18 December 2009

Scots Salduz appeal judgement...

Regular readers interested in my sometime Scots legal commentary might recall me mentioning the case of Duncan McLean v. HM Advocate late in October. The case had (and still has) the potential for very significant political fallout. Its central issue, broadly stated, is the extent of rights afforded by the European Convention on Human Rights, in the light of the case of Salduz v. Turkey. In particular, concerning when legal representation might become mandatory during police questioning of a suspect. You can find some explanatory references about the implications of the case in earlier posts. In the spirit of festive completeness, I thought I should draw your attention to the fact that the court handed down its final, written judgement on the 15th of December. The Lord President’s full prose opinion is available here.

Despite this, the furore-in-waiting may not entirely have been dispelled. Although generally speaking, there is no criminal appeal from Scotland to the House of Lords (as was) or the UK Supreme Court (as is), because human rights are involved, there is a devolutionary twist that lends the Supreme Court jurisdiction. The Scotland Act 1998 provides in section 57(2) that “A member of the Scottish Executive has no power ... to do any ... act, so far as the ... act is incompatible with any of the Convention rights. ...” The Lord Advocate, who indicts accused persons, is a member of the Executive. She is thus constrained to act in accordance with the Convention. If she doesn’t, she is going beyond her powers (for the Latin-lovers amongst you, ultra vires) and acting unlawfully. The new Supreme Court thus has jurisdiction, on the basis of the Scotland Act, to get involved in the controversy and potentially reverse the decision of the Scottish court. It remains to be seen whether they will hear the case or not.

Nevertheless, at least for a moment, I imagine that the Cabinet Secretary for Justice and his senior civil servants are breathing a sigh of relief.

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