Why the Supreme Court of UK has power to overturn Scots convictions

FOR centuries, it was all reasonably straightforward. In the civil justice system, Scotland's highest court, the Court of Session was not the final arbiter of cases, because an appeal could be taken to the House of Lords in London, and its judgments were binding north of the Border.

In criminal law, however, once a case had been to the Court of Criminal Appeal in Edinburgh, all avenues of appeal were exhausted. The House of Lords was not an option.

Then came devolution, and the adoption of the European Convention on Human Rights (ECHR).

The Scotland Act allowed for appeals in criminal cases to the Privy Council (essentially the House of Lords, later to become the Supreme Court) when there was a "devolution issue" - where the defence believed the judgment had breached the European Convention rules.

The most striking example of the Supreme Court saying one thing and the Court of Criminal Appeal saying another has been the so-called Cadder ruling.

While the Edinburgh court ruled that the Scottish system of prosecution had enough safeguards built into it to allow a suspect to be questioned without a solicitor, the Supreme Court decided otherwise and caused huge ructions with hundreds of cases dropped or re-appraised to meet the new legal requirement.

In the case of Fraser, the Supreme Court agreed to hear his appeal that he had been denied a fair trail, infringing article 6 of the ECHR, because of the non-disclosure of evidence regarding his estranged wife's engagement, wedding and eternity rings.

Lord Hope, the leading judge in the appeal, said the Supreme Court had to ask whether, in light of the undisclosed evidence, there was a real possibility that the jury would have arrived at a different verdict.

Lord Hope said: "I hold there was a miscarriage of justice at the appellant's trial and that the appeal must be allowed."