Lord President asks Westminster to amend Scotland Bill, closing Criminal Appeals route to UK Supreme Court on Human Rights issues

Lord President asks for amendment to Scotland Bill allowing Scottish Courts to bury handle Human Rights appeals. IN a move seen by many legal observers as an indication the retiring Lord President, Lord Hamilton may not be so retiring from the legal scene as some may have expected, the Lord President has written to the UK Parliament to ask its MPs to add a restriction on criminal appeals to the UK Supreme Court to the Scotland Bill provisions dealing with devolution issues, thus ensuring the Court of Session can ‘take care of’ any Human Rights infringements, and bury the chance of any appeal from Scotland being heard at the UK’s Supreme Court, a move welcomed (even if it was arranged) by the SNP. The move brings the Lord President into line with the wishes of the Scottish Government, who fell over themselves to castigate the UK’s Supreme Court and even it’s Scottish judges after rulings in the Cadder v HMA case and Nat Fraser appeal.

The Lord President’s representations to Westminster can be read online HERE

Now that the Lord President has ‘rolled over’ to make a judicial request to back up the harsh words from Scottish Ministers, who did not enjoy the impression which was created that Scotland’s justice system and its courts simply couldn't be trusted with appeals, particularly on ECHR issues, the way is now clear for Lord Hamilton to return to a few appointments at the behest of Scottish Ministers as soon as is practicably possible (String pulling comes to mind – Ed)

The Press Release from the Judiciary of Scotland : Lord President Makes Written Representations to Parliament

Click image to read Lord Hamilton’s representation to Westminster. Utilising the powers conferred on him by the Constitutional Reform Act 2005 the Lord President is laying before the United Kingdom Parliament written representations regarding the Scotland Bill presently before it. Section 5 of the Act provides that the Lord President may lay written representations before Parliament on matters relating to the judiciary or the administration of justice in Scotland. Equivalent powers are available to the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland.

The Lord President is urging Parliament to do two things:

(1) to extend the jurisdiction of the Supreme Court in Scottish criminal appeals and references to the remedying of infringements by the courts below as well as by the prosecutor; but

(2) to restrict those cases in which leave may be granted to appeal to the Supreme Court from the High Court of Justiciary to cases in which the High Court has certified that a point of law of general public importance is involved in the decision.

As to (2), the Court of Criminal Appeal in England and Wales and the equivalent court in Northern Ireland have long had a certification procedure which has proved to be valuable. The Lord President wishes to secure a similar provision for the High Court in Scotland.

The Lord President seeks, in the Scotland Bill, an amendment to the Scotland Act 1998 to the above effect.

Constitutional Reform Act 2005

Part 2

Section 5 Representations to Parliament.

(1)The chief justice of any part of the United Kingdom may lay before Parliament written representations on matters that appear to him to be matters of importance relating to the judiciary, or otherwise to the administration of justice, in that part of the United Kingdom.

(2)In relation to Scotland those matters do not include matters within the legislative competence of the Scottish Parliament, unless they are matters to which a Bill for an Act of Parliament relates.

(3)In relation to Northern Ireland those matters do not include transferred matters within the legislative competence of the Northern Ireland Assembly, unless they are matters to which a Bill for an Act of Parliament relates.

(4)In subsection (3) the reference to transferred matters has the meaning given by section 4(1) of the Northern Ireland Act 1998 (c. 47).

(5)In this section “chief justice” means—

(a)in relation to England and Wales or Northern Ireland, the Lord Chief Justice of that part of the United Kingdom;

(b)in relation to Scotland, the Lord President of the Court of Session.

Explanatory Notes

Section 5: Representations to Parliament

Section 5 provides that the Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland and the Lord President of the Court of Session may table written representations to Parliament on matters relating to the judiciary or the administration of justice. In respect of the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland, this function is qualified by subsections (2) and (3) in order to respect the devolution settlements with Scotland and Northern Ireland respectively.

Constitutional Reform Act 2005

‘English-hating’ Scottish justice system criticised by Scotland’s Supreme Court judge Lord Hope as “corrosive … obstacle to legal progress”

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 :

‘Scottish court system is anti-English’

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.

Supreme Court dismisses Insurance firms challenge to Holyrood’s law making powers on Pleural Plaques compensation

The Supreme Court has dismissed a challenge brought by Insurers Avira, AXA Insurance, Zurich and Royal Sun Alliance against the Damages (Asbestos-related Conditions) (Scotland) Act 2009 which was passed by the Scottish Parliament to reinstate compensation for Pleural Plaques, an asbestos related condition, after the House of Lords ruling in 2007 found Pleural Plaques to be unrelated to asbestos exposure. More on the story HERE & HERE

The full ruling from the Supreme Court : Supreme Court Judgement in AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland) (pdf)

The Scottish Government issued the following statement welcoming the Supreme Court’s decision :

Justice Secretary Kenny MacAskill today welcomed a Supreme Court decision to dismiss a legal challenge to a historic Act of the Scottish Parliament. The Minister said the failure of the legal case, brought by a group of insurers, was a "triumph for progressive politics" that would bring great comfort to workers that have developed pleural plaques, brought on by exposure to asbestos. The Supreme Court judges decided unanimously that the Scottish Parliament had acted within the scope of its powers when it passed the Damages (Asbestos-related Conditions) Act in 2009, legislation that offered those that have pleural plaques the opportunity to claim compensation. The Act has been subject to lengthy legal challenge by a group of insurers.

