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Human Rights, Scottish wrongs : Scots rights to Supreme Court hearings must be maintained against victorian, inflexible Scots legal system

Alex_SalmondSupreme Court battle : Alex Salmond’s understanding of Scots Law & Scots human rights appears flawed. In a week where the vast majority of headlines concerning the Scottish legal system have been taken up by the continuing arguments over the Supreme Court’s ruling in the Nat Fraser case, pitching the misunderstandings of First Minister Alex Salmond & threats from Justice Secretary Kenny MacAskill against the need to maintain the human rights compliance of Scots law with European Convention on Human Rights (ECHR), it may be worth reflecting on the simple fact that in this case, the Scottish Government are very very wrong and very much at odds with the protection of human rights of individual Scots, whether the case be criminal law, or civil.

MacAskill tight lippedScotland’s Justice Secretary Kenny MacAskill said Supreme Court judges knew Scots Law only through visiting the Edinburgh Festival. The Herald newspaper reported on Tuesday of this week that Mr MacAskill, who clearly disagrees with the Supreme Court’s ruling in the Fraser case, had accused the Supreme Court judges (two of whom are Scottish) of being part of a ”court in London that is made up of a majority of judges who do not know Scots Law, who may have visited here for the Edinburgh Festival”. Mr MacAskill is further quoted in the article : “We just want to be treated the same as other legal systems – we’re not, because we’re undermined routinely by a court that sits in another country and is presided over by a majority of judges who have no knowledge of Scots law, never mind Scotland.”

Mr MacAskill also said the Scottish legal system should have direct access to the European Court in Strasbourg rather than the route of the London Supreme court, however, as cases can take years to reach the European Court, and Legal Aid funding from the Scottish Legal Aid Board is not always obtainable if the applicant’s face doesn’t fit, forcing Scots to wait four or more years for a fair hearing at Strasbourg rather than a trip to the Supreme Court is rather impracticable, not to mention breaching the rights of Scots to fair hearing in European law within a reasonable time.

On Wednesday of this week, the Herald newspaper reported the decision of the Scottish Government’s Cabinet to set up an expert group to examine Scotland’s relationship with the UK Supreme Court, quoting First Minister Alex Salmond as saying : “It is that desire to ensure Scotland is allowed to make its own decisions that fuels this Government’s desire for reform of the current position of the UK Supreme Court in Scottish criminal cases.”

He said it was “most certainly not”, as had been suggested by Supreme Court judge Lord Hope, “a misunderstanding of the law and the facts on the part of the Scottish Government”, adding “Our concerns are shared by senior members of the Scottish judiciary and respected legal figures, including Lord Fraser, the former Lord Advocate.” Mr Salmond is further quoted : “This is a practical and moral issue which concerns the rights of victims and their families, whose search for justice is delayed, and leads to cases being decided by a court where the majority of judges are not expert in Scots Law.” yet there are many more respected legal figures who dispute the First Minister’s version of events and view that Scots seeking justice should be forced on the long road to Europe rather than the shorter road to London.

The same day, Wednesday, Scotland’s Justice Secretary Kenny MacAskill threatened to cut funding to the Supreme Court, reported again in the Herald newspaper. The Herald article quotes Mr MacAskill as saying : “When I go to the Law Society I say that I will not routinely fund ambulance-chasing lawyers. It should be said that I am not going to pay for ambulance-chasing courts. As a Government we have to pay for the Supreme Court of the UK and I think they should recognise that we’ll pay for our fair share of what goes there.” Mr MacAskill is further quoted : “But I am not paying money that would come out of the police budget, or prison budget or community payback budget because they are routinely taking cases that we as a country do not think should be going there. He who pays the piper, as they say, calls the tune.”

Surely Mr MacAskill’s threat of withdrawing funding from the Supreme Court is a product of desperation in an argument where clearly, with the failure of Scottish judges to understand ECHR & comply with it in rulings in Scotland, Scots should be even more actively encouraged to seek rulings in London, rather than as the Lord Justice Clerk Lord Gill said himself, Scotland’s “Victorian” justice system.

