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Constitutional Law, Criminal Justice, Criminal Law, Human Rights, Legal System, Politics, Public Law, Scots Law

Statutory Judicial Directions in Sexual Offences Cases

In all democratic countries there is a very clear separation of powers between the Executive, Legislature and Judiciary.  This is important so as to ensure that there are proper checks and balances on power and is really quite fundamental so as to ensure an effective democracy.  It is so fundamental that when the Scottish Parliament embarked upon a programme of restructuring the judiciary, it set out in section 1 of the Judiciary and Courts (Scotland) Act 2008 that the judiciary are to continue to be independent of the First Minister, the Lord Advocate, the Scottish Ministers, Members of the Scottish Parliament and others.

Judicial independence and impartiality flows from the doctrine of the separation of powers which is so fundamental to democracy.  It is important that the judiciary is totally independent from the Executive and the legislature.  Although judges in Scotland are appointed by Her Majesty the Queen, they are done so after having been selected by a body independent of the State, the Judicial Appointments Board for Scotland.  Neither the legislature nor the Executive play any role in the appointment process, other than by setting out the qualifications required to be a judge (see Chapter 3 of the Judiciary and Courts (Scotland) Act 2008).

This independence means that neither the Scottish Ministers nor the Scottish Parliament should seek to interfere with the independence of the Judiciary.  Parliament serves two primary functions: to make laws and to hold the Executive to account.  The Judiciary interprets and applies the laws made by Parliament and also holds Ministers to account.  Finally, Parliament holds the judiciary to account by having the power to change laws when the Judiciary interpret either the common law or statutory provisions in a way that Parliament considers is wrong.  It is rightly difficult to remove judges from post, their independence would be threatened if it was far too easy to remove them; it might make judges less able to perform their important function of holding the Executive to account, for example.  These three parts of the State work together (not always harmoniously, but that is to be expected) to ensure that the State does not over exert its powers and that no part of the State becomes too powerful.

The impartiality is also of huge importance and two-fold.  Firstly, the judiciary must be politically impartial.  It is for this reason that when lawyers become judges they must sever ties with any political parties that they may well have had connections to.  They should not be seen to make political comments, whether in the press, in speeches or in their judgments; especially if such comments align themselves with a particular political position or party.  Their impartiality also extends to the parties before them.  They must be careful not to be seen to be supporting one side or the other in any way.  That is not an easy task.

There is currently a proposal before the Scottish Parliament that may impact, in a negative way, both the impartiality and independence of the judiciary.  Section 6 of the Abusive Behaviour and Sexual Harm (Scotland) Bill seeks to insert a section into the Criminal Procedure (Scotland) Act 1995 that would require judges to give specific directions in certain sexual offences cases.  Those directions are undoubtedly well-meaning and seek to address common misconceptions about complainers in sexual offences cases, especially around any perceived delay in making the allegation to the police and how they react during the alleged offence.  However, simply because they are well-meaning and seek to serve a wholly commendable purpose does not mean that they should not be enacted or questioned.  In my view the potential constitutional difficulties that they present far outweigh the benefits, especially when there are other ways to achieve the same aim that do not impugn upon fundamental constitutional principles.


These statutory provisions would require Judges to include specific information in their charges to juries in sexual offences cases.  This is something that clearly crosses the line in the separation between Parliament and the Judiciary.  This is wholly different to Parliament telling judges that they have come to the wrong conclusion as to what the law is by passing substantive statutory provisions.  It is Parliament expressly dictating to judges how they should do their job.  We should always prevent Parliament from taking such steps.


The Directions which Parliament proposes judges should make in their charges are well founded in evidence.  However, what they seek to do is bolster the credibility of the principal crown witness in a sexual offences claim (i.e. the complainer).  It is entirely appropriate that we seek to remove any myths about complainers in sexual offences cases; only when we do so can we move towards a position where those who have suffered at the hands of a sex offender can get a proper shot at receiving justice.  When a judge is giving their charge to the jury they set out plainly what the law is in respect of the offence(s) contained in the Complaint/Indictment, explain to the jury the three possible verdicts open to them, the concept of reasonable doubt and finally that a majority of the jurors must be satisfied beyond reasonable doubt of the accused’s guilt before they can convict the accused.  In a jury trial the judge is there to deal only with matters of law and procedure; they are there to ensure that both the prosecution and the defence act and are treated in a fair manner, as well as making rulings on issues of law and procedure and setting out the law to the jury that they need to apply to the evidence they have heard in court.

