Consultation Questions
Question 1
Statutory Police Guidelines
Question 1) - Do you agree that Codes of Practice governing key aspects of
the gathering of evidence by the police in criminal cases (such as interviewing
suspects and conducting identification procedures) should be required by
statute?
Yes √No
Please feel free to provide any additional comments to support your answer
The Sheriffs’ Association agrees that, with a view to reducing the risk of
wrongful conviction due to mistaken identification by a single witness or a
false confession, two of the areas of concern identified in the work of the
Academic Expert Group when examining the approach to evidential
safeguards in different jurisdictions, Codes of Practice should be introduced.
Codes such as those promulgated under the English Police and Criminal
Evidence Act are perceived to work well and there is no reason to think that
they would not operate equally well in this jurisdiction if there is a statutory
duty placed on Scottish ministers to publish such codes. Where such codes
were not followed and an issue arose in relation to the admissibility of
evidence, although the existing common law test of fairness would apply it
is likely that such evidence would also be considered to be tainted by
unfairness and all parties would be forewarned of that likelihood. There may
be merit in a statutory exclusion of such tainted evidence unless the court is
persuaded that the breach is excusable and the evidence otherwise meets
the fairness test.
Question 2
Dock Identification (Report of the Academic Expert Group – Chapter 5)
Question 2A) - Do you agree that dock identification evidence should be
generally inadmissible?
Yes √No
Please feel free to provide any additional comments to support your answer
The Academic Expert Group has highlighted eyewitness misidentification as
a significant cause of wrongful conviction. Safeguards are required to
minimise that risk. The current Scottish reliance on dock identification in the
context of corroboration already carries recognised risks and judges are
expected to direct juries to take a cautious approach. Where there is no
safeguard of corroborative evidence the risk of misidentification is
increased. The presumption should therefore be against its admission.
Question 2B) - In what circumstances should dock identification evidence be
admissible?
Please provide comments
We are minded to agree with the Reference Group that there are some
circumstances where dock identification would be acceptable such as
where there is no real issue about identification (but if there is not it is open
to question why it is needed); where there has been identification in a
properly conducted pre-trial identification process (but again there may be
an issue about the purpose of dock identification in those circumstances);
where the accused has failed to cooperate with the pre-trial procedure; or
otherwise the court is persuaded that it is reasonable that it be allowed.
The Reference group suggests that such a mechanism should be engaged
at what they describe as an early stage in proceedings. We see merit in this
as it will force the prosecutor to focus on the issue of identification at an
early stage and should raise standards of investigation which despite the
availability of modern technology do not seem to have encouraged use of
identification parades (or VIPER parades) which do not seem to be as
common as they perhaps once were consistent with a very superficial
approach to the investigation of all but the most serious of crimes.
For Summary procedure we see no reason why that procedure should not
take place at the stage of service of the complaint. The prosecutor should
have dealt with the question of identification before instituting proceedings.
Accordingly it should be known whether dock identification will be sought
and a notice to that effect can be served on the accused with the Complaint.
Where that procedure is opposed by the accused a hearing can be fixed
within a short time after the pleading diet and prior to any Intermediate diet.
Service of an Indictment can take place up to 11 months after a first
appearance in court (on petition) in relation to charges, or can take place
without any petition appearance. In either case this event may be a long
time after the offence but there is not much time between service and the
trial diet. Unless the notice period for such an Indictment is to be extended
to more than 28 days before the trial diet service of dock identification notice
with the Indictment may come too close to the trial diet to be of any practical
value. It could be required at the time of the petition but there are a number
of practical objections to that not least of which is that the charges on a
Petition may bear little resemblance to those on an Indictment. It may be
inevitable therefore that for solemn proceedings the dock identification
procedure is separated from the process of serving an Indictment. There is
no reason that a notice cannot be served separately with a requirement say
that it must be served 2 months before the first diet, with a requirement of
opposition within 14 days. This still leaves an open question whether it is
possible to have a hearing on any opposition independent of the Indictment
process or whether inevitably such issues would be dealt with at the 1 st diet
albeit that could be very late. Our preference is for a stand-alone procedure.
Question 3
Confession Evidence (Report of the Academic Expert Group – Chapter 6)
Question 3A) - Should corroboration be required in cases where otherwise a
confession would be the sole evidence?
Yes √ No
Please feel free to provide any additional comments to support your answer
The Academic Expert Group identifies the potential for a miscarriage of
justice on the basis of a false confession where there are no requirements
for supporting evidence. This is a real risk that requires to be protected
against.
