tag:blogger.com,1999:blog-1638916042737526171.post6987456665565753064..comments2024-03-28T07:16:39.621+00:00Comments on Lallands Peat Worrier: UKSC: "incubating the disorder, rather than correcting it..."Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.comBlogger30125tag:blogger.com,1999:blog-1638916042737526171.post-90282718888963801752011-06-16T16:16:11.562+01:002011-06-16T16:16:11.562+01:00Anonymous,
Do you mean in the UK Supreme Court...Anonymous,<br /><br />Do you mean in the UK Supreme Court's <a href="http://www.bailii.org/uk/cases/UKSC/2011/24.html" rel="nofollow">Nat Fraser judgment?</a> Its a rather complex judgment in some particulars - about the interaction between tests to determine new evidence appeals - and Article 6 of the European Convention on Human Rights, concerned with rights to a fair trial.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-56491255973311630722011-06-16T10:47:07.696+01:002011-06-16T10:47:07.696+01:00I need a point of clarification please. Was the UK...I need a point of clarification please. Was the UK Supreme Court decision based on interpretations of ECHR, which the Scottish trial did not live up to, or was it based on UK law which the Supreme Court acts on? I suspect it the former...thanksAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-4446076370221020122011-06-14T20:10:57.771+01:002011-06-14T20:10:57.771+01:00Braveheart,
I've maintained that it is a poli...Braveheart,<br /><br />I've maintained that it is a political question from the outset - and we'd all do better if we realised that. That said, we should avoid the temptations of oversimplification. Supporting the distinct jurisdiction of Scots Law - and opposing the intervention of any UK Supreme Court - need not entail political Nationalism or shade into any anti-Englishness as you imply.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-77948109155457237602011-06-12T22:49:29.840+01:002011-06-12T22:49:29.840+01:00@LPW "... none of this necessarily implies th...@LPW "... none of this necessarily implies that we have to keep the jurisdiction of the UK Supreme Court under the Scotland Act, however salutary that jurisdiction may have been in particular cases."<br /><br />And none of it necessarily implies that we have to relinquish the jurisdiction of the UK Supreme Court under the Scotland Act. <br /><br />After all it has been salutary in particular cases.<br /><br />So it all comes down to the politics.. as I said...grumbles and grievances and anti-English sub-themes...the usual Nationalist recipe...Bravehearthttps://www.blogger.com/profile/07223196805548966030noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-15275538835746415412011-06-12T21:40:11.434+01:002011-06-12T21:40:11.434+01:00LPW: thanks, that's helpful. The six-month lim...LPW: thanks, that's helpful. The six-month limit should indeed concentrate minds wonderfully. It is symptomatic, then, that their Lordships of the UKSC have decided that even the one-year limit of the Human Rights Act 1998 doesn't apply to devolution issues, which appear to be subject to precisely no time-limit whatsoever.Am Firinnnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-72087595803952473662011-06-12T18:39:07.450+01:002011-06-12T18:39:07.450+01:00Braveheart,
As I tried to explain in the post, I ...Braveheart,<br /><br />As I tried to explain in the post, I don't disagree with the analysis that the High Court of Justiciary isn't performing up to par on human rights issues. The critical point is not that non-disclosure was not considered in the Fraser case - it was considered, but the Scots bench dismissed Fraser's arguments. However, none of this necessarily implies that we have to keep the jurisdiction of the UK Supreme Court under the Scotland Act, however salutary that jurisdiction may have been in particular cases.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-23225227221323742011-06-11T18:42:15.060+01:002011-06-11T18:42:15.060+01:00LPW, I'm no lawyer, but Kelly's exposition...LPW, I'm no lawyer, but Kelly's exposition seems quite clear to me. <br /><br />In Cadder, Scottish Law was wrong not to allow represntation at stages in questioning. Scottish Courts did nothing to correct it so Strasbourg (via London) did it for us. So we changed the law. <br /><br />As for Nat Fraser: it was clear case of non-disclosure which, for some reason, was not considered at the appeal in Scotland.