Goodbye 2010, hi to 2011

Another year over and a new one just begun.  War isn't over but Scots Law News hopes that all its readers have some fun in 2011.

Looking through our posts for 2010, we are most struck by the advances of social media into what might once have been thought no-fly zones.  The Scottish judiciary now have their own website, and the Stair Society – not to mention Stair himself – are on Facebook.  The Scottish blawgosphere is flourishing, as a glance at our sidebar will confirm.  So far as we know, however, while solicitors, advocates and of course Scots Law News have their own Twitter accounts, no Scottish judge has yet dared to tweet, whether on or off the bench.  But jurors may well be doing so (see Jennie Law on this here), and the Scottish Law Commission has just pointed out, as part of an argument that an accused's previous convictions should be before the court from the outset of a trial, that jurors are searching for such information on the Internet as a case proceeds, with concomitant risks that the information they get is wrong, incomplete or misleading (Discussion Paper No 145 on Similar Fact Evidence and the Moorov Doctrine, paras 7.74-7.79).  In England the Lord Chief Justice issued on 20 December an interim practice guideline on the use of mobile communication devices by anyone in court, noting that photography and sound recording are generally not allowed, but saying that nevertheless "the use of an unobtrusive, hand held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice".  We already have our own example illustrating this in Scotland with James Doleman's blogging coverage from the courtroom of The Sheridan Trial: for his comments on the experience see especially here.

This time last year Scots Law News ventured into the realms of prophecy, and reviewed in the light of what actually happened, we think we did not too badly.  True, we failed to predict the eventual outcome of the UK General Election while Captain Calamity and Sergeant Eros disappointed us with their failure to do anything noteworthy in 2010.  But otherwise we feel emboldened to look again into our crystal ball. 

We confidently expect to remain interested in the health and well-being of Mr Megrahi, and we will also keep tabs on the Naked Rambler while not expecting much from him before the build-up to next Christmas.  We will replace the Captain and the Sergeant with Mr Sheridan, news of whom may be expected also to fill the gap left by the enforced absence from the public stage of Mr Gough.  A Scotland Bill is before the Westminster Parliament and may be on the statute book by the time a new Scottish Parliament is elected in May.  We suspect that there will still be a minority Scottish Government after that election but beyond that our crystal ball goes a little grey.  In the meantime we can expect at least an Inner House ruling or two on the legislative competence of the Scottish Parliament (pleural plaques and, maybe, cigarette sales); perhaps even offerings on the same subject-matter from the Supreme Court.

But perhaps the biggest thing likely to happen is the transformation of the basics of criminal law evidence and procedure, or at least the beginning of a transformation set in motion some years ago by the World's End trial outcome and accelerated by the Supreme Court decision in Cadder.  After the World's End case the Scottish Law Commission was asked to consider Crown appeals, the rule against double jeopardy and similar fact evidence.  Reports on the first two topics led to sections 73-76 of the Criminal Justice and Licensing (Scotland) Act 2010 and the Double Jeopardy (Scotland) Bill now before the Scottish Parliament, while as noted above a Discussion Paper on Similar Fact Evidence was published just before Christmas 2010 and proposes inter alia that there be disclosure of an accused's previous convictions where relevant to the case against that person.  Cadder has already led to change in the law relating to the legal representation of a suspect in police custody – see the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 – while the Carloway review will surely lead in due course to the disappearance of the requirement of corroboration.  All these changes, actual and potential, will surely mean a fundamentally different system of criminal justice in Scotland by the end of 2012 if not 2011.  And finally, reverting to our previous thoughts on social media in court, what price reconsideration of the ban on live camera coverage in court, whether for broadcasting on TV or streaming on the Internet?


Megrahi update

As 2010 comes to an end, with tales of Mr Megrahi's imminent demise apparently somewhat exaggerated, time for an update on the rush of other stories on the subject that became public during December 2010.

(1) Despite a "deadline" of 10 December, no response so far from the Scottish Government to the Scottish Parliament Public Petitions Committee on the legal authority for the statement that the Government has no power or authority to hold an inquiry into the Megrahi conviction.

