JIMS – Justice for Innocent Men Scotland

Recent and very welcome newcomers to the battlefield,  JIMS (Justice for Innocent Men Scotland) has been formed to highlight and to challenge the lack of fairness in the prosecution of alleged sexual offending in Scotland.   We wish them well. Their campaign, which was started and is run by women who have experienced the personal devastation of the conviction of loved-ones, has its focus on the twin scourges of the Moorov doctrine, and the application of sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995.  These are, indeed, commonly encountered impediments to justice serving, in the former case, to smooth the Crown’s route to conviction and, in the latter, to hobble an accused’s ability to defend himself.   Looked at in these terms, we can see a pattern that is also clearly apparent from virtually every aspect of the process by which alleged sexual offending is now prosecuted in Scotland.  They are part, but only part, of what is a serious and growing crisis in the delivery of criminal justice here.

This is not wholly restricted to alleged sexual offending.   That the Crown Office admits to the previously unthinkable practice of having conducted a number of malicious prosecutions – for which, incidentally, no-one has been held to account – speaks to a justice system that has lost its way.  It speaks to a system where “justice” is no longer its aim or purpose, and where the state’s prosecuting authority is entirely unaccountable for how it exercises its considerable power.   But it is in the context of the prosecution of alleged sexual offending that the desperate failure of our criminal justice system is most pronounced.

My own take on this is a simple one.  Where you create – and publicly declare – a political imperative to increase the rate of conviction for a certain type of crime, as an end in itself, and in pursuit of that, you bend the law to make it easier to convict and progressively harder to defend, the inevitable result will be – and is – miscarriages of justice.  That this process has involved the wholesale removal of the rights of the accused ought, in my view, to have raised much more public alarm than it has; it seems we no longer care what is done in our name.  The problem with that, of course, is that by the time they come for you it will be too late.  And in the meantime, the toll of destroyed lives grows.

This is not accidental.  It is miscarriage of justice by design.   It is not just about the requirement of corroboration, although that is my focus here.  Recent attempts to remove juries from rape trials – for the specific and declared purpose of increasing conviction numbers – have so far been unsuccessful, but watch this space.  And it’s not a wholly recent development.  Where we are now is the product of incremental dilution of fundamental protections, over many years.  But it is in the prosecution of alleged sexual offending that this trend is most visible, and harmful.   Samuel Moorov, who gave his name to the doctrine, had his day in court in 1930.  He was charged with 21 counts of the assault and sexual assault of staff at his draper’s shop in Argyle Street, Glasgow.   The mechanism by which he was convicted, mutual corroboration of and by his numerous victims, is widely recognised as being reasonable, and unexceptionable, in the particular circumstances of Mr Moorov’s case.  This is because the parameters within which this could be done were narrow.  There had to be clear similarities between the complainers’ allegations in time, place and circumstances – ie the means by which the offences were committed.  Those requirements no longer apply.  By successive appeal court decisions we have reached, now, a situation where a client of this organisation has been convicted, by the Moorov doctrine, of two rapes, 23 years and 120 miles apart.  All the Crown now needs for a conviction is two similar allegations.

It doesn’t end there.   One of the series of developments in the law was that which permitted the Crown to find corroboration of a complainer’s allegations in “de recenti distressed state testimony.”   Where a witness testified that they had met the complainer shortly after the alleged assault and the complainer was in a distressed state, that evidence of distressed state would be corroborative of the complainer’s allegation.  Corroboration was to be found in the distress, not in the telling of it.  As with Moorov in its original form, there is at least a rational justification for this.  But consider the 2024 decision by a bench of nine judges in the appeal court, by a majority of 8 to 1.  They ruled that evidence of a third party, that the complainer had narrated the circumstances, or simply alleged the fact, of the alleged offence in question to that third party, would have corroborative effect both of the commission of the offence and of the identity of the alleged attacker.  The previously essential element of distress is no longer required.  This amounts simply to self-corroboration by means of what is hearsay evidence.  That is not corroboration at all, and we should say so.

In the nature of sexual offending, where there are rarely eyewitnesses, there can be obvious difficulties for the Crown in securing corroboration of the allegation, as the law requires.   This can put the Crown at a disadvantage, and it is ostensibly in addressing this disadvantage that the progressive relaxation of the requirement of corroboration in alleged sexual offending has been brought about.   The victims of crime have a right to justice.  But we have always recognised that our system is built on the right of the innocent not to be punished for crimes they did not commit.  This is a democratic imperative in any society where we, as citizens, voluntarily consent to the regulatory exercise of the powers of the state.  It’s why we have a notional presumption of innocence.  The immediate consequence of the removal of the requirement of corroboration, for one class of crime, is that innocent people are being convicted of that class of crime.  This was, and is, inevitable.   And how long will it be before the state, emboldened by rising conviction numbers, removes our fundamental protections across the board?

In 2009, in a case that had no sexual element, a bench of seven judges in the appeal court decided that there was no requirement, in Scots law, for a suspect to have access to a solicitor before being questioned by the police.  This was because Scots law provides sufficient protections to accused persons, most notably in the requirement of corroboration.  Two short years later Lord Carloway, who has recently retired from his role as Scotland’s most senior judge, completed a review of key elements of Scottish criminal law and practice.  One of these elements was the long-standing requirement of corroboration.  Oddly, his view by then was that the requirement of corroboration wasn’t an important safeguard after all, but rather it was an anachronism and an impediment to justice.  That particular reverse-ferret illustrates, handsomely, the direction of travel here.

In an adversarial justice system, such as ours, there are competing interests that require to be served.  The right of the victims of crime to have justice must be balanced against the right of the innocent not to be convicted.   The process of prosecution and trial is supposed to arrive at a reasoned conclusion as to whether the complainer is indeed a victim, or the accused innocent.  That balance is not struck where unfair advantage is afforded to one, at the expense of the other, and justice simply is not served.  It is miscarried.  The substitution of apparent justice for actual justice may serve short-term political ends, but it does not end well.

By the time they come for you, it will be too late.