Jenny Marra : Reforming Scots Criminal Law and Practice (Public
Consultation ) speech in the Scottish Parliament
26 September 2012
It is a
pleasure to speak in this afternoons debate on all these important issues in
the landscape of Scots law and evidence.
The
Parliament is being asked to consider some of the most far-reaching reforms to
Scots law, and it is important for us to debate them well and often to get the
changes absolutely correct for everyone who is involved in the legal system,
not least the victims of crime in our country.
I start by
considering this afternoon’s debate.
We have
heard many informed and learned speeches, in which members have raised good
points that I hope the minister will consider during his closing speech, and
which we should all take to committee and to subsequent debates.
I was hoping
to intervene on Roderick Campbell, but I did not want to interrupt him because
he always makes very learned speeches on these issues.
I wanted to
pick up on a point that he made in his opening remarks about Cadder and the
emergency legislation that the Scottish Parliament had to consider as a result
of that judgment.
Annabel
Goldie also picked up on that point.
Last year,
in its manifesto, Labour proposed to conduct a full audit of Scots law to make
sure that the law in our country is ECHR compliant.
Such a
full-scale audit would prevent scenarios such as the emergency legislation that
we faced in the wake of the Cadder case.
Kenny
MacAskill: On the Cadder judgment, how would an ECHR review have
affected the position, given the appeal court‟s decision in HMA v McLean?
Is the member suggesting that our review could have overturned the decision of
a High Court bench?
Jenny Marra:
No, I am not suggesting that.
I am
suggesting that we need to look forward and consider Scots law with an eye on
ECHR.
The Cadder
judgment was not the first time that Scotland had heard of the problem with section 14 of the Criminal
Procedure (Scotland) Act 1995; there had been the Salduz case a few years earlier.
Such an
approach would have given the Parliament a bit more time to prepare and we
would not have had to consider emergency legislation.
I hope that
ministers might consider carrying out such an audit as part of a wholesale look
at Scots law.
Roderick
Campbell also made points about the resource implications of the Carloway
proposals, and there were many other thoughtful speeches.
Christine
Grahame drew the Parliament’s attention to the fact that we must consider the
majority verdict.
Malcolm
Chisholm made a good speech in which he pointed to Professor Fiona Raitt’s
points on the sufficiency of evidence.
As a result
of his speech, I think that we will all read Professor Raitt’s comments.
I understand
that she has called for a wholesale review of the law of evidence.
Ministers
might want to comment on that, because it perhaps does not serve the system
properly to look at the issue in a piecemeal fashion.
Mary Fee
made welcome remarks about children.
The voice of
children is often drowned out in debates on Scots law, but she advocates
powerfully for children’s rights in the legal system, and under these
proposals.
I am glad
that the cabinet secretary took the time to bring the motion to Parliament,
because it is important to debate the proposals often and well.
We have
heard in the debate that many questions remain to be answered on the Carloway
review and how it is to be implemented.
Although I
generally support many of Lord Carloway’s recommendations, it strikes me as a
little curious that the cabinet secretary should bring the debate to the
chamber before the consultation on the proposals has even closed and therefore
without the evidence that has been offered by legal experts. Nonetheless, the
debate is a good opportunity.
It is clear
to me from the speeches made today that we need further detailed consideration
of and debate about how we can effectively implement Carloway‟s recommendations.
Full
engagement with stakeholders is a necessary part of that debate.
The end of
the requirement for corroboration in Scots law would be a major shift, not only
in the way that verdicts are reached in our courts, but in the number of cases
that will reach our courts in the first instance.
It is vital
that we have the foresight to envisage the impact that the removal of
corroboration would have on our legal system.
We have heard
that the pressure that is being put on our court services through budget cuts
and the proposed closures of sheriff courts throughout the country would
undoubtedly have a bearing on the courts‟
ability to undertake a much bigger case load.
From that
perspective, I ask the cabinet secretary to consider fully the consultation on
the future of our courts, not just through the lens of the challenging
financial situation that he faces, but through the lens of promoting effective
and speedy justice for victims of crime, as Carloway recommends.
I am in no
doubt that limiting the number of jury trials too much and closing too many
courts could have an adverse effect when the Carloway recommendations are
implemented.
We have heard
about the complexities that surround the proposal to make any change to the
corroboration rule retrospective in its application.
Not least of
those is the potential to put our police service and Procurator Fiscal Service
under considerable strain as a result of dealing with an increased case load
and the reopening of cases that did not originally come to trial.
As has been
mentioned, in 58.5 per cent of cases in 2010 that did not go to trial because
of insufficient evidence there would be a reasonable chance of conviction if
the need for corroboration were removed.
Annabel Goldie:
I want to test the members presumption. In my speech, I referred to evidence
that shows that the significant changes to the way in which we prosecute rape,
attempted rape and sexual offences have not led to an increase in convictions.
How can the member assert that simple abolition of corroboration will ensure
more convictions?
Jenny Marra: I do not think
that that is exactly what I asserted.
I am saying
that we need to look at things in the round to ensure that we get more
convictions; we also need to look carefully at the proposals for corroboration
to see what impacts they may have.
We have heard
of the need to consider the changes in the wider context of access to justice.
Christine
Grahame eloquently outlined Carloway’s remit and gave the Government good
reason to think carefully about the proposal from my colleague, Michael
McMahon, who has quite rightly taken a broader view of criminal justice that
includes a debate about the not proven verdict.
Those are just
a few of the issues that the SNP must face up to if it is serious about
improving our criminal justice system.
The principles
underlying Carloway’s recommendations are good—they are based on the rights of
victims and witnesses to speedy and efficient justice, and they have their
roots in human rights legislation.
If we are to
have a fully informed debate about the virtues of the report, we must include
the voices of all interested parties from all corners of our justice system.
We must have a
holistic assessment of the criminal justice landscape, too—one that includes
Michael McMahon's proposal for reforming the verdicts that can be reached in
jury trials.
