SCOTLAND'S most senior prosecutor has stepped into the high-profile debate on the role of the UK Supreme Court and hit back at critics of senior judges.
Frank Mulholland, the Lord Advocate, told The Herald judges in Scotland should decide which cases go before the Supreme Court because they have their "finger on the pulse" of what is happening north of the Border.
He warned the Supreme Court's decisions are not always right or final, as they can still be appealed to Strasbourg. And he called for Scotland to have direct access to the European court in Strasbourg, rather than the current position of having to go through the UK Foreign and Commonwealth Office.
He said: "I am not being disrespectful to the Supreme Court but sometimes it is in disagreement with Strasbourg. The ultimate say is from Strasbourg.
"Currently, to go to Strasbourg we have to go through the UK Government and Foreign and Commonwealth Office in order to deal with that. I think it would be much better if in these circumstances we could deal with Strasbourg direct.
"We have devolution. If and when that changes, that would be a different ball game and not one for the Supreme Court.
"I'm not advocating the abolition of the Supreme Court. The point is that just because there has been a decision in the Supreme Court it does not mean it will be correct or that will be the end of it."
His comments follow a protracted and heated debate about the role of the Supreme Court in Scottish cases.
Scotland's most senior judge, Lord Hamilton, the Lord President, has asked for the same process of "certification" of cases before they go to the Supreme Court as that which applies to English and Northern Irish cases.
The procedure was proposed in a review of the Supreme Court by Lord McCluskey, who argued other UK courts have to give permission for cases to continue to the Supreme Court, whereas High Court decisions on appeals in Scotland can be overruled by the Supreme Court.
Lord McCluskey called for a system to be put in place in Scotland so the High Court would have to agree to an appeal by granting a certificate that the case raises a point of general public importance.
Some human rights experts have warned a process of certification could lead to failures to rectify serious miscarriages of justice and Lord Wallace, the Advocate General, has said he "remained to be persuaded" .
Earlier this month, solicitor-advocate John Scott, of Justice Scotland, backed Lord Wallace, saying English judges appeared to have "greater maturity" than Scottish ones when it came to human rights cases.
Mr Mulholland said: "Scottish judges have been accused of immaturity and being grudging in their approach in granting leave to appeal to the Supreme Court, but if that is the case, how would it explain the Scottish judges' recommendation to expand the Supreme Court's jurisdiction?
"Currently, the jurisdiction is fairly narrow because it requires an act of the Lord Advocate which is incompatible with the convention. They have said that should be extended to cover individual acts of public bodies."
However, he added: "Certification is necessary. The courts of a particular jurisdiction have a better understanding of the criminal law of that jurisdiction. Judges in Scotland have got their finger on the pulse of the issues in Scotland and are better able to make a decision on whether a case is a matter of general public importance.
"This is not a criticism of Supreme Court judges. It is just a recognition of the fact that being a court of reference, they don't have their finger on the pulse because they are not dealing with Scottish issues daily."
He said figures suggest very few cases denied leave to appeal to London by the Scottish courts have gone on to be successful.
However, critics warn several of the most significant decisions have come from these cases.
The Lord Advocate also pointed out having a further layer of appeal is expensive and said there is currently no time limit on appeals to the Supreme Court. His response to the consultation calls for a time limit.
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