<br /><br />Again the Supreme Court did a job that Scottish System should have done.<br /><br />The "invisibility" that you detect is, maybe, the point: our system should correct its own faults in respect of Human Rights. If it does not, Strasbourg (or the UKSC in place of) will do it for us. And if the Justiciary is "invisible", that's a sign of its dereliction of it's own responsibility, not a fault of the European System , of which the UKSC is a part.<br /><br />As for McAskill/Salmond: IMO it's a clear case of picking a fight, any fight, to create an atmosphere in the run up to a referendum.<br /><br />They have previous, after all....Bravehearthttps://www.blogger.com/profile/07223196805548966030noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-84532197921108861562011-06-11T10:20:14.347+01:002011-06-11T10:20:14.347+01:00Braveheart,
I'm not so sure. In Kelly's p...Braveheart,<br /><br />I'm not so sure. In Kelly's piece, the High Court of Justiciary is basically invisible - and it becomes a question of the executive girning about human rights decisions. As I understand Salmond and MacAskill's comments on this - while there is some undertone along these lines - it is not the main issue. For reasons outlined more substantially above, I also don't think it is terrifically helpful to lose sight of the performance of the Justiciary court on human rights matters.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-75716742635710654802011-06-11T10:09:46.335+01:002011-06-11T10:09:46.335+01:00Am Firinn,
I avoided getting into it on the hoof ...Am Firinn,<br /><br />I avoided getting into it on the hoof - as it is a bit arcane - but the caselaw of the ECtHR on exhaustion does not require an applicant to seek "extraordinary" remedies, to be taken to exhaust domestic remedies and thus avoid inadmissibility on this ground. The six-month rule - requiring applicants to lodge their case within six months of the final domestic disposition of their case - can be problematic here. Applicants often resort to such extraordinary domestic remedies - but the six-month rule will still run from the decision the ECtHR take to be "final". A number of cases have been declared out of time and inadmissible as a result. <br />I may have to look into the jurisprudence on this a little more closely.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-11096508248007267432011-06-11T09:41:19.281+01:002011-06-11T09:41:19.281+01:00Excellent destruction of the Salmond/McAskill case...Excellent destruction of the Salmond/McAskill case here.<br /><br />http://www.heraldscotland.com/comment/guest-commentary/why-supreme-court-is-good-for-scots-law-1.1106314?47361<br /><br />By Prof. Tony Kelly of Strathcyde uni..<br /><br />summing up: "The truth is, if the Government continues to fail to respect human rights it will find itself in bother. If it continues to make ill-informed comments rather than dealing with the real issues it cannot hope to carry the day in connection with its proposed changes to the law."<br /><br />...says it all reallyBravehearthttps://www.blogger.com/profile/07223196805548966030noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-64465472898506271522011-06-10T22:00:11.230+01:002011-06-10T22:00:11.230+01:00LPW, this qustion of admissibility is one that is ...LPW, this qustion of admissibility is one that is exercising me. The First Minister quoted Judge, so I looked it up on the ECtHR website, and here it is (sorry for the long string!):-<br /><br /> http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight="THE UNITED KINGDOM" | High | Court | of | Justiciary&sessionid=72077034&skin=hudoc-en<br /><br />Evidently the learned judges of the ECtHR did indeed apply their minds to Mr Judge's case without its having been near the UKSC. I appreciate they might not have been so forgiving of procedural peccadilloes in Mr Fraser's case though, evidently, it does happen. Perhaps they just take the UKSC at its own (disingenuous) word. After all, as Lord Hope his very sel' opserved in Fraser, "As I recently sought to emphasise, this court must always be careful to bear<br />in mind the fact that the High Court of Justiciary is the court of last resort in all<br />criminal matters in Scotland..."Am Firinnnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-40892927340895040072011-06-10T14:52:41.518+01:002011-06-10T14:52:41.518+01:00Politicians are instated and removed.