(2) But an announcement was made on 9 December by the Scottish Criminal Cases Review Commission that not all the parties whose material submitted directly or indirectly had led the Commission to refer the Megrahi conviction back to the Court of Criminal Appeal as a possible miscarriage of justice had consented to its disclosure.  This meant that, in terms of the SCCRC (Permitted Disclosure of Information) Order 2009 (which came into force on 1 February 2010), none of the information could be disclosed.  The Herald's story back in June 2010 was thus confirmed.

(3) The "whistleblowing" disclosures of the Wikileaks website about US international diplomatic activity reached the Megrahi affair on 8 December.  These confirmed what already seemed pretty obvious to those who have followed this business over the last few years, viz that the continued detention of Megrahi seriously threatened UK government and commercial interests in Libya, especially if he were to die in prison.  They also seemed to show that Libyan blandishments to the Scottish Government had been rejected.  Lallands Peat Worrier helpfully pulls the material together.  Interesting to note comments in the pre-release material that life expectancy of three months was not "codified" in Scottish compassionate release law and that Megrahi's life expectancy could be anything up to five years.

(4) The 22nd anniversary of the fall of PanAm 108 to the earth around Lockerbie on 21 December 1988 was marked by the publication of the report on the Megrahi release by four members of the US Senate Foreign Relations Committee.  This concludes – unsurprisingly, in view of the previous publicity from the Senators – that the Scottish Government succumbed to strong political and commercial pressure from UK interests for Megrahi's release and that the prognosis of Megrahi's life expectancy was not medically justified.  The Scottish Government naturally rejected these conclusions.  The report does not appear on the Foreign Relations Committee website.  It appears to be the work of the four Senators alone, and not to carry the imprimatur of the Committee.

We seem little further forward, and increasingly unlikely to get anywhere beyond where we were in late August and early September 2009, immediately after the Justice Secretary ordered the release of Mr Megrahi.  Perhaps 2011 will none the less surprise your correspondent.


Tommy Sheridan found guilty of perjury

Tommy Sheridan was found guilty of perjury at the High Court in Glasgow on 23 December 2010.

The jury verdict (a majority one) came at the end of a trial which had begun on 4 October.  Although the trial was to a considerable extent a reprise of the evidence led in the great 2006 defamation case, there was new stuff, above all perhaps a video made secretly by Mr Sheridan's one-time best man, in which allegedly the accused admitted the truth of the allegations about his visits to the now notorious Manchester swingers club known as Cupids. 

Mr Sheridan's tactical approach to his case also bore similarities to 2006, especially dismissal of his advocates a few days into the trial and his thereafter taking on the burden of his own defence.  Where perhaps difference was crucial, however, was his five-hour closing speech to the jury.  In 2006 his speech of just 90 minutes, contrasting with the six hours from counsel for the News of the World, was thought to have been an important, perhaps decisive, factor in that famous victory.

The Crown's approach in prosecution raised doubts in some minds: the gradual paring down of the allegations of perjury from eighteen to six (five of which were eventually upheld by the jury); and, fairly late on, the complete dropping of charges against Gail Sheridan as "no longer in the public interest".  But the Glasgow jury, or a majority of them, was convinced beyond reasonable doubt, as an Edinburgh jury was not on the civil balance of probabilities, that Mr Sheridan had lied in his response to the allegations published by the News of the World in 2003: for example, in denying a visit to Cupids; admissions of that visit made to the Scottish Socialist Party executive committee and, separately, to two SSP members; and an extra-marital sexual relationship. 

It can be taken that the jury majority also did not believe that this was all part of a war between Mr Sheridan and the Murdoch press in which the sacrifice of truth was justified or justifiable.  There were some entertaining insights into the ways of the red-top press, however: notably Bob Bird (Scottish editor of the News of the World) stripping to his underpants to get to see the video confession.  The care and attention lavished on the decision to buy and publicise the video by the then chief editor of the News of the World (Andrew Coulson) must also have renewed confidence back in 10 Downing Street that the Prime Minister's decision earlier this year to appoint the same Mr Coulson as his Director of Communications was indeed a masterstroke.

