The decision in Fraser led Scotland’s First Minister, Alex Salmond, to launch an extraordinary attack upon the SC, describing it as replacing Scottish law “with Lord Hope’s law” (a reference to the fact that Lord Hope delivered the leading judgment in Fraser, albeit one with which three other judges agreed). Salmond announced on 5 June 2011 that an independent review group would consider as a matter of urgency the relationship between the HCJ and the SC. This was despite the fact that, in January 2010, Professor Neil Walker had already produced a 106 page report for the Justice Secretary on precisely this issue and in November 2010 an Expert Group appointed by the Advocate General for Scotland had done likewise. Salmond’s independent review team published its first report on 22 June 2011, a mere three weeks after its establishment. All three reports recommended retaining at least some role for the SC in determining human rights issues in Scottish criminal appeals.
The UK Supreme Court: its involvement in Scotland
Whatever one thinks of the appropriateness of Alex Salmond’s comments, they do reflect the genuine belief in some quarters that Scotland would be better off without the SC’s involvement in criminal matters. It is first worth briefly outlining the extent of that involvement. In Scottish civil matters the SC (or its predecessor the House of Lords) has always been the final court of appeal.
In criminal matters, however, the highest court of appeal was always the HCJ. This was reaffirmed in s 124(2) of the Criminal Procedure Scotland Act 1995 which provides that decisions of the HCJ “shall be final and conclusive and not subject to review by any court whatsoever”. Those dissatisfied with the outcome of a criminal appeal could petition the Secretary of State for Scotland or, latterly, the Scottish Criminal Cases Review Commission. If the case raised a human rights issue, there was the option of an application to the European Court of Human Rights (“ECtHR”), but the only remedy available there was an award of damages.
This landscape altered upon devolution. The Scotland Act 1998 required all members of the Scottish Executive to act compatibly with the ECHR and with European Community law. Its impact has been immense due to the unique position of the Lord Advocate (“LA”) as the head of the Scottish prosecution service and a member of the Scottish Executive. An accused can raise a “devolution minute” on the basis that any aspect of his prosecution has failed to comply with his ECHR rights. The vast majority of devolution issues are dealt with by the Scottish courts, but the Scotland Act also created a right of appeal to the Judicial Committee of the Privy Council (subsequently the SC). Leave is required but this can, if refused by the HCJ, be granted by the SC itself.
Devolution issues were soon commonplace in the Scottish courts, with 1,263 devolution minutes being served in 2009/10 alone. Only a tiny minority of devolution minutes reach the SC, but those that have almost exclusively concern the acts of the LA in her capacity as prosecutor. In around half of these cases the SC has overturned a ruling of the HCJ. It is perhaps unsurprising, then, that there exists opposition to the SC’s role and that, politicians aside, the most vocal opponents are members of the Scottish judiciary. But is there any substance to these objections?
One argument that features heavily is hostility to what is perceived as interference by an “English” court with the independence of the Scottish legal system. However this neglects the fact that by virtue of the UK’s international obligations as a member of the European Community the Scottish legal system cannot remain entirely self-contained.
A more nuanced argument is that the SC lacks the expertise to consider Scottish cases, there being only two justices with a background in Scots law. Admittedly there are major differences in criminal procedure between Scotland and the other UK jurisdictions – the requirement for corroboration and a largely unqualified right to silence to name but two. But when the SC hears a devolution issue, care has been taken to ensure that its two Scottish members are part of the Bench. As Lord Hope stated in his response to the Expert Group, in practice the non Scottish justices “defer to the expertise of the Scots on any matters of Scottish criminal law and procedure that may come under scrutiny”. It might also be said that the same argument could be made in relation to civil appeals or indeed cases where Scottish justices sit on English appeals. And if the SC’s jurisdiction were to be removed, Scottish cases would be more likely to end up in the ECtHR, none of whose members have a background in Scots law and where few have first-hand experience with adversarial systems.
A positive influence
To the vast majority of independent observers the influence of the SC has, for the most part, been a positive one. As the Expert Group report put it “there is a strong body of opinion, which we share, that the effect of this jurisdiction has, on the whole, been a salutary one for the conduct of criminal proceedings in Scotland and public respect for our criminal courts”.
This can be demonstrated by examining Cadder and Fraser themselves. Space precludes a detailed account, but if Cadder had not been determined by the SC, Scottish suspects would still have no right to legal assistance during police questioning and the UK would almost certainly have faced extensive damages awards as a result of “Cadder” type cases being taken to the ECtHR. In Fraser, any neutral observer would surely have concluded that the appellant’s trial, in which he was convicted of the murder of his wife, was unfair. Subsequent to his conviction, two police statements were discovered which fundamentally undermined the Crown’s case (that the appellant had removed a wedding ring from his wife’s dead body and placed it in the bathroom a few days after she was last seen in order to make it look as if she had left voluntarily). The ring was so important that the trial judge instructed the jury that if they did not believe it was placed there by Fraser a few days after his wife’s death, they should not convict. The statements were to the effect that the ring had been there all the time. Their non-disclosure meant that these police witnesses were not led at trial. The HCJ declined to quash the conviction, insisting that no miscarriage of justice had occurred.
The arguments for retaining the SC’s involvement are persuasive. It ensures consistency across the UK in the application of human rights principles. If it were to be otherwise, Scots alleging that their Convention rights had been breached would, if the HCJ considers otherwise, have no option other than to take their case to the ECtHR, a lengthy and costly process, the outcome of which can at best be an award of damages. This would seriously disadvantage Scottish citizens in comparison to those in other UK jurisdictions.
Watch this space
Despite Alex Salmond’s public pronouncements to the contrary, it seems unlikely that Scotland will entirely sever its connections with the SC in criminal cases. The Scotland Bill, in which a number of changes to the devolution settlement are proposed, is currently awaiting its second reading in the House of Lords. As it presently stands, the Bill contains provisions that would retain the SC’s role, albeit under a different procedural mechanism. It has been suggested by Paul McBride, a leading Scottish QC, that many of the concerns of the Scottish judiciary could be eased by appointing a third Scottish judge to the court, which seems an eminently sensible proposition. For the time being, however, it is very much a question of “watch this space” for developments, especially if, as is widely expected, the SC rules against the Crown in HM Advocate v Ambrose, a collection of references on the admissibility of what an accused said (in different circumstances) after being cautioned but without having had access to legal advice. Judgment is awaited.
Dr Fiona Leverick, Senior Lecturer in Criminal Law, University of Glasgow