Judges too. ...Politicians are instated and removed.<br />Judges too. It happens.<br />Our First Minister has an advisory role in the removal of a judge.<br />After he takes advice from a committee of the learned.<br />More faffing about. By those paid handsomely to do so.<br /><br />Judges are employees. Are we to legislate and hope they are not partial in law enforcement?<br />The electorate decides if we want, need or are willing to pay for the present myriad of courts, higher authorities, checks and balances.<br />They also decide how we run our prisons, schools, health service, cars and much more.<br />They are qualified to make these decisons.<br /><br />Judges and the supreme being of human rights are not independent of the electorate.<br /><br />For the marriage of flowers and vegetables some of us don't give a fig.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-15690177163645221992011-06-10T11:27:38.477+01:002011-06-10T11:27:38.477+01:00LPW - thanks, I wasn't aware of the asymmetry....LPW - thanks, I wasn't aware of the asymmetry. Another aspect with which to be confused.<br /><br />Anonymous said...<br />"I think it might mean that you're illegitimate."<br />:P<br />You charming ...mrbfaethedeenoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-528391563454694412011-06-10T09:02:38.819+01:002011-06-10T09:02:38.819+01:00mrbfaethedee said...
'I have no legal bones in...mrbfaethedee said...<br />'I have no legal bones in my body (whatever that might mean)'<br /><br /><br />I think it might mean that you're illegitimate.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-33092104536397335722011-06-10T07:40:35.107+01:002011-06-10T07:40:35.107+01:00'Had it been screamingly obvious that the dome...'Had it been screamingly obvious that the domestic Scottish law was not meeting the standards of fairness required by the ECHR then Rodger and Hope had plenty opportunities to say so when they were in Edinburgh'<br /><br /><br />Judges can only decide on matters which have been put to them.<br /><br />I'm not aware of the Cadder point being put to either Hope or Rodger when they sat in the High Court.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-71108790305835716942011-06-10T01:42:31.610+01:002011-06-10T01:42:31.610+01:00LPW
I appreciate that both Lords Rodger and Hope ...LPW<br /><br />I appreciate that both Lords Rodger and Hope were long gone to London by the time of the Salduz case. However, my point is this -<br /><br />In Cadder's case the Justiciary Court in Edinburgh were effectively saying that Scottish domestic law was different from, but no less fair than, the domestic law of other European jurisdictions. <br /><br />And that is precisely the position previously adopted (or at least tacitly agreed to) by both Lords Rodger and Hope when they were the senior Justiciary judges in Edinburgh.<br /><br />Had it been screamingly obvious that the domestic Scottish law was not meeting the standards of fairness required by the ECHR then Rodger and Hope had plenty opportunities to say so when they were in Edinburgh - that they didn't say so suggests that it wasn't screamingly obvious.<br /><br />I am not learned enough to pass any real opinion on the legal merits of the Supreme Court's decision in Cadder, but I would have rather wished the Scottish judges in that court had given support to the Scottish court, if only because complete homogenisation of criminal procedures across Europe is, in my mind, both impossible and undesirable.<br /><br />One effect of Cadder was to remove certainty and introduce uncertainty and some panic, as cases were dropped and emergency legislation was enacted. Another effect was to make Scotland peculiar in having BOTH a requirement that the detainee be cautioned (and thus have an unqualified right to silence) AND have the right to legal representation at interview. <br /><br />In one fell swoop Scotland gained the most unproductive police interview system imaginable. The suspect doesn't have to answer any questions - no adverse inference can be drawn from silence - in these circumstances every solicitor will advise the suspect not to answer any questions. Marvellous - but quite unlike the systems elsewhere in Europe (eg in England and Wales where the caution is qualified by the 'it may harm your defence if you don't mention....' bit at the end).almaxnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-87907487425403669522011-06-09T22:16:01.333+01:002011-06-09T22:16:01.333+01:00LPW
I'm not sure that Alex 'blood of our ...LPW<br /><br />I'm not sure that Alex 'blood of our blood, bone of our bone' Salmond is as averse to 'iffy ethnic nonsense' as you are. Such views have a long tradition in Scottish nationalist politics, and Salmond does occasionally let his mouth run away from him and blurt out his true feelings, comments that he would never commit to print. Remember the 'we didn't mind the economic side so much' gaffe?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-6519475877439226462011-06-09T16:46:12.484+01:002011-06-09T16:46:12.484+01:00Surely the nub of the question from a lay point of...Surely the nub of the question from a lay point of view, is why the appeal process in Scotland is either too loath to question the original courts findings, even in the light of new 'evidence' or is limited by process to restricting the grounds for appeal to matters presented at the original trial.<br /><br />Both factors seem to have played a role in the appeals of Megrahi and Fraser.<br /><br />Then there is the dubious practice of legal systems to 'offer' victims of doubtful verdicts their freedom provided they admit by inference of dropping any appeal, their acceptance of the original verdict.<br /><br />While this wouldn't apply to the Fraser case it could to Megrahi's and it strikes as a system self protecting.Crinkly & Ragged Arsed Philosophershttps://www.blogger.com/profile/08902364411241935656noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-51709430074159088252011-06-09T15:21:07.310+01:002011-06-09T15:21:07.310+01:00I stand corrected a propos the flowers but their p...I stand corrected a propos the flowers but their position is subliminal?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-72062191714596829102011-06-09T15:06:28.558+01:002011-06-09T15:06:28.558+01:00RobertArne, James,
Always glad to oblige.
