Justice Secretary Kenny MacAskill proved guilty – of defending Scots law


The row over the Supreme Court shows no sign of abating, with claim and counterclaim by the Government and its opponents.

One thing which seems to be missing on all sides is a reliance on facts. Justice Secretary Kenny McAskill has stated that the Supreme Court is interfering in Scottish criminal justice and is thus undermining Scots law. His opponents say appeals to the Supreme Court are ‘rare’ and that Scots law is hardly being affected, with any decisions made by the London-based court being in keeping with human rights legislation. In any case, they add, there are two fine Scottish judges, Lord Hope and Lord Rodger, on the court to keep their English and Welsh colleagues  informed – this despite the fact that in one Scottish case Lords Hope and Rodger had a serious disagreement.

Today Newsnetscotland.com publishes the FACTS about the Supreme Court and its involvement in the Scottish criminal justice system.

That involvement fundamentally comes about because the Scotland Act introduced the Human Rights Act into Scots law and the Supreme Court was later appointed to deal with ‘devolution issues’ such as alleged breaches of human rights. That the Scottish legal system did not comply with human rights legislation in some aspects is beyond doubt – what is also not beyond doubt is that this curious legal process has resulted in the Supreme Court having considerable effect on Scottish criminal justice.

FACT: There have been five appeals dealt with by the Supreme Court emanating from Scottish criminal justice in the last 15 months. One every three months is hardly ‘rare’ as some have said.

FACT: The Supreme Court’s rulings did cause ‘interference.’ In the cases of Cadder v. Her Majesty’s Advocate (HMA) and Fraser v HMA, the Supreme Court found that a material breach of human rights had occured in both cases. As is well known, Cadder changed the law of Scotland overnight, with the cost of increased legal aid being put at ‘millions’. The ramifications of Fraser are still to emerge.

FACT: At least two more Scottish murder cases, both of them exceptionally high-profile, and possibly at least three more cases are heading to the Supreme Court. The murder cases involve Luke Mitchell, killer of Jodie Jones in Midlothian in 2003, and Paolo Parracho, who murdered Tracey Scott in Paisley. The other cases will emerge in the next few weeks. Solicitors and advocates are said by one senior legal source to be ‘duty bound’ to take cases to the Supreme Court.

FACT: In Parracho’s latest appeal to the High Court of Justiciary, heard in Edinburgh on February 9, 2011, the judges on the bench said in their judgement that they had relied on Cadder v HMA at the Supreme Court for part of their decision.

FACT: Several other appeal judgements have been issued by the High Court which cite the Supreme Court’s rulings. They include Alexander Woodside v HMA in September last year in which the judgement stated: “The outcome of McInnes v HM Advocate was important in the context of this ground of appeal, as the Supreme Court clarified the test for a miscarriage of justice in the event of non-disclosure.” In David Hay v HMA, Lady Paton said: “As the Supreme Court considered both Holland and Sinclair before formulating the test in McInnes, it respectfully seems to us that this court should apply that test to the facts of the case without any further attempts at reformulation or construction.” In David Lilburn v HMA, heard on April 1 this year, the Lord Justice General Lord Hamilton said:  “The legal basis for challenging the use of these answers was available not later than the decision of the Supreme Court in Cadder v HM Advocate [2010] SCCR 951, issued in October 2010. Many appeals involving such a challenge were presented in anticipation of that decision. (our italics)

FACT: Other cases in which Supreme Court rulings were cited include Aflfleck v HMA on June 11, 2010; Polland v HMA, March 9, 2010; Jude and Hidgson and Birnley v HMA on May 11, this year: Ahmad v HMA, January 26, this year.

FACT:  The High Court has turned down several requests for leave to appeal to the Supreme Court, including requests by murderer William Beggs, the so called body in the loch killer, who was refused permission to appeal to the Supreme Court on May 27, 2010, and was refused permission to appeal to itself by the Supreme Court on December 16, 2010.  Murderer Patrick Docherty was also refused permission on July 30 last year, as was James Patrick Quinn on a charge of attempted  murder on March 15 this year. It is possible that lawyers for those who have been refused permission to appeal will either go to the Supreme Court or European Court of Human Rights. In any case, it is an undeniable fact that attempts to seek leave for appeals to the Supreme Court have been taking up a great deal of the High Court’s time.

FACT: Civil cases that previously went to the House of Lords now routinely go to the Supreme Court.  Any case under the European Communities Act will end up there, too.

FACT: Judges KNEW perfectly well that the Supreme Court could be a problem. In his judgement on the case of Dickson and McNaughton in November, 2007, the Lord Justice General, Lord Hamlton, wrote “nice questions might arise in relation to devolution issues, at least upon establishment of the Supreme Court of the United Kingdom.”

These facts show how much the Supreme Court is impacting on Scots Law. Whether you agree with its findings or not, there is no doubt whatsoever that the Supreme Court has heavily affected the Scottish criminal justice system and will continue to do so.