Food for further thought

The Scottish Government lost little time in welcoming the interim report of the McCluskey review group on appeals to the UK Supreme Court in Scottish criminal cases.

Already by Thursday the Scottish Parliament had passed a Government motion also welcoming the report, believing "that it provides a constructive and well-informed basis for further detailed consideration of the role of the UK Supreme Court in Scots criminal law". Although the motion further looks forward to the review group's final report, Justice Secretary Kenny MacAskill stated during the debate that he believed that the report represented the best solution under the present constitutional arrangements.

It would seem that although the group rejects the Scottish Government's preferred position that no appeals be permitted from the High Court of Justiciary at all - as in pre-devolution, pre-Human Rights Act days - ministers are prepared to adopt it as it gives them the basis on which to attempt to secure a concession from the UK Government over its proposed amendments to the Scotland Bill based on Sir David Edward's expert group report.

Indeed the proposal that leave from the High Court should be necessary before an appeal is taken, or that the court must certify that a question of public importance has been raised before the Supreme Court can decide to grant leave to appeal, would represent a material restriction which many in Scotland will feel more adequately recognises the traditional final appellate role of the High Court.

The Justice organisation argues in response that the tendency of the High Court to hold applications for leave to appeal to be incompetent would preclude the Supreme Court from considering the matter in such cases. That need not necessarily be so. In any event the Supreme Court has caused some surprise with its willingness to bypass the Scottish procedural requirements for a devolution issue to be raised, and some redress of that particular balance might not be out of order. Provided it is no more difficult to have an application for leave to appeal from the Scottish courts considered than it is from the English, the fact that some cases might end up being blocked that could have proceeded under the current legislation is not in itself an objection.

Justice also argues that the very nature of the Supreme Court jurisdiction in relatin to Scotland means that cases must meet the public interest criterion if they are to qualify under the present law. It seems to me that that is not necessarily so, if one considers the Nat Fraser case where it was the specific denial of article 6 rights in the context of the backgound circumstances that opened the door to Supreme Court review.

However Justice does have a point in pointing up matters on which the interim report apparently fails to follow its own reasoning of creating parity with the other UK jurisdictions, by suggesting other special rules; and has raised a further point for consideration in highlighting whether that might mean enacting a right of appeal against actions of the courts themselves that are said to conflict with human rights.

If Lord McCluskey and his colleagues are to do their job, all such matters will have to be considered and dealt with in their final report. It will be interesting to see the Scottish Government's reaction if they make any material qualifications to what they have proposed so far.