Monday, June 27, 2011

First Minister’s threats & intimidation over alleged Supreme Court ‘interference in Scots Law’ scores ‘call for change’ on Human Rights rulings

After weeks of threats & intimidation, claims, counterclaims & criticisms from Scotland’s First Minister Alex Salmond & Justice Secretary Kenny MacAskill of the UK Supreme Court’s rulings in the Cadder v HMA case and more recently its ruling on Nat Fraser, accused of murdering his wife, the review group headed by Lord McCluskey has published its first report ahead of a debate in the Scottish Parliament later this week. Unsurprisingly, the initial report concludes there should be change in the way cases from Scotland can get to the Supreme Court and  only if the High Court in Scotland granted convicts permission to appeal.

Eager to take the sting out of today's announcement of the untimely death of Lord Rodger, who, along with Lord Hope and the other judges of the Supreme Court the First Minister & Justice Secretary did most thuggishly attack over the past few weeks due to their own perception the Supreme Court had ‘interfered’ in the Scots legal system, First Minister Alex Salmond today selectively welcomed the findings of Lord McCluskey’s review group, saying : “There is now a consensus that the UK Supreme Court plays a much broader role in Scottish criminal law than had been envisaged when the Scotland Act was passed, and that it is more intrusive within Scots Law than is the case for the other jurisdictions within the UK - with serious implications for the certainty and integrity of our distinct legal system.”

However, it should be noted Lord McCluskey’s initial report clearly states : “We do not suggest that the jurisdiction of the Supreme Court should be ended.”

Supreme Court Review

On 05 June 2011, First Minister Alex Salmond announced the creation of an independent review group to consider the law and practice currently governing the respective jurisdictions of the High Court of Justiciary and the Supreme Court in cases involving the application of human rights law, including cases in which 'devolution issues' are raised.

The full terms of reference for the group are: "To consider and assess the mechanisms created under the Scotland Act 1998 and the Human Rights Act 1998, and developed since then, for applying Human Rights law to criminal cases in Scotland, including particularly the regulation, subject matter and scope of appeals from the High Court of Justiciary to the Supreme Court of the United Kingdom; To consider the criticisms of and various suggested amendments to those mechanisms in light of current assessments, including criticisms, of their operation; and to advise on the ways in which they might best be altered, if appropriate, by legislation or otherwise, to ensure Scotland's unique system of Criminal Law and Procedure is fully protected, within the context of the accepted need for that system to comply with the Human Rights Act."

Read the reports here : First Report of the Review Group (pdf) Appendix and Supplement (pdf)

SUMMARY OF ADVICE :

72. We agree with the Expert Group that serious problems have arisen - in relation to the jurisdiction of the Supreme Court in criminal cases involving human rights issues - because the statutory basis in the Scotland Act 1998 for that jurisdiction is unsatisfactory (cf. paragraphs. 42 and 43).  We do not suggest that the jurisdiction of the Supreme Court should be ended.

73. We endorse the general solution proposed by the Expert Group and adopted by the House of Commons on 21 June 2011 to create a different procedure for human rights appeals, but we advise consideration of a new provision governing permission to appeal to the Supreme Court from a determination by the High Court of Justiciary of any question of “compatibility”, as  defined in the new Section 98A (2) (paragraphs 53 to 57).

74. Our proposed new provision (outlined in paragraph 56) would put the High Court of Justiciary on an equal footing with its counterparts elsewhere in the UK by enabling the Supreme Court to grant permission to appeal only if the High Court of Justiciary has  granted a certificate that the case raises a point of general public importance. Other issues about permission are suggested for further discussion (paragraphs 67 to 69).

75. It should be made clear that, in criminal appeals from the High Court of Justiciary on “compatibility” questions, the Supreme Court’s jurisdiction is to be exercised in such a way that it defines and expresses the law applicable and then sends the case back to the High Court of Justiciary to apply that law (paragraphs 60 to 64). In this way the traditional role of the High Court of Justiciary, reflecting the long history of separate development of the Scottish criminal system, would be preserved. The precise method of achieving this clarification should be fully discussed with those who have to deal with such cases in practice.

76. We advise that careful consideration be given to a general rule that normally the Supreme Court should give a ruling on a “compatibility” question only after the case has been completed. However, it might be wise to permit the High Court of Justiciary to ask the Supreme Court for a ruling at an earlier stage (paragraphs 65 and 66). We have not, as yet, fully discussed the provisions that allow References to the Supreme Court by the Advocate General or the Lord Advocate.

77. We are prepared to consult interested parties on the way forward following publication of this Report and the subsequent Parliamentary debate.

BBC News reports :

Supreme Court system for Scottish cases 'flawed'

Experts reviewing the relationship between the High Court of Justiciary and the UK Supreme Court in criminal cases have called for change.

Lord McCluskey's review group claimed Scotland faced more intrusive jurisdiction from the Supreme Court than the rest of the UK.

The report said the system was "flawed" and called for coherence across the UK.

The first minister set up the group over concern about the Supreme Court's involvement in Scottish criminal cases.

Scottish government ministers previously said the Scottish legal system should have direct access to the European court in Strasbourg - ending the jurisdiction of the UK Supreme Court on Scottish criminal cases.

However, the McCluskey Group backed the UK Supreme Court's jurisdiction to rule on human rights in Scottish criminal cases - but only if the High Court in Scotland granted convicts permission to appeal.

Currently in Scotland, an appeal can be made to the UK Supreme Court for criminal cases relating to human rights law.

In the rest of the UK, an appeal to the Supreme Court is only possible with the leave of the Court of Appeal - and only when a point about general public importance is at stake.