However, in a twist to Mr MacAskill’s position on the funding question, with the Justice Secretary clearly feeling he can withdraw funding for Scottish cases to the Supreme Court, a move many could say is intended to frustrate an individual’s access to justice, Scottish judges themselves have taken an opposite approach and appeared before Holyrood, arguing they should have the power to ensure funding from the Government if justice requires it.

Lord Hamilton judicialScotland’s Lord President, Lord Hamilton argued Courts should have power to compel funding for justice. Indeed, the current Lord President, Lord Hamilton appeared before the Scottish Parliament’s Justice Committee, telling msps judicial independence should be maintained and also saying the justice system should have the power to ensure funding is made available for it. Lord Hamilton said : “In difficult financial times, it could be important for the courts to be able to say to the other organs of government that, to maintain a proper judicial system in a democratic society, they require funding of a certain minimum level to discharge that responsibility. It is in that provision that you have the responsibility of providing that for us.” Video footage of Lord Hamilton speaking on the question of funding for justice is available here : Lord President Lord Hamilton says the courts should have power to compel funding from Government for justice system to work properly

Today, Friday, the Herald newspaper reports the First Minister as having been forced to defend ‘Little Scotlander’ Justice Secretary Kenny MacAskill over his comments against the Supreme Court and accusations against its judges. Mr Salmond, replying to questions in the Scottish Parliament said : “I fully endorse the Justice Secretary in all aspects of his excellent work.”

Clearly, the human rights of Scots are caught up in a game of political football by Supreme Court hating politicians, who are concerned a court which is generally outside their influence is showing up the Scottish justice system to be the archaic, Victorian and prejudiced model we all know it to be, words spoken by some of its own judges and officials on the ground, rather than those living in ivory towers of St Andrews House.

It should also be noted that while the Scottish Government are content to huff & puff, playing to an agenda which seeks to deprive Scots of human rights rulings within a reasonable time, not one single press release or ministerial statement has appeared on the Scottish Government’s own website this week over the Supreme Court debacle, not even a hint of the Justice Secretary’s threat to pull funding for the Supreme Court.

Readers may wish to view the following two interviews and judge for yourselves, who is acting in the public interest to protect Scots rights of access to justice & access to Human Rights :

Making politics : First Minister Alex Salmond claimed the ruling was the replacement of Scottish Law with Lord Hope’s law, even though Lord Hope is a former Lord President of the Court of Session in Scotland.

Making sense : Professor & solicitor Tony Kelly : “If the Supreme court constantly has to overturn the decisions of the Scottish Court there is a problem..”

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Victorian,prejudiced,racist,sectarian & definitely a little crooked, yet First Minister feels Scotland’s justice system should be its own final arbiter

Scottish judgesScotland’s “Victorian” justice system in the dock after UK’s Supreme Court overturns yet another criminal conviction. AS the ash cloud caused by the Supreme Court’s ruling on Nat Fraser’s appeal continues to spark protests from First Minister Alex Salmond & Justice Secretary MacAskill of the necessity of the Scottish legal system being the final arbiter of cases brought before it, we would all do well to remember that Scotland’s justice system which has been branded Victorian, prejudiced, restrictive, most certainly a little crooked, open to political manipulation and by all accounts certainly racist and even sectarian, cannot in any circumstances be regarded as a justice system fit for a modern democracy which gives those brought before it in criminal law, or those who must use it for civil law, a right to a fair hearing or even a right to access to justice itself.

Yesterday’s ruling by the UK Supreme Court which overturned Nat Fraser’s conviction after a jury at the High Court in Edinburgh in 2003 found him guilty of killing his wife Arlene who vanished from home in April 1998 has led to accusations yet again that the Supreme Court in London threatens the independence of Scotland’s criminal legal system. However, the only real threat to the independence, (and don’t forget the integrity & credibility) of Scottish justice and Scots Law, is Scots Law itself.

First MinisterFirst Minister Alex Salmond being sworn in by .. Scottish judges. Predictably, the First Minister reacted bitterly to the perceived intervention of a court outside Scotland which decided Mr Fraser’s rights to a fair hearing had been breeched. Mr Salmond said : “I have no comment on the specifics of the case, which is live. But what needs to be addressed is the underlying issue – the principle that Scotland has, for hundreds of years, been a distinct criminal jurisdiction, and the High Court of Justiciary should be the final arbiter of criminal cases in Scotland, as was always the case.”

