Malcolm argues for a shift in the burden of evidence in cases of sexual crimes
Debate on Victims and Witnesses (Improving Protection) Malcolm Chisholm (Edinburgh North and Leith) (Lab):
Unlike the previous speakers who, I am sure, are all justice experts in their varying capacities, I read the Carloway report for the very first time during the past few days. I found it to be very persuasive. It is set out with great clarity.

I am sure that everyone is aware that there have been strongly different reactions to the report, so it is very important for us to hear all the views and acknowledge the issue’s complexities. Large parts of the report are probably not too contentious, particularly those parts on detention, arrest, questioning and access to a lawyer.

I welcome the changes that happened after Cadder because we must always remember that some people who are arrested and charged are, in fact, innocent, and we must ensure that all our judicial processes are consistent with human rights. I am pleased that Carloway says that interviewing in the presence of a lawyer should take place only within a police station because I know that Scottish Women’s Aid’s initial response to the Carloway consultation expressed concerns about interviews at the scene of the crime.

Like Roderick Campbell, I welcome the proposal that detention should be limited to 36 hours, although making that happen is going to be one of the challenges for the Scottish Government. I particularly support that proposal because, not too long ago, one of my constituents in Edinburgh was arrested on a Friday night and held in cells until Monday - in Dumfries, as there was no room in the Edinburgh cells - but eventually his court case was dismissed.

Like Margaret Mitchell, I note the concerns of Scottish Women’s Aid in relation to police bail. That option perhaps has to be used carefully, although it would clearly be useful in certain cases.

In all my views on the review, I have been influenced by Scottish Women’s Aid and Rape Crisis Scotland. As I think is widely known, both those organisations support the removal of the need for corroboration. Scottish Women’s Aid has emphasised the importance of the quality rather than the quantity of evidence, and Rape Crisis Scotland has said that the change could make a significant difference but, crucially, only if other action is taken. Rape Crisis Scotland suggested to the Justice Committee that there should be independent representation for complainers in rape or other sexual offence cases. I am sure that many other actions need to be taken. I do not think that any organisation says that removing corroboration will, in itself, improve the situation, but it will help.

That view was taken by Professor Fiona Raitt, when she gave evidence to the Justice Committee at the end of 2011. I found her evidence to be probably the most powerful of all the evidence that the Justice Committee took on the issue. If members, or members of the public, have not read her evidence, they should do so, as it is certainly well worth reading. She gave various reasons for supporting the abolition of corroboration, the first of which was to do with sexual crime. Very strikingly, she referred to something that Lord Hope said:

“In a public lecture at the University of Edinburgh in 2009, Lord Hope of Craighead posed the question whether the demand for corroboration in circumstances such as those” - she had been talking about sexual crime and sexual violence - “might make us conclude that certain crimes in Scotland were beyond the reach of the criminal law. Of course, were that to be the case, it could not be a fair or proper outcome of a modern justice system.” - [Official Report, Justice Committee, 13 December 2011; c 628.]

That was central to Professor Raitt’s point. By the way, she is professor of evidence and social justice at the University of Dundee.

Professor Raitt made two other relevant and interesting points. The first was that the criterion should be “a sufficiency of evidence”, which is quite separate and not dependent on corroboration. Also, looking into the history, she argued that corroboration has become “eroded over the decades”, that its application is often “artificial and technical” and that its integrity is now “discredited”. I found her evidence to be persuasive, and it backed up what I had already read and heard about for a long time from Scottish Women’s Aid and Rape Crisis Scotland.

Margo MacDonald:
I apologise for not having read the same resources that the member has, but did the professor say what would constitute a sufficiency of evidence? Is there any way to define that?

Malcolm Chisholm:
I cannot answer that in the one minute that remains of my speech, but I am sure that the member could read Professor Raitt’s writings. She has various articles on Carloway that can be found if the member googles her name. She has certainly written about that.

Other changes might be made as part of the forthcoming legislation, although personally I do not think that they are directly related to removing the requirement for corroboration. An example of that relates to the eight-to-seven majority on a jury. For a long time, I have felt uneasy about that, irrespective of the issue of corroboration. For example, I feel very uneasy about anybody being sent to prison for life on the basis of an eight-to-seven jury verdict, and so I would be happy if that rule was changed. Obviously, the rule could be changed in various ways, but a minimal change might be to make the necessary majority 10 to five, although a more radical change could be made if that is what people wished.

Obviously, I do not agree with Christine Grahame on corroboration, but I agree with her on the very last section of the Carloway report. Lord Carloway let himself down on the very last page, because he suddenly says that the High Court should still consider whether an appeal is in the interests of justice, which seems to me to be inconsistent with what he said on the previous pages. The High Court had the gatekeeping role post Cadder in case there were lots of appeals but, like Christine Grahame and Roderick Campbell, I do not see why the High Court should have that role or something similar to it now.

That apart, and with the other caveats that I mentioned, I certainly welcome the report.
September 25th 2012