The legal system in the balance

The Sunday Herald understands Salmond is already considering two main options: pushing the UK Government to amend the Scotland Bill currently at Westminster, or making the Scottish issue a key part of Nick Clegg’s new commission on a British Bill of Human Rights, which is due to examine the role of the Supreme Court.

Salmond is expected to raise the issue with the Liberal Dem ocrat deputy prime minister when he makes an official visit to Scotland on June 9.

The Scottish Government last night said that, as a priority, the Supreme Court should have “no role in matters of Scots criminal law”, and ultimately no role in Scots civil law either.

The SNP has long argued for a self-contained legal system as part of an independent Scotland, and resents the Supreme Court’s as-yet untested power to strike down Acts of the Scottish Parliament, while Westminster Acts are off-limits.

Critics accused Salmond of political posturing and manufacturing a war with London, partly to cover up the embarrassment of the Supreme Court exposing poor decisions by Scottish judges.

Human rights lawyer and Solicitor-Advocate John Scott accused Salmond of “beating a nationalist drum” to stir up support for independence, adding: “They really can’t posture on something so important for justice.”

Labour peer Lord Boyd, the former Lord Advocate, head of Scotland’s prosecution service, warned Salmond’s plan could restrict access to justice.

“Once you have given people the right to go to a superior court, to take that right away is quite a serious matter and you have to think long and hard about whether or not that’s appropriate.”

However, his successor as Lord Advocate, Elish Angiolini, said there was a danger of a loss of identity in Scots law if the Supreme Court tried to iron out its special qualities, rather than granting Scottish courts leeway on applying the European Convention on Human Rights (ECHR).

A UK Government source said Salmond’s plan appeared based on the “infallibility of Scots law”, adding: “It’s a real oversimplification to say the Supreme Court is meddling in Scots law out of evil intent. It’s just not correct.”

Created in 2009 to separate the UK’s legal and political systems, the Supreme Court took over many appeal functions from the House of Lords, including appeals on Scots civil cases.

It has never been a general appeal court for Scottish criminal cases, but there are fears it is gradually becoming one by the backdoor, as it can consider whether a person’s human rights were breached during a Scottish prosecution and trial and strike down a guilty verdict.

That happened last week when it ruled that 52-year-old Fraser, who had exhausted the appeals process in Scotland, did not get a fair trial under Article 6 of ECHR, as pivotal evidence had been withheld from his defence and the jury. Fraser was jailed for 25 years in 2003 after a jury found him guilty of murdering his estranged wife Arlene, who disappeared five years earlier.

He will learn on June 8 if he faces a retrial.

The Supreme Court also sent shock waves through the Scottish legal system last year when it delivered the so-called Cadder ruling, stating that under ECHR suspects must have access to a lawyer when being interviewed by the police.

This had been the case in England since 1985, but in Scotland the police still interviewed suspects for up to six hours without a lawyer.

Despite a Scottish appeal court of seven judges ruling the practice acceptable a year earlier, the Supreme Court said Scotland must change in the light of a related European court ruling.

The decision caused upheaval for Scottish police and prosecutors, the collapse of some cases, the review of thousands of others, and a flood of human rights appeals on similar grounds.

Justice Secretary Kenny MacAskill said the SNP Government’s preferred position was to restore the pre-devolution arrangement where all Scottish criminal appeals were heard by Scottish courts.

He said issues about possible breaches of ECHR could ultimately be appealed directly to the European Court of Human Rights in Strasbourg. He said if that happened, Scotland would expect to have a Scottish judge in Strasbourg, and be treated on a par with other nations.

“We are disturbed by what has happened [with the Supreme Court]. We are looking for direct representation at Strasbourg. We are happy to accept their judgments. We just want to be put in the same position as other countries.”

However, one aim of the Supreme Court was to bring access to European law and ECHR closer to home, without the need for costly and time-consuming appeals to Strasbourg.

What used to take years now takes months, as the Supreme Court adjudicates on ECHR in the UK.

Strasbourg also lacks a Scottish judge, whereas the Supreme Court’s 12 justices include two of Scotland’s finest legal minds, Lord Hope and Lord Rodger, both of whom served as Scotland’s most senior judge, the Lord President, and who lead the hearings on Scottish matters.

Last year, an expert panel led by Scots judge Sir David Edward said it “did not understand why it should be thought preferable that issues on Scottish criminal law … should be subject to scrutiny by a court in Strasbourg or Luxembourg which includes no Scottish judge than by a court in London which includes two of them”.

