25, 135–7, 149, 240 innocent, 101n, 110, 129, 159, 231 participation of, 225 pre-existing relationship with, 71, 74–5, 84, 88 previous convictions of, 7, 8, 80, 98–103, 105–9, 229, 247 right to examine witnesses, 77, 134–6, 195, 220app, 240 rights and interests of, 3, 14, 17, 33, 39–40, 74, 75n, 129, 134, 173, 188–9, 193, 231, 240, 242 verdicts, 69n,72 see also appeals; cross-examination; demeanour; disclosure of evidence; expert psychiatric/psychological evidence; investigation; legal advice/ assistance; legal representation; propensity evidence; suspects; vulnerability acquittals judicial directions on, 154 rates for rape/sexual assault, 69 weak identification evidence, 11 wrongful/unjustified, 48–9, 52 see also double jeopardy; similar fact evidence; ‘World’s End’ murders actus reus corroboration requirement, 43 admissibility bad character evidence, 7, 8, 101, 104, 120 expert evidence, 12, 163, 164, 166, 167, 192

false complaints, 77–8 hearsay evidence, 10, 124, 127–38, 197, 245 identification evidence, 148 illegally obtained evidence, 131 police interviews, 27, 31, 37 sexual history evidence, 75, 195, 219app similar fact evidence, 8, 9, 97, 104, 114, 115, 119, 120, 229 see also confession evidence adversarial complainers of sexual offences/domestic abuse, 6, 58, 62, 68, 94 disclosure, 242 impact on criminal procedure, 226–7, 235–8, 245–7 importance of cross-examination, 155 police questioning/investigatory stage, 2–3, 4, 22–3 ‘rape shield’ provisions, 73 treatment of expert evidence, 11–13, 173, 185, 191 treatment of hearsay evidence, 9 treatment of similar fact evidence, 8, 229 weight given to eyewitness testimony, 153 see also judges/judiciary; prosecution appeals Crown, 15, 227–8 expert evidence in personal injury cases, 165–6 expert psychological evidence, 10–12, 165, 166n, 168 hearsay evidence, 124n, 134–5, 136, 137 identification of accused, 139, 141n, 143, 144, 146, 147, 150, 151, 152, 155, 156, 158, 160 impact of corroboration on, 45–6, 55 police questioning/Cadder, 20–2, 26–7, 35, 39n, 230 procedure, 195, 202n, 214, 217, 221 sexual history evidence, 74, 76, 77, 79 similar fact evidence, 112, 116, 117, 119, 120 see also ‘no case to answer’; convictions; judges/judiciary; SLC; solemn cases; sufficiency of evidence

­268

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Australia Australian Law Reform Commission, 113–14, 156, 158 expert evidence, 156, 164, 175 hearsay evidence, 127n identification evidence, 143, 158 similar fact/propensity evidence, 113, 116–18 special measures, 92–3 best evidence rule dock identification, 143 hearsay evidence, 10, 125n, 127, 132–4, 137–8 witness testimony, 63, 82, 93, 133 see also oral evidence; witnesses Bonomy Reports The 2002 Review of the Practices and Procedure of the High Court, 210–11, 220app, 238 The Post-Corroboration Safeguards Review, 10–11, 41–2, 58n, 64, 140, 147, 196, 200, 210, 222app, 233–4 see also confession evidence; corroboration; miscarriage of justice Bowen Report Independent Review of Sheriff and Jury Procedure (Bowen Review), 211, 221app burden/standard of proof, 129, 173 Canada expert evidence test, 164–5n ‘rape shield’ provisions, 67 warning juries on identification evidence, 158 caution, 20, 37, 39, 77, 171n CCTV documentary evidence, 240 identification issues, 139n investigatory tools, 28, 161 measures for vulnerable witnesses (live link), 6, 7, 90–2, 244; see also special measures character evidence see similar fact evidence; propensity evidence admissibility, 7–8, 58, 97, 197 bad, 7–8, 75, 101, 104, 106, 107n, 110–12, 115, 117, 120, 228 good, 8, 106 reform proposals, 106–8, 197, 216, 222app, 228 see also admissibility; civil law; corroboration; credibility; England and Wales; fact-finding/fact-finder; fairness; fair trial; intention; judges; jurors/jury; motive; New Zealand; USA; victims; witnesses

