Scotland’s safeguards against wrongful conviction are eroding
From The Scottish Legal News online, today, we reproduce a concerning, and equally scathing, article written by Douglas McConnell of Duncan & McConnell Solicitors Ltd.
The author highlights the impact of the erosion of corroboration in criminal trials; a consequence of such has been an increase in applications to our organisation by a factor of 80%. Whilst safeguards have been introduced to protect the most vulnerable of complainers it is evident that said exceptions, as the article suggests, have become the rule.
As Mr McConnell aptly writes; “A system that convicts the innocent is intolerable.”
The article is reproduced, in full, below:
Changes to corroboration and the use of evidence from absent witnesses have weakened protections against wrongful convictions in Scotland, writes Douglas McConnell.
In more than 20 years as a criminal defence solicitor, I have watched Scotland’s criminal justice system evolve significantly. of those changes have been positive. Victims and vulnerable witnesses are treated with greater sensitivity than in the past. Technology has improved the way evidence is captured and presented.
Yet many practitioners, both defence and prosecution, are increasingly concerned about a different question: Whether, in our determination to modernise criminal justice, we have become less attentive to the safeguards designed to protect against wrongful conviction. That concern reflects an unease that a series of reforms, judicial decisions and evidential developments may have altered the balance of criminal trials.
Historically, Scots law recognised the dangers inherent in criminal accusations. People can lie. Equally, they can be sincere but mistaken. Memory is imperfect. Perception can be flawed. The law therefore developed safeguards designed to minimise the risk of error.
The most important of those safeguards was corroboration. For generations, an allegation alone was not enough. Independent evidence was required before a person could be convicted.
Technically, corroboration survives. In practice, however, many criminal practitioners would struggle to recognise it in its modern form. Through judicial developments, statutory exceptions and evidential workarounds, the protection that once distinguished Scots criminal law has been steadily diluted.
There has also been a gradual movement away from the traditional emphasis on testing evidence in open court. The increasing use of recorded statements, prerecorded evidence and other forms of prior testimony often serves important purposes. The difficulty arises when exceptions begin to feel less exceptional.
Recently, I was involved in a case where the complainer did not attend trial, yet the prosecution proceeded on the basis of evidence gathered earlier in the process. The defence position was straightforward: The allegation was false.
Ordinarily, such a claim would be examined through direct questioning and crossexamination of the complainer. That opportunity was absent. Instead of focusing on whether the allegation itself withstood scrutiny, attention drifted towards the explanation offered by the accused. The first obligation of criminal justice is not to convict the guilty. It is to avoid convicting the innocent. Everything else follows from that principle. I am not suggesting that miscarriages of justice are commonplace, nor am I advocating a return to an imagined golden age. But reform should never be judged solely by the problems it seeks to solve. It must also be assessed by what may be lost along the way.
If securing more convictions comes at the cost of weakening protections against wrongful convictions, we have not improved the system. We have merely changed the type of injustice it risks producing. A system that occasionally fails to convict the guilty is regrettable. A system that convicts the innocent is intolerable.
For much of my career, I regarded the conviction of an innocent person as a remote possibility. Today, I am less certain than I once was.
Douglas McConnell is a partner at Duncan & McConnell. This article first appeared in The Scotsman.
Mr McConnell’s article as produced by Scottish Legal News can be found HERE.
