The Supreme Court’s effects on Scottish Courts – The Truth

The recent furore over the Supreme Court in London, and its influence on Scottish court decisions, has produced a welter of scaremongering, misleading, and downright dishonest reports, claiming that the independence of Scottish justice is being undermined, and that the Supreme Court is “interfering” in matters which are rightly the domain of the Scottish Courts.

The latest article to take this particular stance is the Hamilton Advertiser, reporting on the case of Sean Toal. Mr Toal has consistently maintained innocence of the murder of Paul McGilveray, and had lodged an appeal on the basis of several grounds. Following recent decisions by the Supreme Court, Mr Toal’s legal representatives added another ground of appeal – that “evidence” obtained by the police during an interview without a solicitor present had been used in this conviction, a situation which the Supreme Court ruled, in what has become known as the Cadder ruling, is unlawful.

But what does it all mean, both for Mr Toal, and for Scottish Justice generally?

Scotland (and Wales) embodied the principles enshrined in the European Convention on Human Rights into legislation in 1998, under the Human Rights Act that year (England followed suit in 2000.) In essence, this means that legislation at home will be read in ways which are compatible with those principles. So, for example, the “Right to a fair trial” should be viewed within the parameters of what the ECHR defines as “fair,” with some leeway for individual countries to tailor certain aspects to their own cultural and historical traditions.

Rather than each individual applicant having to apply to the European Court in Strasbourg on issues of Human Rights, domestic courts were expected to organise themselves to hear, and rule on, cases which appealed on the grounds that Human Rights had been violated.

The warning shots for Scotland were first fired in 2007, when the issue of interviewing suspects in custody, without access to legal advice or representation, was part of a European Court ruling in the case of an applicant named Salduz. The question raised in this case was whether  such interviews breached article 6 (3) of ECHR – the right to defend oneself in person or through legal assistance of one’s own choosing or, if one has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” The “Section 14” interviews allowed in Scotland, in which suspects could be detained for up to 6 hours for questioning without access to legal advice or representation, were an obvious area of concern – could such interviews create circumstances in which Human Rights were being breached?

Seven Scottish judges said no, claiming that “other safeguards” in place in Scotland, covered such concerns. In 2010, the Supreme Court, in the “Cadder ruling,”  disagreed, finding that, even allowing for the “other safeguards,”  section 14 interviews, where confessions were obtained, or where “evidence” was obtained on which further investigation was based, producing evidence which led to conviction, were not compatible with ECHR principles. The Scottish Courts had had at least 3 years to put their house in order, and had failed to do so.

So what gave the Supreme Court the right to make such a decision, and why is it interference? The answers are that Scotland gave the Supreme Court the right, and there is no interference. The Supreme Court was required to rule on whether Scottish processes were compatible with ECHR, against a challenge that they were not. They did this in line with previous rulings from the European Court itself. What is now being suggested is that, rather than allow the Supreme Court to make such decisions, Scottish individuals whose Human Rights may have been breached by Scottish processes should have to take their cases to Strasbourg. But why should that be, when the court in Strasbourg would rule in exactly the same way as the Supreme Court does?

But perhaps more importantly, Scottish people should be asking, why have our courts (and some of our MPs) taken the stance that, having put themselves in a position where it was clear that processes were not compliant with ECHR principles (and its own agreement that they would be compliant,) the Supreme Court should not be allowed to “over-rule” their decisions? Scotland has failed to honour its own agreement, on behalf of its own citizens, to ensure that the State does not misuse its power against them. And, if recent media reporting is to be believed, Scottish courts (and some MPs) are now demanding the right to continue to fail to honour that agreement, and to continue to deny Scottish people the basic rights which are available to people in other countries which have signed up to ECHR?

There has been much made of the “fact” that guilty people will have their convictions overturned on these grounds, and that may, indeed, be true.  But had Scotland ensured its legal processes were compliant with ECHR principles when it should have done, we would not be facing such a situation today – that is yet another area where Scottish justice has failed its citizens.

But for people like Sean Toal, and others who maintain innocence of the crime for which they have been convicted, the unlawfulness of Section 14 interviews is critical. These are people who had no knowledge of how the justice system works, and who believed wholeheartedly that they could not “incriminate themselves” because they had done nothing wrong. Without a legal expert to explain the difference between common sense understandings of “self incrimination” and the vastly different legal understandings of the same term, these people had no idea that some of the most innocent comments uttered by them would end up being used to convict them of the most serious crimes. That is why ECHR principles need to be enshrined, and enforced, when the might of the state turns its attention to individual citizens.

When we proceed fairly, following recognised and accepted rules and principles, we can begin to trust that our justice system is doing what we expect it to do  – properly and fairly convicting the guilty, and equally properly and fairly exonerating the innocent. Without these basics, we are left without certainty, and without finality. If convictions are not being fairly and properly obtained, how can we ever be sure that innocent people are not serving sentences to allow guilty people to continue to live amongst us?