John’s Speech in the Criminal Justice Debate

John Finnie (Highlands and Islands) (Ind): I thank the convener of the Justice Committee for the way in which she has chaired the committee and for her delivery of the report today—it must have been a challenging position for her.

Someone talked early on in the debate about putting party differences aside. Sadly, we have not heard that on either side of the debate. This debate should not be about personalities; it should be about the merits of the case. We should all accept that we can have different views and hold them in good faith.

Having said that, I remain absolutely resolute in my belief that a case has not been made that supports the abolition of corroboration. Corroboration is a fundamental building block of Scots law.

The cabinet secretary tells us that he has listened, reflected and acted and that a consequence of that is the setting up of the Lord Bonomy group. If I noted this correctly, the cabinet secretary said that the group would be balanced and effective.

The group has wide terms of reference, but I am disappointed that the status quo has been ruled out; it seems to me that the Government is limiting the scope of the group, which is not helpful.

Having said that, I think that the group is comprised of very good folk. I am grateful to my colleague Rhoda Grant for raising that. If the group could be broadened to include the likes of Rape Crisis Scotland, it would be all the richer for that.

However, I have some disquiet about the parliamentary process; I do not think that this is how we should transact business.

In the committee, Lord Gill told us:

“If there is a good solid … case for abolishing corroboration, there should be no need for any safeguards. The moment we say that there have to be safeguards, we are conceding that the change creates a risk of miscarriage of justice, which, in my view, it will.”—[Official Report, Justice Committee, 20 November 2013; c 3727.]

That is a very powerful source of evidence.

What we heard in evidence from the Scottish Human Rights Commission is that corroboration—

Sandra White: I know that it has mentioned miscarriages of justice, but is there not a miscarriage of justice for victims who cannot get heard at all and cannot get access to justice?

John Finnie: If there is one phrase that has characterised the debate and which has just become meaningless, it is “access to justice”. I want everyone—the accused and victims—to have access to justice. That is very important. Characterising the debate in any other terms is extremely unhelpful.

The Scottish Human Rights Commission told us that corroboration is a form of protection. Other forms of protection are available. I will certainly welcome the Bonomy review and read with interest what it comes up with. However, I stress again that this is not the way in which we should go about business.

Some protections have been offered, but they, of course, relate to solemn procedure, which represents only 10 per cent of the cases that are tried. That makes it clear that the 90 per cent of summary cases do not have those protections. This is a time when we have a record number of police officers and there have been great advances in technology. We have heard about some of the advances. Many advances in technology that are often cited as frustrating police operations actually enhance them, too. I say to my colleague Sandra White that a person can be a victim one day and an accused another day. We want the highest standards to apply for everyone.

It is certainly the case that the failure to prosecute is not always down to corroboration. There is a public interest to be served and the interests of the complainer have to be served. I had some disquiet—I have shared this information with the cabinet secretary—about some of the examples that we were given; there were very emotive cases. We cannot understand the minutiae of a case in two sentences. Some of the representation was less than helpful.

I want to move on to other aspects of the bill.

I am not convinced that there is a need to change the terms of detention and arrest. If we do so, arrest should have a definition. That is not only my view; it is a view that is shared with Lord Carloway and the Scottish Human Rights Commission. We have heard about the legal debates that will take place. We can be assured that there will be plenty around that in stated cases, notwithstanding the cabinet secretary’s assurances that the process will be streamlined.

I thought that the suggestion in the Scottish Government’s response that providing a definition would

“jeopardise the employment of … alternatives to court proceedings”

was very peculiar and strange. The idea that defining “arrest” would somehow impact on the issuing of parking tickets seems to me to be way off the mark. I welcome the word “de-arrest” not being used.

I am delighted that the letter of rights is on a statutory footing. Given what we know about the communication and literacy skills of people who find themselves in custody, it should be read out to people.

I am not convinced about the call for an extension of detention time by the police, and welcome the abolition of the 24 hours. I speak as a former police officer and the reality is that if the police were offered 48 hours’ detention, they would bid to get 72 hours’ detention. Again, I support the Scottish Human Rights Commission’s position that there should be six hours, with extension only in exceptional circumstances and only to facilitate rights under article 6 of the European convention on human rights, on the provision of a lawyer or interpreter.

Depriving someone of their liberty is a very important issue. As has been said, doing so must be based on evidence, not anecdote.

The idea of keeping a child in custody for more than six hours is from the dark ages. We need to look at that and issues to do with the age of criminal responsibility.

We are told in the Scottish Government’s response on the detention provisions that it is

“creating a mandatory custody review, performed by a senior officer not directly involved in the investigation”.

Good grief. Is that not happening already? If it is not, it certainly should be.

Investigative liberation cannot be summed up in 10 seconds, but it will be very problematic in rural areas, and I think that there are many challenges to come from that.