Thursday, 2 June 2011

The finest traditions of Scots law...

[What follows is the text of a letter from John W Elliott published in today's edition of The Herald:]

Lords Hope and Rodger are two of our most distinguished Scottish judges. They have occupied the offices of Lord President of the Court of Session and Lord Justice General before going on to safeguard the interests of our Scottish legal system first as Lords of Appeal in Ordinary in the House of Lords and now as Justices of the UK Supreme Court.

Kenny MacAskill, our Cabinet Secretary for Justice, is a solicitor by profession but he has reverted to type by barracking the UK Supreme Court.

This is rather sad. By his boorish interventions in this matter – comments about English judges and the Edinburgh Festival and accusations that the UK Supreme Court is some sort of ambulance chasing institution – Mr MacAskill has lost the dignity and stature he displayed when he released Abdelbaset Ali Mohmed al-Megrahi on compassionate grounds according to the finest traditions of Scots law.

[What principally concerns me about the present brouhaha over the role of the UK Supreme Court is the failure to address the fundamental question about the performance of the Scottish criminal justice system in relation to human rights issues. Few, if any, Scots lawyers would say that the Supreme Court was wrong in its interpretation and application to Scottish practice of the European Convention on Human Rights in the Cadder and Fraser cases. There can be little, if any, doubt that the European Court of Human Rights in Strasbourg would have reached the same conclusions. Our first concern should be about rectifying the deficiencies in the Scottish criminal justice system, not shooting whatever messenger has the temerity to point them out. But while the posts of Lord Advocate and Solicitor General are both occupied by legal civil servants, virtually the whole of whose working life has been spent in the Crown Office, reform -- or even recognition that it is called for -- is in the highest degree unlikely.]


  1. I have to agree with that last comment. It's possible to view the interference of the Supreme Court as profoundly wrong in principle, but at the same time to agree with its findings. The failings here seem to rest in the Scottish appeal court, and no amount of fury over the role of the Supreme Count can negate the fact that these were very real failings.

  2. Your starter for ten.

    Which well-known quote by Samuel Johnson employs the following: 'scoundrel', 'patriotism' and 'last refuge'?

  3. Sure, just because Johnson said it, that makes it a philosophical truth? I don't think so.

  4. I am commenting on what I see. Apart from maintaining Crown Office insiders in the position of Lord Advocate, we have section 7 of 'Cadder', the SCCRC's independent scrutiny being rendered to all intents and purposes impotent, double jeopardy back on the menu and now stirring up nationalism over justice when a court that represents the Crown concludes that a Scottish court got it wrong. What Salmond and MacAskill et al have done to our justice system of late is not only retrograde, it is dangerous. This is not a question of independence, it is a question of justice and the damage that is being done to a system that has taken centuries to build.

  5. Dangerous indeed. I am no expert: far from it. I am however stunned at the venom in the attacks by both Salmond and MacAskill on the Supreme Court's role in this decision.

    The bottom line for me is that a guy, like Nat Fraser say, continues to fight his corner by using all means available to him yet Salmond and MacAskill appear to be saying if you're Scottish, tough! That is shocking indeed.

    A pattern is emerging. Look what they did to the SCCRC report. On that occasion too they over-ruled findings didn't they? And even took steps to prevent the publication of those findings. Look what MacAskill then also did to the SCCRC and its role (in a wee aside hidden among all that "emergency" legislation to deal with Cadder. The SCCRC had its wings clipped if not removed altogether. All those legal brains and highly qualified people yet now they're reduced to the status of admin people shuffling papers while a judge will make the big decisions on matters of great importance to the common man in his quest for justice. The SCCRC brought independence to the process. MacAskill has sidelined them. Yes, dangerous indeed.

    Given Salmond's usual approach when speaking publicly his outbursts over this affair, and MacAskill's too, are bewildering.

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  7. "The failings here seem to rest in the Scottish appeal court, and no amount of fury over the role of the Supreme Count can negate the fact that these were very real failings."

    I agree Rolfe. Yet Salmond and MacAskill seem to be saying that errors are irrelevant. That's bad news for a guy in Fraser's position. Their alternative, to take cases direct to Strasburg, leaves the Frasers of the world without hope for Strasburg cannot quash verdicts. What sort of justice are Salmond and MacAskill actually offering?

  8. If Scots law has erred - and it has pace MacLean and Lygate and Megrahi et al - let us fix the foul shortcomings and openly embrace the best practice and principles of international law and justice within our system (and root and branch revolutionize our judiciary and adepts' legal education and training if need be towards this end).

    However, the English pretensions via a thinly veiled "Black and Tan" tribunal in Scots domestic legal issues (whilst running defensive line-backer against us going direct to Strasbourg in this context and such issues) simply stinks of Cromwell's Usurpation period and similar pseudo-legal manipulations and impositions in the guise of "worldly" and "rational" English law as consigliere to jackboot imperialism:

    Salmond and MacAskill are quite right to tell them to piss off - the twa puppets of Hope and Roger and a' - and to assert direct access and any other internationally recognized court minus the mediating prism of imperialistic and colonialistic English distortions of the - and despite the "MSM's" and Baron Wallace's cheapskate, wallet hugging diversions to the contrary - of a fundamental truth and pillar of Scots sovereignty and its right of access to international courts of law and informed opinion.

    Forgive me and in short, f@@k these intrusions and ca' canny - to quote Kirkintilloch - vis a vis other prongs of interference with respect to our expression of our sovereign will: To wit, a Duke of Cumberland re-run military garrisoning of our "hinterlands" - just in case - and NATO tarted up to appease the chattering "liberal" comprador classes.

    A wig and a gown may not soon be sufficient defense.

  9. "....let us fix the foul shortcomings and openly embrace the best practice and principles of international law and justice within our system."

    All well and good David except Salmond and MacAskill are crossing so many lines here that it is difficult to keep up.

    For one thing Salmond seems to have an issue with any process that will "open cell doors". What sort of starting point is that for someone who just may be innocent?

    Secondly, these men are politicians, one First Minister the other our Justice Minister, and they're getting caught up in stuff like this via mere opinions of theirs which they are presenting as the only thing that matters?

    I'll give you another opinion of theirs they are happy to spout far too frequently: "Megrahi's conviction was sound." On that occasion they gagged the SCCRC on the issue and prevented the world from knowing more. Now its the Supreme Court. Where does it stop?

  10. "A wig and a gown may not soon be sufficient defense."

    I would say being First or Justice Minister is no defence either for the appalling conduct, lately, from both MacAskill and Salmond.