Friday, March 13, 2015

Digitally recorded statements could lead to miscarriage of justice as Evidence and Procedure Review calls for recordings of witness testimony to be admitted as evidence at trials

Courts proposal on taped witness statements could skew justice A REPORT published today by the Scottish Court Service claims digital technology should be used to “transform our criminal justice system” and ‘capture’ evidence from witnesses in advance of a criminal trial.

The review, chaired by a senior judge concludes witness accounts recorded at or soon after the scene of a crime should be admissible at trial, and criminal trial procedure should be re-thought to permit such developments.

In response, solicitors say the latest round of politically rooted meddling in the justice system contains little in the way of safeguards for accused and protections for the right to a fair trial.

The Evidence and Procedure Review  – chaired by Lord Carloway - calls for Scotland to harness the opportunities that new technologies bring to improve the quality and accessibility of justice – by recording statements from witnesses in advance of criminal proceedings. The Evidence and Procedure Review was an internal Scottish Court Service research project led by the Lord Justice Clerk, Lord Carloway, supported by a small reference group and a full-time Project Director.

However, legal insiders say the proposals are of serious concern to how the justice system deals with witnesses and the rights of all accused persons – who have the right to test evidence put forward by the prosecution in court.

The move – which some see as a plan to substitute dodgy witnesses for a video recording - may also increase a growing trend in criminal trials where it has become obvious witnesses have been ‘coached’ by prosecutors in their delivery of evidence while under oath.

The growing trend of dodgy evidence presented in court by the crown - an issue familiar to many experienced criminal defence solicitors and counsel -  has now reached a point in Scotland where trials attract regular criticism from the bench of crown agents conduct and the incredulity of witness testimony – among them – statements given by serving Police Officers.

Published here: the Evidence and Procedure Review consists of five Chapters:

Chapter 1 introduces the Review, its remit and details the considerations that led to the Review taking place.

Chapter 2 considers how children and vulnerable witnesses are treated in Scotland, Australia, England and Wales and Norway, and concludes that Scotland there is more that we could to improve the way in which such witnesses are required to give evidence. 

Chapter 3 looks at the legal issues raised if witness statements recorded prior to trial are to be generally admissible.   It reviews the law on hearsay, under which such statements are currently generally excluded, and considers the implications of a rule that would provide for their general admissibility. 

Chapter 4 considers how criminal procedures would have to change to accommodate and take full advantage of the availability of such evidence; it also covers how the infrastructure of the justice system, both in terms of the technology available and the nature of facilities in the courts, police offices and elsewhere will have to be rendered fit to undertake the tasks of recording, editing, storing and presentation of such testimony.

Chapter 5 provides some concluding remarks.

A statement released by the Scottish Court Service said: “We need to rethink what constitutes the best evidence at trial – and this may mean a transformation in the way the evidence of witnesses in general is captured and presented.  It is highly likely that a witness account taken at the scene of a crime or shortly after will be more reliable, full and accurate than their attempt to recall what happened many months later in court. The Report explores what legal and other changes need to be made to allow pre-recorded witness statements to be admitted as direct evidence, and what safeguards need to be in place. There are, potentially, great benefits – these include greater accuracy and reliability of the evidence; the ability to manage cases more effectively; and less reliance on witnesses turning up at court on the trial day.

Scotland needs to move to the forefront of law and practice in relation to children and vulnerable witnesses.There’s extensive evidence that giving testimony at court is especially distressing and potentially damaging for young and vulnerable witnesses; and it is a poor way to get good evidence from them. Although Scotland does have a range of protections available, experience elsewhere, such as in England and Wales, Australia and Norway, suggests we can go further to protect such witnesses and ensure their evidence is taken in the most appropriate way in advance of the trial.

The Report is a starting point for developing ideas and proposals – it aims to be a catalyst for developing reforms that will bring a better experience for those called to give evidence in criminal proceedings, a system of justice that deals with cases speedily, effectively and fairly, and one which remains relevant, trusted and respected by the Scottish people.  The Scottish Court Service will now work with the Scottish Government, other justice agencies, the legal professions and victims groups to explore the implications of the report’s propositions and develop proposals for change.”

