Eamon Keane

The proposals in the Coronavirus Bill (at Schedule 4 Part 6) cause me considerable concern. The provisions, as currently drafted, would permit the admission of hearsay evidence as proof of fact, by amending s.259 of the Criminal (Procedure) Scotland Act 1995, on the basis that “it is not reasonably practicable” to secure a witness’ evidence due to the coronavirus.

The problem is that this legislation (s.259) removed the discretion courts previously enjoyed under the common law to exclude hearsay evidence if its permission was prejudicial to the accused (see the comments of Lord Justice Clerk Gill in N v HMA, 2003 JC 140).

The protection afforded by Article 6 caselaw in this area is somewhat weaker than it initially appears, especially in the Scottish context. Conviction on the basis of hearsay evidence is permitted even where it is the “sole and decisive” evidence in a case as long as other procedural safeguards that permit a fair and proper assessment of the reliability of such evidence exist (Al-Khawaja v UK (2012) 54 EHRR 23). Our Appeal Court’s approach to the question of whether such procedural safeguards exist seems to developed in recent years In N v HMA the court was sceptical about the value of the corroboration rule in this context whereas in Graham v HMA, 2019 JC 26 the corroboration rule along with various other matters including evidence of distress and other circumstantial evidence led to an appeal being refused in a conviction for rape wherein s.259 was used to lead the deceased complainer’s evidence.

The real issue here, as I see it, is the breadth of the provision and the broad power that will be placed in the hands of the Crown. How will courts effectively probe whether witness attendance is not “reasonably practicable”? This is a public health crisis, will the Crown be seeking vouching for these witnesses’ non-attendance? Will the courts ask for it? That seems unlikely.

The only effective remedy I can see, once an application is granted by the court (and they will be granted, given the lack of discretion alluded to above in terms of the statute), is for the defence then to lodge compatibility issue minutes on the basis of Article 6. As I have said, the protection afforded in that respect is not as strong as one might think. I think consequently that there is a real question here about the integrity of the trial process in light of this provision.

It is, in my view, wholly unnecessary that this provision is being introduced at this speed. There appears to be almost unanimous opinion amongst the profession that, whilst we obviously need to think about how the justice system responds to the crisis, we need to think these things though carefully. The government should pay heed to that call.