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The curtailment of criminal appeals to London

20 September 10

A response to “Devolution issues and acts of the Lord Advocate: an informal consultation”

by Aidan O'Neill QC

1. Introduction

1.1 On 24 September 2010, the Office of the Solicitor to the Advocate General announced the commencement of “an informal consultation concerning the way in which acts of the Lord Advocate in her capacity as head of the system of prosecutions might give rise to devolution issues under the Scotland Act” (click here to view).

1.2 The Advocate General’s announcement refers to the fact that a collective submission was authored in the name of the judiciary of the Court of Session on this matter area and was submitted by the judges to the Calman Commission. The Calman Commission considered, however, that the matters raised in the judiciary’s submission went beyond its remit and did not respond to them. Instead, the Advocate General has now set up a new “expert group”, tasked “to consider this issue afresh”. This group is chaired by Sir David Edward KCMG, QC, sitting with former Lord Advocate Lord Boyd of Duncansby QC (both of them members of the original Calman Commission), along with Professor Tom Mullen of the University of Glasgow, and two practising silks at the Scottish bar, Frances McMenamin QC and Paul McBride QC. The group has been asked to “assess the extent to which it [the Lord Advocate being subject to the devolution issues regime] causes problems in practice for the courts and the operation of the criminal justice system and to make recommendations in relation to any reform which the group considers appropriate”.

1.3 In order, it appears, to inform the Expert Group’s deliberations, the Advocate General has indicated that he is conducting “a short, informal, focused consultation with representative bodies and other interested parties on the matters it raises”. Consultees are asked to respond to the issue raised in the paper by Friday 22 October 2010. Why the consultation period is limited to only four weeks and why it should be “informal” (whatever that term might be taken to me) is not explained in the Advocate General’s statement.

1.4 Now all this may sound like a matter of legal arcana – and indeed is largely presented as such in the terms of the Advocate General’s consultation paper. But what is in fact being discussed in this consultation is a proposal in effect to free Scottish criminal prosecutions from the Convention rights scrutiny of the Scotland Act, leaving the prosecution authorities in Scotland bound only as public authorities by their duties under the Human Rights Act 1998. And the significance of such a change, if brought into effect, would be the ending of the jurisdiction of the UK Supreme Court to hear criminal appeals from Scotland.

1.5 No doubt individuals and organisations will have differing views as to whether any such proposed change in the criminal jurisdiction in Scotland is a good or a bad thing, but one thing is clear: it is, from a constitutional perspective, a significant and potentially momentous change.

1.6 This article sets out my own response to some of the issues raised in the “informal consultation” initiated by the Advocate General. In summary, I have serious concerns that if the proposal to disengage or limit the acts of the Lord Advocate qua public prosecutor in Scotland from the vires controls of the Scotland Act 1998 is acted upon, this will have a profoundly detrimental effect on the extent and strength of the protection of human rights within the Scottish criminal justice system. Such a proposed change in our current constitutional structure in Scotland, if acted upon, may well result in an increase in the incidence of “miscarriages of justice” within the Scottish criminal justice system, and will almost certainly result in a significantly increased number of applications from Scotland to the European Court of Human Rights in respect of breaches of the Convention rights of the accused which have otherwise gone unremedied within the Scottish criminal justice system.

1.7 One recent example may be given. In its judgment in McLean v HM Advocate [2009] HCJAC 97, 2010 SLT 73, 2010 SCCR 59 the Criminal Appeal Court, a specially convened court of seven judges, ruled that the fact that a suspect had no right in domestic Scots law to have a legal representative at police interview did not, of itself, constitute a systemic violation of article 6(1) and (3) of the European Convention on Human Rights (“ECHR”). Instead, the appeal court was of the view that it would only be the use at the trial of any statement so obtained which might, depending on the particular circumstances of the case, result in a Convention rights violation. But serious questions remains as to whether the Criminal Appeal Court in McLean in fact correctly understood and applied the relevant provisions of the ECHR (article 6(3)(c) taken with article 6(1)), and the European Court of Human Rights case law interpreting and applying these provisions (notably the decision of 27 November 2008 of the Grand Chamber in Salduz v Turkey (2009) 49 EHRR 19 and subsequent Strasbourg case law applying the “Salduz principle”).

