I read the judgement with interest, a wee “hmm” here and a wee “oh?” there, and I come to the conclusion that the UK Supreme Court has erred in law. Oh yes, little old me thinks it’s a duff judgement. The UK Supreme Court has no role in Scottish criminal law but it’s the ultimate UK court of appeal in civil cases and the Fraser case was brought to it as a devolution issue under paragraph 13 of Schedule 6 to the Scotland Act 1998 as amended. The plaintiff pursued the case on the basis that his Convention Rights had been infringed – the rights arising from Article 6 specifically. Having read the judgement, though, I’m of the opinion that the Supreme Court decided this case not on the basis of Article 6 but as a court of criminal appeal.
The judgement (or judgment as our legal friends seem to like) was written by Lord Hope who is one of the two Scottish judges in the UK Supreme Court, the other being Lord Roger, both with impressive Scots law CVs. They didn’t hear the case alone, though, Lords Kerr and Dyson also sat on the bench and agreed with the conclusions of Lord Hope while Lord Brown also sat and disagreed with, but fell short of dissenting from, the disposal of the case. Lord Brown has an interesting career history in English law, as has Lord Dyson, and Lord Kerr served his time in Northern Ireland. They’ve all been appeal court judges and I believe that their personal histories influenced them in this case far more than the points of law which they should have been considering.
Article 6 of the ECHR, enshrined in the Human Rights Act 1998, reads thusly:
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
The challenge was not on the basis of any of the specific rights mentioned in paragraphs 2 or 3 but on the general right in paragraph 1 – the right to a fair trial – a right which, I believe, most people will agree should be an intrinsic part of our legal system. The basis upon which the learned judges concluded that Mr Fraser’s right to a fair trial was not upheld was Lord Hope’s disagreement with the opinion expressed by the Lord Justice Clerk at the original appeal.
In spite of claiming in paragraph 30 that he was about to concentrate on whether the tests applied by the Appeal Court were the right ones, in the following paragraphs Lord Hope went off on a diddle around whether the tests were satisfied. Interestingly, he appeared to use previous judgements in the UK Supreme Court by himself and by one of his fellow bench-sitters in this case as the locus classici. I suppose that it is only to be expected when the circle is so small but it remains an interesting aside (for me) that this moot referred back to itself.
Where the Lord Justice Clerk had considered that the new evidence presented to him was not of sufficient importance to have influenced the jury at the trial had it been led (indeed, the LJC suggested that it may not have been led even if the defence had been aware of it), Lord Hope held that it was of sufficient import, saying “it is impossible to reconcile the approach which the Appeal Court took to the threshold question that section 106 raises with the test for cases of non-disclosure in McInnes, para 19” (Hope’s own previous opinion). Hope wasn’t finding fault with the process of the trial, he was finding fault with the outcome of the appeal.
Having previously ruled in McInnes that evidence withheld from the defence had to be evidence which should have been disclosed and also have enough weight to have affected the course of the trial for it to be a breach of the defendant’s Convention Rights, Hope relied on his ruling in that case to say in this case that the import of the evidence wasn’t important; “It was information that ought to have been given to the defence, and the failure to do this was a breach of the appellant’s article 6 right.” (paragraph 33).
This, and a finding that the course of the trial would have been different had the evidence been disclosed led Hope to conclude that his McInnes threshold test had been met. He then goes on to consider the consequences and, in spite of noting that the LJC had considered that the weight of the other evidence would have been sufficient to convict, he opined that the disclosure may have resulted in a different course for the trial and that “There is a real possibility that this would have been sufficient to raise a reasonable doubt about the Crown’s case”. Again, Hope’s issue isn’t with the conduct of the trial – whether it was fair or not – but with the outcome.
Hope never addresses the actual case before him in this judgement, he does not examine whether Article 6 has been breached; he sits, instead, as a judge in a criminal appeal in clear breach of the role of the UK Supreme Court.
Hope in paragraph 29 and Brown in paragraph 47 indicate that it is for the High Court of Justiciary to decide what tests to apply in appeals where there is no devolution issue – and both then go on to ignore the devolution issue and discuss the details of the LJC’s judgement. In both cases, I believe, they erred in law by ruling on the outcome of the case rather than whether it was a fair trial. Given that the other three judges concurred with Lord Hope’s judgement, they too must be seen to have erred in law.
Scotland’s laws are being changed by the UK Supreme Court, by judges without Scottish legal training, with little or no experience of Scots law and whose judgements appear to be self-fulfilling. The UK Supreme Court was supposed to take over the House of Lords legal functions and, in relation to Scotland, to rule on only civil cases. It has taken it upon itself to sit as a criminal court in relation to Scotland in breach of that role and has, I believe, acted ultra vires – its strength should not extend to Scots criminal law. I would hope that there was sufficient courage in Scotland’s Supreme Courts to refuse to follow the direction in this case to quash the conviction and to refuse it on the grounds that the UK Supreme Court acted outwith its jurisdiction. I would hope for that but without any real promise.
It’s time to remove all of Scots law from the grasping hands of the UK Supreme Court. It has failed.
Murmuring a judge you say?