Question 3B) – Where a confession is corroborated by way of special
knowledge, do you consider that the defining characteristic of special
knowledge should be: (a) knowledge of a fact or facts relating to the crime
which could only be known by the accused if he was the perpetrator; (b)
knowledge of a fact or facts relating to the crime which were not in the public
domain; (c) some other formulation?
Please provide comments
Although there is an argument, given the response at 3A) that it is
unnecessary also to respond to Question 3B) the Associaion considers that
the concept of the special knowledge confession has in recent times been
diluted from the understanding that the knowledge which is special in a
special knowledge confession should be such that only if he was the
perpetrator could the accused have had that knowledge. If it is possible to
be convicted on the basis of such a confession spoken to by only one
source it seems an essential corollary that we revert to the original
requirement that the accused could only have come by that knowledge if
they were the perpetrator.
Question 4
Hearsay Evidence (Report of the Academic Expert Group – Chapter 8)
Question 4A) Should corroboration be required in cases where hearsay
evidence would be the sole or decisive evidence on which a conviction would
be based?
Yes √ No
Please feel free to provide any additional comments to support your answer
The Academic Expert Group clearly articulates the justification for this.
Question 4B) What additional (or alternative) counterbalancing measures
should be required where hearsay evidence would be the sole or decisive
evidence on which a conviction would be based?
Please provide comments
We propose that the additional measure which should be available in the
event that corroboration is abolished (and not retained even where a
conviction relies upon hearsay evidence) is the ability of the court to exclude
such evidence where the case for exclusion outweighs the case for
admitting it; and the ability of the court at the end of the evidence to direct
the jury to acquit if the evidence is unconvincing. This would require an
amendment to section 97D of the Criminal Procedure (Scotland) Act 1995.
Question 5
Jury Directions (Report of the Academic Expert Group – Chapter 9)
Question 5) - Do you have any suggestions as to how jurors should be
instructed on the law and how to consider the evidence in a trial? For
example, should they be given written instructions from the judge?
Please provide comments
The Sheriffs Association agrees that there is little or no evidence for
reaching conclusions as to what juries make of directions. There is however
agreement that the whole issue of directions merits separate consideration.
It can be considered independently of the question of corroboration and
safeguards.
An overhaul of the system of jury charging is a major piece of work requiring
careful consideration. Such a review process has resource implications as
would any proposal to rely upon written directions or flowcharts.
Question 6
Recording of Police Interviews (Report of the Academic Expert Group –
Chapter 10)
Question 6A) - Do you agree with the general principle that all
questioning/interviewing of a suspect should be recorded by audio visual
means?
Yes √ No
Please feel free to provide any additional comments to support your answer
Whilst the Association appreciates that there are some circumstances
where such interview recording may be difficult but with the availability of
the likes of body worn video cameras even if it is not possible or appropriate
to interview at a police station that should still be an option.
Question 6B) Do you consider that any breach of the Codes of Practice
governing interview procedure should normally result in that evidence being
inadmissible?
Yes √ No
Please feel free to provide any additional comments to support your answer
If an interview takes place in conflict with a published code we favour a
presumption against admissibility although the test for admissibility would
be one of fairness. Even though a code is complied with the fairness test
should still apply to exclude such interview if held to be unfair.
If this approach is not accepted then as a matter of principle the appropriate
test would be the common law test of fairness.
Question 6C) If you answered no, what do you consider should be the test for
admitting evidence where the Code has been breached?
Please provide comments
See above.
Question 7
No Case to Answer Submission (Report of the Academic Expert Group –
Chapter 12)
Question 7A) - Do you agree that the circumstances in which the no case to
answer submission can be made should be broadened, and that a judge
should be empowered to uphold a submission of no case to answer if he or
she considers that no jury or judge acting reasonably could find the charge
proved beyond reasonable doubt on the evidence presented?
Yes √ No
Please feel free to provide any additional comments to support your answer
Whilst the Association’s response reflects the view of the majority a
minority of Council were strongly of the view that the matter of quality is a
matter for the jury and that principle should not be interfered with.
Question 7B) – Should the accused be allowed to make a no case to answer
submission at the close of the whole of the evidence?
Yes √ No
Please feel free to provide any additional comments to support your answer
The Association considers that the example given of an unchallenged
defence expert witness casting doubts on the crown case is well made. The
right is available on appeal and it seems to make sense for it also to be
available at first instance to avoid unnecessary appeals.