The McCluskey report recommended a new provision, with proposed amendments to the Scotland Bill, which would place the High Court of Justiciary "on an equal footing with its counterparts elsewhere in the UK, by enabling the Supreme Court to grant permission to appeal only if the High Court of Justiciary has granted a certificate that the case raises a point of general public importance".

It also said it should be made clear that "the jurisdiction of the Supreme Court should be exercised in such a way that it identifies clearly the law that the criminal courts have to apply, but that the application of the law to the case in which the issue is being litigated should be remitted to the High Court of Justiciary".

It claimed this would help preserve the traditional role of the High Court of Justiciary under current constitutional arrangements by ensuring "the Supreme Court, in dealing with its human rights jurisdiction in criminal cases, would concentrate on identifying and articulating clearly the relevant law contained in the Human Rights Act and would not proceed to decide the case as if it were the High Court of Justiciary".

First Minister Alex Salmond welcomed the review group's first report, which has been published in order to help inform the Scottish Parliament debate taking place on Thursday.

He said: "There is now a consensus that the UK Supreme Court plays a much broader role in Scottish criminal law than had been envisaged when the Scotland Act was passed, and that it is more intrusive within Scots Law than is the case for the other jurisdictions within the UK - with serious implications for the certainty and integrity of our distinct legal system.

"We now have the interim analysis and conclusions of the McCluskey Group, and I particularly welcome its recommendations for amendments to the Scotland Bill to limit the role of the UK Supreme Court by placing referrals from Scotland's highest court of criminal appeal - the High Court of Justiciary - on the same footing as is the case for the justice system south of the border.

"It also makes positive suggestions for the UK Supreme Court to operate clearly and consistently as a court of interpretation of human rights law, and not 'as if it were the High Court of Justiciary'."

He added that the recommendations should be "capable of attracting support and consensus across parliament, and among the wider legal and other important interests involved".

It is expected the group will publish a final report by autumn - before amendments are made to the Scotland Bill.

A spokesman for the Advocate General - the UK government's senior Scottish legal adviser - said any change in the rights of Scots to appeal directly to the Supreme Court in London would require legislation in Westminster.

He said amendments could be made to the Scotland Bill, which has just been sent to the Lords from the House of Commons, but pointed out that Lord McCluskey's full report was not due to be published until later in the year.

The spokesman said: "Ministers will consider the McCluskey Report and debates later in the week in Holyrood.

"They will do this along with consideration of the UK government's expert qroup and consultations on this issue before coming to a final view."

The row about the Supreme Court's role in Scottish criminal cases erupted in May in the case of Nat Fraser.

Five justices in the court in London said Mr Fraser's conviction for the 1998 murder of his wife, Arlene, should be quashed.

Fraser, 52, from Elgin, now faces a retrial.

The court had previously cast doubt on a large number of criminal convictions in Scotland in a ruling which came to be known as the Cadder judgement.

This concerned the rights of a suspect to legal representation during questioning by police.

Supreme Court announces the death of Lord Rodger of Earlsferry after a short illness

The UK Supreme Court has today announced the death of Lord Rodger of Earlsferry, one of two Scottish judges who sit on the benches of the Supreme Court. It is reported Lord Rodger suffered a short illness.

It is with great sadness that we convey the news that Lord Rodger of Earlsferry, Justice of the Supreme Court, died peacefully in his sleep during the morning of Sunday 26 June, following a short period of illness.

Lord Phillips, President of the Supreme Court, said: "I am deeply distressed to learn of the death of Alan Rodger. For ten years he has been a mainstay of the Law Lords and of the Supreme Court. He was an outstanding jurist and a wonderful companion. His premature death is a tragic loss to the Court and to the nation."

Lord Hope, Deputy President of the Supreme Court, said: "Lord Rodger’s premature death has deprived us all of a greatly valued colleague and a much loved friend. It is a desperately sad end to a brilliant career. His contribution to the development of the law was immense. He had so much more still to give, both as a judge and to academic life both in Scotland and at Oxford. Our thoughts are with his family and his many close friends, whose lives were enriched by his generous and engaging personality and who meant so much to him too. His legacy is to be found in his judgments, his lectures and his academic writings, which will live on as his memorial for generations to come.”

A detailed tribute to one of Lord Rodger’s rulings involving a controversial case which implicated the Council of the Law Society of Scotland in the downfall of a successful firm of solicitors, was published by independent law journalist Peter Cherbi on his “Diary of Injustice web blog HERE

Friday, June 24, 2011

Scottish Government’s controversial Sectarian Offences Bill to tackle Homophobic crimes, possibly songs of sex with sheep says QC Paul McBride

The debate on the highly controversial Offensive Behaviour at Football and Threatening Communications (Scotland) Bill which aims to tackle acts committed at Football matches in Scotland and ‘threatening communications’ on the internet has taken a new twist with claims in a televised debate from famous QC Paul McBride the legislation will also tackle homophobic crimes, and, in response to points raised by a former Law Society President, songs relating to football fans seeking sexual relationships with animals.

Ian Smart, solicitor & former President of the Law Society of Scotland asked Mr McBride for a practical example of an act which will be criminalised by the new bill which is not already a crime covered by current legislation. Mr Smart remained unconvinced after responses from Mr McBride who gave the example of homophobic abuse involving Paul Hartley for Hearts, where someone was alleged to have shouted homophobic remarks from the crowd, were prosecuted for breach of the peace and the court held it was not a breach of the peace under current legislation,.

Mr McBride said the bill would cover sectarianism, homophobia and other forms of …. its offensive behaviour … it defines offensive behaviour sectarianism, homophobic behaviour and other types of behaviour involving racism, that's quite clear to most people. Mr McBride went onto say Breach of the Peace was being constrained & defined by the courts.

