The news has been full of reports of another Scottish case decided by the UK Supreme Court, Cadder v. Lord Advocate (transcript available here as a PDF, or here as a plain web page; official summary here). This is another criminal law case where Scottish law has been challenged by way of the ‘devolution issue’ procedure for being in breach of rights protected under the European Convention on Human Rights (in this case, the Article 6 rights to a fair trial). The effect of the case is to require legal advice to be made automatically available to all suspects ‘detained’ on suspicion of criminal offences in Scotland, from before the time they are first questioned.
The decision had been widely expected. Practice at police stations had already been changed, and the Scottish Parliament passed emergency legislation yesterday (the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, available here) to implement it. The Act also extends detention periods for suspects, which led to criticism from the Liberal Democrats (who appear to think that defence lawyers can be on tap in the vicinity of every police station, 24 hours a day). The rancorous debate, featuring poor arguments on all sides, can hardly be said to show Holyrood at its best. There are also justified concerns about the costs of the new rules.
Legally, the case appears a pretty straightforward one. Scottish practice in this area has been widely criticised for many years, within Scotland. It runs contrary to plain jurisprudence of the European Court of Human Rights in a number of cases. While Scotland’s highest criminal court (the High Court of Justiciary) had rejected the arguments advanced by Mr Cadder in a 2009 case (Lord Advocate v McLean  HCJAC 97), ending the issue as a matter of Scottish law, it made its way to the UK Supreme Court as a devolution issue, hence Tuesday’s judgment. That Strasbourg jurisprudence was sufficiently clear that the Supreme Court had little choice but to hold Scottish law in breach of the ECHR.
Kenny McAskill and Alex Salmond have tried to suggest that this decision arises because of a defect in the devolution settlement, and is the imposition of a ‘foreign’ court (that is, the one sitting in London – not the one sitting in Strasbourg); see reports here and here. McAskill’s concerns about this issue are long-standing, hence (among other things) his commissioning of a report by Professor Neil Walker of Edinburgh Law School on Final Appellate Jurisdiction in the Scottish Legal System (discussed HERE, and available here), and without doubt there are problematic aspects of the present appellate structure. But this is a weak case to use for the wider defence of Scotland’s distinctive legal system. The Supreme Court sitting on the case included both its Scottish judges, Lord Hope and Lord Rodger; unlike the case of Miller and Martin (discussed HERE), they agreed with each other as well as being joined by all the other judges on the case. Both their opinions carefully seek to establish whether the Scottish rules are in accord with Strasbourg’s ECHR jurisprudence, given the ‘margin of appreciation’ national legal systems enjoy under the Convention. The conclusion that they are not is a clear one, reached after a careful analysis. There’s very little reason to believe it would make any difference to the legal position if the Scottish Government were able to advance its arguments in Strasbourg, as the First Minister has suggested. Given the position taken by the High Court of Justiciary, all that would have happened if that had been the case is that it would be the court in Strasbourg rather than London making the order that Scottish practice was no longer acceptable.
One can understand the temptations to make political capital out of this issue, especially with an election looming. But in truth it’s a poor choice of subject, and the way the parties have responded to it does no-one a service.