2011-01-01

Document Cited authorities (3) Cited in Related
AuthorKenneth McK Norrie,Aidan O'Neill,A Mark Godfrey,Frances McCartney,Elaine E Sutherland,Chris Stephen,Hector MacQueen,Shona Wilson,Chris Himsworth,Alyson Evans
Pages88-137
Date01 January 2011
DOI10.3366/elr.2011.0005
Published date01 January 2011
<p>On the 24<sup>th</sup> September 2010, the Office of the Solicitor to the Advocate General announced the commencement of “an informal consultation concerning the way in which acts of the Lord Advocate in her capacity as head of the system of prosecutions might give rise to devolution issues under the Scotland Act”.<xref ref-type="fn" rid="fn1-1"><sup>1</sup></xref><fn id="fn1-1"><label>1</label><p>Office of the Advocate General for Scotland, “Devolution Issues and Acts of the Lord Advocate – An Informal Consultation”, 24 Sep 2010, at <ext-link ext-link-type="uri" xlink:href="www.oag.gov.uk/oag/102.62.html" xlink:type="simple"><italic>www.oag.gov.uk/oag/102.62.html</italic></ext-link>. A short (identically titled) consultation paper was published on the same date at the same address.</p></fn></p> <p>The Advocate General's announcement referred to the fact that a collective submission had been authored in the name of the judiciary of the Court of Session on this matter, and was submitted by the judges to the Calman Commission. The Calman Commission considered, however, that the matters raised in the Court of Session judiciary's submission to it went beyond its remit, and did not respond to them. Instead, the Advocate General has set up a new “expert group” (two of whose members were on the Calman Commission) “to consider this issue afresh”.<xref ref-type="fn" rid="fn1-2"><sup>2</sup></xref><fn id="fn1-2"><label>2</label><p>Ibid.</p></fn> This group has been asked to:<xref ref-type="fn" rid="fn1-3"><sup>3</sup></xref><fn id="fn1-3"><label>3</label><p>Ibid.</p></fn> <disp-quote> <p>… assess the extent to which it [the Lord Advocate being subject to the devolution issues regime] causes problems in practice for the courts and the operation of the criminal justice system and to make recommendations in relation to any reform which the group considers appropriate.</p> </disp-quote> Now all this may sound like a matter of legal <italic>arcana</italic> – and, indeed, is largely presented as such in the terms of the Advocate General's consultation paper. But what is in fact being discussed in this consultation is a proposal, in effect, to free Scottish criminal prosecutions from the Convention rights scrutiny of the Scotland Act, leaving the prosecution authorities in Scotland bound only as public authorities by their duties under the <a href="https://vlex.co.uk/vid/human-rights-act-1998-852419308">Human Rights Act 1998</a>. And the significance of such a change, if brought into effect, would be the ending of the jurisdiction of the UK Supreme Court to hear criminal appeals from Scotland.</p> <p>At heart what seems to be at issue is a question of judicial primacy. What this consultation procedure raises is a question about which should be the top court in Scottish criminal matters: the High Court of Justiciary acting as a criminal appeal court, or the UK Supreme Court? But given that that is the real issue, it is of some concern that the consultation process fails to set this out clearly and unequivocally. Instead it presents its intervention in this area of central constitutional importance and impact as if it were one of not more than minor technical adjusting or fine-tuning of existing Scottish criminal procedure. No doubt, individuals and organizations will have differing views as to whether any such proposed change in the criminal jurisdiction in Scotland is a good or a bad thing, but one thing is clear: it is, from a constitutional...</p>

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex
Add as a preferred source on Google