Over festive season discussions of the case, what Scots Law News has heard most often questioned is why Tommy Sheridan should be "singled out" for prosecution for perjury, which, it is suggested, must be going on in the courts every day.  And why anyway should we care about whether or not a politician is lying about his sex-life, which has nothing to do with his politics?  Your correspondent thinks however that the justifications for the pursuit of the case are simple. 

First, it was Mr Sheridan who put the truth of allegations about his sex-life at issue in the claim of defamation, presumably because he thought that unchallenged these allegations would damage him politically (for insight about that possible damage see former SSP member Alan McCombes' note in the Sunday Herald for 26 December, apparently not available online).

More important, the difference between Mr Sheridan and ordinary cases of witnesses lying, mis-remembering or forgetting (especially in cases to which they are not a party) is that, as the pursuer in a civil case of defamation, Mr Sheridan was lying to lay the whole foundation of an action based upon the claim that his opponents, and all those who gave evidence for them, were the liars – and liars, moreover, who were lying in a conspiracy to bring him down politicaly. 

In essence, therefore, Tommy Sheridan wasn't just lying in his own self-interest; nor was he even just accusing (a very large number of) other people of cooking up and telling lies (bad enough though that surely is).  He was abusing the legal system and attacking the foundations upon which the structure of the law is built. 

What compounds the offence is that at the time in question Mr Sheridan was a Member of the Scottish Parliament, helping enact the laws by which the rest of us are governed.  He is not the only politician ever to have been convicted of this kind of thing, and prosecutions have not been confined to socialists opposed to the Murdoch press: compare the stories of such Tory fibbers as Lord Archer (another "defamed" in the News of the World) and Jonathan ("sword of truth") Aitken, who instead fell before the left-ish forces of The Guardian and Granada TV.   One might also mention in this context that great socialist and red-top newspaper baron Robert Maxwell, probably saved from prison only by his falling off his yacht and drowning, and whose many years' use of the law to prevent publication of the truth about him gave him such posthumous distinction as may be provided by section 12(4) of the Human Rights Act 1998.

So now we await the judge's decision on Mr Sheridan's sentence, to be declared on 26 January and not likely to be less than imprisonment for a substantial period.  We also await confirmation on whether Mr Sheridan will appeal, possibly on the ground of the judge's refusal to admit certain witnesses for the defence.  Meanwhile the News of the World has stated that it will continue its appeal in the great defamation case (pending which Mr Sheridan's award of damages remains unpaid), and claim expenses if its appeal is successful.  This story is far from over. 

Bank charges: latest developments

The Scottish Legal Aid Board was reported on 10 December 2010 to have refused to fund a test case on the enforceability of bank charges for unauthorised overdrafts under the Consumer Credit Act 1974, sections 140A-140D.

The case is brought by Jennifer Sharp who seeks to reclaim charges amounting to £750.  The Board's ground of refusal is based on a cost-benefit analysis: the expenses of the action far outweigh the amount which she is claiming.  There was insufficient evidence that the case would affect large numbers of other people.  Following the decision last summer noted previously here, the bank charges cases are having to be brought under ordinary rather than small claims procedure, where the individual's liability for the expenses of the action is heavily restricted.

Ms Sharp is being advised by Mike Dailly of the Govan Law Centre, who says that he is considering a Court of Session review of the Board's decision.  The Board has however indicated that its decision may be reconsidered if evidence of the potential impact of the case is forthcoming.  Some differences of view about what has been going on are apparent from the respective organisations' websites.

Earlier, in October 2010, the UK Government had indicated (see further here) that, after considering the responses to a call for evidence on the matter, it would not be pressing for reform of the Unfair Contract Terms Directive in order effectively to reverse the Supreme Court bank charges decision, OFT v Abbey National [2010] 1 AC 696 (in which the court held that in its present form the Directive could not be used to review the fairness of the charges).

Liability in the snow

While after the resignation of Scottish Transport Minister Stewart Stevenson on 11 December 2010 there can be no doubt of the possible political liabilities flowing from not dealing properly with the consequences of lots of falling snow, there is perhaps some room for discussion of individuals' legal liabilities to those injured by falls of snow from the roofs of their buildings, or by falling on uncleared pavements in front of the buildings.

