Scotland’s Lord Advocate Elish Angiolini, a well known figure who is no stranger to controversy, has warned Scots Law - as antiquated & Victorian as it is, now faces losing its ‘legal identity’ under the powers of the UK’s Supreme Court to deal with Scots Human Rights cases.
The warnings from the outgoing Lord Advocate who announced late last year she will finish her term as Scotland’s law chief later this spring, come in the wake of the ruling in the case of Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) (pdf), where the UK Supreme Court ruled Scottish Police could no longer question a suspect without allowing them access to a lawyer, a right which has been present in England & Wales for many years.
Rather than this being a loss of ‘legal identity’, it appears the Scottish legal establishment are more worried about a loss of control to keep things as they are & always have been (Most of the wigs still living in the 1800’s ? – Ed)
A useful link for those interested in the ramifications of the Cadder v HMA judgement : Cadder v HMA - questions and answers resulting from the judgment - October 2010
BBC News reports :
Scotland's top prosecutor has warned of a loss of identity for Scots law under UK Supreme Court powers to make decisions on Scots human rights cases.
Lord Advocate Elish Angiolini suggested the court should only consider newer legislation or decisions with major constitutional consequences.
Her comments came after the Supreme Court's ruling on the Cadder case.
It meant Scottish police could no longer question suspects without allowing them access to a lawyer.
The Lord Advocate made her remarks as she was questioned by MSPs on plans to increase Holyrood's powers under the Scotland Bill, currently going through Westminster.
Last year, the Scottish Parliament rushed through emergency legislation after the Supreme Court upheld an appeal by teenager Peter Cadder, whose assault conviction was based on evidence gained before he spoke to his solicitor.
'Loss of identity'
Previously in Scotland, suspects could be questioned for six hours without a lawyer present, but judges ruled this violated human rights to a fair trial.
Commenting on the human rights convention, Ms Angiolini told the parliament's Scotland Bill Committee: "My slight concern is that, because of the approach of the Supreme Court, there is a real danger that we will not just have harmonisation of our criminal law, procedure and evidence, through that process, but that there will be a complete loss of identity for Scots law unless it is something which is genuinely rarely exercised in the context of something which is of substantial constitutional significance across the United Kingdom or where it is a very new piece of jurisprudence which is clearly ambiguous."
Even though the High Court is the highest court of criminal appeal in Scotland, it was overruled by the Supreme Court on a constitutional issue, because the need to consider European human rights legislation was written into the Scotland Act - the piece of Westminster legislation which established devolution.