LG Seminar – Human Rights and the Supreme Court

ILG Seminar – Human Rights and the Supreme Court

John Scott will cover the Supreme Court and the human rights protections of the Scotland Act, including discussion of the recent controversy involving the First Minister.

This seminar will benefit anyone with an interest in human rights, constitutional matters and criminal law.

HUMAN RIGHTS IN SCOTLAND PRE-SCOTLAND ACT

The good start for ECHR, which I will describe soon, was made much easier because of the extremely unreceptive attitude towards ECHR pre-Scotland Act.

I am thinking, in particular, of what Lord Ross said in Kaur v Lord Advocate (1981 SLT 322)- that the Convention was irrelevant in legal proceedings unless and until its provisions had been incorporated or given effect to in legislation and therefore the court was not entitled to have regard to it either as an aid to construction or otherwise.

It might be thought that there was more to the Scottish approach than just barely concealed hostility. I think it is possible over the passing years to detect an underlying superiority complex. As ever, it probably didn’t help that the Convention was explicitly a European treaty.

The extreme view expressed in Kaur softened over time and, even before the Scotland Act, by 1999 the Convention was being expressly considered. On the civil side in 1996 we had T Petitioner 1997 SLT 724 (re gay adoption) and on the criminal we had McLeod Petitioner 1998 SCCR 77(a decision from late 1997 which is still the leading Scottish authority concerning disclosure).

L J-G - In seeking to formulate the approach of our law we may, however, look at the decisions of the Strasbourg court just as we look at the decisions of any other court of authority to see what persuasive effect they may have.

THE SCOTLAND ACT AND HUMAN RIGHTS – A GOOD START

The first bite of the Scotland Act came over 12 years ago on Law Officers Day. Indeed the very first devolution issue surfaced later that same day. On the criminal side this gave us an earlier exposure to devolution issues than in the civil courts where the HRA did not come into force until roughly 18 months later. So how has the Convention fared in the years since then? Are we better off than we were? Until Cadder I was not entirely convinced.

In relation to the article 6 right to a hearing within a reasonable time we had for a while in Scotland a situation where the courts enforced this with an interpretation which actually brought to an end prosecutions which failed to meet that requirement. On occasion our judges used it to do justice even more enthusiastically and it was possible to see them using ECHR to try to drive up standards, especially on the part of the police and the Crown.

There are many who think that the Scotland Act also allowed ECHR considerations to help our courts blow away some obstructive cobwebs which had developed over a number of years. In particular it was used as a significant tool for enforcing Crown accountability. It helped us to move further away from the idea of sole reliance on the Crown as arbiters of almost everything. An example of this is Burn Petitioner 2000 SCCR 384 which considered a 1995 decision of Lord McCluskey and overruled it. The issue was bail being opposed by the Crown on an unvouched assertion that further enquiries would be impeded if accused released. Lord M had said “ In my view the proper course for me to take is to accept the Crown's assertion without attempting any further enquiry ”. This approach seemed rooted in another time and was wholly out of step with the idea of meaningful judicial scrutiny.

The Scotland Act quickly allowed that view to be challenged and, as a consequence the court said –“in future the Crown must provide sufficient general information relating to the particular case to allow the sheriff to consider the merits of their motion that the accused should be detained.”

A similar approach was taken in relation to the scrutiny given to the grant of warrants.

One high-point for ECHR in Scottish courts came in the case of Brown v Stott 2000 S.C.C.R. 314 which dealt with section 172 of the RTA 1972 and the requirement to name the driver at the time of a suspected offence.

It was held that, as the appellant was subjected to compulsion to make an incriminating reply under threat of being found guilty of an offence and punished with a fine, and the Crown proposed to use the evidence of the answer given by her as a significant part of the prosecution case against her at her trial, the use the

Crown proposed to make of her answer would offend her right not to incriminate herself, which was a constituent element of the basic principles of fair procedure under art.6(1).

Lord Justice-General Rodger

The right of silence and the right against self-incrimination are not lately minted. In Scots law, for instance, a right against self-incrimination was recognised in 'capitall crymes' in the Claim of Right 1689.

You could almost sense the judicial pride in being able to point this out. No longer was there a Martin Guerre aspect to ECHR. Rights had indeed come home. How long they would be staying was perhaps another matter.

It is ironic, given recent complaints about this jurisdiction over Scots law, that it took the JCPC to uphold a Crown appeal and restore the position in Scotland, thereby ensuring the admissibility of the replies given to such RTA requirements.

WAIT A WEE MINUTE

And then the judges seemed to tire of this new toy. Bringing prosecutions to an end seemed like an excessive response in some cases. And, as a living instrument, the Convention was growing. The European Court was still developing its own jurisprudence. And our judges began to resent the suggestion that our system was lacking in any way.

Increasingly there was a degree of judicial impatience when it came to Devolution Issues and ECHR generally. That impatience has not really gone away.

Robertson and Gough v McFadyen 2008 SCCR 20

(This is the 5 judge case relating to contempt of court. Mr. Gough is more often referred to as the Naked Rambler).

Lord Justice Clerk

Article 6 and the common law of Scotland

[64] Counsel for the petitioner and the complainer has based his submissions on article 6. He has made only passing reference to the common law. It seems at times that contemporary practitioners believe that the Convention introduced the principle of fair trial into Scottish criminal procedure . Scottish criminal procedure is founded on that principle. It is the duty of this court constantly to reassess what fairness

3 requires and to re-examine the presuppositions on which existing rules and practices are based. Where it is recognised that an accepted aspect of procedure is unfair, this court puts the matter right. In this way Scots law has extended its protection to accused persons in relation to such matters as pre-trial publicity, police questioning, and detention of witnesses in open court. In its consideration of the procedure for dealing with contempt of court, the court's appreciation of fairness has developed stage by stage from the robust approach of a century ago. In this case, it is open to us to develop our procedure further.

[65] In some respects the incorporation of the Convention has enhanced the fairness of our system directly, for example by enabling the court to consider questions of unfairness in the operation of specific legislative provisions that previously it had to take as it found. More generally, it provides a fresh focus for reconsideration of domestic issues, as any Convention of its status must, and in that way influences our thinking in the development of the common law. It is not disputed that article 6 applies in each of these cases and that it requires the court to show both subjective and objective impartiality; but that requirement has long been recognised as an essential feature of the right to a fair trial at common law. In my view the fair trial issues raised in these particular cases can be satisfactorily resolved at common law.

Lord Johnston

[109] On the more general question of interaction between Article 6 of the European Convention on Human Rights and the issue of dealing with contempt, I too would wish to emphasise that I do not consider Article 6, especially in relation to a fair trial, adds anything to or detracts in any way from the long-established rules in Scotland in relation to the issue of fair trial. Such has been enshrined in our law for centuries and while Article 6 may have re-emphasised the issue of bias, for example, or partiality, and also highlighted the question of timescales in the conduct of criminal proceedings, the fundamental issue of fairness has always been there to be determined and will continue to be determined, in my view, by the general rules of the Scots common law. Continued references in this context to Article 6 to my mind are both meaningless and superfluous .