children corroboration in child abuse cases, 44 credibility/reliability of child witnesses, 12, 175, 178 evidence of prior child statements, 132, 172, 197, 245 expert psychological evidence, 12, 166n, 172 law reform projects, 219app, 223app similar fact evidence in child sex offences, 108, 109n, 110n, 114, 116 special measures for, 91, 95 vulnerable witness definition, 21, 83, 90 see also vulnerable witnesses ‘churn’, 236, 244, 246 circumstantial evidence, 27, 55, 113 civil law character evidence, 97 corroboration, 128, 196n, 212, 214, 244 expert witnesses, 166 general rules of evidence in, 173 hearsay evidence in, 9–10, 126n, 128–9, 131–3, 138, 244 remedies for sexual offence complainers, 62 see also domestic abuse common enterprise exception to general rule against hearsay, 125 common law assessment of credibility/reliability, 169 bad character/similar fact evidence, 108, 112, 115, 117, 119, 120 exceptions to hearsay rule, 125–6, 134 jurisdictions, 18, 67, 108, 138, 224–5, 229, 236n sexual history evidence, 77–8 complainers access to justice of, 5, 6, 41–66, 67 character evidence of, 6–7, 8n, 71–7, 97, 106–7 domestic abuse, 5, 42, 43, 44, 49, 51, 54, 56, 57, 58, 59, 60, 64, 65, 66 meaning of, 41, 67 Moorov doctrine/similar fact evidence, 8, 44, 103n myths, 71 participation of, 43, 59, 60, 61, 63, 93, 225 psychological evidence of, 171n, 172 right to be heard, 5, 59–60 right to examine, 134, 135, 227 right to privacy and dignity, 58n, 67, 74, 75n, 88–9 right to review prosecution decisions, 222app rights and interests of, 15, 67, 74, 88, 222app



Index

secondary victimisation of, 67, 80, 82 sexual offences, 5, 6, 41–66, 67–97, 172, 219app, 220app, 222app, 227, 231, 243n special measures for, 82, 91, 93, 95 see also adversarial; balancing rights; criminal justice process/system; cross-examination; demeanour; disclosure of evidence; England and Wales; ECHR expert psychiatric/ psychological evidence; human rights; investigation; Justice Committee; legal aid; legal representation; mental illness/disorder; propensity evidence; sexual history evidence; victim support groups; victims confession evidence admissibility, 2, 3, 4, 19, 32–4, 211, 230–2 Bonomy Committee on miscarriages of justice/false or fabricated, 140 by someone other than the accused, 176n exception to rule against hearsay, 9, 125, 131 false confessions, 33–4, 140 impact of Cadder on, 247 importance of, 32–3, 161 privilege against self-incrimination, 33 special knowledge, 33–5 see also accused; balancing rights; Carloway Review; convictions; corroboration; criminal justice process/system; disability; fairness; forensic science; investigation; jurors/jury; mental illness/disorder; miscarriage of justice; perpetrator; police interrogation; reliability; Royal Commission on Criminal Justice; USA consent corroboration, 44n, 70–1 mistaken belief in, 72–3 use of sexual history evidence to establish, 72, 74, 76 see also corroboration; police interrogation convictions, 214, 236 appeals against, 22, 27, 134 based on hearsay evidence, 135, 137 corroboration, 42n, 43–58, 63–5, 154, 196, 231, 232 erroneous, 129, 154 eyewitness identification, 11, 140, 144, 147, 149, 150, 154, 157, 158, 159, 160 impact of Cadder on, 4, 26

­269

previous, 7, 8, 78, 80, 104, 106–12, 115, 116, 151, 221app, 228, 229, 247 public interest in, 23 quashing of, 33, 55, 134, 147, 150, 154, 155, 160 unjust, 173 unsafe, 189 wrongful, 14, 119, 140, 144, 149, 159, 161n, 196, 212, 217, 233 see also ‘rape shield’; accused; crossexamination; disclosure of evidence; domestic abuse; England and Wales; New Zealand; offender; perpetrator; propensity evidence; suspects corroboration abolition of, 4, 5, 6, 16, 39, 41–66, 140, 159, 201, 202, 208, 212, 214, 218app, 221–2app, 229–34 confessions, 3, 4, 33, 34 consent, 44n, 55, 70–1 distress, 44, 55 eyewitness identification, 140, 143, 159, 173 hearsay evidence, 134, 135, 136 meaning of, 4, 43–4 154 mutual corroboration, 44, 101, 103 post-abolition safeguards, 10, 29, 40, 41–2, 54, 64, 140, 196, 200 sexual offences/witness credibility, 71 see also ‘access to justice’; accused; actus reus; appeals; balancing rights; Bonomy Reports; Carloway Review; children; civil law; common law; consent; convictions; Criminal Justice (Scotland) Bill; COPFS; domestic abuse; England and Wales; fact-finding/fact-finder; fairness; investigation; judges/judiciary; jurors/jury; Justice Committee; Justice Minister; Justice Secretary; legal practitioners/profession; mens rea; miscarriage of justice; perpetrator; police interview/ questioning; propensity evidence; prosecution; prosecutors; Royal Commission on Criminal Justice; Scottish Government; SLC; Scottish Parliament; similar fact evidence; solemn cases; sufficiency of evidence; suspects; verdict; victim support groups; witnesses counsel admissibility of expert evidence, 164 duty to the court, 239 impact of corroboration on defence, 58 use of sexual history evidence, 75 warnings on witness credibility/ reliability, 190

