News Justice Supreme Court should maintain role
Ross Reid Justice Correspondent
Te Law Society of Scotland has criticised proposals from a controversial review group who have claimed criminal appeal cases should only go to the UK Supreme Court if Scottish judges grant permission.
Te comments come after the publication of a review into the role the London-based Supreme Court plays on the independence of Scots law. Te court attracted criticism
from the SNP last year for a ruling, known as the Cadder judgment, on the rights of suspects to legal representation in Scotland. Te row then erupted again in
May in the case of Nat Fraser. Five justices in the court in London said Fraser’s conviction for the 1998
murder of his wife, Arlene, should be quashed. Fraser, 52, from Elgin, now faces a retrial. Te controversy centres on the
Supreme Court’s power, given to it when it was set up in 2009, to rule solely on whether a Scottish criminal court had breached the European Convention on Human Rights (ECHR) or failed to uphold a defendant’s human rights. Te court has no power to rule on crimes or laws passed by the Scottish Parliament – unless they breach the convention. First Minister Alex Salmond
ordered the independent review, led by Lord McCluskey, former Solicitor General and senator of the College of Justice, in June having complained the UK Supreme Court should have “no role” in Scottish criminal cases. Currently, appeals under the ECHR can go the Supreme Court. Although the review group said the Supreme Court should continue to have a role in Scottish
cases, it said an appeal should only be competent where the High Court in Scotland has granted a certificate showing that the case raises a point of law of “general public importance”. Michael Clancy, Director of Law
Reform at the Society, said: “We do not agree with the review group’s recommendation that appeals to the Supreme Court should only be granted by the High Court through granting a certificate of general public importance. “Individual human rights are just that – individual, these should not be assessed against the test of general public importance. “Requiring a certificate of public importance could raise the situation where some people are
restricted from appealing because the contravention of their human rights does not meet that test and this, we feel, could restrict access to justice.”
Clancy said the Law Society supports the main finding from the group – that the Supreme Court does have a role to play in Scottish cases. He added: “We feel that the UK Supreme Court has a very important role to play in relation to constitutional and human rights issues affecting Scotland and we are pleased this view is echoed by the review group. “In the current constitutional arrangement, the UK Supreme Court should retain jurisdiction with respect to matters of constitutional human rights law arising out of criminal cases, with the final Court of Appeal for substantive criminal law matters remaining with the High Court of Justiciary sitting as a Court of Appeal.”
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www.holyrood.com 19 September 2011
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