Question 8
Jury Size, Majorities and Verdicts (Report of the Academic Expert Group Chapter 13)
Question 8A) – Should a jury be required to strive to achieve a unanimous
verdict or is a verdict by a weighted majority acceptable?
Unanimous verdict √
Verdict by weighted majority
Please feel free to provide any additional comments to support your answer
These questions are interconnected. It would be difficult to deal with all the
permutations. The Bill meantime proposes the retention of a jury of 15 but
with a need for a 2/3 majority for a conviction. The Association sees no
need to move away from the traditional size of jury but recognises that a
simple majority verdict is no longer justifiable. A 2/3 majority seems difficult
to reconcile with the requirement that the jury as a whole is satisfied beyond
reasonable doubt. In many jurisdictions a verdict of guilt requires unanimity
(unless the jury cannot reach such a verdict and the judge allows a qualified
majority verdict). If the jury size remains at 15 it seems more acceptable
that a majority verdict requires a minimum of 12. The Review Group does
not ask for views on the size of the jury and the subgroup recognises that
for cost reasons and to align Scotland with practice elsewhere there may be
some pressure to move to a jury of 12. We do not have any major issue with
that. In such a case we consider that the jury should strive to reach a
unanimous verdict. Where a qualified majority is allowed it should require a
minimum of 10 (if a jury of 12). On balance there is no good reason to
abolish the 3 verdict system however if only 2 verdicts are available then the
verdicts should, as a matter of logic, be Proven and Not Proven. There
should be no alteration the Scottish approach that if the case is not proved
beyond reasonable doubt an acquittal must follow with no scope for a retrial except in situations envisaged with the abolition of the double jeopardy
rule.
Question 8B) - If you answered “unanimous verdict” to question 8A, what do
you think the qualified majority should be, should the jury be unable to reach a
unanimous verdict?
-1 less than the total number of jurors
-2 less than the total number of jurors
Other √
Please feel free to provide any additional comments to support your answer
See above response to Question 8A.
Question 8C) – if you answered “weighted majority” to question 8A, what do
you think that weighted majority should be?
Two thirds (2/3) of the jury
Three quarters (3/4) of the jury
Other √
Please feel free to provide any additional comments to support your answer
See above response to Question 8A.
Question 8D) - Should the same number of jurors as is required for a guilty
verdict also be required for an acquittal verdict?
Yes
No
Please feel free to provide any additional comments to support your answer
See above response to Question 8A.
Question 8E) - Do you agree that the size of a jury in Scotland should be
reduced from 15 to 12 persons?
Yes
No √
Please feel free to provide any additional comments to support your answer
See above response to Question 8A.
Question 8F) - Do you think there should be 2 or 3 verdicts in criminal trials?
2
3 √
Please feel free to provide any additional comments to support your answer
See above response to Question 8A.
Question 8G) If you answered 2, what should these verdicts be?
Guilty and Not Guilty
Guilty and Not Proven
Proven and Not Proven
Please feel free to provide any additional comments to support your answer
See above response to Question 8A.
Questions 9, 10 and 11
Additional Comments
Question 9) - Do you have any comments to make on proposals raised in the
Report of the Academic Expert Group that have not been mentioned in the
consultation document?
Nil
Question 10A) - Do you think there are any additional matters to be
considered in relation to safeguards in solemn cases that are not raised in the
consultation document or in the Report by the Academic Expert Group?
No
Question 10B) - Do you think there are any additional matters to be
considered in relation to safeguards in summary cases that are not raised in
the consultation document or in the Report by the Academic Expert Group?
No
Question 11) - Do you believe that there would be any unforeseen
consequences arising from the changes discussed in the consultation
document or the Report of the Academic Expert Group? These could be in
relation to any aspect of the criminal justice system, for example the effect of
any possible changes identified on the position of victims and witnesses. If
so, what might these be?
It is almost inevitable that there will be unforeseen consequences. There
may be ‘unforeseen consequences’ without the safeguards. One which
occurs is the dashing of expectations that the abolition of corroboration will
lead to an increase in the level of convictions in rape and other sexual
offences. Justifying the abolition of corroboration on the basis of access to
justice fails to take into account the impact on a victim when a case which
might not have proceeded because of lack of corroboration does proceeds
but leads to an acquittal, possibly because the jury will look for supporting
evidence to convince them beyond reasonable doubt. That may not be
regarded as providing access to justice. Where currently a complainer may
reassured that non-conviction does not imply that (s)he was not believed
that is less likely following the abolition of corroboration, but the requirement
of safeguards may mean that lack of belief is not the only explanation.