Five justices at the Supreme Court in London yesterday said Scottish prosecutors had breached Nat Fraser’s right to a fair trial under the European Convention on Human Rights (ECHR).
Fraser, 52, of Elgin, Moray, was jailed for life in 2003 after a jury at the High Court in Edinburgh found him guilty of killing his wife Arlene, 33, a mother of two, who vanished from home in April 1998. He will now face a retrial.
Alex Salmond said the ruling threatens the independence of Scotland’s criminal legal system. The First Minister, who did not directly discuss the case, said: “What needs to be addressed is the underlying issue: the principle that Scotland has, for hundreds of years, been a distinct criminal jurisdiction, and the High Court of Justiciary should be the final arbiter of criminal cases in Scotland, as was always the case.
“Before devolution, the House of Lords had no jurisdiction whatever in matters of Scots criminal law. The increasing involvement of the UK Supreme Court in second-guessing Scotland’s highest criminal court of appeal is totally unsatisfactory.”
Mr Salmond reiterated the Scottish Government’s belief during its evidence to the Scotland Bill that the court “should have no role in matters of Scots criminal law, whether by way of devolution issues or appeal.”
However, concern exists in legal circles over Mr Salmond’s remarks. It was pointed out that the Supreme Court was established in 2009 to ensure people who believe their rights have been infringed did not need to take their appeals to the European Court of Human Rights in Strasbourg.
Labour’s justice spokeswoman, Johann Lamont, said: “The independence of the Scottish judiciary is not challenged or threatened in any way whatsoever and it is disappointing this case has been used as an opportunity for yet further constitutional wrangling.
“Appeals to the Supreme Court must be on devolution issues only, such as whether someone’s rights under the European Convention of Human Rights have been breached.”
Arlene’s family said the judgment was “bitterly disappointing.” They added: “However, we fully support the Crown’s intention to seek authority to bring fresh proceedings against Nat Fraser for Arlene’s murder.”
Fraser’s mother Ibby Fraser, said her grandchildren, Jamie, 23, and Natalie, 18, were “delighted” and she hoped there would be no retrial.
Fraser was a fruit and vegetable seller at the time of Arlene’s disappearance on April 28, 1998. Last night he was still in Addiewell Prison in West Lothian, where he is serving a minimum term of 25 years for the murder, but he could be released soon on bail.
The Crown Office said it would seek a retrial, a decision that is expected to be confirmed within days by judges at the Court of Criminal Appeal in Edinburgh. The Supreme Court judgment said that three of Arlene’s rings had been the “cornerstone” of evidence against Fraser. They were found in the bathroom of her house on May 7, 1998.
Prosecutors suggested that Fraser had removed them from her body and placed them in the bathroom to make it appear that she had left home.
However, the judges said, it later emerged that prosecutors had evidence from police to suggest the rings were in the house on the night Arlene vanished.
Fraser’s counsel argued that the failure by the prosecution to reveal that information to his legal team breached his right to a fair trial under Article 6 of the ECHR
Lord Hope, deputy president of the Supreme Court ruled: “The court holds that the trial would have been significantly different if the undisclosed evidence had been available.
“There is a real possibility that the evidence would have been sufficient to raise a reasonable doubt as to whether (Fraser) placed the rings in the bathroom on May 7.
“If that were so, the jury’s verdict would have been bound, in view of the judge’s direction, to have been different.”