Scotland Bill

Debate between Lord McCluskey and Lord Cameron of Lochbroom

Thursday 2nd February 2012 Lords Chamber

[Lord Cameron of Lochbroom]

I shall speak briefly because I look at the matter not in particular detail but, like the noble and learned Lord, Lord Boyd, from a philosophical view. Scottish criminal law and procedure has developed in an entirely different way from that in the other jurisdictions in the United Kingdom, but it has now had placed above it a Supreme Court with a particular mandate. It seems to me that that is the court which at the end of the day can determine whether what is being brought before it, whether with leave or without it, is a matter with which it should be concerned, looking to its universal jurisdiction in order to provide consistency in a very special area of law.

That being so, notwithstanding my having no reason to doubt that in general the court below will be capable of determining whether a point of public law importance arises, there are special cases where that might not be perceived by the court below and no harm is done by leaving out the certification procedure which is available in a different form in the way of leave, and by adopting the path in these matters suggested by the noble and learned Lord the Advocate-General.

I do not intend to deal with any of the other matters, because this seems to me the real nub point in the relationship between the High Court of Justiciary and the Supreme Court which arises out of the other amendments which have been proposed.

[Lord McCluskey]

I hope that this will be the last time that I rise to my feet in this part of the debate. I shall endeavour by Report to formulate one amendment on matters relating to certification so that we can address this topic more fully than we have been able to do today.

Perhaps I may turn in the mean time to Amendment 72C and, linked with it, Amendment 72H. After “only”, Amendment 72C would insert,

“after the final determination of the proceedings, except with the permission of the High Court under subsection (5C)”.

That subsection relates to proposed new Section 288AB and references before the finality of the proceedings. In the normal case, the judgment that is required to be made under Article 6, which is the most important article bearing upon these issues, is whether the appellant— the accused or convicted person—has been deprived of a fair trial. The courts in Strasbourg, England and Edinburgh have repeatedly said that you judge the question of the fairness of the trial in the light of the whole circumstances. That is why I suggest that normally the appeal should take place at the end of the proceedings in the High Court and not before. That has the advantage that it avoids delay in the middle of proceedings of an unnecessary kind.

There have to be exceptions. The most obvious example is an issue such as the temporary sheriffs case, where it is independent of the facts of the case. It is an issue as to whether or not the court is an independent tribunal. There have been other cases of that general character. The court could make an exception there and we can surely trust it to do so. But the idea is that no appeal goes before the proceedings have been finalised in the High Court.

Amendment 72H deals with an issue related to that but also related more to the fact that the court can send it away ex proprio motu if it decides that that would further the interests of justice. The amendment relates to the fact that the Lord Advocate or Advocate-General may require the High Court to refer a compatibility issue to the Supreme Court for determination. That appears to be again on a par with the court deciding that the interests of justice require this issue to be decided if it can be decided without reference to the facts of the case. The Lord Advocate in particular—I am sure that others in the Committee could confirm this—may well have knowledge of the consequences of a particular decision going a particular way. He may be anxious to get these consequences ventilated and the decision made because there may be hundreds or even thousands of cases pending the decision. I very much want to see that the Lord Advocate has this power.

I am sure that it would be exercised responsibly. There is no reason to suppose that the Lord Advocate would exercise it irresponsibly and I am sure that it will be confined to those cases where it is clear that the matter is independent of the fairness of the trial on the facts or the conduct of the trial itself. Rather, it is dependent on an issue that lies outside the trial.

Amendments 72F and 72G relate to the possible extension of the 28-day period. In my submission, once a case has been through the High Court before a judge and jury or before the Sheriff Court and then it goes to the High Court of Justiciary sitting as an Appeal Court, one would have thought that by that stage all the issues had been properly identified. Therefore, 28 days is long enough to allow an appellant to formulate his grounds of appeal. That is why I do not see the need for a longer period for the High Court, having regard to all the circumstances. That is contained in the amendment of the Advocate-General. I wanted to delete that proposed new subsection and also the one relating to a similar power in the Supreme Court.

It is important to bear in mind that under the European Convention on Human Rights and the Human Rights Act the victim is usually the accused person, whereas the injured person or the relatives of the deceased person are not victims at all. But in truth and public understanding, the real victims of crime are those who have suffered from the crime. They want to see cases finished as quickly as possible. Therefore the possibility that the Supreme Court or the High Court may take weeks or months to decide a matter and then allow an appeal is abhorrent to the general public. I submit that the Government should consider very carefully accepting my amendments to the new clause proposed in Amendment 72 and restrict the period to 28 days.