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The Scottish Government-appointed group, tasked with reviewing the role of the UK Supreme Court in Scottish criminal cases, has published its final report. The review group, headed by Lord McCluskey, was set up by Alex Salmond after the Supreme Court decisions in Cadder v HM Advocate [2010] UKSC 43, Fraser v Her Majesty’s Advocate [2011] UKSC24 and in anticipation of the decisions in HM Advocate v Ambrose, G & M. HM Advocate v P. These cases were heard under the Supreme Court’s devolution jurisdiction (transferred from the Judicial Committee of the Privy Council by the Constitutional Reform Act 2005) and involved the determination of claims that the Lord Advocate had conducted criminal trials in a manner contrary to the accused’s Article 6 ECHR fair trial rights – and hence in breach of Section 57(2) of the Scotland Act 1998. The cases caused considerable agitation in Scotland as the Supreme Court was perceived as interfering unduly with Scottish law. Matters came to a head in June after Alex Salmond launched a serious attack on the authority of the Supreme Court and the competence of its two Scottish judges.

The report makes eleven recommendations:

1. We remain of the view that the Supreme Court should continue to have an appellate jurisdiction in relation to issues of Convention rights arising in Scottish criminal cases. However, we consider that its jurisdiction should be clearly defined and limited (para 8).

2. Subject to that limited jurisdiction, the High Court of Justiciary should remain as the final court of appeal in Scottish criminal cases (para 9).

3. The jurisdiction of the Supreme Court in Scottish criminal cases should go no further than is necessary to ensure that Convention rights are clearly defined so that they may be applied consistently by courts throughout the United Kingdom (para 10).

4. The legislative changes proposed in Clause 17 of the current Scotland Bill improve on the existing system, but only insofar as they remove from the definition of “devolution issues” the acts of the Lord Advocate in relation to criminal proceedings. Otherwise, the new system introduced by Clause 17 (3) is seriously flawed (paras 12-13).

5. We do not consider that the provisions for an appeal to the Supreme Court in respect of Convention rights should be limited to the acts or failures to act of the Lord Advocate, as suggested in Clause 17 (paras 26-29).

6. Subject to what we say below about certification, an appeal from the High Court to the Supreme Court ought to be open to any accused person claiming to be a victim of any violation of his or her Convention rights under the ECHR in relation to criminal proceedings irrespective of which “public authority” is alleged to have caused such violation (paras 27-30).

7. An appeal to the Supreme Court should be competent only where the High Court has granted a certificate that the case raises a point of law of general public importance. Such a certificate will set out the terms of the question(s) for the Supreme Court to answer (paras 45-47). However, in any appeal proceeding before it, the Supreme Court should have power to re-formulate the question(s) of law set out in the certificate and to address the questions as reformulated (para 53). I

8. In disposing of an appeal or reference to it, the power of the Supreme Court should be limited to declaring whether or not there has been a breach of a Convention right and, if there has been, to saying why this is so. If there has been such a breach, the Supreme Court should simply remit the case to the High Court to allow that court to determine the appropriate disposal in the light of its existing powers. In particular, the Supreme Court does not need and should not have all the powers of disposal available to the High Court (para 50-51).

9. It is not appropriate that the Supreme Court should be required by statute to apply the test of “miscarriage of justice” in Scottish criminal appeals (paras 31-32).

10. In the normal case, an appeal to the Supreme Court should be competent only after the conclusion of all proceedings in the courts below. In exceptional circumstances the High Court should continue to have power to refer to the Supreme Court prior to trial a point of law based on an alleged or apprehended breach of a Convention right and to seek a ruling on it (para 52).

11. The current powers of the Lord Advocate and the Advocate General to refer or require the High Court to refer devolution issues to the Supreme Court should continue and be extended to compatibility issues (para 47).

The phrasing of the report is such that both sides appear to be able to claim victory, or at least read the report according to their own existing inclinations, something which is reflected in the varied media headlines.  While The Guardian ran with the headline “UK supreme court’s jurisdiction in Scotland upheld by review panel”, The Herald Scotland reported that “UK Supreme Court powers ‘must be cut for Scots cases’”. While the Report states clearly that the Supreme Court should continue to adjudicate on European Human Rights Convention breaches in criminal trials, Salmond and MacAskill have taken comfort from the recommendation that defence lawyers would need a certificate from the high court before they could apply to the Supreme Court. Such a recommendation has not met with universal support however, Michael Clancy – the director of Law Reform at the Law Society of Scotland-  said:

“We do not agree with the Review Group’s recommendation that appeals to the Supreme Court should only be granted by the High Court through granting a certificate of general public importance.  Individual human rights are just that – individual, these should not be assessed against the test of general public importance.”

The lack of verbal fireworks in response to the report’s publication suggests that the summer months may have done much to sooth some of the passions that were running so high in July, and that the Report has done valuable work in laying out a potential compromise. On the other hand, it may be that both sides are reserving their fire for when the recommendations are debated as part of the Scotland Bill in the Lords.