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At one level the decisions of the UK Supreme Court in HM Advocate v Allison and HM Advocate v McInnes (see the case comment here) can be seen to be resolving specific technical issues which are of little general or constitutional importance other than, of course, to Scottish criminal practitioners (and their clients).

But these cases do also, it is suggested, mark an important constitutional development in that they might be said to consolidate in the UK Supreme Court a general appellate second-tier jurisdiction in Scottish criminal cases in a court situated outside Scotland with non-Scottish judges among its members.   Indeed in McInnes Lord Brown surveyed the parallel English law on the issue which was before the Court and stated:

“This, I apprehend, would be the position in English law (both as to the test to be applied – in England as to whether the conviction under appeal is unsafe – and as to the decision being one for the appeal court itself) and I can see no good reason why it should be any different under Scottish law” [36]

Lord Brown’s remarks indicate that notwithstanding that the Supreme Court was careful in McInnes to emphasize that they were considering and applying only Scots law in the appeal, there will be increasing pressure towards harmonisation of the two criminal justice systems north and south of the border when criminal appeals from Edinburgh come to London.

This will be aided by the fact that in McInnes the UK Supreme Court would appear for the first time explicitly to equate the statutory test of “miscarriage of justice” which the Scottish appeal court applies in considering appeals under the Criminal Procedure (Scotland) Act 1995 with the test as to whether there has been an unfair trial contrary to the requirements of Article 6.

Further, in contrast to the position in the rest of the UK, it is the UK Supreme Court rather than the appeal court which has the last word as to whether a Scottish criminal appeal will be heard in London.   In criminal cases before the Court of Appeal of England and Wales and the Court of Appeal of Northern Ireland, it is only possible for an appeal to be taken to the UK Supreme Court if the appeal court certifies that the appeal raises a point of general public importance.   The UK Supreme Court has no locus to review any refusal by the court below to make such certification.   By contrast if the Scottish appeal court refuses leave to appeal a devolution issue to London, the UK Supreme Court has power to overrule this refuel and itself grant the applicant special leave to appeal to it under paragraph 13 to Schedule 6 of the Scotland Act.

How has the independence, the splendid isolation/crabbed insularity (depending on one’s perspective) of the Scottish criminal justice system been brought to an end, some three hundred years into the Union in which there had simply been no possibility of any criminal appeals from Scotland to London?  It has not been by way of express legislative fiat but instead is the result of s series of apparently small – and not always consistent – steps taken over the past ten years by the Judicial Committee of the Privy Council and now by the UK Supreme Court in the exercise of its devolution jurisdiction.    The main decisions on this road are as follows:

(1)    Montgomery v HM Advocate  (19 October 2000) 2001 SC (PC) 1; [2003] 1 AC 641 (Lord Slynn; Lord Nicholls; Lord Hoffmann; Lord Hope, and Lord Clyde).   In this first devolution appeal to the Privy Council in a criminal case from Scotland Lord Hoffmann expressed doubts over whether the Scotland Act devolution jurisdiction of the Judicial Committee had properly been invoked.   The complaint to the Board was that pre-trial publicity in Scotland surrounding a murder was such as to prevent there being a fair trial taking place, contrary to the appellant’s Convention rights under Article 6.  Lord Hoffmann inclined to the view that the duty of ensuring a fair trial rested on the judge rather than on the prosecutor and accordingly the complaint could not be said to raise a devolution issue since it impugned no act of a member of the Scottish Executive.   Lord Hope’s answer to Lord Hoffmann’s doubts was to refer to and rely upon the specialities of the historic office of the Lord Advocate in Scotland – not simply the head of the criminal prosecution service but effectively a Viceroy in the political sphere exercising a quasi judicial function, such that one could say that in Scotland to receive a fair trial was a responsibility of the Lord Advocate as well as of the court.   Hence, on Lord Hope’s analysis the appeal to the Board did raise a devolution issue albeit that all the judges were agreed that the appeal should be dismissed on its merits.

(2)    The second determination of the Judicial Committee exercising its devolution jurisdiction was made one week later in Hoekstra v HM Advocate (No 3) (26 October 2000) 2001 SC (PC) 37 (Lord Slynn; Lord Hope and Lord Clyde).  In this decision the Board refused the appellant special leave to appeal on the basis that the complaint was against the decision of the Appeal Court to set aside the decision of a differently constituted Appeal Court on grounds of apparent bias but that this did not raise any matter for which the Scottish Ministers could be said to be responsible.   The Board reiterated that it was not a general constitutional court.    Instead its devolution jurisdiction was restricted to reviewing the legality of acts of the devolved administration and legislature but not of the High Court of Justiciary which remained post-devolution as the supreme court of criminal jurisdiction within the Scottish legal system.

