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The truths they don't want you to read....

Wednesday, June 15, 2011

The Supreme Court

I'm very disappointed about the tone of the recent attacks on the Supreme Court, and especially the recent comments by Alex Salmond.

I fully understand the politics behind his comments, but that does not lessen their attempt to undermine justice.

That they have been made primarily because of one individual case that looks to be the subject of a retrial, makes the attack even less responsible.

Were I am accused or a solicitor for the accused, I would want to know that there are routes of appeal where Judges may have got it wrong, and where the best founded cases have a chance of another hearing.

No-one is suggesting that the Judges always get it right, any more than the Police are, or lawyers, or the legislation, or witness.  And sometimes the evidence can be wrong.

Is it better to leave people languishing in jail where there may have been a miscarriage of justice, rather than to reopen a case, just because it is heard in another jurisdiction?

Lockerbie was heard in another jurisdiction under Scots Law.  The Privy Council and the House of Lords (as well as the Supreme Court) are in another jurisdiction but very often heard Scottish cases which then formed accepted Scots Law.  There is an appeal route to Europe for Human Rights issues, which is held under European Law.  None of these are new.

To try to close an appeal route because of one instance where the Scottish Courts are told that they might have got it wrong is a disastrous course, no matter how you dress it up.

I had hoped that this would blow over, but it is looking more and more like being a major bone of contention where none should - or needs to - exist; and the tone of the comment is now doing no service whatsoever to the role of First Minister.


Michael Follon said...

'Lockerbie was heard in another jurisdiction under Scots Law.'

That statement is incorrect. While the trial at Camp Zeist in Holland was geographically in another jurisdiction it has to be made absolutely clear that an agreement was made between the Governments of the Netherlands and the United Kingdom that Camp Zeist was deemed to be Scottish territory for the purposes of the Lockerbie trial. This therefore means that the trial was heard in the jurisdiction of Scots Law.

Anonymous said...

"Disappointed" is rather a mild word for it. This pathetic posturing gives nationalism a bad name and bears out exactly why I have never - and will never - vote for it. Salmond is beneath contempt.

Anonymous said...

Lawyers make laws for lawyers. The tyrannical rule of the professional classes is perpetuated and the squeamish liberals have another damn thing to moan about over their expensive bottles of Chardonnay. We as a country lock them up and only we should be able to retry them. I think Salmond has insulted the uber- liberals but his comments will find resonance with many squeezed taxpayers who will ultimately have to foot the bill for human rights settlements. What does it say about our justice system that there was no stushie about the Fraser case before it went to the supreme court. Speak up at the time of the injustice and campaign hard to correct any errors in law. Scottish lawyers hang your heads in shame.

Anonymous said...

8:30pm this example and many other reasons why an Independent Scotland is one that I don't want to live in.

Anonymous said...

The so called Supreme Court of self serving geriatrics in London is just another device to make the transition to Independence that much more difficult. Sod the lot of them lawyers

Anonymous said...

Can you imagine the outrage in the home counties if the final appeal route for a questionable decision in the English high court was to the court of session in Edinburgh?

Ultimate appeal should be Strasbourg, not England.

Sanity Clause said...

Anon 9:10 - is the tin foil hat fitting well today?

Keep taking the tablets and try not to scare the children too much.

Neil King said...

Criticising the judiciary for political gain is a symptom of the immaturity of Scottish politics.

@Anon 7.21, do you know how many Scottish lawyers sit in Strasbourg?

Anonymous said...


In your rush to post a zenophobic remark you forget that the Supreme Court is a British Court. That means while there is a UK the English and Scottish Law is subject to its jurisdiction. It so happens the Court is based in London. Perhaps it would sooth your troubled mind if it was moved to Edinburgh.

At least whilst there is a Supreme Court where Scots can appeal they have an itermediate appeal rather than the Court of HR. You forget in most cases we the tax payer foot the bills.

Given some of the recent decisions in Scottish Courts I would say thank God it exists.

I shall be so glad when we get Bollockburn over and done with in2014 and the Saltaires go back in the cupboard for another 100 years.

Anonymous said...

'Recent decisions in Scottish Courts' ? You wanna read Private Eye more often. Thank fcuk for Scottish justice

Michael Follon said...

Anonymous 2:15 PM writes -

'In your rush to post a zenophobic remark you forget that the Supreme Court is a British Court. That means while there is a UK the English and Scottish Law is subject to its jurisdiction.'

