Supreme Court ‘should rule only by request’

SOME of Scotland’s leading legal minds have said the Supreme Court should continue to have a role in Scots law – but only where judges north of the Border request it.

Recommendations in the final report of the group, led by Lord McCluskey, would stop cases being appealed to London without the permission of the High Court in Edinburgh.

It would place the Scottish criminal justice system on an equal footing with England and Wales, and potentially block a route of appeal used in such high-profile cases as Nat Fraser and Peter Cadder, and now expected to be taken by Luke Mitchell, the killer of teenager Jodi Jones.

However, the report’s authors, Lord McCluskey, Sir Gerald Gordon, Sheriff Charles Stoddart and Professor Neil Walker, did not agree with the Scottish Government that the European Court in Strasbourg – rather than the Supreme Court in London – should interpret how the European Convention on Human Rights related to Scottish cases.

Despite this, justice secretary Kenny MacAskill, who was heavily criticised after referring to Supreme Court judges as “ambulance chasing” earlier in the year, welcomed the report.

The findings, which were trailed in the group’s interim report in June, will now be discussed in the Scottish Parliament and recommendations will be made to MPs for inclusion in the Scotland Bill, which is currently being debated in the House of Lords.

The report said the Supreme Court should be “asked to answer specific questions [arising from Scottish cases], rather than that of a normal criminal appeal” as is the case at present.

With those questions answered, the case would then return to the High Court in Edinburgh for the appeal to be heard.

The authors said: “In disposing of an appeal or reference to it, the power of the Supreme Court should be limited to declaring whether or not there has been a breach of a convention right and, if there has been, to saying why this is so.

“If there has been such a breach, the Supreme Court should simply remit the case to the High Court to allow that court to determine the appropriate disposal in the light of its existing powers.”

In June, the Supreme Court provoked outrage in the Scottish Government by quashing the conviction of Fraser, 52, for the murder of his wife, Arlene, 33, in 1998. He now faces a retrial.

And last year, the Supreme Court quashed the conviction of Cadder, 21, for two assaults and breach of the peace because he was not given access to a lawyer before being quizzed by police.

That verdict triggered changes to Scots law, which led to the collapse of 867 criminal cases.

The relationship between the Supreme Court and the Scottish criminal justice system has already been the subject of a report by former Scottish deputy first minister, Lord Wallace.

He warned any move to only allow Scottish cases to go to the Supreme Court with permission from the High Court in Edinburgh would face opposition.

“When it comes to the proposal to allow appeals to the Supreme Court, only where the High Court has granted a certificate, I am conscious a number of responses to the consultation I held earlier in the year, and indeed responses to Lord McCluskey’s group consultation, took a contrary view,” he said.

The Scottish Government said in an independent Scotland, cases would be referred to Strasbourg rather than London. Mr MacAskill said: “Clearly in an independent Scotland the solutions would be simpler with cases referred direct to the European Court of Human Rights.”