Since May 1999, many cases have involved Devolution Issues being lodged – certainly tens of thousands. Often the relevant minutes have not been lodged in accordance with the rather byzantine rules in the Act of Adjournal. This offers sceptical sheriffs and judges their first opportunity to decline to consider the merits of even sound arguments. Unfortunately many cases involve the use of devolution issue minutes as a prop for poor or non-existent arguments. ECHR implications have often not been properly understood and equally often not properly argued. There is

4 a recent example in the case of King v PF, Dunoon [2011] HCJAC 109 where Lord Bonomy said:

[10] In a bill of suspension extending to 18 pages, drafted as an argument or submission rather than in the traditional style of a bill stating essential facts and making concise propositions of law, Mr Kennedy, counsel for the complainer, made a series of repetitive submissions in which there were essentially three propositions.

[22].... The very reference to article 10 in the context of this case is an example of the sort of thoughtless reliance upon the Convention that has brought it into disrepute in the minds of many.

Unless cases are pled better and with greater consistency we can expect similarly unimpressed Judges year on year. And even then we may continue to feel a backlash against outside interference, whether European or from London. During debate before our Judges there is a clear message when it comes to ECHR and especially the Supreme Court –Get your tanks off our lawn. London is mentioned with a sneer. Some of the more seriously disparaging comments do not make it into the written judgments but the sense is clear enough. Devolution issue minutes have been explicitly referred to as passports to London.

JCPC/UK SUPREME COURT

And that brings us to the other side of the devolution issue equation - the Supreme Court and, before that, the JCPC.

Earlier this year Lord Hope addressed the SYLA (http://www.supremecourt.gov.uk/docs/speech_110401_v2.pdf) and spoke of the workings of the Supreme Court:

In Montgomery v HM Advocate which was the first devolution case to reach the Judicial Committee of the Privy Council under the jurisdiction that has now been transferred to the Supreme Court, I said that members of the Judicial Committee whose background was in English law had now to exercise the intellectual discipline of thinking themselves into the Scottish system of criminal law when sitting on references or appeals from the High Court of Justiciary.

That was perhaps, to be frank, asking a bit much of them. But we do expect them to respect our judgment, and in my experience they almost always do so.

If you are interested in the Supreme Court it is worth having a look at the following links on the Guardian’s website -

5 http://www.guardian.co.uk/law/video/2011/oct/25/supreme-court-deliver-justice- video http://www.guardian.co.uk/law/2011/oct/25/uk-supreme-court-tradition- modernity?intcmp=239

These are designed to mark the 2 nd birthday of the court. My own experience of the UKSC has been extremely positive. It is one of the friendliest courts I have ever visited, including Penicuik District Court where I was once invited in for a cup of tea after court finished. The Justices are most courteous, albeit the look on their faces at times of weak argument is one which I have seen before. The court is acutely aware, to the point of self-consciousness, about the basis for, and limits of its jurisdiction.

“For today’s purposes we are Strasbourg”.

This is the mantra of the UKSC when dealing with devolution issues. When I was at the court this year Lord Hope repeatedly stressed its importance and had to do so on occasions even when the Lord Advocate was making submissions.

For all the ignorant comments by the First Minister and the CSJ, anyone watching the proceedings would be reassured about the court’s grasp of the limits of its jurisdiction.

Reading the Judgment in the case of Ambrose would be a further reassurance.

AMBROSE

Lord Hope

14. Two very important points need, however, to be made at the outset. The first is that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references. That is plain from the wording of paragraph 33 of Schedule 6 to the Scotland Act 1998 under which the references have been made, but it needs to be emphasised yet again. The High

Court of Justiciary is the court of last resort in all criminal matters in Scotland: see section 124(2) of the Criminal Procedure (Scotland) Act 1995; McInnes v HM

Advocate [2010] UKSC 7, 2010 SLT 266, para 5, Fraser v HM Advocate [2011]

UKSC 24, 2011 SLT 515, para 11. It is not our function to rule on how the circumstances referred to in each case would fall to be dealt with under domestic

6 law, although this does form part of the background.

15. The second point is that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police unless there are compelling reasons to restrict that right would have far-reaching consequences.

There is no such rule in domestic law: see para 22, below. If that is what

Strasbourg requires, then it would be difficult for us to avoid holding that to deny such a person access to a lawyer would be a breach of his rights under articles 6(1) and 6(3) (c) of the Convention. But the consequences of such a ruling would be profound, as the answers to police questioning in such circumstances would always have to be held – in the absence of compelling reasons for restricting access to a lawyer – to be inadmissible. The effect of section 57(2) of the Scotland

Act 1998 would be that the Lord Advocate would have no power to lead that evidence. I agree with Lord Matthew Clarke that this would have serious implications for the investigation of crime by the authorities: see para 116, below.

This suggests that a judgment pointing unequivocally to that conclusion would be required to justify taking that step. If Strasbourg has not yet spoken clearly enough on this issue, the wiser course must surely be to wait until it has done so.

16. Section 126(1) of the Scotland Act 1998 provides that “the Convention rights” has the same meaning as in the Human Rights Act 1998. Section 2(1) of the Human Rights Act requires this court in determining any question which has arisen in connection with a Convention right to take into account any relevant

Strasbourg case law. In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 26 Lord Slynn of Hadley said that, although the Human Rights Act did not provide that a national court is bound by these decisions, it is obliged to take

7 account of them so far as they are relevant:

“In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the

European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence.”

17. In R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para

20 Lord Bingham of Cornhill said that Lord Slynn’s observations in that case reflected the fact that the Convention is an international instrument, the correct interpretation of which can be expounded only by the Strasbourg court. From that it followed that a national court should not without strong reason dilute or weaken the effect of the Strasbourg case law. It was its duty to keep pace with it as it evolved over time. There is, on the other hand, no obligation on the national court to do more than that. As Lord Bingham observed, it is open to member states to provide for rights more generous than those guaranteed by the Convention. But such provision should not be the product of interpretation of the Convention by national courts.

18. Lord Kerr says that it would be wrong to shelter behind the fact that

Strasbourg has not so far spoken and use that as a pretext for refusing to give effect to a right if the right in question is otherwise undeniable: para 130, below. For reasons that I shall explain later, I do not think that it is undeniable that Strasbourg would hold that any questions put to a person by the police from the moment he becomes a suspect constitute interrogation which cannot lawfully be carried out unless he has access to a lawyer, which is the principle that Lord Kerr derives from his consideration of the mainstream jurisprudence: see para 146, below. But his suggestion that there is something wrong with what he calls an Ullah-type

8 reticence raises an important issue of principle.

19. It is worth recalling that Lord Bingham’s observations in Ullah were not his first pronouncements on the approach which he believed should be taken to the

Convention. In Brown v Stott 2001 SC (PC) 43, 59 he said:

“In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the

Convention is to be seen as a ‘living tree capable of growth and expansion within its natural limits’ (Edwards v Attorney General for

Canada ([1930] AC 124) at p 136 per Lord Sankey LC), but those limits will often call for very careful consideration.”

