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The tyranny of the status quo: rethinking reform in the Scottish criminal justice system

February 12, 2017

In this article, Peter McEwan (Diploma in Professional Legal Practice) explores the Scottish Criminal Justice System and the way it deals with dock identification while drawing comparisons from other adversarial jurisdictions...

The tyranny of the status quo: rethinking reform in the Scottish criminal justice system

 “There is tremendous inertia – a tyranny of the status quo – in private and especially governmental arrangements. Only a crisis - actual or perceived – produces real change.”[1]

This statement formed the basis of Friedman’s economic doctrine, but its ubiquity can be seen elsewhere; including Scotland’s criminal justice system.

This article will examine two past examples where Scotland’s legal system has stagnated, a crisis has ensued, and positive change has soon followed. The purpose of this article is to offer an alternative to Friedman’s conclusion that only a crisis can instigate real change. Instead, evaluating reforms in comparable adversarial jurisdictions can improve Scotland’s criminal justice system by a proactive means, as opposed to reactive.

 HM Advocate v Anderson and the World’s End[2] case illustrate the need for an attitudinal shift towards reform and why a proactive approach to reform is desirable.

These paradigms of the reactive/proactive issue are followed by a live example - the practice of dock identification. This practice is when a witness is asked to identify the accused in the courtroom, who is always positioned in the dock. This method of identification is outdated, and has been rejected by numerous other adversarial systems. It ought to be abolished.

 

Founding principles and comparative law: two proposals for a proactive model

Within modern liberal democracies, criminal justice systems share objectives: each system wants to a) punish the guilty, b) protect the innocent, and c) do this fairly. This means there is potentially much to learn from any developments in other jurisdictions.

For any unique legal system, this factor represents an opportunity to holistically analyse international reforms, with the certainty that reforms will aim to further goals a), b) or c). Unfortunately, the following examples illustrate Scotland’s detachedness, rather than its openness towards comparative systems.

 

HM Advocate v Anderson, 2000

 

In the English case R v Edwards (Ralston),[3] the defendant utilised his right to represent himself under Article 6(3)(d) of the ECHR. Over the course of a seven day trial, he cross-examined the complainer wearing the same clothes that he had worn during the alleged rape. There can be no doubt that this was a degrading, humiliating and mentally scarring experience for the complainer. This highly unsatisfactory situation was reformed without delay in England;[4] clearly the ECHR had not been created to permit any depraved means of examining witnesses.

The Scottish Executive bemusingly decided that reform was unnecessary.[5] Almost inevitably, an accused used his rights under Article 6(3)(d) in similar fashion, this time to hector a 13-year old complainer.[6]  This wilful blindness from the Executive shows the difficulties that can arise if Scotland isolates itself from comparative jurisdictional reforms. It was thought that because Scots law had not suffered from the misuse of this right, it had no reason to act on developments south of the border.

 

Admittedly, this oversight, or crisis, produced real change. Sections 288C-F of the Criminal Procedure (Scotland) Act 1995 were introduced in 2002 and remedied the unfairness of personal cross-examinations in certain circumstances. This ‘real change’ demonstrates the flexible qualities of Scotland’s criminal justice system. It is unfortunate that this change only occurred when it became politically expedient to do so. A much more satisfactory resolution would have been to take account of the s34-35 of the Youth Justice and Criminal Evidence Act before HMA v Anderson. Instead, a miscarriage of justice was required in Scotland before any action was taken.

 

 

World’s End case, 2007

In 2007, there was a public outcry when Angus Sinclair was acquitted of the murders of two young women.[7] Later, Scotland’s rules on double jeopardy prevented a second ruling. This happened despite conclusive DNA evidence that had been discovered. This legal imbroglio produced real change via the Double Jeopardy (Scotland) Act 2011. Sinclair was convicted in 2014.

Notably, several years earlier Peter Duff had drawn attention to Scotland’s ‘lack of interest in “similar facts evidence”’, citing other jurisdictions. Duff analysed more evolved discussions on the topic and argued that Scotland’s position was in need of development.[8] The “Scots law of evidence might well have something to gain by adopting a broader and more analytical perspective”.[9]

The World’s End case and HM Advocate v Anderson share common features. Both illustrate shortfalls in Scotland’s evidence laws in areas that had been dealt with more robustly in other jurisdictions. In both cases, Scotland reacted to comparative influence when it should have proactively aligned with it.

