Since a devolution jurisdiction in Scottish criminal matters was conferred upon the Judicial Committee of the Privy Council, by the coming into force of the Scotland Act 1998 in mid-1999, the possibility of taking appeals to London in Scottish criminal cases has become an increasing source of irritation in certain quarters in Scotland.

This devolution jurisdiction was first exercised by the Privy Council to rule on allegations of Convention rights violations by the prosecution in both solemn procedure (Montgomery v HMA 2001 SC (PC) 1, 19 October 2000) and summary criminal procedure (Brown v Stott 2001 SC (PC) 43, 5 December 2000).    In the former case the accuseds’ appeal to London was unsuccessful.  In the latter case it was the Crown who successfully invoked the Privy Council jurisdiction to overturn a decision of the Criminal Appeals Court in Edinburgh which had ruled that the provisions requiring individuals on police request to identify (themselves as) the driver of a motor vehicle contravened the Convention privilege against self-incrimination.

In the ten years or so since these first cases the number of Scottish substantive criminal appeals and references heard in London (now by the UK Supreme Court to which the devolution jurisdiction of the Judicial Committee of the Privy Council was transferred by the Constitutional Reform Act 2005) has averaged no more than two or three per year.     All of these criminal cases involved the court determining claims that the Lord Advocate (and those acting in her name or under her authority in criminal prosecutions) 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.      But the collective constitutional/psychological impact of even these few decisions has been of significance.   The cases mark the fact that the Scottish criminal justice system has been made subject – for the first time since the 1707 Union – to some degree of external scrutiny by other UK judges who are not trained and formed within the Scottish legal system.   As such the issue has been a rallying point for Scottish legal nationalists – even those of apparent unionist political persuasion.    In their contribution to this debate in submissions made to an Expert Group set up by the Advocate General for Scotland late last year to consider these issues, the Scottish Law Commission has said this:

Section 57(2) is, standing the other provisions of the Scotland Act and of the Human Rights Act to which we refer below, an unnecessary provision. Like all unnecessary provisions, it has a tendency to go septic. ….

Nor has the jurisdiction of the Supreme Court assisted the process of ensuring that criminal proceedings in Scotland are conducted in accordance with Convention rights.  Without that jurisdiction, the High Court would still be subject to the control of the European Court of Human Rights in Strasbourg, to which questions as to compliance with the Convention should be directed.

Scots criminal law is a jurisdiction which is not only constitutionally separate from English criminal law.  Many of its practices and procedures differ substantially from those of English law. There is no more reason why a particular feature of Scots criminal law need be the same as any feature of English criminal law in order to comply with the requirements of the Convention as there is that any feature of either system should be the same as a feature of Russian law to achieve that purpose.

[T]he rationale for civil appeals to the House of Lords is shrouded in constitutional mystery, but it is an established historical fact; and it is the case that, at least in some areas, the principles which inform civil law in the two jurisdictions are similar.  …  But there is no such historical precedent or similarity of (some) principle in relation to criminal matters.  The result is that careful decisions of a large bench of the judges of the High Court of Justiciary, taken after a thorough consideration of the history and background of Scots criminal law, can be overruled by a bench, a majority of which comprises judges with no experience in that system.

The judges of the Court of Session have said this

In McDonald v HM Advocate Lord Hope of Craighead held that a decision by the High Court of Justiciary not to entertain and determine a devolution issue that had been intimated to it could be treated as a “determination” of the issue for the purposes of paragraph 13 of Schedule 6 to the Scotland Act 1998;  this might be thought a somewhat Jesuitical position. …

[A] position has now been reached in which, provided that some aspect of a decision by the Criminal Appeal Court can be characterised as the “determination of a devolution issue”, in however artificial a sense, the whole merits of such a decision may be brought for review before the Supreme Court. It can therefore now be said that, by a series of incremental decisions, taken on the basis of the statutory provisions under discussion, a major constitutional change has already been brought about in relation to the existence of a right of appeal from a decision of the Criminal Appeal Court to the Supreme Court, and that without the public consultation and careful consideration that such a major constitutional change might have been expected to receive.  We cannot regard that as a satisfactory situation, or think that such a result was ever intended by those who drafted the Scotland Bill 1998 or the United Kingdom Parliament which passed it. …