1.8 These questions as to whether or not the Edinburgh court correctly understood and applied the Convention have been raised on appeal and heard before the UK Supreme Court constituted as seven judges in the case of Cadder v HM Advocate (judgment due 26 October 2010). Were the acts of the Lord Advocate qua public prosecutor no longer to be subject to devolution issue review, then there would have been no possibility of this issue going to London and the doubts as to whether the criminal appeal court in McLean correctly understood and applied the Strasbourg jurisprudence could be raised only by individual applications to the European Court of Human Rights seeking a finding of a violation of the Convention by the United Kingdom Government and, doubtless, an award of damages by way of just satisfaction.

2. A question of judicial primacy

2.1 What this consultation procedure in fact raises is a question about which should be the top court in Scottish criminal matters: the High Court of Justiciary acting as a criminal appeal court, or the UK Supreme Court. Certainly one of the wholly foreseen, foreseeable and intended results of the devolutionary settlement was the ending of the complete isolation of the Scottish criminal legal system within the Union. The Scotland Act from the outset envisaged and made express provision for the possibility of appeals from Edinburgh to London in criminal cases.

2.2 That this new appellate jurisdiction has developed and expanded in the 12 years since the coming into force of the Scotland Act should have come as no surprise. The law naturally develops by way of judicial interpretation and one can map a process of this development or full realisation of the London appellate jurisdiction set out in the Scotland Act thus:

(i) The High Court of Justiciary accepts (in Starrs v Ruxton 2000 JC 208) and the Judicial Committee of the Privy Council confirms a jurisdiction under the Scotland Act to rule on Convention rights violations by the prosecution in both solemn (Montgomery v HMA 2001 SC (PC) 1, 19 October 2000) and summary criminal procedure (Brown v Stott 2001 SC (PC) 43, 5 December 2000) in Scotland.

(ii) In its earlier Scottish devolution case law, the Privy Council disavowed the suggestion that in devolution matters it was a constitutional court of general jurisdiction (Hoekstra v HMA (No 3) 2001 SC (PC) 37, 26 October 2000), and held that its jurisdiction was limited by statute, which meant that it could not consider an appeal to it unless there had been a determination on the issue by the court below (Follen v HMA 2001 SC (PC) 105, 8 March 2001).

(iii) But the Scottish devolution case law of the Privy Council and of the UK Supreme Court (its successor in devolution matters) subsequently developed such that the Judicial Committee held that it had jurisdiction to hear a devolution appeal even where the lower court refused to hear and determine the devolution issue which had been sought to be raised before it (McDonald (John) v HM Advocate 2008 SLT 993, JCPC, 16 October 2008) and where the appellant did not ever raise the devolution issue properly before the lower court (Allison v HM Advocate 2010 SLT 261, UKSC, 10 February 2010).

(iv) The Privy Council has also held that it has jurisdiction to determine legal questions incidental to the determination of a devolution issue – such as, for example, the remedy that might properly be pronounced by the court below (Mills v HM Advocate 2003 SC (PC) 1, 22 July 2002).

(v) And although originally holding to a strict interpretation of s 57(2) SA as depriving the prosecution authorities in Scotland of all power to continue with a trial held in breach of article 6 (R v HMA 2003 SC (PC) 21, 28 November 2002), the Privy Council has subsequently held that a trial may still be valid even if held under conditions in which the prosecution were in breach of their article 6 duties (for example, of disclosure), provided that the procedure overall could be said to have been fair (Holland v HMA 2005 SC (PC) 3, 11 May 2005).

(vi) Finally to date, the UK Supreme Court has now assimilated the test applied by it in devolution issue criminal appeals under reference to the “core rights” of article 6 ECHR, with the statutory appellate jurisdiction exercised by the Scottish criminal appeal court under reference to s 106(3) of the Criminal Procedure (Scotland) Act 1995 (McInnes v HM Advocate 2010 SLT 266, UKSC, 10 February 2010).

2.3 This evolution of the devolution jurisdiction of the Privy Council – and now of the UK Supreme Court – may mean that there are few, if any, criminal cases in Scotland in respect of which the London based court may not claim jurisdiction and pronounce a remedy: whether affirming, modifying or overturning the decision of the Scottish criminal appeal court, whether on an accused’s appeal or that of the Crown.

