Supreme Court threat to Scots law – Alex Salmond

Share this article

Nat Fraser ruling sparks claim that UK judges are undermining Scottish justice

ALEX Salmond has warned the UK's Supreme Court that it has "no role" in Scotland's legal system after it controversially overturned a decision by the country's highest court convicting Nat Fraser of murdering his estranged wife.

The First Minister accused UK Supreme Court judges of "second-guessing" Scotland's justice system after the London-based court quashed the original guilty verdict.

In a renewed attack on UK judges' attempts to influence legal decisions north of the Border, Mr Salmond said it was "totally unsatisfactory" for the Supreme Court to rule on Scottish cases.

Scotland's justice secretary Kenny MacAskill has previously criticised the Supreme Court for "undermining" the authority of the High Court in Scotland after a controversial ruling, known as the Cadder judgment, on the rights of suspects to legal representation.

Mr Salmond stepped into the row yesterday after the Supreme Court in London ruled that Fraser's original trial at the High Court in Edinburgh for the murder of Arlene Fraser - who disappeared from her home in Moray - had been unfair.

The London-based court upheld Fraser's appeal in relation to evidence which had not been disclosed to his lawyers before his trial in 2003, after his legal team argued there had been a miscarriage of justice.


• Fraser's fate now in hands of Scots judges

• Why the Supreme Court of UK has power to overturn Scots convictions

• What happens next

Their assertion centred on claims that evidence was tampered with and prosecutors had not been given all the facts. However, the Crown Office in Scotland moved swiftly to say it would now seek to bring fresh proceedings against Fraser after the Supreme Court decision raised the prospect of a retrial.

The First Minister's latest legal intervention came just days after he said it would be "extremely foolish" for the Attorney General in England to launch proceedings against a Scottish Sunday newspaper which printed the name of Manchester United star Ryan Giggs in an article about super-injunctions.

Now, Mr Salmond has criticised the "increasing involvement" of UK judges in Scotland's criminal system, suggesting there were attempts to erode the powers of Scotland's legal system.

Lord Hope, the Scottish judge who presided over the Supreme Court hearing into Fraser's appeal yesterday, suggested that there was a real possibility that the jury would have arrived at a different verdict in the case, after Fraser's legal team argued there had been a miscarriage of justice.

But Mr Salmond demanded that Scotland's courts were the "final arbiter" of criminal proceedings in the country in what will be seen as a rebuke of the Supreme Court. It previously ruled on the Cadder case, which meant police could no longer question suspects without allowing them access to a lawyer.

Mr Salmond said: "I have no comment on the specifics of the case, which is live. But what needs to be addressed is the underlying issue - the principle that Scotland has, for hundreds of years, been a distinct criminal jurisdiction, and the High Court of Justiciary should be the final arbiter of criminal cases in Scotland, as was always the case."Before devolution, the House of Lords had no jurisdiction whatever in matters of Scots criminal law. The increasing involvement of the UK Supreme Court in second-guessing Scotland's highest criminal court of appeal is totally unsatisfactory, and creates additional delay and complexity which cannot serve the interests of justice.

"As we said in our evidence to the Scotland Bill Committee, the Scottish Government believe that the UK Supreme Court should have no role in matters of Scots criminal law, whether by way of devolution issues or appeal."

However, Edinburgh-based criminal court solicitor John Scott, a human rights expert, backed the ruling.

He said: "The Supreme Court has done the right thing. I know the First Minister is unhappy about the ruling, but the Supreme Court deals with a small number of cases and it needs to make sure there is a proper approach to human rights. It's better that the Supreme Court deals with it rather than it ending up in the the European Court of Human Rights in Strasbourg."

Normally, the appeal court in Scotland has the final word on whether a conviction should stand or be quashed, but in some circumstances the Supreme Court in London can examine alleged breaches of the European Convention on Human Rights (ECHR).

The Supreme Court agreed to hear an appeal by Fraser that he had been denied a fair trial, infringing Article 6 of the ECHR, because of non-disclosure of evidence.

The Supreme Court said part of the prosecution evidence was that Mrs Fraser's rings were found in the bathroom of her house on 7 May, 1998.

Prosecutors suggested that Fraser had removed them from her body and placed them in the bathroom to make it appear that she had "decided to walk away".

But, the judges said, it later emerged that prosecutors had evidence from police to suggest the rings were in the house on the night Mrs Fraser vanished.

Fraser argued that the failure by the prosecution to reveal that information to his legal team infringed his right to a fair trial under Article 6.Lord Hope said the Supreme Court had to ask whether, in light of the undisclosed evidence, there was a real possibility that the jury would have arrived at a different verdict.

"The trial would have been significantly different had the material that was not disclosed been available," said Lord Hope.

"There is a real possibility that this would have been sufficient to raise a reasonable doubt about the Crown's case that the appellant returned the rings to the bathroom on 7 May.

"If that were so, the jury's verdict would be bound in view of the trial judge's direction to have been different."