Chief Executive of the Scottish Courts Service - Eric McQueen said: “This Report aims to stimulate discussion about the very nature of criminal trials - how do we ensure the testimony of witnesses is as reliable, accurate and complete as it could be; how do we eliminate unnecessary delays and preserve a fair, transparent and just system; how do we make sure that  young and vulnerable witnesses  are safeguarded against further trauma?

"The propositions in this Report could transform our criminal justice system.  We now need work through their implications with everyone with an interest, so that the proposals that emerge are ambitious, workable and will help create a modern, fair and efficient criminal justice system for the digital age.”

Speaking to Scottish Law Reporter earlier today, a criminal defence solicitor said “The proposals presented by the SCS are just another politically motivated ‘think-of-the-PR project’ with little real regard for the interests of justice or the right to a fair hearing”.

James Wolffe QC, Dean of the Faculty of Advocates, promised to consider the report's conclusions in detail but in an initial response said: "It is fundamental to the rule of law that an accused person should be able to challenge and test the evidence led by the prosecution. That is the mechanism by which we, in Scotland, seek to ensure that only the guilty are convicted. All of us have an interest in securing the sound administration of justice in Scotland – and, used appropriately, technology may provide opportunities for improving that system."

Lord Carloway – who chaired the report – previously called for the removal of CORROBORATION – a long held safeguard against miscarriage of justice in Scots law where evidence in a criminal trial is required from two separate sources for a conviction.

The plot to remove corroboration was instituted by the now sacked Justice Secretary Kenny MacAskill. The bitter debate on removal of corroboration reached a point where Crown Office insiders – angry over adverse media coverage – lashed out at members of the judiciary after a number of High Court judges signed a petition against the planned removal of corroboration.

Prosecutors at Scotland’s Crown Office & Procurator Fiscal Service (COPFS) appeared before MSPs at the Scottish Parliament to back the removal of corroboration in an effort to assist the Crown Office in obtaining higher rates of convictions.

The proposal to remove the right of corroboration was effectively shelved after Scotland’s top judge warned the Scottish Parliament’s Justice Committee against meddling with legal safeguards which cut across almost any criminal offence in law – ensuring the right to a fair trial.

Wednesday, March 11, 2015

LAW CHIEF’S SON IN VIOLENCE RAP: Scotland’s Solicitor General’s son is convicted of domestic violence attack on female partner

Top prosecutor’s son convicted of domestic violence. THE SON of Scotland’s Solicitor General has been convicted of attacking his girlfriend, while his mother is supposed to be in charge of efforts to tackle domestic abuse.

Andrew Thomson (27) who was previously convicted of drink driving and banned from driving for 18 months – admitted assaulting his partner at a property in Glasgow in January.

His mother –  Lesley Thomson QC - once thought to be in the running to replace Frank Mulholland as Lord Advocate – backed the now failed MacAskill proposal to abolish CORROBORATION – a long held safeguard against miscarriage of justice in Scots law where evidence in a criminal trial is required from two separate sources for a conviction

Thomson and others including the Lord Advocate Frank Mulholland, Police Scotland and interest parties campaigned vigorously for the removal of corroboration.

Speaking at a Crown Office and Procurator Fiscal Services annual Sexual Offences Conference at Hampden in Glasgow Thomson said: "Many of those opposed to the abolition of the requirement of corroboration advance arguments that it will lead to a greater risk of and greater numbers of miscarriages of justice. However, it is clear that it is the present system which creates many victims of miscarriages of justice."

However it came to be known the Crown Office were enthusiastic about the removal of the right from law – because it interfered with dodgy evidence presented by prosecutors in court which did not stand up to scrutiny or cross examination. Prosecutors effectively promoted the removal of corroboration in an effort to assist the Crown Office in obtaining higher rates of convictions.