2.4 Whether this development is seen as a good or a bad thing depends on one’s perspective. At the moment it seems to be only the Court of Session judges in Scotland who have expressed any public opposition to the development of a court based in London with extensive appellate jurisdiction over Scottish criminal cases. It is highly doubtful whether criminal defenders resent or object to the current constitutional framework which allows for the possibility of an appeal to London; and, indeed, the Crown qua prosecutor in Scotland has not been slow to exercise its rights to appeal or refer a case to London where it disagrees with a decision of the courts based in Scotland.

2.5 At heart what seems to be at issue is a question of judicial primacy. But given that that is the real issue, the consultation process should set this out clearly and unequivocally in this area of central constitutional importance and impact, rather than as if it were minor technical adjusting or fine tuning of existing Scottish criminal procedure.

3. Specific comments on the informal consultation paper

Paragraph 1

3.1 In para 1 of the paper it is noted that “the way that the Scotland Act affects acts of the Lord Advocate in her capacity as prosecutor has given rise to a number of complex issues”, which issues “were mainly raised in a submission from the Judiciary in the Court of Session” to the Calman Commission. (It may be noted that the one example given in the consultation paper of “other commentators” raising these issues is that of another distinguished member of the judiciary, Sir Gerald Gordon, acting in an editorial capacity commenting in a case report.) In the first instance, one wonders what precise constitutional role the judges of the Court of Session would consider themselves to be playing in making collective submissions to a body charged with considering the case for amendment of the Scotland Act? Whose interests did they consider themselves to be serving in this written submission? It could hardly be the interests of the prosecution (for they would be served by submissions from the Lord Advocate or Crown Office), nor indeed the interests of the accused or their legal representatives. And the general interest in the smooth administration of justice would seem properly to be within constitutional remit of the Minister for Justice, not of the judges – whether individually or collectively – whose constitutional rule, surely, is to apply the law and constitution as they find it, rather than to engage in political or public campaigns to change it.

3.2 Be that as it may, given that the whole consultation process would appear to have been spurred on by particular concerns expressed by the judges of the Court of Session, one wonders whether or not other judicial bodies equally concerned with the workings (and working out) of the Scotland Act have been formally consulted and asked to give their collective or individual views on the contemplated change. I have in mind both the shrieval bench in Scotland and – perhaps more significantly yet – the Justices of the UK Supreme Court. Consultation with the UK Supreme Court Justices would seem particularly important, given that the UK Supreme Court is a constituent part of, and under the Scotland Act forms the apex of, the Scottish judicial system.

Paragraph 3

3.3 At para 3 of the informal consultation document it is said that the issue as to whether or not the Lord Advocate as prosecutor should continue to be subject to devolution issue procedure is a “highly specialised area”. But this is not so. The central issue which this reference to the technicalities of devolution issue procedure masks is a profound and a simple one, which requires no great specialist knowledge or understanding of the arcana of Scottish criminal procedure.

3.4 The issue is this: should parties (both the prosecution and the defence) in criminal proceedings in Scotland continue to have the possibility of taking an appeal to the UK Supreme Court from decisions of the Scottish criminal appeal court? Once that is recognised as the real issue, then much of the technical undergrowth can be swept away and the stark question posed: why should an existing tier of criminal appeal in Scotland be removed? Are there overwhelming public interest considerations for such a major constitutional alteration of the original Scotland Act schema? If so, what are they? If not, on what basis can any change be justified?

3.5 In Andrew Le Sueur, "A report on six seminars about the UK Supreme Court" (School of Law Queen Mary, University of London, November 2008), the observations of one (formally unidentified under Chatham House rules) Scottish Court of Session judge on this issue have been reported as follows:

“[S]ection 57 of the Scotland Act 1998… prevents a Scottish minister from taking any steps that are contrary to Convention rights. This section has been seized upon by the Scottish bar to obtain a route of appeal in criminal cases to the Privy Council. This is a result that was never expected and never intended. The origin lies in the fact that in Scotland there is only one ground of appeal in criminal cases: miscarriage of justice. The argument runs like this: ‘since article 6 ECHR requires that everyone should have a fair trial, then if there has been a miscarriage of justice, it stands to reason that there has not been a fair trial, and there can be an appeal to the Privy Council.’