One of the factors that jurors need to weigh up in reaching their verdict is the credibility of not just the complainer, but every other person who has given evidence before them.  Only once they have assessed the credibility of a witness can they decide whether to believe them and how much weight to accord their evidence.  It is clear therefore that the credibility of the complainer in any case, including a sexual offences case, is of central importance to the jury.  In my view it therefore follows that any comment by a judge that seeks to bolster the credibility of a witness (regardless as to whether they are the complainer or the accused) impugns upon their impartiality from the parties to the case (in this situation, from the Crown).

How else can this issue be addressed?

As I have already stated, there are many myths around the conduct of sexual offences complainers – including around how quickly they make the allegation official and issues about their actions and reactions while the alleged offender is committing the alleged offence.  A complainer who makes their allegation quickly should not automatically be presumed to be more honest that one who waits weeks, months or even years to make their allegation.  It should not be relevant whether or not a complainer made attempts to fight the alleged offender off.  These are the issues that these proposed jury directions seek to address.

In my view, these can be addressed in ways other than by requiring judges to set out a case bolstering the credibility of the complainer in their charge to the jury.  The issue of the credibility of the complainer, or rather the task of presenting the complainer as a credible witness, lies with the Procurator Fiscal Depute or Advocate Depute who is prosecuting the case.  Therefore, we ought to be looking at ways to put this evidence before a jury; whether that is by obtaining it through a witness such as a specially trained police officer or an expert such as a psychologist.   It wouldn’t necessarily be essential to require a complainer to explain why they didn’t make an attempt to fight of the alleged offender or why they delayed in making the report; although, these matters may well be explored during the complainer’s evidence in either examination-in-chief or cross-examination.

Addressing this issue in the way I have described would ensure that what is essentially a question of fact for the jury (that being, the assessment of the credibility of the witness) is treated as such and is not dressed up as being a matter of law being dealt with by the presiding judge.  It would also ensure that points of view that might well be held by the jury, which are not supported by evidence are properly addressed.  Finally, it would ensure that the independence and impartiality of the judiciary is properly and rightly preserved.

It is therefore my view that the Scottish Parliament should remove section 6 from the Abusive Behaviour and Sexual Harm (Scotland) Bill.

Criminal Justice, Criminal Law, Evidence, Random

Beyond Reasonable Doubt: An unfair advantage to the accused?

In the wake of the dismissal of the case against Shrien Dewani in South Africa, Dan Hodges has written a piece on the Telegraph website questioning the criminal standard of proof.  I will write this blog post from a Scottish perspective, but the general points will apply equally to most ‘western’ legal systems.

There are two burdens of proof recognised before the courts: the criminal standard, which is “beyond reasonable doubt” and the civil standard, “on the balance of probabilities”.  What we are concerned here with is the criminal standard of proof, and particularly whether it weighs the system too heavily in favour of the accused.

Before going further, it might be helpful to set out what beyond reasonable doubt means.  In his comment piece, Mr Hodges, asserts that in order for the prosecution to secure a conviction against an accused they “must prove beyond question the guilt of the accused.”  This is not the case, and overstates the standard of proof.  The criminal standard of proof does not require there to be no doubt at all, only that there is an absence of reasonable doubt.  What this means is that the accused is entitled to the benefit of any doubt which is based upon reason and commonsense following a careful and impartial consideration of the evidence (and the lack thereof) presented to the court.  The doubt, as Lord Justice-Clerk Cooper put it in Irving v Minister of Pensions, should be something more than “a strained or fanciful acceptance of remote possibilities”; Lord Justice-Clerk Thomson said in McKenzie v HM Advocate  that it is something “more than a merely speculative or academic doubt”.  The finder of fact (the jury or the sheriff/Justice of the Peace) doesn’t have to be convinced beyond doubt that the accused perpetrated the crime alleged, only to the point where he has no reasonable doubt.