Mr MacAskill said: "I warmly welcome this significant decision, not least for the sake of people with pleural plaques and all those who campaigned so vigorously to help them. It has always been our belief that the legislation is right in principle and right in law and I am pleased that it has been unequivocally upheld. "The Scottish Government's Damages (Asbestos-related Conditions) (Scotland) Act was passed with overwhelming support in the Scottish Parliament, and today's decision is a triumph for the progressive politics that saw parties unite to do the right thing and help those that have developed pleural plaques as a result of negligent exposure to asbestos. We firmly believe that people with this condition should be able to raise a claim for damages, and we are delighted that this decision has gone in their favour - a result that will surely bring them some comfort. It is our sincere hope that the insurers will now reflect carefully on the decisions reached by the Scottish Parliament, by both the Outer and Inner Houses of Scotland's Court of Session, and now by the UK's Supreme Court and settle those claims that have been stalled for so long."

Exposure to asbestos can result in the development of a number of conditions, including pleural plaques (i.e. scarring of the membranes around the lungs). This condition is generally asymptomatic, though it does indicate that asbestos fibres have lodged in the body and caused a physiological reaction. Medical evidence is that "people with pleural plaques are at risk of developing diffuse pleural thickening causing breathlessness, asbestosis of the lungs causing breathlessness, lung cancer which is usually fatal and mesothelioma, a cancer which can occur in the lining of the chest cavity or in the lining of the abdominal cavity which is almost invariably fatal, usually within 12 to 18 months of the first symptoms. People with pleural plaques who have been heavily exposed to asbestos at work have a risk of mesothelioma more than one thousand times greater than the general population.

From the 1980s onwards, where pleural plaques arose from negligent exposure to asbestos, Courts throughout the UK made compensation awards; those awards were paid by the negligent party or their insurer. On October 17, 2007, however, the House of Lords ruled in respect of a number of cases in England that asymptomatic pleural plaques do not give rise to a cause of action under the law of damages. The House of Lords ruling is not binding in Scotland, but would be considered highly persuasive by Scottish Courts.

In November 2007 the Scottish Government announced its intention to bring forward legislation to ensure that the House of Lords ruling would not have effect in Scotland. In June, 2008, the Scottish Government introduced the Damages (Asbestos-related Conditions) (Scotland) Bill. The Bill was passed in March 2009, got Royal Assent the following month, and came fully into force in June 2009.

The Outer House decision on judicial review was announced on January 8, 2010, with the Inner House decision announced on April 12, 2011.

While Scottish Ministers welcomed the decision to dismiss the insurers challenge, the Justice Secretary and the First Minister Alex Salmond have not taken any side swipes at parts of the judgement which declare Holyrood not to be a “Sovereign Parliament” (Expect that, and another fight, for another day – Ed)

In Paragraph 46 of the Supreme Court’s judgement on the issue, it is stated : “The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority.  The United Kingdom Parliament  has vested in the Scottish Parliament the authority to make laws that are  within its devolved competence. It is nevertheless a body to which decision making powers have been delegated. And it does not enjoy the sovereignty of the Crown in Parliament that, as Lord Bingham said in  Jackson, para 9, is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament’s power to legislate is not unconstrained. It cannot make or unmake any law it wishes. Section 29(1) declares that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Then there is the role which has been conferred upon this court by the statute, if called upon to do so, to judge whether or not Acts of the  Parliament are within its legislative competence:  see section 33(1) and paragraphs 32 and 33 of Schedule 6, as amended by section 40 and paragraphs 96 and 106 of  Schedule 9 to the constitutional Reform Act 2005. The question whether an Act of the Scottish Parliament is within the competence of the Scottish Parliament is also a devolution issue within the meaning of  paragraph 1(a) of Schedule  6 to the Scotland Act in respect of which proceedings such as this may be brought in the Scottish courts.”

Holyrood and the Scottish Government has been well & truly warned it would seem.

First Minister’s threats & intimidation over alleged Supreme Court ‘interference in Scots Law’ scores ‘call for change’ on Human Rights rulings

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.”

Supreme Court Review

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."

Read the reports here : First Report of the Review Group (pdf) Appendix and Supplement (pdf)

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 :

Supreme Court system for Scottish cases 'flawed'

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.

Supreme Court announces the death of Lord Rodger of Earlsferry after a short illness

The UK Supreme Court has today announced the death of Lord Rodger of Earlsferry, one of two Scottish judges who sit on the benches of the Supreme Court. It is reported Lord Rodger suffered a short illness.

It is with great sadness that we convey the news that Lord Rodger of Earlsferry, Justice of the Supreme Court, died peacefully in his sleep during the morning of Sunday 26 June, following a short period of illness.

Lord Phillips, President of the Supreme Court, said: "I am deeply distressed to learn of the death of Alan Rodger. For ten years he has been a mainstay of the Law Lords and of the Supreme Court. He was an outstanding jurist and a wonderful companion. His premature death is a tragic loss to the Court and to the nation."

Lord Hope, Deputy President of the Supreme Court, said: "Lord Rodger’s premature death has deprived us all of a greatly valued colleague and a much loved friend. It is a desperately sad end to a brilliant career. His contribution to the development of the law was immense. He had so much more still to give, both as a judge and to academic life both in Scotland and at Oxford. Our thoughts are with his family and his many close friends, whose lives were enriched by his generous and engaging personality and who meant so much to him too. His legacy is to be found in his judgments, his lectures and his academic writings, which will live on as his memorial for generations to come.”

