Salmond v Hope or The Supreme Court “Mess”


Well, what a flurry of activity we have seen, caused by the decision of the Supreme Court to find that the conviction of Nat Fraser should be quashed on the grounds of non-disclosure of information by the Crown.

Much ink has been spilt and much hot air expended since the Court pronounced its decision.

Sadly much of it has seemed, to my eyes and ears anyway, to mis-state the position, and the whole issue has been taken up for political ends.

The First Minister and his Justice Secretary have been vocal in their criticisms. References have been made to “he who pays the piper calls the tune”, “one man’s law” and “ambulance chasing”.

These seem to me entirely inappropriate for members of the executive to be firing at the judiciary.

Whilst my lectures on separation of powers were long ago, my Professor made reference then to the three sided battle between the Executive, Legislature and Judiciary, if not for superiority, at least for maintenance of their respective positions.

That analysis was, of course, in terms of a pre-devolution settlement, and it seems equally clear that the present attacks by the Scottish Executive upon the Supreme Court are a Braveheart style plea to the Scots to rise up and attain independence as can only be delivered by Mr Salmond.

It was always felt to be constitutionally “inappropriate” for the various branches of government to attack each other. The tri-partite nature meant, ideally, that each branch got on with its job without interference from the others, understanding that each had, in certain circumstances, a role to tell the others what to do.

However attacks by politicians upon judges, from a constitutional viewpoint, have always seemed to me to be problematic and potentially dangerous.

The suggestion that, in some way, Lord Hope is single handedly trying to bend Scots criminal law to his own will is preposterous and unworthy of our First Minister and his colleague.

Until the passing of the Scotland Act 1988 the House of Lords had never had a role to play in Scottish criminal law. Unlike its role as the final appeal court in civil matters, it was long settled, and indeed specifically stated, that the High Court of Justiciary formed the ultimate Appeal Court in criminal cases.

Of course the European Convention of Human Rights (ECHR) had, many years ago, laid down standards for the states signed up to the Convention to follow, and there was a long and winding road by which challenges could proceed to the European Court of Human Rights from the Scottish criminal courts, but these were very few and far between.

Devolution changed matters however. In conjunction with the Blair Government’s intention to give the ECHR direct effect in the courts of England and Wales by way of the Human Rights Act, it was also determined that the Scottish Executive had to act, at all times, in accordance with the ECHR. It was ultra vires of the Executive to act, or to fail to act, in a way that contravened the Convention (or the body of European Law enforced by the European Court of Justice).

S57 (2) of the Scotland Act states that “A member of the Scottish Executive has no power to make any subordinate legislation or to do any other act, so far as the legislation or the act is incompatible with any of the Convention rights or with Community Law.”

The Lord Advocate, who in his new incarnation remains, like “military intelligence” an oxymoron, being neither a Lord nor an Advocate, is obliged to follow the terms of s 57 (2) on the basis that the Act states that he is treated as one of the Scottish Ministers, even in respect of his role as head of the prosecution service in Scotland.

Interestingly the one exception to this arises from s 57 (3) where if the Lord Advocate acts in a prosecution in a way incompatible with the ECHR, but is compelled to do so by primary i.e. UK legislation, then such actions are not ultra vires.

In Scottish case therefore the “devolution issue” was created, which, to be frank, was always felt by practitioners to be a bit of a misnomer. Whilst the issues arose from the obligations imposed on the Scottish Executive by devolution, in the form of the Scotland Act, very few of the ones that have proceeded to the Privy Council or Supreme Court have had any “devolution” aspects to them. The cases of Martin v HMA   and Miller v HMA , decided in 2010, were classic “devolution” cases as they dealt with the legislative competence of the Scottish Parliament to increase certain penalties for road traffic offences. Most however have been in respect of alleged failures to comply with the ECHR.

Mr Salmond made great play of the fact that the procedures in respect of the Supreme Court for the other UK jurisdictions were different. That is because, in connection with ECHR issues and associated applications to the Supreme Court, the rest of the UK is covered by the Human Rights Act, whereas in Scotland the Scotland Act applies.

Anyway the Supreme Court, as it now is, was given a role in connection with this very limited range of criminal cases for Scotland. It seems generally to be accepted that any significant involvement by the Supreme Court in these matters was unlikely.

As it transpires, and on the basis my figures are correct, there have been very few “devolution issue” cases actually decided by the Privy Council/Supreme Court.

There have been, consistently, one or two cases only each year from the Scottish criminal courts which have resulted in full judgements by the Supreme Court, with high water marks of 4 in 2001 and 5 last year.

In fact since the Supreme Court came into being in 2010, there are only six reported cases from it re Scots criminal law, 2 of which were on the same point. That was the Miller and Martin case referred to above. Otherwise we have had the Fraser case, on non-disclosure by the Crown ; McInnes v HMA, on non-disclosure by the Crown ; Allison v HMA, on non-disclosure by the Crown (notice a theme here?)  and Cadder v HMA re the interviewing of suspects without the opportunity for legal advice

It has only been in the two most recent cases, Cadder and Fraser, that the Supreme Court (this does not take account of previous Privy Council cases prior to 2010) has seen fit to overturn the verdict of the Appeal Court in Edinburgh.

How therefore has this caused the storm which has been blowing over the last couple of weeks?

The jurisdiction of the Privy Council/Supreme Court was not extended over Scotland in an effort to create a body of UK law. In a number of cases the judges made clear that was not what they were trying to do. Lord Rodger sated in Cadder that “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.”

