McCluskey backs control on Supreme Court appeals

The Scottish Executive has welcomed the first publication of a review group, which was set up recently, to examine the relationship between the High Court of Justiciary and the UK Supreme Court in criminal cases and concluded that the current arrangements have created “real problems”.

The group, chaired by Lord McCluskey, published its first report – the McCluskey Report – on Monday (June 27), which has focused on the role of the UK Supreme Court under existing constitutional arrangements.

The report agrees with the conclusion of the Advocate General’s own Expert Group report that the courts have given a wide interpretation to the concept of acts of the Lord Advocate.

It states that the consequence of this is that “unexpectedly”, many aspects of Scotland’s criminal proceedings have been brought under review in the Supreme Court and that this “widening of jurisdiction, as exercised by the Supreme Court, whatever the intention of the UK legislature when the Scotland Act was passed, had surprised everyone and had created real problems”.

The McCluskey Report agrees that the existing statutory basis for bringing human rights issues to the Supreme Court is “seriously flawed”. It concluded that the High Court of Justiciary has been placed under a broader and, in the light of developing practice since 1998, a more intrusive jurisdiction than has been created for the rest of the UK in relation to applying the law governing human rights issues in criminal cases.

The report made a number of recommendations for a new provision, with proposed amendments to the Scotland Bill, which would place the High Court of Justiciary on an equal footing with its counterparts elsewhere in the UK, by enabling the Supreme Court to grant permission to appeal only if the High Court of Justiciary has granted a certificate that the case raises a point of general public importance.

It also recommends that it should be made clear that the jurisdiction of the Supreme Court should be exercised in such a way that it identifies clearly the law that the criminal courts have to apply, but that the application of the law to the case in which the issue is being litigated should be remitted to the High court of Justiciary.

According to the group, this would help preserve the traditional role of the High Court of Justiciary under current constitutional arrangements by ensuring that the Supreme Court, in dealing with its human rights jurisdiction in criminal cases, would concentrate on identifying and articulating clearly the relevant law contained in the Human Rights Act and would not proceed to decide the case as if it were the High Court of Justiciary.

First Minister Alex Salmond said: “There is now a consensus that the UK Supreme Court plays a much broader role in Scottish criminal law than had been envisaged when the Scotland Act was passed, and that it is more intrusive within Scots Law than is the case for the other jurisdictions within the UK – with serious implications for the certainty and integrity of our distinct legal system.

“We now have the interim analysis and conclusions of the McCluskey Group and I particularly welcome its recommendations for amendments to the Scotland Bill to limit the role of the UK Supreme Court by placing referrals from Scotland’s highest court of criminal appeal – the High Court of Justiciary – on the same footing as is the case for the justice system south of the border. It also makes positive suggestions for the UK Supreme Court to operate clearly and consistently as a court of interpretation of human rights law, and not as if it were the High Court of Justiciary.”

The team of law experts are expected to publish a final report by autumn this year prior to amendments requiring to be made to the Scotland Bill.