­270

Scottish criminal evidence law

credibility character evidence, 106, 107 distinction from reliability, 13, 167–74 hearsay evidence, 121, 134, 137 myths, 53, 57, 71 sexual offence trials, 6, 57, 58, 71–8, 94 special measures, 92, 94 see also children; defence lawyers; demeanour; common law; corroboration; counsel; expert psychiatric/psychological evidence; fact-finding/fact-finder; jurors/jury; principle of orality; reliability; USA; victims; witnesses criminal justice process/system balancing rights and interests, 19, 45 confessions/legal advice, 3, 230 corroboration requirement, 61–5, 212, 230 efficiency of, 16, 234, 244, 246 ‘human rights revolution’, 225 investigative stage, 20, 21, 25, 27, 40 legal aid, 191 modernisation of, 41, 46, 91n, 161 nature of, 236–7, 247 Packer’s models, 23, 234 ‘participative’ model of, 225 plea bargaining and sentence discounting, 16 pressures impacting on, 247 ‘rape shield’ provisions, 67–8 Scots law reform projects within, 216, 218app treatment of complainers, 6, 7, 43, 51–67, 82, 90, 91, 94–6 treatment of vulnerability, 68, 69, 80, 86, 94 values of, 173 witness testimony, 91n, 161–2, 190 Criminal Justice (Scotland) Bill corroboration, 42, 50, 51, 64, 233 detention period, 28 independent legal representation, 82 criminal trials efficiency of, 236 expert psychological evidence in, 13 fact-finders, 121 hearsay evidence in, 9, 138 reform of, 243 sexual history evidence in, 68, 75 similar fact evidence in, 98 witnesses, 17, 88 cross-examination judicial warning on, 163, 189 limits to, 243 of accused on previous convictions/bad character, 106 of psychological experts, 13, 155

of sexual offence complainers, 67, 71, 76, 77, 94, 195, 220app, 227 of vulnerable witnesses, 17, 82, 91n, 92, 94, 197, 223app, 245 on eyewitness testimony, 146, 148, 155–6, 178, 191 right to, 127, 134–6, 240, 244 truth-finding tool, 155 see also ECHR; human rights; Scottish Executive; adversarial Crown Office and Procurator Fiscal Service (COPFS) access to justice, 52 impact of Cadder on, 26, 39, 230 treatment of s2 75 applications, 81 treatment of vulnerable witnesses, 90, 95 see also Police; prosecution; prosecutors defence lawyers advice given prior to police interview, 30 increased involvement of, 234 reliance on sexual history evidence, 94 uncontroversial evidence, 239 see also legal aid demeanour assessment of witness credibility/ reliability, 127, 130–1, 135, 168n, 169, 174, 175, 182, 185 juror assessment of character of accused, 111 myths of sexual offence complainers, 71n detention ECHR compatibility, 18, 21, 38, 39–40 evolution in Scots law, 20, 21, 22–4 impact of Cadder, 18–30, 38, 195–6, 230 period, 28–29 status of, 3, 19, 21–2, 25, 27, 231 see also Criminal Justice (Scotland) Bill; England and Wales; human rights; police interview/questioning; Thomson Committee disability false confessions, 34 protected characteristics in hate crime legislation, 86 vulnerability, 83–4 witnesses with learning difficulties, 87, 89, 95 disclosure of evidence confidential records of complainer, 60, 88 Disclosure Manual, 243 managerialism, 16, 241–3 previous convictions of accused, 80 Scots position/Crown duty, 88, 173, 241–3



Index

see also adversarial; Carloway Review; Coulsfield Report; England and Wales; ECHR; fair trial; human rights; interests of justice; investigation; Justice Minister; pretrial hearings; Privy Council; public interest; Scottish Government; witnesses DNA evidence, 15, 17, 28, 110, 139, 164, 170, 219app demonstrating misidentification, 144, 146n, 155, 161n new and compelling, 229 right to take samples, 22 see also SLC dock identification jury directions, 148–9 meaning of, 10–11 reform proposals, 152–3, 159–60 Scottish position, 143, 148 see also best evidence rule; eyewitness identification; human rights; Ireland; Supreme Court; Thomson Committee documentary evidence agreement of uncontroversial evidence, 238, 240 rule against hearsay, 133 see also SLC; CCTV domestic abuse, 222app civil protection orders, 63 conviction rates, 43, 46, 50–8, 65 corroboration, 4, 5n, 6, 41–66, 232 independent legal representation, 60 legal status of, 44n, 46–7n, 56n previous convictions, 80 restorative justice, 62–63 specialist courts, 58, 63 vulnerable witnesses, 83 see also ‘access to justice’; adversarial; complainers; Justice Committee; Scottish Government; Scottish Ministers double jeopardy admissibility of previous acquittals, 101 Double Jeopardy (Scotland) Act 2011, 221app, 228 ‘World’s End’ murders, 15, 17, 227–8, 247 see also interests of justice; jurors/jury; SLC England and Wales admission of expert evidence, 164, 166, 171 corroboration, 53 detention period, 2 disclosure, 241n