If a case proceeds to the European Court of Hyman Rights, the UK stands as a party thereto. Whilst there is the independence argument about whether Scotland should be free or not, as matters stand, it is the UK which ends up at the sharp end in Strasbourg. On that basis, a court with an over-riding jurisdiction to see that the ECHR is complied with across the different legal systems in the UK seems perfectly logical. There are different ways in which this can take place, but the goal seems a reasonable and fair one.

If the system was adapted so that it was made clear that the Supreme Court was considering the same limited ECHR points as from the other jurisdictions, rather than the convoluted “devolution minute” process, this might clear some of the fog which has arisen.

The route chosen by Mr. Salmond, namely that Scottish case would by-pass the Supreme Court and only be dealt with, after the Appeal Court here, by Strasbourg leaves the rather strange position that cases involving Scots law and its interaction with the ECHR would be dealt with by a court with no Scottish judges, rather than, as I have said before, two of the finest Scottish legal minds of their generation.

Could a majority of “non Scottish” judges on the Supreme Court over-rule Lords Hope and Rodger? Yes, of course they could, but from my reading of the various judgments over recent years, the non Scots have been very careful to defer to their Scottish brethren when it comes to specifically Scottish matters, whilst always paying attention to the over-arching European jurisprudence. There has been no sign, to my eyes, of these judges seeking to turn Scottish criminal law into a reflection of the English system, for example, though that was effectively one of the charges laid at the door of the court.

But, turning to the Cadder and Fraser cases, do we see signs of “ambulance chasing” and “one man’s law” at all?

If by ambulance chasing the Justice Secretary meant that the Supreme Court was rushing about looking for as many cases as possible to stick its oar in, then it is not very good at it! As has been mentioned above, the number of cases which have reached the Privy Council/Supreme Court by way of s 57 (2) is very small. The court is clearly not granting leave to any Tom, Dick or Harry who approaches it.

The accusation is made by Mr. Salmond that the Supreme Court granted leave to Mr. Fraser to appeal to it, when this had been refused by the Hugh Court. The judgment however makes clear the reasons the court had for doing so. The refusal by the High Court to receive a “devolution minute” was itself a decision in respect of a devolution minute and therefore allowed the Supreme Court to look at the matter.

Mr. Salmond was exercised by the involvement of the Supreme Court in a “run of the mill” case where no constitutional issue was engaged. However, as we have seen, the Lord Advocate cannot act contrary to the ECHR. If he does so, he acts ultra vires. In those circumstances the Supreme Court jurisdiction is engaged.

If the prosecution in Fraser had complied with the rules regarding disclosure, which are now very clear, both from the Privy Council and the High Court, then the Supreme Court would not have been involved. This is especially clear when the issue was that the Supreme Court felt that the High Court had asked itself the wrong question in the original appeal. In a number of previous non disclosure appeal, including McInnes and Allison last year, whilst there may have been non-disclosures, the Supreme Court rules that this was not serious enough to jeopardize the safety of the conviction.

In Cadder too, despite a clear decision of the High Court that the Salduz case did not have the implications for Scots Law which Mr. Cadder’s counsel sought to draw, the Supreme Court were equally clear that, on the relevant points, Scots Law did not comply with the ECHR.

Both Cadder and Fraser were very clear decisions by the Supreme Court and especially in the Fraser case indicated that a man was languishing in prison in a case, however notorious it might be, where he had not had a fair trial.

Do either of these cases show that Lord Hope is manipulating his fellow Judges to achieve his own ends? There can be no reasonable suggestion that is the case. Lord Hope would not, I am sure, claim to be infallible, but then I am equally sure that the Lord President would not argue that he might not, from time to time, be wrong. The nature of appeal courts is that lower courts can be overturned. If Lord Hope had been particularly out-spoken regarding policy maters, and these decisions fell into a coherent pattern of him pursuing such an agenda, then the question might be asked. However there is no evidence at all for that charge.

So what do we have then?

Politicians are using a cause célèbre for their own political ends, and to advance a case, in this instance independence. I, of course, am not suggesting that the gentlemen in question are speaking with anything less than 100% sincerity. However, as an observer, I can comment on what I see.

It cannot be right for the Justice Secretary to threaten to withdraw funding from the UK Supreme Court in these circumstances. Mr. Salmond refused to answer Isobel Fraser on BBC1 at the weekend when she asked what he would do if a decision came from Strasbourg that he did not like. There is no consistent response he could give to that, but sadly he also missed the chance to repudiate his Justice Secretary’s intemperate remarks, on the basis, apparently, that they had been made to the Herald about a week before publication! I think he was accusing the paper of opportunism!

The bottom line – Scots criminal law has been found to be deficient in certain important areas. This has resulted in people being incarcerated where they ought not to have been, or at least without having had a fair trial.

It does Scotland no service when the reaction to these flaws being pointed out is to attack the court doing so. The Biblical “motes and beams” come to mind. Surely the Executive would be better occupied resolving issues which have been identified by far wiser folk than me with the prosecution system in this country, rather than attacking the court which has done so.

I will later address the “solution” namely Mr. Salmond’s “stellar” panel of experts.





Filed under Criminal Appeals, Human Rights

2 responses to “Salmond v Hope or The Supreme Court “Mess”

  1. Pingback: Courts, referendums, knighthoods, European sojourns, festivals and farewells – Scottish Roundup

  2. Pingback: Salmond v Hope – Next Chapter « Random Thoughts Re Scots (and Other) Law

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