Lord Carloway, formerly of the SFA Judicial Panel (And Much Else), Appointed Lord Justice Clerk

Lord Carloway QC has been appointed by the Queen to be the new Lord Justice Clerk. He replaces Lord Gill who was recently appointed as the new Lord President.

Lord Carloway was nominated by the First Minister taking account of recommendations made by an independent selection panel.

Lord Carloway was appointed a Judge in February 2000 and was appointed to the Second Division of the Inner House in August 2008. He was admitted to the Faculty of Advocates in 1977 and was appointed Queen’s Counsel in 1990.

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Joan McAlpine MSP Gets It Oh So Wrong on the Supreme Court Asbestos Case – No Lassie No!

It is the job of Parliament, both at Westminster and Holyrood, to make laws. Whilst a parliament full of lawyers is a prospect too horrible to contemplate, one would hope that the MPs and MSP’s charged with passing legislation would have some grasp of the issues before them. That often seems lacking however.

In addition, as I have mentioned before, the standard of coverage of legal issues in the Scottish media falls far short of the levels of the past, and of what helps properly to enlighten the public.

On 20th September the Scotsman printed a fine example of the “double whammy” of a journalist and MSP producing a woefully inaccurate article.

Step forward Joan McAlpine, SNP list MSP for the South of Scotland. Ms McAlpine has had a distinguished career in journalism, and latterly moved into blogging with the acclaimed Go Lassie Go blog. In May she won a seat at Holyrood.

On 20th September however her piece was so incorrect and inaccurate that there was some discussion about whether or not it could have been part of a “Spot the Deliberate Mistake” competition!

Her article seems to have been written as a follow up to this earlier piece by Gareth Rose. Mr Rose wrote his piece, with comments from interested parties and despite an over statement of the effects of the particular condition referred to, namely “pleural plaques”, there was little to fault.

This would appear to have prompted Ms McAlpine to pick up her pen and she wrote, under the headline “Shameless Effort to Evade Justice may Affect us all” about the legal challenge brought to the UK Supreme Court by insurers seeking to overturn the Damages (Asbestos-related Conditions) (Scotland) Act 2009, passed by the Scottish Parliament.

 

 

 

“ANYONE who thinks the row over the Supreme Court is esoteric should pay attention to a case due in the next few weeks, when insurance companies ask judges to “protect” them from workers with industrial disease. The Supreme Court is asked to overturn an Act of the Scottish Parliament that compensates workers exposed to asbestos on the grounds that this popular legislation violates insurers’ human rights.

The decision is due this Wednesday 12^th October, the case having been argued at the UK Supreme Court, and televised live on the internet, in June. Mr Rose noted the due date for the judgment but Ms McAlpine seems to have missed that.

The case is not about insurers asking for protection from workers with industrial diseases either. The case is about whether or not the Scottish Parliament has the competence, standing the terms of the devolution settlement, to pass such a law. Whilst there are a number of claimants named in the proceedings who are persons alleging that they suffer from pleural plaques, they were not sued by AXA and the other insurers, but intervened in the case to have their voices heard, as they were allowed to do by Lord Uist reported at AXA Insurance and Others v Lord Advocate and Others [2010] CSOH 36.

The issue is undoubtedly an important one, but not for the reasons suggested by Ms McAlpine. And the popularity of a piece of legislation has no bearing, as far as I can see, on its legality!

 

 

Now you might think the man with damaged lungs is more deserving of legal protection than the loss adjuster. It’s one thing to respect the dignity and privacy of all human beings, no matter what they have done. But extending this principal (sic) from individuals to institutions is a bizarre development. Do insurance companies bleed? Do they gasp for breath?

Let’s pass quickly over the spelling mistake and move to the next errors. Ms McAlpine seems surprised that insurance companies are claiming the protection of “human rights”. Whilst that might, at first glance, look odd, the position has been clear for many years. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides, inter alia, that “In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The full title of the ECHR refers to fundamental freedoms and is not restricted to human persons only. A company is, in law, a legal entity and it too has the right referred to under Article 6 for example. There is no issue therefore about a company having “human rights”. It does.

Ms McAlpine, echoing Shylock in the Merchant of Venice, then goes on to contrast the flesh and blood worker with the soulless corporation. But her reference to “gasp for breath” is, as I will show below, also inept.

If they prick us, do we not wheeze...or something like that?

 

 

Asbestos is now recognised as a carcinogen. The lagging and insulation material was once widely used in construction, and particularly in the traditional shipbuilding communities such as Glasgow, Clydebank and Greenock. Survivors tell stories of leaving footprints in deadly dust that covered workshop floors like a light dusting of snow.

Asbestos was hailed upon its discovery as a fantastic material – waterproof, fire-resistant and easy to use. However, it had one drawback – its use could prove fatal to those who worked with it or who inhaled the asbestos dust of fibres. By saying that “now” asbestos is recognised as a carcinogen ignores the fact that that has been acknowledged since at latest the 1970’s.

 

In 2007, judges in the House of Lords in their wisdom decided that pleural plaques were a condition that merited no compensation – reversing the practice of 20 years. The decision prevented future sufferers from pursuing a claim and those who had started one were then left with nothing – the UK government has now retreated and offered the latter a one-off lump sum which is time limited.

The 2007 case, known as Rothwell [2007] UKHL 39, was where the House of Lords overturned around 20 years of legal understanding by declining to treat pleural plaques as being a compensatable injury. This was not some heartless decision by faceless judges, but a reasoned and principles, though widely disputed, judgment. To see why it came about, we need to look at what pleural plaques actually are.

The British Lung Foundation website gives us information on them. It states as follows:-

What are pleural plaques?

Pleural plaques are areas of scar tissue on the pleura. The pleura is a two-layered membrane surrounding the lungs and lining the inside of the rib cage. In virtually all instances of pleural plaques there are no symptoms and you can live with them without having any long-term problems with your health.

If you have pleural plaques, it does not mean that:

• you will go on to get a more serious disease
• you have a more serious disease at the moment
• you are likely to get a serious disease in the future.

While exposure to asbestos does carry a risk of developing a serious lung disease, such as asbestosis, mesothelioma or lung cancer, scientific evidence shows that having a pleural plaque does not increase that risk. Pleural plaques are not the same as asbestosis and they are not a pre-malignant form of cancer.

…

Do people need treatment for pleural plaques?

No. If you have been exposed to asbestos, but have no symptoms, such as breathlessness, there is no need to have any treatment. If you develop a cough which lasts a long time (more than three weeks) or you cough up blood, it is important to see your doctor straight away. Although these are not symptoms of pleural plaques, it may mean that you have a different, more serious, illness.

Does anyone die from having pleural plaques?

No.

Do people need an operation?

No. There is no need to treat pleural plaques in any way.

———————————————————————

So we have a symptomless condition that, whilst being a marker of asbestos exposure, is not a guarantee that any further condition will develop, nor is it a step on the way to the deadly asbestos related conditions such as mesothelioma. It was for this reason that, after 20 years where claimants for asymptomatic pleural plaques might receive from £5,000 – £10,000 compensation, the House of Lords decided that, as there was no “injury” within the legal meaning, there was no right to compensation.

The insurers, some of whom have gone out of business as a result of asbestos related liabilities, were delighted. Whilst the sums awarded by way of damages were much smaller than in an asbestosis or cancer case, the fact was that the vast bulk of asbestos injury claims related to pleural plaques. This decision therefore saved the insurers possibly billions of pounds. Understandably there was an outcry, but the Rothwell case did not attack the awards for conditions where there was suffering caused.

