‘Spineless’ judges protected our rights

He contends (regarding the Cadder judgment) that the Scottish judges have no “backbone” and therefore “kowtowed” to judges in Strasbourg when they made “the flawed, mistaken and misconceived” ruling in the Cadder case.

He avers that his position was “vindicated” by a subsequent decision of the Supreme Court justices (which presumably did not involve the Scottish judges) when they refused to follow a ruling given by the European Court of Human Rights. Given the fact that the subsequent case would not have mirrored in every relevant detail the essence of the Cadder case (and is therefore irrelevant regarding the reasoning in that judgment) his claim that his position was “vindicated” is clearly untenable.

Before the Cadder judgment, suspects in Scotland could be arrested, bundled into a state car, taken to a place of state detention (a police station), interrogated by officers of the state and charged – all without timeous access to a lawyer, as required by the European Convention on Human Rights, the Strasbourg precedents deriving from those rights and the Human Rights Act.

The Cadder judgment declared that scenario unlawful. The citizens of Scotland now have greater protection against the abuse of power by the state.

This appears to upset Lord McCluskey, and his distress was shared by the Scottish legal establishment, senior nationalist politicians and those who think injustice based on infringements of human rights is not necessarily detrimental to the fundamental tenets of justice – as long as those infringements do not tarnish the “integrity” of Scots law.

Lord McCluskey’s anatomical advice to improve the performance of the Scottish judges in the Supreme Court (develop your backbone) is unique, radical and even revolutionary. Although many international jurists would hesitate to conclude that a sturdy backbone is necessarily an improvement on the application of reason and calm cogitation in the context of international law, Scots law and the power of the Supreme Court to adjudicate on the link between both, they would not rule it out.

Some day, somewhere, a court with judges full of “backbone” may take Scotland back to the halcyon days of pre-Cadder justice when the Scottish legal system bulged with potential for abundant miscarriages of justice.

Until then we will have to endure what Lord McCluskey classified as a “near catastrophe”: the Supreme Court’s ruling in the Cadder case.

Thomas Crooks

Dundas Street

Edinburgh