When asked about the clause in the bill regarding “intersexuality”, Mr McBride said the clause was designed to deal “with attacking people’s sexual orientation in a vile way…”. Ian Smart in response used an example of where Aberdeen fans are used to being serenaded with songs suggesting ‘sexual relations with a sheep’, and asked if those songs were to be criminalised too. Mr McBride said it was a possibility… (Mind the sheep then ! – Ed)

Is it sectarian or homophobic legislation ? Ian Smart & Paul McBride debate Offensive behaviour at football matches in Scotland. (Click image below to view video)


The section of THE BILL dealing with “intersexuality” as highlighted in the above interview, refers to the interpretation of what is to be classed as “offensive behaviour” :

(3)  In section 1(4)—
(a)  “disability” means physical or mental impairment of any kind,
(b)  “transgender identity” means any of the following—
(i)  transvestism,
(ii)  transsexualism,
(iii)  intersexuality,
(iv)  having, by virtue of the Gender Recognition Act 2004 (c.7), changed
gender,
(v)  any other gender identity that is not standard male or female gender identity.

(So, if I read this right, only R2D2 could be subject to offensive behaviour at a football match, unless it claims a gender at some stage … heck I might have committed an offence just saying that much ! – Ed)

Asked about whether the bill would deal with homophobic offences, a Scottish Government spokesman speaking to one of our reporters on the subject of Mr McBride’s remarks, said : “On the Paul McBride comments, absolutely. The offensive behaviour bill relates to all forms of hatred. Any behaviour which is threatening, which would be offensive to any reasonable person, or which expresses or incites religious, racial or other forms of hatred can result in a conviction of up to five years in prison under the proposed new legislation.”

The Scottish Government’s Press Release on the bill, from earlier this week stated :

Tough new laws on sectarian and offensive behaviour
Bigots will face five year jail terms

Tough new laws to crack down on sectarian and other forms of hatred in Scotland should be in place in time for the new football season after Ministers introduced a draft Bill to the Scottish Parliament.

The legislation seeks to create two new offences relating to offensive behaviour that can incite religious, racial or other forms of hatred, in and around football grounds and on the internet.

If approved, the ‘Offensive Behaviour at Football and Threatening Communications (Scotland) Bill’, will mean bigots will face up to five years in prison upon conviction and the possibility of a football banning order.

The Bill is being fast-tracked through the parliamentary process to ensure the new powers are in place in time for the new football season.

The Minister responsible for tackling sectarianism, Minister for Community Safety and Legal Affairs Roseanna Cunningham said: “Racism, bigotry and sectarianism are not welcome in Scotland, it is totally unacceptable, and those who perpetuate this hatred will be punished through the full force of the law. These new laws will send out a clear message that there is no place for bigots in a modern-day Scotland. 

“From the start of the new season, anyone who peddles sectarian hatred - in any football stadium in Scotland, on the way to or from a game, or hiding behind a computer screen - could now face up to five years in jail. The events of last season were unprecedented and they need to be met with an unprecedented response. Actions which are threatening, offensive and which incite hatred and public disorder simply cannot be allowed to happen again. That is why this Government is taking decisive and immediate action to ensure law enforcement agencies have the additional tools in their armoury to crack down upon these individuals with full force.”

”However, clearly laws alone won’t solve this problem and convictions should be the last resort. We need a wholesale change in attitudes amongst those who spout offensive or threatening rhetoric in the name of football. And these new laws need to be supplemented by a united effort on behalf of all involved in football, from the football clubs, fans, police, government, and the football authorities. That is why the Joint Action Group is working to deliver upon the eight commitments agreed at the Football Summit in March.  Along with the Bill, this will bring about real and lasting change. This legislation is just the start, we are in this for the long term, and we will not hesitate to bring forward further action over the five year parliamentary term if required.”

“If we are to rid Scotland of sectarianism, we need to come together as a country and I hope that MSPs from all sides will support this Bill as it progresses through the parliamentary process. Sectarianism has huge consequences for individuals who are threatened, major consequences for communities, and it undermines the very fabric of a Scotland that we want to be tolerant, respectful and forward looking. Sectarianism is a hate crime, it has got to stop, and it will stop.”

Roseanna Cunningham told the Scottish Parliament’s Justice Committee making the sign of the cross & singing God Save the Queen might also be sectarian offences (Click image below to view video)


After Ms Cunningham’s appearance before the Justice Committee on Tuesday, and Scotland’s Lord Advocate Frank Mulholland clarifying which songs wont be sectarian the following day, the bill which was to be rushed through in two weeks has now been delayed for six months, clarified in an announcement from the First Minister Alex Salmond during a statement to the Scottish Parliament.

Background

The Bill provides for two new offences: Offensive Behaviour related to football and Threatening Communications.

“OFFENSIVE BEHAVIOUR”

Intended to deal with sectarian and other offensive chanting and threatening behaviour likely to cause public disorder.  The offence covers behaviour likely to lead to public disorder:
*    Expressing or inciting religious, racial or other forms of hatred.
*    Threatening behaviour or behaviour which would be Offensive to any reasonable person
*    Covers behaviour at and on the way to or from a “regulated football match”, which includes league, European and international matches. 
*    Definition based on football banning orders (FBO) legislation, which means there is the potential for an FBO to be imposed in every case.
*    Also covers anywhere a match is being broadcast in a public place, and travel to and from such places.
*    Covers a wide range of behaviours with appropriate penalties up to a maximum of 5 years in prison and an unlimited fine.

OFFENCE B – “THREATENING COMMUNICATIONS”

Intended to deal with threats of serious harm and threats which incite religious hatred. 
The offence covers:
*    Threats of serious harm intended to cause fear and alarm, or reckless as to whether they do.  This includes implied threats (e.g. the posting of bullets or images depicting serious harm).
*    Threats intended to incite religious hatred.
*    It is a defence that the behaviour was in the situation “reasonable”. This is intended to exclude artistic performance etc.
*   Maximum penalty of 5 years in prison and an unlimited fine.

