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Saturday, June 11, 2011

Why Supreme Court is good for Scots Law

Why Supreme Court is good for Scots Law

Published on 11 Jun 2011

Much has been written in the wake of controversial judgments from the Supreme Court concerning Scottish cases.

By Tony Kelly, The Herald

The Cadder ruling on a lawyer being present during a police interview of a suspect involved the over-ruling of a unanimous seven-judge bench decision of a Scottish Court and brought Scotland up to date with the rest of Europe. Consideration of that case will find an analysis which, with regret expressed, finds the choice taken by Scots Law in 1980 was a wrong turn and for the wrong reasons.

The Scottish Justices of the Supreme Court lay out in the clearest possible terms that Scots Law, prior to this change, had respected the rights of suspects to consult their advisors. The threadbare reasoning provided by the Thompson Committee for the dilution of that right – that suspected criminals may rely upon their rights – does not hold up in modern day Scotland, never mind modern day Europe.

In Nat Fraser’s appeal, human rights considerations were not allowed to be argued before the Scottish Court. It decided his appeal upon the application of what could be charitably termed traditional grounds of appeal. The Supreme Court applied uncontroversial human rights considerations to arrive at a relatively unsurprising conclusion.

As the debate has moved on (and moved downward) little consideration has been given to the facts of these cases. That is understanding in light of the fact that both cases are live. There is nothing particularly transformative about the reasoning of the judges; there is no importation of alien doctrines or Anglicisation of Scottish criminal law. Shockwaves have been felt, but only those which would have inevitably come our way.

A comparison with the relatively few cases which represent the body of criminal case law considered in London post-devolution shows this decision falls logically in line with what has gone before.

In the case of Fraser there is a long litany of reports and investigations into how the Crown position at trial was contradicted by information in its possession.

The non-disclosure of that information is beyond doubt. The very issue for the Supreme Court – the effect of that non-disclosure upon the fairness of the trial – does not feature in any of the recent discussions about the case. Similarly, in the wake of the Supreme Court ruling in Cadder very little attention has been paid to the failure of the prosecuting authorities to anticipate this outcome.

True, they must have drawn solace from the unanimous decision of the Appeal Court, but no-one now seriously contends that the Supreme Court decision in Cadder is wrong. No criticism is detected in the debate about the outcome of the case. What then is the criticism? That is based on Nationalist politicians complaining about the location of the Court. It is said that this is a foreign (English) Court imposing its will upon the law of Scotland. Reference is made to the store and source of knowledge upon such matters. Passports and birth certificates are to be checked when judgment is issued. That has been embellished with assertions that this was never the intention of Parliament in the passage of the Scotland Bill in 1998 through the UK Parliament. It clearly was. On October 28, 1998, the opposition peer Lord Mackay of Drumadoon asked then Lord Advocate (Lord Hardie) expressly on the subject of the Judicial Committee of the Privy Council ruling upon Convention rights and Scottish prosecution. The response of Lord Hardie could not have been clearer.

The other aspect of criticism is that Lord Hope writing singularly has outvoted three or seven members of the Scottish judiciary. This is to misunderstand the legal principle of stare decisis. As cases progress through the Court hierarchy votes are not picked up en route to be counted at the conclusion. As cases move up the Court hierarchy the slate is wiped clean. The superior court determines upon the matter. It is interesting to note that for the two recent cases that have attracted such controversy there has been unanimity among the Justices of the Supreme Court.

In the judgments issued in Cadder and Fraser it cannot be said that the application of human rights considerations to these cases takes place in a vacuum. As one who witnessed the cut and thrust of oral argument before the Supreme Court in Cadder, it is beyond doubt that all of the justices contributed and all came to their own independent view of the matter.

The Supreme Court in exercising the limited jurisdiction given to it by Parliament tries to anticipate the ruling of the Strasbourg Court upon the issues before it. It has not been afraid to find against the Government on many controversial issues of significance including the lawfulness of control orders and the Convention compatibility of the sex offender register. In Cadder the approach of the Supreme Court was summed up by Lord Roger: “In my view there is not the remotest chance that the European Court would find that, because of the other protections that Scots Law provides for accused persons, it is compatible with article 6 (1) and (3) (c) for the Scottish system to omit this safeguard ... and for suspects to be routinely questioned without having the right to consult a lawyer first. On this matter Strasbourg has spoken: the courts in this country have no real option but to apply the law which it has laid down.”

To try to place even a very thin sheet of paper between the Supreme Court and Strasbourg by saying that one opens jails and frees prisoners while another does not is to misrepresent the position. The Strasbourg Court has ruled upon the Convention compatibility of corporal punishment in Scotland’s state schools. This was phased out as a result of the pronouncement. Similarly, in connection with issues such as legal aid for Scottish criminal appeals and the opening of solicitors’ correspondence in Scotland’s jails, once the Strasbourg Court has spoken the UK Government complies in order that it does not breach its Treaty obligations in terms of international law. The rulings in Cadder and Fraser did not result in jail doors being opened. The consequence of the rulings is left to the domestic setting for the Scottish Courts and the Scottish legislature to give effect to the decisions. There is no difference in law between the pronouncements from one or other of these courts. It represents the superior Court finally determining upon the Convention compatibility of governmental conduct.

When the Supreme Court ruled upon indefinite registration for certain sex offenders as being in breach of human rights, the Scottish Parliament enacted legislation promptly. It was required to do so. Both the Parliament and the Scottish Government have to comply with human rights.

If the argument about human rights is taken to its ultimate conclusion the mischief complained of is not the location of the Court or the nationality of the judges deciding the cases but rather with the statutory constraint upon the exercise of governmental power. Compliance with human rights is not a welcome constraint.

Defining the content of Convention rights is sometimes unpalatable for Government.

The truth is, if the Government continues to fail to respect human rights it will find itself in bother. If it continues to make ill-informed comments rather than dealing with the real issues it cannot hope to carry the day in connection with its proposed changes to the law.

Tony Kelly is a professor of human rights at Strathclyde University and has been an instructing solicitor in cases which have gone to the House of Lords, the Judicial Committee of the Privy Council and Supreme Court.

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