The proposal to remove the right of corroboration was effectively shelved after Scotland’s top judge warned the Scottish Parliament’s Justice Committee against meddling with legal safeguards which cut across almost any criminal offence in law – ensuring the right to a fair trial.

Report from Scottish Mail on Sunday:

TOP LAW OFFICER’S SON, 27, GUILTY OF ATTACKING GIRLFRIEND

By Fiona McWhirter Mail on Sunday 8 March 2015

THE son of Scotland's Solicitor General has been convicted of attacking his girlfriend - as his mother leads nationwide efforts to tackle domestic abuse.

Andrew Thomson, 27, admitted assaulting his partner at a property in Glasgow in January.

His mother, Lesley Thomson, QC, has attracted widespread acclaim for her efforts to toughen up the law concerning assaults in the home.

As the nation's second most senior prosecutor, she has been pushing for a criminal offence to combat domestic violence against women, calling on Scotland to develop a 'modern approach' to deal with the 'emotional damage caused, as well as the physical harm' to victims.

Her move has received support from First Minister Nicola Sturgeon, police, prosecutors and politicians across the board.

Ms Thomson's son, whose address was given in court papers as being in the West End of Glasgow, had been due to be sentenced at the city's sheriff court on February 27, after admitting pushing his partner and causing her to fall over a table.

Sentence was deferred until August for good behaviour and the sheriff called for a supplementary social work report.

Domestic abuse is at present dealt with through a range of criminal offences, including assault, breach of the peace and crimes against property. But following Ms Thomson's efforts to force it onto the political agenda, greater priority is now given by Police Scotland to domestic abuse.

Domestic abuse and rape task forces operate throughout Scotland. In 2013-14, police referred 36,552 domestic assaults to the Crown Office andProcurator Fiscal Service (COPFS), a significant rise on the number of cases - around 27,000 - recorded in each of the two previous years.

In 2013, COPFS - which defines domestic abuse as 'any form of physical, sexual or mental and emotional abuse which might amount to criminal conductand which takes place within the context of a relationship' - boosted its efforts to tackle the issue with the introduction of a specialist national procurator fiscal for domestic abuse, Anne Marie Hicks.

Ms Thomson revealed she had asked the fiscal to review all areas of COPFS work and training in relation to the issue and stressed: "Cases involvingdomestic abuse are often among the most challenging faced by prosecutors, but that does not deter us from putting the interests of the victims in such cases at the heart of our prosecution policy."

She also raised the prospect of a specific offence when she spoke at a COPFS conference focusing on the subject.

Referring to separate stalking laws passed in 2010, the Solicitor General told delegates last year: "Domestic abuse is, in my view, another area in which specialist legislation has a role to play.

"It has the potential to effect further change in societal attitudes, to instill confidence in victims and, of course, to ensure their abusers are held to account."

She added: "Creating a specific offence of domestic abuse is one way in which we could ensure that our criminal law is, and remains, fit for purpose."

"It would help victims by acknowledging the true impact and consequences of all types of abusive behaviours, including non-violent tactics of control andabuse, and would solidify Scotland's position as a leader in the field of tackling violence against women."

In November, when Miss Sturgeon became First Minister, she unveiled 12 Bills as part of her debut legislative programme, including ramping up action against domestic abuse.

She said the Scottish Government would consult on the introduction of a specific criminal offence to combat the problem.

Last night, a Crown Office spokesman said: "The Solicitor General's position on domestic abuse is well known and has been widely welcomed."

"She is a leading advocate of measures to deal with domestic violence more effectively."

"She has led the approach within Scotland's prosecution service, working closely with the police and those who support victims of domestic abuse to strengthen prosecution in this area."

In 2013, Andrew Thomson was banned from driving for 18 months and fined £1,100 after he drove into a marquee while more than twice the drink-driving limit.

At Oban Sheriff Court, he admitted driving dangerously, without insurance and mounting a grass verge and going into the side of a marquee near Port Ellen on the island of Islay.

'Ensure abusers are held to account''Such cases are often the most challenging'