There are a variety of reasons as to why there is such a high standard of proof in criminal cases.  One of those reasons is the consequence of a guilty verdict in a criminal trial.  As Jones and Christie put it in Criminal Law (4th Edition), “conviction certainly entails more than a mere finding that, e.g. “A killed B”.  This in itself is a legally neutral statement…The Prime function of the criminal law is that of articulating the circumstances under which it is justifiable to hold a person punishable for his conduct.” (para 1-13).  In other words, with the criminal law we are going beyond a situation where we are simply ascribing liability to concluding that a person’s conduct renders them liable for punishment.  That punishment can be severe, it could result in a person being deprived of their liberty for a lengthy period of time.  A finding of liability in a civil case does not generally result in the liable party being punished; there may be a requirement to compensate the party that they have wronged to try and place them back into the position they were in before the wrong occurred (or to place them in the position they would have been in had the wrong not occurred), but that is manifestly different from punishment.  The stakes are much higher and as such it has been the position that the standard of proof must also be higher as a consequence.

It seems unjust to punish someone, in the severe ways open to the criminal justice system, on the basis that it is merely more likely than not that they committed the crime alleged.  A system whereby an accused person could be convicted merely on the balance of probabilities would inevitably result in the entire criminal justice system being brought into serious disrepute as individuals would routinely be convicted where there are sensible and logical alternatives to their guilt based on the evidence which was heard in court.

It has long been the case that the justice system has preferred to see guilty men walk free than an innocent man be unjustly punished.  This is not some ‘liberal, leftard, hand-wringly nonsense’; it is a centuries old principle and can be found in times where liberal principles were about as far away from the justice system as was possible.  We’re going back to the times of gruesome public executions for the most minor of crimes, to where transportation was still a sanction open to judges and to where prison conditions were probably more horrible than even the most right-wing member of society would care to suggest today.  Moreover, is it’s a principal which is a recognised international standard and features in what most people would consider to be “decent” legal systems.  This principle is another reason for the high standard of proof in criminal trials and is linked closely to the idea that a finding of guilt in a criminal trial opens up legitimate punishment upon the offender.

We’re probably all familiar with the concept of an accused person being innocent until proved otherwise (even if, as a society, we don’t always hold to that with our quick condemnations upon those suspected or accused of crimes).  The burden is placed squarely upon the State for a number of reasons, not least an equality issue.  The State is vastly better resourced than an individual and it can call upon those resources when trying to prove that someone “did it”.  The State has professional investigators in the form of the police, and teams of specialist lawyers to prosecute the case in court in the form of the public prosecution service.  While those services, in the UK at least, are suffering from a considerable cut to their funding, those resources continue to vastly outstrip the resources of the accused who has only his (small) defence team to counter the might of the State.  Lowering the Standard of proof would inevitably lead to the accused having to prove things that he does not currently have to prove.  Of course, it is presently the case that an innocent accused facing an overwhelming case against them would be sensible to offer evidence as to why the State is wrong; however, in a system where the standard of proof was merely whether it was more likely than not that the accused had committed the crime it would almost always be the case that the accused would have to be disproving the States case (or, to put it another way, prove his own innocence).  It would eat away at the presumption of innocence and would result in a great inequality between the State and the accused.

Does the criminal standard of proof weight the system in favour of the accused?  I suggest no.  What it does, I suggest, is merely rebalance a system that without it would unfairly favour the State with its huge and specialist resources over the extremely limited resources of the accused.

Criminal Justice, Criminal Law, English Law, Legal System

The law and historic cases: sensible or bizarre?

It has been reported by the BBC today that president of the ‘Association of Child Abuse Lawyers’ has said the way in which Rolf Harris was sentenced was ‘bizarre’. He is referring to the fact that in historic cases the judge passing sentence is limited to the maximum sentence that was available at the time of the offence. In the Harris case this was 2 years (or 5 years in the cases where the victim was under the age of 13).

There are a lot of historic sexual assault and abuse cases trundling their way through the justice system. It is right that, no matter how many years later, the perpetrators of these crimes face justice. However, there is a significant issue in such cases; whether it is a sexual offence or not. As time progresses and as Government’s change, the law too goes through change. If you’re prosecuting an individual 20 or 30 years after the offence was committed it is highly likely that the law has undergone several significant changes: that is true with the law surrounding sexual offences. In all cases historic offences will be prosecuted according to the law at the time the offence was committed. The other alternative is to prosecute them under the law at the time they are prosecuted.