The offence will NOT:
*    Stop peaceful preaching or proselytising.
*    Restrict freedom of speech including the right to criticise or comment on religion or non-religious beliefs, even in harsh terms.
*    Criminalise jokes and satire about religion or non-religious belief.

A copy of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill can be found HERE

The Scottish Parliament’s Justice Committee is seeking views on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill.

The Bill was introduced to the Scottish Parliament on 16 June 2011 and was subsequently agreed to be considered as an emergency Bill. Because of this expedited procedure, the Justice Committee issued a call for written evidence on 16 June and took oral evidence at meetings on Tuesday 21 June and Wednesday 22 June in order to help inform the Bill’s consideration by the Parliament. After its Stage 1 debate on Thursday 23 June, the First Minister announced that the Scottish Government would seek to extend the Bill's timetable (date to be confirmed) to allow further scrutiny by the Justice Committee. As there is now more time available for the Justice Committee to consider the Bill, the Convener has agreed to extend the call for written evidence to noon on Friday 26 August 2011.

The Committee is interested in the views of any organisations, bodies and individuals on the Bill’s proposals and their likely impact and about any issues that respondents consider may have been omitted from the Bill.

How to submit written evidence

It would be helpful for your submission to clearly highlight your views on the broad thrust of the policy proposals and to also flag up any particular areas of concern you may have.

Before making a submission, please read the Parliament’s policy on treatment of written evidence by subject and mandatory committees.

Written submissions should normally be limited to around 4 sides of A4 but, if they need to be much longer than this, they should be accompanied by a short summary of the main points.  Submissions should be set out in numbered paragraphs.  Where the submission refers to existing published material, it is preferable to provide hyperlinks or full citations (rather than extensive extracts). The Committee welcomes written evidence in English, Gaelic or any other language.

The Committee prefers to receive written submissions electronically (preferably in Microsoft Word format). These should be sent by e-mail to: justice.committee@scottish.parliament.uk

However you may also make hard copy written submissions to: Justice Committee, Room TG.01,The Scottish Parliament, Edinburgh, EH99 1SP

Any queries about written submissions should be addressed in the first instance to the Justice Committee clerking team at the above e-mail address or on (0131) 348 5047.

Monday, June 20, 2011

MONEY TO BURN : Millions lost in Icelandic banks yet 34 Scottish Borders Councillors soak up another million in salaries & expenses claims

THIRTY FOUR COUNCILLORS at Scottish Borders Council have ‘racked up’ a staggering THREE QUARTERS OF A MILLION POUNDS in salaries & expenses at the South of Scotland local authority which has recently gained consent to borrow nearly THREE MILLION POUNDS from the Scottish Government’s Consent to Borrow scheme (otherwise known as buying off a council tax freeze scheme - Ed) to fund generous severance packages & cover up multi million pound losses in a series of failed investments in now bankrupt Icelandic Banks, previously reported on HERE & HERE

The salaries and expenses paid to the 34 councillors in Scottish Borders Council in 2010/11 rose by 2% in 2010/11 from £735,850 to £752,969 despite a salary freeze, although it appears expenses were not frozen.

A prominent Borders political reform campaigner said today “the salaries & expenses claims are staggering for a small Council that cant even manage a weekly bin collection.”

He continued : “Clearly we need a lot less money in expenses claims & salaries spent on idle Borders Councillors and more spent on public services. What do any of these people do anyway ? I didn’t hear any of them speak up over the Icelandic Banking losses and no wonder, they were too busy picking up their fat pay check every week and claiming the rest on expenses. Terrible!”

From the Consent to Borrow scheme operated by the Scottish Government, two consents have so far been tranged to Scottish Borders Council, one on 3 March 2011 for “Severance Costs”, totalling a whopping ONE MILLION SEVEN HUNDRED THOUSAND POUNDS, and again on the same day, another for “ICELANDIC BANK LOSSES” totalling a staggering ONE MILLION AND TWENTY ONE THOUSAND POUNDS.

The following list of the 34 councillors lists totals in the order of expenses claims & total salary with expenses in thousands of pounds. Judge for yourselves if your councillor is worth tens of thousands of pounds of YOUR MONEY.

AK Aitchison Councillor 2,730.68 18,964.64
WK Archibald Councillor 3,251.17 19,485.13
CJ Bhatia Councillor  2,506.67 20,921.11
JAS Brown Councillor 2,656.09 18,890.05
N Calvert Depute Leader (Finance) 7,117.94 31,470.98
MJ Cook Executive Member (Corporate Improvement) 6,271.74 30,435.78
VM Davidson Executive Member (Economic Development)  3,243.18 24,256.14
Z Elliot Councillor  1,647.11 17,881.07
JA Fullarton Executive Member (Roads and Infrastructure) 4,916.57 25,929.53
GHT Garvie Executive Member (Culture, Sport & Community Learning) 3,677.62 24,690.58
WK Gunn Councillor  2,087.22 18,321.18
WO Herd Councillor  1,923.67 18,157.63
JB Houston Chairman (Planning & Building Standards) 1,873.51 19,996.51
JR Hume Councillor  1,170.64 17,404.60
AH Hutton Convener  4,751.18 29,104.22
T Jones Vice-Chairman, Planning & Building Standards 3,581.81 19,815.77
FKJ Lackenby Councillor  1,222.54 17,456.50
RG Logan Chairman, Licensing Board 3,858.78 20,092.74
S Marshall Councillor  2,102.16 18,336.12
JG Mitchell Councillor  2,599.52 18,833.48
DP Moffat Chairman, Scrutiny  3,595.64 21,718.64
AJ Nicol Depute Leader (HR)  2,114.53 26,467.57
D Parker Leader  6,004.61 38,474.57
D Paterson Councillor  18,388.19
JA Paton-Day Councillor   2,933.60 19,167.56
JD Raw Councillor  1,943.28 20,357.72
FA Renton Executive Member
(Social Care & Health) 3,473.09 24,275.56
CA Riddell-Carre 2,551.07 23,564.03

