Case Comment: Macklin v Her Majesty’s Advocate  UKSC 77
28 Friday Oct 2016
As is well known, the jurisdiction of the Supreme Court in Scottish appeals has been substantially reduced. Changes were made in criminal appeals by the Scotland Act 2012 and in civil appeals by the Courts Reform (Scotland) Act 2014. The statutory changes reflect a growing unease about the role of the Supreme Court in Scots cases.
In June 2011 Kenny MacAskill MSP, the then Sottish Cabinet Secretary for Justice complained that the Scottish legal system was; “undermined routinely by a court that sits in another country and is presided over by a majority of judges who have no knowledge of Scots law, never mind Scotland … a court in London that is made up of a majority of judges … who may have visited here for the Edinburgh Festival”. This observation reflected discontent with the unanimous decision in Cadder v HM Advocate  UKSC 43,  1 WLR 2601 where the Supreme Court held the Scottish police’s practice of interviewing suspects without access to legal advice was incompatible with the European Convention on Human Rights and was, as such, unlawful under the Scotland Act 1998. Lords Hope and Rodger wrote the two main judgments in the Supreme Court overruling the unanimous decision of the seven-member Appeal Court in HM Advocate v McLean  HCJAC 97, 2010 SLT 73.
Discontent also flared when the Supreme Court allowed the appeal of Nat Fraser against his conviction for murder (Fraser v HM Advocate  UKSC 24) on the grounds that it disagreed with the High Court of Justiciary on the consequences of the admitted non-disclosure in that case. The First Minister Alex Salmond said that the “increasing involvement of the UK Supreme Court in second guessing Scotland’s highest criminal court of appeal” was totally unacceptable. Fraser has since been retried and convicted.
Recent legislative changes
The changes in the Scotland Act 2012 sought to ensure that the High Court of Justiciary would retain the power ultimately to resolve criminal cases on their merits once the Supreme Court has determined any legal question in relation to ECHR or EU law at issue.
The power to appeal in civil cases has also narrowed. Since 22 September 2015, appeals against decisions from the Inner House of the Court of Session (Scotland’s upper appeal court) require permission. Previously appellants from Scotland had an automatic right of appeal in civil matters, provided that two advocates certified an appeal as reasonable. This led to Scottish civil cases forming a significant proportion of cases before the Supreme Court (17% of the cases decided between 2009-2013). It is expected that the requirement for permission will lead to a significant fall in work load.
However these legislative changes do not appear to have resolved the tensions in Scotland. In April 2015 Lord Carloway, then Lord Justice Clerk (the second most senior Judge in Scotland) and now the Lord President and Lord Justice General (the most senior judge of the Supreme Courts of Scotland and head of the Scottish judiciary), described the Supreme Court as a; “relatively remote, far removed” institution with a “depressing influence” on the Scottish legal system.
UKSC decision in Macklin
The Supreme Court decision in appears to reflect an increased sensitivity to the concerns expressed in Scotland and confirms a deepening reluctance to intervene in decisions in criminal cases in Scotland.
It also confirms a modern marked reluctance on the part of non-Scots Judges to write independent judgments in Scottish cases. In Macklin the two judgments were delivered by the two Scottish members of the tribunal; Lord Reed (one of the two Scottish permanent Supreme Court Justices) and Lord Gill (one of two Scottish members on the Supreme Court’s Supplementary panel and the former Lord President and Lord Justice General). The apparent self-denying ordinance on the part of the other Justices to write independently may be politically correct but it would be disappointing if the Justices from other constituent parts of the United Kingdom were to become unduly deferential to their Scottish colleagues on issues where their expertise in EU or ECHR may legitimately be brought to bear. Historically the non-Scots Judges in the House of Lords and Supreme Court have overcome earlier reluctance to write in Scots cases. From 1993-2002 non Scots Judges wrote in 24% of cases but that figure rose to around 40% from 2003-2013 (Final Judgment (2013), Alan Paterson, pp 238–9 – and cf Final Appellate Jurisdiction in the Scottish Legal System (2010)). It now appears that the percentage is once again falling and may yet fall further.
The Supreme Court confirmed in Macklin that, even though it has had power since 2012 to determine compatibility issues under the Criminal Procedure (Scotland) Act 1995 in criminal proceedings where an issue arises whether a public authority has acted in accordance with ECHR or EU law, it will not interfere with any decisions taken as a consequence of those compatibility issues. Thus if (as was the case in Macklin) the Scottish Courts have correctly identified the relevant ECHR or EU legal principles by reciting the words of the relevant test accurately, then the Supreme Court will not review the decision at all.
The Supreme Court described its task as being to decide whether the High Court of Justiciary had adopted the correct legal test and not whether it then applied that test correctly on the facts. This rendered the debate in Macklin relatively sterile. The High Court had followed the majority view in McInnes v HM Advocate  UKSC 7, faithfully reciting that, in relation to non-disclosure, the question was whether the material was material which ought to have been disclosed in the sense that it might have materially weakened the Crown case or materially strengthened the case for the defence. If that test was satisfied, the question was then whether, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict. Since the High Court had posed these questions correctly, the Supreme Court declined to look at the reasoning any further. It would not permit the finality accorded to the High Court’s decisions to be undermined by allowing challenges to the correctness of the High Court’s application of the appropriate test to be dressed up in the guise of arguments that it had identified the test but failed to apply it .
The decision in relation to the question of the dock identification in Macklin was even more cursory. Since the question of law was whether, looked at as a whole, Macklin’s trial was fair in terms of article 6, there was not possibility of reviewing the safety of the identification procedure or its fairness, provided only that the High Court had asked itself whether the procedure as a whole was fair. The High Court had correctly identified the issue of fairness. The Supreme Court was accordingly unprepared to contemplate whether the dock identification had led to unfairness.
It appears that the scope for any appeal on the merits in a Scots criminal case before the Supreme Court is non-existent. The Supreme Court is not merely applying a margin of appreciation to reflect the fact that the Scottish Courts may be better placed to judge what fairness may require in the context of Scottish criminal trials, it will not exercise any independent judgement on anything other than the pure EU or ECHR legal issues.