Scotland's most senior judge Lord Carloway believes too many people are being jailed

Key Points

Lord Carloway says there is a ‘hold-up’ with the SNP finance investigation
Rangers malicious prosecutions inquiry should be led by Scottish judge
Inquiry into murder of Emma Caldwell should be in Scotland, says Lady Dorrian
‘Archaic’ need for corroboration should be abolished, says Lord Carloway
Scrapping of juryless trial pilot ‘disappointing’, says Lady Dorrian

Scotland’s most senior judge believes the country’s prison system is under pressure because too many people are being jailed.

Lord Carloway, who is stepping down after almost a decade in the role, told STV News he was unconvinced that all short-term prisoners should be serving a custodial sentence.

He was speaking just months after the Scottish Government unveiled plans to release hundreds more prisoners in a bid to avoid “critical” population levels in Scottish jails.

Asked whether he thought too many people were currently jailed in Scotland, Lord Carloway said: “I think the answer to that has to be yes.

“I think as a generality, Scotland and England have the highest prison populations in Europe and we have to address that and think ‘why is that?’

“Now there could be good reasons for that in the sense that in Scotland we are prosecuting a lot of sexual crime, domestic abuse type offences, and rightly so. And I agree with policy on that. But the inevitable consequence of prosecuting a lot of people is that a lot more people are going to be in prison.

“Those on long-term sentences will have committed a fairly serious crime and will correctly be in prison.

“The problem, I think, lies with the short-term prisoners and whether a lot of them really have to be in prison. A lot of the people that are jailed for short sentences, again, something which we’re trying to tackle and are there because of the nature of their lifestyle.”

Last November, MSPs passed legislation reducing the automatic release point for short-term prisoners in Scotland

Inmates serving less than four years will now be set free after serving 40% of their sentence as opposed to the previous 50%.

However, the new law will not apply to those in jail for domestic abuse or sexual offences.

Lord Carloway added: “I don’t think the sheriffs and the judges are influenced by issues such as overcrowding.

“I think we’re all familiar with the effects of overcrowding in prisons and what can happen. When I was an advocate deputy in the 1980s, I prosecuted the Barlinnie riot trial. And so I’m acutely aware of the conditions which existed then. I think we have improved a lot since then. But there is a way to go in on the overcrowding front.”

In a wide-ranging interview with STV News, Lord Carloway also addressed several other high-profile judicial matters that have made headlines in recent years.

‘Hold-up’ with SNP finance investigation

Police Scotland launched an investigation into the funding and finances of the Scottish National Party in July 2021 – and the probe remains ongoing today.

The SNP’s former chief executive Peter Murrell was charged last year in connection with embezzlement of party funds.

Nicola Sturgeon and Peter Murrell's house was searched by Police Scotland. — Nicola Sturgeon and Peter Murrell’s house was searched by Police Scotland. STV News

Ex-first minister Nicola Sturgeon was also arrested and questioned before being released without charge.

Police Scotland says it’s awaiting direction from the Crown Office after presenting prosecutors with findings from the ongoing investigation.

“I know absolutely nothing about Operation Branchform,” said Lord Carloway.

“I don’t know where the hold-up is, whether it’s with the police or the Crown Office.

“It looks as though there is a hold-up, yes.”

Rangers malicious prosecutions inquiry should be led by Scottish judge

In 2018, the Crown Office claimed immunity as it sought to fight off a multi-million damages action brought by the former joint administrators of Rangers.

David Whitehouse and Paul Clark were arrested in 2014, though the Crown Office later dropped charges and admitted their prosecutions were “malicious”.

In an appeal, the Inner House of the Court of Session ruled the Lord Advocate does not have absolute immunity from suit for malicious prosecution.

In 2023, a report from Audit Scotland said the full bill for payouts related to the Rangers malicious prosecution scandal could be higher than £60m.

“I don’t (think it was a mistake),” said Lord Carloway. “It wasn’t just me. I think it was a panel of judges. People have to be accountable for their actions.

“The Crown Office do have certain privileges, et cetera. But I think most people would accept that if somebody believes a public officer behaves maliciously, then they really ought to be accountable for that act of malice and that’s basically what we decided.