When snow deposits itself in great quantities on the roofs of buildings (and indeed atop hedges and walls, as your correspondent has seen in Edinburgh over the last two weeks), and then slides off on to unfortunate passing pedestrians on the pavements outside, have such persons a claim against the owner of the buildings (or the hedges or the walls) in respect of any injury suffered thereby?  The question seemed live to those within the Scottish Law Commission last week when a great wadge of snow crashed to the pavement opposite from the roof of the National Library's Causewayside building; and there was too the unfortunate case reported by the BBC of the Berwickshire schoolgirl severely injured by snow and ice falling on her from the roof of a farm building on 3 December.

The Occupiers Liability (Scotland) Act 1960 makes occupiers liable only to those who enter their property, not to those on the streets outside.  There is common law on that latter situation, however, and the debate, not fully resolved by the First Division in McDyer v Celtic Football Club 2000 SC 379, is whether liability is fault-based or, under the Scots law version of the Roman actio de positis vel suspensis, strict.  The latter remains possible largely because the law is so stated in Bankton's Institute, at Book I, chapter 4, paras 31-32, where he says:

31. The second improper delinquency is, when any thing is thrown over or poured out, from windows of houses, into the streets, highways, or other common passage, whereby damage is done to those that pass by, the master of the family is liable to repair it, as if it had been done by himself, because he ought to have prevented such damage: indeed, by the civil law double damage was due to the person aggrieved, but that cannot take place with us, the private party having no more than redress of damage, in the case of real delinquencies, except where it is otherwise specially provided by statute. 32. A THIRD is, where there is any thing hung up or placed above common passages, which may, by the fall, do damage to persons passing by; the person that did it, or suffers it to be done, is liable to a definite penalty by the civil law; and no doubt by our law, upon a regular complaint, he will be compelled to take it down; but no penalty can be due with us without an express statute, which we have not in this case: however, if it is not removed, when the party concerned is required by lawful authority, at the instance of persons in the neighbourhood, he may afterwards be punished.

Bankton doesn't quite have snowfalls in mind when he is talking about things thrown over or poured out or hung up or suspended, obviously.  Scots Law News suspects that the Romans didn't think too much about snow either; but nonetheless, as the court emphasises in McDyer, the Roman law received in Scotland is adapted to Scottish circumstances, and, whatever Bankton's weather experiences may have been in the balmy age of enlightenment, in this country now snow is a pretty regular occurrence. 

Even if any liability is fault-based, then McDyer shows that the circumstances may often give rise to an application of the doctrine of res ipsa loquitur.  In McDyer the pursuer, who was inside Celtic's stadium, was injured by a piece of wood falling from its roof that should not have been there, so that was a relatively easy case for the res ipsa loquitur doctrine.  But what if snow, or an icicle, had fallen on him instead?  What could the owner of the roof have done about it?  The National Library took the precaution of roping off the pavement outside its building, but will such a thing always be possible for a private householder?  Might you then be exposing the passer-by to the risk of injury on the roadway?

With regard to the other problem of uncleared pavements, the Scottish Government guidance helpfully says there is no law against clearing paths and pavements outside your house, and that if you do it carefully you shouldn't be liable for any passer-by's injury suffered as a result of your efforts.  Having slithered his way to work for a fortnight through the otherwise well-heeled streets of the Grange district in Edinburgh, your correspondent is much more interested in the liability if people fail to clear a path or pavement outside their properties.  He had always understood there to be some sort of legal duty to do this, but can find nothing to this effect on either the Scottish Government or the Edinburgh City Council websites.  Nor is there anything relevant in the Civic Government (Scotland) Act 1982.  There is such a duty in the law of other countries (although not, we believe, in Antarctica), and the time may have come to impose it here if it is not already the law. 

End of Life Assistance Bill terminated

After a prolonged debate since its introduction by Margo MacDonald MSP in January 2010, the End of Life Assistance (Scotland) Bill was rejected by the Scottish Parliament on 1 December 2010.