"Exactly where the boundaries lie has not yet been fully clarified in the case law. At ground level, this is causing endless trouble by prolonging criminal trials in Scotland. In a period of six years, the average length of a contested criminal trial has increased by one complete day. It is also causing huge delays in the criminal appeals system."

The problem must sooner or later be resolved, the judge said. There has been considerable academic criticism of the jurisdiction. There is a question as to whether it was intended to be a transitional arrangement because in 1998 (when devolution started) the Human Rights Act had not been brought into force. There is a question whether it really is necessary now that human rights are better understood and all the main human rights issues in relation to criminal trials have at least been canvassed if not fully resolved.

The judge concluded [presciently?] by saying that there is every likelihood that this question will be opened up by the Calman Commission, which has been appointed to review the workings of the devolution settlement.

Certain critical remarks on the need for civil appeals to London from Scotland are also attributed to the same judge, as noted at p43 of the same report.

3.6 But this Court of Session judge’s apparent suggestion that the possibility of appeal from the decisions of the High Court of Justiciary to the Judicial Committee of the Privy Council have been “seized upon” by the Scottish criminal defence bar does seem rather to ignore or downplay the fact that some significant Scottish criminal cases before the Privy Council have been taken by the Crown against decisions of the Scottish criminal courts with which the prosecution authorities were in disagreement. See, for example: Brown v Stott 2001 SC (PC) 43 (privilege against self-incrimination: appeal successful); McIntosh v HM Advocate 2001 SC (PC) 89 (presumption of innocence and drug confiscation orders: appeal successful); Clark v Kelly 2003 SC (PC) 77 (independence and impartiality of district court: appeal unsuccessful); and Spiers v Ruddy 2009 SC (PC) 1 (unreasonable delay in bringing to trial and remedy under the Scotland Act: a mandatory reference on the application of the Lord Advocate direct from the sheriff court in which the JCPC reversed its own earlier decision in R v HM Advocate 2003 SC (PC) 21 by now holding that the right to a trial within a reasonable time did not entail under the Scotland Act a right not to be tried after an unreasonable time.

3.7 It is also difficult to see how it can be said that it is the simple possibility of appeal to the UK Supreme Court which is responsible for the claimed one day increase in the length of contested criminal trials, or the complained-of “huge delays in the criminal appeals system”. It seems more likely that any such delays are caused by the increasing use of human rights arguments in the criminal courts which will, assuredly, not disappear even if the possibility of any further UK appeal in criminal cases from Scotland is abolished.

Paragraphs 5-7

3.8 Paragraphs 5 through to 7 of the consultation document show a worrying slip or shift in the various documents referred in what is apparently presented in the document as one coherent chain of argument. But it should be made clear what is happening here:

  • Paragraph 5 correctly quotes from the definition of what constitutes a “devolution issue” as set out in sched 6 to the Scotland Act 1998. This is unexceptionable.
  • Paragraph 6 then quotes from “Explanatory Notes” to sched 6, which are notes prepared by the executive for the better understanding by the legislators of the provision when in bill form, but these explanatory notes have no binding force before the courts and are not in any sense authoritative: R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956, HL per Lord Steyn at paras 5-6.
  • Finally para 7 sets out what it says are “the significant features of the devolution issues procedure in criminal proceedings”, but these are taken from rules 40.2 to 40.5 of the Act of Adjournal (Criminal Procedure Rules) 1996, which are the procedural rules produced and enacted by the Court of Session judges themselves, and the detailed provisions of which are not determined in any sense by any of the provisions of the Scotland Act, or by the fact that the act of the Lord Advocate qua prosecutor is a “devolution issue” for the purposes of the Scotland Act.

3.9 Thus, esto there are problems experienced by the courts in the procedures related to the raising of devolution issues in criminal proceedings (which remains to be established), the resolution of that is simple and already lies in the hands of the judges who have raised these issues. The judges themselves can amend the relevant Act of Adjournal to produce a less cumbersome procedure without the need for any proposed amendment of the Scotland Act – and hence without need for the present “informal consultation” process.