A detailed tribute to one of Lord Rodger’s rulings involving a controversial case which implicated the Council of the Law Society of Scotland in the downfall of a successful firm of solicitors, was published by independent law journalist Peter Cherbi on his “Diary of Injustice” web blog HERE

Perth Sheriff Court hears Sheriff Foulis suggest First Minister Alex Salmond ‘may give his opinion & decide’ on criminal case

First Minster & now First Judge ? Alex Salmond criticised by Sheriff in Supreme Court war of words wrangle. PERTH SHERIFF COURT last week saw the first public remarks made by a member of Scotland’s judiciary against the First Minister’s interference & highly personalised attacks on the judicial system, attacks which particularly focus on Human Rights rulings from the UK Supreme Court, based in London. Mr Salmond has personally attacked the Supreme Court’s judges, its rulings, and has alleged it has undermined the rule of law in Scotland. Mr Salmond has also backed his Justice Secretary Kenny MacAskill over threats to withdraw Scottish funding for Supreme Court cases.

In a case currently before Sheriff Lindsay Foulis in which a man denied that on November 27, at an address at The Cross, Coupar Angus, he conducted himself in a disorderly manner by shouting, swearing and exposing himself in a public place to the alarm of people and committed a breach of the peace, Sheriff Foulis said, "Perhaps the first minister would give his opinion on this — he seems to have an opinion on everything else. Maybe he will decide this matter."

Legal insiders criticising the level of political interference in the justice system observed today “..it now appears Mr Salmond wants to become First Judge as well as First Minister.”

The Courier newspaper reports :

'He has an opinion on everything else' — sheriff's cutting remarks directed at first minister

A sheriff has taken a swipe at the first minister, as the row over comments made by Alex Salmond about the judiciary escalates.

By Paul Reoch Published in the Courier : 17.06.11

Sheriff Lindsay Foulis suggested that Mr Salmond "may give his opinion" on a case that was heard before him at Perth Sheriff Court on Thursday as he has "an opinion on everything else."

The sheriff made his remarks when he was told that a trial involving Michael Fleming (19), of Airlie View, Blairgowrie, would have to wait pending a decision from a higher court.

Depute fiscal Rebecca Kynaston told the court there had been "issues" with a police interview and that the case would have to be delayed.

Sheriff Foulis said, "Perhaps the first minister would give his opinion on this — he seems to have an opinion on everything else. Maybe he will decide this matter."

It is understood many figures in the legal profession are incensed by Mr Salmond's recent criticism of Supreme Court judge Lord Hope and prominent solicitor Tony Kelly, and the matter was the subject of some exchanges at First Minister's Questions.

A spokesman for the first minister said they could not comment on individual remarks from a sheriff.

Fleming denied that on November 27, at an address at The Cross, Coupar Angus, he conducted himself in a disorderly manner by shouting, swearing and exposing himself in a public place to the alarm of people and committed a breach of the peace.

He will stand trial at Perth Sheriff Court on November 7.

Less than stellar : Alex Salmond evades support for Justice Secretary’s threat to Supreme Court funding, Lord McCluskey to chair review team

ALEX SALMOND, Scotland’s First Minister has finally issued a Government statement on the crisis in the Scottish legal system caused by his opposition and that of his Justice Secretary to Scottish criminal cases being sent to the UK’s Supreme Court in London. The official statement, published two weeks after the ‘crisis’ began, comes after a less than stellar appearance on national television where the First Minister refused to respond to questions asking if he supported threats issued by Justice Secretary Kenny MacAskill to withhold Scottish funding of the Supreme Court, reported recently in the Herald newspaper.

The Herald newspaper also came in for criticism from Mr Salmond for running the story on Mr MacAskill’s threat to end funding for the Supreme Court as one say of denying Human Rights appeals the chance to be heard.

Less than stellar : In an unusually poor, evasive showing, First Minister Alex Salmond slips on Human Rights & justice issues, evades questions over conduct of Justice Secretary Kenny MacAskill

Menzies Campbell QC & MP (LibDem) talks about the Supreme Court appeals ‘problem’ started by the Scottish Government, not by the legal profession.

The somewhat late and suspiciously rather long media release from the Scottish Government :

UK Supreme Court

05/06/2011

A group of independent specialists in Scots law, with unrivalled experience of court practice, has been appointed to review the law and practice currently governing the respective jurisdictions of the High Court of Justiciary and the Supreme Court in court cases involving the application of human rights law, including cases in which 'devolution issues' are raised.

The group will make such proposals for change as they judge to be appropriate to secure that Scotland's unique system of criminal law and procedure is fully protected, given the need for that system to comply with the Human Rights Act. The group is:

    * Lord McCluskey, former Solicitor General and Senator of the College of Justice (chair)
    * Sir Gerald Gordon, one of the most influential figures in Scottish criminal law and procedure
    * Charles Stoddart, a former sheriff, sheriff principal and director of judicial studies and prominent author on criminal law
    * Professor Neil Walker, expert in constitutional law at the Edinburgh School of Law

The group's remit will be to examine the emerging implications of the 1998 Scotland Act, the 1998 Human Rights Act and the Constitutional Reform Act 2005 on the current roles of the High Court of Justiciary in Edinburgh and the UK Supreme Court in London, and advise on possible options for reform.

The full remit of the group is:

    * 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 the light of current assessments, including criticisms, of their operation
    * To advise on the ways in which they might best be altered, if appropriate, by legislation or otherwise, to ensure that Scotland's unique systems 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

An interim reports is expected before the summer Parliamentary recess with a full report following later in the year.