The Bill's explanatory memorandum summarised it thus:

4. The Bill is concerned with providing persons with a choice at the end of life. It is about ensuring that persons who meet the Bill’s eligibility conditions and who find their lives ntolerable can have the dignified death they desire.
5. The Bill details those persons eligible to apply and specifies the criteria to be met.
6. The Bill includes detailed requirements designed to ensure that vulnerable people are not coerced into seeking an assisted death.
7. The Bill enables eligible persons to receive assistance to bring about the end of their life.  The Bill provides a detailed process with systematic checks and safeguards applying to both those assisting the person and the person making the request. If these processes are followed then the person will be able to receive an assisted death and those who have assisted will not have committed a criminal offence or a delict.

The Special Committee which had been set up to consider the Bill recommended in a report that the Bill be not proceeded with; and the Parliament duly so decided after a debate, by a majority of 85 to 16 with two abstentions.

Margo MacDonald has indicated that if re-elected at the Scottish Parliamentary elections in May 2011 she will bring another version of the Bill back before the Scottish Parliament.

Scotland Bill

The Scotland Bill, implementing (some of) the recommendations of the Calman Report (see previously here), received its first reading in the House of Commons at Westminster on 30 November 2010.

The most significant parts of the Bill are probably those dealing with the tax powers over and above those which the Scottish Government has mysteriously lost since 2007 through not keeping up payments to HMRC (see here for the mystery, which ensures that whichever government is next elected in Scotland will have no tax-raising power until 2013-2014).  These parts of the new Bill (clauses 24-31) seem likely to hog media attention as it progresses through Westminster.

For Scots Law News, the greatest interest lies in the loss of devolved control over corporate insolvency matters (clause 12), and in the absence of any provision to make charities law a reserved matter (contrary to Calman recommendations which still seem slightly puzzling to this observer).

One is also relieved to note that the Scottish Parliament is to lose its power to legislate in relation to Antarctica (clause 14).  One imagines that they talk of little else at Holyrood, especially when the snow begins to fall.  For some entertaining suggestions as how the Scottish Parliament should use its hitherto unsuspected competence in these matters in the few days left to it to do so, see Absolvitor here.  Lallands Peat Worrier claims to have uncovered the truth behind the provision: Bill Aitken MSP had a plan to mark his swansong in the Parliament with a Bill for the benefit of the Antarctica penguins but now Whitehall has headed him off.


We’ll go no more a-rambling – at least for the next year or so

The Naked Rambler got a total of 15 months and 26 days' jail for his latest episodes of nudity after picking up further breach of the peace and contempt convictions in Perth Sheriff Court on 24 November 2010.

Sheriff Robert McCreadie found that not only was the Rambler's brief naked departure from Perth prison on 29 October (noted here) a breach of the peace, but also his refusal to dress for his trial was contempt.

For those who have not spotted it already, our headline comes courtesy of Lord Byron – see here for more.

Supreme Court shakes things up for conveyancers

Having shoogled the criminal lawyers in Cadder, the Supreme Court shook up the orderly world of conveyancing and repossession from defaulting debtors with its judgment in Royal Bank of Scotland v Wilson [2010] UKSC 50, issued on 24 November 2010.

RBS v Wilson was a case about how the creditor in a standard security might eject the defaulting debtor from the property over which the debt was secured.  The relevant legislation stated that the debtor's default had to be preceded by "formal requisition"; the creditor bank argued that a certificate of default lodged in court under section 24(2) of the Conveyancing and Feudal Reform (Scotland) Act 1970 met this requirement.  This was practice established over the last forty years, even although section 19(1) of the 1970 Act said that the creditor intending to exercise the power to eject "shall serve a notice calling-up the security in conformity with Form A of Schedule 6 of this Act" (with which the certificate of default under section 24(2) did not comply).  Practice allowing the certificate of default procedure to be enough was based upon the writings of the late Jack Halliday, sometime Professor of Conveyancing at Glasgow University and "architect" (although not draftsman) of the 1970 Act.  Halliday had written that the creditor in our situation "may" serve a calling up notice, which was an "additional" remedy (see para 47 of the Supreme Court judgment, per Lord Rodger).  But, said Lord Rodger (as a Glasgow graduate), "in the end even a word from Professor Halliday would have to yield to the words of Parliament" (para 49).  "Shall" here was an imperative word; and properly understood, Professor Halliday had not said anything different.  Only a calling-up notice would do before the debtors could be ejected; this was an important piece of debtor protection.  Lord Hope (an Edinburgh graduate) is more dismissive of Professor Halliday's reading (see para 68) and says, "The answer to the problem is to be found in the words of the statute, to which all too frequently insufficient attention appears to have been given" (para 72).

