10 February 2012

Holyrood breaches fundamental rights...

That was the conclusion reached by the Court of Criminal Appeal in Edinburgh this week in Cameron v. Procurator Fiscal, Livingston. As usual, the facts tend towards the quotidian. Grant Cameron was charged in the hallowed halls of justice - Livingston Justices of the Peace court - answering the following accusation:

"(001) on 16 February 2011 at Job Centre Pluis (sic), Whitburn Road, Bathgate, West Lothian you GRANT ALISTAIR CAMERON did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout, swear, attempt to slam a door against a member of staff there and kick furniture which was knocked across the office there; CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010".

The 2010 Act Cameron was charged under is a salmagundi of measures, changes and provisions. In addition to new offences on serious organised crime, it includes provisions for the as-yet unformed Scottish Sentencing Council, non-harassment orders, the Act made a number of procedural changes, including to the standard statutory conditions of bail.  Rather than having the procurator fiscal ask courts to impose obligations on accused persons to comply with DNA gathering and ID parades individually, Holyrood voted to have these conditions apply to all persons granted bail.  Cameron's lawyers challenged the compatibility of this new regime with Article 5 of the European Convention of Human Rights - which protects the liberty of subjects, and regulates what is and is not permissible grounds for detention by the state. The Court of Criminal Appeal, composed of Lords Eassie, Osborne and Brailsford, held that Holyrood's new bail conditions are incompatible with the provisions of Article 5 - and under the Scotland Act 1998 - that provision of the law is rendered invalid, ultra vires, struck down.

I'm conscious that this topic may not be of pancreas-throbbing fascination to all of you. However, for those more interested, I've a guest post on the case up on UK Human Rights blog. Shamelessly manipulating the pretext of the Cameron judgment, I stole the opportunity more generally to emphasise the broader interest of the developing Scottish public law to everyone in these islands who is interested in the constitution, future constitutions and the judicial enforcement of fundamental rights. What is often not well understood is that in Scotland we arguably already have a sort of "constitutional" judicial review taking place, where statutes endorsed by the legislature are potentially subject to close scrutiny - and potentially disapplication - on the basis of fundamental rights and freedoms.  Indeed, one of the interesting features of the SNP's "MacCormick" constitution for an independent Scotland is how much of it is already recognisable in the Scotland Act. That raises interesting prospects for potentially tricky pieces of legislation - I have in mind the Offensive Behaviour at Football Act 2011 in particular - if the Scottish bench is starting to "wake up" to human rights norms, and apply them more energetically than hitherto they've been disposed to.

Read the full UK Human Rights blog post here.


  1. Groundskeeper Willie10 February 2012 at 16:08

    I'm not sure if you've seen this comment on the decision from Paul McBride QC:

    "We have the Human Rights Act interfering with a decision made by our democratically elected parliament. It's unacceptable."

    I'm not sure if it's me or Paul McBride who has misunderstood the purpose of the HRA.

  2. Simply inaccurate too, GW. As I explain more extensively in the UKHR blog piece, this is about what the Scotland Act says. Indeed, the only place in the judgment where the Court of Appeal refers to the Human Rights Act is in the last section, on the idea of "reading down" legislation so it is incompatible.

  3. The decision of the Appeal Court seems to be plainly correct on the basis of the law.
    However, let me try to articulate a frustration with the application of 'Human Rights' -

    (a) Holyrood legislated for attendance at an ID parade to be a standard bail condition. This was probably done with the best of intentions, particularly in the light of the increase in numbers of cases where identification parades are required to allow for vulnerable witnesses to make their identification outside of the trial process. It might not always be obvious to the Prosecutor, on the first appearance of the accused, that vulnerable witness issues exist in the case, and making the condition a standard one at least had the benefit of obviating further time-consuming procedure if and when vulnerable witness issues were identified.

    (b) The standard bail condition would only ever be 'activated' if there was an actual need for the ID parade to be held. One cannot really imagine much enthusiasm by the police to set up unnecessary or bogus parades simply for the short-term malevolent satisfaction of inconveniencing the accused.

    (c) Reading between the lines of the current case, it appears that the accused failed to attend a diet to which he'd been cited. On his arrest the Prosecutor asked the court to place him on bail, presumably to assist in securing his attendance at future diets. The defence patently didn't want him placed on bail at all, but to be released unconditionally. Of necessity, the standard bail conditions included the Holyrood ID Parade condition, even though the apparent likelihood is that no such parade would ever have been held.