The consistency between this passage and what he said in Ullah shows that Lord

Bingham saw this as fundamental to a proper understanding of the extent of the jurisdiction given to the domestic courts by Parliament. Lord Kerr doubts whether

Lord Bingham intended that his discussion of the issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they had been pronounced upon by Strasbourg: para 128, below. I, for my part, would hesitate to attribute to him an approach to the issue which he did not himself ever express and which, moreover, would be at variance with what he himself actually said. Lord Bingham’s point, with which I respectfully agree, was that Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free-standing rights of the court’s own creation.

20. That is why, the court’s task in this case, as I see it, is to identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies.

On the other hand I rather agreed with, and certainly enjoyed, the contribution of LORD KERR:

126. The well known aphorism of Lord Bingham in para 20 of R (Ullah) v

Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 that the “duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less” has been given a characteristically stylish twist by

Lord Brown in R (Al-Skeini and others) v Secretary of State for Defence [2007]

UKHL 26; [2008] 1 AC 153 at para 106 where he said that the sentence “could as well have ended: ‘no less, but certainly no more.’” In keeping with this theme,

10 some judges in this country have evinced what might be described as an Ullah type reticence. On the basis of this, it is not only considered wrong to attempt to anticipate developments at the supra national level of the Strasbourg court, but there is also the view that we should not go where Strasbourg has not yet gone.

Thus, in the present case Lord Hope says that this court’s task is to identify where the jurisprudence of the Strasbourg court clearly shows that it currently stands and that we should not expand the scope of the Convention right further than the current jurisprudence of that court justifies.

127. Lord Bingham’s formulation of the principle expressed in para 20 of Ullah was prompted by his consideration of the effect of section 2 of the Human Rights

Act 1998 by which the courts of this country are enjoined to take into account

Strasbourg case law. Therefore, said Lord Bingham, although such case law was not strictly binding, where a clear and constant theme of jurisprudence could be detected, it should be followed because the Convention, being an international instrument, had as the authoritative source of its correct interpretation the

Strasbourg court. A refusal to follow this would “dilute or weaken the effect of the

Strasbourg case law”.

128. I greatly doubt that Lord Bingham contemplated – much less intended – that his discussion of this issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they have been pronounced upon by Strasbourg. I believe that, in the absence of a declaration by the European Court of Human Rights as to the validity of a claim to a Convention right, it is not open to courts of this country to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg has not spoken.

There are three reasons for this, the first practical, the second a matter of principle and the third the requirement of statute.

129. It is to be expected, indeed it is to be hoped, that not all debates about the

11 extent of Convention rights will be resolved by Strasbourg. As a matter of practical reality, it is inevitable that many claims to Convention rights will have to be determined by courts at every level in the United Kingdom without the benefit of unequivocal jurisprudence from ECtHR. Moreover, as a matter of elementary principle, it is the court’s duty to address those issues when they arise, whether or not authoritative guidance from Strasbourg is available. The great advantage of the

Human Rights Act is that it gives citizens of this country direct access to the rights which the Convention enshrines through their enforcement by the courts of this country. It is therefore the duty of this and every court not only to ascertain “where the jurisprudence of the Strasbourg court clearly shows that it currently stands” but to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view. Finally, section 6 of the Human Rights Act leaves no alternative to courts when called upon to adjudicate on claims made by litigants to a Convention right. This section makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right. That statutory obligation, to be effective, must carry with it the requirement that the court determine if the Convention right has the effect claimed for, whether or not

Strasbourg has pronounced upon it.

130. In this context, it would be particularly unsatisfactory, I believe, if, because of an Ullah-type reticence, we should feel constrained not to reach a decision on the arguments advanced by the respondents to these references just because those very arguments are likely to be ventilated on behalf of the applicant in ECtHR in

Abdurahman v United Kingdom application no 40351/09 and we cannot say how

Strasbourg will react to them. If the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited

12 from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable. I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so.

I would like to see this approach developed to help us to avoid attempts to achieve only minimum compliance, with the floor seen as a ceiling.

Another related problem is that, at times, we have become too bogged down in the source of answers, rather than whether they are right. This was especially so earlier this year when the FM and CSJ chose to speak out about the UKSC. I will come back to that in a while.

In recent discussion of the Supreme Court and ECHR, Lord Judge told the Constitution Committee:

“I would like to suggest that maybe Strasbourg shouldn’t win and doesn’t need to win, that the court of Luxembourg has to win because the legislation says so,” and says so “unequivocally”.There is yet a debate to happen, it will have to happen in the Supreme Court, about what we really do mean in the Human Rights Act, what Parliament means in the Human Rights Act when it said that the courts of this country must ‘take account’ of the decisions of the European Court of Human Rights.

“I myself think it’s at least arguable that, having taken account of the decision of the court in Strasbourg, our courts are not bound by them. We have to give them due weight, and in most cases obviously we would follow them, but not, I think, necessarily.”

In contrast, the President of the UKSC, Lord Phillips, said: “In the end, Strasbourg is going to win so long as we have the Human Rights Act, and the Human Rights Act is designed to ensure that effect is given to that part of the rule of law which says we ought to comply with our conventions.” Lord Phillips, in an interview with The Guardian , also said :

“It’s quite plain that, so far as issues of the European convention on human rights are concerned, we are not really supreme…The Strasbourg court has the last word. It gives the definitive decisions on the scope and meaning of the convention … That does not mean that we have slavishly to follow every decision that the Strasbourg court makes. Sometimes we feel it’s desirable that there should be some debate with that court. We feel that if we express our own views on a particular issue, the Strasbourg court may reconsider the position it has taken, and it has done so in the

13 past.” We are currently awaiting the outcome of just such a reconsideration by the Grand Chamber at Strasbourg in relation to the use of hearsay evidence.

The wording was chosen carefully by Parliament. A key aim of the HRA was to “bring rights home “. This meant rather than having to go to the European Court of Human Rights in Strasbourg, people in the UK could enforce their rights in domestic courts. And, just as importantly, UK judges could begin to develop their own case law on human rights and so not have to rely on Strasbourg and its impartial understanding of UK social issues.

NO EASY ANSWERS

The principles involved in argument at the UKSC are by no means straightforward. There may be no clearly right answer. The Ambrose case is another example of the difficulties, with Lord Kerr taking a stance on principle which was entirely at odds from his fellow Justices. This may be reassuring on some levels but it is not always entirely helpful.

