The major changes facing Scots law
The historic nature of Scotland’s legal system is often cited as a cause for national celebration – defenders of the system argue that its underpinning rules and principles ensure that fairness, decency and compassion are offered to both the perpetrators and victims of crime.
But recent proposals to change cornerstone features of the criminal justice system are dividing legal and political circles across the country.
The Scottish Law Commission last month said prosecutors should be able to use previous convictions as evidence in trials – an idea that not too long ago would have seemed sacrilege.
Currently in all but exceptional cases, the jury is barred from hearing about the accused’s previous convictions.
Critics have said it weights the justice system in favour of the accused, citing that a change to the rules in England where previous convictions can now be revealed, does not impinge on a person’s right to a fair trial.
To highlight their case, they have pointed to two separate trials where Peter Tobin was convicted of the murders of two girls that were found buried in his garden. The jury at the Dinah McNicol case in England was told of Tobin’s previous conviction – the murder of Angelika Kluk – while the jury in Scotland at the Vicky Hamilton trial was not.
But opponents have rounded on the proposals; some of the country’s leading legal figures have said the plans would erode the presumption of innocence until guilt is proven.
The Law Commission proposal comes just months after it was recommended that another longstanding principle of Scots law is to be changed. As part of a wide-ranging review of the legal system, Lord Carloway advised the rule of corroboration, where at least two pieces of evidence are needed for someone to be convicted of a crime, should be scrapped.
The recent proposals have marked what some see as a transformational period for Scots law.
But not all are convinced change is a bad thing. Professor Peter Duff, an expert in criminal justice at Aberdeen University, thinks there is a tendency with some in the legal community to view all reform negatively.
He told Holyrood: “When change is mentioned there is very much a knee-jerk response and a lot of the reason why we are in the position we are in is for the last 70 or 80 years, Scots criminal law hasn’t really been interested in what’s happening elsewhere.
“It has been very insular and in many respects the sort of doctrines that everyone regards with great fondness are actually outdated, they have been ditched in many other jurisdictions because they are not suitable anymore.
“The potential changes to corroboration and the use of previous convictions are fairly major steps for Scots criminal law, but both of these initiatives simply bring Scots law into line with the criminal law in all of, or most of, the other common law jurisdictions. I don’t think there is anything to worry about. I don’t think there is any fear trials will become unfair.”
On the issue of previous convictions being made known to jurors, opinion is divided.
Patrick Layden QC, the lead commissioner on the project, said: “Evidence of how the accused has acted on another occasion is relevant to whether he has acted in a similar way in relation to the offence with which he is charged. It does not become irrelevant because he has been convicted on that other occasion.
“This report, if implemented, will ensure that the jury can consider all relevant information.”
Prof Duff added: “It [the proposed change] certainly brings Scotland into line with the position of most other common law countries, like England, Canada, Australia, New Zealand and so on, which have similar provisions that are generally called ‘similar facts evidence’. If implemented it is radical for Scots law, but it’s not radical in a world context, in fact, it just brings us into line with other jurisdictions and it seems to me to be a very sensible change.
“It means where somebody has committed acts in the past which are relevant to whether they committed the present crime of which they are accused then that can be considered by the court. At the moment we have a confused situation where under the Moorov doctrine, you can hear evidence of similar facts but only in certain limited circumstances and the boundaries aren’t particularly logical.
“My one concern would be, and I think this has been noted, that what is regarded as similar conduct in the past is defined too lightly and I’d like that tightened up so that the conduct in the past that you can use at a trial has really got to be similar and not just an offence of the same type, there would have to be similar circumstances.”
There have also been differing political views put forward.
SNP MSP Stewart Maxwell said: “I am very pleased at the outcome of this inquiry and hope that the Government will be able to change the law as soon as possible.
“Victims in Scotland must not be getting less protection than they do in England. It makes no sense not to have all the relevant evidence available in the prosecution of serious crimes.”
Scottish Labour’s justice spokesman, Lewis Macdonald, welcomed the report’s recommendations, adding: “To ignore the criminal history of a serial rapist or violent offender goes against what most people would call justice.”
Liberal Democrat justice spokeswoman, Alison McInnes, was not so welcoming, however.
“Stating prior convictions or referring to bad character may mar the fair and proper legal process we have in Scotland,” she said. “These proposals, taken together with Lord Carloway’s recommendations on ending the need for corroboration, could really call into question the impartiality of our justice system.”
Until 1887 Scottish juries had been entitled to know of previous convictions. But under the Moorov doctrine that followed, similar patterns of behaviour or acts which have never come to court may be used in evidence – but only if the defendant challenges the character of the prosecution witnesses.
Prof Duff added: “In Scots law we have had a sort of embryonic doctrine of similar facts evidence back in the early 20th century, and that took a wrong turn when it developed into the Moorov doctrine which restricted it.
“In all the other common law jurisdictions it continued to develop, Moorov stunted the growth in Scotland.”
But the proposal has been greeted angrily by some lawyers, who see this as the latest attempt to change the system.
Lawyer Gerry Brown said: “There’s an old saying – ‘You can’t bring a skunk into a court and then ask the jury to ignore the smell.’ If you are a juror in the High Court listening when a girl says she’s been raped by a man – and then it’s revealed that seven years ago he was convicted of raping another girl, what is the chance of you acquitting?”
Derek Ogg QC, who until recently was lead prosecutor at the National Sexual Crimes Unit, said: “People aren’t charged with their previous behaviour, they are charged with the specific facts of a specific crime. Everyone goes into court with the presumption of innocence; everyone goes in with a clean sheet.
“I’ve spent the best part of the last five years prosecuting sexual offences, prosecuting people charged with rape. I’ve never had a single case where I’ve felt the need to go to previous convictions in order to get a conviction in a case where there is sufficient evidence.
“Really, all we want in Scotland are fair trials, and a fair trial means you have to have a presumption of innocence.”
Advocate Niall McCluskey said: “This is not conducive to a fair trial. It is ironic that under an SNP Government our criminal justice system is becoming more and more like the English system.”
The Scottish Government gave the commission three projects in 2007, the first two – on Crown appeals and more recently, double jeopardy – have passed into law.
Its report calling for a suspect’s previous convictions to be revealed during criminal trials is arguably the most controversial, and its passage into law may be much more time consuming and divisive.