 

However the Scottish parliament moved to defend victims inside its legal jurisdiction and in 2009 passed The Damages (Asbestos-related Conditions) (Scotland) Act to ensure the Lords decision did not apply here. It received cross party support in Holyrood. The insurance companies were shameless. This should not really surprise us – they had previously tortured asbestosis sufferers by dragging out their cases for years in the hope the claims would die with them.

Now I hold no great love for insurance companies – my professional career has been largely spent fighting with them, but we must acknowledge that insurers are a business looking to make a profit. As a result they try, as far as they can, to reduce what they pay out. However, the canard that they want to drag out cases till the claimant dies, and thus save money, is one long in the past. The law gives no advantage to the insurance company in these circumstances now, as the claim passes on to the deceased’s next of kin. In fact, some recent decisions at the Court of Session suggest that it might now cost insurers more where they claimant dies than if they survive.

To say that a business doing what it is legally obliged to do – namely to act in the interest of its shareholders, is shameless is unfair. Does Ms McAlpine wish the few remaining insurers based in Scotland, if “shameless”, to leave?

 

The companies challenged Holyrood’s 2009 Act, without a scintilla of embarrassment. Indeed they were brazen in their contempt, not just for the law but for the people of Scotland and the parliament we elected. When the Court of Session in Edinburgh twice throw out their challenge earlier this year, David Williams, the claims and underwriting director of Axa, was reported as saying the industry had always doubted that a Scottish Court would overturn an Act of the Scottish parliament. This insinuates our most senior judges are compromised by nationality.

The courts are there to adjudicate on legal disputes. Is Ms McAlpine suggesting that the insurers ought not to have been allowed to test the issues in court? I fail to see how using the procedures that are there can be seen as contemptuous towards the law, the people of Scotland and the Parliament. Ms McAlpine refers to the Scottish court twice “this year” throwing out the challenges.

In fact Lord Emslie, at [2010] CSOH 2, delivered a lengthy and erudite opinion running to 2409 paragraphs of detailed legal analysis. As might be guessed from the citation, that occurred in 2010, the decision being issued in fact on 8^th January that year.

The insurers appealed, as is their right, and this too was rejected by the Inner House, reported at [2011] CSIH 31. The Lord President, and Lords Eassie and Hardie determined that the insurers’ challenges failed. But at no time in either of these judgments did the courts indicate that they viewed the action of the insurers as ones of contempt. Indeed, in the penultimate paragraph of the appeal judgment, their Lordships stated “…while we have not found these matter free of difficulty, we have come to the conclusion that particularly in light of the considerations to which we referred in paragraph [144] above, it cannot be said that the decision to place financial responsibility on the insurers was one which lay outside the margin of appreciation which the legislature enjoys in this sphere.”

The insurers then proceeded to appeal to the UK Supreme Court. There has been a long-standing right of appeal in civil cases to the House of Lords, the UKSC’s predecessor. There are few of the constitutional issues which arose when some, including the First Minister, accused the UKSC of interfering in Scottish criminal law in the Fraser case. Whilst Mr Williams, quoted by Ms McAlpine, was not tactful, his comments were much less offensive to the judges, I would guess, than those of Mr Salmond and Mr MacAskill, who accused the UKSC of “ambulance chasing”! As Ms McAlpine is a staunch Scottish Nationalist, one might think she would be happy that the Scottish courts have a reputation for standing up for Scottish law!

 

Williams went on to declare the insurance companies intention of challenging the act outside of Scotland: “The Supreme Court is our best chance. We are bullish and will be preparing for the next steps of the case.”

There seems to be a refrain in the SNP of treating the UKSC as a “foreign” court. Yes, it sits in London, but generally has at least two Scottish judges sitting in any Scottish case. As has been commented in the context of the Fraser case, it seems odd that the SNP seem to dislike a court sitting in London comprising 40% Scottish judges, but welcome the European Court, where there is one British judge!

 

That case is due to be heard in London early next month. Many observers believe the companies have little hope on Human Rights grounds – the case hinges on their property rights – though stranger things have happened.

As already mentioned, and indeed as had been reported in the Scotsman, the appeal was heard previously and the judgment will be issued on 12^th October. Having watched much of the case it is fair to say that the performance of counsel for the Scottish Government was unimpressive, leading to online discussion (not seriously I should add) as to whether or not counsel had been instructed to ”take a dive” so as to lose the case, allowing the SNP to complain that their laws were being overturned by a “foreign” court. Sad to say, Ms McAlpine’s article would actually lend weight to that frivolous theory! And again the snide reference to the case being heard in London – one can hear the sneer in our Parliamentarian’s voice!

After the invective directed at the insurers by Ms McAlpine for arguing about human rights, it is of note that she acknowledges that, in fact, the “property rights” case is observed to be the stronger leg of the insurers’ submissions.

 

But there are even greater issues at stake if the asbestos ruling goes the wrong way. If the insurance companies win, you will effectively see a London court overturn an Act of the Scots Parliament that has with widespread support from other political parties, the trades unions and churches. The immorality and injustice of this would not be lost on the people of Scotland, particularly as it would be impossible for the Supreme Court to similarly dismiss Acts of the Westminster parliament, which is regarded as a sovereign, law-making body in the way Holyrood is not.

Once more we have a disparaging reference to London, ignoring the fact that the UKSC is, as the name hints, the Supreme Court for the United Kingdom! As already mentioned, if Holyrood has exceeded its competence, then it does not matter how “popular” the legislation is – it is ultra vires and cannot stand. For my part, I agree with the judges in the Court of Session regarding this issue, but there is an issue on the retrospective application of the Act which flies against commonly recognised legal principles.

Ms McAlpine’s complaint is that the UKSC cannot strike down a Westminster Act. Of course, under the present constitutional arrangements, like it or not, the Scottish Parliament is a creature of Westminster legislation. The powers of Holyrood derive from the Scotland Act, and Westminster can, short of Mr Salmond making a unilateral declaration of independence, increase or decrease those powers. That is what the present debate on the Scotland Bill is about.

It might be thought indeed that it is the Westminster position which is anomalous. After all, the US Supreme Court can strike down legislation as can the Supreme Courts in many jurisdictions. The courts can, and should, act as a bulwark against unconstitutional and unfair legislation.

 

This exposes the sham of the current constitutional arrangements. Scots, increasingly, are proud of their parliament, expect it to protect them and want it to have far greater powers. It is sovereign in the eyes of the people because they are sovereign and it is they who elect it.

Ms McAlpine refers to the present arrangements as a “sham”. My trusty dictionary defines a “sham” as a “piece of pretence; something pretending or pretended to be what it is not”. The present arrangement is what it is – it is not what Ms McAlpine wants it to be. That does not make it a “sham”. And if and when the SNP get round to having their much promised referendum, we will find out what the Scottish people want, rather than having Ms McAlpine declare what that is.

 

Even if the damages legislation is not found to be in contravention of human rights law, the court may still grasp the opportunity to extend its authority over Scotland’s parliament. The 1998 Scotland Act says Holyrood laws can only be challenged if they intrude on reserved issues, breach European law or violate the ECHR. The insurers are also asking for a ruling that there is a right to appeal under common law as well – though the system is of course different in Scotland and England which complicates matters further. If the Supreme Court, in which only one of its current contingent of eleven judges is trained in and has detailed experience of Scots Law, said an act could also be reviewed on common law grounds, Holyrood’s status would be relegated to that of local council. It would open the floodgates and any law could be challenged on just about any grounds. Such a ruling would be a sort of ritual humiliation, but would we put up with it?

