Anticipating the UK Supreme Court...

As I mentioned yesterday, I don't have a lot of time on my paws to blog at the moment. However, I do intend to compose something on the ongoing furore about the jurisdiction of the UK Supreme Court before the end of the week. The whole affair is a complex and increasingly messy salmagundi, including the political ingredients of nationalism and Unionism, a sprinkle of legal nationalism which is not incompatible with a Unionist politics, the conceptual universality of human rights and the knuckly difficulty this poses in a multi-jurisdictional state like Britain; the palpable inadequacy of the High Court of Justiciary's approach to human rights claims in Scots criminal cases, in particular its total failure to take seriously the Crown's unjust follies in in the Nat Fraser case; the inarticulacy of SNP figures, in distinguishing their general point about the independency of Scots law from the outcomes of these particular cases (specifically Cadder and lately, Fraser); the disavowed Unionist politics of their opponents, who attempt to present the status quo as expert ordained and de-politicised, which it ain't; misunderstandings about the differences between the institutions of the UK Supreme Court and the European Court of Human Rights - I could go on. And on.

As a primer for thinking through the issues involved, I think it is helpful to try distinguish some of the different elements on this gristly platter. Let's start with the judgements in the Nat Fraser v. H.M. Advocate. It is worth reading, and contrasting, the 2008 judgment of Lord Justice Clerk Gill in the High Court of Justiciary appeal, and contrast it with Lord Hope's in the UK Supreme Court.  Kenneth Roy, writing in the Scottish Review, has an admirable summary of the issues raised in the case, for those who don't fancy teasing through the judicial prose.  (If you wanted to read one of the judgments from the perspective of general interest, I'd say that Lord Hope's treatment is less densely written and more generally accessible). Grown familiar with the facts and circumstances of the UK Supreme Court's judgment on Nat Fraser's devolution minute, I'd be astonished if many of you would care to defend the proposition that the High Court of Justiciary came to a fair or just decision. By dint of a precognition (which are not generally admissible in Court), the Crown acquired evidence on a key plank of their case against Fraser which seriously undermined the narrative they invited the empanelled jury to accept in convicting Fraser. This information was simply not disclosed to the accused, who was convicted without getting sight of it, and did not do so until well after the verdict. It is ludicrous to suggest that it is a failure attributable to the tardiness of defence representatives, not to ask witnesses about evidence which it had enjoyed no access to.  That the SNP has decided to make its case for the "sanctity" of Scots Law, riding on the back this palpable unjust set of proceedings - is crackers. As Lord Hope noted at paragraph [32], this is not a case of new evidence emerging after a trial, which was unavailable to both sides during the course of proceedings....

"It is plain that this was information which might materially have weakened the Crown case as presented at the trial, or might materially have strengthened the case for the defence. That was why the Crown, very properly, felt that it ought to have disclosed this material. The situation in this case is quite different from that which will normally arise where the court is presented with an appeal on the ground of fresh evidence. A fresh evidence case usually proceeds on the basis that, while there was nothing wrong with the trial as it was originally conducted, there was nevertheless something missing from it which ought now to be taken into account. Had the material that was missing from this case been disclosed, however, the conduct of the trial by both the Crown and the defence would have quite different. That is why the non-disclosure in this case goes to the root of the question whether the appellant received a fair trial."

That despite, there are a number of more toothsome morsels on this mixter-maxter platter. When the issue last burst onto the political scene in March of this year, I composed a couple of posts, trying to outline the legal position, on the jurisdiction of the UK Supreme Court over Scots criminal matters. In the course of the first, I was highly critical of Fiona Hyslop's basically misleading presentation of these issues on BBC Newsnicht.   In a lower key way, her mad March is/ought muddle has only been enlarged in the subsequent arguments this week. In the second, I offered a critique of a piece by John McTernan in the Hootsmon, which argued that the SNP were engaged in "trumped up posturing" on the jurisdiction of the Court. He needed reminding, I submitted, about the extent to which his own position was politicised by a Unionist politics, rather than the value neutral, humble, technocratic and commonsensical conclusion of dulldog legal reason. That point too, I think, obtains today. Both posts may be a helpful starting point for folk trying to tease out the various elements so hurriedly and untidily knotted together in today's debates on the jurisdiction of the Supreme Court.

Thus primed, I intend to trudge back over this territory, later this week.