The UKSC has adopted an approach which has been inconsistent at times, for example, for a while, following the line of the Scottish courts in delay cases before turning back the clock in a manner consistent with the English approach. Previously the position in Scotland was much stronger than in England because of the construction of s.57 (2) of the Scotland Act and its application to cases involving a breach of the “reasonable time” requirement of Article 6. Indeed it is probable that the majority of Devolution Issues for several years after 1999 related to delay, certainly in relation to those which have been successful. However, at the end of 2007 the JCPC issued its decision in the case of Spiers v Ruddy 2008 SCCR 131

Lord Rodger of Earlsferry

The basic difference of opinion between the majority and the minority in both R v HM Advocate 2003 SC (PC) 21 and Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72 was over the nature of the accused’s article 6(1) Convention right to a fair and public hearing for the determination of the criminal charge against him “within a reasonable time”. In particular, if the Crown delayed so that more than a reasonable time was allowed to go by, did this mean that – as I held - the prosecutor was, irretrievably, in continuing breach of the article, even if he then took steps to proceed to trial as expeditiously as possible? Or - as the seven-man majority held in Attorney General’s Reference - did any violation of the right cease when the prosecutor took steps to expedite the trial?

At the time of the two decisions, the case law of the European Court cast little light on the problem. Since then, the position has become clearer. Admittedly, as Mr Coppel pointed out, the European Court cases concern the nature of the appropriate remedy, rather than the nature of the violation of article 6(1). Nevertheless, they do point in favour of the view adopted by the majority in the Attorney General’s Reference. In other words, if the prosecutor speeds up, he is no longer delaying the proceedings and so is no longer violating article 6(1). In particular, in Kudla v Poland (2000) 35 EHRR 198, a case of delay in criminal proceedings, the European Court said, at p 237, para 158, that a remedy will be “effective” for purposes of article 6(1) if it prevents the alleged violation “or its continuation”. The Court went on to indicate, in para 159, that none of the remedies open to the applicant under Polish law “could have expedited determination of the charges” against him. This approach has been adopted in subsequent cases. It shows that expediting proceedings can indeed prevent the “continuation” of any violation. That is inconsistent with the view that the prosecutor is, inevitably, in continuing breach of article 6(1) once he has delayed unduly, so that the situation can only get worse. Since the prosecutor is not in continuing breach in such circumstances, section 57(2) of the Scotland Act 1998 has no application

It looked likely at that point that the impact of the Supreme Court would diminish from the Sinclair and Holland cases in 2005 where Scottish convictions were quashed for the first time by a court sitting outside Scotland. With some dexterity on the part of the JCPC and even alacrity on the part of our own Appeal Court it was looking as though we would be in almost exactly the same position as before the Scotland Act came into force. Cadder changed the game again.

I cannot mention some of the difficulties with the jurisdiction of the UKSC without saying a little about the attempts by the HCJ to peg it back through clever interpretation of the Scotland Act.

“Ah, said the HCJ, our business is really none of their business because we are dealing with completely different things.”

NAT GORDON FRASER v HER MAJESTY'S ADVOCATE (6 May 2008) http://www.scotcourts.gov.uk/opinions/2008HCJAC26.html

L J-C

Ground of appeal 2 - non-disclosure

The test in an appeal based on non-disclosure

[190] For the purposes of this appeal I shall assume in the appellant's favour that the Crown had a duty to disclose the information that came to light in PC Lynch's Elgin precognition and that it did not discharge that duty merely by including him on the Crown list. I shall also assume in the appellant's favour that if the information in that precognition had been disclosed to the defence, that in turn would have led to the precognoscing of WPC Clark on the question of the rings and to an analysis of the video such as was undertaken by Miss Woods and Dr Bowie.

[191] Counsel for the appellant at first submitted that an appeal based on non- disclosure should be decided on the test that was formulated in Holland v HM Adv (supra), namely whether it could not be said that the undisclosed evidence "might not possibly have affected the jury's verdict" (ibid, Lord Rodger of Earlsferry at paras [82]-[83]). That raised the question whether in cases such as Holland and Sinclair, a conviction can be quashed on a different criterion from that established in Cameron v HM Adv (supra).

[192] The advocate depute indicated that the Crown hopes that the decisions of the Judicial Committee in Holland v HM Adv (supra) and Sinclair v HM Adv (supra) will be reconsidered on some opportune occasion. In essence, the Crown submits that the jurisdiction of the Judicial Committee to determine a devolution issue under article 6 is different from the jurisdiction of this court to determine whether there has been a miscarriage of justice under section 106 and that the correct interpretation of these respective jurisdictions was set out by Lord Justice General Hope in Montgomery v HM Adv (2000 SCCR 1044, at pp 1107F-1108A).

[193] Since there is no devolution issue in this appeal, I need not consider the points that the advocate depute raised about the test applied in appeals to the Privy Council. This appeal falls to be dealt with solely as an appeal under section 106 based on the contention that there has been a miscarriage of justice. If I am right, the test set by Lord Justice General Emslie in Cameron v HM Adv (supra), and followed in this court for over 20 years, applies to both grounds of appeal.

[194] We raised this point with counsel for the appellant during his reply to the advocate depute. He then said that he was content not to base his submissions on Holland v HM Adv (supra) or Sinclair v HM Adv (supra), and to confine them to section 106 and the case law on it. He also accepted the contention of the advocate depute that if the court were to hold that there had been non-disclosure, ground of appeal 2 fell to be treated as a new evidence appeal and in effect as a duplication of ground 1.

[195] In my view, that is correct. The appellant must establish that the Crown's non-disclosure caused there to be a miscarriage of justice. To do that he must

16 demonstrate the importance and significance of the undisclosed evidence to the crucial issues at the trial. At that stage the non-disclosure ground becomes a new evidence ground and falls to be decided on the general principles that I have outlined.

Did the failure to disclose cause a miscarriage of justice?

[196] On the assumption for the purposes of this discussion that there was a failure by the Crown to disclose the evidence now founded on by the appellant, I consider, for the reasons set out in my conclusions on ground of appeal 1, that the Crown's failure to disclose that evidence did not result in a miscarriage of justice.

Gair v HM Adv (2006 SCCR 419)

[197] In the course of the discussion the question arose whether in Gair v HM Adv (supra) this court imported the test in Holland v HM Adv (supra) in appeals based on non-disclosure. That case related to new evidence, obtained under disclosure, in the form of police statements of, and personal information relating to, a prosecution witness. Like this case, it raised no devolution issue. The court observed that the "possibility that the jury might have reached a different verdict" if disclosure had been made, was real and certainly could not be excluded (Gair v HM Adv, supra, at para [39]). That echoed the words of Lord Rodger of Earlsferry in Holland v HM Adv (supra); but the court's conclusion on the special facts of the case was that the undisclosed evidence would have tended to undermine the credibility and reliability of the relevant witness's evidence and thereby cast reasonable doubt on the Crown case, and that in the circumstances the non-disclosure resulted in a miscarriage of justice (ibid, at para [40]). Although the court cited none of the authorities in its discussion and conclusions (at paras [32]-[40]), it seems to me that its overall conclusion was not inconsistent with the application of the test in Cameron (supra).

Lord Osborne

Thus, in my opinion, it is evident from this statutory structure that the Judicial Committee does not require to be concerned with the concept of a "miscarriage of justice" in determining devolution issue appeals under paragraph 13 of Schedule 6 of the 1998 Act. If, in such proceedings, it concludes that there has been a breach of Article 6(1) of the Convention by virtue of the conduct of the Lord Advocate, then, on the reasoning of Lord Hope of Craighead in Sinclair v H.M. Advocate, a conviction has been recorded in circumstances in which the prosecutor had no power to seek it.