First Minister Alex Salmond said: "This expert group is a stellar cast of some of the leading names in the Scottish legal firmament. We have called upon specialists of the highest calibre and asked them to use all their experience to bring forward proposals for reform. These experts in Scots law and the constitution will conduct a fundamental review of the UK Supreme Court's role in Scottish criminal cases before presenting an interim report in time for a Scottish Parliament debate before the summer recess. Their final report will be published later this year, and will put forward options for reform in time for those proposals to be incorporated into the Scotland Bill. Lord McCluskey, Sir Gerald Gordon, Charles Stoddart and Professor Neil Walker are all highly respected in their fields. They have a wealth of knowledge and experience which they will bring to the table, and they are blessed with some of the most impressive legal minds in the country. They will give detailed and thorough consideration to all of the issues, and I look forward to receiving their recommendations."

Mr Salmond added in the lengthy rambling diatribe on the Supreme Court : "Scotland is renowned for its distinct, independent and entirely separate legal system - so my own view is that we simply cannot ignore a situation where a court in another UK jurisdiction is intervening so aggressively in our judicial system. The fact that courts outside Scotland should have no jurisdiction over Scottish criminal matters is a long-standing and fundamental principle which is enshrined in the Act of Union. Yet we find ourselves in a situation where the unanimous decision of a bench of seven judges in the High Court in Scotland can be overturned by a UK Supreme Court where Scots judges are in a minority. We must protect the independent and unique nature of Scots law and pursue change in the role of the UK Supreme Court to prevent further erosion and interference in Scotland's distinct legal system. The Scottish Government's view is that Scotland should be like every other jurisdiction across Europe and use the Strasbourg Court as the final option for judgement when needed. Unlike the UK Supreme Court in London, the Strasbourg Court can't strike down convictions, it doesn't open cell doors and potentially enable people to walk free, and it certainly doesn't do so without a proper examination of the degree of protections, checks and balances within the Scottish judicial system."

Biographies of the review team :

Lord McCluskey (Chair)

John Herbert McCluskey, Baron McCluskey (born 12 June 1929) was Solicitor General for Scotland from 1974 to 1979. During this period he worked on the then Labour government's proposals for devolution.

Lord McCluskey became a member of the Judiciary in 1984 and presided for 16 years as a High Court judge over some of the country's most famous criminal cases. He retired in 2000.

Sir Gerald Gordon

Sir Gerald Gordon CBE QC KBE FRSE (born 1929) is the editor of Scottish Criminal Case Reports and of Renton and Brown's Criminal Procedure, and author of The Criminal Law of Scotland.

Sir Gerald was a Sheriff from 1976 to 1999 and a Temporary Judge at the High Court until June 2004. He was Professor of Scots law at Edinburgh University from 1972 to 1976 and Head of Department of Criminal law and Criminology there from 1965 to 1972. He practised as an Advocate from 1953 to 1959 and was Procurator Fiscal Depute from 1960 to 1965.

Sir Gerald was a Member of the Scottish Criminal Cases Review Commission (SCCRC) from its inception in 1999 until 2009.

He was referred to by Lord Hope of Craighead, in a book entitled "Essays in Criminal Law in honour of Sir Gerald Gordon", as "one of the complete masters" of Scots criminal law…"up there with Sir George MacKenzie and Baron Hume".

Charles Stoddart

Sheriff Charles N Stoddart is the author and co-author of a number of key publications on the law of Scotland. He was the first director of Judicial Studies for the Judicial Studies Committee for Scotland (which provides training and professional development support for the Scottish judiciary - Court of Session, High Court and Sheriff Courts), a post he took up on a full-time basis in August 1998. He was a well-respected sheriff and recently acted as an interim sheriff principal.

Professor Neil Walker

Neil Walker - LLB, PhD, LLD (Honoris Causa) (Uppsala), FRSE - is Regius Professor of Public Law and the Law of Nature and Nations at the School of Law, University of Edinburgh His main area of expertise is constitutional theory. He has published extensively on the constitutional dimension of legal order at sub-state, state, supranational and international levels.

He has also published at length on the relationship between security, legal order and political community. He maintains a more general interest in broader questions of legal theory as well as in various substantive dimensions of UK and EU public law.

Previously he taught public law at Edinburgh for ten years (1986-96), was Professor of Legal and Constitutional Theory at the University of Aberdeen (1996-2000), and, most recently, was Professor of European Law at the European University Institute in Florence (2000-8), where he was also the first Dean of Studies (2002-5).

In December 2008 Professor Walker was asked by the Scottish Government to conduct an independent review of final appellate jurisdiction in the Scottish legal system.

Justice Secretary Kenny MacAskill threat to halt Scotland’s funding of Supreme Court in bid to cut off Human Rights appeals

In yet another attack on Scots access to justice, Scotland’s Justice Secretary Kenny MacAskill is reported to have threatened to remove Scotland’s £500,000 funding of the Supreme Court in London, as a way of preventing any human rights challenges to Scotland’s failing and rapidly deteriorating in terms of international standing legal system.

This latest attack by Mr MacAskill on the rights of Scots to a fair hearing under the European Convention on Himan Rights legislation comes on the back of yesterday’s broadside against the judges of the UK’s Supreme Court, who Mr MacAskill accused of having gained their knowledge of Scots Law by visiting the Edinburgh Festival. Two of the judges on the Supreme Court are Scottish.

The Herald newspaper reports :

MacAskill threat to end Supreme Court funding

DAVID LEASK INVESTIGATIONS REPORTER EXCLUSIVE

1 Jun 2011

KENNY MacASKILL wants to cancel Scottish funding for the UK Supreme Court.

The Justice Secretary has ordered civil servants to investigate whether the Scottish Government can pull the financial plug on Britain’s most senior justices over what he sees as the threat they pose to centuries-old Scots Law.