Duff favoured the utilisation of comparative developments to improve Scots law. His own suggestions for improving similar facts evidence law were ‘heavily influenced by…some observations by Lord Hailsham and subsequent English and Commonwealth cases.’[10]  In one sense, I am merely encouraging Duff’s internationalist attitude to apply more broadly. The pursuit of goals a) b) and c) can be assisted and improved upon by evaluating reforms elsewhere. Duff’s comments on comparative law being objectionable to the ‘Scots purist’ are particularly instructive. Purists:

“might object to the suggestion that a leading English case, and the resulting jurisprudence, should influence Scots law in this way”.[11]

Comparative law is not a threat. There is little point in maintaining an unjust status quo. In reality, Scotland’s evidence laws disengaging with the international community show an aloof legal system – not a unique one. It is time that Scotland recognises this and adapts accordingly.

 

Learning from other jurisdictions: the practice of dock identification

To prove that this is a live issue, I wish to draw attention to Scotland’s practice of dock identification.

The fallibilities of eye-witness identifications have been well documented, with advances in behavioural science undermining the value of eyewitness testimony.[12] The science has coincided with a worrying number of proven miscarriages of justice. The US Innocence Project has used DNA evidence to overturn a large number of wrongful convictions. According to their estimates, eyewitness misidentifications have played a role in 70% of their cases.[13] That means over 200 people in the US have been wrongly remanded despite being identified as the perpetrator. The ‘misidentification crisis’ is not limited to the USA. The English case Laslo Virag resulted in a conviction following three identification parades where eight different witnesses wrongly identified the accused.[14] Mistakes continue to occur; a contemporary example is that of William Mills, who in 2007 was incorrectly identified by four witnesses and charged with robbing a bank in Glasgow. Without the subsequent revelation of DNA evidence it is very unlikely that Mills’ case would have been overturned.[15] In short, mistaken eyewitness accounts cause an alarming number of wrongful convictions.

 

Scientific studies have scrutinised different aspects of identification. Hancock, Bruce and Burton proved we are poor at recognising unfamiliar faces.[16]  Lacy and Stark’s study showed that memories are constructs and can therefore be distorted.[17] Simon Chabris conducted research that shows the general population is unaware that someone who confidently recalls an event is no more likely to be right than someone who is hesitant.[18] Furthermore, eyewitness testimony to a crime “may be enhanced or impaired depending on the person’s individual stress response.”[19]  Now, contrast these studies with the views of a  layman, who will ordinarily view a positive identification as fact. She may not know about the significant number of people who are convicted because of misidentifications. Nor is she likely to be aware of the behavioural science that suggests our memories are not like video recorders. If ordinary people are unaware of the scientific research, the legal framework should compensate for this by enforcing more rigorous methods of identification.

The vulnerability of eyewitness accounts mean that the inherent flaws of dock identifications should be condemned more vigilantly. It is a lax practice that has neglected scientific research. Lord Bonomy’s Report agrees:

“The inherent risks in, and scope for mistakes caused by, the use of dock identifications is obvious.”

These risks include the pressure on the witness to acknowledge the individual in the dock as the accused;[20] the potential for a dock identification to override more reliable methods of identification; and the length of time between the event and the identification.[21]

 

Yet there are still some members of the judiciary who argue otherwise. Lord Rodger was adamant that an accused’s position in the dock was a mere side-effect of their right to attend the trial.[22] Raitt and Ferguson disagree. The position of the accused in the dock ‘irresistibly associates the person there with the offences charged’.[23] The dock ‘carries special symbolic significance in the geography of the courtroom.’[24] With respect to Lord Rodger, it seems odd to argue that the accused sitting between two police officers in the dock is not suggestive to a witness. Indeed, Raitt and Ferguson’s analysis has now been tested.[25] In Australia, 400 mock jurors heard the same case. In one, the accused sat at the table with his solicitors. 36% of jurors issued a guilty verdict. In another, the accused was in an open dock. 47% issued a guilty verdict. In the third, the accused sat in an enclosed dock. 60% issued a guilty verdict.

This research has had a ‘significant practical effect’[26] in Australia. One academic has suggested that England & Wales should abolish the dock itself.[27] The USA does not require the accused to sit in the dock because it protects ‘the dignity of the accused, the presumption of innocence and the right to a fair trial’.[28] The latest research shows Lord Rodger’s reasoning was fallacious and that Raitt and Ferguson were correct. While other jurisdictions are discussing the potential prejudice of the dock to an accused, Scotland sits idly by.

