After weeks of threats & intimidation, claims, counterclaims & criticisms from Scotland’s First Minister Alex Salmond & Justice Secretary Kenny MacAskill of the UK Supreme Court’s rulings in the Cadder v HMA case and more recently its ruling on Nat Fraser, accused of murdering his wife, the review group headed by Lord McCluskey has published its first report ahead of a debate in the Scottish Parliament later this week. Unsurprisingly, the initial report concludes there should be change in the way cases from Scotland can get to the Supreme Court and only if the High Court in Scotland granted convicts permission to appeal.
Eager to take the sting out of today's announcement of the untimely death of Lord Rodger, who, along with Lord Hope and the other judges of the Supreme Court the First Minister & Justice Secretary did most thuggishly attack over the past few weeks due to their own perception the Supreme Court had ‘interfered’ in the Scots legal system, First Minister Alex Salmond today selectively welcomed the findings of Lord McCluskey’s review group, saying : “There is now a consensus that the UK Supreme Court plays a much broader role in Scottish criminal law than had been envisaged when the Scotland Act was passed, and that it is more intrusive within Scots Law than is the case for the other jurisdictions within the UK - with serious implications for the certainty and integrity of our distinct legal system.”
However, it should be noted Lord McCluskey’s initial report clearly states : “We do not suggest that the jurisdiction of the Supreme Court should be ended.”
On 05 June 2011, First Minister Alex Salmond announced the creation of an independent review group to consider the law and practice currently governing the respective jurisdictions of the High Court of Justiciary and the Supreme Court in cases involving the application of human rights law, including cases in which 'devolution issues' are raised.
The full terms of reference for the group are: "To consider and assess the mechanisms created under the Scotland Act 1998 and the Human Rights Act 1998, and developed since then, for applying Human Rights law to criminal cases in Scotland, including particularly the regulation, subject matter and scope of appeals from the High Court of Justiciary to the Supreme Court of the United Kingdom; To consider the criticisms of and various suggested amendments to those mechanisms in light of current assessments, including criticisms, of their operation; and to advise on the ways in which they might best be altered, if appropriate, by legislation or otherwise, to ensure Scotland's unique system of Criminal Law and Procedure is fully protected, within the context of the accepted need for that system to comply with the Human Rights Act."
SUMMARY OF ADVICE :
72. We agree with the Expert Group that serious problems have arisen - in relation to the jurisdiction of the Supreme Court in criminal cases involving human rights issues - because the statutory basis in the Scotland Act 1998 for that jurisdiction is unsatisfactory (cf. paragraphs. 42 and 43). We do not suggest that the jurisdiction of the Supreme Court should be ended.
73. We endorse the general solution proposed by the Expert Group and adopted by the House of Commons on 21 June 2011 to create a different procedure for human rights appeals, but we advise consideration of a new provision governing permission to appeal to the Supreme Court from a determination by the High Court of Justiciary of any question of “compatibility”, as defined in the new Section 98A (2) (paragraphs 53 to 57).
74. Our proposed new provision (outlined in paragraph 56) would put the High Court of Justiciary on an equal footing with its counterparts elsewhere in the UK by enabling the Supreme Court to grant permission to appeal only if the High Court of Justiciary has granted a certificate that the case raises a point of general public importance. Other issues about permission are suggested for further discussion (paragraphs 67 to 69).
75. It should be made clear that, in criminal appeals from the High Court of Justiciary on “compatibility” questions, the Supreme Court’s jurisdiction is to be exercised in such a way that it defines and expresses the law applicable and then sends the case back to the High Court of Justiciary to apply that law (paragraphs 60 to 64). In this way the traditional role of the High Court of Justiciary, reflecting the long history of separate development of the Scottish criminal system, would be preserved. The precise method of achieving this clarification should be fully discussed with those who have to deal with such cases in practice.
76. We advise that careful consideration be given to a general rule that normally the Supreme Court should give a ruling on a “compatibility” question only after the case has been completed. However, it might be wise to permit the High Court of Justiciary to ask the Supreme Court for a ruling at an earlier stage (paragraphs 65 and 66). We have not, as yet, fully discussed the provisions that allow References to the Supreme Court by the Advocate General or the Lord Advocate.
