The Deputy President of the UK Supreme Court, Scottish judge Lord Hope who was earlier this year attacked by First Minister Alex Salmond and Justice Secretary Kenny MacAskill over Human Rights rulings which forced speedy re-writes of Scottish laws excluding certain rights of representation from accused prior to the HMA v Cadder ruling, has criticised Scotland’s courts as being an obstacle to legal progress and full of “corrosive anti-English sentiment”.
We at Scottish Law Reporter think Lord Hope is spot on.
The Sunday Herald reports :
EXCLUSIVE BY LUCY ADAMS 20 Nov 2011
ONE of Britain’s most senior judges has spoken out against the “corrosive anti-English sentiment” in Scotland’s courts, describing it as an obstacle to legal progress.
Many will see the comments by Lord Hope, a Scottish judge and Deputy President of the UK Supreme Court, as an unprecedented counter-attack on the Scottish Government for its assault on the jurisdiction of the Supreme Court earlier this year.
Lord Hope warned against moves to limit the court’s ability to hear appeals against Scottish convictions.
Moves to make such appeals possible only if cases are sent to the Supreme Court by Scottish judges through a process known as certification have been backed by the Scottish Justice Secretary, Kenny MacAskill. Certification is used by courts in England and Wales, but Lord Hope said: “Much has been made of the unfairness of the lack of certification in Scotland when such a system is in place in the other two jurisdictions [England and Wales, and Northern Ireland] but the comparison is not as sound as has been suggested.
“There is [in England and Wales] none of the feeling of antipathy towards cases being sent to London that lies just below the surface here in Scotland ... This is a phenomenon which occurs whether the case is civil or criminal.”
Speaking at the annual conference of the Scottish Association for the Study of Offending (SASO) in Dunblane, Lord Hope quoted remarks made to him by the late Lord Rodger about “a corrosive anti-English sentiment” in the Scottish system, adding that this “sentiment can be a real obstacle to progress”.
His speech, given in memory of the late Lord Rodger, his Scottish counterpart on the Supreme Court who died earlier this year, made clear that he would at points disagree with calls for certification to be introduced in Scotland. He said that Lord Rodger would also have disapproved.
It is the first time Lord Hope has spoken publicly since the controversial row earlier this year when Scottish ministers accused the London-based court and its judges of eroding Scots law and threatened to withdraw funding.
Retired high court judge Lord McCluskey also criticised the Supreme Court and was asked to carry out a review by MacAskill.
The review followed the Cadder decision – which said the legal process in Scotland would have to be changed to comply with European Human Rights legislation which would allow suspects access to a lawyer when being questioned by the police
Lord Hope said the Cadder case had been a “catalyst” for change but said Lord McCluskey’s approach had not been “tactful”. He said Lord Rodger would not have been in favour of calls for certification by Scottish courts – one of McCluskey’s key recommendations.
Lord Hope referred to a letter he sent to Lord Rodger after the recent controversial Supreme Court judgement to uphold Nat Fraser’s appeal against his conviction for the murder of his wife, which lead to his release. Lord Hope wrote in Latin “Let the skies fall in. Justice must prevail”.
He strongly disagreed with suggestions made by Scottish ministers that the Supreme Court was “routinely interfering in the Scottish system” and said the cases they deal with are just the “tiny tip of the iceberg”. Lord Hope said that it was never and is still not the intention of the Supreme Court to be a “court of last resort in matters of Scots criminal law”.
He produced figures which showed that on average the Supreme Court deals with about two and a half Scottish appeals a year, which he said was “not exactly routine interference”. He said the court has refused leave to appeal to it in 19 cases since 2009.
He said: “You may think too that the suggestion that the Supreme Court is interfering too frequently has been somewhat exaggerated.”
He added he and Lord Rodger did not have decisions “dictated to us by our English colleagues” in the Supreme Court and that on Scottish decisions the Scottish judges would lead.
Kenny MacAskill, the Justice Secretary, spoke at the same conference but Lord Hope had already left so the two men did not meet. MacAskill spoke of the need for certification in order to let Scottish courts choose which cases go to the Supreme Court. He also warned of the erosion of Scottish law by external factors – including the London-based Supreme Court.
MacAskill told delegates: “I have spoken about the need to safeguard the integrity of Scot criminal law in the EU context. I wish to safeguard that integrity against an increasingly intrusive presence by the UK Supreme Court.
“On the matter, our view is clear. The High Court of Justiciary is Scotland’s apex court in criminal law, and should have the same responsibilities as equivalent courts in the rest of the UK”.
He also warned against anything which “undermines the position of the High Court as the apex, and consequentially endangers the integrity and historic independence of Scots criminal law”.
Lord Hope also commented on Lord Carloway’s report last week to abolish “corroboration”, which requires there to be more than one piece of evidence bearing witness to a crime. He said Lord Rodger would have wanted to retain it but that in his view, “we have to do something for the very, very many cases when there is no corroboration”. He referred to sexual assault cases where there is no hope of an additional witness and talked of exemptions made centuries ago during a spate of highway robberies where there were no witnesses.