Robert...RobertArne, James,<br /><br />Always glad to oblige.<br /><br />Robert Black,<br /><br />Glad that I accurately caught your drift. I'm conscious, however, at the level of practice, that I still leave a particular conundrum outstanding: how is Justiciary's approach to be altered? Is there an argument that the UKSC link should be retained as the only effective stop-gap in the interim? If we do away with such a jurisdiction, then what? I don't have remotely satisfactory answers to that.<br /><br />Scottish Republic,<br /><br />I wouldn't disagree with that. Scots law's institutional expressions and their distinct social life are clearly important in sustaining an idea of Union as opposed to single united "UK" jurisdiction.<br /><br />almax,<br /><br />What a splendid piece of incompetence! You'd have thought <i>someone</i> might have noticed before the damn things were installed. No doubt it was the case of "jury" being a false friend. Interesting point on <i>Cadder</i>. In fairness, the <i>Salduz</i> judgment of the European Court was delivered on the 27th November 2008, outside both of their terms as Lord Justice General. <br /><br />Lord Snooty,<br /><br />I believe you may just have mistaken the leek for the sprouting stalk of the rose. According to the court, the knotted symbol is intended to represent the commingling roots of a rose (England), a thistle (Scotia), Northern Irish flax - and finally yon leafty whatnot on the left hand side is a leek, for our Welsh friends.<br /><br />Mick, <br /><br />The Court's symbol is, for all that, a rather interesting object, with clear political content.<br /><br />Am Firinn,<br /><br />Just a couple of points. Firstly, I wasn't trying to imply that the European Court doesn't hear cases from Scotland. Mostly, I was just trying to emphasise that certain assumptions about how the institution operates aren't really on the money. On your second point, strictly speaking, the European Court cannot hear a case until domestic remedies have been exhausted. You need not pursue "extraordinary remedies", but my guess is, if Nat Fraser had not appealed his devolution minute to the UK Supreme Court, his Strasbourg case would be at risk of being declared inadmissible by the ECtHR.<br /><br />mrbfaethedee,<br /><br />Perhaps the crucial detail is that governments do not have direct access to the European Court of Human Rights. This is one of the reasons why the language of "appeal" is problematic. It implies both sides can take their argument to Strasbourg, if they are defeated in domestic proceedings. Not so. Only aggrieved individuals can apply to the European Court, if domestic authorities disappoint them. Thus, in the Nat Fraser case, the Crown has nowhere to go - and why would Fraser take a case to Strasbourg, when he won domestically? That is one, very important explanation for the conundrum we find ourselves in at present.<br /><br />KillDeWabbit,<br /><br />I'm glad that particular purple passage was obscure as it was intended to be - bearing out my point, you might think! I don't immediately know a decent <i>Introduction to Scots Law</i> type of tome. I shall look into it, ask some cronies, and let you know.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-64158527652153085662011-06-09T00:04:40.201+01:002011-06-09T00:04:40.201+01:00'before you embark on the Latin, 6th Century B...'before you embark on the Latin, 6th Century Byzantine codification, its rediscovery and revival, the reception of Roman Law into Scotland and the labours of the immortal Stair.<br /><br />...around Scots juridical independence in terms of a commitment to its orderly law of property, its principled division of personal and real rights, or a preference for a general conception delict rather than the profusion of specific English torts.'<br /><br />Lallans - as a non-legal person, would you recommend a book explaining all of the above that I don't understand?KillDeWabbitnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-76991803565736642022011-06-08T22:41:13.527+01:002011-06-08T22:41:13.527+01:00I have no legal bones in my body (whatever that mi...I have no legal bones in my body (whatever that might mean), so what I'm not clear about is this -<br />If the Scottish legal systems implementation of whatever it is that the EHCR demands of us is falling short, and the Scottish legal system has neither defended it's failure to do so nor mended its ways; why are we not being 'told so' by the EHCR, whose domain this is? Why instead is it being done through a legal vehicle which seems to be laden with constitutional FUD?