Scotland currently contributes just under £500,000 a year to the London-based court but it is far from clear if the Scottish Government could stop its cheque.

The unprecedented threat to do so underlines just how angry Mr MacAskill is over two humiliating defeats at the UK Supreme Court, including last week’s decision to overturn the conviction of Nat Fraser for murdering his wife Arlene.

Mr MacAskill said: “When I go to the Law Society I say that I will not routinely fund ambulance-chasing lawyers. It should be said that I am not going to pay for ambulance-chasing courts. As a Government we have to pay for the Supreme Court of the UK and I think they should recognise that we’ll pay for our fair share of what goes there.

“But I am not paying money that would come out of the police budget, or prison budget or community payback budget because they are routinely taking cases that we as a country do not think should be going there.

“He who pays the piper, as they say, calls the tune.”

The court was set up in 2009 to handle cases that used to end up in the House of Lords. That included civil appeals from Scotland, but not criminal ones. However, it has become the arbiter of last resort on all human rights claims, including those involving Scottish criminal appeals. It ruled Fraser, of Elgin, Moray, had not received a fair trial.

Last year the Supreme Court sparked chaos in Scotland when it said the rights of 19-year-old Peter Cadder had been breached when he was questioned in custody by police without access to legal advice.

Some lawyers last night warned that Mr MacAskill, an experienced defence solicitor, was risking a major constitutional crisis just by giving the impression of trying to undermine the finances of the UK Supreme Court.

Professor Tony Kelly, who acted for human rights group Justice in backing the Cadder appeal, said: “This is a politician interfering with the judicial branch of government. That is simply constitutionally impermissible.

“It’s an attack on judicial independence which we have never seen the like of in the UK. We have a politician issuing threats against a court because he does not like its decisions.”

Mr Kelly added: “I don’t see any evidence that the Supreme Court has committed any grievous error. If there were English judges importing English doctrines into Scots Law, I am sure there would be a raft of evidence for Nationalist politicians. But there isn’t.”

Solicitor-advocate John Scott said he did not believe withdrawing funding from the Supreme Court would have any impact on the court’s jurisdiction over Scottish matters.

He said: “This is just political tub-thumping. It is a bit like somebody withholding part of their taxes because they don’t want to pay for nuclear weapons. It doesn’t work like that.”

First Minister Alex Salmond yesterday denied claims he and Mr MacAskill were manufacturing a grievance with the UK authorities for separatist ends.

Mr Salmond said: “Our concerns are shared by senior members of the Scottish judiciary and respected legal figures who have spoken out, including Lord Fraser, the former Lord Advocate.

“This is a practical and moral issue which concerns the rights of victims and their families, whose search for justice is delayed, and leads to cases being decided by a court where the majority of judges are not expert in Scots Law.”

He also warned of the cost implications of multiple appeals to the Supreme Court.

The ongoing row has caused deep divisions in Scotland’s legal establishment. On one side are understood to be Scotland’s judges, some still smarting from seeing their judgments overturned by the UK Supreme Court. On the other are many defence agents and human rights activists, such as Mr Scott and Mr Kelly, who see the human rights court as an essential safeguard.

One of the Supreme Court justices, Lord Hope, a former Scottish Lord President of the Court of Session, has dismissed claims he and his fellow former law lords are second-guessing the Scottish court of appeal.

He said: “We are simply here to do what a court of appeal always has to do, which is to review a decision if there is reason to do so.”

The Scottish Government pays a total of £477,000 a year to the UK Supreme Court, through bilateral arrangements with the UK Ministry of Justice. Most of the cash is for uncontroversial civil appeals.

Scots Human Rights rift : Justice Secretary MacAskill accuses Supreme Court judges of gaining Scots Law knowledge during visits to Edinburgh Festival

The furore over the UK Supreme Court’s ruling in the Nat Fraser case continues today with reports in the Scottish Press of Scotland’s Justice Secretary Kenny MacAskill hurling insults at the Supreme Court judges, two of whom are Scottish. Mr MacAskill, in what appears to be a rather angry rage over perceived interference from the Supreme Court in Scottish criminal cases, is reported to have claimed the Supreme Court judges picked up their knowledge of Scots Law during visits to the Edinburgh Festival (Someone’s lost the plot! – Ed)

The Herald newspaper reports :

MacAskill in new attack on Supreme Court rulings

Published on 31 May 2011

brian currie political editor

JUSTICE Secretary Kenny MacAskill said UK Supreme Court judges should not interfere in Scots Law, when their knowledge of it was “limited to a visit to the Edinburgh Festival”.

His inflammatory attack was made in advance of a meeting of the Scottish Government’s Cabinet today to discuss options that a spokesman said were for remedying a situation where Scottish criminal cases face being sent to the UK Supreme Court on human rights grounds.

Although two distinguished Scottish judges – Lord Hope and Lord Rodger – form part of the Supreme Court, Mr MacAskill said the majority were English, Welsh or Northern Irish and had no knowledge of the custom or practice of the law in Scotland.

He said yesterday: “We just want to be treated the same as other legal systems – we’re not, because we’re undermined routinely by a court that sits in another country and is presided over by a majority of judges who have no knowledge of Scots law, never mind Scotland.”

The Scottish Government’s move comes after a ruling last week that Nat Fraser’s conviction for murdering his estranged wife Arlene was unsafe and controversy over the Cadder judgment last year on the rights of suspects to legal representation.

The Cadder ruling overturned a decision by seven senior Scottish judges by finding that allowing suspects to be held and questioned for six hours without a lawyer breached the European Convention on Human Rights.

