Friday, 17 January 2014

Truth sacrificed at the altar of expediency

[A letter from Justice for Megrahi committee member Iain McKie was published yesterday in The Scotsman.  It reads as follows:]

As an ex-police officer and justice campaigner I welcome Lord McCluskey’s observations in respect of the Scottish Government’s appalling decision to abolish the legal requirement for corroboration.

In 2006, in a Scotsman article, His Lordship, commenting on my daughter Shirley McKie’s fight for justice, observed that the Lord Advocate was traditionally the watchdog of justice.

“The Lord Advocate has to nourish and assert the independence of the law officers’ role in the administration of justice. The threat to that independence invariably comes from the political power.”

Lord McCluskey’s latest intervention is equally prescient and the threat he speaks of is all too apparent in the current incestuous relationship between the Lord Advocate and Cabinet secretary for justice, which has arguably led to their current consensus on corroboration.

Your leader goes on to say: “His lack of faith in the reliability of police evidence rings a warning bell about any moves to diminish the legal protection afforded to the accused in the Scottish courts.” The decade of suffering of my daughter, Shirley, at the hands of the police and prosecution services who were prepared to sacrifice truth and justice in their attempts to bludgeon her into submission bears vivid testimony as to the relevance of his warnings.

As a justice campaigner, I am sad to say the lessons have not been learned and I believe the removal of corroboration will give the green light to a minority of police officers to further push the boundaries in their pursuit of their version of justice.

To the doubters I would offer one word, “Lockerbie”, as proof of the system’s ability to sacrifice truth at the altar of expediency.

Lord McCluskey’s warning that “policemen are not saints” resonates even more powerfully now that we have a powerful centralised police service.

I would offer support to the opposition calls for a Scottish Law Commission or Royal Commission on the issue.

I would go further, however, and argue that in the face of the current government’s piecemeal first aid legal reforms we need such a commission into all aspects of Scottish criminal law. 

[A further letter from Iain McKie published in the edition of The Scotsman for Saturday, 18 January ends with the following sentences:]

The core of what Lord McCluskey said still rings true: “A fundamental concern of the courts is to ensure that injustice is not done as a result of the too-ready acceptance of claims by alleged victims: their evidence needs to be independently tested.”

No amount of rhetoric or bluster can hide the fact that the politically expedient removal of corroboration is a catastrophic decision that will bring succour to neither victims nor the falsely accused.

As a believer in the principle of independence, I wonder what the apparent failure of justice minister Kenny 
MacAskill to listen to the mass of voices raised against him tells us about life in an independent Scotland.


  1. "As a believer in the principle of independence, I wonder what the apparent failure of justice minister Kenny 
MacAskill to listen to the mass of voices raised against him tells us about life in an independent Scotland."

    The first answer is that we shouldn't assume that in an independent Scotland MacAskill would be Justice Minister. There will still be elections and the SNP could lose power.

    That said, I understand why you make such points about MacAskill as "Justice" anything given the many things he has done in that role from the "emergency" legislation to address Cadder (into which he threw the re-drawing of the SCCRC's powers) to the abolition of corroboration.

    It is said the latter proposal is to aid the (female) victims of rape and other sexual and domestic offences. I've paid attention to the arguments. I still would retain the need for corroboration.

  2. Dear Jo,

    Good to see you back.

    You say: "It is said the latter proposal is to aid the (female) victims of rape and other sexual and domestic offences." You are quite right to say that there is still a need to retain corroboration. It is vital. Both Mulholland and Angiolini before him have sought to manipulate public opinion by suggesting that corroboration makes it more difficult to convict and works in favour of the perpetrators thus leaving COPFS and the victims of crime high and dry. Their solution is not to build stronger cases against the accused but to dilute the law via Cadder, the abolition on the prohibition of Double Jeopardy and the further abolition of the need for corroboration in order to acquire soft convictions and deny appeals that could question those convictions. This, of course benefits all the authorities involved: COPS, the government and the police. It will not, however, benefit those who fall victim to the miscarriages of justice resultant from these legislative moves.