AA Scott Executive Member
(Communities & Health)  2,514.78 18,748.74
RH Smith Executive Member (Children & Strategic Services)/Vice-Convener 3,294.53 22,615.84
G Turnbull Executive Member (Education & Lifelong Learning) 4,930.09 26,935.39
NA Watson Borders Party Group Leader 2,505.41 18,739.37
T Weatherston Councillor  2,187.72 18,421.68
JL Wyse Executive Member (Environmental Services) 3,638.20 24,651.16

Sunday, June 19, 2011

Perth Sheriff Court hears Sheriff Foulis suggest First Minister Alex Salmond ‘may give his opinion & decide’ on criminal case

Alex_SalmondFirst Minster & now First Judge ? Alex Salmond criticised by Sheriff in Supreme Court war of words wrangle. PERTH SHERIFF COURT last week saw the first public remarks made by a member of Scotland’s judiciary against the First Minister’s interference & highly personalised attacks on the judicial system, attacks which particularly focus on Human Rights rulings from the UK Supreme Court, based in London. Mr Salmond has personally attacked the Supreme Court’s judges, its rulings, and has alleged it has undermined the rule of law in Scotland. Mr Salmond has also backed his Justice Secretary Kenny MacAskill over threats to withdraw Scottish funding for Supreme Court cases.

In a case currently before Sheriff Lindsay Foulis in which a man denied that on November 27, at an address at The Cross, Coupar Angus, he conducted himself in a disorderly manner by shouting, swearing and exposing himself in a public place to the alarm of people and committed a breach of the peace, Sheriff Foulis said, "Perhaps the first minister would give his opinion on this — he seems to have an opinion on everything else. Maybe he will decide this matter."

Legal insiders criticising the level of political interference in the justice system observed today “..it now appears Mr Salmond wants to become First Judge as well as First Minister.”

The Courier newspaper reports :

'He has an opinion on everything else' — sheriff's cutting remarks directed at first minister

A sheriff has taken a swipe at the first minister, as the row over comments made by Alex Salmond about the judiciary escalates.

By Paul Reoch Published in the Courier : 17.06.11

Sheriff Lindsay Foulis suggested that Mr Salmond "may give his opinion" on a case that was heard before him at Perth Sheriff Court on Thursday as he has "an opinion on everything else."

The sheriff made his remarks when he was told that a trial involving Michael Fleming (19), of Airlie View, Blairgowrie, would have to wait pending a decision from a higher court.

Depute fiscal Rebecca Kynaston told the court there had been "issues" with a police interview and that the case would have to be delayed.

Sheriff Foulis said, "Perhaps the first minister would give his opinion on this — he seems to have an opinion on everything else. Maybe he will decide this matter."

It is understood many figures in the legal profession are incensed by Mr Salmond's recent criticism of Supreme Court judge Lord Hope and prominent solicitor Tony Kelly, and the matter was the subject of some exchanges at First Minister's Questions.

A spokesman for the first minister said they could not comment on individual remarks from a sheriff.

Fleming denied that on November 27, at an address at The Cross, Coupar Angus, he conducted himself in a disorderly manner by shouting, swearing and exposing himself in a public place to the alarm of people and committed a breach of the peace.

He will stand trial at Perth Sheriff Court on November 7.

Thursday, June 09, 2011

Stooges to Go : Law Society of Scotland appoints nine non-lawyers with voting rights to its ‘fundamentally dishonest’ ruling Council

THE Law Society of Scotland has announced the appointment of nine new non-solicitor members with full voting rights to its Council, the body which controls the Law Society and in turn, the solicitor membership of the Scottish legal profession. According to the Law Society’s Press Release, the nine come from “a diverse range of backgrounds including the civil service, education sector and construction industry”, providing the usual source of suspects the Council can rely on to always vote with it, unless pretence provides a reason otherwise (Sounds like more stooges to go! – Ed)

The new non-lawyer members to the Law Society’s Council are a product of the Scottish Government’s skewed attempt to widen access to justice via the Legal Services (Scotland) Act 2010. A handful of non-solicitor members were also appointed to the society’s new “Regulation Committee”, reported on earlier this week by independent law journalist Peter Cherbi, HERE.

The changes brought about by the Legal Services (Scotland) Act 2010 including the new non-lawyer appointments to the Council attracted significant criticism from within the profession, also causing a bit of a ‘pantomime split’ with elements of the Glasgow Bar Association criticising various aspects of the changes, and then failing yet again to follow through on threats of legal challenges, even after one of its former Presidents, solicitor John McGovern branded the Law Society “Fundamentally dishonest at its core”.

Cameron Ritchie, president of the Law Society of Scotland, said: "This is a hugely significant change for the Society and will play a clear role in reflecting our responsibility to the public interest in relation to the solicitors' profession."

Mr Ritchie added: "The calibre of those applying to join both the Council and the regulatory committee and the Society's Council was extremely high. I'm greatly looking forward to welcoming back two of our former lay observers and to meeting and working with our new lay Council members, all of whom have a tremendous amount of experience and specialist knowledge from each of their areas of expertise and will contribute greatly to the work of Council and the Society as a whole."