Such a conviction must surely be regarded simply as a nullity, as opposed to a miscarriage of justice, a concept which, it respectfully seems to me, implies a validly conducted prosecution, but one in which justice has not been done, in the particular circumstances of the case.

[219] In any event, in my opinion, the relationship between the concepts of a miscarriage of justice, recognised in section 106(3) of the 1995 Act and an unfair trial in terms of Article 6(1) of the Convention is not straightforward. Plainly they are not co-extensive. An unfair trial may not result in a miscarriage of justice. That would be so where, for example, that trial concluded with an acquittal, since the concept of miscarriage of justice comes into play only following a conviction on indictment, as provided in section 106(1) of the 1995 Act. Furthermore, a trial may be completely fair yet result in a conviction which must be regarded as a miscarriage of justice, as for example where the provisions of section 106(3)(a) operate.

[220] What importance, if any, it may be asked, attaches to these considerations in the present context. The answer, in my view, is that it is potentially confusing and therefore unhelpful, in criminal appeals under section 106(3)(a) of the 1995 Act to seek to rely on dicta pronounced in appeals under paragraph 13 of Schedule 6 to the 1998 Act, since the issues which this court must determine in the former type of appeal, which I have described in some detail, are inevitably quite different from those issues which the Judicial Committee require to determine in the latter. For all these reasons, I do not find anything said in Holland v H.M. Advocate in the Privy Council to be of any assistance in this case.

Happily, the question was fairly quickly disposed of by the UKSC.

McInnes v HMA [2010] SCCR 286

Lord Hope

4. At first sight it might appear that the question whether the High Court of

Justiciary applied the correct test when disposing of an appeal does not give rise to a devolution issue at all. Devolution issues as defined in para 1 of Schedule 6 to the Scotland Act 1998 mean questions about the legislative competence of the

Scottish Parliament and the exercise or non-exercise of functions by members of the Scottish Executive. They do not extend to things that are done or not done by the courts. As I said in Robertson v Higson [2006] UKPC D2, 2006 SC(PC) 22, para 5, however, it can be taken to be well settled that it is open to the Supreme

Court to determine under para 13 of Schedule 6 to the Scotland Act 1998 not only the devolution issue itself but also questions which are preliminary to and consequential upon the determination of that issue: see also Mills v HM Advocate

[2002] UKPC D2, 2003 SC (PC) 1, para 34. The question of remedy forms part of the devolution issue. So too does the test that is to be applied in determining whether the appellant is entitled to that remedy.

5. In some cases these questions will give rise to no special features of Scots criminal law or practice. In others, as in this case, the reverse will be true. That does not mean that it is not open to this Court to determine the question. But we must be careful to bear in mind the fact that the High Court of Justiciary is the court of last resort in all criminal matters in Scotland, and that when we are dealing with questions of this kind it is the law of Scotland that must be applied: see

Montgomery v HM Advocate [2000] UKPC D2, 2001 SC (PC) 1, pp 12, 13;

Robertson v Higson, paras 5, 6. In Spiers v Ruddy [2007] UKPC D2, 2009 SC (PC)

1, para 16 Lord Bingham of Cornhill referred to the need for reticence, given the

Board’s restricted role in deciding devolution issues. It is not for this Court to comment on the test that is applied in fresh evidence appeals which do not raise a devolution issue. Its task is to identify the test where the complaint is of nondisclosure in violation of the article 6(1) right to a fair trial.

18. The question for this court, given that there was a failure in the duty of disclosure, is what the correct test is for the determination of the appeal. It does not

19 extend to the question whether the test, once it has been identified, was applied correctly.

The test

19. Two questions arise in a case of this kind to which a test must be applied.

The tests in each case are different, and they must be considered and applied separately. The first question is whether the material which has been withheld from the defence was material which ought to have been disclosed. The test here is whether the material might have materially weakened the Crown case or materially strengthened the case for the defence: HM Advocate v Murtagh, para 11. The Lord

Advocate’s failure to disclose material that satisfies this test is incompatible with the accused’s article 6 Convention rights. In the case of police statements, the position is clear. Applying the materiality test, all police statements of any witnesses on the Crown list must be disclosed to the defence before the trial:

McDonald v HM Advocate, para 51.

20. The second question is directed to the consequences of the violation. This is the question that arises at the stage of an appeal when consideration is given to the appropriate remedy: see Spiers v Ruddy 2009 SC (PC) 1. In that case it was the reasonable time guarantee that was in issue, but I think that the ratio of that case applies generally. As Lord Bingham of Cornhill put it in para 17, the Lord

Advocate does not act incompatibly with a person’s Convention right by continuing to prosecute after the breach has occurred. A trial is not to be taken to have been unfair just because of the non-disclosure. The significance and consequences of the non-disclosure must be assessed. The question at the stage of an appeal is whether, given that there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair and, as Lady

Cosgrove said in Kelly v HM Advocate, para 35, as a consequence there was no miscarriage of justice: see section 106(3) of the Criminal Procedure (Scotland) Act

1995. The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict.

21. It has been suggested that Lord Rodger’s observations in Holland v HM

Advocate, para 82, indicate that it is for the Crown to show that the non-disclosure could not possibly have affected the jury’s verdict: Holland v HM Advocate 2005

SCCR 417, commentary by Sir Gerald Gordon, para. 5. If so, the effect would be to set a relatively low threshold. In my opinion, however, his observations must be read in their proper context. In para 43 Lord Rodger said that the ultimate question was whether the trial as a whole was fair. He then dealt with the Crown’s obligation of disclosure in para 64, where he referred to the accepted test as to whether the information was material. Having done this, he returned to the issue of fairness. In para 77 he said:

“It is now necessary to consider whether, taken as a whole, the appellant’s trial was fair in terms of article 6(1).”

Having examined the significance of the Crown’s failures in paras 78-85, he said that he had arrived at the conclusion that the failures to disclose and the Advocate

Depute’s reliance on dock identifications were incompatible with the Convention right since, taken together, they had resulted in an unfair trial.

22. The sentence in Holland v HM Advocate, para 82 on which Mr Carroll relies (quoted in para 14, above) was directed to the use that might have been made of the outstanding charges to undermine the appellant’s credibility. The issue with which he was dealing here was the materiality of that information. This was a necessary step in the assessment of the question whether there had been a fair trial.

The words “might not possibly have affected the jury’s (majority) verdict” are used. But Lord Rodger does not say that this is the test to be applied in determining whether the trial as a whole was fair. In any event, I do not think that it would be the correct way of describing it.

