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THE USE OF HUMAN RIGHTS LEGISLATION IN THE SCOTTISH COURTS

CHAPTER TWO: QUANTITATIVE ANALYSIS

2.1 In this chapter we present a primarily quantitative analysis of the use of human rights arguments in the Scottish courts since devolution. The sources of information used are described in more detail in the Appendix, but in summary were:

(i) the Crown Office record of devolution minutes in criminal cases;
(ii) our database of reported cases;
(iii) samples of (largely) unreported cases in the Court of Session, High Court of Justiciary, and two sheriff courts;

2.2 We hoped to find out the following:

(i) the total number of cases raising human rights issues since devolution;
(ii) if that could not be established, an estimate of the numbers;
(iii) the subject matter of cases in terms of the Articles of the Convention on which arguments were based;
(iv) the subject matter of cases in terms of the area of Scots law or public administration to which they related;
(v) the geographical spread of cases;
(vi) the courts in which such cases are heard (e.g. Court of Session, Sheriff Court) and the forms of procedure used;
(vii) the outcomes of cases in which human rights issues were raised;
(viii) whether human rights arguments were invoked under the Scotland Act 1998 or the Human Rights Act 1998;
(ix) the nature of the parties to cases.

The categories of information we gathered necessarily varied for different datasets ( see Appendix), so we distinguish between civil and criminal cases with respect to some findings.

CRIMINAL CASES

2.3 We were given a copy of the Crown Office record of all devolution minutes in criminal cases intimated to the Lord Advocate between the devolution of Executive power on 20 May 1999 and the end of August 2003, a period of just over four and a quarter years. This represents a complete record of all criminal cases raising human rights issues since devolution. A study of the impact of the Human Rights Act on courts of first instance in England and Wales (Raine and Walker 2002) included a brief analysis of data up to the end of November 2000, but no subsequent analysis has been published.

Cases Raising a Human Rights Issue since Devolution

2.4 A number of duplicate entries in the Crown Office record were removed, leaving 1581 cases in the record. These figures include all cases in which a human rights issue was raised at any stage in the proceedings whether or not it had any impact on the disposal or outcome of the case. Had the numbers of such cases been consistent over that period, there would have been an average of 360 criminal cases a year raising human rights issues since devolution. However, as Table 1 indicates, there was an initial surge, with 1011 criminal cases raising human rights issues in the first 19 months (20 May 1999-end December 2000). Thereafter, the number of cases raising human rights issues declined sharply, but then stabilised at around 175-200 per annum.

Table 1: Total criminal cases raising human rights issues

Source: Crown Office Devolution minutes

2.5 Although we were unable to date cases from earlier than September 2000 from the records made available to us, some information was provided by the Lord Advocate to the Scottish Parliament. ⁹ There were 587 devolution minutes in the first year after devolution (20 May 1999-20 May 2000) and 969 in the first eighteen months (20 May 1999-20 November 2000). Our total of 1011 cases for 1999/2000 reflects the additional cases between 20 November 2000 and the end of the year. That makes it clear that the decline in numbers appears to come around the end of the year 2000 and is a very rapid decline. Why the decline was so rapid is unclear and examining its causes was beyond the scope of the research.

2.6 It is important to put these figures in the context of the overall workload of the criminal courts. Whilst this is a substantial number of human rights cases in absolute terms, it represents only a very small fraction of the total criminal caseload. Over the four years from 1999 to 2002 criminal proceedings were taken on average against an estimated 141,575 persons per year (Scottish Executive Statistical Bulletin: CrJ/2004/1, Criminal Proceedings in Scottish Courts, 2002; CrJ/2002/9; CrJ/2001/7; CrJ/2000/9). ¹⁰ Over the period of study, human rights cases averaged about 370 cases per year, a little over a quarter of a per cent of the total criminal caseload negating any possible fears that might have been raised in advance of the implementation of the legislation that the courts would be swamped with cases raising human rights arguments.

Criminal Courts and Forms of Procedure

2.7 Table 2 illustrates case distribution in the court hierarchy and across criminal procedures.

Table 2: Procedures in which criminal devolution minutes raised

Source: Crown Office Devolution minutes

2.8 This shows that a clear majority of the cases raising human rights points were cases under summary procedure. However, given the relative numbers of summary and solemn cases it is also clear that the proportion of solemn cases in which human rights arguments were raised is much higher than the proportion of summary cases in which they were raised.