Mr MacAskill said: “It was never intended that the Supreme Court would be routinely changing Scottish criminal law and that is what has happened.

“It was meant to be a situation that, when the Supreme Court was invoked, criminal law would remain in the jurisdiction of the High Court of Justiciary here in Scotland.

“Only in Scotland did we see a decision taken in London by a court that was not meant to deal with criminal matters result in a situation where we had to have emergency legislation through the Scottish Parliament and turn Scottish criminal law on its head.”

Mr MacAskill said the Scottish legal system should have direct access to the European Court in Strasbourg and would accept its strictures. However, he added: “We’ll do so through our own courts at our own pace in our own way, not have it imposed by a court in London that is made up of a majority of judges who do not know Scots Law, who may have visited here for the Edinburgh Festival”.

His hardline comments mirror the approach taken by First Minister Alex Salmond in the wake of the Fraser judgment when he said: “We certainly don’t need a Supreme Court which by definition comprises of judges, whose familiarity with Scottish legal procedures is inexact at best, to be poking its nose in, putting forward a succession of adventurous moves, encroaching on territory where it was never meant to be.”

For Scottish criminal cases, the Supreme Court is supposed to be used only when the case relates to “devolution matters”, a term covering the legislative competence of the Scottish Parliament in dealing with human rights issues.

John Scott, a human rights expert and solicitor advocate, said “a sense of perspective” was being lost.

“There’s only a very tiny number of cases ever go to the Supreme Court,” he said. “It doesn’t have jurisdiction over the vast majority of criminal cases, it’s only in relation to human rights points.”

Mr Scott said the Crown was going to the Supreme Court at the end of next month to try to get decisions in its favour.

He added: “It’s odd, bordering on hypocritical, to say we don’t like this jurisdiction but we are going to go down next month to try to get some decisions that we like there.

“The Law Society of Scotland suggested we should have a human rights audit of all of Scottish criminal law in order that we would be able to withstand challenge whether it’s from the Supreme Court or the European Court of Human Rights.

“That is perhaps a way ahead that we could all agree on, where we can put Scottish law in a position where it can withstand any challenges for the centuries ahead.”

Review reveals 867 criminal cases cannot proceed to court as Crown Office claim to have ‘significantly reduced’ impact of Cadder v HMA on prosecutions

Scotland’s Crown Office has claimed that precautionary measures taken by the Crown after a review of the impact of the Supreme Court’s ruling in the case of Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) (pdf) have “significantly reduced” the impact on prosecutions in Scotland although as the COPFS review reveals, the figures of case failures due to the Cadder ruling are high.

The review of cases since the Cadder judgment has identified that 867 cases either could not proceed or could not continue to proceed as a direct result of Cadder. This is equivalent to 0.3% of all the criminal cases reported to COPFS in a year.

A total of 60 solemn cases – 9 High Court cases and 51 Sheriff and Jury cases – have been discontinued. This includes 5 High Court cases and 6 Sheriff and Jury which have been marked no further action meantime; this means that the cases will be kept under review, and the Crown reserves the right to re-raise proceedings in the future, should further evidence come to light.

Scottish Law Reporter’s coverage of Cadder v HMA can be found HERE

Crown Office Press Release follows :

CROWN REVIEW OF CASES AFTER CADDER V HMA

A review of the impact of the Supreme Court’s ruling in Cadder v HMA has shown that precautionary measures taken by the Crown significantly reduced the impact on prosecutions.

At the time of the ruling in October 2010, COPFS estimated that there were 3471 cases where the issue of the admissibility of evidence from police interviews had been raised by the defence.

COPFS has now completed an analysis of the impact of Cadder in the three months since the judgment. During this time, a total of 867 cases could not proceed or could not continue as a direct result of Cadder. The vast majority of cases affected were summary prosecutions.

Solemn cases – involving the most serious crime – were prioritised as part of the Cadder review. Nine High Court cases and 51 Sheriff and Jury cases have not been able to continue as a result of Cadder. In addition, 3 summary appeals have been conceded by the Crown.

Scott Pattison, Director of Operations, Crown Office, said today that the impact of the judgment was reduced by precautionary measures taken by the Crown.

“The Lord Advocate issued guidance to prosecutors and police well in advance of the Cadder decision, and this meant we were able to adapt and reduce the risk to live cases.

“Since the ruling in October, we have been reviewing the impact of the Supreme Court’s judgment, prioritising the most serious crime. There has been extensive liaison between Procurators Fiscal and the police to thoroughly explore the impact of the Cadder decision on the available evidence and any potential lines of further enquiry.

“Each case was then carefully considered by Crown Counsel before any conclusion was reached that no further evidence was available, and the case required to be discontinued as a result of Cadder.

“In some solemn cases, we have decided to discontinue proceedings meantime - these cases are not closed and will be kept under review, so proceedings may be raised should additional evidence come to light in the future.”

He added: “No decision to discontinue ongoing proceedings has been taken lightly. It is a matter of regret that any case has not been able to continue to proceed as a result of the Cadder ruling, and we recognise the distress that will have caused to some victims and families. Procurators Fiscal liaised with victims to advise them of the decisions to discontinue proceedings.

“We want the public to have confidence that everything possible will be done to safeguard the integrity of prosecutions.”

Background :

On 26 October 2010, the Supreme Court issued its decision in the case of Cadder v HMA, in which it considered the law and practice under section 14 of the Criminal Procedure (Scotland) Act 1995 of police interviewing detained persons in a police station without allowing them access to legal advice. The Court decided that this practice was incompatible with the European Convention on Human Rights. The ruling was not retrospective and did not apply to closed cases, limiting the impact to pending prosecutions and ongoing appeals.