 

Common responses to criticisms of dock identifications

Comparative jurisdictions have developed a more rigorous legal framework to mitigate the potential for misidentifications.  In Australia & Ireland, a dock identification is not permitted without a pre-trial identification parade. In England & Wales it is “almost never resorted to”[29] because it is thought to be “potentially unreliable.”[30] Scotland’s persistence with dock identifications without a pre-trial identification parade is inconsistent with other jurisdictions.[31]

Earlier, it was noted that Peter Duff foresaw the flaws in similar facts evidence. Here, there are numerous academics who have advocated the abolition of dock identifications. The Thomson Committee suggested Scotland adopt the rule seen in Australia and Ireland as far back as 1975.[32] More recently, Lord Bonomy’s Reference Group unanimously supported its abolition.[33]

Admittedly, other jurisdictions abolishing a practice does not in itself equate to it being unfair. If there were good reasons for its retention, this could be enough to justify it as a practice. There are two safeguards cited for justifying its retention:

 

 

The Corroboration safeguard

Members of the judiciary often note that dock identifications are subject to the corroboration safeguard.[34] If this statement is dissected, it appears that judges are tacitly acknowledging that in isolation, a dock identification is unworthy to the fact finding process. In other words, it may be unreliable, but it is acceptable because of the mitigating effect of corroboration.  This is a weak argument for keeping a practice that is patently unreliable.

 

The Judge will instruct the jury as to its unreliability

This argument is prima facie more appealing. A dock identification has been justified on the basis that a judge will give the jury clear directions on its potential unreliability.[35] The Jury Manual stresses the ‘duty of the trial judge to impress upon the jury the importance of assessing, with particular care, the weight which they should attach to visual identification evidence.’[36] Understandably, some members of the judiciary feel it is sufficient to draw the jury’s attention to its potential flaws.

One potential issue is that this warning is discretionary. Lord Bonomy’s report draws reference to the fact that many judges do not think it is necessary to warn the jury.[37] However, even if warnings were made mandatory, this would still ignore the evidence that suggests juries can forget judicial instructions.[38] Thus, I would argue that the merits of a judge unequivocally drawing attention to the dangers of identification evidence is a misguided means of mitigating its unreliability.[39] It is worth noting that an oral warning from the judge did not affect the juror’s decision in the Australian study mentioned earlier.[40]

Nevertheless, it seems peculiar to defend the practice of dock identification on the basis that a jury are capable of correctly weighing evidence. The law frequently decides what merits a jury’s attention; this is why there are extensive rules on hearsay and expert witnesses. Why would it be inappropriate to prevent unreliable forms of identification being heard by a jury? Leaving the jury to weigh unreliable identification evidence that may be ‘the evidential fulcrum of the criminal trial’[41] seems speculative when other types of evidence are excluded.

One judge warned that a jury must approach “such evidence with considerable care and anxious scrutiny.”[42] This seems to place considerable pressure on jurors who may be unaware of the counter-intuitive complexities of eyewitness accounts. This judge’s warning sits uncomfortably with a reluctance from the courts to admit expert evidence on eyewitness accounts. In HMA v Gage it was decided, rightly or wrongly, that expert evidence on an eye-witness identification would not be permitted. For present purposes, it is dubious to demand that a jury commits to carefully scrutinising a dock identification when they may be unaware of its complexities.

Scottish judges are resisting the scientific community’s declaration that eyewitness accounts are unreliable. The trial process must either improve eyewitness procedures, or allow for the contribution of expert witnesses. The dubious middle ground that we are currently operating in is unacceptable. Over the years, dock identifications have been scrutinised. The Scottish criminal justice system has enshrouded the practice with safeguards, fallacious reasoning and staunch aversion to reform. Would it be unfair to suggest that this is tantamount to playing with fire? If it becomes politically expedient to do so there will be no hesitation to cull this divisive method of identification. A proactive judiciary should support more effective ways of identification. Instead of positive averments in favour of dock identifications, its proponents adopt an excusatory approach to its retention. It does not breach Scotland’s human rights obligations, it is subject to corroboration, and judges can draw a jury’s attention to its inherent flaws. This mimics the neglect that led to the problems in HMA v Anderson and the World’s End case.

If Scotland’s criminal justice system wants to improve, it must compare itself with other jurisdictions. Ss34-35 of the Youth and Justice Criminal Act sought to improve the fairness of England’s system. Scotland should have followed its lead before HMA v Anderson. A more robust framework for similar facts evidence sought to punish the guilty. Scotland should have realised this before the World’s End case. Dock identifications have been dropped as a reliable method of identification in many jurisdictions to protect the innocent. Yet Scotland continues with it.

 

Conclusion

Scotland’s criminal justice system has a history of being slow to respond to developments in other jurisdictions. This has resulted in unsatisfactory situations in the past and this pattern threatens to continue into the future. The practice of dock identifications has been used as an illustration of this attitude’s pervasiveness. There may well be other examples.

