The plan to turn Scottish justice into a liar’s charter

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By Kenneth Roy

If someone claimed to have seen me walking down the postage stamp (the short eighth) at Troon yesterday afternoon, watching the Amateur Championship when I should have been writing this column, that would not be enough in a Scottish court to convict me of neglecting my editorial duties. A supporting piece of evidence would be required to find me guilty beyond reasonable doubt.

Say, however, I made a clean breast of it and confessed to the offence, supplying evidence of what was happening at the postage stamp while I was there. That would provide the corroboration required to back the eye-witness testimony, although with a vital qualification. The jury would have to be satisfied that I gave my confession freely and didn’t have it bullied or beaten out of me by some golf-hating cop.

Let’s look at an example of corroboration – or the absence of it – in a more serious case involving a golf course. On 2 January 1956, Anne Kneilands, 17 years old, left her parents’ house in East Kilbride for a date with a boy she had met at a party a few days earlier. The boy failed to show at the rendezvous; he admitted later that he had decided to spend the evening with his mates instead.

What happened to Anne after she was stood up? Where did she go? Not home: we know that. Her parents waited for her for two nights. On 4 January her battered body was found near the fifth tee of East Kilbride golf course. Her injuries were horrific. The police were unable to trace her movements from the bus stop, where she had arranged to meet the boy, to the golf course. No witness ever came forward to say they had seen her that evening. Until the discovery of her body, it was as if Anne Kneilands had disappeared into thin air.

More than two years later, a serial killer, Peter Manuel, confessed to her murder, at the same time as he confessed to seven other murders. The confession took the form of a written statement in which he described meeting a girl at East Kilbride Cross, how the girl had said she thought she knew him, and how they had gone for a coffee together. Afterwards he offered to walk her home and she reluctantly agreed. He described the route of their walk. He pulled her into a gate, she ran away, he chased her across a field and over a ditch, and when he finally caught up with her he dragged her into a wood. She started to scream and he struck her over the head with an iron bar he had picked up. All this he described in his statement.

It was convincing in its detail and matched the medical evidence. But there was one important error: Manuel gave the date of her murder as 1 January, when Anne was at home, safe and well. What would a jury have made of the statement, so defective in one way, so telling in others?

The next question the jury would have had to determine was whether Manuel gave the statement under duress (as he claimed at his trial). It wasn’t a forgery; the handwriting was his. Two senior policemen swore that Manuel wrote it voluntarily, indeed that it was his idea. The jury decided in the other cases that these same policemen were telling the truth.

But the jury never got around to discussing the Anne Kneilands case. Before they were sent out to consider their verdicts, the trial judge, Lord Cameron, perhaps the wisest and most experienced in Scotland, directed them to find Manuel ‘Not Guilty’ of murdering Anne Kneilands.

Fine, there was the confession. But even if the jury decided that it was a credible confession – which they proceeded to do in the other cases – what else was there? Cameron ruled that there was nothing to link Manuel to the crime except a few scratches on his face for which there may have been an innocent explanation. The confession was not sufficient. The Crown case lacked what Cameron called ‘corroborative support’. There was nothing for it but to acquit Manuel.

So here was a case in which the Scottish requirement for corroboration – a requirement fairly unusual in jurisdictions around the world – fatally undermined the prosecution. Frustrating, of course, as well as deeply upsetting for Anne’s family: her murder formally remains an unsolved crime.

At this point, however, a word of personal testimony. Years of covering the High Court as a young journalist convinced me of the merits of the pesky insistence on corroboration. It may be unusual, but then so is our policy of convicting an accused with the barest majority of the jury: 8-7 is enough to send a man – or, increasingly these days, a woman – down for a long time. It seems to me that Scotland’s relatively high benchmark of proof, and our relatively low benchmark of jury agreement, cancel each other out.

My own experience tells me that the eloquent Donald Findlay QC is right when he says: ‘The price you may pay by abolishing this rule [on corroboration] is that more innocent people will be convicted. In the simplest terms, the evidence of a single, duplicitous, lying, skilful witness would be sufficient to put a person in prison for the rest of his life’. I would be amazed if most members of the Faculty of Advocates did not share Donald Findlay’s opinion.

Juries should be particularly wary of confession evidence, and the bland assurances of police officers on oath that these confessions were made freely.

I heard many dodgy such assurances from police witnesses. Sometimes juries accepted them, sometimes they didn’t. Either way it made the production of supporting evidence – corroboration – essential.

That is why the plot afoot in the Scottish judicial establishment to dispense with the requirement for corroboration should be resisted. Lord Carloway, a senior judge, has recommended that it should be removed as an obligation in Scottish criminal trials, for no better reason than to bring Scots law ‘into line with modern thinking’ (whatever that means). How convenient that he has now been supported in this view by the solicitor-general, Lesley Thomson, of hitherto low profile, who has decided that getting rid of corroboration would ‘help reduce the level of domestic abuse’.

No doubt it would. The abused partner would no longer need corroboration of events taking place in the intimacy of a family home. Potential abusers might think twice before lifting a hand – or something worse. But it is not necessary to possess the wisdom of Lord Carloway or Lesley Thomson to see a fairly obvious danger in the idea. It is basically a liar’s charter.

I hope the proposed reform is opposed by the Scottish Parliament. I fear it won’t be.

Courtesy of Kenneth Roy – read kenneth Roy in the Scottish Review