In what is surely a turning point for the Scottish legal system, if not a full-blown crisis, the Supreme Court in London has found that Nat Fraser did not receive a fair trail for the murder of his wife Arlene.
Fraser from Elgin was convicted in 2003 of murdering his wife in 1998, and was sentenced to life imprisonment. Her body has never been found and a great deal of the evidence at the trial was circumstantial.
Having exhausted the Scottish appeals system, Fraser went to the Supreme Court, which was created by the UK Labour Government in 2009. Fraser’s latest appeal relied on citing is known as a ‘devolution issue’ – in criminal cases, the Supreme Court can step in when issues such as the Human Rights Act are involved.
Fraser’s lawyers argued that his right to a fair trial had been denied because important evidence about Mrs Fraser’s rings was withheld from the defence.
In a statement this morning, the Supreme Court said: “There was a real possibility, in light of the undisclosed evidence, that the jury at this trial would have arrived at a different verdict.”
The Supreme Court cannot ‘free’ Fraser. The case could only be remitted back to the Appeal Court in Edinburgh, which will meet soon and, as a result of the ruling, will quash the conviction.
The Crown Office in Edinburgh has confirmed it will seek to bring a fresh prosecution against Fraser, but if the Appeal Court decides that, for reasons such as the passage of time and publicity, the accused cannot get a fair trial, then 52-year-old Fraser will go free. He has always maintained his innocence, and would be entitled to compensation.
Other Scottish criminal cases have been taken to the Supreme Court before, most notably the Cadder case last October which changed Scots Law overnight – suspects were granted immediate access to a lawyer instead of being held for up to six hours without legal advice.
But the Nat Fraser case is by far the most serious, as it relates to a murder conviction which has been thoroughly tested in Scotland’s courts.
Many Scottish lawyers are fearful that the Supreme Court imposes a ‘British’ level of judiciary above Scotland’s supposedly independent legal system. Still others will point out that it took such a court to conclude that Nat Fraser was denied a fair trial, something judges in Edinburgh should have realised. Scots Law’s integrity, it could be argued, is now on trial. Expect a row that will rumble on for days.
Professor Robert Black, professor emeritus of Scots Law at Edinburgh University gave his reaction to the Supreme Court decision exclusively to Newsnetscotland.com.
He said: “I am not surprised. This latest case is a natural progression of the system we have got at the moment whereby under the Scotland Act we have devolution issues such as alleged breaches of human rights legislation.
“It’s not the Supreme Court or its predecessor the House of Lords making a takeover bid for Scots Law. Far from it. So careful are the Supreme Court about Scottish sensibilities that even though they had the power to quash Nat Fraser’s conviction, they did not actually do so but said that it is a matter for the Scottish courts.
“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.”
Arlene Fraser’s family say they are bitterly disappointed at the decision and support the idea of a new prosecution.
You can read the full judgement at: http://www.supremecourt.gov.uk/docs/UKSC_2009_0192_Judgment.pdf
We will bring you reaction from political and legal sources as we receive it later.