We would agree that the section 57(2) vires control is a core feature of the devolution settlement in relation to the position of members of the Scottish Executive.  The exclusion from its scope of the acts of the Lord Advocate, as the head of the Scottish prosecution system would, to that extent, reduce its rôle, but, as already mentioned, we do not see criminal prosecutions, as such, raising important questions affecting the devolution settlement. We would see that change as justified”

Kenny MacAskill MSP, the SNP Government’s Cabinet Justice Secretary has said this:

The Scottish Government has serious concerns about the way that ECHR applies through the Scotland Act in criminal matters. As the Lord Advocate observes in her response, virtually any objection, challenge or point of law can be characterised as a devolution issue, potentially giving rise to a right of appeal to the Supreme Court. This has inadvertently led to the Supreme Court effectively becoming an additional appellate court on a wide range of criminal matters in Scotland. I do not believe this is what was intended at the time the Scotland Act was passed and I believe urgent action is now needed to correct the problems that have arisen. I also share the Lord Advocate’s concerns about an “industry” having developed within the legal profession to raise devolution challenges, resulting in a level of uncertainty and cost that is extremely unhelpful.     Further, I have major concerns that we have been left in a position in recent cases, most notably Cadder v. HMA, where Scotland is unable to put distinctive Scottish interests directly to the European Court of Human Rights. ….

[W]e believe that it is wrong in principle that the decisions of the High Court of Justiciary should be challengeable in a way which was not possible before devolution, and we are concerned about the problems this process of challenge is creating for the Scottish courts. The Scottish Government therefore wishes to restore the position in criminal cases prior to devolution and to stem the flow of criminal cases raising devolution issues to the Supreme Court. As the First Minister indicated, the High Court should be the highest criminal authority in Scotland, as it was prior to devolution.

And the Lord Advocate has said this

“[W]hilst the courts in Scotland and the Supreme Court are all bound to act compatibly with Convention rights, the courts in Scotland will apply law against the background of the common or statutory law of Scotland and the particular unique features of Scots Law when taking into account the compatibility of any provision or act in terms of the Human Rights Act. The focus of the Supreme Court is restricted to the narrower issue of compliance and in some cases this has led to a divergence of view between the Scottish courts and the Supreme Court with a concern that the decisions of the Supreme Court may to some extent have diluted some of the jurisprudence and distinctive elements of the Scottish legal system.”

The primary concern expressed in these various submissions – which agitate, in effect, for the abolition of the possibility of Scottish criminal appeals ever going to London – appears to be one of the paramount need to preserve the integrity of the Scottish criminal justice system from the threat of external (i.e. English) influence.  The preservation of the Scottish criminal justice system as-it-always-has-been (a position that might be described as “I believe in Yesterday”) seems to be regarded by these parties as a given – an unarguable (and hence unargued) good, in and of itself.

What is perhaps of even more interest in these submissions – which may be said to seek “reform of the reform” so as to restore the status quo ante devolution – is the language in which they couch their critiques.   Their references to statutory provisions which have gone “septic”, or to judicial decisions from the court in London resting on “Jesuitical” distinctions, and which effect the “dilution of distinctive elements” of the Scottish legal system – seem to speak more of the language of ritual (im)purity, of contagion and pollution, rather than of law and justice.

Great concern is shown in these submissions for the preservation – or restoration – of the presumed integrity of the Scottish criminal justice system but little, if any, mention is made in these particular submissions as to what that system is for.     And no consideration is given as to whether justice is, or is not, being done, or furthered, by the individual decisions complained of.   Is it a good or a bad thing for the doing of justice in Scotland that, since the decision of the UKSC in Cadder v. HMA [2010] WLR 2601, persons detained by the police in Scotland have a right of access to a solicitor before they can be questioned?  Is it a good or a bad thing that, as a result of the decision of the JCPC in Sinclair v. HM Advocate, 2005 SC (PC) 28 the prosecution has positive duties of disclosure to the defence of all relevant inculpatory and exculpatory information in the hands of the Crown?     Is it a good or a bad thing that, as a result of the Privy Council’s reversal of the decision of the criminal appeal court in McIntosh v. HM Advocate, 2001 SC (PC) 89 the authorities in Scotland can continue to operate the statutory regime for drug confiscation orders ?   As we have noted it is not always the accused who has appealed to London in Scottish criminal cases.  The Crown, too, has had occasion to appeal southward from decision of the Scottish criminal courts which the Lord Advocate has disagreed with.