­271

exclusion of identification evidence, 11, 153–4, 158 eyewitness identification procedures, 141n, 143, 146–9, 150–1, 153 independent legal representation for complainers, 80 jury system, 211–12 Law Commission, 205, 207, 213n law of hearsay, 9, 125, 136 legal representation at police station, 27 managerialism, 235 rape attrition rates, 59 rape conviction rates, 53 ‘rape shield’ provisions, 67 research on sexual assault victims, 87 sexual history evidence research, 95 similar fact/propensity/character evidence, 97–100, 101, 110n, 115–17, 120 special measures, 89, 91–2 use of confidential records of complainer, 88 English Criminal Law Revision Commission, 144 equality of arms, 30, 242 European Convention on Human Rights (ECHR) access to legal assistance/advice, 3–4, 195–6, 230, 247 cross-examination, 134–5, 244 disclosure of evidence, 16, 242 hearsay evidence, 10, 131, 134–5, 137 identification procedures, 147, 149 impact on the criminal justice system, 15, 17, 224, 247 independent legal representation for complainers, 60, 88fn ‘rape shield’ provisions, 74 see also ECtHR; human rights; police interrogation; police interview/ questioning; uncontroversial evidence; detention European Court of Human Rights (ECtHR) balancing fair trial rights, 75 Bryden Report, 210, 218app Devlin Report, 152–3,154, 155 dock identification, 11, 143, 148–9, 152–3, 160 expert psychological evidence on, 10, 154–7, 160 eyewitness identification hearsay evidence, 135–7 identification (ID) parades, 141, 144, 147–53, 159, 210, 218app misidentification, 11, 140, 144, 145–7, 149, 174, 161

­272

Scottish criminal evidence law

European Court of Human Rights (ECtHR) (cont.) police evidence on prior identification, 122 positive identification, 141, 143, 149, 157, 159, 160 ‘rape shield’ provisions, 75 reform proposals, 11, 140, 149–52, 153, 154, 158–60 right to legal assistance/advice, 38 Scots position on, 10–11, 139–43, 147–9, 152, 154 VIPER parades, 141, 142, 150, 151, 178 see also Canada; convictions; corroboration; ECHR; England and Wales; human rights; Lord Advocate; miscarriage of justice; reliability; USA expert psychiatric/psychological evidence alternatives to, 189–91 battle of the expert, 13, 163, 187 behaviour of complainer, 78, 172–3, 226 benefit of, 185–7 credibility and reliability of witnesses, 12–13, 78, 155–6, 162–93 dangers of, 187–9 exception to rule against hearsay, 125 Scots admissibility test, 10, 12–13, 162–72, 192 susceptibility of accused to pressure in questioning, 33, 35 see also Australia; balancing rights; Canada; children; civil law; counsel; criminal trials; cross-examination; defence lawyers; diminished responsibility; England and Wales; eyewitness identification; fact-finding/ fact-finder; judges/judiciary; jurors/ jury; mental illness/disorder; police interview/questioning; principle of orality; reliability; sufficiency of evidence; Supreme Court; USA; victims; witnesses fact-finding/fact-finder aim of ‘rape shield’ provisions, 67 assessment of bad character evidence, 106, 112 assessment of hearsay evidence, 121, 129–30, 132, 138 assessment of witness credibility/ reliability, 162–5, 167, 169, 174–5, 176n, 179–81, 184–8, 190–3 reform to improve quality of, 215 treatment of corroboration, 53 use of expert evidence to assist, 13, 170, 184–8, 190–3 see also criminal trials; special measures

fair trial disclosure of evidence, 242 hearsay evidence, 131, 134–6 police questioning/right to legal advice, 18, 20, 23, 31, 37, 40 sexual history evidence, 74–5 similar fact/propensity/character evidence, 118 see also European Court of Human Rights (ECtHR) fairness corroboration, 211 hearsay evidence, 131, 134, 135 identification, 11, 142, 148, 150, 151, 154, 159, 211 police questioning/confessions, 33, 36, 39, 40, 137n similar fact/bad character evidence, 115–18 special measures, 92n see also public interest fingerprint evidence, 139, 170 fiscal fines, 235 fixed penalties, 235 forensic science confessions, 33, 35, 140 courts’ treatment of, 12–13, 156, 171–2, 181, 187 forensic evidence of crime, 119, 135, 161, 170 fruit of the poisonous tree, 3, 19, 35; see also police interrogation; police interview/questioning gender imbalance of judges, 79 stereotypes, 7, 72, 86, 88 transgender identity, 86 vulnerability, 85–6 witness lack of confidence, 177 guilty pleas increase in, 16, 214, 241, 246 online submission of, 197, 223app sentence discounting, 220app, 235, 241 uncontroversial evidence, 240 hearsay evidence exceptions to general rule, 9, 122, 124–7, 130 general rule against, 9–10, 104, 121–4, 138 grounds for objection, 130–8 miscarriage of justice, 140 primary hearsay, 121, 130n reform proposals, 9, 123–4, 126–38, 195, 197, 200n, 202n, 219app, 244–5, 247 secondary hearsay, 121–2



