Sunday, 29 May 2011

Cadder and Fraser

As I have previously noted, the intense political atmosphere which surrounds elections can too easily give the impression that this is a permanent state of affairs. In fact, that quickly fades and a greater state of realism, one might more properly say normality, quickly reasserts itself. That has undoubtedly been the case this part week. It is slowly dawning that Scotland is not imminently going to declare UDI, or even test the matter in a referendum called by either Government at Holyrood or Westminster. Nor should it be supposed that the willingness of the Treasury to receive wee Eck courteously on his visit to London is indicative that they are even remotely likely to concede his more outlandish fiscal demands. In fact, things are likely to move forward in a much more measured way, with the Scotland Bill continuing its progress through committee in both Parliaments and no real show down likely to take place before the Autumn. Then, it will be interesting whether the SNP administration are really prepared to make (in their perception) the good the enemy of the best by voting down the whole legislation but a fair amount of water will have flowed under the bridge by then.

There has however been a significant constitutional development this week and that relates to the decision of the Supreme Court in the case of Fraser v HMA.

It was always given as one of the great examples of the continuation of Scotland’s own identity as a Nation between 1707 and 1999 that we had retained our own legal system. Indeed before the creation of the Scottish Office in the late 19th Century British acknowledgement of Scottish particularism on legal matters by  the part of the Westminster Government was embodied in the constant position of the Lord Advocate as the only uniquely Scottish Member of Government.

An equally important safeguard however was the clear agreement on both sides of the border that no Scottish Criinal Appeal was competent to the House of Lords. For those interested in these matters I would commend Professor Neil Walker’s fascinating (to lawyers at least!) study of both the history, and then the steady erosion, of that absolute exclusion as a result of the particular interpretation the Courts (Scottish and UK) chose to give to the position of the Lord Advocate, post devolution, by reference to s.57(2) of the 1998 Scotland Act.  

Until last week however, there was still an understanding that the UK Supreme Court (as successor to the House of Lords) did not have a role in relation to “bog standard” criminal appeals. Despite the notoriety of its circumstances, the Fraser Appeal was just that. It did not deal with any matter of Constitutional importance. It simply turned on the particular circumstances of one trial and conviction and indeed for all the attempts of the Supreme Court to categorise it as relating to the denial of a fair trial under Article 6 of the ECHR (thus allowing them jurisdiction), on that logic it can be credibly argued that every appeal to a higher court at any level proceeds on the premise that there has been a denial of a fair trial in the lower court either by irregularity of procedure; misinterpretation of the facts or misapplication of the law. It is also interesting to note that in the full decision of the Supreme Court in  Fraser there is no reference to any European case law and indeed the reasoning of the Court flows almost entirely from reference to previous Scottish cases which Lord Hope, delivering the leading Judgement, clearly feels were misinterpreted in our own Court of Criminal Appeal.

In both of these regards, Fraser was quite different from Cadder which, whether it was correctly decided or not (and I take the latter view) did undoubtedly raise wider issues of the compatability of Scots Law with the ECHR and was indeed prompted by the perceived need to at least reconsider the Scottish position on Police questioning of suspects in light of the decision of the European Court of Human Rights in Salduz v Turkey.
Now, nobody (and in this regard I do genuinely mean nobody, pro devolution or anti-devolution, Scottish or English) sought as a consequence of the 1998 Scotland Act that we now apparently have a second level of Appeals in routine Scottish Criminal cases. There are perfectly good reasons for the status quo ante, not all related even to the protection of the independence of Scots criminal law. No part of society has its interests served by criminal proceedings becoming interminable.

So, for all I might disagree with the First Minister on many matters, when he expressed his outrage at this development in the course of last week, he was speaking, I believe, for the overwhelming body of Scottish opinion. We do have an immediate opportunity to remedy this in the current Scotland Bill. That should be done. And in doing so provide another reason that the SNP will have to think twice before voting that legislation down.

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