Monthly Archives: December 2013

Government, Legal, Scotland

Abolishing the law of corroboration in Scotland?

CORROBORATION

Corroboration has been a central tenet of Scots Law for centuries. This invokes the necessity that evidence in criminal trials from one source must be backed by evidence from another source.

Just because the legal principle is old, should not necessarily mean that it no longer serves a modern purpose or, indeed, that it must be preserved. What matters more is whether changing the requirement for evidence in criminal trials would produce more benefit than loss to the judicial process.

Related:

On this criterion alone, the debate on abolishing the corroboration requirement in Scotland looks less clear cut the more it continues. The contribution put forward by Professor Peter Duff of Aberdeen University is timely – and also well known – when he says that abandoning the need for corroboration may well yield much more information in criminal cases, but may also, less helpfully, muddy the waters.

For instance, in rape and sexual assault cases there are usually only two witnesses – the victim and perpetrator of the crime. Finding and bringing forward a corroborating witness is, therefore, often not possible. Because of that, it is argued, many potential prosecutions do not get to court – to the great anguish of the victim who is denied seeing justice being served. Abolishing the corroboration requirement would likely see more prosecutions.

But Professor Duff questions whether more convictions would be the result of changes to the law. A problem with sexual assault cases, he says, is that many victims at the time of the alleged assault may have been drinking, or have taken drugs, or have mental health problems. And, as is frequently common in criminal trials of this nature, the alleged perpetrator’s usual defence is that the supposed victim consented to sexual activity. Assuming that the corroboration requirement had been abolished, then the credibility of the victim and their denial of consent is pretty much all that is left to the jury as the basis for reaching a verdict. Prof Duff describes this as a ‘he said, she said’ scenario in which, he suggests, juries are reluctant to convict.

For some legal practitioners and advocates, the insertion of the drink, drugs and mental illness circumstances will be a misnomer. Women in these conditions may be more vulnerable to being sexually assaulted, but why should that make them less credible in their evidence, especially when the accused may also have been under the influence of drink or drugs?

Prosecutions in England are not based on the need for corroboration, and proceed on the basis of there being a reasonable chance of a conviction. Whilst this is a relevant point borne out by Prof Duff, the anecdotal evidence suggests that the conviction rate is no higher than in Scotland.

Abandoning the corroboration requirement, which the Scottish Government seeks to do, will simply shift the chances of a successful prosecution on to another equally intractable problem, that of the complainant’s credibility. This might offer the victim an opportunity in court in bringing to light the alleged crimes of the assailant more openly, but this is not the purpose of the Scottish Government’s proposed legislation, which is to increase the rape conviction rate.

Abandonment of a centuries-old legal principle in Scotland that has otherwise served the ends of justice well should only be done when the potential gain is overwhelming. It is extremely doubtful whether this will ever be the case.

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Britain, Economic, Finance, Government, Politics, Society

An alternative to the Chancellor’s plan to permanently shrink the state…

 ECONOMIC MANAGEMENT OF THE PUBLIC FINANCES

George Osborne’s plans delivered within his Autumn Statement last week lays bare the neoconservative strategy. Hidden amid the plethora of all the other numbers, the Treasury has announced a further year of austerity spending for 2018/19 – the ninth in a row. This Autumn Statement, however, was different, because it was the first where the Chancellor has called for a permanent, structural shrinking of the state.

Since 2009, the Treasury has sought to return the public finances to roughly where they were before the crash. Now, though, out of political choice, Mr Osborne is proposing that government spending should fall, as a share of national income, to far below its pre-crisis level.

In 2007, public expenditure equated to 40.5 per cent of national income. It increased rapidly to 47 per cent by 2009, mainly due to the economy shrinking, rather than rising spending. Since then, the Treasury has been clawing its way back towards Labour’s level of spending, and in March Mr Osborne’s plan was to reach the pre-crisis benchmark by 2017. Within this year’s Autumn Statement everything has changed – without any announcement, the Chancellor pencilled in a cut of 38 per cent of GDP for 2018.

Historically, when public spending slipped this low it was because the economy was extremely buoyant. In the late 1990s, for instance, Tony Blair’s government were caught off guard, with inherited Conservative spending plans and a booming economy. This time is different; despite a recovery that is helping to move the country out of recession the economic projections are far from impressive, and the strain of shrinking the state is to be borne solely by spending restraint.

Examining the detail will reveal that, in 2016 and 2017, the plan is ‘more of the same’ – total real spending is to fall at a similar pace to that from 2011 to 2015. Then, on top of seven years of cuts, spending in 2018 is to be frozen, even though economic growth is predicted to be 2.7 per cent.

If implemented, there is only one conclusion that may be drawn – the end of public services as we know them. By 2018 spending on services would be almost 20 per cent lower, and that’s on a comparison with today. And if the government remains adamant in protecting areas like the NHS, international development and schools, other government departments would face cuts of up to 40 per cent. In reality, this will mean many services spending less than half what they did a decade previously. The only option in limiting this damage would be more severe cuts to welfare. It is difficult not seeing pensioner benefits, which form the bulk of welfare spending, not being affected in some shape or form.

A shrinking state. Graphical variations between the Autumn Statement, the March Budget and proposals put forward by the Fabian Society post-2015.

A shrinking state. Graphical variations between the Autumn Statement, the March Budget and proposals put forward by the Fabian Society post-2015.

