Policing in Scotland and Human Rights

Dr Genevieve LennonSchool of Law, University of Dundee

Outline

1. Scottish criminal court structure in relation to human rights

2. Cadder and the right to legal advice under Article 6

3. Fraser and the comparison between the right to a fair trial under Article 6 and a ‘miscarriage of justice’ under the Criminal Procedure (Scotland) Act 1995

4. In defence of guilty people walking free: why the integrity of the criminal process is crucial to policing

Scottish criminal court structure in relation to human rights

Scottish criminal court structure in relation to human rights

• Scotland has a separate legal system and courts

• Scotland Act 1998: all devolution issues are reserved matters

• All appeals on devolution issues go, ultimately, to the Supreme Court

Controversy over the Fraser case• Alex Salmond: ‘The increasing

involvement of the UK Supreme Court in second guessing Scotland's highest criminal court of appeal is totally unsatisfactory’

• Independent Review Group• Scottish Parliament has no

competence to alter Scotland Act or Human Rights Act 1998

• Representativeness of ECtHR vs. Supreme Court?

Facts of Cadder

• Appellant detained and questioned under caution; not offered access to lawyer

• Convicted; prosecution relied on statements made when under caution

• Appealed on basis of infringement of Art 6

(Some of the) Differences between Criminal Procedure in Scotland and

the rest of the UK

• Length of pre-charge detention (6 hrs vs. 96 hrs)

• Corroboration • Pre-charge access

to a lawyer

The Right to Legal Advice under Art. 6

• Not absolute• 2009 Crown Court: 70% guilty plea• 45% of detainees request legal advice (Kemp

& Blamer 2011)• 49% of terrorist suspects request legal advice

(Brown 1993)

Facts of Fraser

• Convicted of murdering his wife

• Prosecution relied on evidence regarding wife’s rings

• Fraser tried to add ground of appeal of infringement of Art.6 on basis of non-disclosure – refused

• Leave to appeal to SC refused but granted by SC

Fraser in the Supreme Court

• Cameron test (Criminal Procedure (Scotland) Act 1995, s.106(3)): fresh evidence

• McInnes test (Article 6: non disclosure)

Article 6: the right to a fair trial

• Right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law

• Factual guilt and procedural fairness• Holistic approach to ‘trial’ – from pre-charge

detention to conviction• Defects can be cured by the court

Criminal Procedure (Scotland) Act 1995, s.106(3)

• Alleged miscarriage of justice– Fresh evidence– Unreasonable verdict

• Factual guilt and procedural fairness, but emphasis on former

• England: Criminal Appeal Act 1995, s.2: ‘if conviction is unsafe’

In defence of guilty people walking free (sometimes): why the integrity of the criminal process is crucial to

policing

• The Royal Commission on Criminal Procedure (1981): have regard ‘both to the interests of the community in bringing offenders to justice and to the rights and liberties of persons suspected of crime’

Crime Control vs Due Process

Due Process: Legitimacy of

the system is key

• Formality• Lack of finality

Crime Control: high proportion of

convictions• Speed• Informality• Finality

Crime Control Due Process

• Scotland? – Varies over time; depends on the particular aspect

of the CJS – Due process lens– Legitimacy of system as a whole is of central

importance

R v Mullen [2000] QB 520

• Mullen convicted of conspiracy to cause explosions

• Kidnapped from Zimbabwe

• Court of Appeal allowed appeal based on legitimacy argument

Conclusion

• Allegations of human rights infringements in trial raise devolution issues and will be heard (ultimately) by the Supreme Court

• Gap in practice if not law between criminal appeals procedure in Scotland and Article 6, ECHR

• Integrity of criminal process as a whole is fundamental to our CJS

Questions? Comments?

Dr Genevieve LennonSchool of Law, University of Dundee