Lord Hope: The Scottish legal system is respected, and in safe hands

Published on 05/04/2011 12:43

SCOTLAND has its own distinctive tradition of criminal law and criminal procedure. There are many aspects of it of which we can quite rightly feel proud. However, as part of the United Kingdom, Scotland is part of a state which has undertaken to comply with the European Convention on Human Rights, as surely Scotland would also wish to do were it independent. s

Occasionally, there will be a conflict between those international obligations and domestic law. That is true whatever part of the UK is involved. Until 1998, the conflict would give rise only to a remedy in international law, by a UK citizen exercising his or her right of individual petition to the Strasbourg court. It was that which led to the abolition in our schools of corporal punishment, when the Strasbourg court held that the suspension of a child who refused to submit to the tawse violated his right to education.

In 1998, it was decided that those convention obligations should be enforceable in domestic law: that rights should be brought home. That was the approach enacted via the Human Rights Act and also the Scotland Act of that year. A theme common to the schemes of devolution for all three jurisdictions - Scotland, Wales and Northern Ireland - was that effect should be given to the UK's international obligations in framing the devolved institutions' legislative competence and the executive powers vested in their ministers. It is hard to see that it could have been otherwise.

In Cadder, the Supreme Court had to consider whether Scottish legislation which permitted police to detain an individual for six hours and question him without allowing him access to a solicitor, and then to rely upon that evidence at trial, was contrary to Article 6 (2) of the convention. It held that it was not, so it was not within the prosecutor's power to lead evidence of admissions made by an accused in those circumstances - a different conclusion to that reached by seven judges in the High Court of Justiciary.

Was the Supreme Court, in reaching its decision that the provisions of Scots law were incompatible with the convention, somehow insensitive to the specialities of Scots law? I suggest not. There was certainly no pressure of any kind by the judges from England and Wales and Northern Ireland to treat the case in that way. The reason for the difference in result between the High Court of Justiciary's decision and the Supreme Court in Cadder was not a difference in view as to the merits or demerits of Scots law. What distinguishes the two decisions is a difference of approach between the two courts to the convention.The outcome, ultimately, turned on an understanding of the jurisprudence of the European Court of Human Rights in Strasbourg and its effect on the domestic system. A large part of our time in the Supreme Court is spent in analysing Strasbourg cases, as much of our work requires us to assess the compliance of our domestic legal regime with the convention rights. We were able to explore the convention jurisprudence in depth, to consider other European countries and to judge how our system would stand up to scrutiny from outside - as it would have had to, if the case had gone to Strasbourg. We would have been failing in our duty if we did not examine the case in that way.

It became clear, as Lord Rodger put it in his judgment, that there was not the remotest chance that the Strasbourg court would hold that the protections which Scots law otherwise afforded to the accused - in particular, by the requirement of corroboration - meant that the ruling of the grand chamber in Salduz v Turkey did not apply to a Scottish case. Strasbourg's concern, after all, was to protect the privilege not to incriminate oneself. The truth was that the Scottish rules were based on a view of where the balance was to be struck between the public interest and the rights of the accused which was irreconcilable with convention rights, and no amount of dialogue with Strasbourg would result in a change of view on its part. The principle against self-incrimination is strongly embedded in the European jurisprudence. Once that had been appreciated, there was no room for a decision based on expediency.

This was not a decision based on a lack of sensitivity to the distinctive nature of Scots law, but rather a decision based on a proper application of a rule of Scots law - part of which, as Parliament has directed, is that the Lord Advocate must, in prosecuting criminal cases, act in compliance with convention rights, unless compelled by primary legislation to do otherwise. In an appropriate case, the court would be willing to say that a particular aspect of Scots law had not been sufficiently considered by the Strasbourg jurisprudence, such that the Strasbourg court should be asked to "think again" on a particular point. This type of dialogue has taken place in various English decisions.

The court would, of course, be willing to take this approach even if the point were distinctive to Scots law. The convention does not require the adoption of uniform solutions throughout the United Kingdom if there is room within the UK's margin of appreciation for various positions. But Cadder was not a case of that kind.

There is no doubt that the devolution jurisdiction which the Supreme Court exercises has provoked a feeling among our politicians, and some others, that Scots criminal law and procedure is now being run from London - not unlike the feeling in London that much of our public law is now being run from Strasbourg.Descriptions by the Prime Minister and the Home Secretary of a decision of the Supreme Court that the system for placing sex offenders' names on the sex offenders register was incompatible with convention rights because it did not provide for their cases to be reviewed as "appalling" is an example of the same phenomenon south of the border.

Then there is the question, why should there be a right of final appeal to London? The Supreme Court is doing no more than applying the law that every court in the land is required to apply, by the international obligations that the United Kingdom has entered into and the legislation that has given them effect in our domestic law. Perhaps it was easier for us to do this than it was for a court which was only too well aware of the consequences for the business that it has to conduct, as the aftermath of Cadder has shown.

What then of the future? I am as strong a believer in the virtues of the Scottish legal system as I ever was. In some respects my belief in it has been strengthened by what I have learned south of the border. But I also believe very strongly that, if it is to be kept up to date and able to compete with the English system, our system must look outwards and not inwards as it adapts to the realities of modern life. One of the great virtues of Scots law, as a mixed system, was its willingness to adapt itself so as to keep pace with the way things were done elsewhere. Pride in our own system is one thing; isolationism is quite another. We have much to gain by maintaining contact with the way that law is practised in England and Wales and beyond. We have much to lose if we were to raise the drawbridge and cut ourselves off from the outside world.

The Supreme Court, where justices from all three jurisdictions of the UK engage with one other on so many important and difficult issues, is there as a vital point of contact. That applies to convention rights issues as much as it does to issues of private law. I hope that I have been able to reassure you that, from the Scots' point of view, our precious legal system is indeed respected in that court and that it is secure in its hands.

• This extract and the one below are from the inaugural Scottish Young Lawyers' Association's annual lecture, delivered by Lord Hope of Craighead, deputy president of the UK Supreme Court.