Last week nine High Court judges sat to hear the Lord Advocate argue an 87-year-old ruling on how the law of corroboration is interpreted acts as a barrier to justice, and as such should be overturned. Whatever decision their noble lords reach injustice will continue somewhere in the system and the question should be asked if one interpretation of injustice is simply being traded for another.
Thirty years ago I sat rigidly in the dock in Inverness High Court. A colleague in full dress uniform sat to my left. Between us – a man accused of rape. The evidence had been substantially heard before my stint on “dock duty.” I arrived as the prosecution case was coming to a close.
The experience was horrific. I listened to the testimony of the victim as she sobbed and wretched her way through her account. There was no chicanery on the part of the defence but the experience of retelling the ordeal was harrowing. Right there and then I was in no doubt the man sitting beside me was a rapist. A few hours later the verdict was returned – Not Guilty!
I never slept a wink that night and have often thought about that poor woman over the years. Ultimately that I believed her is of little solace as a jury of 15 had sufficient doubt to acquit.
Some five years later I found myself, as the police often do, in the midst of a tactical series of complaints in a messy marital breakdown. As is not uncommon in such partings, the man was accused by the woman of abusing their children. At that time custody was shared but favoured the father, and whilst I only ever saw the children with him they always seemed full of joy and were thriving. In the subsequent years, as the divorce was getting closer and more acrimonious, the frequency and gravity of complaints against dad continued resulting in periodic disruption to his custody of his children. The man went through years of anguish. He was never charged.
Some years after that I was sent to a primary school where a child had run off, was sitting astride the very high school fence and would not come down. The boy (no more than 9 or 10) was living with his father following his parents' separation. This day something that almost never happened, happened.
His mother, armed with a social work protection order – following her allegation the father was abusing her son – came to collect him. The boy was distraught and rather than leave with his mother, ran away. As we approached, the boy didn’t move. He was breaking his heart that he just wanted to go home to dad. We couldn’t comfort him and if we got too close he would make to leap off the other side of the fence into the nearby woods.
Unfortunately for the lad, I was faster than he was and I managed to pull him down.
The boy was devastated. He sobbed and fought to get away with every breath in his body. In the police car he was kicking and biting to get away; all the time he was an inconsolable snotty mess – he just wanted to go home. I held him – it was all I could do.
When we left him with the social worker shortly afterwards, he was terrified. I couldn’t speak. My dear friend Anne who was my sidekick that day tried to get me to process what had just happened. There were no words. To this day I do not know how that case was resolved but I know what we did, did absolutely nothing to help, and in my more reflective moments brings tears to my eyes to this day.
Fast forward to 2013 – the Scottish Government was advancing proposals to remove the corroboration requirement in Scots Law. Conference season was in full flow and I met a familiar friendly face at one of the seasonal outings – a remarkable woman who had dedicated years of her life to Women’s Aid and helped countless victims of horrific abuse over the years. Her view – shaped by her experiences was an allegation (of rape) alone should be enough grounds to convict – as it was better the odd innocent gets convicted than hundreds of guilty walk free.
I have always recoiled at the phrase “victim justice” as any prefix automatically distorts the meaning of what follows. Justice needs no preface – for justice is justice – no ifs or buts.
Justice is however imperfect. It is messy, it lets people down, takes too long to be delivered, and if delivered at all usually gives the wrong outcome in someone’s eyes. Injustice should not however solely be measured on whether something reaches a court, as for many innocents as well as victims, the process of investigation is in itself as devastating and life changing as the process of trial. That father and that child, like countless others like them were as failed by the justice system, as was the woman who I believe was raped, like countless others like her.
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William Blackstone’s principle is one I have never struggled with but it jars with many. Just look at those calling for the mass arrest of protesters – but only those protests they don’t agree with.
Historic examples of rounding up the innocent just to make sure you don’t miss the guilty are too horrific to list but are not restricted to those considered “bad” or tyrannical by convention. Find one of the countless innocents from Guantanamo Bay, whose only crime was to be obliquely accused, and ask yourself if the greater good was served by their incarceration and treatment.
Dick Chaney famously said; “I'm more concerned with bad guys who got released than I am with a few that in fact were innocent … I have no problem as long as we achieve our objective.”
Chaney traded justice for injustice. We would do well not to do the same.
Calum Steele is a former General Secretary of The Scottish Police Federation
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