Lord Carloway, Lord Justice Clerk, is no stranger to controversy as the author of the proposal to abolish the longstanding Scottish requirement for corroboration of evidence by more than one independent source of evidence in a criminal prosecution.
Now he is setting his sights on the criminal trial itself and the associated rules of evidence that he suggests have trapped procedures in a structure that made sense in the 19th century and before but is no longer the guarantee of ‘best evidence’ in the 21st century.
It is a theme touched on before Christmas in a speech by Lord Judge who retired last summer as Lord Chief Justice in England and Wales in the context of slashing the number of children who are called to give evidence in court. But Lord Carloway has been thinking in far more radical terms.
I’m not sticking my neck out too far to predict that his latest intervention will cause no less apoplexy within the profession.
Speaking to me last week Lord Carloway said we need some “clear skies thinking” that will make best use of technology in recording matters of fact and give more consideration to witnesses in offering their testimony at a time that is convenient to them rather than the diaries of paid lawyers and judges.
“This idea that everybody comes together at the once place at the one time for a trial of the evidence is essentially borne out of the conditions that existed in the 19th century and before. There was no means then of accurately recording what people had said at the time of an incident.
Equally there were no means of copying other than manually or recording the state of a “thing” – a production. You had to have a system where the judge and the jury had to see and hear the witnesses personally. It was the only way it could be done. The ‘best evidence’ was to have the thing or the document or the witness ‘live’ in court in front of the judge and jury.
What I’m saying is that the system of justice should be putting in place systems for the gathering evidence that take advantage of modern technology. An eye witness could record what they saw as soon as possible after an incident on a smart phone or similar. That is likely to be a more accurate account – reliable or not - of what they they think they saw than a statement written down by a police officer which inevitably loses nuances and expression and which they may have to speak to a year or more after the event.
We should seldom require people to attend court when they could be giving their evidence at any time. Especially in relatively minor cases – though it would apply across the board – we could have a situation in which a witness can give evidence on video – even on a mobile phone at a time convenient to him or her and that would be accepted by the court as their evidence.
I’m not saying the current structure of the criminal trial isn’t by and large doing what it ought to do. I have faith in its general effectiveness but like all systems it has to change with the times. We could do better in the way we treat victims, witnesses and juries. Judges and lawyers are paid for their part in the process and have control over their diary. I think we need to give more consideration to the way the process affects the lives of the members of the public who are drawn in by chance and accident. Why doesn’t our system allow them to give their evidence when it is convenient to them and not when the legal professionals have fixed some dates in their diary that suits them?”
Lord Carloway suggests giving more consideration to the convenience of the witnesses may address some of the disruptions to prolong cases at inconvenience to all parties and at expense to court budgets: “Adjournments and postponements were not common features in the Victorian age but times have changed. Now trial diets are continued 3, 4 or 5 times when a witness or even the accused fails to turn up. Waiting time, which is fundamentally wasted time, is inherent and endemic in the current system and impedes rather than ensures justice in many cases.”
Lord Judge gave a speech at the end of last year saying that it is unsatisfactory that tens of thousands of children are called to give evidence and cross examined, sometimes for days, in court. Is that the best way of establishing the facts of their evidence? We are some years ahead in Scotland in that regard with the Children and Vulnerable Witnesses Act and the Victims and Witnesses Bill currently in Holyrood that allow for video-recording of taking and testing of evidence ‘live’ but not necessarily at the same time as the rest of the trial. The video can be played to the trial.
The point I am making is that why should that not become the norm for all witnesses unless there is a strong reason for it to be done in court.”
Lord Carloway anticipates the predictable European Convention of Human Rights objection protecting the right to a fair trial. What, for example, about cross examination?
“There is a right to examine witnesses. Article 6 of the ECHR sets out a right that has to be protected that an accused person – or indeed the prosecutor – has the right to examine a witness if that testimony is key or decisive. The fact that the right exists to challenge or test evidence does no specify that it should be done in a court room or carry with it the necessity that it is done at the same time as everything else.”
News of Lord Carloway’s latest thinking caught Brian McConnachie QC rather by surprise. His first response was not enthusiastic.
“Video recorded evidence has been available for child witnesses for some time. But children are the exceptions. I don’t think they represent a principle that has been demonstrated to be so successful it can be applied to all witnesses.
I am all in favour of using whatever technology we have to make life easier for people who find themselves cited as a witness but that is a long way from taking apart the criminal trial as we know it. Technology may be able to offer useful improvements but anything more far reaching than that should be sent to the Scottish Law Commission for detailed consideration.”
The reservations were echoed by Derek Ogg QC: “In my experience both as a prosecutor or defence lawyer live examination and cross examination in front of a jury and in the presence of the accused is best evidence. We now have systems of videolink for children and vulnerable witnesses but it is second best. That’s why the defence rarely object to it. We don’t want juries to watch evidence in the same way they’d watch reality TV.
The only law I’ve found infallible is the law of unintended consequences. We really need a royal Commission or similar to look at the whole of the criminal trial to make sure we don’t throw the baby – justice – out with the bath water.”