It is, I am sure, a political decision by the SNP to characterise the UKSC as an arm of Westminster, sitting in its “London” lair, striving to take control of Scotland’s affairs. The court has to deal with the issues put before it. Lord Hope did not ring up AXA Insurance to tell them “Between us, here is what I want you to argue before the court”. As their Lordships mentioned in the judgments referred to in the Court of Session, these issues are very difficult for the court to determine. One could easily see circumstances where a Scottish Government, of whatever hue, sought to pass a law which was abhorrent to the SNP, and where the Nationalists would be delighted for the UKSC to come to Scotland’s aid. But politically it suits for the judges to be disparaged.

As Lord Emslie said in his ruling “But if, hypothetically, a Scottish parliament were ever to legislate in a manner which could be described as a flagrant and unconstitutional abuse of power (it would be) unthinkable that the courts should have no option but to hold themselves powerless to intervene”.

It is true that there is only one Scottish judge out of 11 just now. That is because Lord Rodger sadly died and for each Scottish case heard since his death, including in fact this one, one of the judges from the Court of Session has sat along with Lord Hope to make up the second Scottish judge.

Ms McAlpine is right that any law could be challenged on any ground. But the courts would kick out frivolous or nonsensical arguments, whilst applying full and rigorous analysis to serious cases. If the UKSC rules against the legislation, this would not be a “ritual humiliation” but a decision that the Parliament has gone wrong. We have had devolution since 1999. How many Acts have been declared invalid since then? If Ms McAlpine’s thesis is to be accepted, then this would have been a common event, even if only since the SNP took over in 2005. It has not happened. The decision in the AXA case will not leave Holyrood left akin to a “parish council”.

 

Alex Salmond v Lord Hope...or is it AXA Insurance v Scotland...

This is a David and Goliath clash, whatever angle you view it from. It should not be a party political matter. Kenny MacAskill, the justice minister has said the Asbestos Damages Act was the piece of legislation he was most proud of in the SNP’s first term in office. It had support right across the Labour movement and from industrial injuries lawyers such as the late Frank McGuire whose contribution fighting for justice was marked in a motion by Labour’s Johanne Lamont just this week.

It is interesting that a battle between on one hand insurance companies, and on the other, the Scottish Government is classed as a “David v Goliath” affair. I suspect that Ms McAlpine wishes to classify the UKSC as Goliath, and the plucky SNP as David. In either event, this is a gross distortion.

As mentioned above there is an argument about the payment of compensation to people “suffering” from a symptom free condition. If this was a situation where the law was created to allow payment of compensation for asbestosis or mesothelioma, that would be entirely different. But that is not what this Act is about. It relates to pleural plaques.

Ironically, the Surpreme (sic) Court challenge also comes at the same time as the 40th anniversary of the Upper Clyde Shipbuilders work in, which was commemorated in the parliament last week. UCS played a considerable role in boosting the campaign for Scottish Home Rule that gained momentum from the early 1970s.

Here we come to the nub – this, in the same way as UCS in the 1970’s, is being used by SNP politicians paying little or no attention to the legalities and realities of the argument, in a Scotland – good; London – bad argument. As I said at the start, this would be bad enough from a journalist, but far worse when coming from a Parliamentarian.

The remarkbale and greatly missed Jimmy Reid and the UCS workers

 

It was believed a parliament in Scotland would protect shipbuilding and the men who worked in the yards. Four decades later, it is appropriate that the casualties of that industry should be central to a battle over where power should lie.

The “casualties” referred to are not suffering. The issue is whether the Scottish Parliament went beyond the rules which govern its competence. The UKSC Justices will declare their decision on this on Wednesday.

It would be interesting to see what Ms McAlpine’s reaction would be to an order from the European Court that an Act of the Scottish Parliament was invalid – how would that square with her declarations of the people’s sovereignty?

 

Conclusion

For the avoidance of doubt, as lawyers are prone to say, I am happy that the Scottish Government legislated to make compensation payable to pleural plaque sufferers, as people with that condition had been so entitled for 20 years prior to Rothwell.

I have always been on the side of the “wee man” against the “big business”. But that is not the issue here.

We have a prominent politician and writer disregarding the facts for political purposes. I do not suggest that Ms McAlpine has written her piece having decided to ignore the truth which she knows. Instead she has written it, I can only assume, without having ascertained the full position.

It just goes to show that the standard of writing and comment on legal matters in Scotland, whether by press of politicians, is woeful, and I fully expect that the decision on Wednesday will do nothing to change that view.

 

 

 

Cadder II – The Sequel – PF Glasgow v Akram – Article 6 Revisited

 

Cadder v Her Majesty’s Advocate

 

The Cadder case (Cadder v HMA [2010] UKSC 43) created havoc last year when the United Kingdom Supreme Court (UKSC) declared that the long standing practice of the Scottish police of detaining suspects and questioning them without the accused having had the benefit of legal advice under s 14 of the Criminal Procedure (Scotland) Act 1995 breached the rights of the accused to a fair trial under the European Convention on Human Rights (ECHR). This meant that where a suspect had been detained by the police and questioned without access to legal advice, then in the absence of any waiver by the accused, any matters mentioned in the interview would not be admissible against him in a trial.

The Scottish Parliament passed emergency legislation – the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act. This Act was designed to close the loophole identified by the UKSC, which in turn arose from the decision of the European Court of Human Rights in Salduz v Turkey (2009) 49 EHRR 19. The case also prompted significant criticism by the SNP administration of the UKSC’s “interference” in Scottish criminal law.

Fears that the Appeal Court in Edinburgh would be swamped by huge numbers of appeals, and that numerous cases would have to be dropped have proved to be exaggerated, but it is clear that the decision in Cadder has had an enormous effect upon the criminal justice system in Scotland.

The new system put in place has been bedding in, and the UKSC has a representative sample of cases with decisions pending to clarify the effect of the Cadder decisions in cases prior to the new legislation.

All seemed to be calm, at least relatively.

 

PF Glasgow v Akram

 

However, on 1^st September 2011, Sheriff Sean Murphy QC (who also sits as a temporary High Court judge) put the “Cadder” among the pigeons again.

His decision was issued in the case of PF Glasgow v Akram which is at this point unreported, but can be found here  Sheriff Murphy’s decision applies the Cadder principles to a much larger variety of cases than Cadder itself, and has potential implications across the UK.

Mrs Akram was charged on summary complaint with two counts under Section 111(1A) of the Social Security Administration Act 1992, as amended, by knowingly failing to give prompt notification in the prescribed manner to the relevant authorities of changes in her circumstances as a result of which she was said to have obtained income support and housing benefit to which she was not entitled.

Her solicitors lodged a Devolution Minute arguing that her right to a fair trial, under Article 6 of the ECHR, had been denied because the prosecution proceeded on the basis of certain replies, contrary to her interests, which were made by her in an interview which took place without her having the benefit of legal assistance.

Mrs Akram had not been detained under s14. Instead she had been interviewed by one officer of the Department for Work and Pensions and one from Glasgow City Council at the same time. She had attended the interview, which was in connection with alleged fraudulent activity on her part, on a voluntary basis, and it was accepted that she had been told that she was free to leave at any time. The compulsion element under s14 was therefore not present in respect of this matter.

She was advised that she could have legal advice but it was noted that she had not sought this prior to the interview, nor had she asked to leave the interview to obtain it.

 

Submissions to the Court

 

Mr McLaughlin, solicitor for Mrs Akram, referred to the cases of Salduz, Panovits v Cyprus and Cadder. He drew the principle that the suspect had the right to access to legal advice from the first stages of interrogation by the police in order to ensure that his/her right against self-incrimination was meaningful.  He argued that the Interview of someone suspected of fraudulent activity by a non-police agency fell to be treated in the same way.  There were no reported cases at present on the question of the Cadder principle as applied to such non-police agencies.

