A political row north of the border has erupted following the Supreme Court decision in Fraser v HM Advocate.
On 25 May the Supreme Court held that there had been a miscarriage of justice at the 2003 trial of the appellant for the murder of his wife who disappeared in 1998. It was held that non-disclosure of the crucial evidence from the police officers by the Crown constituted a breach of Article 6(1) (Right to fair trial). The decision came six months after the Supreme Court ruled on another Scottish criminal case, Cadder v HM Advocate as it raised an Article 6(1) issue.
The High Court of Judiciary is the court of last resort in all criminal matters in Scotland unless there is a consideration of a devolution issue which has been determined by two or more judges of that court. The Human Rights Act counts as a devolution issue and the Appeal Court refused Fraser’s motion to receive a ground based on the breach of Article 6(1) and so dealt with the matter as a “fresh evidence” case. The question of whether authority should be granted to bring a new prosecution was remitted by the High Court of Judiciary.
Both First Minister Alex Salmond and Justice Secretary Kenny McAskill have voiced concern over the case, with McAskill threatening to withdraw Scotland’s share of the court’s funding. Salmond has now appointed a four-strong panel of legal experts to examine the role of the Supreme Court in developing Scots law. It includes Lord McCluskey, a former solicitor general, and Professor Neil Walker, an expert in constitutional law. It is due to report before the summer recess.