First Scottish cases in Supreme Court
The first Scottish cases to reach the Supreme Court of the United Kingdom were argued before a bench comprising Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-Under-Heywood, and Lord Kerr of Tonaghmore from December 8th 2009. It is perhaps surprising that the cases are appeals not from the Court of Session but from the High Court of Justiciary.
While criminal appeals to the House of Lords were of course not competent at common law the Scotland Act 1998 permitted devolution issues in criminal cases to be appealed to the Judicial Committee of the Privy Council as a result of the Lord Advocate and Solicitor General being declared to be Scottish ministers under the 1998 Act, and accordingly subject to act within the competence of the devolution settlement (primarily meaning that the Lord Advocate in the prosecution of cases had to act in accordance with the principles of the European Convention on Human Rights). The Supreme Court of the United Kingdom under the Constitutional Reform Act 2005 merely inherits the pre-existing jurisdiction of the Judicial Committee of the Privy Council. The background to the exercise of this appellate jurisdiction is explained in a very helpful blog post by Aidan O'Neill QC at the UKSC blog.
The cases appealed to the Supreme Court are Allison v HMA, McInnes v HMA, Martin v HMA, and Miller v HMA. Thanks to the Supreme Court website it is possible to get some information on the issue argued before the court, a very welcome innovation.
The cases in Martin and Miller relates to whether s.45 of the Criminal Proceedings etc (Reform)(Scotland) Act 2007 (which increased the sentencing power of Sheriffs in respect of offences under Road Traffic legislation) is within the competence of the Scottish Parliament and therefore offer the first opportunity since the fox-hunting case to consider whether the Scottish Parliament has acted within its legislative competence. Allison and McInnes both relate to issues around the right to a fair hearing under Article 6 of the ECHR. The background to each of the cases is explained in a detailed post by Aidan O'Neill QC.
The first civil case was also heard by the Supreme Court in December as Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-Under-Heywood, and Lord Kerr of Tonaghmore heard argument in Gray's Timber Products Limited v Her Majesty's Revenue and Customs. This appeal relates to chargeable gains and is previewed by Aidan O'Neill Qc here.