Paragraph 9

3.10 The claim made in para 9 of the consultation document that “the interaction between the Scotland Act vires control and the Human Rights Act is not easy to follow and has given rise to considerable difficulties for parties and the courts” is tendentious to say the least.

3.11 The judgment of the judges who formed the majorities in the Privy Council decision in R v HM Advocate 2003 SC (PC) 21 and in the House of Lords in Somerville v Scottish Ministers 2008 SC (HL) 45 (in both cases the majorities contained, among them, Lord Hope of Craighead and Lord Rodger of Earlsferry) are models of consistency and clarity. Certainly, the intellectual calibre and experience in the criminal law of Scotland of these two Scottish justices who currently sit on the UKSC is unrivalled.

3.12 The fact that the Scottish Government and/or the prosecution authorities in Scotland may have found the consequence of those judgments unwelcome simply does not support the assertion in the consultation document that there have been “considerable difficulties for parties and the courts”. Which parties, one may ask? And which courts? And, in any event, in what sense might “difficulties” for courts be a relevant consideration in considering the proper extent of the procedural protections to be afforded the individual’s fundamental rights from state power?

Paragraph 10

3.13 Paragraph 10 is quite simply wrong. The prosecution authorities in both Scotland and England are in precisely the same position as regards whether or not they can lawfully act in a manner which is incompatible with Convention rights. Section 57(3) of the Scotland Act 1998 consciously parallels and reflects the provisions of s 6(2) of the Human Rights Act 1998. There is no need for any new remedy to be fashioned if the Convention breach in question is found to be justifiable by reason of the requirements of a Convention-incompatible Westminster statute. As Lord Hope has observed in R (Hooper) v Work and Pensions Secretary [2005] 1 WLR 1681 at paragraph 70: “The purpose of… paragraphs [(a) and (b) of HRA section 6(2)] is to prevent section 6(1) being used to undermine another of the [Human Rights] Act’s basic principles. This is that in the final analysis, if primary legislation cannot be interpreted in a way that is compatible with them, [Westminster] parliamentary sovereignty takes precedence over the Convention rights.”

But without such specific Westminster derived authorisation then – in the words of the then Lord President, Lord Rodger of Earlsferry in Lord Advocate v Scottish Media Newspapers Ltd, 2000 SLT 331 at 333 – the Lord Advocate simply has no power to “move the court to grant any remedy which would be incompatible with the European Convention on Human Rights”.

Paragraph 11

3.14 Again, the intimation requirements referred to in para 11 are a consequence, not of anything in the Scotland Act 1998, but the terms of the relevant Act of Adjournal which as noted it is in the hands of the judges of the Court of Session themselves to revise, if so advised.

Paragraph 12

3.15 Paragraph 12 is incoherent. Are the judges of the Court of Session said to be complaining that in some cases they have a discretion whether or not to permit a devolution issue from being raised? If so, what is the gravamen of this complaint? That they should have no discretion? That the intimation requirements should be relaxed? Once more, if the problem lies in the complexity of and the limits imposed by the intimation requirements for devolution issues, then the resolution of this lies in the hands of the Court of Session judiciary who complain that there is a problem, by their amending the relevant Act of Adjournal.

3.16 What is nowhere mentioned in the Court of Session judges’ submission to the Calman Commission or in the present consultation document is the fact that in some appeals in Scotland – whether in civil cases in the Inner House of the Court of Session (C v Miller, 2004 SC 318 at paras 9-11) or in the criminal appeal court (McDonald v HM Advocate, 2008 SLT 144 at para 67) – the court in Edinburgh has refused to receive, consider or make any formal determination or finding on devolution issues which have in fact duly been raised before them (Fraser v HM Advocate (No 2) 2009 SLT 441 at para 13). The apparent intent behind such a refusal to rule has apparently been to avoid the possibility of an appeal to London against the Scottish appellate court’s decision. But such an approach by judges in Scotland to the interpretation of the relevant rules and primary statutory provisions has now been said by the Privy Council to be based on a “misconception”: McDonald v HM Advocate 2008 SLT 993, Lord Hope at para 16; see also Lord Rodger at paras 48-49.

