Supreme Court is told to ‘develop a backbone’

SCOTTISH judges in the Supreme Court should develop the “backbone” to stand up to Europe after a “near catastrophic” ruling for the criminal justice system, a senior legal figure has said.

Lord McCluskey said justices at the UK’s highest court “kowtowed” to judges in Strasbourg when they made the “flawed, mistaken and misconceived” Cadder ruling in October 2010.

The retired judge and former solicitor general for Scotland said his position was vindicated by a subsequent decision of seven Supreme Court judges who refused to follow a European Court of Human Rights (ECHR) ruling.

Writing in a national newspaper, Lord McCluskey said: “In their approach to human rights law, it is good to see that English judges and lawyers have backbones and are willing to stand up for their legal system and parliamentary legislation: the sooner Scottish members of the Supreme Court follow their example the better.”

At the heart of the debate is the Cadder case in which the Supreme Court in London ruled the holding of suspects in Scotland for six hours for questioning without access to a lawyer breached the ECHR.

Lord McCluskey said the ruling was a “disaster”, adding: “A system … was rejected because Strasbourg judges gave it no consideration whatsoever, [and] purported to make a universally applicable rule based on the abuse of a suspect whose rights had been trampled upon by Turkey’s security police and judiciary.”

Subsequently, he wrote, the Crown had to drop hundreds of legitimate prosecutions.