In the face of the concerted pressure from sectors of the Scottish legal and political establishment, the Advocate General for Scotland has now announced UK Government proposals to amend the Scotland Act on the issue of appeals to London in criminal cases but, perhaps, not in the way sought by those of a Scottish legal nationalist persuasion.   In response to the criticisms of how the current arrangements work in practice, the Advocate General proposes to remove from the Scotland Act’s devolution issues procedure acts in criminal trials which are done by or on behalf of the Lord Advocate and which are alleged to be incompatible with Convention rights and/or with the requirements of EU law.   This would, it is suggested by the Advocate General, remedy the problem of delays complained of by the judges in Scotland which result from the procedural complexities associated with lodging and intimating devolution minutes (although why these procedural complexities could not have been resolved by the judges themselves exercising their powers to regulate court procedure by secondary legislation in the form of Acts of Adjournal and Acts of Sederunt rather than requiring the Parliamentary amendment of a constitutional statute has never been explained).   This reform would also have the incidental effect, however, of removing the power of the Law Officers (including the Lord Advocate) from making direct references (under paragraph 33 of Schedule 6 to the Scotland Act 1998) to the UK Supreme Court on issues concerning the Convention compatibility of actions of the prosecution in Scottish criminal trial.

More controversially for those opposed to the UKSC influence on Scottish criminal law and practice, under the Advocate General’s proposals fresh provision is to be made in statute to confirm the jurisdiction of the UK Supreme Court to hear appeals (but not references from the lower courts or Law Officers) on matters relating to the interpretation of Convention rights and EU law and their application in criminal trials and appeals.   The Advocate General proposes the insertion of a new Section 98A into the Scotland Act which, so far as relevant, will be in the following terms

“98A The Lord Advocate and Convention rights etc: criminal appeals

(1) This section applies to an act or failure to act of the Lord Advocate—

(a) in prosecuting any offence, or

(b) in the capacity of head of the system of criminal prosecution in Scotland.

(2) In this section “compatibility” means the compatibility of such an act or failure to act with any of the Convention rights or with Community law.

(3) For the purpose of determining any question relating to compatibility, an appeal shall lie to the Supreme Court against a determination by a court of two or more judges of the High Court of Justiciary.

(4) An appeal under this section lies from any court only with the permission of that court or, failing such permission, with permission of the Supreme Court.  …

(7) Those subsections [106(3) to (3D) and 175(5) to (5D) of the Criminal Procedure (Scotland) Act 1995] (appeal to be on grounds of miscarriage of justice) apply to the Supreme Court in relation to an appeal under this section as they apply to the High Court in relation to any appeal.

(8) But an alleged miscarriage of justice may not be brought under review of the Supreme Court by virtue of subsection (7) except for the purpose of determining a question relating to compatibility.

(9) In relation to an appeal under this section, the Supreme Court has all the powers of the court below and may (in consequence of determining a question relating to compatibility)—

(a) affirm, set aside or vary any order or judgment made or given by that court;

(b) remit any issue for determination by that court;

(c) order a new trial or hearing.”

These proposed amendments do nothing to curtail the devolution jurisdiction of the UK Supreme Court, nor do they roll back any of its more “Jesuitical” case law on what is or is not a “determination” by the High Court of Justiciary.  Instead, if anything, they confirm and strengthen the position of the UK Supreme Court as an unequivocally statutorily established appellate court in Scottish criminal cases (at least as regards Convention rights and EU law).   It also places beyond doubt that appeal may be taken to the UK Supreme Court against the (Convention rights or EU law incompatible) failures to act on the part of the prosecution in criminal trial and appeals.   This is not been what was expected or sought by the Scottish Government at least when it added its voice to that of the Scottish judges pressing for Scotland Act reform.