Mr Salmond continued : “Before devolution, the House of Lords had no jurisdiction whatever in matters of Scots criminal law. The increasing involvement of the UK Supreme Court in second guessing Scotland’s highest criminal court of appeal is totally unsatisfactory, and creates additional delay and complexity which cannot serve the interests of justice.As we said in our evidence to the Scotland Bill Committee, the Scottish Government believe that the UK Supreme Court should have no role in matters of Scots criminal law, whether by way of devolution issues or appeal.”

A legal observer, commenting on the ruling & the criticisms of the Supreme Court by the First Minister pointed out the Scottish legal system, with Scotland currently a member of the EU must be ECHR compliant. He said : “First thing is that the London Supreme Court was simply upholding the ECHR, which applies to the UK and by direct application, Scotland.”

Criticising the now notorious woes of Scots Law, he continued : “The Scottish legal and political system is the worst in the British Isles, even worse than the system in the Republic of Ireland. I´m all for further intrusion by the Supreme Court in the Scottish criminal system.”

Let us take a closer look at the charges facing Scotland’s Justice system, both criminal & civil :and judge for ourselves whether it is fit for a modern democracy as we are supposed to be.

VICTORIAN.

Lord GillLord Justice Clerk, Lord Gill branded Scots civil law “Victorian” yet clearly Scots criminal law also has major problems. It wasn’t too long ago Scotland’s Lord Justice Clerk, Lord Brian Gill said in a speech to a Law Society of Scotland conference which preceded publication of his Civil Courts Review, branded Scotland’s civil justice system as “a Victorian model that had survived by means of periodic piecemeal reforms … in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society.” Clearly the judge said it, so it must be true. Lord Gill said a lot more and put forward many recommendations to fix Scotland’s “Victorian” justice system yet the reaction of the Scottish Government to Lord Gill’s damning indictment of Scotland’s civil justice system was to launch another review of Lord Gill’s review, which I reported on here : Scottish Government delay reforms on costs of litigation & access to justice as Minister announces 18 month ‘time wasting’ review by retired sheriff.

Many of the same failings of the civil justice system are also true of Scotland’s criminal law system, which is clearly out of touch on many occasions with human rights issues, so out of touch the Supreme Court also had to correct the rights of accused to be able to consult a solicitor when being interrogated by Police, as occurred in the Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) (pdf) ruling which caused similar huffing & puffing from Mr Salmond & Mr MacAskill, who were apparently keen to maintain the lack of such rights to accused, before the Supreme Court’s ruling.

A review of a very damning review and attempts to restrict the rights of individuals already accepted across Europe does not inspire confidence in the need to update a justice system Mr Salmond claims is already fair and should be its own final arbiter.

PREJUDICED, RESTRICTIVE, SELECTIVE.

Do you need legal aid to fund legal representation ? Whether its a civil or even a criminal case, the Scottish Legal Aid Board may very well refuse it, clearly hindering your right to a fair hearing or a fair trial. Legal Aid refusals appear to be based more on personal prejudices of some in the justice system rather than whether a case stands a chance of success or not.

Don’t have a lawyer ? then don’t expect to get into court, and expect a lot of grief if you try to do it. Try taking a civil case to the Court of Session as a party litigant after being denied legal representation simply because solicitors do not wish (for a variety of reasons including orders from on-high) to progress your case. Never has a class of litigant been so prejudiced in the entire UK as party litigants are in Scottish courts. The eyes of the £200,000 a year judge and equally costly defending counsel before you in the court say it all “Why does this person exist. What gives this person the right to intrude into our cosy club and challenge our right to stand here with the full backing of the legal establishment and decide who should come before us.”

EVEN A LITTLE CROOKED.

From the Law Society personally targeting the lives of those who complain against their solicitors, to our judges being controlled by male prostitutes, to Police Officers leaking data to criminals to fingerprints being planted at murder scenes, to lawyers getting away with legal aid fiddles, to the law itself being manipulated by its servants to bring charges against individuals, one may argue the Scottish justice system is a lot more crooked than the media can keep up with all the scandals requiring exposure.