(3)    The third devolution decision by the Privy Council in 2000 was Brown v Stott  (5 December 2000) 2001 SC (PC) 43; [2003] 1 AC 681 (Lord Bingham; Lord Steyn; Lord Hope; Lord Clyde and the Court of Session judge, Lord Kirkwood) an appeal brought by the Crown.    In this case  Lord Hope repeated and expanded upon his earlier analysis set out in Montgomery of how the lawfulness of acts of the prosecutor in criminal trials in Scotland could be properly be attacked as being in breach of duties owed by him to the accused under Article 6 ECHR to ensure a fair trial.   As such they could be said to raise devolution issues vesting the Privy Council with its devolution jurisdiction.  On this occasion Lord Hope’s constitutional analysis was concurred in by all the other members of the Board and, on the merits, the Crown’s appeal was allowed.    Oddly however what was not remarked upon was that in this decision the Convention rights vires limits laid upon the “members of the Scottish Executive” by the Scotland Act were considered to also apply to procurators fiscal carrying on summary criminal prosecutions. But procurators fiscal are expressly defined by Regulation 2 of the Scottish Administration (Offices) Order 1999 (SI 1999 No. 1127) to be “non-ministerial office- holders in the Scottish Administration” and therefore not members of the Scottish Executive. Yet in exercising its devolution jurisdiction under Schedule 6 to the Scotland Act the Privy Council is supposed to be policing the devolved competence – and specifically the Convention rights limits – placed upon members of the Scottish Executive only, not the limits placed by the Scotland Act or otherwise on other bodies or officers.       Still the question of jurisdiction and Convention rights enforceability had been conceded in the court below as the Lord Justice General, Lord Rodger, noted in Brown v Stott  2000 JC 328  at 332:

“[T]he Solicitor General [Colin Boyd QC]… stated that the Lord Advocate [Lord Hardie] had issued an instruction that the Crown should present no argument to the effect that, when acting under summary procedure, a procurator fiscal does not act as his representative and hence does not act as the representative of a member of the Scottish Executive for the purpose of sec 57(2) of the Scotland Act. The Lord Advocate’s instruction relieves us of any need to explore the exact nature of the relationship between the Lord Advocate and procurators fiscal in summary cases. I therefore proceed on the basis that, subject to sec 57(3), the procurator fiscal in this case has no power to do any act which would be incompatible with the appellant’s Convention rights.”

(4)    The second devolution decision by the Privy Council in 2001 was Follen v HM Advocate (8 March 2001)  [2001] UKPC D2; 2001 SC (PC) 105 (Lord Bingham; Lord Hope and Lord Millett) was again a refusal of a petition for special leave, though the Board suggested that it would be of assistance to them in the future if the Appeal Court could give reasons for their refusal to give leave to appeal to the Privy Council. In this case, the Convention rights argument that the appellant had not been tried within a reasonable time as required by Article 6(1) had been abandoned before the Appeal Court and so the Judicial Committee said that it simply had no jurisdiction to hear the appeal since there had been no “determination” of the devolution issue by the appeal court below such as was required by the terms of paragraph 13 to Schedule 6 of the Scotland Act. 

(5)    The second devolution decision of the Privy Council in 2002 was Mills v HM Advocate  (22 July 2002) [2002] UKPC D2, 2003 SC (PC) 1.   The Convention rights complaint in Mills was that there had been unreasonable delay in the hearing of a criminal appeal.  But the responsibility for such delay lay not with the Lord Advocate but with the Scottish Courts Administration.  The SCA cannot be said to be a member of the Scottish Executive.    It is subject to Convention rights review under and by virtue of the Human Rights Act rather than by the Scotland Act. Further the dispute before the Privy Council in Mills was not over whether there had been an unreasonable/Convention incompatible delay in the matter coming to appeal (this being admitted) but rather whether the discount in sentence applied by the Appeal Court in recognition of this delay constituted sufficient or a competent remedy.     So formally there was no “devolution issue” within the terms of Paragraph 1 of Schedule 6 for the Privy Council to resolve and rule upon. Nonetheless the Privy Council accepted jurisdiction in the case on the basis as stated by Lord Hope (at paragraph 34) that the Privy Council had jurisdiction in a devolution appeal to determine not only devolution issues properly so called but also with other legal matters which might be characterized as being “reasonably incidental to or following consequentially upon the determination of the devolution issue question”, such as the appropriate remedy to be pronounced by a court in the event of a finding of Convention incompatible action.

