Scots lawyers back Supreme Court, not Europe

Published on Sunday 5 June 2011 19:25

SCOTLAND'S lawyers have delivered a stinging rebuke to the Scottish Government, with three out of four saying it was wrong in its criticism of the Supreme Court and a majority opposing appeals going to Strasbourg rather than London.

However, one leading QC has predicted a newly appointed review group will recommend changes to the Scotland Bill which will shut the appeals route to the Supreme Court controversially used by Nat Fraser and Peter Cadder.

Out of 597 legal professionals who responded to a survey by Scottish Legal News, 456 said the right of the appeal to Supreme Court did not threaten the independence of Scots law.

And 70 per cent wanted appeals heard at the Supreme Court rather than the European Court of Human Rights in Strasbourg - the Scottish Government's preference.

Meanwhile, Brian McConnachie QC and former Liberal Democrats leader Sir Menzies Campbell have added their voices to criticism of the Scottish Government and, in particular, justice secretary Kenny MacAskill's handling of the row.

Mr MacAskill threatened to pull 500,000 funding for the Supreme Court, adding: "He who pays the piper, as they say, calls the tune."

Mr McConnachie said the minister's comments were "greatly ill-advised", while Sir Menzies accused him of "petulance".

Mr Salmond repeatedly declined to back his justice secretary yesterday when asked if he believed funding should be withheld from the Supreme Court.

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He said: "Last Tuesday the Cabinet decided to go forward quite deliberately because we're trying to find a way to improve the situation.

"We're trying to shed light on this issue, not just heat."

Scottish Government sources believe ministers have a strong case in their criticisms of the Supreme Court's relationship with Scots law, but their argument has been hamstrung by their inflammatory language.

They hope setting up a law expert group of Lord McCluskey - who has been among those to criticise the Scottish Government - leading lawyer Sir Gerald Gordon, former sheriff Charles Stoddart, and Neil Walker, a law academic, will give them greater credibility and consensus.

They will produce an interim report within the month.

Paul McBride QC expects it to include recommendations that Scottish courts be given parity with their counterparts in England.

"They will say that, in Scotland, when the High Court refuses to allow an appeal to the Supreme Court it should be the same as in England, and you should not get leave," he said.

"At present people can say: 'I want special leave to appeal. I want to hear my case in the Supreme Court.'

"But the High Court in England's decision is final.Unless they think serious constitutional matters have to be addressed, it doesn't go to the Supreme Court.

"So they will address parity in relation to access to the Supreme Court in the Scotland Bill.

"That would have meant we would not have had Cadder and Nat Fraser."

The High Court of Appeal in Edinburgh refused appeals by both Cadder and Fraser, but these judgments were overturned by the Supreme Court in London on human rights grounds.

The Cadder verdict radically changed Scots law, triggering the collapse of 867 cases, giving suspects access to a solicitor before police questioning, and doubling the length of time they can be detained without charge.

However, it is the quashing of Fraser's murder conviction which has really angered the Scottish Government.

Mr McBride believes the expert group will agree that cases should go to Strasbourg rather than London - despite that making the process longer and costlier.

"The court in Strasbourg does not have the power to quash convictions. They give guidance to countries on human rights.

"The full report will look at the UK situation and the Supreme Court and go straight to Strasbourg."

The group's interim report will be submitted before the summer recess on 2 July, and their final findings will be delivered before the end of the year and will, potentially, become part of the Scotland Bill.

However, Scottish Legal News' poll of lawyers indicates the majority of the profession would oppose that.

Mr McConnachie, who is vice-chairman of the Faculty of Advocates Criminal Bar Association and a former Principal Advocate Depute at the Crown Office, said: "The vast majority of Scottish lawyers believe the Supreme Court got their decisions right.

"Salmond, and to a greater extent, MacAskill, have been greatly ill-advised on this matter.

"Why they thought it was appropriate to issue these various statements is a bit of a mystery to me. I don't know of many people who think the Supreme Court decisions, in any respect, threaten justice in Scotland."

Advocate Robert Sutherland, chairman of Scottish Legal Action Group, added: "The decisions of the Supreme Court, made with involvement of two of the most eminent Scottish judges we have had, have done no more than properly apply the European Convention on Human Rights, and correct the mistakes made by the High Court of Appeal.

"It would be a major step backwards to decide that these decisions should be returned to Strasbourg."