3.17 And in Allison v HM Advocate, 2010 SLT 261, UKSC, 10 February 2010 the UK Supreme Court had no difficulty in exercising its appellate devolution jurisdiction in a Scottish criminal case, in relation to which there had been no notice formally lodged before the criminal appeal court in Scotland of any intention on the part of the appellant to raise there a “devolution issue” (as claims of breaches of Convention rights by the prosecution authorities are characterised under the Scotland Act). There had accordingly been no intimation to the Advocate General for Scotland of the appellant’s intention to present his arguments in Convention rights terms before the Edinburgh court. The Crown and the Advocate General (who did intervene before the UK Supreme Court) declined to take any point at the substantive appeal as to whether the UK Supreme Court properly had jurisdiction to hear the appeal, standing the apparent procedural failures before the court below. The issue was therefore dealt with somewhat shortly in the leading judgment (that of Lord Rodger) at para 6 who notes:

“Undoubtedly, when the appeal court determined that the Lord Advocate was not under an obligation by virtue of article 6(1) of the European Convention to disclose the outstanding charges against Mr Stronach, they were in substance determining a devolution issue in terms of paragraph 1(d) or (e) of Part I of Schedule 6 to the Scotland Act 1998 – irrespective of whether all the relevant procedural steps had been followed. It follows, as was held in McDonald v HM Advocate 2008 SLT 993, 1002, paragraphs 48 and 49, that an appeal on that point lies to this Court under paragraph 13(a) of Part II of that Schedule.”

Paragraph 13

3.18 The points noted at para 13(1) from the submission of the Court of Session judiciary to the Calman Commission do not, in fact, accurately reflect the current law. The UK Supreme Court has addressed the first concern, or perhaps misunderstanding, by the Court of Session judges of the respective extents of the criminal jurisdiction of the Edinburgh and London based courts. In apparent response to criticisms from the criminal appeal court (notably in Fraser v HM Advocate (No 1) 2008 SCCR 407 at paras 219-220, the UKSC in McInnes v HM Advocate [2010] UKSC 7; 2010 SLT 266 has, in effect, assimilated the statutory test of “miscarriage of justice” under s 106(3) of the Criminal Procedure (Scotland) Act 1995, which the Scottish appeal court applies in considering appeals, with the legal test which the UKSC is usually tasked to apply in Scottish criminal appeals, namely whether or not there has been a breach of the duties imposed on the prosecution authorities under article 6 ECHR such as to result in an “unfair trial”.

3.19 The first point noted at para 13(2) – taken from the submission of the Court of Session judiciary to the Calman Commission – that “it was far from clear that the framers of the Scotland Act had envisaged that devolution issues would be raised in prosecutions to anything like the extent to which they have”, is nothing to the point. As the judges are well aware it is the words of the statute which determine the meaning and effect, not the imagined intentions or understanding or foresight of “the framers of the Scotland Act”, whoever they might be. But, in any event, the point made is simply wrong as a matter of fact. The question as to whether or not acts of the prosecutor would give rise to devolution issues was specifically raised in Hansard by Lord Hope in the original House of Lords debates on the Scotland Bill and it was accepted by the promoters of the bill that that was the purpose and intent of the bill and its provisions: House of Lords Hansard, 28 October 1998 at col 2042.

3.20 The second point noted at para 13(2) – again taken from the submission of the Court of Session judiciary to the Calman Commission – is that “the way in which devolution issue procedure operates (as distinct from how ECHR issues might be raised in the course of criminal proceedings under the Human Rights Act) has arguably created or contributed to delay in the handling of criminal trials”. One may immediately note the word “arguably” in this sentence, but in any event the distinction made between the procedures for raising Convention rights points via the Human Rights Act rather than as devolution issues under the Scotland Act shows that the solution to any problem of supposed “delay” lies in the judges amending the Act of Adjournal to streamline the devolution intimation procedure and bring it more into line, if so advised, with such procedure as exists for the intimation of Convention rights issues raised under reference to the Human Rights Act.

