Monday, May 30, 2011

What's more important - Justice or Location? #sp4 #echr

I feel a bit nervous writing about the law when people like LPW and Love and Garbage, who do actually know what they are talking about, do it so much better. However I thought it might be interestingto put  forward the perspective of a non legal person on this business about the UK Supreme Court hearing appeals on Scottish cases which relate to the European Court of Human Rights for the whole of the UK.

Scotland has long been proud of its independent legal system, and nobody is suggesting that we should be subsumed by English law. The issue is how Scots gain access to the ECHR system. What Alex Salmond and Kenny MacAskill want is for us to have to go all the way to Strasbourg to put our case.

Imagine if you will that I am languishing in jail, convicted of an unspecified crime against literacy or something, and I think my human rights have been breached. So I go along to the Scottish High Court of Justiciary and they tell me to get lost. In very long legal words, but that's what they mean. I still think I have a case, so I decide to pursue it through the European Court of Human Rights.  Now, before 2008, I'd have had to go all the way to Strasbourg. That's a long way away, and the costs would be crippling. Not just the proverbial arm and leg, but most of my internal organs and probably my firstborn too. And cases from 26 other countries also need to fit into the ECHR timetable, so I could go on languishing in jail for years before my case is even heard.

But, since 2008, I have to go, not to Strasbourg, initially, but through the UK Supreme Court in London. That's because it's the UK that's the member state of the EU. This court has judges from all across the UK, and we're back to it costing just the arm and leg and maybe a couple of internal organs. And it's also going to be able to hear my case a lot quicker, so I could be out of jail sooner if I win.

And, it's not as if the UK Supreme Court is going to operate in a different  way than the ECHR in Strasbourg. When the judges rule, they have to use ECHR jurisprudence, not English or Scots law, so it's pretty much the same, except cheaper and quicker, as going to Strasbourg.

I felt very uneasy when I saw Alex Salmond's reaction to the Nat Fraser case the other day. He seemed more bothered by a London based intervention than by the fact that someone in Scotland's human rights hadn't been met. I don't know too much of the ins and outs of the Nat Fraser case, but from what I can gather, his conviction was quashed because the defence was not given access to evidence that the prosecution had. That doesn't seem fair to me.  I don't know enough about how the system works to know whether it was just in this one case that a mistake was made, or whether there is something systemic we need to look at. The last major case that the ECHR (via London) did was to rule in the Cadder case that suspects should have access to legal advice before being interviewed by Police. I was surprised to be honest that they didn't, but what do I know? Clearly I've watched too many episodes of The Bill. I just know, though, that if I were ever interviewed by the Police, I'd incriminate myself through pure nerves, even though I'd be completely innocent. I'd want someone professional there to make sure I was being treated fairly and to advise me.

Anyway, the substance of these two decisions to me seems to be consistent with human rights, and if we're found to be wanting in that department, surely we should sort it out? That's not to attack our legal system, but none of them are perfect. We should always be aspiring to ensure that we are as just and fair as possible. It also seems to me that if the decision was made on ECHR guidelines, then the ECHR if it had been sitting in Strasbourg, would have said exactly the same thing, except in a few more years' time and having cost a lot more money.

When I saw Alex Salmond's comments about this in the wake of the Nat Fraser judgment, my heart sank a bit. The First Minister said:
“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.”
To me, that seems that the SNP are letting their prejudice against anything based in London cloud their judgement. They don't seem to have any problem with being in ECHR, so why should it matter to them if ECHR cases are decided in London or Strasbourg. At least the UK Supreme Court has 2 Scottish judges on it. That apparently is not good enough for Kenny MacAskill, though. Those judges are not the right kind of judges was what he pretty much had to say on this morning's Good Morning Scotland. Strewth!

I just find it all incredibly depressing - rather than look at the practicalities of the situation, the SNP, for its own narrow agenda, chooses to pick an unnecessary fight just to try and give it more leverage as it argues for independence.

We're going to have 5 years of this. What should matter is justice, and that Scots can be confident that they are going to get a fair trial, with all their rights complied with. The bottom line is that we have to comply with ECHR. The SNP want an independent Scotland to stay in ECHR. Why on earth are they making all this fuss.

Willie Rennie, the new Scottish Liberal Democrat leader, has slammed the SNP's stance. In an outspoken attack on the SNP plans, he said:

“This is more about anglophobia than Scottish nationalism. The SNP’s logic is totally warped. Removing the role of the UK Supreme Court on which two top Scottish judges sit will push human rights appeals straight to Strasbourg. "While discussion on how we make and execute the law in a fairer and better way should always be an open dialogue, the motives and purposes must be right. "This is not the case here. Instead we have the grandstanding SNP, jumping on any bandwagon that will further their causes for independence. ‘Anywhere but London’ is the mantra that the SNP will continue to cultivate no matter what the negative results and consequences are for Scotland. “These flawed plans will instead see appeals from Scotland going direct to Strasbourg and subsequently being hit with delays, red tape, cost and in the end being heard in the European Court without a single Scottish Judge present. This undermines the whole SNP argument. “The future of the legal system in Scotland must not be based on SNP posturing."
Update: Love and Garbage has read this and I am literally glowing from the fact that a proper lawyer said he enjoyed my post. However, there's one correction he's suggesting. 

One wee correction. While Supreme Court was set up recently the appeal from the High Court of Justiciary was introduced in 1999 with the Scotland Act. At that point appeals were made to the Judicial Committee of the Privy Council, staffed by exactly the same judges that staffed the House of Lords. The Supreme Court of the United Kingdom rationalised the two regimes into one. I enjoyed your post. Once my current chaotic workload is up I will try to post something on it. In the meantime it might be worth having a look at the stuff on The Firm's website from mike Dailly and others.

Update 2: Scott mentioned The Firm's website and Mike Dailly in his tweet above. It's here, and there's some good stuff on it. Mike Dailly is the Principal Solicitor of Govan Law Centre, an organisation which helps the poorest people access the law.  He says in his article Justice Lite that only the very wealthy in Scotland can now access the law, something which chimed with me. I particularly liked this quote:
Whereas the SNP administration debate 'independence lite' as a paradigm to divvy up political power from the UK to Scotland, Alex Salmond's 'justice lite' can never work because you cannot divvy up justice. You either have it or you don't. 
Scrapping the UKSC for Scots would put party political politics before the people of Scotland, and ideology before access to justice. 


John said...

It's just daft.

Lords Hope and Rodger sit down there, both former Heads of the Scottish Justiciary - after all, what more could they know about Scots Law than say the Andorran VP at Strasbourg..?

Dean of the Faculty of Advocates
Chairman of the Medical Appeal Tribunal and the Pensions Appeal Tribunal
Lord Justice General of Scotland and Lord President of the Court of Session.

Clerk of Faculty
Home Advocate Depute
Solicitor General for Scotland
Lord Advocate
Lord President of the Court of Session and Lord Justice General of Scotland

Crinkly & Ragged Arsed Philosophers said...

I long for Scotland to get its independence as much as anyone but on this issue the howl of interference and cry of tradition are in the wrong.

The present flaw or failure in the Scottish judiciary seems to me that when they're presented with evidence which may, and I emphasise the may, give grounds for a miscarriage of justice they're more concerned with process than with testing the disclosure or evidence and the effect they may have on justice being seen to be done.

I reached a similar conclusion when I read the findings and appeals on the Megrahi issue that justice came secondary to system.

Is this hubris shielding a flawed system?


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