(78)  Human rights, the judges and the new Scotland

Human rights continues to cause difficulties in the administration of criminal justice in Scotland.  The most notable case (because it involves a UK statute) is Brown v Stott 2000 SLT 379, in which the High Court of Justiciary held that Article 6 of the European Convention of Human Rights (right to a fair trial) and the consequent right to silence and right against self incrimination was infringed by use of evidence obtained under s 172(3) of the Road Traffic Act 1988, under which it is an offence for the keeper of a motor vehicle to fail to give information to the police when required to do so as to the identity of the driver of a motor vehicle when that driver is alleged to have committed offences.  It is understood that this case will go to the Privy Council.

Article 6 was again invoked in Hoekstra v H M Advocate (No 3) 2000 GWD 12-417. The substance of the appeal in that case, following a conviction on drugs charges in the High Court, had been that certain aspects of the trial procedure breached the accused’s rights under Articles 6 and 8 of the ECHR. The hearing before the appeal court concluded on 3 December 1999 and the court issued its opinion on 28 January.  Lord McCluskey, one of the members of the appeal court bench, had retired from office on 8 January. During February the newspaper Scotland on Sunday ran a series of articles by him reflecting on the Scottish legal system and commenting extensively on the ECHR. Lord McCluskey quoted  his own words as Reith Lecturer in 1986 when he warned that the Canadian Charter, copied from the ECHR, provided “a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers”. He then added: “Prophetic or what?”. A motion that the appeal court bench should disqualify itself and different judges be appointed was granted rapidly thereafter. In his judgment, the Lord Justice General  referred to the apprehension of bias created by the articles, and he stressed the importance of the “tone of the language and the impression which the author deliberately gives that his hostility to the operation of the Convention…is both long-standing and deep-seated. The position would have been very different if all that Lord McCluskey had done was to publish, say, an article in a legal journal drawing attention, in moderate language, to what he perceived to be the drawbacks of incorporating the Convention into our law”. Meantime, in the continuing fall-out from the decision against temporary sheriffs in Starrs v Ruxton 2000 SLT 42 (see (2000) 4 Edinburgh Law Review 1, below No 70), Jim Wallace, the Minister of Justice (who also became acting First Minister in the absence of Donald Dewar following a heart bypass operation), has further indicated that both a judicial appointments commission and a human rights commission will be established in future.  The Scottish Executive consultation document on judicial appointments can be viewed at http://www.scotland.gov.uk/consultations/justice/jaia-00.asp. The debate about judicial appointments intensified after the Lord Advocate, Lord Hardie of Blackford, was elevated to the bench on 17 February 2000, the appointment being by the Queen on the recommendation of the First Minister who will have consulted the Lord President and the Lord Advocate.  The Lord Advocate’s promotion also caused controversy in the light of the imminence of the Lockerbie trial, at which he would have headed the prosecution.  Meantime, in the European Court of Human Rights it was held to be incompatible with Article 6 of the Convention for a judge to have any direct involvement in the passage of legislation or of executive rules a dispute over which might subsequently have to be resolved by him or her (McGonnell v United Kingdom, The Times, 22 February 2000).  The decision immediately cast doubt upon the position of the Lord Chancellor and over the participation by Scottish judges in legislative debates at Westminster.