Thursday, 2 June 2011

Supreme Havers

An interesting development in the Supreme Court debacle as Jim Wallace comes barging in, unarmed, to a battle of wits.  The good Lord Wallace is quoted as saying
"The Supreme Court has made clear as recently as last week in the Fraser ruling that the High Court in Scotland remains the court of last resort on criminal matters.

"I sometimes wonder if those who are the most vociferous have read these rulings."
I have.  Unlike Lord Wallace, I didn't take that assertion at face value, I looked at the disposal of the case where the good Lords in the UK Supreme Court ordered Scotland's Supreme Courts to quash the verdict of the High Court, ignoring their own claim that they would respect the right of the High Court of Justiciary to remain the ultimate court of criminal justice in Scots Law.

To be fair to the good Lords in the UK Supreme Court, I thought I'd go back and have a look to see when the House of Lords last ordered a Scottish criminal conviction quashed.  I've searched the records back to and including 1989 and there hasn't been a single case where the House of Lords overturned a Scottish criminal conviction as the UK Supreme Court has in the Fraser case and I'm betting that it has never happened.

The UK Supreme Court was supposed to take on only cases which would have been heard in the House of Lords (section 40(3) of the Constitutional Reform Act 2005) and, importantly, that excludes criminal cases for historical reasons which go right back to the Treaty and Acts of Union.

If you want more evidence of the paucity of the case for the UK Supreme Court, I offer you the comments of Professor Peter Duff of Aberdeen University, touted as a criminal justice expert - "The judgments of the Supreme Court concerning Scotland are always given by Lords Hope and Rodger as the Scottish judges. The English judges simply fall into line."  If that is so then why do they sit on the bench at all?  If they are no more than ballast is that not indicative of them being very expensive window dressing for a court which sits as two elderly and very learned men now divorced from the Scots law which they served so nobly and so well for so long?  (Lord Hope is approaching his 74th year and Lord Rodger his 68th).  And if, as the Professor alleges, the other Justices (yes, Tony Blair took the US style all the way) are merely passengers on Scottish cases, why did Lord Brown write a minority judgement on the Fraser case - a judgement on the operation of a legal system in which he is not trained and has not practised?

Or take that eminent human rights lawyer, John Scott, who said "I think there's a sense of perspective being lost. Only a very tiny number of cases ever go to the Supreme Court. It doesn't have jurisdiction over the vast majority of criminal cases."  This from a man whose successful career has depended upon arguing the general case into the individual point and extrapolating from a single point to create a generality.  He should know full well the importance of "a very tiny number of cases" - it's his stock in trade.

There's one more thing.  Those shouldering high the UK Supreme Court argue that it isn't acting as an appeal court, here's Lord Hope's take on the situation:  “We are simply here to do what a court of appeal always has to do, which is to review a decision if there is reason to do so.”

It's time it went.


Adam said...

Curious that you should miss section 40(4) of the Constitutional Reform Act 2005, along with Schedule 9, which transfers jurisdiction for devolution issues (which includes human rights) (created by the Scotland Act) from the Judicial Committee of the Privy Council (The House of Lords by a different name) to the Supreme Court, Calum. Especially given that that was the jurisdiction under which the case was heard. There's nothing unprecedented about it.

The SNP, oddly enough, didn't have any objection to this jurisdiction when they campaigned for and supported the Scotland Act, fully aware of its contents.

Strange, isn't it, how now they are in power they want to make it far harder (and in many cases, impossible) for Scottish citizens to obtain justice when their human rights have been violated by parts of the Scottish state under their control…

And strange how SNP supporters are so keen to support a conviction obtained by denying the defence knowledge of crucial evidence which potentially totally undermined the prosecution case. I guess that's the sort of Scottish 'justice' we can look forward to in an independent Scotland?

Calum Cashley said...
This comment has been removed by the author.
Calum Cashley said...

Ye've nae patience and I don't support or oppose the conviction, I support the Scottish courts' right to decide on conviction, sentence and appeal.