23. Commenting on what Lord Rodger said in para 82, the Lord Justice General said in the passage which I have quoted from para 20 of his opinion (see para 16, above) that it would be a misreading of Lord Rodger’s words to conclude that the threshold for reversing the verdict of the jury in non-disclosure and analogous cases is low. I would endorse this assessment. The threshold which must be crossed is the same as that which applies in any case where it is maintained that, because there was a violation of article 6(1) that affected the way the trial was conducted, there has been a miscarriage of justice. I also agree that, in a case of that kind, the question whether there has been a miscarriage of justice and the question whether the trial was unfair run together. It is axiomatic that the accused will have suffered a miscarriage of justice if his trial was unfair. The statutory ground for setting aside the jury’s verdict under section 106(3) of the 1995 Act enables the appeal court to provide an effective remedy to the appellant for the breach of his Convention right. This is done when the appeal court makes its own assessment as to whether the trial as a whole was fair. It will allow the appeal on the ground that there was a miscarriage of justice if it concludes that it was not.

24. The Lord Justice General then said at the end of para 20 that a robust test was required. The test which he identified was whether there was a real risk of prejudice to the defence. These remarks, I would respectfully suggest, need some explanation. They invite questions as to how robust the test must be and how the real risk is to be identified. They need to be taken just one step further to indicate more precisely the test that should be applied. The question which lies at the heart

22 of it is one of fairness. The question which the appeal court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant’s Convention right, the jury’s verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome - if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence.

Conclusion

25. Although I have suggested that the description of the test which the Lord

Justice General gave at the end of para 20 was incomplete, it is clear from the discussion that follows that the test that the appeal court actually applied was the correct one. As I have already observed, it is not for this court to say whether the test was applied correctly. But it is open to it to examine the reasons given by the appeal court for concluding that there had not been a miscarriage of justice to see whether they show that it applied the correct test. Having considered what the Lord

Justice General said in paras 21-22, I am entirely satisfied on this point. There was a thorough examination of all the relevant issues, and the conclusion that the appeal court came to was one which a court, applying the correct test, could be expected to have come to. I would dismiss the appeal.

It is reassuring that we do not have to spend too much time now splitting hairs debating the difference between a miscarriage of justice and an unfair trial. In seeking to make the distinction, and in using procedures and time-limits to restrict access to the UKSC, I believe that the HCJ has done great damage to its credibility as a practical and effective protection for the development of human rights.

It seems to me that the Scottish courts started slowly in embracing ECHR, but at least with an open mind. After a while they seem to have seen it as an opportunity to exert some greater influence over unsatisfactory aspects of the system, for example in relation to delays caused by under-resourcing of the Crown. And while those early decisions may have brought some improvements, our courts started to see that they had some unfortunate consequences too. As we already had measures in place pre-ECHR to avoid some aspects of unfairness some thought that the courts were starting to impose too unrealistically high a standard on our prosecuting authorities and on the courts themselves. And so after a period of some experimentation and innovation the Scottish courts seem to have decided that things here weren’t so bad after all. And from that point, in some significant instances, the HCJ was positively obstructive to the development of human rights arguments.

A sad consequence is that in our courts the arguments most likely to succeed are those which avoid any reference to ECHR. In one case Gordon Jackson QC mentioned ECHR but only to say that he was sure the Scottish common law allowed for any remedy which was considered necessary. And with a smile from the judges he was able to continue to a successful conclusion.

The Scottish courts have not had a monopoly on antipathy to the UKSC.

SUPREME COURT STUSHIE

There is a question as to whether murmuring judges is still a criminal offence but, fortunately for the First Minister and Cabinet Secretary for Justice in Scotland, even if it is, prosecutions are rare. Perhaps even more fortunately for them they have been murmuring judges whose jurisdiction in Scottish criminal cases isn’t terribly popular with some. Some of the comments have been offensive and personal, with the Cabinet Secretary suggesting that their knowledge of Scotland is based on attending the Edinburgh Festival and the First Minister suggesting that the Scottish decisions of the Supreme Court are the work of Lord Hope alone who, he suggests, is intent on dismantling our distinctive characteristics while ignoring the views of the majority of Scottish Judges here in Edinburgh. The most sinister ad lib was the CSJ’s suggestion of withdrawing Scottish funding for the UKSC – “he who pays the piper calls the tune.”

I am still not entirely sure what to make of this stramash. It smelled political. Unfortunately the contributions from our Government ensured a debate generating a blinding amount of heat, thereby masking the possibility of sensible discussion about improvements to the workings of this jurisdiction.

It was perhaps unfortunately for the UKSC that it had to consider the Cadder case. The court’s decision saw Scotland brought into line with the rest of Europe in terms of solicitor access for suspects at police stations – something we didn’t have as a

24 right despite almost everyone else having it and there being no good reason to exempt us from its protection. A bench of 7 judges of the High Court in Scotland had considered Salduz and decided that it didn’t apply to us because of other safeguards here. In October 2010 the Supreme Court merely pointed out the inevitable, that we were not immune from such international developments regardless of how fair we might be in other ways. There have been ripples, but these might have been mitigated if the Crown or High Court in Edinburgh had grasped the nettle. After Cadder the Government started jumping up and down again because of the Fraser decision. If you look at the case you will see that some crucial evidence was not disclosed to the defence. Our High Court decided that it didn’t matter. The Supreme Court said that the Crown’s failure to disclose meant that the trial was unfair. Hardly startling, but again it took the Supreme Court to point out what many in the legal profession thought to be obvious.

The Supreme Court and its predecessor have been a useful instrument for keeping us right on ECHR developments, without having to wait the many years for Strasbourg to tell us we have been doing something wrong. Indeed the Government overlooks the fact that the same answer as in Cadder would have been given if there was no Supreme Court and the case had gone to Strasbourg. Surely what matters is the decision rather than where it is made?

Even proud Scottish lawyers should embrace the Supreme Court for performing this necessary task. We have a strong European pedigree in Scots law. We should not, and in any event cannot, resist improvements in standards in procedural safeguards. These are coming to us through ECHR and the EU. If we embraced the idea of developing safeguards on an ongoing basis we might be useful teachers as well as students.

Judges do not speak publicly in their own defence, but I like to think of the following as a judicial reply to the FM and CSJ:

AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland)

49. The dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy. It draws its strength from the electorate.

While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the

25 country’s best interests as a whole. A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. But it shares with the devolved legislatures, which are not sovereign, the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate.

This suggests that the judges should intervene, if at all, only in the most exceptional circumstances. As Lord Bingham of Cornhill said in R (Countryside

Alliance) v Attorney General [2007] UKHL 52, [2008] AC 719, para 45, the democratic process is liable to be subverted if, on a question of political or moral judgment, opponents of an Act achieve through the courts what they could not achieve through Parliament.

50. The question whether the principle of the sovereignty of the United

Kingdom Parliament is absolute or may be subject to limitation in exceptional circumstances is still under discussion. For Lord Bingham, writing extrajudicially, the principle is fundamental and in his opinion, as the judges did not by themselves establish the principle, it was not open to them to change it: The Rule of Law, p

167. Lord Neuberger of Abbotsbury, in his Lord Alexander of Weedon lecture,

Who are the masters Now? (6 April 2011), said at para 73 that, although the judges had a vital role to play in protecting individuals against the abuses and excess of an increasingly powerful executive, the judges could not go against the will of

Parliament as expressed through a statute. Lord Steyn on the other hand recalled at the outset of his speech in Jackson, para 71, the warning that Lord Hailsham of St

Marylebone gave in The Dilemma of Democracy (1978), p 126 about the dominance of a government elected with a large majority over Parliament. This process, he said, had continued and strengthened inexorably since Lord Hailsham warned of its dangers. This was the context in which he said in para 102 that the

Supreme Court might have to consider whether judicial review or the ordinary role of the courts was a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons could not abolish.

