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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.

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."

The FM added:

"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."

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

Biographies

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.