SNP: stop London hearing Scots human rights cases

LAWYERS who want to pursue human rights challenges should have their cases heard in Scotland and Strasbourg, not London, SNP ministers will argue this week.

Justice secretary Kenny MacAskill and Lord Advocate Frank Mulholland are to discuss plans to stop Scottish criminal cases involving human rights being sent to the UK Supreme Court after claims by Alex Salmond that the court was "second-guessing" Scotland's independent judiciary.

The move follows Nat Fraser's successful Supreme Court appeal against his 2003 conviction for murdering his wife Arlene.

The First Minister has gained support from legal figures, including former lord advocate Lord Fraser, who argue that there is no need for criminal cases to be appealed outside the High Court in Edinburgh.

Government sources said their preferred route would be for the High Court of Appeal in Edinburgh to hear human rights cases such as the one involving Nat Fraser. He may now be freed from his 25-year sentence if Scottish judges formally quash his conviction.

But they also acknowledge that lawyers should then be able to take the case to the European Court of Justice in Strasbourg to continue an appeal if necessary.

Last night critics said that the SNP plans would simply mean that rulings given in a London court would be replaced by rulings in a French one, which would not hear cases as promptly.

Fraser's case was heard by the Supreme Court last week on the grounds that police evidence that had the potential to undermine the Crown's case had not been put before the court during his trial, and that his human rights had been breached.

The UK Supreme Court, set up in 2009 as the highest court of the sovereign state which signed the European Convention, has taken on the status as the arbiter of such rights. In relation to Scotland, it decides on so-called "devolution issues".

MacAskill said: "We believe the UK Supreme Court should have no role in matters of Scots criminal law - a view supported by Scotland's leading legal figures, including the previous lord advocate.

"We also believe that the distinct Scottish legal system should have direct access to the European Court in Strasbourg just like every other legal jurisdiction. The Scottish courts are obliged and well able to ensure that Scots law complies with the European Convention on Human Rights."

Paul McBride QC said he supported the SNP government's case, saying it was causing annoyance among Scottish lawyers that the Supreme Court was able to hear appeals without the leave of Scotland's High Court.

However, other legal figures have backed the status quo. Lord Hope, a former lord president of the Scottish judiciary, claimed it was "inaccurate" to say that the UK court was encroaching on territory it was not meant to.He said the Scotland Act had provided leave for appeal to the then Privy Council, now superseded by the Supreme Court.

Opponents last night accused Salmond and MacAskill of playing politics with the case. Labour's justice spokeswoman Johann Lamont said: "Kenny MacAskill is continuing to use cases concerning ECHR as an excuse for constitutional wrangling. The independence of the Scottish judiciary is not challenged or threatened in any way whatsoever by going to the UK Supreme court.

"To bypass the UK Supreme Court and go to Strasbourg could take years for these cases to be heard and it is doubtful these delays would lead to different outcomes."