(6)    The third devolution case before the Judicial Committee in 2002 was R v HM Advocate  (28 November 2002) [2002] UKPC D3; 2003 SC (PC) 21 (Lord Steyn, dissenting; Lord Hope; Lord Clyde; Lord Rodger, and Lord  Walker, dissenting) in which the Board, in allowing the appeal split 3:2, with the three Scottish jades forming the majority against the two non-Scots.  This question which split the Board was whether or not the Lord Advocate had any power to initiate or continue with a prosecution after the reasonable period required by Article 6 ECHR had passed.    Lord Steyn and Lord Walker were adamant that while Article 6 gave an undoubted right to be tried within a reasonable time it did not follow from this that an accused had a Convention right not to be tried once a reasonable time had passed.  For the non-Scots any such finding of the consequences of the prosecutors delay as forever barring the possibility of a trial would bring human rights into disrepute.  The Scots were equally strong in their contention that any other finding than an unreasonable delay bar prosecution  would empty the reasonable time guarantees of Article 6 of all content.   The Scots were of the view that in any event they had no option but to order that any further criminal proceedings in Scotland be discontinued since the Lord Advocate had, by virtue of Section 57(2) of the Scotland Act, no power to act in a Convention incompatible manner. 

(7)   Attorney General’s Reference (No. 2 of 2001) (11 December 2003) [2003] UKHL 68, [2004] 2 AC 72 was an appeal before the House of Lords from the Criminal Division of the Court of Appeal of England and Wales in which the Appellate Committee sat as a bench of nine judges and split 7:2 (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Hobhouse, Lord Millett, Lord Scott of Foscote – Lord Hope and Lord Rodger dissenting).  The House of Lords concerned the same substantive Convention questions as were considered in R, namely: whether criminal proceedings may – or indeed must – be stayed on the grounds that there has been a violation of the reasonable time requirement in Article 6 in circumstances where the accused cannot demonstrate any prejudice arising from a delay.    In their judgments seven of their Lordships stated, quite unequivocally, that the previous year’s majority decision of the Privy Council in H. M. Advocate v “R” was wrong and, while accepting that they could not formally overrule the majority decision of the Privy Council in “R, they made clear their preference for the opinions of the dissenting minority of Lords Steyn and Walker in that case. Their Lordships made no reference to Section 103 of the Scotland Act 1998 which (together with Section 82 of the Northern Ireland Act 1998 and paragraph 32 of Schedule 8 to the Government of Wales Act 1998) made plain that decisions of the Judicial Committee of the Privy Council when exercising their devolution jurisdiction (such as R v. HM Advocate) were binding on the House of Lords.  The two dissenting judges in Attorney General’s Reference (No. 2 of 2001) were the Scottish Law Lords, Lord Hope and Lord Rodger, who adhered to their analyses set out in R, both as to the requirements of Article 6 and of Section 57(2) of the Scotland Act 1998 as depriving the Lord Advocate of act in a Convention incompatible manner.

(8)   In Holland v HM Advocate (11 May 2005) [2005] UKPC D1; 2005 SC (PC) 3, (Lord Bingham; Lord Hope; Lord Rodger; Lord Carswell, and Lady Hale) the Board ruled that a prosecution conducted in the name of the Lord Advocate had infringed the appellant’s article 6 Convention rights because the Crown had failed to disclose certain material information to the defence relating to two central Crown witnesses, namely remarks made by one following an identification parade and details of outstanding criminal charges against them. Taken together with the fact that the Crown relied on evidence from these witnesses who identified the accused when he was sitting in the dock during his trial, the Board held that the trial as a whole was unfair contrary to Article 6 ECHR and since a conviction from an unfair trial cannot stand quashed the conviction and remitted the cause back to the appeal court to consider any application from the Crown for a re-trial.

(9)   In Somerville v Scottish Ministers (24 October 2007) [2007] UKHL 44, 2008 SC (HL) 45 [2007] 1 W.L.R. 2734 (Lord Hope of Craighead, Lord Scott of Foscote (dissenting) Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Mance (dissenting) the House of Lords in a Scottish civil appeal held that prison governors exercising their powers under the Prisons and Young Offenders Institutions (Scotland) Rules 1994 to order the segregation of prisoners were not covered by the vires controls of the Scotland Act.  Prison governors were said to be exercising a distinct statutory function which could not be carried out by the Scottish Ministers and so any complaints that they had acted in a Convention incompatible manner could only be brought against them under the Human Rights Act and not under reference to the Scotland Act.   By the same logic, of course, Procurators Fiscal prosecuting in summary criminal trial could equally be said to be independent office holders exercising their statutory function in prosecuting in summary criminal trials.  This would mean that summary criminal prosecution would not be subject to Convention rights review by the Judicial Committee exercising its devolution jurisdiction but this point appears not to have found favour with the judges in London.