There is NO such thing as 'British law' or a 'British legal system'. It is possible to get confused when reference is made to either 'British law' or the 'British legal system'. The simple fact is that there is no one thing that can be called British law or the British legal system. The phrases 'British law' and 'British legal system' are generally understood to encompass both Scots law and English law and their respective legal systems. Although there is also Welsh and Northern Irish law - Welsh law exists within the jurisdiction of English law - and their respective legal systems they are essentially variants of English law. The following extracts from the 'Kilbrandon Report' and Article XIX of the Treaty of Union in 1707 should help clarify the status of Scots law -

'74. ...By the time of the Union a well-defined and independent system of Scottish law had been established. This was recognised in the Union settlement, which provided for the preservation of the separate code of Scots law and the Scottish judiciary and legal system. Under Article XIX the two highest Scottish courts - the Court of Session and the High Court of Justiciary - were to continue, and were not to be subject to the jurisdiction of the English courts. These bodies have remained respectively the supreme civil and criminal courts in Scotland, while beneath them there is a completely separate Scottish system of jurisdiction and law courts, with a justiciary, advocates and solicitors, none of whom are interchangeable with their English counterparts...

76. ...Nevertheless the two systems remain separate, and - a unique constitutional phenomenon within a unitary state - stand to this day in the same juridical relationship to one another as they do individually to the system of any foreign country.'

SOURCE: 'Royal Commission on the Constitution, 1969-1973', Volume I, Cmnd.5460.

From Article XIX of the Treaty of Union, 1707 -

'; and that the said Courts, or any other of the like nature, after the Union, shall have no power to cognosce, review, or alter the Acts or Sentences of the Judicatures within Scotland or to stop execution of the same;'

Anonymous said...

What everyone seems to be overlooking is that (irrespective of the original intention in 1707) appeals from the civil courts to the House of Lords/Supreme Court have been uncontroversial for centuries now.

The notion of having two separate legal systems within the same country is in any event a piece of anachronistioc nonsense which ought to be gradually ironed out so we do eventually arrive at a "British legal system". Fortunately, with the prevalence of modern statutory law which is uniform over both Eng. and Scot., we are well on the way there.

Michael Follon said...

Anonymous 11:13 AM writes -

'The notion of having two separate legal systems within thesame country is in any event a piece of anachronistic nonsense which ought to be gradually ironed out...'

There are a number of significant differences between Scots Law and English Law. The following are two extracts on the issue of corroboration -

'Require corroboration for police evidence in english law courts

In England, unlike Scotland, it is possible to be convicted by uncorroborated and unsubstantiated statements, either by a police officer, or a confession. There is no requirement that this be supported by further evidence.


'Law Society of Scotland launches Corroboration Defence

The Law Society of Scotland has launched a defence of the Scots law requirement of corroboration, through which at leasttwo individual pieces of evidence are required for a criminal conviction to be secured.


How would you suggest that the issues of corroboration vs uncorroboration be ironed out?

Ask a Lawyer said...

Bear in mind that the legal system of Scotland is regarded as predominantly Romano-Dutch. It is based on principle not precedent. The law of England is Common Law, and founds upon precedent, not principle. Whilst it is correct to say that the Supreme Court is a British institution and there are some Scots lawyers there, it is not satisfactory to have decisions of the Scottish judiciary overturned by an organ which is mainly composed of people untrained in Scots Law. The point about the House of Lords is only partially correct, in that the House of Lords could not retrospectively unpick decisions of the Scottish courts (or the English Courts) But it seems the Supreme court can.
In fairness to all concerned, it would appear that this was not the intention behind the setting up of the supreme court, as it was intended only to look at "constutional" matters, eg disputes between devolved legislatures, or between them and westminster. Using it for Human Rights issues is an accident of circumstances, arising from the fact that human rights is not a devolved matter and so is reserved to westminster, and so is under the supreme court.
Finally can I point out that it is not Scotland which has a "different" legal system. It is England. Every other country in Europe uses a legal system broadly similar to Scotland, based on Roman Law.
Except England.
England is the only country in Europe to use common law.
That is why it would be infinitely preferable on the basis of jurisprudence to have human rights appeals heard in Strasbourg by lawyers trained in broadly similar legal disciplines to Scots law than in England by a majority of common law judges. Every other jurisdiction in Europe has Strasbourg as the ultimate court of appeal in this regard. It is our basic right to have the same for Scotland, not as an independent country, which it is not, but as a separate jurisdiction with a separate legal system (which it is).