<br /><br />Is there any answer as to why the Scottish legal system can't interact directly with the EHCR on this? The UK Supreme Court seems to be a shiv slotted in as an extra step to my naive eye, muddying both legal and constitutional waters.<br /><br />Hope that rambling makes some sort of sense.<br /><br />People with no legal nous are interested in this, particularly given its apparent entanglement with constitutional affairs.<br /><br />Honest question, honest.mrbfaethedeenoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-63254871072348852972011-06-08T21:16:04.691+01:002011-06-08T21:16:04.691+01:00I too am 1(a), 2(a) and 3(b). Moreover I would car...I too am 1(a), 2(a) and 3(b). Moreover I would carry Professor Black's apposite views about promotions of Crown Office personnel to the posts of Lord Advocate and Solicitor General further and observe that politicians, however sane they might have been in opposition, get captured by the Crown Office when in government. However, nil desperandum. In fact Mr Fraser would not have been left without a remedy if the UK Supreme Court were shorn of its novel and usurped jurisdiction over Scottish criminal cases. The suggestion that has appeared in some quarters of the UK Supreme Court being an alternative to Strasbourg is nonsense: it's an addition, a fifth wheel. There are plenty of cases go direct from Scotland to Strasbourg and, with all due respect LPW, some of them do get heard there. Mr Salmond quoted the case of Thomas Judge this week, which went straight from the HCJ to the ECtHR. Mr Fraser could have done that instead of going to the UK Supreme Court; and if the UK Supreme Court had made the wrong decision, he could still have gone there. Furthermore, a remedy Mr Fraser could have exercised but didn't, as far as I know, was recourse to the Scottish Criminal Cases Review Commission. Admittedly it's not exactly swift; but legal mora are practically universal. <br />This is not to say that the High Court of Justiciary is perfect. It very clearly isn't. One might have hoped it had learned something but its further adjournment of Mr Fraser's case today looks like an unworthy piece of pettiness.Am Firinnnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-73072701551430632852011-06-08T18:52:22.997+01:002011-06-08T18:52:22.997+01:00Lord Snooty,
Just to dispatch this "Sublimin...Lord Snooty,<br /><br />Just to dispatch this "Subliminal propaganda" conspiracy theory quickly so as to avoid it distracting from a worthy debate I'll explain that in fact the leek does appear on the UKSC's emblem - it's right there between the thistle and the rose.<br /><br />The shamrock does not appear because, as a symbol, it is viewed as divisive. Increasingly, older symbols - including the shamrock, harp and crown are replaced with the inclusive symbol: the flax flower; which you mistook for a forget-me-not. <a href="http://www.niassembly.gov.uk/io/logo.htm/" rel="nofollow">The Northern Ireland Assembly itself uses this symbol in its emblem</a>.<br /><br />You can find more information about the design of the UKSC's emblem - in particular the fact that it was designed by the Herald Painter of that most Scottish of institutions - the Court of the Lord Lyon - in the decidedly un-subliminal, in fact the clearly visible and identifiable location, <a href="http://www.supremecourt.gov.uk/visiting/new-artwork.html" rel="nofollow">the UKSC website</a>.<br /><br />To everyone else, I know Lord Snooty is likely a troll but I thought it worth replying just in case anyone thought there could be the slightest merit to his theory... Cabinet Secretaries, that includes you!Micknoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-45133988348917431952011-06-08T17:43:30.571+01:002011-06-08T17:43:30.571+01:00Just thinking, in t creast of the "dUK" ...Just thinking, in t creast of the "dUK" Court, is the English rose above the Thistle and the Forget-me-not. So, why is there no Shamrock or Leek (I know the obvious response to that)<br /><br />Subliminal propaganda???<br /><br />Answers on a €5 note to Milord, Care of the H of LardsAnonymousnoreply@blogger.com