    So, the authorities will be able to bask in increased crime clear up rates based on a legislatively convenient fiction, the victims of crime will feel satisfied that someone, anyone, has been sent down for an offence, and, the potential is that the proportion of innocent people incarcerated will increase relative to that of those who truly dunnit.

    I am ashamed of Scotland's criminal justice system and the direction it is taking right now.


  3. "Corroboration"
    - "... a unique feature of Scots criminal law ... the requirement for corroborating evidence means at least two different and independent sources of evidence are required in support of each crucial fact before a defendant can be convicted of a crime...

    However, testimony from some experts, such as forensic medical examiners or doctors, is accepted by courts on the basis of the expert's report alone.

    No mystery that this is unique Scottish legal feature.

    There are single instances of proof which weigh much higher than two corroborating ones. So we patch with 'forensic medical examiners or doctors'.

    Whenever somebody gives a statement, we will need to evaluate
    - whether the person is particularly likely or unlikely be wrong
    - whether the person would have reasons to not give correct information.

    One good statement can be better than two bad ones.

    I have scanned the 1st Zeist verdict for the sequence 'corrobo'. Twice only! None of them directly relevant for the verdict for Megrahi.

    Scotland does not need artificial legal constructions. You have already plenty enough to have your lawyers and judges producing any amount of pages you like.

    I have seen the two verdicts against a man where two unreliable witnesses was the only thing that directly linked him, the person, to a crime.

    Could the problem be elsewhere:
    a legal system, detached from common sense and down-to-earth reality, screwed up top-down by self-sufficient people, political expedience and cameraderie with the police?

    And so under indirect pressure from female voters' groups that can't see that EVIDENCE is needed in rape cases too? And that this _will_ mean that women at times are raped and the culprit walks free but there is no alternative.

    Solution: Let's discuss corroboration!

    Well, that is what it looks like to me.

  4. I forgot to bring the link to an article that came up when learning about your 'corroboration'.

    This is just an article, but the point is, that evidence, not 'corroboration' is what it is all about.

  5. If somebody should say 'Who is this non-Scot who thinks he has any idea about what would be good for Scottish justice?', I'd understand it.

    In fact, I am sure that if Iain McKie believes that keeping up the corroboration-thing is the best way to minimize Scottish injustice, it is probably right. He has seen it all, on nearest hold, from its ugliest side.

    But not because the idea is right. It isn't. Applying artificial constructs (with out-of-necessity chosen ad-hoc exceptions (with historically uncertain performance)) would usually not help justice.

    In science we see no equivalent construction to determine conclusions or to reach scientific consensus. OK, law is not science, but it would like to be, and pretends to be, so let's not complicate matters. The more rules, the more discussions to get lost in.

    Corroboration neither saved Shirley nor Megrahi, did it?

    Keeping it up may be the right thing to do, what do I know - but it is symptomatic treatment, only justified when the underlying disease can be cured.

    - - -

    Now, somebody might say 'Hey, again you don't know what you are talking about! Don't get the idea that all judges in Scotland are as poor as the three Zeist guys.'

    If so, where are the statements, the writings, the letters? Pro or contra Megrahis conviction? Pro or contra other cases you have had over time?

    I believe that among no other professionals you would see such a bunch of passive yes-sayers. In the army, maybe, but they can at least claim it is their job.

    One guy speaking up would be fired. Ten guys would change the system, for the benefit of all.

    But they are not there. Exceptions are rare. Here's one:

  6. I really don't like that barbed comment at the end about "life in an independent Scotland". It's life in today's Scotland. Will it be better or worse with independence? I don't know, but if anyone seriously believes that Westminster is a pillar of rectitude and we are all safe under its benevolent rule, I'd like to know what they're smoking.

    Kenny MacAskill is one man, who has been in his present job too long. An independent Scotland will have elections every few years just like any other normal democracy. The big difference is Scots will get what they vote for, instead of what the South-East of England votes for.

    To paraphrase something said to someone who was criticising Salmond. "Kenny MacAskill is mortal. Scotland is immortal." The referendum is about far more than one politician or even one political party. It's about taking control and acquiring the power to boot out complacent and corrupt politicians and lawyers. Among other things.