Scots Law News recalls wise words from the Wilson Lecture given by Professor Eric Clive as the Scottish Parliament began its life as a legislature in 1999:

‘Shall’ is an imprecise word with several shades of meaning. When it states a result brought about by the Act itself, it is better replaced by ‘is’. …. The New Zealand Law Commission has recommended the use of the present tense and indicative mood whenever possible, and the replacement of ’shall’ by ‘must’ where a duty or prohibition is intended. … I would like to see the routine use of the word ’shall’ banned from Acts of the Scottish Parliament.” (Edinburgh Law Review vol 3 (1999) at p 143)

Professor Clive attacked the famous opening provision of the Scotland Act 1998 – “There shall be a Scottish Parliament.”  “But what,” asks Professor Clive, “does ’shall’ mean in that sentence?”  RBS v Wilson, where in the end everything turned on whether "shall" meant "may" or "must", confirms the Clive line, I fear.  See here for further comment from Brian Heaney on the UKSC blog.

A week earlier, on 17 November 2010, the Supreme Court also surprised some with its decision in Multi-Link Leisure Developments Ltd v North Lanarkshire Council [2010] UKSC 47, which was about the interpretation of a lease between the parties, in particular the method of valuation to be deployed in fixing the sale price when the tenant (Multi-Link) exercised an option to buy the land in question from the Council.  The conflicting interpretations made a difference of near enough £5 million.  The surprise lies in each of the contrasting approaches of Lords Hope and Rodger to what seems to have been a bungled piece of self-contradictory drafting. 

Lord Hope solves the problem of ambiguity (which he says is a pre-requisite for going beyond the document in the search for meaning, so going against a categoric but un-cited statement to the opposite effect by the First Division in Luminar Lava v Mama Group [2010] CSIH 1, para 38) by setting aside some of the wording used as making no commercial sense (but not disclosing the basis on which he is able to reach that conclusion).  This although he criticises the court below for taking inadequate account of all the words in the contract.

Lord Rodger imposes no requirement of ambiguity but says that in such cases of bungled drafting one should start with the words one can understand to see if they help with the ones you can't – a new approach to this difficult subject.  It leads him to decide that the parties' agreed meaning for a particular section cannot be accepted.  Then he finds that words which were not in the contract at all can be used to decide what the commercial sense of the document must have been.

All very interesting.  At least their Lordships reach the same conclusion (the Council wins), and also uphold the Extra Division's conclusion to the same effect ([2009] CSIH 96), while being critical of its reasoning.  Their fellow Supreme Court Justices divide 2-1 as to which of the alternative approaches they prefer, Lord Rodger winning out here.  Since Lord Glennie in the Outer House reached a different conclusion as to the correct result ([2009] CSOH 114), the case viewed as a whole provides a fascinating example of judges offering at least four distinct approaches to the solution of an admittedly knotty problem.  Advisers meantime must wonder what the law is. 

It is however noteworthy that Lord Glennie handed down his Multi-Link opinion on 31 July 2009 and the case then sped through to its final decision in the Supreme Court less than 18 months later.  Compare RBS v Wilson, which began with proceedings in Edinburgh Sheriff Court in April 1998. 

Cadder as the dust settles

Quite apart from their specific interest as a major decision shaking the Scottish criminal justice system to its roots, the Supreme Court judgments in Cadder v HMA [2010] UKSC 43 contain numerous points worth attention from a more general point of view.

First, the United Kingdom made no attempt to intervene in the preceding Salduz case in 2008, despite its (one would have thought) fairly obvious implications for the Scottish legal system.  Were relevant eyes not on this particular ball at the time?