“I wasn’t involved in whatever negotiations went on between the Crown and the people involved at that. It’s a very large sum of money.”

It’s more than three years since an inquiry was promised into the affair.

“At the moment we’ve got quite a few inquiries on the go,” said Lord Carloway.

“And the question is, can we actually staff another inquiry? Is the legal profession capable of doing that? Probably if one or two of them come to an end.”

Some people who want an inquiry say a judge should lead it from outside Scotland, but Lord Carloway disagrees.

He said: “If we’re talking about examining things that have happened in Scotland, my view is unless somebody is accusing the judicial system of some kind of corruption, or some other conduct, then it has to be a Scottish judge.

“And the reason for that is if a Scottish judge is bypassed then that is a direct criticism of the independence of the judiciary in Scotland.

“The Scottish Government have got statutory duty to uphold the independence of the Scottish judiciary and rightly so.”

Emma Caldwell

Another case where there have been calls for an inquiry led by a non-Scottish judge is the murder of Emma Caldwell.

Iain Packer was convicted last year of killing the 27-year-old in woods in South Lanarkshire, 19 years after first being identified as a suspect.

Emma’s mother Margaret Caldwell said only a judge from outside Scotland could make a truly independent assessment of what went wrong.

But Lord Carloway said he would reject those calls.

He said: “I hasten to add in that respect, then in the Emma Caldwell case, there is no criticism whatsoever of the conduct of the judiciary, because the inquiry is designed to look at what happened before the case ever got to court.

“So it is going to examine the police, no doubt. It’s going to examine the Crown Office, no doubt. And the people who know best about how the police and the Crown operate in Scotland are the judiciary. And we’re quite used to dealing with criticisms of the Crown and the police.”

Those sentiments were shared by Lady Dorrian, the Lord Justice Clerk of Scotland, who said it would be “entirely inappropriate” for a non-Scottish judge to lead the inquiry on the police investigation into Emma’s murder

She added: “The issues as I understand them have nothing to do with the judiciary, but the process that occurred before the case got to trial, so I can’t see any basis whatsoever for a need to have a judge from outside Scotland.”

Corroboration

Lord Carloway recommended abolition of the “archaic” need for corroboration in 2011. A volcanic backlash ensued involving the judiciary, lawyers and politicians.

The Scottish Government put forward the proposal in legislation but dropped it after failing to win enough parliamentary support.

But last October, a nine-judge panel supported an appeal by Lord Advocate Dorothy Bain KC, who had called for a change to corroboration laws in the wake of two sexual offences trials that resulted in majority not proven verdicts.

Lord Carloway said: “As is well known, I recommend its abolition. But I accept that we live in a democracy and it’s not for me to abolish corroboration. That’s a matter for government.

“I stand by my recommendations, which I made ten years ago for the reasons contained in that report.

“We see what’s happening in rape cases. We see the problems that are coming as a result of the requirement for corroboration. We’ve tried to rectify these by resetting the clock and applying what we understand to be the true rules of corroboration.

“The view of the court has been that Scots Law took a wrong turn, particularly in the 1930s, when that diverged from the hitherto accepted practice. And that’s been the problem with corroboration since then to a large extent.”

The ruling introduced last year means statements made by victims during, or shortly after, a crime can provide a second source of evidence that the crime took place, and that the accused was responsible.

Previously, it was a long-established law that two statements from the same person could not be used to corroborate each other.

Corroboration must still be used to prove the case against the accused. That means corroboration is needed to prove that the crime was committed and that the person accused in the case is the person who committed it.

But there is no requirement for every separate part of a crime to be proven by corroborated evidence.

Juryless trials

The controversial plans for certain rape cases to be tried before a judge were dropped by the justice secretary at the end of October, following a backlash from much of the legal profession and a lack of support from many MSPs.

Under the proposed pilot, a single judge or possibly a panel would have provided a verdict in certain rape cases rather than a jury.

It was not expected to take place before the end of 2028 and was one of a number of reforms in the Victims, Witnesses and Justice Reform Bill.

Lady Dorrian said: “I am disappointed by that but the reality is that was a proposal for a pilot only and it would have been anticipated I think for a very specific kind of case.

“It had so much attention that it was at risk of destabilising issues about other reforms.”