The case of Jude, Hodgson & Birnie v HMA [2011] Scot HC HCJAC 46 was relevant in connection with the question of waiver of the right to legal advice, it was submitted. The court had accepted that the Cadder rights to legal advice could be waived, but as per the Jude etc case there was no valid waiver for two reasons “namely (i) because the law at the time did not allow the accused to have access to a lawyer at that stage of pre-trial procedure; and (ii) because the appellant’s consent to be interviewed in each case was not informed by legal advice.” Whilst Mrs Akram was allowed access to a lawyer, she had not had her consent to be interviewed informed by legal advice.

Mr McLaughlin argued that Mrs Akram had not been acting with the benefit of legal advice which she ought to have been given.  Her interview therefore was inadmissible.  There had been no voluntary, knowing and intelligent relinquishment of her right, which had to be established in an unequivocal manner, with minimum guarantees commensurate to its importance.  The principle set out in Jude etc applied to all cases.  There should be consistency rather than one rule for interviews conducted by the police and another for interviews conducted by other agencies.

The procurator fiscal depute sought to distinguish all the authorities cited for Mrs Akram. They all related, she said, to police interviews. Police interviews had a compulsion element absent in non-police agency interviews. The two were not comparable. In any event, Mrs Akram was not a vulnerable person, being an adult who had had the right to legal advice made clear to her. She had chosen, under no pressure, not to seek legal advice and therefore she had waived any Article 6 rights in this regard.

 

Sheriff Murphy’s Determination – Does the Cadder Principle Apply to Non-Police Agency Interviews?

 

Sheriff Murphy proceeded to deal with the two issues in the case. First of all, did the Cadder principle apply to non-police agency interviews and secondly, had there been a valid waiver of her rights by Mrs Akram?

The first point seems to be the principle with potentially wide applications, although, as we shall see, these might be mitigated significantly by virtue of the decision on the second part.

Dealing with the Cadder point, Sheriff Murphy stated that the “ratio of the decisions in the cases of Salduz v Turkey and Cadder v HMA is that a suspect’s right against self-incrimination would be compromised if he were denied access to legal advice before being questioned by the authorities in the form of the police.” He indicated that this was clearly indicated in Salduz and in the speeches by Lords Rodger and Hope in the Cadder case.

He went on to say “The principle itself is so clearly recognised in these passages that I can see no reason to distinguish between the police and any other agency which is questioning a person suspected of committing some type of crime.  In this context it is significant that the procurator fiscal depute in her submissions to me used the phrase “reporting agency” because that reflects the fact that the agencies involved in this case were used to reporting matters which they had investigated to the office of the procurator fiscal so that prosecutions might be undertaken.  Accordingly their enquiries must be seen as sharing some of the features of a police investigation and the right against self-incrimination must be as important in relation to any interview conducted by such an agency, where the contents of the interview are likely to be used in evidence, as it would be in the context of police questioning.  I can see no reason why the general principle should be restricted to police questioning after detention, as the respondent urges.  The principle must be applied equally to all enquiries which are likely to lead to criminal proceedings.” (Emphases added.)

The learned Sheriff did not go quite as far as to say that this was now trite law, but his analysis makes clear that the Cadder protection must apply in these matters. Where the agency involved can effectively bypass the police in reporting a matter to the Procurator Fiscal, then such an interview must be treated as if a police interview. One can self-incriminate in such a non-police agency interview as much as one can in a police interview, and in either case the prosecution would seek to use admissions made by the accused in such interviews in court. Logically therefore, the Sheriff viewed that the absence of compulsion was not the relevant factor here, but the purpose of the interview and the use to which admissions made therein might be put.

There are a large number of agencies which can be described as “reporting agencies” as used by the fiscal depute and the Sheriff. The wider issue is that these agencies are UK wide. Whereas s14 detention, as formerly applied, was only the law in Scotland, the issue of non-police “reporting agencies” conducting voluntary interviews under caution is a national one. Whilst the mechanism by which the ECHR is applied differs between Scotland and England (in Scotland under the Scotland Act and in England under the Human Rights Act) Article 6 protections apply across the board. It would therefore appear that the issue raised would be applicable across the border.

Of course the requirement for corroboration in Scotland, which is not replicated in England, makes this even more important in the latter jurisdiction. In Scotland, one cannot generally be convicted solely on one’s own admissions. In England, without that requirement for corroboration, admissions under caution could be enough, on their own, to result in a conviction.

With the UKSC having determined this principle, it would not be a surprise to see the specific issue addressed by Sheriff Murphy in this case being refereed to the UKSC for an authoritative determination.

Indeed it has already been suggested that, due to the cross border implications, the Advocate General for Scotland will seek to refer the matter to the UKSC.

Sheriff Murphy’s Determination – What is the Position Regarding Waiver?

 

Sheriff Murphy then spends longer dealing with the principle of waiver than with the basic Cadder rule. He quoted Lord Rodger in Cadder as saying:-

“It is, indeed, quite common for those who have been arrested to decide to make a voluntary statement to the police and not to exercise their right to obtain legal advice before doing so. See, for instance, the famous example in Manuel v HM Advocate 1958 JC 41. Similarly, if a suspect had a right to legal advice before being questioned, but declined to exercise it, a court might have to consider whether, having regard to all the circumstances, he had effectively waived his relevant article 6 Convention right so that no violation would arise.”(Emphasis added)

The learned Sheriff noted that it had repeatedly been made clear to Mrs Akram that she was entitled to have legal advice, both in the letter inviting her to attend at the interview, and during it as it proceeded. He said “I further consider that these excerpts show that she clearly and obviously declined to seek such advice at a time when it was open to her to do so, apparently at an early stage in the interview”.

He considered that it was clear that Mrs Akram had waived her right to legal advice.

The thornier question was whether this was “an informed decision, freely taken?”

Sheriff Murphy considered the case of Pishchalnikov v. Russia – 7025/04 [2009] ECHR 1357 (24 September 2009) where the court had determined that a suspect had the right to waive his rights in connection with access to legal advice. He quoted paragraph 78 of the decision which states:-

“However, the Court strongly indicates that additional safeguards are necessary when the accused asks for counsel because if an accused has no lawyer, he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected.” (Emphasis added by Sheriff Murphy)

In the present case Mrs Akram had specifically declined legal advice. This meant that the Pishchalnikov case fell to be distinguished as here the suspect had repeatedly asked for a lawyer, but been refused, prior to making a confession.

The Sheriff then considered the “circular” argument proposed by Mr McLaughlin for Mrs Akram to the effect that, in the absence of legal advice, a suspect could not make a valid waiver of their rights, as they did not know and understand what those rights were.

Here he considered the Jude case referred to above.  He noted that that case was decided based on the rules in place prior to the Cadder decision and the 201 Act being passed. At the time there was no right recognised to have legal advice prior to an interview by the police, so accordingly the police did not advise suspects of what ultimately, as per the UKSC in Cadder, turned out to be the correct position, namely that there was such a right.

In such a case there could only be an implied waiver, as no one could expressly waive a right not known to them.

He went on to say:-

“The situation in the cases of Jude & Ors is rather different from Mrs Parveen Akram’s position.  She was expressly advised of her right to seek legal advice and she chose not to exercise it.  She was expressly advised that the interview would be suspended on her indicating that she wished to seek legal advice but she declined to do so.  That was an informed decision on her part because she was plainly aware of the existence of the right and she did not seek to exercise it.  I therefore consider that she must be held to have waived her right to seek legal advice prior to and during the interview of 9 December 2008.” (Emphases added)

He then decided that (a) the Cadder rights were applicable, but that (b) Mrs Akram had waived them and therefore her alleged admissions were admissible and the case should proceed.