Index

see also admissibility; adversarial; appeals; Australia; balancing rights; best evidence rule; Carloway Review; civil law; common enterprise; common law; confession evidence; convictions; corroboration; credibility; criminal trials; documentary evidence; England and Wales; expert psychiatric/ psychological evidence; ECHR; ECtHR; fact-finding/fact-finder; fairness; fair trial; Hong Kong; human rights; incrimination; interests of justice; Ireland; judges/judiciary; jurors/jury; oath; oral evidence; relevance; reliability; SLC; Supreme Court; witnesses Hong Kong Hong Kong Law Commission, 125 law of hearsay, 9, 125–6 human rights Cadder, 2–4, 18, 20, 195–6, 230 disclosure, 16, 242 dock identification, 149 hearsay, 131, 135, 137 identification parades, 147 incorporation into Scots law, 17, 224–7, 234, 242, 243, 247 legal representation for complainers, 60 pre-trial detention and interrogation, 21 right to confrontation, 10, 134 right to cross-examination, 127, 155n, 240, 244 right to representation, 195 sexual history evidence, 74–5 uncontroversial evidence, 239–40 victims, 15 see also criminal justice process/system; ECHR; ECtHR incrimination hearsay evidence, 136–7 privilege against self-incrimination, 22, 25, 31–9, 149 special defence, 135 see also accused inquisitorial Evidence and Procedure Review, 91n, 246 role of judge, 238 Scotland, 235–6 usefulness of model for analysis, 225, 235 intention use of similar fact/character evidence to establish, 98–9, 103n, 118 interests of justice admission of hearsay evidence, 125 disclosure of propensity evidence, 118

­273

double jeopardy criterion, 228 right to legal assistance, 18 investigation Carloway Review, 46n, 196, 221app corroboration requirement, 43, 53 Criminal Justice (Scotland) Act 2016, 29 false confessions during, 34 impact of disclosure on, 243 importance of witness reports, 161 of sexual offences, 67 period, 28 rights of accused at preliminary stages of, 19–21, 24, 36 role of complainers in, 61–2 Ireland dock identification, 143 jury directions on eyewitness evidence, 158 law of hearsay, 9, 216 Law Reform Commission of Ireland, 216 judges/judiciary adversarial jurisdictions, 11 appealing decisions of, 15, 227–8, 247 assessment of hearsay, 9, 130, 134, 135, 137 assessment of witnesses, 48, 94, 189–92 case management, 16, 236–7, 245–7 involvement in proceedings, 237–40 measuring success of law reform, 217 opinion on character evidence, 110n, 111 opinion on special measures, 91–2 position on sexual history evidence, 74, 79–80 reluctance to use special measures, 7, 84, 92 reviews by, 3–4, 13, 16–17, 200, 202, 205n, 206, 214, 233, 242 traditional role of, 22 treatment of corroboration, 49n, 53 treatment of expert evidence, 164, 171–2, 185, 192 treatment of identification evidence, 11, 143, 145, 146, 148–51, 153–60 treatment of similar fact evidence, 9, 100, 102, 105, 107, 107–8n, 112, 116–19, 121 use of lay judges, 210–12, 220app see also gender; inquisitorial jurors/jury assessment of witness credibility/ reliability, 11–13, 32–3, 48, 94, 155–60, 162–5, 168–70, 171n, 173–4, 180n, 185, 187, 191, 192 confession evidence, 33 corroboration, 48, 49n

­274

Scottish criminal evidence law

jurors/jury (cont.) directions, 134–5, 137, 148–50, 157–60, 163 191, 203, 222app double jeopardy criterion, 228–29 identification evidence, 11, 143, 145–6, 148–50, 153–5, 157–60, 218n impact of expert evidence on, 167, 186n, 189n impact of sexual history evidence on, 6, 71–3, 79 impact of similar fact/character evidence on, 8, 15–16, 98, 100, 105–8, 110, 111, 118 impact of special measures on, 92 majority verdict, 42n, 43n, 65, 212, 218app mock juries, 72, 92, 156, 158n, 186n, 188 research on, 72, 196, 204, 221app review of, 210–12, 218app, 221app, 222app, 240 size of, 210, 212, 218app statements read to, 238, 246 treatment of hearsay evidence, 9, 127, 130, 134–5, 137 use of, 211–12, 221app see also Bowen Report; demeanour; dock identification; England and Wales; Ireland; New Zealand; Scottish Ministers; solemn cases; Thomson Committee; verdict legal advice/assistance effect on number of waivers, 32 identification procedures, 150, 159 importance of, 30, 31, 37, 38, 40, 230 right to, 2, 3, 4, 9, 20, 25, 28, 29, 36, 38, 40, 195, 196, 218app, 221app, 230 see also criminal justice process/system; ECHR; ECtHR; fair trial; interests of justice; legal representation; police interrogation; police interview/ questioning; USA legal aid, 51, 60n complainers, 60, 80–1, 88n defence lawyers, 191 reform and cut-backs, 237, 242–3 Scottish Legal Aid Board, 60 see also criminal justice process/system; Scottish Ministers legal practitioners/profession corroboration abolition, 42, 49, 52–3, 65, 232 Evidence and Procedure Review, 202 identification of vulnerable witnesses, 7, 84, 89n, 96 input into law reform reviews, 200, 202, 205n