Public advertisements for the non-solicitor positions on Law Society of Scotland’s Council and the regulatory committee were advertised across the Scottish press and media, with appointments made following an interview process. No photographs of the new non-lawyer Council members have been issued by the Law Society, provoking further criticisms of people behind closed doors cloaked in anonymity deciding on important matters of legal concern to the legal profession and public.

Clearly, the motives of anyone wishing to join an organisation such as the Law Society which has been branded dishonest, has been linked to voting fiddles, bullying, political manipulation and even interference in criminal investigations, are perhaps a reflection on those who end up winning the offered positions.

A legal insider speaking on condition of anonymity said today that being a non lawyer member of the Law Society of Scotland was akin to being a member of the BNP (Now now, there are many in the legal profession, public life & public service in Scotland who are members of such parties as we all know but don't publish – Ed)

Solicitor members, from a range of geographical constituencies and specialist areas of the legal sector, will continue to make up an 80 percent majority of Council. Society members also approved constitutional amendments to create a new regulatory committee with 50% non-solicitor members and a non-solicitor convener at the Society's SGM on 27 May.

Backgrounds of the new ‘non-solicitor’ members of the Society's Council :

Martin Allan (Glasgow -construction industry and local authority officer) - career in the construction industry and holds two honours degrees in construction. Technical member of the Royal Institute of Chartered Surveyors. Volunteer in both Citizens Advice Direct and Citizens Advice Bureau. Community member of a wide range of community organisations in Glasgow and the West of Scotland including Glasgow City Council, Drumchapel Anniesland Area Committee, West Glasgow Local Community Planning Partnership, West Glasgow Community Reference Group, West Glasgow Financial Executive Group, Glasgow Housing Association, Health Improvement Scotland Public Partnership and Health Improvement Scotland Disability Advisory Group.

Dr Bronwen Cohen (Edinburgh - Children in Scotland) Chief Executive of Children in Scotland and lay observer on the Council since 2006. Convener of the working party of the Council established to consider office bearer and convener remuneration.

Suzanne Dawson (Peebleshire - Marketing) - Fellow of the Chartered Institute of Marketing. Self-employed freelance marketing and business consultant. Former Chair of Borders College board of management. Former Vice Convener and Board Director of Scotland's Colleges. Former member of the board of management of Stevenson College, Edinburgh. Current Non-Executive Director of the Scottish Ambulance Service.

Christopher Fraser (Inverness - Surveyor) - Chartered Surveyor. Lay reporter member of the Society's Complaints Committee from 1998 to 2006. Current lay member of the Professional Conduct Committee as well as a lay member of the Professional Practice Committee. Trustee of the Board of Management of Inverness Harbour Trust. Former lay member of the Multicentre Research Ethics Committee for the Health Department of the Scottish Executive.

James Gallagher (Edinburgh - Central Government) - Former Head of Department of the Scottish Executives Justice Department up to 2005. Former Director General Devolution; Prime Minister's Office and Ministry of Justice up to 2010. Current Fellow at Nuffield College, Oxford University. Former Non-Executive Director of a number of Scottish Life Assurance companies and currently Non-Executive Director of Barclays Life and Windsor Life Assurance Companies. Current Non-Executive Director of Lothian & Borders Police Force.

Professor Stewart Hamilton (Switzerland - Accountancy) - Emeritus Professor of Accounting and Finance at IMD, Lausanne Switzerland. Lay observer on Council since 2006, Chairman of the Society's Audit Committee.

Professor Kay Hampton (Glasgow - Higher Education) - Emeritus Professor in Community and Race Relations at Glasgow Caledonian University. Commissioner to the Scottish Human Rights Commission. Member of Children's Panel in Glasgow. Former Commissioner of the Equalities and Human Rights Commission. Former Chair, Deputy Chair and Commissioner, Scotland and UK for the Commission for Racial Equality. Former Chair and UK Board Member for the Community Fund, Lottery Fund.

Robin McGill (West Lothian - Engineering) - Engineer with business career with BP culminating in role as Managing Director, BP Grangemouth. Former Chief Executive of the Institute of Engineering and Technology (IET) and the Atomic Weapons Establishment (AWE). Former Council Member of the Scottish Confederation for Business and industry (CBI) and former Board Member of the Scottish Enterprise Forth Valley as well as a Council Member for the Society of Engineering Institutions.

John Reid (Stirling - Intellectual Property and Manufacturing) - Businessman and currently working for Scottish Enterprise but returning to the Private Sector later in the year. Extensive background in intellectual property and heads the team at Scottish Enterprise which deals with the capitalisation of intellectual property assets. Former member of the Prime Minister's Initiative to Foster Business and commercial relationships with Eastern Europe.

Monday, June 06, 2011

Less than stellar : Alex Salmond evades support for Justice Secretary’s threat to Supreme Court funding, Lord McCluskey to chair review team

ALEX SALMOND, Scotland’s First Minister has finally issued a Government statement on the crisis in the Scottish legal system caused by his opposition and that of his Justice Secretary to Scottish criminal cases being sent to the UK’s Supreme Court in London. The official statement, published two weeks after the ‘crisis’ began, comes after a less than stellar appearance on national television where the First Minister refused to respond to questions asking if he supported threats issued by Justice Secretary Kenny MacAskill to withhold Scottish funding of the Supreme Court, reported recently in the Herald newspaper.

The Herald newspaper also came in for criticism from Mr Salmond for running the story on Mr MacAskill’s threat to end funding for the Supreme Court as one say of denying Human Rights appeals the chance to be heard.

Less than stellar : In an unusually poor, evasive showing, First Minister Alex Salmond slips on Human Rights & justice issues, evades questions over conduct of Justice Secretary Kenny MacAskill


Menzies Campbell QC & MP (LibDem) talks about the Supreme Court appeals ‘problem’ started by the Scottish Government, not by the legal profession.