Paragraph 15

3.21 At paragraph 15 of the consultation document it is noted that in their submissions to the Calman Commission there were three possible solutions put forward by the judges of the Court of Session to the “problems” which they thought that they identified, albeit that, in the absence of any general agreement among them, the judges failed collectively to endorse any one of them and there was no public breaking of the ranks to identify which judges favoured which solution, and why. Their three possible “solutions” were:

(i) to have the UK Parliament amend s 57(2) SA so as to exclude the Lord Advocate’s acts in her capacity as head of the system of criminal prosecution in Scotland from the operation of the vires/competency controls of the Scotland Act 1998 (and implicitly removing such issues from the devolution jurisdiction of the Judicial Committee of the Privy Council);

(ii) to leave the Lord Advocate with her function as general legal adviser to and member of the Scottish Executive but hive off her prosecution functions to a new post of “Director of Public Prosecutions in Scotland”, who would be responsible for the prosecution system, but who would not be a member of the Scottish Executive (and whose acts or omissions would again be thereby removed from the devolution jurisdiction of the Judicial Committee of the Privy Council);

(iii) to introduce a general right of appeal with leave in criminal matters from the criminal appeal court in Scotland to the Judicial Committee/the UK Supreme Court. The Court of Session judges rather shy away from this possible solution, stating that: “a change of such a radical nature would be likely to generate considerable controversy. However, it would put the criminal appeal court in Scotland on the same footing as the court of appeal in England & Wales in relation to criminal matters”.

3.22 The first two proposed solutions will, it is said, bring the system for the prosecution of offences into line with the systems in England & Wales and Northern Ireland by having a Director of Public Prosecutions in each jurisdiction who would be subject only to the lawfulness controls of the Human Rights Act. But, of course, the UK Supreme Court already has a general jurisdiction to hear criminal appeals from England & Wales and from Northern Ireland, and this would be unaffected by any changes in the status of the prosecutor in Scotland. But in creating a Scottish DPP subject only to the controls of the Human Rights Act, the UK Supreme Court’s devolution jurisdiction to hear Convention rights appeal in Scottish criminal matters would be removed. And the UK Supreme Court would therefore be deprived, at least in matters of Scottish criminal law and procedure, of its current constitutional role of ensuring a uniformity in approach across the United Kingdom in relation to the proper interpretation of Convention rights.

3.23 The third proposed solution would for the first time since the 1707 Union between Scotland and England place the whole of Scottish criminal law and procedure under the supervisory jurisdiction of the new UK court (see Mackintosh v Lord Advocate (1876) 2 App Cas 41, HL(Sc)). But why “controversy” – considerable or otherwise – should be considered to be any reason not to undertake a constitutional reform, which otherwise on examination appears to be necessary or desirable is not explored in their submission of the Court of Session judges.

3.24 In any event, “solutions” are only “required” if one accepts the premise that the present system is indeed problematic, and the answer to that question might well depend on who is posing it and who is being asked it. It is submitted that on examination nothing said by the Court of Session judges in their Calman Commission submissions points to the existence of any problems in the current provisions of the Scotland Act 1998. Such problems as they have in fact identified relate to procedural issues which it is within their power to remedy without need for any amendment to the Scotland Act.

Paragraph 16

3.25 At para 16 it is said that the Expert Group is considered competent only to consider the first of the proposed solutions put forward by the Court of Session judges. Why this should be is not explained, given that that first solution involves just as much significant institutional or constitutional change – in removing an existing tier of appeal to the UK Supreme Court – as do the other two. It is quite wrong and wholly misleading for such an abolition of the possibility of an appeal in criminal matters to the UK Supreme Court to be described, as it is in para 16, as a “technical change… to the scope or operation of devolution issue procedure”.

Paragraph 17

3.26 The abolition of appeals to London would certainly be the result of the “option” set out in para 17. Significantly this would involve modification of the terms of the Scotland Act itself. Nothing which was said in the Calman Commission submissions by the Court of Session judges justified or explained why such constitutional amendment should be thought necessary. And nothing explains why the judges should think it constitutionally appropriate to be lobbying for, or at the very least suggesting, such change.

Paragraph 18

3.27 The “alternative proposal” set out in para 18 of “retain[ing] the general structure of the current Scotland Act scheme but reform[ing] the devolution issues procedure in order to avoid some or all of the problems identified” is already open to the judges of the Court of Session, in that they could choose to amend the Act of Adjournal.

3.28 There is no need, as the consultation paper suggests, for “the courts could be given the power to raise devolution issues of their own motion”. They already have this power and duty under and by virtue of s 6 HRA, which requires the courts to act in a manner compatible with Convention rights, and s 2(1) HRA, which obliges the court to take into account the jurisprudence of the Council of Europe institutions when determining a question which has arisen in connection with a Convention right.

