UK Supreme Court Dabbles in Scots Human Rights ?
3rd June 2011
Marisa Gillick, Volunteer Law Student at Renfrewshire Law Centre, writes about the role of the UK Supreme Court in Scottish criminal cases.
Following their recent success in the elections to the Scottish Parliament, the Scottish Nationalist Party (SNP) are set to challenge the Supreme Court of the United Kingdom over its intervention in Scots law regarding Human Rights issues.
The situation intensified following a ruling by the Supreme Court that the conviction of Nat Fraser, who is currently serving a life sentence for allegedly arranging the murder of his wife, Arlene, in 1998 was unsafe.
The SNP’s contention regards the Supreme Court’s jurisdiction in Human Rights cases. Article 19 of the Treaty of Union 1707 provided for the continuation of Scotland’s separate legal system. The highest court of appeal in Scotland for criminal matters therefore remains the High Court of Justiciary. The House of Lords (as was) only had jurisdiction as the final court of appeal of civil cases arising in Scots law. However, following devolution under the Scotland Act 1998 and the passing of the Human Rights Act 1998 , the new UK Supreme Court (which replaced the House of Lords in 2009) also has scope to examine so-called ‘devolution issues’. These concern whether or not an action has been taken in Scotland which is outwith the legislative competence laid down in statute.
One area of growing notoriety is that of human rights-based issues.
The trend gained public attention in the case of Cadder v Her Majesty’s Advocate (Scotland) [2010] UKSC 43. The petitioner appealed to the Supreme Court from the High Court of Justiciary in order to challenge the latter’s ruling that evidence obtained from the accused, who had not had access to legal advice while detained under the Criminal Procedure (Scotland) Act 1995, s.14, did not of itself constitute a violation of the European Convention on Human Rights 1950, Art.6(1) and Art.6(3)(c). The clash between legal jurisdictions is conspicuous. As a criminal cause the ruling by the High Court of Justiciary is final. Instead, the petitioner engaged an argument of legislative incompetence, that is to say, the High Court’s ruling was incorrect and the petitioner’s Human Rights had been infringed because he had not received a fair trial under Article 6 of the 1950 Convention. This is a devolution issue and thus the matter was referred to the Supreme Court.
The resulting ruling effectively changed criminal procedure in Scotland, i.e. an amendment of Scots law relating to criminal law and rules of evidence by the UK Supreme Court.
In a continuation of this intervention by the Supreme Court, it was ruled on 25th May 2011 that the conviction of Nat Fraser for the murder of his wife in Aberdeenshire 13 years ago was unsafe. Mr Fraser had previously appealed against a decision refusing leave to challenge the Appeal Court’s refusal to receive a devolution issue minute in relation to his appeal against his murder conviction. This was considered to be a devolution issue which was outwith the High Court of Justiciary’s competence and so fell to be considered by the Supreme Court who held that the Cameron test employed by the Scottish court was inappropriate in appeals where ‘fresh evidence’ has emerged and subsequently that this amounted to a miscarriage of justice. Mr Fraser’s case is now being remitted to a differently constituted Appeal Court to determine whether there should be a retrial where the conviction could be quashed.
The First Minister, Alex Salmond, has expressed concerns that the Supreme Court is overstepping its role in relation to Scotland. These concerns have been shared by leading figures in the legal profession in Scotland, including the former Lord Advocates Lord Fraser and Elish Angiolini.
Whilst not all those who have expressed their concern follow Mr Salmond’s belief that such matters should be referred to the European Court of Human Rights in Strasbourg, as is the case with any other separate legal jurisdictions, nonetheless it is clear that this particular matter is one which engenders widespread uneasiness.
The Advocate General for Scotland, Lord Wallace of Saltaire is critical of the SNP’s decision to set up an ‘expert committee’ to examine the issue. He questions the need for such an action when some of the country’s most senior legal experts reviewed the court last autumn and gave their “unanimous” seal of approval.
Mr Salmond and his supporters argue that the Supreme Court does not have sufficient knowledge and expertise in matters of Scots law to be determining issues which pertain to it (although already two UKSC judges are former senior Scots judges). However, the SNP’s proposition that issues regarding Human Rights should be referred directly to Strasbourg carries criticism for much the same reason.
Mr Paul McBride QC, who represented Mr Fraser in his original 2003 trial, has suggested that a possible solution would be to appoint a third judge to the Supreme Court who has expertise in Scots law to sit on such cases. This would effectively allow for a majority of the panel hearing these cases (three of five), to have the necessary insight and knowledge sought by Mr Salmond and all others on both sides of the argument.
The issue is one which is highly contentious. Further developments will almost certainly follow when the Committee set up by the Scottish Government reports its findings to the Parliament for scrutiny and debate.
June 2011, Marisa Gillick, Law Student Volunteer