The somewhat late and suspiciously rather long media release from the Scottish Government :

UK Supreme Court

05/06/2011

A group of independent specialists in Scots law, with unrivalled experience of court practice, has been appointed to review the law and practice currently governing the respective jurisdictions of the High Court of Justiciary and the Supreme Court in court cases involving the application of human rights law, including cases in which 'devolution issues' are raised.

The group will make such proposals for change as they judge to be appropriate to secure that Scotland's unique system of criminal law and procedure is fully protected, given the need for that system to comply with the Human Rights Act. The group is:

    * Lord McCluskey, former Solicitor General and Senator of the College of Justice (chair)
    * Sir Gerald Gordon, one of the most influential figures in Scottish criminal law and procedure
    * Charles Stoddart, a former sheriff, sheriff principal and director of judicial studies and prominent author on criminal law
    * Professor Neil Walker, expert in constitutional law at the Edinburgh School of Law

The group's remit will be to examine the emerging implications of the 1998 Scotland Act, the 1998 Human Rights Act and the Constitutional Reform Act 2005 on the current roles of the High Court of Justiciary in Edinburgh and the UK Supreme Court in London, and advise on possible options for reform.

The full remit of the group is:

    * To consider and assess the mechanisms created under the Scotland Act 1998 and the Human Rights Act 1998, and developed since then, for applying Human Rights law to criminal cases in Scotland, including particularly the regulation, subject matter and scope of appeals from the High Court of Justiciary to the Supreme Court of the United Kingdom
    * To consider the criticisms of, and various suggested amendments to, those mechanisms in the light of current assessments, including criticisms, of their operation
    * To advise on the ways in which they might best be altered, if appropriate, by legislation or otherwise, to ensure that Scotland's unique systems of Criminal Law and Procedure is fully protected, within the context of the accepted need for that system to comply with the Human Rights Act

An interim reports is expected before the summer Parliamentary recess with a full report following later in the year.

First Minister Alex Salmond said: "This expert group is a stellar cast of some of the leading names in the Scottish legal firmament. We have called upon specialists of the highest calibre and asked them to use all their experience to bring forward proposals for reform. These experts in Scots law and the constitution will conduct a fundamental review of the UK Supreme Court's role in Scottish criminal cases before presenting an interim report in time for a Scottish Parliament debate before the summer recess. Their final report will be published later this year, and will put forward options for reform in time for those proposals to be incorporated into the Scotland Bill. Lord McCluskey, Sir Gerald Gordon, Charles Stoddart and Professor Neil Walker are all highly respected in their fields. They have a wealth of knowledge and experience which they will bring to the table, and they are blessed with some of the most impressive legal minds in the country. They will give detailed and thorough consideration to all of the issues, and I look forward to receiving their recommendations."

Mr Salmond added in the lengthy rambling diatribe on the Supreme Court : "Scotland is renowned for its distinct, independent and entirely separate legal system - so my own view is that we simply cannot ignore a situation where a court in another UK jurisdiction is intervening so aggressively in our judicial system. The fact that courts outside Scotland should have no jurisdiction over Scottish criminal matters is a long-standing and fundamental principle which is enshrined in the Act of Union. Yet we find ourselves in a situation where the unanimous decision of a bench of seven judges in the High Court in Scotland can be overturned by a UK Supreme Court where Scots judges are in a minority. We must protect the independent and unique nature of Scots law and pursue change in the role of the UK Supreme Court to prevent further erosion and interference in Scotland's distinct legal system. The Scottish Government's view is that Scotland should be like every other jurisdiction across Europe and use the Strasbourg Court as the final option for judgement when needed. Unlike the UK Supreme Court in London, the Strasbourg Court can't strike down convictions, it doesn't open cell doors and potentially enable people to walk free, and it certainly doesn't do so without a proper examination of the degree of protections, checks and balances within the Scottish judicial system."

Biographies of the review team :

Lord McCluskey (Chair)

John Herbert McCluskey, Baron McCluskey (born 12 June 1929) was Solicitor General for Scotland from 1974 to 1979. During this period he worked on the then Labour government's proposals for devolution.

Lord McCluskey became a member of the Judiciary in 1984 and presided for 16 years as a High Court judge over some of the country's most famous criminal cases. He retired in 2000.

Sir Gerald Gordon

Sir Gerald Gordon CBE QC KBE FRSE (born 1929) is the editor of Scottish Criminal Case Reports and of Renton and Brown's Criminal Procedure, and author of The Criminal Law of Scotland.

Sir Gerald was a Sheriff from 1976 to 1999 and a Temporary Judge at the High Court until June 2004. He was Professor of Scots law at Edinburgh University from 1972 to 1976 and Head of Department of Criminal law and Criminology there from 1965 to 1972. He practised as an Advocate from 1953 to 1959 and was Procurator Fiscal Depute from 1960 to 1965.

Sir Gerald was a Member of the Scottish Criminal Cases Review Commission (SCCRC) from its inception in 1999 until 2009.

He was referred to by Lord Hope of Craighead, in a book entitled "Essays in Criminal Law in honour of Sir Gerald Gordon", as "one of the complete masters" of Scots criminal law…"up there with Sir George MacKenzie and Baron Hume".

Charles Stoddart

Sheriff Charles N Stoddart is the author and co-author of a number of key publications on the law of Scotland. He was the first director of Judicial Studies for the Judicial Studies Committee for Scotland (which provides training and professional development support for the Scottish judiciary - Court of Session, High Court and Sheriff Courts), a post he took up on a full-time basis in August 1998. He was a well-respected sheriff and recently acted as an interim sheriff principal.