opinion on case management, 237 opinion on special measures, 84 perspective on identification procedures, 149 perspective on Scots criminal evidence law, 224, 245 perspective on sexual history evidence, 76–7 privilege, 104 legal representation complainer’s right to, 6, 60, 80, 81, 82 suspect/accused’s right to, 38, 173 waiving right to, 19 see also Criminal Justice (Scotland) Bill; domestic abuse; England and Wales; ECHR; human rights; Justice Committee; legal Advice/ assistance ‘managerialism’ concept, 16, 225, 234–5 influence on Scots criminal evidence law, 226–7, 235, 237, 247 see also disclosure of evidence; England and Wales; Scottish Government mens rea corroboration requirement, 43, 55 rape, 55 use of similar fact evidence to demonstrate, 98 mental illness/disorder expert evidence on, 12, 162, 171 false confessions, 34 sexual assault complainers, 87–8 vulnerable witnesses, 21n, 83, 89–90, 93, 95 miscarriage of justice Bonomy Committee, 140 confessions, 178n corroboration, 5, 44, 46, 48, 49, 50, 52, 53, 64, 231 eyewitness identification, 11, 144, 152, 161, 174, 191n failure to detect witness perjury, 162 similar fact evidence, 113 see also hearsay evidence Moorov doctrine application of, 194n concept, 8, 44, 97, 101–2 limitation of, 102–3 reform proposals, 17, 103–8, 120, 208, 211, 222app, 228 relationship with similar fact evidence, 101–3, 116, 120 see also accused; complainers; SLC; similar fact evidence; witnesses motive admissibility of evidence of, 110



Index character evidence to establish, 99–100, 114, 118 use of similar fact/character evidence to establish, 103

New Zealand jury perception of previous convictions, 110n law reform process, 215 New Zealand Law Commission, 112, 215 similar fact/character/propensity evidence, 112, 117–18, 120 special measures, 93 ‘no case to answer’ concept, 154 Crown right of appeal against, 227–8 introduction of submission, 218app ‘World’s End’ murders, 104, 227, 247 see also accused oath admissibility of evidence without, 124, 127, 135 objection to hearsay evidence, 130, 134n see also reliability oral evidence best evidence rule, 132–3 definition of hearsay, 122, 125 see also principle of orality Packer’s models due process, 2, 23–4, 224, 234 crime control, 2, 3, 23, 234 see also criminal justice process/system ‘penal populism’, 6, 15, 17, 41, 65, 225–7, 230, 234 plea bargaining, 16, 235; see also criminal justice process/system Police offer of solicitor access prior to interview, 30 referrals to COPFS, 57 reported rape, 57n treatment of victims, 90 police custody, 2, 21, 22n, 28, 29, 30, 32, 36, 37, 38, 46n police interrogation admissibility of confessions during, 2, 247 consent to process, 30n ECHR, 20–1 false confessions during, 34 fruit of the poisonous tree, 36 legal assistance, 4, 21, 30 purpose of, 24 police interview/questioning caution, 37–8

­275

confessions, 34, 171 consultation with a solicitor, 3, 18, 20, 24, 28–30, 45, 230 corroboration, 4, 47 Criminal Justice (Scotland) Act 2016, 2, 29, 32 ECHR approach, 3 expert evidence on, 171–2 fruit of the poisonous tree, 35–6 impact of Cadder on, 18, 24, 230 legal advice on, 2, 9 pre-recorded witnesses, 7, 92, 93 significance of, 25–7, 39, 40 status of detention, 21 unfair and oppressive, 173 waiving of rights in, 30–1 see also admissibility; adversarial; appeals; balancing rights; Carloway Review; defence lawyers; fair trial; fairness; intoxication; SCCRC; sufficiency of evidence; Supreme Court; suspects; verdict pre-recorded interviews, 7, 91, 92, 93, 197, 223app, 244–6; see also police interview/questioning; solemn cases; special measures pre-trial hearings agreement of uncontroversial evidence, 16, 236–40 disclosure, 16, 241 identification evidence, 150, 159 increase of, 16 see also accused; principle of immediacy; principle of orality principle of immediacy pre-trial agreement of uncontroversial evidence, 238 principle of orality pre-trial agreement of uncontroversial evidence, 238 prohibition of expert witness testimony, 173 witness credibility/reliability, 169 see also oral evidence procedural justice, 6, 43, 52, 58–62, 65 propensity evidence character of accused, 99, 100n, 110n false complaints by sexual offence complainer, 77 impact of corroboration on, 119 judicial discretion on, 118 previous convictions of accused, 107, 109 see also Australia; character evidence; England and Wales; interests of justice; New Zealand; similar fact evidence; USA