2.9 The most recent figures available for the distribution of criminal cases across all courts and procedures are those for 2002, ¹² so it is not possible to determine exactly the proportion of criminal cases raising human rights arguments in each type of procedure across the whole period of the study. However, we can compare the annual average figures for cases under each type of procedure for the four years ending in 2001 with the annual average numbers of human rights cases for the period of the study. This suggests that human rights points came up most frequently in high court trials (4.7% of the 1999-2002 average), followed by trials in the sheriff court under solemn procedure (3.0% of the 1999-2002 average), then trials in the sheriff court under summary procedure (0.26%).

Subject Matter: ECHR Articles

2.10 The human rights arguments raised referred to 22 different Articles of, or protocols to, the Convention, including the majority of the substantive rights guaranteed in the Convention together with remedial or procedural provisions such as Article 13. Table 3 shows the most frequently raised issues in descending order.

Table 3: ECHR articles raised in devolution minutes in criminal cases

Source: Crown Office Devolution Minutes

2.11 There are more issues (1712) than cases (1581) because some cases raised more than one human rights issue and each substantive issue was entered separately in the database. The vast majority of the issues raised concerned criminal process (including the institutional question of the position of temporary sheriffs) rather than substantive criminal law: 86% were fair trial issues under Article 6 of the Convention (including cases in the twelve articles and protocols that each amounted to less than 3% of the cases). Breaking Article 6 down into its constituent parts, the largest single category, amounting to 39% of all human rights issues raised, was that of allegations of delay, that is, failure to bring a case to trial within a reasonable time. Overall, these figures are not surprising. It was anticipated before the enactment of the legislation that Article 6 would be the Article most frequently relied upon by accused persons in criminal cases, although not necessarily that it would be predominant to this degree. The large number of cases on the issue of independent and impartial tribunals is largely explained by the successful attack on the position of temporary sheriffs (see Starrs v Ruxton 2000 JC 208).

Geographical Distribution

2.12 The Crown Office records classify devolution minutes according to the office of the Procurator Fiscal responsible for preparation of the case. These offices correspond to the jurisdictions of sheriff courts, although the prosecutions originating in these offices might be brought in any of the criminal courts. Human rights arguments were raised in 45 of the 49 area offices across Scotland. Table 4 shows the number of human rights cases by area office. There were nine cases which it was not possible to identify with a particular area office.

Table 4: Areas with 5% + of all criminal devolution records cases

Source: Crown Office Devolution Minutes

2.13 Table 4 shows that only five offices accounted for 890 cases (56.3% of the total) although they do include the two largest PF offices. It appears as if human rights cases are not randomly distributed across Scotland and are instead clustered to a significant degree, for example, for the Glasgow area there was approximately one human rights case for every 49 prosecutions, in Edinburgh one for every 54 prosecutions and in Linlithgow one for every 50 prosecutions. By contrast there are comparative 'cold spots' such as such as Dundee with only one case for every 278 prosecutions and Greenock with only one for every 374 prosecutions ¹⁴ The differences in the incidence of human rights issues being raised are striking. The reasons for the uneven distribution of human rights cases cannot, however, be inferred from these statistics alone.

2.14 Some possible explanations would relate to the bringing of prosecutions, for example, that there are variations in the way prosecutions are instigated and conducted across area offices, or that there are differences in the prosecution caseload across areas (incidence of solemn and summary proceedings, nature of offences, etc.) which in some way affect the likelihood that human rights points will be raised. Other possible explanations relate to the approach of the defence, for example, the clustering might indicate that knowledge of human rights law and/or willingness to use it are unevenly distributed amongst local solicitors. To establish whether these or any alternative hypotheses are plausible would require further research.

2.15 The outcomes of criminal cases in which human rights arguments were raised are discussed below , as is the question of whether human rights arguments were invoked under the Scotland Act 1998 or the Human Rights Act 1998.

CIVIL CASES

2.16 Carrying out equivalent research on civil cases is substantially more difficult than for criminal cases. As detailed in the Appendix, it was not possible to identify all post-devolution civil cases raising human rights issues. Nor was it possible to produce a reliable estimate of the number of civil human rights cases in any given period. Our analysis in this section of this chapter is, therefore, based largely on reported cases and the sampling exercise, with some conclusions also being supported by information drawn from the tracking of cases in the Court of Session and two sheriff courts. These provided, for reported cases, an overview of the whole four and a quarter year period under study, and in the case of the sample cases, a snapshot of the position in early 2002. Together the overview and the snapshot give some indication of the level and nature of the use of human rights arguments on the civil side without the precision regarding these issues possible for criminal cases. The value of the sample is that it provides a check on the database of reported cases and give some indication of whether reported case are representative of cases generally. As indicated earlier, when we refer to 'reported cases' we mean reported cases in the broadest sense including hard copy law reports, commercial databases and cases on the Scottish Court Service Website.