We now wait to see if this case will be appealed to the High Court.

 

Implications

 

Where does this take us?

Firstly, I imagine that, whether with this prosecution or another, there will be a case determined by the Appeal Court in Scotland or indeed the UKSC in an effort to determine this point. Are non-police agencies bound by Cadder rules? On the basis of Sheriff Murphy’s analysis, which of course is persuasive, but not binding, there is little doubt that such rules do apply. Agencies such as the Department of Work and Pensions, local authorities in connection with various functions, Her Majesty’s Revenue & Customs and many more would fall within that description. All sorts of cases, such as those relating to breaches of the benefit rules, tax evasion, environmental heath infractions, planning offences and violations of the rules of Company law or Bankruptcy, where the investigations are carried out not by police, but by a “reporting agency” would appear to be covered. On that basis, and therefore across the UK, will there turn out to be many cases where prosecutions need to be dropped or convictions quashed? I must for now leave that question open.

 

Secondly, what are the implications for Legal Aid, both in Scotland and elsewhere in the UK? Under the new post-Cadder legislation in Scotland the Scottish Legal Aid Board (SLAB) set up a much criticised scheme for providing people who are detained for questioning by the police to receive free legal advice from a police station duty solicitor, being an extension of the existing Duty Solicitor scheme. A spokesman for SLAB is quoted by the Herald as saying that assistance was available to those questioned by outside agencies but would be considered on an individual basis. After all the disputes between the solicitors who practise criminal law in Scotland and SLAB over the new police station duty advice, I am sure the last thing SLAB want is to have to extend this in some way to cover interviews with other agencies. For one thing, SLAB’s budget is sorely pressed just now, they tell us, and a new layer of “Duty Solicitor” activity would result in resources being taken from elsewhere in their budget. But following Sheriff Murphy’s principle, if a police interview and that with a non-police “reporting agency” are so similar as to require Cadder protection in each case to render them ECHR compliant, can the Scottish Government justify not extending the free “Duty” legal advice to “reporting agency” interviews?

As the arrangements for Legal Aid in England are not something of which I have much, if indeed any, knowledge, I leave to wiser people than me if there would be Legal Aid implications outwith the Scottish jurisdiction.

 

Thirdly, is the waiver decision reached by Sheriff Murphy a “get out of jail free” card for the prosecution, reducing the impact of the Cadder principle in practice?

The situation where there is police detention involves the suspect, often without any warning, being apprehended. There is no opportunity to take legal advice prior to interview and a suspect cannot opt to leave the police station to seek such advice. The new post-Cadder regime in Scotland allows the suspect to seek and obtain such advice, even if over the telephone, prior to interview unless the right is waived.

However in most “reporting agency” cases, the suspect would attend, as did Mrs Akram, on a voluntary basis. The practice of the DWP, as I understand it, when investigating an allegation of a fraudulent benefit claim is, at the appropriate moment in the inquiry, to invite the suspect to attend. The letter doing so makes clear that the suspect has the right to seek legal advice prior to the interview. As was seen in the Akram case, the interviewing officers made it clear to Mrs Akram that she was there voluntarily and that she could call a halt to the interview at any time if she wished, including if she decided as matters progressed, to obtain legal advice.

Is it likely therefore that, in many of these “reporting agency” cases the court would determine that, even if the Cadder principle applied, there was in fact a waiver of the suspect’s rights if they choose not to see a lawyer? It would seem at first sight that that would be the position.

Each case, in theory, would have to be dealt with on its individual merits and therefore it is possible that, as in Mrs Akram’s case, the suspect is deemed to be sufficiently “informed” to waive their rights, whilst with other suspects, perhaps due to their age, level of education, or mental capability are not determined to have the capacity to reach an informed decision?

One way, of course, to prevent such issues arising would be for some “Duty Advice Solicitor” scheme to be set up for these cases, where the decision not top take advice would be made against a clear backdrop of information about the suspect’s rights, but even then, we can, in certain cases, come back to the “circular” argument of how can a person be informed in their decision to waive their right to legal advice when they have not had legal advice as to the effects of not having legal advice!

 

Conclusion

 

As with many cases which cause the accepted position to be questioned, it is easy to make dire predictions of the disasters to befall the justice system as a result. In most cases, once the implications are fully assessed, it turns out that the feared effects are diluted.

It is, as Premier Zhou Enlai of China is reputed to have said about the effects of the 1789 French Revolution, “too early to tell” if the Akram case will be as disruptive to the system as was Cadder, if not more so.

What it does show is that the Scottish courts are vigilant in their responsibility of ensuring that the Scottish system becomes ECHR compliant, and it is striking in how many ways, both large and small, it has been found wanting over the years.

Hopefully the Carloway Review, presently ongoing, might hopefully see a way to bringing the criminal justice system in Scotland to a position where there is full ECHR compliance and where the press will no longer take the chance of decisions such as this to complain about “Europe” interfering with our law.

 

 

 

 

 

Is the Daily Mail Website Guilty of Contempt of Court?

I have attached below an article from the Daily Mail website published on 26^th August. I do not know, at this stage, if the newspaper has printed the same piece, and the photograph which may lead to the journalist or editor involved appearing in court for contempt.

I have copied it into Word to include in this post. The article, subject to what I will mention, is as it stood at 7.30 am on 27^th August 2011. As I do not have the technical ability to do so, none of the photographs in the piece are included below, but as it is one of the photos which causes the issue, then I do not think this causes a problem for me.

I have removed the links on the page to various other pages in the site (which on looking at the page are those links and photos down the right hand side).

The location of the photograph which causes me to write this piece is marked “PHOTO REMOVED”.

The address for the article is noted at the bottom of the piece.

 

As the reader can see, this relates to the alleged attack on Nick Clegg in Glasgow on 25^th August. Stuart Rodger appeared in Glasgow Sheriff Court yesterday, in private charged with assault. He made no plea or declaration and was admitted to bail.

The article includes a picture of the man stated to be Stuart Rodger leaving court. Whilst it is common to see photographs in newspapers of people accused of crimes, and indeed offences far more serious than allegedly throwing a paint-filled egg at the Deputy Prime Minister and police officers (serious though that may be).

 

What might the Daily Mail have done wrong?

The big problem is that this relates to an offence being dealt with by the Scottish courts. In England the rules regarding such publication are very different. Perhaps the Daily Mail has not noticed where this case is taking place? I wonder if they have a difficulty with geography?

Because of the different rules applicable in Scotland, including that of “dock identification”, the law has been for many years that it is not permissible to publish the photograph of an accused person, referring to the case against them, whilst proceedings are active. This applies unless, in a very rare case, the judge permits such publication, as in the trial of Tommy Sheridan last year. A judge might accede to requests from the media to permit publication of photographs where identification of the accused is not an issue in the case.

Otherwise, photographs of an accused are not published until a verdict is reached, or, in jury cases, until the evidence is complete.

The purpose of the rule is to prevent evidence of witnesses as to identification of an accused being tainted by their having seen pictures of the accused linking them to the alleged offence.

 

The matter is governed by the Contempt of Court Act 1981 and the law in Scotland has been explained in various cases.

In the Scottish Daily Record & Sunday Mail v Procurator Fiscal, Edinburgh [2009] HCJAC 24  the High Court reviewed the law on this matter in detail. The newspapers in question had been fined for contempt of court for publishing the picture, during the trial, of a well-known footballer charged with assault. The newspapers appealed against the finding of contempt, but were unsuccessful.