­276

Scottish criminal evidence law

prosecution abandonment of, 2, 5, 15, 16, 26, 230 alternatives to, 220app, 235, 236 Crown Prosecution Service (CPS), 89 duty to agree uncontroversial evidence, 153, 237 duty to disclose evidence, 195, 241–3 efficiency of, 240 impact of Cadder on, 16, 26, 39 impact of corroboration on, 48, 49, 54, 55, 56, 57, 60, 61, 63, 231 limits on adversarial stance of, 173 of crime, 43, 50, 52 rates, 5, 42, 46, 55, 56, 57, 87 right to review, 222app witnesses, 162, 174, 185, 188, 189n see also complainers; COPFS; domestic abuse; double jeopardy; Justice Committee; procedural justice; prosecutors Public Defence Solicitors’ Office, 237 public interest access to justice, 52, 61n balancing rights/interests, 2, 4, 19, 24–5, 39–40, 240 Crown justification for non-disclosure, 243 fairness and truth-finding, 36 purpose of criminal proceedings, 129 see also convictions ‘rape shield’ admissibility of previous convictions, 8n aim of, 67 concept, 6–7, 67 data, 76 effectiveness of, 67–8, 73, 79 Scots law position, 73, 76 see also adversarial; Canada; criminal justice process/system; England and Wales; ECHR; ECtHR; fact-finding/ fact-finder; Privy Council; Scottish Executive; sexual history evidence real evidence, 22, 110, 240 relevance exclusionary rule of evidence, 131–2 hearsay evidence, 132 sexual history evidence, 76, 79 similar fact evidence, 8, 97, 101, 229 reliability confessions, 33 distinction from credibility, 13, 167–74 eyewitness identification, 10–12, 139n, 153, 155–6, 158 hearsay evidence, 121, 126–8, 138 sexual offence trials, 75

taking of oath or affirmation, 130 see also children; common law; counsel; credibility; defence lawyers; demeanour; expert psychiatric/ psychological evidence; fact-finding/ fact-finder; jurors/jury; principle of orality; victims; vulnerability; witnesses res gestae, 122, 125, 126, 129, 130 right to confrontation, 10, 127, 134; see also human rights right to silence advice from solicitors, 30 bodily samples, 22 objection to uncontroversial evidence, 239–40 review of law on, 231, 239–40 Scots law principle, 22, 173 see also Carloway Review Royal Commission on Criminal Justice corroboration rules, 53 false confessions, 34 Scottish Law Commission (SLC) agreement of uncontroversial evidence, 237 corroboration debate, 44 impact on legislation, 1, 199, 217 law reform process, 14–15, 197–9, 201–2, 204–11, 213–17, 218–22app, 228 project selection process, 203–9, 216–17 search warrant, 37 sentence discounting, 16, 220app, 235–6, 241 life sentence, 15, 213n, 228 sentencing policy, 227 sentencing power, 211 see also criminal justice process/system; guilty pleas sexual history evidence complainer, 6, 7, 58, 59n, 67–82, 94, 96, 219app, 220app devolution issue, 74 research on, 96 Scots approach, 73–6, 219app see also admissibility; common law; consent; counsel; criminal trials; defence lawyers; England and Wales; fair trial; human rights; judges/judiciary; jurors/jury; legal practitioners/profession; offender; ‘rape shield’; relevance; Scottish Parliament; Sheriff Court Sheriff Court first diets, 236n position in Scotland, 81n



Index

sexual history evidence applications, 81 statement of uncontroversial evidence, 239 similar fact evidence interaction with corroboration, 8, 44, 101, 103, 107, 108, 116, 119–20 previous acquittals, 101, 103 reform proposals on admissibility of, 7–9, 15–17, 103–11, 116–20, 208, 211, 228–9 relationship with Moorov doctrine, 101–3, 116, 120 Scotland, 97–9 ‘World’s End’ murders, 15–16, 103–4 see also admissibility; adversarial; Australia; character evidence; children; common law; complainers; criminal trials; England and Wales; fairness; fair trial; intention; judges/ judiciary; jurors/jury; Justice Secretary; mens rea; miscarriage of justice; Moorov doctrine; motive; New Zealand; Privy Council; propensity evidence; prosecutors; relevance; Scottish Government; SLC; Scottish Parliament; sufficiency of evidence; USA; victims social framework evidence, 12, 13, 165–7, 173, 192 special measures, 7, 58, 82, 84, 89–95 closed court, 91 evidence by a commissioner, 91, 244 impact of video evidence on fact-finders, 182 purpose of, 82–3 screens, 82, 91, 92 see also Australia; balancing rights; CCTV; children; complainers; credibility; England and Wales; fairness; judges/judiciary; jurors/ jury; legal practitioners/profession; New Zealand; prosecutors; Scottish Ministers; vulnerable witnesses substantive justice, 6, 16, 69, 94 sufficiency of evidence corroboration, 48, 55, 56, 154 Crown appeals, 228 expert psychological evidence, 12–13, 181, 185, 189 police questioning, 2, 21, 26–7, 29 similar fact evidence, 97, 105 suspects corroboration of, 47 identification of, 141, 142, 143, 146, 148, 150, 151, 159, 162, 177, 180 police questioning of, 2, 3, 4, 16, 18–40, 173, 195, 196, 218app, 230, 231, 247