OPEN TO POLITICAL MANIPULATION.

The Lockerbie Trial, and the controversy that will never go away over the hearings at Camp Zeist and the subsequent conviction of Abdelbaset Al Megrahi for the bombing of Pan Am Flight 103 over Lockerbie, Scotland in December 1988. Just imagine what may have happened if, rather than being conveniently released on compassionate grounds by Justice Secretary Kenny MacAskill, who was obviously keen on avoiding making the Scottish Court of Appeal look even more a fool than it is, Abdelbaset Al Megrahi had finally been able to take his appeal to the Supreme Court in London ? If the court had ruled in his favour and quashed his conviction, how much huffing & puffing would the First Minister and Justice Secretary done in that event.

RACIST.

In the case of Surjit Singh Chhokar, the Crown Office was and still is, branded as “institutionally racist”. There is little doubt race and racial discrimination places a huge part in Scotland’s justice system today, no matter how many statistics the Crown Office may tout on hate crimes or race crimes.

As the Telegraph newspaper reported at the time : “SCOTLAND’S most senior lawyer announced sweeping reforms of the Scottish criminal justice system yesterday following the publication of two damning reports into the murder of an Asian man. Although the reports reached conflicting conclusions on institutionalised racism, both investigations uncovered serious mistakes by the prosecution service in its handling of the Surjit Singh Chhokar case.”

“Comparisons between the Chhokar case and that of Stephen Lawrence had been made followingthe acquittal of three men accused of murdering the Sikh waiter three years ago. Addressing the Scottish Parliament, Colin Boyd, the Lord Advocate, admitted that the legal system had “failed the Chhokar family” and offered his apologies to them. Mr Boyd accepted the findings of a report by Raj Jandoo, Scotland’s most senior Asian advocate, which found evidence of institutionalised racism in the way police officers and the Procurator Fiscal dealt with the bereaved family.”

We all of course remember what happened to Scotland’s most Senior Asian Advocate Raj Jandoo after he wrote the report, BBC News reported Mr Jandoo was convicted of endangering an aircraft and breach of the peace for mentioning a bomb and being regarded as terrorist causing fear and alarm to passengers and crew. Meanwhile other [white] Scottish legal luminaries dragged off aircraft & charged with offences, had their charges dropped.

Racism is still very much alive in the Scottish justice system today.

SECTARIAN.

Surprise ! Even though no one wants to admit it, Scotland’s justice system is just as sectarian as those individuals or groups the Justice Secretary now seeks to legislate against with what will probably be poorly thought out laws rushed through the Scottish Parliament which may well end up being challenged on ECHR compliance later on, possibly in the Supreme Court once again.

According to a report authored by Dr Susan Wiltshire of Glasgow University for the Scottish Parliament’s Petitions Committee, there is firm evidence to show the Scottish Justice system is itself sectarian, holding harsher positions, verdicts & gives out longer term sentences against catholic defendants and other religious minorities than other groups who come before it on criminal (and quite possibly civil) matters, according to coverage from Scottish Law Reporter, available here : Report published by Holyrood Committee says justice system may be prejudiced against Catholics, confirms higher numbers in Scots jails.

The report, which msps were reluctant to publish, presumably because it revealed there were indeed sectarian issues in the Scottish justice system itself, can be downloaded from the Scottish Parliament’s website, here : Offender Demographics and Sentencing Patterns in Scotland and the UK: Research commissioned by the Public Petitions Committee in consideration of PE1073 (203KB pdf)

Is such a justice system worth defending when clearly it fails to serve Scotland and the Scottish people, rather only serving its own vested interests and of those who support it ?

First Minister Alex Salmond’s criticisms of yesterday’s Supreme Court ruling and his views on Scotland’s justice system being its own final arbiter are not consistent with the realty of justice in Scotland. Little wonder therefore that those who require a fair hearing in criminal or civil law should now look to the Supreme Court and even Europe because Scottish justice is unfair and all the things above.

Of course, Mr Salmond, you’d know all this anyway if you actually spent some time in the justice system yourself …

 

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