Lord Nimmo-Smith delivered the court’s opinion, including a reference to various cases and particularly to HM Advocate v Caledonian Newspapers Ltd 1995 SCCR 330 which is considered to be the leading case concerning publication of pictures of an accused, and contempt.

In that case Lord Justice General Hope (as he then was) said the following:-

 

“Had it not been for the publication of the photograph, we would have been able to hold that in this case … there was no breach of the strict liability rule. The question would then have been whether there was anything in the text that the course of justice in these proceedings would be seriously impeded or prejudiced.

“We do not agree with [counsel for the respondents] that the strict liability rule imposes a very high test in regard to a publication of the kind referred to in section 2 while the proceedings in question are active. In Attorney-General v English [1983] AC 116 at p142 Lord Diplock said that the words “substantial risk” were intended to exclude a risk that is only remote. In HM Advocate v News Group Newspapers Limited 1989 SCCR 156 at p161F Lord Justice-General Emslie said that there can be no contempt unless there is some risk, greater than a minimal one, that the proceedings would be seriously prejudiced. Nor can the publisher pray in aid steps which may be taken afterwards by the court to minimise the risk of prejudice resulting from a publication which would seriously impede or prejudice the proceedings if these steps were not taken. As Lord Diplock pointed out in the passage already quoted from his speech in Attorney-General v English, the public policy that underlines the strict liability rule is that of deterrence. The court must do what it can to minimise the risk of prejudice, because it is in the public interest that proceedings for the detection and punishment of crime should not be interrupted by the effect on the course of justice of publicity. The purpose of the rule is to make the taking of such steps unnecessary, by deterring the publication in the first place of anything which might create risk of such prejudice. The risk must be assessed at the time of the publication without regard to what may happen or may be done afterwards.

…

“The publication of the photograph … so close in time and place to the incident referred to in the petition in the charges of assault and robbery and of assault and attempted robbery, raises the question whether, when taken together with the article, this may have affected the position of witnesses.”

…

“Consequently a contempt will be committed if the publication of the article is likely to affect the evidence of witnesses in the question of identification. In Atkins v London Weekend Television at page 53 Lord Justice-General Emslie accepted the proposition for the broadcasters that there is no hard and fast rule that the publication of the photograph of an accused person will always constitute contempt. He said that it will only do so when a question of identification has arisen or may arise and when the publication is calculated to prejudice the prospects of a fair trial: see also Attorney-General v Guardian Newspapers Ltd (No. 3) [1992] 1 WLR 874, per Mann LJ at p879H. The test, in regard to the strict liability rule under section 2 of the 1981 Act with which we are concerned in this case, is whether the publication of the photograph created a substantial risk that the course of justice in the proceedings would be seriously prejudiced.

“In a case where identification is not in issue, the publication of a photograph of the accused is unlikely to give rise to any risk of prejudice, because the evidence of witnesses will not be at risk of being affected by its publication. Nor will the jury be affected by it either, because it will not relate to any issue which they will have to decide. But where identification is or may be in issue the situation is entirely different. The publication of the photograph, linking the name of the accused to the offence with which he is charged, may assist witnesses in their identification of him as the perpetrator of it. The closer in time and place this is to the publication of the photograph, the greater the risk that this will occur. Similarly the publication of a photograph of the perpetrator in this way may affect the jury’s determination of the issue of identification at the trial. The closer the trial is to the date of the publication the greater will be the risk of this.” (Emphases added.)

 

Lord Nimmo Smith, after considering the submissions of counsel for the Daily Record & Sunday Mail concluded by saying:-

 

“Where identification is in issue, publication of a photograph of the accused that gives rise to the possibility, not remote and greater than minimal, that it may affect the ability of a witness or witnesses to identify the accused, will constitute contempt of court within the meaning of section 2(2) of the 1981 Act.

“Fame, celebrity – its often tawdry modern counterpart – and notoriety all carry with them the possibility of recognition by members of the public. It may be that a person will be so well known that mere mention of his or her name may be expected to bring an image to the minds of the vast majority of members of the public. But such cases will be rare. We find it impossible to accept that there are categories of person, such as footballers, of whom it may be said, a priori and without other evidence, that they are “celebrities”, attracting instant recognition and recall both on and off the pitch, so that an exception can be made in respect of them without regard to the circumstances of any particular case. Recognition of a person is a notoriously subtle process, one which is best described by psychologists; but our own experience in the criminal courts justifies this description. It is common experience that one may fail to recognise a person, familiar in a particular context, when seen out of context. The only safe course, where identification is in issue, is not to publish any photograph or similar image of the accused, at least until a stage of the trial when there is no question of further identification evidence being given.

…

“In our opinion, the proper approach is that already well recognised in the Scottish cases, passages from which we have quoted above. There may be cases in which publication of the photograph of an accused person may not give rise to a risk of substantial prejudice, but such cases are likely to be rare; and we are satisfied that this is not one of them. In our view, therefore, treating the standard of proof as proof beyond reasonable doubt, the sheriff correctly held that the petitioners were in the circumstances in contempt of court by publishing the photograph…” (Emphases added)

 

What Now?

The Daily Mail website, both on its front page and in the article shown below, displays a picture of the man they refer to as Mr Rodger. This was published one day after the alleged incident. Identification may well be an issue at any trial. At this stage Mr Rodger has neither pled guilty nor not guilty. He is entitled to the presumption of innocence.

I cannot see how this case differs from those referred to above and therefore one might expect that the Daily Mail will have to answer a charge of contempt.

On a related point, I note that comments are open. Usually the Daily Mail does not permit comment on ongoing cases, for fear, I am sure, of prejudicing a fair trial. How long might it take them to disable comments on this piece?

It is possible that the media have asked for permission from the Sheriff to print pictures but I would be very surprised, especially as Mr Rodger’s appearance was in private. I would also be surprised if, at this stage, a Sheriff would permit such a publication, if asked.

Let’s see (a) if the article changes and the picture is removed (b) whether, in the event of such a change, the article refers to the change (c) what steps the Daily Mail takes to “purge” its apparent contempt and (d) whether contempt proceedings do arise.

 

 

DAILY MAIL ARTICLE BELOW

Saturday, Aug 27 2011 6AM  9°C 9AM 13°C 5-Day Forecast

Ex-Lib Dem member appears in court charged with throwing blue paint at Nick Clegg

By Lucy Buckland

Last updated at 7:00 PM on 26th August 2011

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PHOTO REMOVED

Bailed: Stuart Rodger waves to crowds outside Glasgow Sheriff Court after his court appearance

A man appeared in court charged with assault today after Deputy Prime Minister Nick Clegg was splattered with blue paint.

The Liberal Democrat leader was splashed with paint during talks with grassroots party representatives in Glasgow last night.

Mr Clegg later made light of the incident, saying it was ‘no big deal’.

This afternoon, Stuart Rodger, 22, from Inverkeithing, Fife, appeared at Glasgow Sheriff Court in connection with the alleged attack.

He faces charges of assault by throwing an egg filled with paint at Mr Clegg and three police officers.

Rodger is accused of throwing the egg which struck Mr Clegg ‘on the body’ in Glenfarg Street, Glasgow, yesterday.

Rodger made no plea and no declaration and was granted bail.

The case was continued for further examination and a date is yet to be set.

More…

• Clegg’s direct challenge to Cameron as he promises to defend human rights laws
• Feeling blue? Deputy Prime Minister Nick Clegg attacked with paint by angry voter
• Nick Clegg stands up for ‘hugely positive’ human rights laws

Mr Clegg was at the meeting at Woodside Hall in the west of the city as part of a tour of the UK.