Why do we prosecute historic cases at the time they were committed? Well, it’s about what is fair and just. Justice is not just about the victim, but it must equally be about the offender. It would be oppressive if the law were to treat offences committed decades ago as if they were committed today. It is a general principle of law in democratic countries around the world, especially in the realm of criminal law, that the law is not retrospective. That means that current changes in the law should not affect future consequences of past conduct. In other words, if you did something that was a particular criminal offence which attracted a particular maximum penalty, but by the time you are prosecuted the law has changed, you should be treated (as far as is reasonably practicable) as you would have been when you committed the crime. The same would be true if you committed a crime today, but the law changed substantially tomorrow: you would be dealt with as the law was today and not as the law changed tomorrow – even if there was no substantial delay in arresting, charging and prosecuting you.

In the Rolf Harris case he was prosecuted for the offences that he committed at the time. As such, the maximum penalty that was available to the court was that which would have been available at the time the offence was committed (2 years, or 5 in the case of offences relating to children under the age of 13). Specifically, in the case of Rolf Harris his sentence of 5 years and 9 months was made up of a mixture of concurrent and consecutive sentences for the various charges that he was convicted of. The sentencing remarks of Mr Justice Sweeny are available online and detail what the charges were and what the sentence was for each charge (and whether it was to be served concurrently or consecutively). You can read the sentencing remarks here.

When it comes to sentencing cases like this one where there has been such a delay in bringing the offender to justice, it is not the job of the court to try and fix the sentence that would have been given at the time. The judge must have regard to the sentencing guidelines that are currently in place; however, they cannot pass a sentence which would exceed the maximum available at the time the offence was committed. I blogged in this issue last year looking specifically at the law of England and Wales, you can read that blog here.

Sentencing is always a complex matter, but it is even more complex in these cases. While there will, quite understandably, be no sympathy for people like Rolf Harris; the law must be fair and it must be just. That applies to victim and offender and so the law must not be oppressive by prosecuting people for more serious offences than what they committed (while under the current law they may well have committed the more serious offence, they did not actually commit that offence because they offended at a time when the law was quite different) or by giving them a sentence that is in excess of the maximum that was available at the time they committed the offence.

I won’t make any comment on whether I think the sentence Rolf Harris received was too harsh, too lenient or about right. I understand that the sentence has been referred by someone to the Attorney General and it is now for him to decide whether he thinks that it is unduly lenient and whether it ought to be referred to the Court of Appeal. When he is doing so he will have regard to the sentences passed, the law as it was at the time the offences were committed the present sentencing guidelines and no doubt the totality of the sentence passed. My understanding of the law is that the Attorney General has 28 days to decide whether he is going to refer it to the Court of Appeal. Even if the Attorney General decides to refer it to the Court of Appeal they may refuse to hear the case or decide that the sentence should remain the same: a referral does not mean that the sentence will increase or that it was unduly lenient.

Corroboration, Criminal Justice, Criminal Law, Scots Law

Criminal Justice (Scotland) Bill: Stage One Debate

CJSB14Yesterday the Scottish Parliament had its Stage One debate on the Criminal Justice (Scotland) Bill, and the quality of the contributions from certain members was depressingly poor; some contributions are worthy of note because they were of a standard which should be seen from all members: John Finnie (IND) and Patrick Harvie (Greens) to name two.

Like many, I am of the view that corroboration does represent an important safeguard against wrongful conviction; however, I am not so wedded to the idea that I cannot see life without it. I do have a number of concerns though.

Firstly, there has been a lot of talk about cases not getting to court because of corroboration and how that limits access to justice for Complainers. There are two important factors to consider here: (1) it also limits access to justice for suspects. Even an arrest/detention (especially for something like rape) can be enough to permit a ‘bad smell’ to hang around the accused. (2) There will always be cases that do not proceed to trial because of a lack of sufficiency in the evidence. Removing the requirement for corroboration will not suddenly mean that every single case will proceed. Trials, especially High Court trials, are expensive and while justice ought not to be about money, it would be naïve to think that money doesn’t play a part – on a financial basis alone it would be impossible to have every case prosecuted.

What about this brave new world post-corroboration in Scotland? A lot has been mentioned in the debate about complainers in sexual offences and domestic violence cases; corroboration does provide assistance to these Complainers (although this point is almost never mentioned). It ensures it is never the case of the Complainer’s word against that of the accused. Where things get tricky in terms of rape complaints is around consent. There has to, as the law stands today, be corroboration of a lack of consent. Where does that come from? Lots of places: changes in behaviour by the complainer or third party evidence of the Complainer’s distress for example.  In such cases where evidence of distress is not available it would place even more stress upon the Complainer as it will be down to no more than who the jury believes more: the complainer or the accused.

