2012-01-01
| Pages | 77-116 |
| Published date | 01 January 2012 |
| DOI | 10.3366/elr.2012.0084 |
| Date | 01 January 2012 |
The High Court of Justiciary was, and remains, the final court of appeal in Scottish criminal proceedings. The only exceptions to this are that certain questions can be referred or appealed to specialist courts for particular purposes. For example, questions about EU law can be referred to the ECJ. The Scotland Act 1998 provides another exception.
One of the fundamental features of that Act is that it imposes a legal or
Devolution issues are defined in effect as including the question whether the Lord Advocate has acted incompatibly with the ECHR or EU law in prosecuting any offence contrary to section 57(2) of the Scotland Act. The devolution issue procedure enabled the Supreme Court ultimately to determine such questions and in a few, but notorious, cases they did so by overturning the decisions of the High Court upon such issues, even those decisions of the High Court that no devolution issue had arisen.
See e.g.
See Lord Hope in
Despite this, there has been considerable dissatisfaction among the Scottish judiciary and others with the way in which the devolution issue procedure was working in Scottish criminal proceedings, and critics saw this as an unwarranted interference by the Supreme Court in Scottish criminal law. This has now become a political issue which has been taken up the Scottish Nationalist Government and the Scottish Parliament, on the grounds that it is undermining the integrity of Scots criminal law.
See, in this context, the debates in the Scottish Parliament on the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill (Official Report, 27 Oct 2010) and the debate on motion S4M-01133 on “ensuring the integrity of Scots criminal law” (Official Report, 27 Oct 2011).
In response to this dissatisfaction, the Advocate General appointed an Expert Group
See
that the Scotland Act 1998 should be amended to remove the acts of the Lord Advocate in prosecuting any offence, and as head of the system of prosecution and investigation of deaths, from the scope of section 57(2) and from giving rise to a devolution issue.
Expert Group paras 4.18-4.22 and 5.4.
This will mean that any question which arises in civil or criminal proceedings as to whether any such act is incompatible with ECHR or EU law will no longer be subject to the special devolution procedure which enables the Advocate General to become a party in that procedure and for those questions to be ultimately determined by the Supreme Court; butthat the Supreme Court should continue to have the jurisdiction to deal with such issues in Scottish criminal proceedings and that this should be re-defined in a new statutory right of appeal.
Paras 4.8-4.17 and 5.3.
HL Bill 79. See clause 17(2) and (4) and clause 17(3), which would insert a new section 98A into the Scotland Act 1998.
The Scottish Government appointed another group (referred to here as “the McCluskey Group”) to reconsider the matter.
The McCluskey Group was appointed by the First Minister. See
The Scottish Parliament is currently considering whether to approve clause 17 for the purposes of a “Sewel motion”. In his evidence to the Scottish Parliament, the Lord Advocate provided an illustrative redraft of clause 17 which gives effect to the recommendations of the McCluskey Group.
See the letter from the Lord Advocate (dated 26 Oct 2011) which accompanies the agenda for the Scotland Bill Committee on 1 Nov 2011, available at
The reasons given by the Expert Group and the McCluskey Group for their view that the acts of the Lord Advocate should no longer be subject to section 57(2) or give rise to devolution issues are unconvincing.
They considered that the existing procedure for dealing with devolution issues in criminal proceedings was “clumsy, bureaucratic and productive of delay” and that it created “a very serious problem for the Scottish court system and the work of the Lord Advocate and Advocate General, as well as for victims and witnesses”.
Expert Group para 4.19.
These criticisms may well be justified. However, those views were arrived at without reference to any evidence other than anecdote and they did not consider whether, or to what extent, they were due not to the statutory provisions in the Scotland Act, but to the devolution minute procedure introduced by the Act of Adjournal made by the Lord Justice General and other judges in the High Court.Act of Adjournal (Criminal Procedure Rules) 1996, SI 1996/513 ch 40 (as inserted).
However, the main reason for their recommendations was that they considered that there was a “fundamental constitutional objection to the existing statutory framework” and that it was “constitutionally inept” to treat acts of the Lord Advocate as giving rise to devolution issues “because such acts fall within the retained functions of the Lord Advocate and have nothing to do with the devolution settlement”.
Expert Group para 5.1. See also Expert Group...
To continue reading
Request your trial