At the time of the Supreme Court’s ruling, the Crown estimated that there were 3471 cases where admissibility of evidence given in police detention without access to legal advice had been raised as an issue. This figure was based on the number of devolution minutes lodged with the Advocate General’s office. The figure will now include: closed cases, cases where the point is no longer relevant as the admission was not essential to the Crown case, or the Crown was able to proceed on the basis of other admissible evidence, or additional strands of evidence, and cases where evidence from police detention is admissible because legal representation was provided in accordance with the Lord Advocate’s guidelines.

Lord Advocate Elish Angiolini warns Scots Law is losing legal identity ‘to remain in the past’ under UK’s Supreme Court powers over Human Rights cases

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 :

Lord Advocate Elish Angiolini on legal identity 'loss'

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.

Scottish Police lose right to question suspects without solicitor present as UK Supreme Court rules on Cadder v HMA, conviction violated ECHR

UK Supreme Court throws out Scots Police right to question suspects without a lawyer. SCOTTISH POLICE have now lost the ability to question suspects without their solicitor being present, after the UK’s Supreme Court in London finally issued its ruling today on the Appeal case of Cadder (Appellant) v Her Majesty's Advocate (Respondent) (Scotland), throwing out the practice in Scotland of being able to question suspects without a solicitor in attendance as being a violation of Human Rights laws.

The background to the case : The Appellant was detained by the police on suspicion of serious assault and cautioned, in line with the statute, that he did not have to answer any question, beyond giving his name, address, date and place of birth and nationality. He was told that he was entitled to have a solicitor informed of his detention but he did not exercise that right. He was interviewed without a lawyer being present. During interview, the Appellant made a number of admissions. At trial the Crown led evidence of the police interview with the Appellant and relied on the admissions. The Appellant was convicted.

Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 allow a police constable to detain a person whom he has reasonable grounds for suspecting has committed or is committing an offence punishable by imprisonment. Detention may last for up to six hours. During detention, the police may put questions to the detainee, although the detainee is under no obligation to answer them and is to be informed at the outset of the detention that he is under no such obligation. The detainee is entitled to have a solicitor informed of his detention. However, in terms of the statute, the detainee has no right of access to a solicitor. The question is whether that is a breach of the right to a fair trial, recognised in Article 6(1) and 6(3)(c) of the European Convention of Human Rights (“the ECHR”).

In Salduz v Turkey (2008) 49 EHRR 421 the Grand Chamber of the European Court of Human Rights unanimously held that there had been a violation of Articles 6(1) and 6(3)(c) ECHR because Salduz had not had the benefit of legal advice when he was in police custody. In Her Majesty’s Advocate v McLean [2009] HCJAC 97, the High Court of Justiciary (sitting with seven judges) held that, notwithstanding the decision in Salduz, it was not a violation of Articles 6(1) & 6(3)(c) ECHR for the Crown to rely at trial on admissions made by a detainee while being interviewed without having had access to a solicitor. This was because the guarantees otherwise available in the Scottish legal system (and, in particular, the requirement that there be corroborated evidence in order to convict) were sufficient to provide for a fair trial. In the present case, relying on the decision in McLean, the appeal court refused the Appellant leave to appeal against his conviction. In effect, therefore, the present case is an appeal against the decision in McLean.

Lord Hope, in his statement to the court was critical of the fact no one until now had though the arrangements for questioning suspects without solicitors in attendance in Scotland was wrong. He said : “It is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure. Ever since the statutory power to question a suspect prior to charge was introduced by sections 1 to 3 of the Criminal Justice (Scotland) Act 1980, the system of criminal justice in Scotland has proceeded on the basis that admissions made by a detainee without access to legal advice during his detention are admissible. Countless cases have gone through the courts, and decades have passed, without any challenge having been made to that assumption. Many more are ongoing or awaiting trial - figures were provided to the court which indicate there are about 76,000 such cases - or are being held in the system pending the hearing of an appeal although not all of them may be affected by the decision in this case. There is no doubt that a ruling that the assumption was erroneous will have profound consequences. But there is no room, in the situation which confronts this court, for a decision that favours the status quo simply on grounds of expediency. The issue is one of law, as the court appreciated in McLean. It must be faced up to, whatever the consequences.“

The Judgment stated : The Supreme Court unanimously grants leave to appeal and then goes on to allow the appeal. The ECHR requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed, unless in the particular circumstances of the case there are compelling reasons to restrict that right. The Supreme Court remits the case to the High Court of Justiciary for further procedure. Lord Hope (Deputy President) delivers the leading judgment, with which Lord Mance agrees. Lord Rodger delivers a separate judgment, agreeing with Lord Hope but adding observations of his own. Lord Walker, Lord Brown, Lord Kerr and Sir John Dyson SCJ agree with the reasons given by both Lord Hope and Lord Rodger.

The judges also said their ruling was not entirely retrospective, and left the Scottish Criminal Cases Review Commission to determine if closed cases may be referred back to the High Court : This decision does not permit closed cases to be re-opened. Although a judicial decision has retrospective effect, it does not affect cases which have been finally determined (namely, where an accused was convicted and did not appeal within the relevant time limits, or did appeal and the appeal has been finally disposed of). The decision will, however, affect cases which have not yet gone to trial, where the trial is still in progress or where an appeal has been brought in time and is not yet concluded. The Scottish Criminal Cases Review Commission, if it is asked to do so, will have to determine whether it is in the public interest for cases which have already been finally determined to be referred to the High Court, which will in turn have to decide how to deal with such cases, if a reference is made.

