On the 1st of May 2018 the Lord President announced that “rape victims should not have to appear in court”. Speaking to the BBC, Lord Carloway proposed that witnesses in cases involving sexual offences should have their evidence recorded in advance of the trial process itself with said evidence then simply being played to the jury at the time of the trial. Recorded cross-examination by the defence could take place after the accused first appeared in court. The Scottish Government is due to release draft proposals on evidence gathering for vulnerable witnesses next month. If Lord Carloway’s comments are anything to go by, then the proposals are likely to suggest drastic changes to the trial process in Scotland. The Lord President has repeatedly reiterated his radical desire to modernise the justice system, so his views shouldn’t really come as much of a surprise. In this regard see for example this speech he gave to the Law Society of Scotland’s 2017 annual conference.
The Scottish Legal Action Group is in favour of any progressive measures which improve the way in which vulnerable individuals are treated in the courts. It is also impossible to argue with the principle behind the desire for change which is ultimately to seek to improve the quality of evidence presented. One only has to read some of the accounts given by witnesses in the “Thematic Review of the Investigation and Prosecution of Sexual Crimes” by the Inspectorate of Prosecution in Scotland to realise that there are problems in this area. That being said, the need to proceed with caution cannot be stressed highly enough. As much as it might seem unpalatable to certain politicians, the rights of individuals accused of crimes deserve equal respect to those making the accusations. In our adversarial system of proof that means witnesses require to be cross examined by the defence. The importance of this fact, although not lost on Lord Carloway, seems entirely lost on many of our parliamentarians. That is not to say that our current system is beyond reform or improvement. Indeed, changes introduced in respect of taking evidence from children on commission illustrate that change is both possible and practical. Great strides have also been made in the jurisdiction in respect of vulnerable witnesses generally. If one reads some of the reporting from the recent high-profile rape trial involving rugby players in Northern Ireland one realises that many reforms implemented in Scotland are to be commended.
However, we cannot pretend that we do not have an adversarial system, nor should we proceed on the basis that because someone makes an accusation of sexual abuse their evidence is somehow sacrosanct and beyond all challenge. The purpose of the criminal justice system is not simply to provide access to justice for victims of crime. The rights of the accused are not an inconvenience to be somehow accommodated within the trial process as an afterthought. While their intentions are undoubtedly good, the legal illiteracy of many of our politicians is at times worrying. There is at times a complete lack of understanding of the principles and practicalities inherent in the trial process.
If radical change is to happen then it is of the utmost importance that all relevant stakeholders are listened to. The abolition of corroboration debacle should serve as a lesson to our politicians that you cannot implement fundamental change without considering the wider consequences simply because it is politically expedient to do so. Charities such as Rape Crisis Scotland are to be commended for the excellent work they do in providing support to vulnerable individuals in terrible circumstances in this country. Their continued funding is essential and of course their voice is an important one. However, legal bodies and experts such as the Faculty of Advocates, the Law Society of Scotland and various bar associations need to be listened to by Holyrood as well. In the past there has been a tendency to pay lip service to these bodies while ploughing ahead with change despite their clearly articulated concerns.
The elephant in the room in this discussion of radical reform is of course funding. Lord Carloway acknowledged this himself in his interview with the BBC. The type of reform that is being hinted at is going to require substantial investment. Regular users of the courts in Scotland will have surely raised an eyebrow in respect of the suggestion of a digital evidence vault. Many courts do not have even have proper internet access at present. If politicians are serious about improving access to justice to victims of crime a good place to start would surely be increasing the funding of the Crown Office and Procurator Fiscal Service. The Scottish Legal Action Group has repeatedly highlighted how the lack of funding throughout the justice system is having a negative impact on access to justice. The absolute travesty of what is happening to justice in England and Wales at the moment as a result of chronic underfunding should serve as a dire warning to all of us north of the border.
Eamon Keane, on behalf of the Scottish Legal Group.
Eamon Keane is a solicitor and the current convenor of the Scottish Legal Action Group.