First Minister Alex Salmond and Justice Secretary Kenny McAskill last night launched a major offensive against the British Supreme Court for interfering in Scottish criminal justice.
Their verbal onslaught followed the Supreme Court’s decision on human rights grounds that Nat Fraser had been denied a fair trial in 2003 when he was found guilty of murdering his wife Arlene, whose body has never been found.
Fraser won his appeal which was grounded on a ‘devolution issue’, i.e. the UK Human Rights Act’s rules about a fair trial.
The Supreme Court ruled that vital evidence had been withheld from the defence and that meant Fraser did not receive a fair trial. The Supreme Court then sent the matter back to the Appeal Court in Edinburgh for Fraser’s conviction to be quashed.
The Crown Office says it will seek a new prosecution, but if judges decide Fraser cannot get a fair trial 13 years after his wife’s death, then he will be a free man with no stain on his character and entitled to compensation for wrongful imprisonment. (See our earlier story for full details).
Newsnetscotland.com, the website that knows the issues that are important to Scots, predicted a row this morning. We said: “If the Supreme Court overrules the Scottish judges who found against Fraser, expect a major controversy over what this means for the supposedly separate and sovereign Scottish legal system.”
Little did we expect that the First Minister himself would lead the charge. Mr Salmond said: “What needs to be addressed is the underlying issue – the principle that Scotland has, for hundreds of years, been a distinct criminal jurisdiction, and the High Court of Justiciary should be the final arbiter of criminal cases in Scotland, as was always the case.
“Before devolution, the House of Lords had no jurisdiction whatever in matters of Scots criminal law.
“The increasing involvement of the UK Supreme Court in second guessing Scotland’s highest criminal court of appeal is totally unsatisfactory, and creates additional delay and complexity which cannot serve the interests of justice.
“As we said in our evidence to the Scotland Bill committee, the Scottish Government believe that the UK Supreme Court should have no role in matters of Scots criminal law, whether by way of devolution issues or appeal.”
On Newsnight Scotland, Justice Secretary Kenny McAskill weighed in:
“The principle is that the final court of appeal in Scotland is supposed to be the High Court of Justiciary, and yet what we are seeing is a continual undermining of the sovereignty of the Scottish court system with the Supreme Court in England, which is not supposed to touch Scottish criminal law, continuing to affect matters.”
Mr McAskill accused the Supreme Court of “interfering” in criminal matters “with great regularity.”
He said: “Without commenting on a specific case, the generality is that this is not an area in which they should be interfering.
“They are usurping the role of the High Court of Justiciary here in Scotland, they are interfering in criminal matters which are meant to be the prerogative of our court of appeal, and whatever they say, the fact of the matter is that this is undermining – and making signficant changes to – Scots law. That is not their role.”
Had the Supreme Court not been set up by the UK Labour Government in 2009, Fraser’s route of appeal would have been to the European Court of Human Rights – legal experts say he would have won his case there.
But as Mr McAskill pointed out, Scotland does not have right to audience in the European Court as that is a Westminster function. He
said: “We wish to have direct access to the European Court and be able to plead our own case – that’s a matter we are continuing to pursue.”
There remains a strong opposing view that the Supreme Court is necessary to address inadequacies in Scots legal practice. Speaking exclusively to Newsnetscotland.com earlier in the day, Professor Robert Black, emeritus professor of Scots Law at Edinburgh University, pointed out a problem with the Scottish legal establishment – that they have not embraced European human rights legislation.
Prof Black said: “Unless the Scottish courts start taking the European Convention on Human Rights seriously, we will see more cases referred to the Supreme Court – and a good thing, too.
There will be those who say the Supreme Court shouldn’t interfere, but the Court would not have to interfere if the Scottish courts and Scottish Prosecution Establishment were doing their job properly – that’s the scandal.”
In another politico-legal development, as expected, the Cabinet has agreed to Lord Advocate Frank Mulholland QC’s request for laws that are tough enough to deal properly with sectarianism in Scottish society, particularly as it affects football.
Sentences of up to five years will be sought for a new range of offences designed to tackle sectarian behaviour around football matches. Those who foment sectarian hatred over the internet will also be targeted for prosecution
Speaking on Newsnight Scotland, Mr McAskill stoutly defended the Government’s initiative and pointed out that new laws were needed because the old ones – such as the ancient Scottish law of breach of the peace – were no longer robust enough.
He said: “We do have to take action. It was requested by the police as some of the scenes and behaviour have been entirely unacceptable. The current and existing law is not adequate, and that matter was made quite clear at Cabinet this afternoon by the Lord Advocate, as we have seen a tightening of laws by Scottish courts in recent years in terms of definitions of breach of the peace.
“There are gaps, and we want to make sure that the law is fit for purpose.”
The Justice Secretary said the new laws would be the subject of consultation with the other parties and legislation would be in place for the next football season.
He added that incitement to violence on the internet and elsewhere involving unacceptable conduct and statements would be prosecuted without interfering with freedom of speech. He also ruled out a list of proscribed songs, saying that offensiveness would be down to the judgement of “a reasonable man or woman” with the “ultimate arbiter” being the courts.
Mr McAskill emphasised: “We live in a Scotland that wants to create a tolerant and mutual society.”