­277 previous convictions of, 100n right to telephone consultation, 30 vulnerable, 30, 95n see also accused; legal representation; vulnerability; witnesses

uncontroversial evidence defence challenge to, 238–40 duty to agree, 16, 236–7, 239 statement of, 153, 237–8, 239 see also defence lawyers; documentary evidence; guilty pleas; human rights, pre-trial hearings, principle of immediacy, principle of orality, prosecution, right to silence, SLC, Sheriff Court United States (USA) expert witnesses, 11, 156–7, 164, 187–8 eyewitness identification procedures, 147, 151 eyewitness misidentification, 144, 146, 154–5 identification evidence, 11, 141n, 153 research on confession evidence, 33–4 right to examine, 134 similar fact/character/propensity evidence, 114, 116 United States’ National Research Council (NRC), 143n, 144, 151, 152n, 156 US Supreme Court, 153, 156 waiving right to legal advice, 30n, 32 witness credibility, 174 verdict impact of abolition of corroboration, 48 impact of police interview on, 26–7 jury research methods, 179 not proven, 42n, 65, 69, 204, 212, 218n sexual offences, 69, 72, 92 simple majority, 43n, 65, 212, 218n see also accused; jurors/jury; Justice Committee; Justice Secretary Victim Information and Advice (VIA), 90 Victim Support identifying vulnerable witnesses, 89–90 joint protocol on treatment of victims, 90 see also victims; victim support groups victim support groups opinion on abolition of corroboration, 52–3, 82, 232, 233n sexual assault complainers’ experiences, 95 see also victims; Victim Support

­278

Scottish criminal evidence law

victims access to justice of, 4, 5, 6, 50, 51, 52, 53, 54, 61, 62, 63, 64 character evidence of, 113 credibility and reliability of, 182 expert evidence on, 12 multiple victimisation, 88 participation of, 59, 61, 62 rights and interests of, 5, 15, 17, 19, 39, 44, 50, 61, 64, 65, 75, 90, 228, 232–3, 247 Scottish Strategy, 59, 61 secondary victimisation, 67, 80, 82 similar fact evidence of, 100, 104, 120 terminology, 5, 41fn treatment of, 226 victim blaming, 72 victim movement, 225 vulnerable, 7, 68–90, 94–6, 222app see also complainers; England and Wales; feminist theory; human rights; Police; Scottish Government; VIA; Victim Support; victim support groups voice recognition, 139 vulnerability accused/suspect, 21 concept, 6, 7, 21, 68–9, 85, 86, 87, 88, 91, 94–6 English approach, 89 hate crime, 69, 86–7 lack of research on, 94–6 reliability of witnesses, 170 Scottish Government definition, 83–4 sexual assault complainers, 68, 80, 88 see also criminal justice process/system; disability; feminist theory; gender; Scottish Executive; vulnerable witnesses vulnerable witnesses deemed vulnerable, 83, 90, 91, 95 definition of, 21n, 83, 90, 93, 95 experience of, 84, 89, 91–5 identification of, 7, 83, 89–90, 95 law reform, 206, 219app, 222app, 223app, 245–6 protection for, 6–7, 67–8, 82, 84, 88–91, 197

see also CCTV; children; crossexamination; COPFS; domestic abuse; legal practitioners/profession; mental illness/disorder; Scottish Government; SLC; special measures; victims; Victim Support; vulnerability witnesses character evidence of, 8, 97, 106 corroboration of testimony, 48 credibility/reliability of, 72, 74, 78, 121, 130–1, 162–93 disclosure of, 221app, 241, 242 expert witnesses, 11–13, 122, 130, 156, 161–8, 181–93 hearsay evidence, 120, 127, 138 interviewing witness/suspect, 3, 19, 36, 37, 38, 230 Moorov doctrine, 101, 107n participation of, 59n, 63, 75, 225 prior statements, 9, 91, 124, 172, 237, 238, 243–6 right to examine, 134, 135, 138, 240, 244 spousal witnesses, compellability of, 220app treatment of, 226, 239, 243, 247 see also accused; adversarial; best evidence rule; children; civil law; corroboration; counsel; criminal justice process/system; criminal trials; defence lawyers; demeanour; disability; expert psychiatric/psychological evidence; eyewitness identification; fact-finding/ fact-finder; gender; investigation; judges/judiciary; jurors/jury; miscarriage of justice; perpetrator; police interview/questioning; principle of orality; prosecution; Scottish Executive; Scottish Government; SLC; USA; vulnerability; vulnerable witnesses ‘World’s End’ murders, 7, 8, 15–17, 204n, 227–9, 247; see also accused; acquittals; double jeopardy; Justice Minister; Lord Advocate; ‘no case to answer’