Human Rights Cases since Devolution

2.17 The principal data source here is the information recorded in the database of reported cases. This includes 105 civil cases. Table 5 shows the total number of reported cases raising human rights points, and how they are divided between criminal cases, civil cases involving a public body, and civil cases between private parties.

Table 5 Reported civil and criminal cases by category

Source: Human Rights in Scottish Courts Project database

2.18 It is clearly not possible to extrapolate from the figures for reported cases how many additional unreported cases there have been. We had two other sources of information on civil cases. First, we were made aware of a further 23 cases from civil devolution minutes intimated to the Advocate General between May 2000 and October 2003. However, the Advocate General's records were incomplete, did not cover the whole period of the study, and did not cover human rights cases which did not raise devolution issues. They were, therefore, not a good basis for estimating the numbers of unreported cases.

2.19 The other evidence of overall numbers we had was the cases found by our sampling exercise, in effect a snapshot of the position early in 2002. We should note that our sampling was not comprehensive. In the Court of Session we examined all petitions, appeals and family actions for a three-month period. We had originally intended to examine all cases begun by summons, but this process proved to be immensely time-consuming and given the limited resources for the research, this could not be done. (For what it is worth we noted that there were no summonses raising human rights issues in January 2002.) In the two sheriff courts the sample covered all ordinary causes and summary applications, other than divorces, adoptions, and referrals from children's hearings. It did not cover summary causes or small claims. We did not seek access to adoptions and referrals from children's hearings as this would have required special permission. However, the decision not to sample summary causes and small claims was made because of resource constraints. We think it likely that a comprehensive sample of all types of cases in the relevant courts in early 2002 would not have turned up many more cases raising human rights points, but it must be accepted as a possibility that there were substantial numbers of cases raising human rights issues in the court records which we did not look at.

2.20 The sampling exercise identified a total of 38 civil cases for the period between the beginning of January and the end of March 2002, 23 in the Court of Session and 15 in the two sheriff courts. Assuming that the first quarter of 2002 was not atypical, we might have expected to find approximately 92 cases in the Court of Session and 60 cases in the two sheriff courts if the sample had covered the whole of the year 2002. Bearing in mind that only two sheriff courts were included in the sample, figures for the sheriff court for Scotland as a whole are likely to have been substantially higher. Given that there were only 105 reported cases over the whole four and a quarter year period of the study, it seems reasonably safe to conclude that that there were several times as many unreported civil cases as there were reported cases raising human rights arguments over the study period, even if the actual number of such cases cannot be estimated accurately. We began the study with the intuition that there have been far more criminal than civil cases raising human rights issues, however the sample when compared to the figures in table 1 suggests otherwise. The number of criminal cases stabilised after an initial surge at 150-200 cases per year. Assuming that there were a significant number of cases in sheriff courts not included in the study, the sample suggests that the numbers of civil and criminal human rights cases in 2002 may well have been broadly comparable.

2.21 In considering the relationship between the sample and the actual number of cases raising human rights points, we should also remember the point made in the introduction that the amount of information recorded by court clerks varies according to the courts and the procedure, and that the primary function of the written records is to ensure the proper progress of cases through the system. Therefore, a retrospective exercise gathering data on concluded cases, such as our sample, may well underestimate the extent to which human rights arguments are actually raised, particularly in the more informal procedures such as summary cause and the small claim.

2.22 It is not possible to determine any upward or downward trend across the period as it was for criminal cases. However, the data from the sampling exercise suggest that, whatever the position may have been in the period immediately following devolution, in early 2002 cases raising human rights issues amounted to only a minor part of the civil caseloads of either the Court of Session, or of two busy sheriff courts. The civil judicial statistics for 2002 indicate that 5,059 actions were begun in the Court of Session and 115,326 in the sheriff court in that year.

Civil Courts and Forms of Procedure

2.23 Table 6, which is based on the 105 reported civil cases, shows how cases raising human rights points were distributed in the court hierarchy and across the different forms of civil procedure. This table shows all proceedings in which human rights points have been raised. For some cases there were more than one set of proceedings. For example, one case began as a mental health appeal to the Sheriff, which was then appealed further to the Court of Session. Human rights points were argued in both courts. In all such cases we counted each set of proceedings separately. That is why the number of procedures at 138 is greater than the number of cases (105) in the database . This seemed the most rational approach if the purpose was to assess the relative impact of human rights litigation on different courts and procedures.

