Monday, 8 November 2010

All those in favour of unfair trials, please stand up

[This is the heading over a robust article by Maggie Scott QC in today's edition of The Scotsman arising out of the reaction by the Scottish Government (and others) to the UK Supreme Court's decision in the Cadder case. While not directly concerned with the emergency legislation, the article has much to say that is relevant to the Megrahi case. I quote only a few paragraphs:]

The Supreme Court decision in Cadder was entirely predictable, if not inevitable, in view of the decisions on the issue by the European Court of Human Rights. What is called into question is not the decision of the Supreme Court, but the earlier decision of seven Scottish judges which failed to enforce the right to legal advice.

The decision of the Scottish Appeal Court in its interpretation of the requirements of the European Convention was simply, in the words of Lord Hope of Craighead, not tenable. The question that is raised here is how did the Scottish judges get it so wrong ?

The answer, in my view, is rooted in a repeated refusal by Scottish judges in criminal matters to engage with and accept the consequences of the application of convention rights. An example of this arose in Cadder where the Scottish Appeal Court refused to entertain an application for leave to appeal to the Supreme Court. Leave was subsequently granted by the Supreme Court itself. (...)

The Justice Secretary also seeks to justify his criticism of "interference" by the Supreme Court, by reference to the proud and "admired" system of criminal justice in Scotland. Unfortunately in recent years, the Scottish criminal justice system, notwithstanding the requirement of corroboration, has lagged behind other comparable jurisdictions in both its development of the criminal law and in respect of procedural rights.

Examples include our failure to introduce proper disclosure of information to the defence; our narrow and restrictive approach to appeals; our failure to develop a proactive judicial role in the protection of the fairness of trials; our failures to provide adequate safeguards regarding identification evidence and, as evidenced in this case, our failure to fully embrace and properly implement convention rights in criminal cases. It is my experience that we are no longer so admired internationally.

The Justice Secretary further complains of a "small industry" of lawyers who take cases to London. I must, presumably, declare myself a member of same.

This is because I consider it my duty to pursue a client's constitutional right to appeal to the Supreme Court to enforce his/her human rights. I have regrettably found it necessary to take the long road to London on a number of occasions, because of the failure of the Scottish courts to secure those rights. The very fact of this complaint highlights the misplaced hostility involved here.

In fact, the decision in Cadder demonstrates the need to have Scottish access to the Supreme Court in order to properly protect human rights. If such access is denied then the Scottish people - alone within the UK - will be truly disadvantaged.


  1. I don't know who Maggie Scott QC is, but can we make her the next Lord Advocate? Sounds like there is a ground swell of opinion within the legal corridors to put a rocket up the jacksie of the Scottish judicial system - so, when and where did it all start to go wrong?

  2. Indeed Bloggy, she didn't miss and hit the wall did she?

    Have to agree with her on MacAskill's contributions to this debate so far. The day of the announcement he gave this interview and even as a lay person where legal matters are concerned I knew he was talking absolute tosh. It was frankly embarrassing. He actually implied that the ECHR had no jurisdiction here and that the Supreme Court had none either. Come on!

    It bothers me that even while ECHR made it clear that people had the right to have a solicitor present Scotland continued to ignore this. How can we call a system wonderful when it denies people that basic right? Who would disagree that it yields no advantage to anyone being interviewed to have a solicitor present? This is something we should have been preparing for and been resigned to comply with in Scotland. Yet MacAskill basically tried to sell the idea that it was absurd.