Rodger is believed to be a former Liberal Democrat member and it is understood he left the party after the last general election.

_

PHOTO NOT SHOWN

Feeling blue: Deputy Prime Minister Nick Clegg pictured in Scotland the day before the alleged assault

PHOTO NOT SHOWN_

Scene: A policeman stands guard outside Woodside Halls, traces of blue paint are still visible on the concrete column

Carol Shedden, of Real Radio Scotland, who had been waiting to interview Mr Clegg, said of the incident: ‘One half of his face was completely covered in blue paint.

‘People rushed to his aid to wipe it off but there were still traces of the paint on his clothing – it was quite a welcome to Glasgow.

‘He just said, “these things do happen in the job. It’s no big deal”.’

PHOTO NOT SHOWN_

Swift response: Police at the scene yesterday
Read more: http://www.dailymail.co.uk/news/article-2030574/Ex-Lib-Dem-member-appears-court-charged-throwing-blue-paint-Nick-Clegg.html#ixzz1WCwTT7pP

Salmond v Hope – Next Chapter

Following on from the recent attacks by the First Minister and his Justice Secretary on the UK Supreme Court, and particularly Lord Hope, the Deputy President of the court, there was a feeling that matters might have slightly cooled, especially with the creation of Mr Salmond’s “stellar” panel to consider the whole matter of the UKSC’s involvement with Scots Law.

Not so!

Today’s Scotsman has the following article, http://bit.ly/lgVLTE based on an interview in Holyrood magazine http://bit.ly/lvd4Ej.

In it Mr Salmond makes a number of remarkable comments. He is clearly raising the stakes in his dispute with the UKSC. He seems, to this observer’s eyes, to be basing his arguments against the role of the UKSC in Scots Law (and there is clearly a debate to be had there) on a personal attack upon Lord Hope and an attempt, it seems, to politicise the matter in to a Scotland v England issue.

Whilst matters started, as mentioned below, with the question of whether or not the UKSC had a role in Scottish criminal law, the battle ground envisaged  by Mr Salmond is clearly much wider,a nd the goal nothing less that the removal of the UKSC from involvement in any Scottish cases, whether criminal or civil.

Political considerations are clearly at play here for the First Minister, and the result of a case presently proceeding before the UKSC may well cause the furore to escalate exponentially, depending on the outcome.

 

The recent fuss started following the decision of the UKSC to tell the High Court to quash the conviction of Nat Fraser for murder.

 

“The FM reacted with surprising fury, lashing out at a London-based court that he said was ‘second guessing’ Scotland’s justice system and had ‘no role’ to play here.”

As wiser people than me have said, this was not a fair characterisation of the UKSC decision. The judges saw a clear breach of Mr Fraser’s rights and saw that the High Court had asked itself the wrong question in deciding the appeal itself. It seemed, from a legal point of view anyway, a bad case to be planting the standard of Scots Law independence upon, as the whole appeal arose from a failure by the prosecution to disclose potentially relevant, and indeed vital, evidence to the defence, leading to the trial probably having been conducted in a very different manner by both Crown and defence if disclosure had taken place.

Just before that Mr Salmond had correctly defended Scots Law in the CTB injunction case, pointing out that the English High Court jurisdiction did not extend past the border.

It seemed clear that Mr Salmond, following his election triumph, felt that the law was a good issue to identify as one where “England” was interfering with Scotland.

Now, he cannot be criticised for trying to make political capital from a situation – that is the bread and butter of politics, but there ought to be a proper basis for the politicking.

Mr Salmond, as he said, felt that the UKSC had “no role” to play in Scottish criminal cases. The clear implication for his “stellar” panel is that they are to recommend changes – Mr Salmond is clearly not looking for a report which maintains the status quo.

Should the panel not recommend change acceptable to Mr Salmond, will he let the matter lie, or, as he is constitutionally entitled to, will he continue to seek UK legislation to change the UKSC jurisdiction anyway?

I am sure Mr Salmond has not considered that, in political terms, it might appear electorally advantageous if the Scottish Government insisted on changes to the UKSC jurisdiction, which changes were not acceded to by the Westminster coalition. I am sure he has given no thought to how that might play in terms of a forthcoming referendum on Scottish independence as example of Scotland’s will being thwarted by “London”.

 

Lord Hope was accused by Mr Salmond of  “routinely interfering in criminal appeals in Scotland”.

Coupled with the reference by the Justice Secretary to “ambulance chasers” this suggests that Lord Hope has taken to pursuing vigorously any chance he has to get his nose stuck in to the Scottish criminal justice system. That, on any analysis of the actual cases, is not the case.

Very few Scottish appeals in criminal matters make it to the UKSC, or to the Privy Council, as was. In general the appellant has lost. The court has had a number of opportunities to interfere, if it so wished. These have not been taken, and where the UKSC has decided differently from the wishes of the Scottish Government, the judgements seem based on a detailed examination of the law. People might disagree about the interpretation, but it can’t be said that the UKSC is “shoe horning” itself into matters in the manner, for example, of its USA namesake.

 

As an aside at this point, Mr Salmond goes on in his Holyrood interview to comment regarding the Scotsman as follows:-

“Even if I was the most pronounced unionist in the world and thought the whole idea of Scotland was a silly historical aberration and thought that the Scottish justice system was the worst legal system in the world, if I was editing the Scotsman newspaper, then I would still ask myself ‘why would anyone buy my newspaper rather than buying a rather better alternative’ and they might do it because I have a unique insight and support for the Scottish dimension and hopefully, once you have that, you get better journalists and better writers but what I don’t understand is that the editor sees circulation going down and down and yet the response is to publish more and more of this stuff.”

That part of the interview does not seem, from what I have read, to have made it in to the Scotsman!

 

Mr Salmond went on:-

“The right thing to do and what the Cabinet chose to do was … to establish a review group of extraordinary prestige, even if I may say so, of more prestige even than Lord Hope, to look at the thing and come up with some recommendations that the Parliament can then debate.”

It is an interesting academic question as to the respective merits of the “stellar” panel as against Lord Hope, who is, undoubtedly, one of the finest Scottish legal minds for many a generation, but one I will pass over for now. I will also pass over the fact that none of the cases involve Lord Hope sitting alone – there is always another Scottish judge, whether Lord Rodger or presently Lord Reed, sitting along with other UK judges to make up the panel.

Mr Salmond goes on to comment that the other judges on the UKSC panel are not versed in Scots Law. They come from the other jurisdictions of the UK. Effectively, he implies, the judges are therefore a front for Lord Hope and the other Scottish judge.

However, bearing in mind that his choice, as an alternative, is to go to Strasbourg and the European Court of Human Rights, where there are no Scottish judges amongst the 47 members, this seems odd, to say the least. How is Scots Law served by having vital matters considered by a court with none of the expertise Mr Salmond considers essential?

 

“That takes it away from the personalities involved and recognises that there is an issue that needs to be properly debated and that the Parliament should have their say and then recommendations will then go to the Westminster Government which they may or may not put into the Scotland Act. That seems the correct way to approach things.”

To suggest that personalities should be taken out of the matter seems wise – however the First Minister cannot resist bringing them back in!

 

“All I would say to Lord Hope is that I probably know a wee bit about the legal system and he probably knows a wee bit about politics but politics and the law intertwine and the political consequences of Lord Hope’s judgements are extreme and when the citizens of Scotland understandably vent their fury about the prospect of some of the vilest people on the planet getting lots of money off the public purse, they don’t go chapping at Lord Hope’s door, they ask their Parliament what they are doing about it.”