51. We do not need, in this case, to resolve the question how these conflicting views about the relationship between the rule of law and the sovereignty of the

United Kingdom Parliament may be reconciled. The fact that we are dealing here with a legislature that is not sovereign relieves us of that responsibility. It also makes our task that much easier. In our case the rule of law does not have to compete with the principle of sovereignty. As I said in Jackson, para 107, the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. I would take that to be, for the purposes of this case, the guiding principle. Can it be said, then, that Lord Steyn’s endorsement of Lord Hailsham’s warning about the dominance over Parliament of a government elected with a large majority has no bearing because such a thing could never happen in the devolved legislatures? I am not prepared to make that assumption. We now have in Scotland a government which enjoys a large majority in the Scottish Parliament. Its party dominates the only chamber in that Parliament and the committees by which bills that are in progress are scrutinised. It is not entirely unthinkable that a government which has that power may seek to use it to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual. Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise.

Whatever the motivation, whether it related to a fear for Scottish legislation or was genuinely a misconceived concern for the integrity of Scots law, matters are now in the balance for the future of the UKSC. The question was debated very recently at Holyrood and the Scotland Bill Committee at Holyrood is presently considering gatekeeping arrangements for the UKSC. Last week the SG promised amendments to the Bill. This follows 2 consultations held by the AG which recommended no changes of any substance, and the McCluskey Review which told the SG a great deal of what it wanted to hear, albeit not everything. The reviews were predicated on misunderstanding and fuelled by panic-mongering. Among the leading panic- mongers was my old friend, Paul McBride QC. Assuming that Paul is about to join his 3rd major party in a short number of years, I am not sure why he should have any greater credibility in this area. The integrity of Scots law has not been under threat

27 from the UKSC. Indeed, I consider that its integrity is under threat from a reactionary attitude to developments in procedures to fair hearings which are crossing Europe with considerable momentum. The UKSC is merely telling us what Strasbourg otherwise will. But surely the FM, CSJ and Paul McBride QC wouldn’t make such a fuss if there wasn’t really a problem?

THE FLOOD?

As at May, since the Human Rights Act and the Scotland Act came into force, the Judicial Committee of the Privy Council, and subsequently the Supreme Court, have only heard twenty two cases, of which five were brought by the Crown. This number produced an average of two or three cases a year. Last year, the only case heard was Cadder v HMA. Of these cases, fourteen were dismissed, limiting the ability of bringing similar points back before the Court. Only eight appeals were allowed, four of which were in favour of the Crown. 1 This year’s additions to the list have all been at the instance of the Crown. There is no evidence from these appeals and the judgments handed down that the Supreme Court has extended its jurisdiction or heard cases it ought not to. Indeed it appears to us that the Supreme Court operates entirely within its special jurisdiction, and appropriately respects the position of the High Court of Justiciary.

The suggestion from the McCluskey Review of requiring certification of general public importance has raised concerns. In principle, I have no difficulty with the notion but, in practice, the Scottish Courts have dealt with such issues, for example, in the Cadder case, in a manner which leaves me entirely unconvinced that they would be able to approach the question of certification in the same mature manner as the courts in England.

THE FUTURE

Back to Lord Hope from his address to the SYLA:

What then of the future? I am as strong a believer in the virtues of the Scottish legal system as I ever was. In some respects my belief in it has been strengthened by what I have learned south of the Border. But I also believe very strongly that, if it is to be kept up to date and able to compete with the English system, our system must look outwards and not inwards as it adapts to the realities of modern life. One of the great virtues of Scots law, as a mixed system, was its willingness to adapt itself so

1 Information gained from the Privy Council and Supreme Court websites and online case search resources.

28 as to keep pace with the way things were done elsewhere. Pride in our own system is one thing; isolationism is quite another. We have much to gain by maintaining contact with the way that law is practised in England and Wales and beyond. We have much to lose if we were to raise the drawbridge and cut ourselves off from the outside world. The Supreme Court, where Justices from all three jurisdictions of the UK engage with each other on so many important and difficult issues, is there as a vital point of contact. That applies to Convention rights issues as much as it does to issues of private law. I hope that I have been able to reassure you that, from the Scots point of view, our precious legal system is indeed respected in that court and that it is secure in its hands.

Appendix 1

Petitions for special leave heard, granted & refused by the JCPC

under the Scotland Act 1998**

Total no. petitions Year Petitions granted Petitions refused heard

1998 i None recorded

1999 ii None recorded

2000 iii 1 9 10

2001 iv 2 2 4

2002 v 1 3 4

2003 vi - 3 3

2004 vii - 3 3

2005 viii None recorded

2006 ix None recorded

2007 x 1 1 2

2008 xi 4 3 7

**The official JCPC statistics for petitions heard under the Scotland Act 1998 do not specify whether the appeal is against the decision of a court of civil or criminal jurisdiction.

Appendix 2

Applications to the UKSC for PTA against a decision of the HCJ:

1 October 2009 to 14 April 2011 xii

Case name Case Panel Order date Decision ID

1. McIlvanney v HM UKSC Lord Phillips 14 April Refused Advocate 2011/00 2011 Lord Hope 13 Lord Kerr

2. Harris v HM UKSC Lord Phillips 14 April Refused Advocate 2011/00 2011 Lord Hope 06 Lord Kerr

3. Beggs v HM UKSC Lord Hope 16 Refused Advocate December 2010/02 Lord Rodger 2010 09 Lord Kerr

4. Sutherland v HM UKSC Lord Phillips 22 Refused Advocate November 2010/01 Lord Hope 2010 81 Lord Rodger

5. Allison v HM UKSC Lord Phillips 30 July 2010 Refused Advocate (No. 2) 2010/01 Lord Hope 39 Lord Rodger

6. Campbell v HM UKSC Lord Phillips 23 July 2010 Refused Advocate 2010/00 Lord Hope

Case name Case Panel Order date Decision ID

89 Lord Rodger

7. Kropiwnicki v HM UKSC Lord Phillips 23 July 2010 Refused Advocate 2010/01 Lord Hope 09 Lord Rodger

8. Gordon v HM UKSC Lord Phillips 23 July 2010 Refused Advocate 2010/01 Lord Hope 17 Lord Rodger

9. Engler v HM UKSC Lord Phillips 23 July 2010 Refused Advocate 2010/01 Lord Hope 13 Lord Rodger

10. Murtagh v HM UKSC Lord Phillips 20 May 2010 Refused Advocate 2010/00 Lord Hope 23 Lord Rodger

11. Fraser v HM UKSC Lord Phillips 20 May 2010 Granted Advocate 2010/01 Lord Hope 92 Lord Rodger

12. Doyle v HM Advocate UKSC Lord Phillips 22 February Refused 2010 2010/00 Lord Hope 10 Lord Rodger

13. Henry v HM UKSC Lord Phillips 22 February Refused Advocate 2010 2010/00 Lord Hope

Case name Case Panel Order date Decision ID

21 Lord Rodger

14. Jones v HM Advocate UKSC Lord Phillips 22 February Refused 2010/00 2010 Lord Hope 16 Lord Rodger

15. McAllister v HM UKSC Lord Phillips 22 February Refused Advocate 2010/00 2010 Lord Hope 20 Lord Rodger

16. O'Neill v HM UKSC Lord Phillips 22 February Refused Advocate 2010/00 2010 Lord Hope 19 Lord Rodger

17. King v Mirian JCPC Lord Phillips 26 Refused Watson, Procurator 2009/00 November Lord Hope Fiscal, Ayr 78 2009 Lord Rodger