77. We are prepared to consult interested parties on the way forward following publication of this Report and the subsequent Parliamentary debate.
BBC News reports :
Experts reviewing the relationship between the High Court of Justiciary and the UK Supreme Court in criminal cases have called for change.
Lord McCluskey's review group claimed Scotland faced more intrusive jurisdiction from the Supreme Court than the rest of the UK.
The report said the system was "flawed" and called for coherence across the UK.
The first minister set up the group over concern about the Supreme Court's involvement in Scottish criminal cases.
Scottish government ministers previously said the Scottish legal system should have direct access to the European court in Strasbourg - ending the jurisdiction of the UK Supreme Court on Scottish criminal cases.
However, the McCluskey Group backed the UK Supreme Court's jurisdiction to rule on human rights in Scottish criminal cases - but only if the High Court in Scotland granted convicts permission to appeal.
Currently in Scotland, an appeal can be made to the UK Supreme Court for criminal cases relating to human rights law.
In the rest of the UK, an appeal to the Supreme Court is only possible with the leave of the Court of Appeal - and only when a point about general public importance is at stake.
The McCluskey report recommended a new provision, with proposed amendments to the Scotland Bill, which would place the High Court of Justiciary "on an equal footing with its counterparts elsewhere in the UK, by enabling the Supreme Court to grant permission to appeal only if the High Court of Justiciary has granted a certificate that the case raises a point of general public importance".
It also said it should be made clear that "the jurisdiction of the Supreme Court should be exercised in such a way that it identifies clearly the law that the criminal courts have to apply, but that the application of the law to the case in which the issue is being litigated should be remitted to the High Court of Justiciary".
It claimed this would help preserve the traditional role of the High Court of Justiciary under current constitutional arrangements by ensuring "the Supreme Court, in dealing with its human rights jurisdiction in criminal cases, would concentrate on identifying and articulating clearly the relevant law contained in the Human Rights Act and would not proceed to decide the case as if it were the High Court of Justiciary".
First Minister Alex Salmond welcomed the review group's first report, which has been published in order to help inform the Scottish Parliament debate taking place on Thursday.
He said: "There is now a consensus that the UK Supreme Court plays a much broader role in Scottish criminal law than had been envisaged when the Scotland Act was passed, and that it is more intrusive within Scots Law than is the case for the other jurisdictions within the UK - with serious implications for the certainty and integrity of our distinct legal system.
"We now have the interim analysis and conclusions of the McCluskey Group, and I particularly welcome its recommendations for amendments to the Scotland Bill to limit the role of the UK Supreme Court by placing referrals from Scotland's highest court of criminal appeal - the High Court of Justiciary - on the same footing as is the case for the justice system south of the border.
"It also makes positive suggestions for the UK Supreme Court to operate clearly and consistently as a court of interpretation of human rights law, and not 'as if it were the High Court of Justiciary'."
He added that the recommendations should be "capable of attracting support and consensus across parliament, and among the wider legal and other important interests involved".
It is expected the group will publish a final report by autumn - before amendments are made to the Scotland Bill.
A spokesman for the Advocate General - the UK government's senior Scottish legal adviser - said any change in the rights of Scots to appeal directly to the Supreme Court in London would require legislation in Westminster.
He said amendments could be made to the Scotland Bill, which has just been sent to the Lords from the House of Commons, but pointed out that Lord McCluskey's full report was not due to be published until later in the year.
The spokesman said: "Ministers will consider the McCluskey Report and debates later in the week in Holyrood.
"They will do this along with consideration of the UK government's expert qroup and consultations on this issue before coming to a final view."
The row about the Supreme Court's role in Scottish criminal cases erupted in May in the case of Nat Fraser.
Five justices in the court in London said Mr Fraser's conviction for the 1998 murder of his wife, Arlene, should be quashed.
Fraser, 52, from Elgin, now faces a retrial.
The court had previously cast doubt on a large number of criminal convictions in Scotland in a ruling which came to be known as the Cadder judgement.
This concerned the rights of a suspect to legal representation during questioning by police.