 

Cross-border developments can shed light on Scotland’s procedural flaws. There are significant gains to be made by initiating a greater number of small, incremental reforms that have truth-seeking as their intent. Ultimately, this will assist Scotland’s criminal justice system in adhering to its overarching principles: to punish the guilty, to protect the innocent and to do this fairly.

 

 

[1] Milton Friedman Capitalism and Freedom (University of Chicago Press 1982) ix.

[2] SLT 2014 1092.

[3] (Old Bailey, August 1996, unreported).

[4] Youth Justice and Criminal Evidence Act 1999 s34-35.

[5] James Chalmers ‘Cross examination in sexual offences trials and the ECHR’ (2001) SLT 1.

[6] HM Advocate v Anderson (John) (High Court at Perth, June 2000, unreported).

[7] ‘Judge throws out World’s End case’ The BBC  <http://news.bbc.co.uk/1/hi/scotland/edinburgh_and_east/6986995.stm> (Glasgow, 10 September 2007) accessed on 14 September 2016.

[8] Peter Duff ‘Towards a Unified Theory of “Similar Facts Evidence” in Scots Law: Relevance, fairness and the re-interpretation of Moorov’ (2002) 4 JR 143, 143.

[9] Duff (n8) 143.

[10] Duff (n8) 144.

[11] Duff (n8) 146.

[12] Devlin Report 1976 para 1.2; McNally v HM Advocate [2012] HCJAC 156; Lord Bonomy ‘Post-Corroboration Safeguards Review’ 2015, 4.13-4.17; Bonomy Report (n11) 6.2; Paul Roberts & Adrian Zuckerman, Criminal Evidence (2nd edn, Oxford University Press 2010) 685.

[13] Eyewitness identification <http://www.innocenceproject.org/causes/eyewitness-misidentification/> accessed on 10 September 2016.

[14] Roberts & Zuckerman (n12) 686.

[15] Sylvia Rowley ‘Wrongful conviction throws spotlight on unreliability of eyewitness evidence’ The Guardian (Glasgow, 18 August 2009) <https://www.theguardian.com/uk/2009/aug/18/eyewitness-evidence-wrongful-conviction> accessed 14 September 2016.

[16] Peter JB Hancock, Vicki Bruce and Andrew Burton ‘Recognition of unfamiliar faces’ (2000) Trends Cogn Sci. 4(9) 330-337.

[17] Joyce Lacy and Craig Stark ‘The Neuroscience of Memory: Implications for the Courtroom’ (2013) Nat Rev Neurosci 649.

[18] Daniel Simons and Christopher Chabris ‘What people believe about how memory works: A representative survey of the US Population’ (2011) PLoS One 6(8).

[19] Joyce and Lacy (n17) 654.

[20] Bonomy Report (n12) 6.4; see Muldoon v Herron 1970 J.C. 30 and Bennett v HM Advocate 1976 J.C. 1 where the judges dismissed witness’ claims that the accused in the dock were not who they had earlier identified. Both cases resulted in convictions at first instance.

[21] Bonomy Report (n12) 6.4.

[22] Holland v HMA para 37.

[23] Fiona Raitt and Pamela Ferguson ‘Re-configuring Scots criminal procedure – seismic shifts?’ Edinburgh Law Review 2006 111.

[24] Raitt and Ferguson (n23) 111.

[25] Joe Stone ‘The Dock on trial: courtroom architecture and the presumption of innocence’ Archbold Review 2015.

[26] Stone (n26).

[27] Stone (n26).

[28] ‘Glass Cages in the Dock: Presenting the defendant to the jury’ Chicago-Kent Law Review Vol 86. Issue 2 (2011) 472.

[29]  Bonomy Report (n12) 6.11.

[30] Bonomy Report (n12) 6.6; David Ormerod Blackstones Criminal Practice (15th edn, Oxford University Press, 2015) at F18:6.

[31] Gage v HM Advocate [2011] HCJAC 40.

[32] Bonomy Report (n12) 6.6.

[33] Bonomy Report (n12) 6.47.      

[34] Holland v HMA 2005 S.L.T. at [35].

[35] Although even in Holland v HMA where the judge did not direct the jury, the appeal was unsuccessful.

[36] Jury Manual 16.1.3.

[37] Bonomy Report (n12) 6.43.

[38] Louise Ellison ‘Telling tales’: exploring narratives of life and law within the (mock) jury room’ (2015) Legal Studies (Vol 35, 2) 201.

[39] Roberts & Zuckerman (n12) 688.

[40] Stone (n26).

[41] Roberts and Zuckerman (n12) 685.

[42] Emphasis added, Jenkins v HM Advocate 2011 S.C.C.R. 575 at [46].

 

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