This, to a lawyer or constitutionalist, seems to come to the nub of the matter.  There is a well known doctrine of the separation of powers. The executive, legislature and judiciary have separate and distinct jobs to do, and they should be allowed to get ion with them. Of course Parliament passes the laws to be applied by the courts, and can even, as part of the legislation, tell the courts how to do so, but, on a day to day basis in the UK, the courts run free of political “interference”, or at least they should. Politics and law may “intertwine” but it would be a surprise if Mr Salmond meant that, over and above the law, judges should take “politics” into consideration in deciding cases.

The politicisation of the courts is something which is far more concerning in many other countries of the world. Here, despite there having been some “political” judgements in the past, the UK courts have a reasonable record of resisting being told what to do by politicians, rather than by Acts of Parliament.

It is not a matter for the courts to assess the political consequences of their decisions. The court applies the law before it. The recent BBC documentary on the workings of the UKSC interviewed some of the Justices, including Lord Hope, and it was made clear that sometimes there were cases where, in human terms, a particular judgement should be given, but the law simply does not allow it. It is right that the courts don’t bend to whims of human sympathy if against the law they are to apply, and equally, the courts should not be badgered by politicians, no matter how eminent, into going along with them.

The implication of this is that it was down to  Lord Hope that prisoners were being paid compensation for having to endure the indignity of slopping out. Later in the piece, Mr Salmond makes clear that, in fact, the decision that damages should be paid for slopping out came from the Scottish courts, and seems to suggest therefore that there is no need for any UKSC involvement, as the Scottish Courts could fix the problem anyway. In addition, Mr Salmond is correct to point out that the Labour/Lib Dem coalition had had it made clear to them that slopping out needed to end, but that they chose to allocate funds for this elsewhere. HAving been warned, it was no surprise that the Scottish courts ultimately found against the Scottish Executive.

Instead his gripe is with the Somerville case, which was decided by the Privy Council, including Lord Hope, on the question of whether or not there was a time bar for bringing cases based on breaches of the ECHR. The court decided that, as legislation stood, there was none. There was then legislation put in place to establish a one year period for claiming. Whilst this decision meant that many claims which had been on hold were then paid out, the fact that Parliament could legislate to plug the gap suggested that, if so minded, they could have done so long before. The issue was not a novel one when decided by the Privy Council. Instead, as in the Cadder case, the Government waited to see if it had won, before bringing in the changes which it clearly thought were necessary anyway!

If Parliament, whether at Westminster or Holyrood, cannot pass legislation which is up to the job, then it is not for the courts to say “Politically we should ignore the law and decide what the Government wants!”

In connection with slopping out, it was the Scottish courts that decided that these “vile” individuals were due compensation.

It should also be noted that the Somerville case, whilst about criminals, was not a case about criminal law. Whether right or wrong, the House of Lords, and now the UKSC, has had a part to play in Scottish civil cases for many long years. It seems therefore that Mr Salmond’s complaints are designed to leave the UKSC with no role to play in Scots Law at all.

In any event, politicians all round the world have, for many years, been decrying judges when they don’t like the decisions arrived at. In other countries judges live in fear of attack or imprisonment when they “stand up to” the Government. That, thankfully, is not the case here, but it remains wrong for any party, especially the Government, to attack the court when it does not like the outcome of a case. As Mr Salmond says, the solution is not to moan about it, but to legislate.

 

Mr Salmond then goes on, in an aside, to refer to the fact that he, at least, went to the bother of being elected, unlike, by implication, Lord Hope. Mr Salmond rightly says that this counts for something. But no-one is stopping him from talking. Instead he should be basing his criticism of the UKSC, not Lord Hope on the facts, and as he himself says, not to personalise the matter but to do so properly on the issues.

If Mr Salmond wants Scotland’s Sheriffs and Judges to be elected, then perhaps the SNP manifesto ought to have said so!

 

After an attack on the distinguished Human Rights lawyer Professor Tony Kelly, which I’ll comment on later, the interview concludes with Mr Salmond’s impassioned plea about why the UKSC and especially Lord Hope are wrong, in the context of Somerville and Cadder and wider too.

“My complaint of the Privy Council is that they gave a ruling in the full knowledge that they were subjecting the Scottish Parliament and the Scottish people to an unquantifiable bill stretching back to 1999 which no jurisdiction and certainly not England, for example, which is presumably why the two English judges demurred, would accept such a position with such immediate and long vulnerability. If people make judgements in the full knowledge of what they are doing, albeit that the Privy Council thought the Scottish Parliament could sort it, either you give the Scottish Parliament the powers to correct deficiencies in its legal system without seeking by your leave from Westminster or you stop issuing edicts that are unenforceable by the Scottish Parliament.”

As mentioned, the “problem” here was with the drafting of the Scotland Act and its incorporation of the Human Rights Act in to Scots Law directly. Should there have been a time bar clause? In any event, there was not, and it took years before the legislature wised up to that fact.

It seems odd that, to some degree, Mr Salmond seems to be suggesting that the Scottish Government ought not to be required to follow the ECHR. At the same time, he is suggesting that the courts ought not to follow the law as it is framed, but instead re-interpret it in a way that suits him.

It is also surely not for the court to consider how their judgement will play in the wider world before making it?

 

In relation to Cadder, the First Minister goes on to say:-

“There seems to be a general presumption that if Cadder had gone to Strasbourg then he would have won and the court would have held against Scots law and I see no basis for that assumption. The case in February, the Thomas Judge case, was a case in point that some people assumed that the Strasbourg court would find against the Scots jury system but the judges held on both counts with the Scottish legal system. Why? Because the Strasbourg Court is not a uniform court and accepts differences in legal systems and is trying to find out if the legal system has a balance which is why I am not frightened of it. There are lots of incidences where it does that so the presumption that we would have lost on Cadder is therefore wrong headed and if you read some of the judgements, particularly by Lord Hope, you can see why it is wrong headed.”

From the man who earlier accepted that he knew a little about the law, it’s interesting to see how confident he is that Lord Hope got Cadder wrong! He also seems not to realise, or simply to ignore, that the judgements are collaborative efforts of the judges. It is not simply the vase that Lord Hope decided this case, wrote up a judgement and presented it to the fellow judges as a fait accompli. Cleary they concurred with him.

Mr Salmond makes reference to the “victory” for the UK in the Judge case in February, as opposed to the “defeat” in Cadder as showing, somehow, that the Strasbourg court is “better” at dealing with these matters for Scotland that the UKSC. But most challenges to the Scottish Government that have gone to the UKSC/Privy Council have failed.

 

So what have we, when all things are looked at here?

The First Minister, who has a vital role as Scotland’s leader, has attacked, personally and professionally, the Deputy President of the UKSC and by extension the court itself, for simply doing its job and coming out with a couple of decisions he doesn’t like.

In addition, he and his Justice Secretary have personally attacked a judge who is presently engaged in cases to which the Scottish Government is an active party! If a mere mortal did so, they would be looking at being summoned for contempt!

Presently before the UKSC is a challenge by insurance companies to the Scottish legislation granting compensation to pleural plaque sufferers. The insurers seek to have the UKSC strike down the legislation as ultra vires on the basis it breaches the insurers’ “Human Rights”. The UKSC has the power to do so.

From a political view point, if the UKSC does do so, and finds against the legislation, then what we have seen so far will seem like a storm in a teacup!

It would be entirely wrong for anyone to think that Mr Salmond would see any pleasure from such an outcome, no matter how politically advantageous it might be for the SNP, if it meant that thousands of potential claimants lost their rights to claim, and the blame for this could be laid at the door of the “English” Supreme Court.