    The Court having acceded to the Prosecutor's motion, it seems that the matter then proceeded by Devolution issue all the way to the Appeal Court - dare I say that it appears to have done so as a result of pique at a minor defeat in a minor court, rather than on any burning sense of the lieges having their human rights trampled upon.

    (d) The net result is that some Holyrood law (which had some possibly minor beneficial advantages) is no longer law. The accused is still on bail on the other standard conditions - he has gained the advantage of not now having to attend an Identification parade that was never going to be held anyway.

    The public purse has no doubt paid handsomely for this absurd waste of time. As I said at the beginning, the Appeal Court's decision is correct in law, but for the outsider looking in, it all just seems like so much pettifoggery.

  4. Not being a legal expert (you may have noticed), am I right in saying you are expecting a lot of activity in the courts, mainly from defence lawyers?

    Also, is it likely that the Offensive Behaviour Act is going to be shown up to be an unsuitable piece of legislation?

  5. The only time I have ever appeared in court was as a witness in an assault case. By the time it actually got to court it was a full year after the events and I was quite worried that I wouldn't be able to identify the guy. I had not been asked to identify him in a parade or anything like that beforehand though the police told me my evidence would be needed to identify him. The thing is when you see something like that happening you don't really study the person's face, you are too busy reacting and in my case calling the police. And it's pretty hard to call up memories of an event 12 months afterwards and be sure of what you are saying. By that stage you are actually remembering what you rememebered if you know what I mean. It is no longer fresh in your mind.

    Anyway, I say it went to court a full year after the event but it was meant to go to court twice before that - indeed I was called to court and then told that I wasn't needed. You would have thought they could have phoned me but apparently not. My whole impression of the criminal justice system in action was, to be frank, that it is something of a shambles.

    Obviously the justice system is not like the NHS or the education system or any other public service because it is not directly politically accountable. If it was I don't think Kenny MacAskill would still be in a job. But it occupies this strange position of being publicly funded and in some senses politically accountable but in others entirely independent. But it kind of begs the question who, in theory, are lawyers and judges and so on accountable to? I don't know. Other lawyers and judges it would seem. But if the NHS was as cumbersome and slow as the court process seems to be I rather think people would be getting sacked.

    And frankly when you read about these kinds of cases you think what set of priorities exist here? It really dumbfounds most people.

  6. As an ex-practitioner, interested to hear your thoughts Almax. As Indy says, this is hardly a case to conflagrate the heather - unless you find it inherently interesting that a judge is able to set aside legislation. Cadder it ain't.

    Despite being generally sympathetic to human rights norms (and view my DPhil work, increasingly cynical about the European Court itself) - I'd happily accept that the norms can produce intensely problematic outcomes. For example, are procedural norms of adversarialness always for the best? Doesn't that tend to legalise processes which might benefit from a looser, less formally regulated touch? Article 6 tends to weigh against that - as well as weighing against properly objectionable abuses. It's a challenging one.

    On your main point Indy, your experience is not isolated. Last week, the Scottish Government published some independent research on victims and witnesses and summary justice reform (trials sans juries). The findings echo your experience in every detail.

  7. Groundskeeper Willie12 February 2012 at 14:58

    'Also, is it likely that the Offensive Behaviour Act is going to be shown up to be an unsuitable piece of legislation?'

    That's likely, yes.

    Holyrood seems a bit cavalier with its legislation. Maybe it's youthful exuberance (of the institution, not the inmates). Maybe it's too many politicians with not enough to keep themselves usefully occupied. Maybe it's the passionate intensity of the nats. Whatever it is I wish they'd cut it out quick, but when they will.......

  8. Certainly, there have been regrettable signs of this in the past, GW.

    I seem to remember a particularly bizarre remark by Karen Whitefield in the last session when she chaired one of the committees, apparently indifferent to the ECHR implications (and potential incompatibility) of some aspect of children's hearings - as if Holyrood could afford to.

    While the Presiding Officer receives independent legal advice on Bills and their legislative competence, unfortunately this doesn't seem to be made public (except in general terms), and thus our MSPs continue to resist gaining greater literacy about what the Scotland Act lets them do (most concerning, often as not, when they underestimate their actual powers...)