Second, when should a United Kingdom court regard itself as bound to follow a decision of the European Court of Human Rights?  The answer seems to be that at any rate an unanimous decision of the Court's Grand Chamber (such as Salduz) should be followed; perhaps then the decision of a split Chamber is not binding.  And certainly there is precedent, cited at para 45 of Lord Hope's judgment, that decisions of Sections of the Court which are based on misunderstandings or lack full consideration of law in the United Kingdom need not be applied.  But in any event the Court itself had consistently applied Salduz and a number of ECHR member states which had not previously afforded a right to legal representation at police interviews of suspects were now changing their laws in the light of this jurisprudence.  This suggested that the decision was not one upon which the Court could be persuaded to go back.

Third, both Lords Hope and Rodger go into the history of the rule in Scotland denying suspects in police custody the right to legal representation.  Introduced in its current form by statute in 1980, the legislation followed recommendations in the Report of the Thomson Committee on Criminal Procedure in Scotland (1975).  The Report said how –

"… criminals can render the investigation of their crimes difficult or even impossible merely by standing on their rights.  [The solution] must recognise the realities of the situation, and take account of those police practices which are accepted as fair by the public including criminals although they may be technically illegal or at least of doubtful legality.  (para 2.03) …  We recommend that a solicitor should not be permitted to intervene in police investigations before charge.  The purpose of the interrogation is to obtain from the suspect such information as he may possess regarding the offence, and this purpose might be defeated by the participation of his solicitor."

Thus, given that the basis of Salduz was primarily a concern to protect the suspect against self-incrimination, the Scottish rule, being explicitly based upon the proposition that the accused must be given every chance to incriminate himself, could not possibly stand, whatever the other safeguards (such as corroboration) that might exist in the system.

Fourth, prospective over-ruling.  As is well-known, the courts in the United Kingdom declare the law as it has always been, not change it.  In effect, their decisions have retrospective effect.  The fear in Cadder was that the decision of the Supreme Court would have the effect of invalidating every conviction achieved through the use of evidence from police interviews of suspects without a lawyer present on the suspect's behalf.  Further, while the Scotland Act 1998 gives the courts power to remove or limit any retrospective effect of a decision that an Act of the Scottish Parliament is beyond legislative competence, there is no such power with regard to the acts of Scottish Ministers and the Lord Advocate.  Lord Hope therefore thinks that a possible inherent power in a court to limit the retrospective effects of its decision cannot apply (paras 58-59).  Instead, with Lord Rodger, he finds a solution in a principle articulated by Murphy CJ in the Irish Supreme Court in A v The Governor of Arbour Hill Prison [2006] IESC 45: retrospectivity does not apply to cases decided under the previous understanding of the law that are now "closed".  The new understanding applies only to cases that have not yet gone to trial, cases where the trial is still in progress, and appeals have been brought timeously but not yet concluded.

Discussing this point both Lords Hope and Rodger refer to the power of the Scottish Criminal Cases Review Commission (SCCRC) to refer closed cases back to the Court of Criminal Appeal on the grounds of a possible miscarriage of justice.  The Justices say that it will be for the Commission to decide whether it is in the public interest to refer cases which involved the use of evidence obtained from police interviews of a suspect at which the latter had no legal representation, and for the Appeal Court to decide what to do if such a reference is made (paras 62, 103).  This explains section 7 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (passed by the Scottish Parliament in a single day (27 October)).  It states two new rules as follows:

In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings.

Where the Commission has referred a case to the High Court … the High Court may … reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.

The apparent breadth of these provisions will, one hopes, be tempered by judicial realisation that such general words must be read in the context of the Act as a whole, i.e. as restricting any attempts to use Cadder in relation to closed cases before the SCCRC.  We shall see.

Finally, the Supreme Court decision has cemented that court's unpopularity with the Scottish judiciary, at least so far as its jurisdiction in devolution issues and criminal law matters is concerned.  It was not perhaps a coincidence that on 24 September 2010 the Advocate General for Scotland (Lord Wallace of Tankerness, QC) launched a short "informal" consultation on the Supreme Court's jurisdiction over the decisions of the Lord Advocate (closing date 22 October).  An Expert Group chaired by Sir David Edward is now deliberating on the matter.  The outcome of the consultation and the deliberations of the Expert Group is not known at the time of writing, but one might have thought that the Scotland Bill provided a convenient vehicle for implementing any change to the present law that may be thought needful.


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