The full judgement can be downloaded here : Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) (pdf)

Scotland’s Justice Secretary Kenny MacAskill issued a statement on the Supreme Court’s ruling, saying emergency legislation would immediately follow. Mr MacAskill gave the usual praises for Scotland’s ‘proud, distinctive’ justice system, despite the burgeoning catalogue of unjust convictions, allegations of miscarriages of justice & a Victorian civil justice system unfit for use even in a nursery. (Shouldn’t that be proud & distinctive as in who it wrongfully convicts, victimises or refuses to grant access to justice to ? – Ed)

Scottish Government statement follows :

Swift action to change Scots law

26/10/2010

The UK Supreme Court has today decided that one aspect of criminal procedure in Scotland is incompatible with the European Convention on Human Rights.

The judgement - which does not permit closed cases to be reopened and as such will not be retrospective - will prompt swift action from the Scottish Government that has been planned for months.

Responding to the decision of the Supreme Court in relation to the Cadder case, Justice Secretary Kenny MacAskill said: "I note today's decision by the Supreme Court. It is a decision we did not seek but it is one to which we must respond.

"The decision overturns decades of criminal procedure in Scotland, a proud, distinctive, justice system, developed over centuries, and predicated on fairness with many rigorous protections for accused persons. It is rightly admired by other jurisdictions. This issue is about legal advice at one step in the investigatory process.

"Today's judgement in the Supreme Court has gone against the unanimous decision last October by seven Scottish High Court judges at the Scottish Appeal Court that determined that an aspect of Scottish criminal procedure does not comply with the European Convention on Human Rights.

"We are concerned that the current devolution arrangements have created an anomaly that seems to put Scottish law at a disadvantage in comparison to elsewhere in the EU. I want to see steps taken to address this anomaly. But we cannot ignore the Supreme Court's decision.

"And while it necessitates changes to Scotland's justice system, these are changes that have been anticipated and planned for. For over a year, the Scottish Government, Crown Office, Scottish Legal Aid Board (SLAB), ACPOS and the Scottish Court Service have been preparing contingency plans to deal with all possible eventualities arising from this case. The Lord Advocate - in anticipation of an adverse judgement - issued interim guidance earlier this year.

"With Parliament's support we will be making swift legislative changes to protect the victims of crime and safeguard communities. The main changes will mean introducing a right of access to legal advice before being questioned, extending the period during which a person may be detained under section 14 of the Criminal Procedure (Scotland) Act 1995, powers to adjust legal aid eligibility rules and measures to ensure certainty and finality in concluded cases.

"We will be introducing this emergency legislation to Parliament on Tuesday - and with the support of the other political parties we can complete the parliamentary scrutiny and debate process during the course of Wednesday. We anticipate the Bill receiving Royal Assent by Friday.

"In addition to these necessary legislative changes, I am today announcing that Lord Carloway, a senior High Court judge, will lead a review of Scottish criminal law and practice in the aftermath of the Cadder decision. I have asked Lord Carloway to make swift progress with his review and report to me within months - certainly in time to allow legislation to be considered for the 2011-12 Parliamentary session.

"Our distinctive justice system is one which protects accused persons. However human rights also extend to victims and to all of the people of Scotland, and the Scottish Government and justice partners will continue to fight to ensure that the rights of the victims and indeed wider society remain at the forefront of the Scottish justice system."

Lord Advocate Elish Angiolini also issued a statement, saying : "The Supreme Court's judgment in Cadder v HMA is a significant ruling for Scots law.

"Until today, the Scottish legislation regarding access to a solicitor prior to and during police detention was held to be compliant with the European Convention on Human Rights. Indeed Scotland's highest criminal Court of Appeal looked at this very issue in the case of McLean less than a year ago. In that case seven judges held unanimously at that time that Scots law and practice was compatible with the Convention requirements.

"Prosecutors work within the law made by Parliament and as interpreted and stated by the courts. Today's ruling in Cadder changes understanding of the law as set out in McLean, and so we will immediately adapt our working practices to this new legal landscape.

"I note that the Court has stated that its decision does not apply to cases that have been finally determined. This very significantly limits the number of cases potentially affected by this judgment.

"In preparation for the possibility of this change, we have been working with the police and the Scottish Government to minimise the risk to live cases. We have of course taken precautionary measures: in early 2009 I issued guidance to prosecutors, instructing them only to use admissions made by suspects who had not had legal advice before interview in a police station where this was considered essential for the Crown case. Earlier this year, following the hearing before the Supreme Court, I issued Guidelines to the police requiring them to provide access to a solicitor prior to and during interview.

"Unlike any other jurisdiction in Europe, Scots law requires two sources of evidence to support each essential fact in a prosecution. This rule of 'corroboration' presents a further challenge to prosecution in Scotland, which does not apply in this wholesale manner in other jurisdictions.

"The balance of rights for accused in Scotland will now need to be carefully considered. It must be ensured that the Convention rights of victims to have 'effective criminal sanctions in place' are maintained where their human rights are flouted by the criminal actions of another.

"In light of this, I welcome the announcement by the Cabinet Secretary for Justice of Lord Carloway's review of the laws of criminal procedure and evidence in Scotland following the Supreme Court's decision. I consider such a review important to ensure, as the Supreme Court itself recognises at paragraph 97 of its opinion 'that any revised scheme is properly balanced and makes for a workable criminal justice system'.

"The Crown Office and Procurator Fiscal Service will continue to work with the police and with the Scottish Government to protect the integrity of pending prosecutions."