The panel, which includes leading QC Paul McBride, unanimously supported the Supreme Court retaining its current jurisdiction, and said it had had a “salutary” effect on Scottish criminal cases and public respect for criminal courts.

The Scotland Bill is already expected to reform one aspect of Supreme Court work which has arisen from poor drafting of the 1998 Scotland Bill which created the Scottish Parliament.

One part stated no minister had the power to act in contravention of ECHR, while another stated the Lord Advocate was a government minister.

A dispute about a minister exceeding his or her power on ECHR is called a “devolution issue”.

Sir David’s panel said this “constitutionally inept” phrasing allowed virtually any aspect of a prosecution or trial to be regarded as an act of the Lord Advocate, and so be challenged on ECHR grounds as a devolution issue.

Since 1999, more than 11,000 devolution issues have been raised, creating a unique and costly logjam, gumming up the Scottish legal system.

Although they must comply with ECHR, English and Welsh prosecutors do not face such problems.

Devolution issues are initially heard by Scottish courts, but can ultimately be appealed to the Supreme Court, which only considers the narrow ECHR aspects of Scottish criminal cases. So far six have been decided this way, including the Cadder and Fraser cases.

The Scotland Bill proposes to deal with such questions in local courts – a much less bureaucratic approach to devolution issues; altering it to remove Scotland from the ambit of the Supreme Court altogether would be a vastly more complicated task.

The Supreme Court has also created resentment among Scotland’s judges, some of whom regard it encroaching on their jurisdiction.

Lord Boyd said: “There are quite a lot of Scottish judges who take the view that it is unwarranted intervention and I think they’re wrong in that.

“If you look at the Cadder judgment on police interviews, my own view is that that was an inevitable decision.

“I’m reluctant to criticise our own judges, but it is I think unfortunate that our own court took a different view on the matter.”

He added: “My own view is that if you have a United Kingdom which has international obligations on the ECHR and these are common values right across the United Kingdom, there should be a United Kingdom court that should finally determine these matters.

“I don’t think [the UK] Government has any intention of doing what Alex Salmond wants, and some of the Scottish judiciary want, and stop the right of appeal on ECHR issues to the Supreme Court.”

Human rights lawyer and Solicitor-Advocate John Scott said the plan for direct appeals to Strasbourg was a step backwards as it would introduce extra cost and delay, yet the system would produce the same results.

“All these things they’re huffing about at senior judicial or governmental level are happening at an international level. It’s not happening because of the Supreme Court. This is not a small bunch of English judges picking on Scotland and trying to Anglicise it.

“They’re doing an important job and, frankly, bringing us to where we should be in recognition of the international standards that are being applied across Western Europe.

“The Supreme Court is part of an excellent tradition in Scotland of being open to other ways of approaching things, to ideas about fairness. If there are better ways of doing some of the things we’re already doing, let’s look at them. The idea that ‘Wha’s like us?’ is a sufficient defence of the Scottish way of proceeding is fanciful. We should never stop improving.”

Former Lord Advocate Elish Angiolini said she was not hostile to the Supreme Court or its role in civil appeals, but worried that, while ECHR allowed for differences between nations, a single UK court might result in uniformity between England and Scotland.

“On our common law, it’s important to recognise that there’s a danger of a loss of identity, not simply through harmonisation, but through making it uniform, because you look at it through the lens of a particular jurisdiction, as opposed to recognising that Strasbourg has a very wide notion of its application with the convention.”

Salmond now seems to be making the most of all these factors – anger among Scottish judges, the Scotland Bill reforms, public interest in the Nat Fraser case, and a tangible enemy in the form of a London-based court – plus his Holyrood majority, to advance the long-standing SNP case for a self-contained Scottish legal system.

However, it is a risky strategy.

The Supreme Court cases which have spurred him to public comment – Cadder and Fraser – have exposed flaws in the Scottish system, not strengths.

In the first, the Scottish appeal court refused to accept what was standard practice across Europe, while in the second it failed to accept that a right to a fair trial had been breached.

So while it might be politically useful for Salmond to attack the Supreme Court as a symbol of London interference – and distract from the failings of the Scottish legal system – it also leaves him open to charges of parochialism.

Is it really better for Scots to put up with a defective legal system because it’s Scottish, or to receive justice from elsewhere?

‘We are disturbed by what has happened [with the Supreme Court]. We just want to be put in the same position as other countries’

‘It’s important to recognise that there’s a danger of a loss of identity,

not simply through harmonisation, but through making it uniform’

Scottish Justice Secretary

Kenny

McAskill

Former Lord

Advocate Elish

Angiolini