SCOTLAND’S most senior judge has intervened in the Supreme Court row and urged Westminster to give the justiciary north of the Border equal powers to the rest of the UK.
In a letter to the UK parliament, Lord President Lord Hamilton argued the High Court of Justiciary in Edinburgh is better placed to deal with Scottish criminal appeals.
He backed Lord McCluskey, who led a review on the Supreme Court’s role in Scottish law, in saying appeals should only be referred to London with the agreement of judges in Edinburgh.
If the UK government agrees and uses the Scotland Bill to change the current law, it would close the route used in such high-profile cases as Peter Cadder and Nat Fraser.
“Being closer than a court of further appeal to the day-to-day operation of criminal jurisdiction [the High Court in Edinburgh] will, I suggest, have a better appreciation of the operation of the criminal law in the community it serves,” Lord Hamilton wrote.
He went on to say that the Supreme Court’s “talents are best directed, as a court of reference”.
That, he pointed out, would see Scotland adopt a similar position to the high courts of England, Wales and Northern Ireland.
Lord Hamilton’s view has been welcomed by the Scottish Government although, like Lord McCluskey, he does not suggest that Scotland should be able to bypass the Supreme Court altogether, and refer cases direct to Strasbourg, as Scottish ministers have proposed.
He also said that European Convention on Human Rights appeals should be made against courts – and not just actions of the Lord Advocate.
“An anomaly of the present jurisdiction of the Supreme Court in criminal devolution issues from Scotland is that they can arise only if the Lord Advocate has acted [or failed to act] in a way which, arguably, infringes the convention rights of an accused or appellant,” Lord Hamilton wrote.
“That is notwithstanding that the High Court, as a public authority, cannot lawfully act in a way which is incompatible with a convention right.”
In his conclusion, he added: “I urge parliament to provide in the Scotland Bill an amendment to the Scotland Act 1998... to restrict those cases in which leave may be granted to appeal to the Supreme Court to cases in which the High Court has certified that a point of law of general public importance is involved in the decision.”
Lord Hamilton’s intervention comes a week before the Scotland Bill is to be discussed in the House of Lords.
A spokesman for the Scotland Office said it would “consider the points raised by Lord Hamilton carefully”.
He added: “There is substantial support for the government’s position on this matter, and the issue will be considered fully in the House of Lords, during the Scotland Bill proceedings.”
A spokesman for the Scottish Government added: “We welcome the Lord President’s intervention which underlines the seriousness with which the matter is being treated by the Scottish judiciary and support his view.
“We call on the UK government to listen to Scotland’s finest legal and constitutional minds who agree that the role of the Supreme Court in Scottish criminal cases must be redefined, putting Scottish courts on an equal footing with those in the rest of the UK.”
However, leading human rights lawyers fear such a change will close off an important route which has benefited Scots law.
John Scott, QC said: “With Cadder, it’s hard to see how that would have made it to the Supreme Court, and therefore how Scotland being out of line with the rest of Europe would have been sorted out.”