There’s been so much sound and fury about the Supreme Court’s decision in Fraser v HMA, that it’s easy to forget what the cases in question are actually about. So, what would actually have happened if the FM had had his way, and the Supreme Court had no input on Scottish criminal matters?
(a) Cadder v HMA. The decision of the High Court of Justiciary (sitting as a Court of Appeal) that being interviewed without a solicitor was not a breach of the European Convention would not have been overturned-yet. The case would instead most likely be waiting in the queue at Strasbourg-where it may well stay for a few years. Most jurists agree that the HCJ got it wrong; indeed, it is extremely difficult to square the High Court’s view with the pre-existing Strasbourg decision of Salduz to the effect that “article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right”. So it is perhaps fair to presume that Strasbourg would have found fault with the decision and declared Scots practice contrary to the Convention. Meanwhile, a significant number of Scots would have continued to be banged up, in contravention of their Convention rights. Oh, and Mr Cadder’s conviction would not actually have been overturned by Strasbourg, and possibly not by our courts, either. Nice!
(b) Fraser v HMA. Bit of background needed here. At the original trial, which concluded in January 2003, the prosecuting Advocate Depute (AD) placed significant weight on the mysterious reappearance of the victim’s engagement ring, wedding ring and eternity ring at her house, around a week after her disappearance. His theory was that the accused had retrieved the rings from his wife’s body and planted them in the house, to make it appear that she had walked away from her life there. The reappearance of the rings was described as the cornerstone of the Crown’s case, and the trial judge went so far as to direct the jury that they could only convict Fraser if they were satisfied that it was he who had planted the rings.
The problem with all this was that, in July 2002, one the PCs involved in the investigation had told a Crown precognition officer that he had noticed the rings in question in the victim’s room a day or two after her disappearance. That information was promptly forgotten about, and was not relayed to either the prosecutors or the defence team during the trial. It was only in 2006, after the appeal was lodged, that it was rediscovered. The PC was re-precognosed, and repeated what he had previously said; a colleague who had been with him on the night in question was also precognosed, and confirmed his version of events. The trial AD was also interviewed, and stated that, had the PC’s evidence came out at trial, the trial would have had to be deserted.
Despite all that-the AD’s view on the significance of the evidence, the common sense view that the new/concealed evidence would have had some bearing on the jury’s consideration of a crucial part of the Crown’s case, and the trial judge’s charge-the HCJ again held that there was nothing wrong with the conviction. It is, I would suggest, a finding with which most lay people (ie potential jurors) would have substantial difficulty. Nonetheless, on Planet Salmond, Mr Fraser would have remained behind bars, possibly with an application to Strasbourg-which, again, would have taken years, and would not have resulted in the conviction having been quashed, even if it had been found that his Convention rights had been infringed. Nice!
So, what sort of Scotland would we have if Messrs Salmond and MacAskill had their way? A Scotland in which two likely breaches of the European Convention were ignored; one in which the victims of those breaches had to wait years to have their appeals from the Scottish legal system heard; and, one in which breaches of the Convention would not actually have resulted in convictions being overturned.
Applying John Rawls’ veil of ignorance, and even taking account of Scottish pride in the “purity” of our legal system, I wonder if most Scots would prefer to live in a Scotland with, or without, the jurisdiction of the Supreme Court? Answers on a postcard, if you please.
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