The Treasury plan is wilfully counterproductive in terms of the government’s proposals for public investment. Following the Autumn Statement, the Office for Budget Responsibility (OBR) revised down its expectations for business investment as a driver of recovery, but this suggests by implication that public investment is needed more than ever. Yet, for two years after the election it is to be flat in real terms. This can only amount to a further decline (as a share of GDP), and will become a further restraint on growth.

In October, the Fabian Society Commission proposed another way with its Future Spending Choices. It argued for a significant boost to public investment and for overall spending to rise after 2015 by one per cent a year for two years. This, the Commission says, would take spending as a share of national income to the pre-crash benchmark of around 41 per cent of GDP. After that, expenditure should return to trend and match annual rises in GDP.

The Fabian Society’s proposed spending path is compatible with sustainable public finances but diverges hugely from the government’s spending plans. By 2018, there would be almost £40bn more to spend, enough to turn the Chancellor’s massive cuts to public services into a freeze. This still assumes tough spending decisions to be made, but public service meltdown could be avoided. Mr Osborne’s plans should thus not be interpreted as inevitable or even necessary.

Labour should take the opportunity in delivering post-2015 plans. They should define an alternative, so that the Conservatives do not set the terms of the fiscal debate as the general election draws near.

George Osborne’s ideological cuts are just one route to sound public finances, but many others are also available. Many will say that we do not need to deliberately shrink the size of the state to such levels that the government now seeks. Overshooting pre-crisis spending should not be the objective of any future Labour government.

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Britain, Government, Iraq, Legal, Military, Society

Iraq: ‘Single inquiry called for over British abuse allegations’…

Intro: On February 8, 2010, the writer penned an article that was visited several thousand times over by interested readers. That article is reproduced here:

ABUSE CLAIMS

A SENIOR JUDGE has told ministers to consider opening an independent inquiry into all allegations of abuse made by Iraqi civilians against the British Army. The move could lead to the biggest investigation into military malpractice ever heard in Britain.

Mr Justice Silbert, in a note written to counsel acting for Bob Ainsworth, the Defence Secretary, has told the Government:

… ‘My provisional view is that I am uncertain what is to be gained by the Secretary of State continuing to contest these claims for investigation.’

The judge, who is responsible for the management of claims before the court, says he is concerned about the cost to the taxpayer of hearing 46 outstanding individual cases, and the likely impact this would have on the resources of the High Court. It is estimated that the cases will take a decade to go through the courts at a cost of tens of millions of pounds to the taxpayer and warns that not holding an independent single inquiry could lead to a “further waste of valuable court time”.

Mr Justice Silber says the Ministry of Defence has already shown itself to be “unable to give proper disclosure” in the case of the Battle of Danny Boy in 2004 in southern Iraq, where it is alleged that British soldiers murdered Iraqi civilians.

The judge’s note emerged at the same time as the Government was served with the first claim of abuse brought by an Iraqi woman.

Samahir Abbas Hashim, (32), six months pregnant at the time of the alleged assault, claims she was so badly beaten by British soldiers that she lost her baby.

At 2am, on 21 June 2006, Mrs Hashim says she was sleeping with her children on the roof of her home in Al-Zubayr, Basra. Her husband was sleeping downstairs.

She alleges she awoke to the sound of a large explosion which blasted open the front door of her house and heard British soldiers running inside, shortly after. Some of them pinned her husband to the ground while others rushed to the roof top where she had been sleeping. Mrs Hashim says she was frightened and rushed to protect her youngest child. At this point, she declares, a female British soldier kicked her in the back. As a result, she says, she suffered a miscarriage the next day.

Lawyers acting for Mrs Hashim have written to the Ministry of Defence claiming that her case is clear evidence of “systematic and gratuitous abuse and degradation of Iraqi women by British forces”. Further allegations have been made in eight other cases brought by husbands and relatives of women who say they have been assaulted. The allegations include claims that British troops subjected Iraqi prisoners to rape, sexual humiliation and torture.

Public Interest Lawyers, a firm which is representing 66 Iraqis in 46 separate cases, argues that the Government must hold a single inquiry into the UK’s detention policy in south-eastern Iraq.

…’There are so many cases and so many have so much in common – similar allegations at similar facilities, often involving the same people. We can’t have these dragged out over 10 or 15 years. This is the only rational option.’

..

TWO public inquiries have already been launched. The first, into the death of hotel worker, Baha Mousa, (26), in British military custody in September 2003, began hearing evidence last July. It is looking specifically at how ‘prisoner-handling techniques’ banned by the Government in 1972 – including hooding, food and water deprivation and painful “stress positions” – came to be used in Iraq.

And, in November, the Ministry of Defence announced details of a second inquiry into allegations that Hamid Al-Sweady, (19), and up to 19 other Iraqis were unlawfully killed and others ill-treated at a British base in May 2004 after the Battle of Danny Boy.

Bill Rammell, the Armed Forces Minister, has so far resisted calls for a public inquiry into the treatment of detainees by British forces. However, an MoD spokesperson said that Government lawyers were actively looking at complying with the wishes of the Iraqis.

On the claim being made by Mrs Hashim, Mr Rammell said:

… ‘The MoD recently received a letter alleging the abuse of an Iraqi woman, but has not yet been given any evidence. Abuse allegations are thoroughly investigated, as this one will be, and – where proven – those responsible are punished. However, these are allegations and must not be taken as fact.’

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