(10)    Spiers v Ruddy (12 December 2007) [2007] UKPC D2; 2009 SC (PC) 1; [2008] 1 AC 873 (Lord Bingham; Lord Hope; Lord Rodger; Lord Mance, and Lord Neuberger ) was a summary criminal prosecution before the Sheriff which was referred directly to the Judicial Committee of the Privy Council by the Lord Advocate exercising his powers under paragraph 33 of Schedule 6 to the Scotland Act 1998.  The Privy Council overturned its previsions unequivocal majority decision in R. v. H.M Advocate and falling into line with the analysis of the House of Lords majority in Attorney General’s Reference (No. 2 of 2001)  decided that the reasonable time requirements of Article 6 ECHR no longer mandated an abandonment of a prosecution where it was no longer possible to conduct a trial within a reasonable time. Lord Bingham suggested that it was better that the approach to this issue in the two jurisdictions should be the same.

(11)  McDonald (John) v HM Advocate (16 October 2008 ) [2008] UKPC 46;  2008 S.L.T. 993 the Privy Council holds that it has jurisdiction to hear a devolution issue appeal even where the Appeal court has refused to allow a devolution minute to be received and has made no determination on the Convention point which was sought to be raised before it.  Lord Hope noted (at paragraph 16) that “it is for the Judicial Committee, not for the lower court, to decide whether special leave to appeal should be given. It is also for the Judicial Committee to decide whether it has jurisdiction to entertain an application for special leave. And Lord Rodger noted that paragraph 77 that “while a failure by the Crown to disclose material may be incompatible with article 6(1), it by no means necessarily follows that the accused has not had a fair trial in terms of article 6 ECHR, or that there has been some other miscarriage of justice.”

(12)    In Allison v HM Advocate [2010] UKSC 6  the UK Supreme Court holds that it has jurisdiction to hear an appeal based on claims to Convention incompatible action by the prosecution irrespective of whether all the relevant procedural steps had been followed in the court for raising this issue and obtaining its determination on it..

We may summarise this twelve-step ten year programme in which the independence of the Scottish criminal legal system within the Union has, in all but name, come to an end thus:

(i)    The Privy Council claims a jurisdiction to rule on Convention rights violations by the prosecution in both solemn (Montgomery v HMA (19 October 2000)) and summary criminal procedure Brown v Stott (5 December 2000).

(ii)    Originally the Privy Council disavowed the suggestion that in devolution matters it was a constitutional court of general jurisdiction (Hoekstra v HM Advocate (No 3) (26 October 2000)) and held that its jurisdiction was limited by statute which meant that it could not consider an appeal to it unless there had been a determination on the issue by the court below (Follen v HM Advocate (8 March 2001).

(iii)    But the Privy Council subsequently held that it has jurisdiction to hear a devolution appeal even where the lower court has refused to hear and determine the devolution issue which has been sought to be raised before it (McDonald (John) v HM Advocate (16 October 2008) the Privy Council holds that it) and where the appellant did not ever raise the devolution issue in proper before the lower court (Allison v HM Advocate (10 February 2010)) the UK Supreme Court holds that it has jurisdiction to hear a criminal appeal on a devolution issue even where the matter has not been raised before it.

(iv)    The Privy Council has also held that it has jurisdiction to determine legal question incidental to the determination of devolution issue – such as, for example, the remedy that might properly be pronounced by the court below (Mills v HM Advocate (22 July 2002)).

(v)   And although originally holding to a strict interpretation of Section 57(2) SA as depriving the prosecution authorities in Scotland of all power to continue with a trial held in breach Article 6 (R v HM Advocate (28 November 2002)) the Privy Council has subsequently held that a trial may still be valid even if held under condition in which the prosecution were in breach of their Article 6 duties (for example, of disclosure) provided that the procedure overall could be said to have been fair (Holland v HM Advocate (11 May 2005))

(vi)    Finally, the Privy Council has now assimilated the test applied by it in devolution issue criminal appeal under reference to the “core rights” of Article 6 with the statutory appellate jurisdiction exercised by the Scottish criminal appeal court result under reference to in section 106(3) of the Criminal Procedure (Scotland) Act 1995 (McInnes v HM Advocate 10 February 2010).  

These steps in the evolution of the devolution jurisdiction of the Privy Council and now the UK Supreme Court mean that there are few if any criminal cases in Scotland in respect of which the London based court may claim jurisdiction and pronounce a remedy, whether affirming, modifying or overturning the decision of the Scottish criminal appeal court, whether on an accused’s appeal or that of the Crown.

Whether this development is seen as a good or a bad thing depends on one’s perspective. At the moment it seems to be only the judges in Scotland have expressed their opposition to the development of a court with full appellate jurisdiction over it (see here).  The intellectual calibre and experience in the criminal law of Scotland of the two Scottish Justices (Lord Hope and Lord Rodger) who currently sit on the UK Supreme Court is unrivalled.  But what has now been crafted is an institutional change which opens up Scottish criminal law and procedure to external scrutiny by non-Scots who will form the majority in most appeal to London.  This will inevitably lead to pressure for greater harmonization as between Scotland and the rest of the United Kingdom.   It is not self-evident that this should be a matter for any great regret.