Now, so far I’ve yet to deal with why I am actually against section 57. My main opposition to it passing in this Bill is the outstanding Bonomy Review.  The purpose of this is to work out the additional changes that will need to be made to the law of Scotland following the removal of the requirement for Corroboration. Let’s be clear this isn’t a minor technical change to the law of Scotland; it is absolutely fundamental. As such it is only right and proper that the Scottish Parliament knows what it is changing the law of Scotland to before they vote on such a fundamental proposal. Also, the very existence of the Bonomy review shows that the Parliament are voting on a partially thought-out proposal.  The setting up of a review to fix problems with legislative provisions, before they’ve even been voted on for the first time by the Scottish Parliament, should cause alarm bells to ring in the minds of every single Member of the Scottish Parliament.

Image credit: Scottish Parliament website licensed under the Open Scottish Parliament Licence v1.0

During the debate yesterday Sandra White MSP made the preposterous suggestion that not abolishing the requirement for corroboration in this Bill was kicking the matter into the long grass. She was concerned that there would be insufficient time to deal with the matter before the next election, due in May 2016. The Bonomy review is due to report early next year, giving the Government and Parliament up to 15 months to draft a Bill and pass it; hardly a shortage of time!  Furthermore, the Cabinet Secretary has said he won’t be enacting section 57 until such times as additional safeguards are introduced. The reality is; it’s probably going to be at last a further 18 months before this section is actually enacted. Whether it is passed now, or in 2015 will make little difference, it’s unlikely to be fully enacted before late 2015 or early 2016 anyway. Therefore, there is no good reason as to why Parliament cannot consider the full package (i.e. abolition and the full package of safeguards together). Indeed, passing legislative provisions which Parliament knows are incomplete and not fully thought through is not what MSPs are paid for. This is not how a serious Parliament in a mature democracy ought to function.

What has struck me most about this debate is the way in which highly emotive cases have been used as the justification, and this has polarised the debate. This has lead to deplorable suggestions by some, such as Christina McKelvie MSP, that those opposing the move to abolish the requirement for corroboration were against victims of rape and domestic violence. Her exact wording was:

There is a significant number of victims of sexual violence and domestic abuse whose cases do not go to court. In the past two years, that has affected 2,800 cases of domestic abuse and 170 rape cases. The Tories, the Liberals and—astonishingly—the Labour Party might be happy with that, but I will not have that on my conscience.

Such suggestions are utterly unacceptable in Parliament by MSPs; in making that statement Ms McKelvie demeaned herself and demeaned Parliament. Quite simply it was shameful and completely indefensible behaviour.  She is not alone, some vocal people connected with various womens’ charities have been similar suggestions.


Finally, I turn to Mr MacAskill’s equally shameful closing statement in which he painted the opposition to section 57 as a ‘Better Together’ pact against the SNP. This ignores that Christine Grahame abstained on both votes, and that Patrick Harvey and John Finnie (both ardent supporters of ‘Yes Scotland’ and the later a former SNP member) both voted for the amendment proposed by Margaret Mitchell after also speaking against the Cabinet Secretary’s position  in the debate. The Cabinet Secretary’s suggestion that everyone not with him is against Victims of crime was another outrageous slur; indeed I heard not one speech in the debate that could have been characterised as being against victims. Everyone speaking in favour of Margaret Mitchells amendment was essentially saying this: we need to ensure that we retain an acceptable balance in the justice system that ensures safe convictions. That brings us to the nub of the issue: we must ensure that when people are convicted of crimes, especially ones that will inevitably result in lengthy custodial sentences, that those convictions are safe. It is not good for a victim to see someone convicted of an offence against them just for the Appeal Court to come along and quash that conviction.

We have to ensure that balance remains in the system, and the Cabinet Secretary’s position does not allow for that. It is not acceptable for Parliament to vote on such fundamental matters when they are incomplete with only a promise that sufficient safeguards will be introduced (by way of Secondary legislation which bypasses the full and rigorous scrutiny of Parliament) in due course. The Cabinet Secretary’s position is untenable on this issue, and he must remove section 57 from the Bill re-introducing it in Primary legislation alongside whatever other reforms Lord Bonomy proposes.