18. Cadder v HM UKSC Lord Hope, 26 October Granted Advocate 2010/00 Deputy 2010 (grounds 4, 5 22 President and 8); refused Lord Rodger (grounds 6, 7) Lord Walker

Lord Brown

Lord Mance

Lord Kerr

Sir John Dyson, SCJ

UKSC Permission to Appeal applications from Scotland:

Breakdown by Month/Year and Respondent

PTA applications PTA applications with HMA as Month/Year (Scotland) respondent (criminal appeals)

October 2009 to February 1 1 2010 xiii

February 2010 to March 6 5 2010 xiv

March 2010 to April 2010 xv 0 0

May 2010 xvi 2 2

June 2010 xvii 0 0

July 2010 xviii 5 5

August 2010 None recorded

September 2010 None recorded

October 2010 xix 0 0

November 2010 xx 2 1

December 2010 xxi 1 1

January 2011 xxii 0 0

February 2011 xxiii 0 0

March 2011 xxiv 0 0

April 2011 xxv 3 2

May 2011 xxvi 0 0

June 2011 xxvii 0 0

i Privy Council Office, Judicial Committee Petition Statistics 1998: Petitions for special leave to appeal: heard, granted and refused 1998 ; available at http://webarchive.nationalarchives.gov.uk/20101103140224/http://www.privy- council.org.uk/files/pdf/JC_Key_Statistics_Petitions_98.pdf . ii Privy Council Office, Judicial Committee Petition Statistics 1999: Petitions for special leave to appeal: heard, granted and refused 1999; available at: http://webarchive.nationalarchives.gov.uk/20101103140224/http://www.privy- council.org.uk/files/pdf/JC_Key_Statistics_99.pdf ). iii Privy Council Office, Judicial Committee Petition Statistics 1999 : Petitions for special leave to appeal: heard, granted and refused 2000 (NB: This has been incorrectly headed. The sub-heading is correct); available at: http://webarchive.nationalarchives.gov.uk/20101103140224/http://www.privy- council.org.uk/files/pdf/JC_Key_Statistics_Petitions_2000.pdf . iv Judicial Committee of the Privy Council, Petitions for special leave to appeal: Disposed of during 2001 ; available at: http://webarchive.nationalarchives.gov.uk/20101103140224/http://www.privy- council.org.uk/files/other/petition%20statistics%202001.rtf . v Judicial Committee of the Privy Council, Petitions for special leave to appeal: Disposed of during 2002 ; available at: http://webarchive.nationalarchives.gov.uk/20101103140224/http://www.privy- council.org.uk/files/word/Commonwealth%20or%20other%20territory.doc . vi Judicial Committee of the Privy Council, Petitions for special leave to appeal: Disposed of during 2003 ; available at: http://webarchive.nationalarchives.gov.uk/20101103140224/http://www.privy- council.org.uk/files/word/Commonwealth%20or%20other%20territory%202003.doc . vii Judicial Committee of the Privy Council, Petitions for special leave to appeal: Disposed of during 2004 ; available at: http://webarchive.nationalarchives.gov.uk/20101103140224/http://www.privy- council.org.uk/files/word/Petitions%202004.doc .

viii Judicial Committee of the Privy Council, Petitions for special leave to appeal: Disposed of during 2005 ; available at: http://webarchive.nationalarchives.gov.uk/20101103140224/http://www.privy- council.org.uk/files/other/Petitions%202005.rtf . ix Judicial Committee of the Privy Council, Petitions for special leave to appeal: Disposed of during 2006 ; available at: http://webarchive.nationalarchives.gov.uk/20101103140224/http://www.privy- council.org.uk/files/other/Petitions%202006.rtf . x Ministry of Justice, Judicial and Court Statistics2007 (Cm 7467, 2008). The petition statistics are in chapter 1, page 18 at table 1.2. xi Ministry of Justice, Judicial and Court Statistics 2008 (Cm 7697, 2009). The petition statistics are (as with those from 2007) in chapter 1, page 18 at table 1.2: http://www.justice.gov.uk/publications/docs/judicial-court-statistics- 2008-01-chapt1.pdf . xii Details of all PTA applications which have been decided by the UKSC are available to view online at http://www.supremecourt.gov.uk/news/permission-to-appeal.html . See below for links to each individual archived report. xiii UKSC, ‘Applications for Permission to Appeal’ [October 2009 - February 2010] (News archive) http://www.supremecourt.gov.uk/docs/pta-0910-1002.pdf . xiv UKSC, ‘Applications for Permission to Appeal’ [February - March 2010] available at: http://www.supremecourt.gov.uk/docs/pta-1002-1003.pdf . xv UKSC, ‘March/April 2010: Applications for Permission to Appeal’ (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1003-1004.pdf . xvi UKSC, ‘Applications for Permission to Appeal, May 2010’ (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1005_V2.pdf. xvii UKSC, ‘Applications for Permission to Appeal, June 2010’ (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1006.pdf . xviii UKSC, ‘Applications for Permission to Appeal, July 2010’ (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1007.pdf . xix UKSC, ‘Applications for Permission to Appeal, October 2010’ (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1010.pdf . xx UKSC, ‘Applications for Permission to Appeal, November 2010’ (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1011.pdf . xxi UKSC, ‘Applications for Permission to Appeal, December 2010’ (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1012.pdf . xxii UKSC, ‘Applications for Permission to Appeal, Results January 2011’ (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1101.pdf . xxiii UKSC, ‘Applications for Permission to Appeal, Results February’ [2011] (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1102.pdf . xxiv UKSC, Applications for Permission to Appeal, Results March 2011 (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1103.pdf . xxv UKSC, ‘Applications for Permission to Appeal, Results April 2011’ (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1104_v2.pdf. xxvi UKSC, ‘Applications for Permission to Appeal, Results May 2011’ (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1105.pdf . xxvii UKSC, ‘Applications for Permission to Appeal, Results June 2011’ (News archive); available at: http://www.supremecourt.gov.uk/docs/PTA-1106.pdf .