3.29 But again para 18 is incoherent since the suggestion of “remov[ing] from the jurisdiction of the Supreme Court”, “devolution issues which arise in criminal matters”, would require amendment not only of the primary provisions of the Scotland Act 1998 but also of the Constitutional Reform Act 2005 which statutorily established the jurisdiction of the UK Supreme Court. This, again, is a significant constitutional and institutional change rather than some technical amendment of devolution issue procedure.

4. Issues for consideration

4.1 I would respond to each of the issues for consideration in the order in which these issues have been raised in the consultation document as follows:

  • The removal of prosecution functions from the scope of s 57(2) of the Scotland Act would have a significant constitutional impact in removing the UK Supreme Court from its current constitutional role of ensuring a uniform standard of protection and interpretation for Convention rights across the United Kingdom. Such a change would also significantly increase the amount of cases from Scotland which would require to be taken to the European Court of Human Rights in Strasbourg with a consequent increased liability of the United Kingdom both to averse findings in law and also damages awards being made against it in respect of unremedied breaches of Convention incompatibilities within the Scottish criminal justice system.
  • There should be no reforms of the functions of the Lord Advocate as covered by the Scotland Act.
  • There should be no reform of either the system relating to Convention rights, or to EU law, particularly in the light of the creation of a common area of freedom, security and justice throughout the European Union – in which it is envisaged that there may be “the approximation of criminal laws” (article 67(3), Treaty on the Functioning of the Union) – the case for (a continuing, distinctively Scottish) legal nationalism has to be positively argued for, not presumed.
  • It does not matter that acts of the prosecution in Wales and Northern Ireland do not give rise to devolution issues under the Government of Wales Act, or the Northern Ireland Act, because the UK Supreme Court already exercises an appellate jurisdiction in relation to criminal matters from these jurisdictions, and so the uniformity of approach to Convention rights across the UK is still assured by the UK Supreme Court without the acts of the prosecutors from these jurisdictions being treated as devolution issues. That would not be the case under the procedure in Scotland. The possibility of ensuring a uniform approach would be ended by the removal of alleged Convention-incompatible acts of the Lord Advocate in the course of criminal prosecutions as raising devolution issues.
  • I would suggest that, in general, it is only when matters are taken before the UK Supreme Court (whether on appeal or on direct reference by a Law Officer) that it becomes constitutionally necessary or appropriate for the Advocate General (as a Law Officer in the UK Government) to be entitled to be informed of and take part in proceedings relating to prosecutions in Scotland.
  • These same considerations favour the retention of the UK Supreme Court current appellate role in relation to all Scotland Act constitutional issues – whether these be competency issues in relation to ASPs or Convention rights issues in relation to the conduct of a trial by the prosecutor – arising in and from all criminal prosecutions in Scotland.

4.2 As Lord Hope of Craighead observed during the House of Lords debates on the Scotland Bill: “[I]t can be said that the new arrangement which will apply in Scotland is a truly modern, state of the art, arrangement. Indeed, in another place the Secretary of State for Scotland said that this was a decisive step in the fight to modernise our constitution. In that respect, I agree with him. He also said that the objective was a new covenant with the people. That also is true, in the same sense as in all those other countries it is the constitution which is the covenant with the people. But the fundamental point which needs to be understood is that both the Scottish Parliament and the Scottish Executive will be have to respect and live within that covenant, and that it will the responsibility of the courts in the last resort to ensure that they do” (House of Lords Hansard, 17 June 1998, at col 1639).

4.3 I consider the proposal under consideration in this consultation exercise to be a retrograde one from the point of view of effective human rights protection in Scotland, and one which runs contrary to the “covenant with the people” which was set out in the Scotland Act 1998 as originally enacted. It is therefore a proposal which should be resisted.

Aidan O’Neill QC
Matrix Chambers, Griffin Building, Gray’s Inn, London WC1R 5LN


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terrence foley

Thursday October 28, 2010, 12:52

Another lawyer who wants the elected to exercise authority under the supervision of him and his ilk.

What next - approved candidates lists?

Why not cobble together a piece on the illegitimacy of the elected and be done with them?