‘As a lawyer and a citizen, I don’t care where the right decisions come from’

After all the criticism directed at the UK Supreme Court by the First Minister and the Justice Secretary, Lord McCluskey’s review group backed the Supreme Court’s jurisdiction to rule on human rights in Scottish criminal cases.

There is, however, a sting in the tail. The McCluskey report recommended a new provision, with proposed amendments to the Scotland Bill, which would place the High Court of Justiciary “on an equal footing with its counterparts elsewhere in the UK, by enabling the Supreme Court to grant permission to appeal only if the High Court of Justiciary has granted a certificate that the case raises a point of general public importance”.

This is significant because there have been a series of cases – Sinclair, Holland, McDonald, Cadder and Fraser – which, but for special leave granted by the Supreme Court (or its predecessor, the Judicial Committee of the Privy Council), would not have seen the light of day in London.

The McCluskey review group recommends a similar provision to England where to appeal from the Court of Appeal to the Supreme Court you need (a) a certified point of law and (b) leave.

The certificate can only be granted by the Court of Appeal. If it refuses, that is the end of the matter. However, if the Court of Appeal certifies a point, but refuses leave, then you can ask the Supreme Court for leave.

There are concerns that the inclusion of a public importance test could have an impact on the prospects of taking a case to the Supreme Court. There appears to be a difference in approach between the High Court of Justiciary and the Supreme Court about the application of convention rights and appropriate remedies.

The McCluskey group proposals could have the result that in important cases the Supreme Court would be denied the jurisdiction to review. For example, in Cadder and Fraser, appeals to the Supreme Court were unanimously upheld – notwithstanding that the High Court of Justiciary had refused leave to appeal on the basis that the applications were incompetent.

There is therefore a possibility that had certification provisions of the sort proposed existed at the time of Cadder and Fraser, the Supreme Court would have been denied the opportunity to hear the cases. As a consequence, criminal proceedings in Scotland would have continued to be pursued in a way which was in the view of the Supreme Court incompatible with the ECHR for a much longer period – until either a subsequent case was certified, or these cases were eventually heard by the European Court of Human Rights.

This would have caused even more disruption to the criminal courts than has occurred through the Supreme Court rulings. In fact, all the court disruption would have been avoided if the Scottish Government had legislated immediately in response to the Salduz case which triggered Cadder.

Many disagree with the Scottish Government’s characterisation of the Supreme Court as intrusive. The real issue is whether or not the decisions of the Supreme Court enhance Scottish criminal law. Many think that they do. As a lawyer and as a citizen, I don’t care if court decisions are Scottish, English or European in their origins; I just want the right decisions.

As lawyers, we regularly consider cases from Scotland, England, the Supreme Court and Europe when carrying out research. Rather than seeking to restrict the impact of the Supreme Court as the McCluskey group proposals would risk doing, we need to embrace the Supreme Court as a necessary arbiter to ensure compatibility of human rights law throughout the UK.

l Niall McCluskey is an advocate and a member of the Justice Scottish advisory group