An ad hoc Committee of the Scottish Parliament (in which the SNP (and hence the Scottish Government) has no overall majority) which was “established to consider the Scotland Bill (the “Bill”) currently before the UK Parliament, and to recommend whether the Scottish Parliament should consent to that Bill”.   At paragraph 1 this Committee asserts that the “consent [of the Scottish Parliament] is needed because, if enacted, the Bill will make changes to the powers and functions of the Scottish Parliament and of the Scottish Ministers.   This is not, in fact, the case as a matter of law, since the UK Parliament retains power to alter the devolution settlement in any manner which it sees fit and the Scottish Parliament itself has no legislative competence to amend the Scotland Act.    But as a matter of constitutional courtesy – and no doubt to further the comity among the nations making up the United Kingdom – the views of the Scottish Parliament should clearly be taken into account.   On the specific issue of the proposed changes relating to the devolution jurisdiction of the UK Supreme Court in criminal matters the ad hoc Committee has reported as to the Scottish Parliament as follows

“Proposed amendments to Section 57 and 98 of the Scotland Act 1998 – Devolution issues and acts of the Lord Advocate

203. The Committee takes note of the variance in the views expressed by the Scotland Office and the Scottish Government. The Committee believes that there is an issue that needs to be resolved in relation to devolution issues and acts of the Lord Advocate but further notes that there remain differences of opinion between the Lord Advocate and the Advocate General for Scotland on the detail of the way forward.

205. The Committee does, however, recognise that there is an issue that needs to be resolved. It welcomes the principle of what is being proposed by the Advocate General for Scotland, that prosecution actions by the Lord Advocate should be removed from the devolution issues procedure under the Scotland Act. It also found persuasive the evidence that the UK Supreme Court should have scope to hear issues that arise in relation to ECHR or EU obligations in criminal cases. We would urge the Scottish and UK Governments, and their respective Law Officers, to work closely together over the coming months and to report back to the Scottish Parliament in the new session. A further legislative consent motion will be considered then. The Committee cannot at this stage recommend that the Scottish Parliament gives its consent to the UK Parliament to legislate on this matter.”

But the issue is not yet over as the Advocate General has now announced a further consultation on the detail of his proposed amendments, asking in particular: whether there should there be a requirement that the High Court of Justiciary (sitting as the Court of Criminal Appeal) certify that a case raises a point of law of general public importance, and grants leave to appeal, before appeal is allowed to the UK Supreme Court; and in the event of certification but a refusal of leave, should it be possible to seek  leave to appeal from the UK Supreme Court.

These proposals would, in effect, cause Scotland to mirror existing English practice but, if followed through, would give Scottish criminal appeal court an effective veto over any further criminal appeals to the UK Supreme Court from Scotland.  It will be interesting to see whether those who have lamented (what they might characterize as) the pollution of the Scottish criminal justice system by the influence of the UK Supreme Court would support these further proposals which themselves follow established presumptions and procedures of English criminal law practice and so might be regarded as resulting in the further “Englishing” of Scots criminal law.

The Advocate General also seeks views of interested parties on whether   provision be made for “leapfrog” appeals – that is to say, should provision be made to allow appeal to be taken to the UK Supreme Court direct from a trial court without the involvement of the Scottish Criminal Appeal Court and under what conditions (if any) and by whom, asking specifically if such a leapfrog appeal should it be restricted to the prosecution.   The Advocate General also asks if Lord Advocate’s Reference procedure currently contained in the Criminal Procedure (Scotland) Act 1995 be extended to allow for references to the Supreme Court in cases of the kind covered by the new provisions (i.e. those dealing with issues of compatibility with Convention Rights or Community law).

The stated intention of the Advocate General is that if an amendment to the Scotland Bill to implement these proposals is brought forward, it will most likely be tabled during the House of Lords stages of the Scotland Bill later this year.    Watch this space.