Professor Neil Walker

Neil Walker - LLB, PhD, LLD (Honoris Causa) (Uppsala), FRSE - is Regius Professor of Public Law and the Law of Nature and Nations at the School of Law, University of Edinburgh His main area of expertise is constitutional theory. He has published extensively on the constitutional dimension of legal order at sub-state, state, supranational and international levels.

He has also published at length on the relationship between security, legal order and political community. He maintains a more general interest in broader questions of legal theory as well as in various substantive dimensions of UK and EU public law.

Previously he taught public law at Edinburgh for ten years (1986-96), was Professor of Legal and Constitutional Theory at the University of Aberdeen (1996-2000), and, most recently, was Professor of European Law at the European University Institute in Florence (2000-8), where he was also the first Dean of Studies (2002-5).

In December 2008 Professor Walker was asked by the Scottish Government to conduct an independent review of final appellate jurisdiction in the Scottish legal system.

Wednesday, June 01, 2011

Justice Secretary Kenny MacAskill threat to halt Scotland’s funding of Supreme Court in bid to cut off Human Rights appeals

In yet another attack on Scots access to justice, Scotland’s Justice Secretary Kenny MacAskill is reported to have threatened to remove Scotland’s £500,000 funding of the Supreme Court in London, as a way of preventing any human rights challenges to Scotland’s failing and rapidly deteriorating in terms of international standing legal system.

This latest attack by Mr MacAskill on the rights of Scots to a fair hearing under the European Convention on Himan Rights legislation comes on the back of yesterday’s broadside against the judges of the UK’s Supreme Court, who Mr MacAskill accused of having gained their knowledge of Scots Law by visiting the Edinburgh Festival. Two of the judges on the Supreme Court are Scottish.

The Herald newspaper reports :

MacAskill threat to end Supreme Court funding

DAVID LEASK INVESTIGATIONS REPORTER EXCLUSIVE

1 Jun 2011

KENNY MacASKILL wants to cancel Scottish funding for the UK Supreme Court.

The Justice Secretary has ordered civil servants to investigate whether the Scottish Government can pull the financial plug on Britain’s most senior justices over what he sees as the threat they pose to centuries-old Scots Law.

Scotland currently contributes just under £500,000 a year to the London-based court but it is far from clear if the Scottish Government could stop its cheque.

The unprecedented threat to do so underlines just how angry Mr MacAskill is over two humiliating defeats at the UK Supreme Court, including last week’s decision to overturn the conviction of Nat Fraser for murdering his wife Arlene.

Mr MacAskill said: “When I go to the Law Society I say that I will not routinely fund ambulance-chasing lawyers. It should be said that I am not going to pay for ambulance-chasing courts. As a Government we have to pay for the Supreme Court of the UK and I think they should recognise that we’ll pay for our fair share of what goes there.

“But I am not paying money that would come out of the police budget, or prison budget or community payback budget because they are routinely taking cases that we as a country do not think should be going there.

“He who pays the piper, as they say, calls the tune.”

The court was set up in 2009 to handle cases that used to end up in the House of Lords. That included civil appeals from Scotland, but not criminal ones. However, it has become the arbiter of last resort on all human rights claims, including those involving Scottish criminal appeals. It ruled Fraser, of Elgin, Moray, had not received a fair trial.

Last year the Supreme Court sparked chaos in Scotland when it said the rights of 19-year-old Peter Cadder had been breached when he was questioned in custody by police without access to legal advice.

Some lawyers last night warned that Mr MacAskill, an experienced defence solicitor, was risking a major constitutional crisis just by giving the impression of trying to undermine the finances of the UK Supreme Court.

Professor Tony Kelly, who acted for human rights group Justice in backing the Cadder appeal, said: “This is a politician interfering with the judicial branch of government. That is simply constitutionally impermissible.

“It’s an attack on judicial independence which we have never seen the like of in the UK. We have a politician issuing threats against a court because he does not like its decisions.”

Mr Kelly added: “I don’t see any evidence that the Supreme Court has committed any grievous error. If there were English judges importing English doctrines into Scots Law, I am sure there would be a raft of evidence for Nationalist politicians. But there isn’t.”

Solicitor-advocate John Scott said he did not believe withdrawing funding from the Supreme Court would have any impact on the court’s jurisdiction over Scottish matters.

He said: “This is just political tub-thumping. It is a bit like somebody withholding part of their taxes because they don’t want to pay for nuclear weapons. It doesn’t work like that.”

First Minister Alex Salmond yesterday denied claims he and Mr MacAskill were manufacturing a grievance with the UK authorities for separatist ends.

Mr Salmond said: “Our concerns are shared by senior members of the Scottish judiciary and respected legal figures who have spoken out, including Lord Fraser, the former Lord Advocate.

“This is a practical and moral issue which concerns the rights of victims and their families, whose search for justice is delayed, and leads to cases being decided by a court where the majority of judges are not expert in Scots Law.”

He also warned of the cost implications of multiple appeals to the Supreme Court.

The ongoing row has caused deep divisions in Scotland’s legal establishment. On one side are understood to be Scotland’s judges, some still smarting from seeing their judgments overturned by the UK Supreme Court. On the other are many defence agents and human rights activists, such as Mr Scott and Mr Kelly, who see the human rights court as an essential safeguard.

One of the Supreme Court justices, Lord Hope, a former Scottish Lord President of the Court of Session, has dismissed claims he and his fellow former law lords are second-guessing the Scottish court of appeal.

He said: “We are simply here to do what a court of appeal always has to do, which is to review a decision if there is reason to do so.”

The Scottish Government pays a total of £477,000 a year to the UK Supreme Court, through bilateral arrangements with the UK Ministry of Justice. Most of the cash is for uncontroversial civil appeals.