Table 6: Reported civil cases by procedure

Totals do not add up due to rounding
Source: Human Rights in Scottish Courts Research Project Database

2.24 This table might seem to suggest that human rights points are raised relatively more frequently in the Court of Session compared to the sheriff court with 83 such proceedings in the Court of Session (all entries above relating to the Court of Session other than appeal from a Sheriff Principal) and only 45 in the sheriff court when the latter had, according to the 2002 civil judicial statistics, approximately twenty-three times the case load of the former. However, whilst this probably is the case, it cannot be confirmed, nor can the relative frequency of human rights points arising in the two courts be estimated, because we do not know the proportion of cases raising human rights points that is reported for either the Court of Session or the sheriff court. The sampling exercise does not greatly assist in assessing the relative frequency of human rights points as it was restricted to two sheriff courts.

2.25 The most striking feature of Table 6 is the extent to which judicial review proceedings dominate the Court of Session caseload with 51 of the 83 proceedings being for judicial review and 32 other forms of action. This is not wholly surprising as it was anticipated that, given the purpose and content of the Convention, many human rights claims on the civil side would be challenges to official decisions and actions. Once again, it is necessary to consider whether this pattern is repeated with unreported cases.

2.26 Table 7 shows the distribution of cases in the sample. Here it is worth noting that the sampling exercise found that no cases begun by summons in January 2002 raised human rights points and that all twelve of the petitions raising human rights points were judicial reviews. The limitations of the sample mean that caution is required in drawing conclusions but the limited evidence we have is consistent with the conclusions that judicial review has become the predominant procedure for cases raising human rights issues in the Court of Session.

Table 7: Procedures used in human rights cases found in sample

Source: Human Rights in Scottish Courts Database

2.27 The inclusion of a significant number of summary applications in the sheriff court cases is perhaps not surprising given the subject matter of summary applications which include many forms of actions brought by public bodies in the exercise of statutory functions (such as assumption of parental rights and applications for anti-social behaviour orders) and many appeals against decisions of public bodies. It must be borne in mind that only two sheriff courts were included in the sample. Our research also suggests that the assumption that most cases raising human rights points will involve the state as a party (criminal cases almost necessarily do as private prosecution is virtually unknown in Scotland) appears to be well founded. There is also, however, a significant number of cases between private parties raising human rights issues. Out of 105 reported civil cases, there was a clear split between private law cases (31) and public law cases (74). It is interesting that more than a quarter of reported civil cases raising human rights points did not directly involve the state as a party. Of course, the ratio in unreported cases may differ.

Subject Matter: ECHR Articles

2.28 We analysed the subject matter of cases raising human rights issues in two ways: in terms of the rights specified in the Convention and in terms of the area of Scots law or public administration to which they related. This section covers the former and the next section the latter.

Table 8: Reported civil cases by ECHR article

Source: Human Rights in Scottish Courts Database

2.29 Some of the reported cases raised more than one distinct human rights issues and the table shows all 165 human rights issues raised by the 105 civil cases in the database. Article 6 is the article most frequently invoked, accounting for 37% of the issues raised, although it does not dominate to the same degree as in criminal cases. Delay, in particular, seems far less significant as an issue. The next most frequently raised article was Article 8 with 19% of the issues raised. There were also substantial numbers of Article 3 issues (10%) and issues under Article 1 of the First Protocol (8%).

2.30 Once again, it is important to observe the caveat that the pattern in unreported cases may be different. However, as Table 10 shows, the sampling exercise revealed a pattern which was not greatly different in the early months of 2002 in the Court of Session and two sheriff courts. As with the reported cases, some cases raised more than one distinct human rights issues and the table shows all 57 human rights issues raised by the civil cases in the sample. The most frequently raised articles were the same, namely Article 6 (37% of issues), Article 8 (23%), Article 3 (23%) and Article 1 of the First Protocol (5%), although the relative proportions were different. This suggests that the reported cases give a reasonable indication of the relative frequency with which different articles are referred to in the courts.

2.31 It is worth remembering that we did not sample Summary Causes or Small Claims, and the addition of any human rights arguments made in those procedures might have revealed other articles being raised and/or a different distribution.

Table 9: ECHR articles in sample cases

Source: Human Rights in Scottish Courts Database

Subject Matter: Scots Law and Public Administration

2.32 This section analyses the distribution of cases by subject matter in terms of domestic law and areas of public administration. Where a case could be related to more than one subject area both appear in the table, so that although there were only 105 reported cases there are 144 entries in the database. Table 10 shows the distribution of reported cases according to the area of Scots law or public administration to which they related.

Table 10: Reported civil cases by subject

Totals do not add up due to rounding

Source: Human Rights in Scottish Courts Database

2.33 The areas in which human rights points were most frequently raised were asylum and immigration control (together 22%), civil procedure (19%), child law and property rights (both 10%). Some examples will give an idea of the wide variety of issues raised. Several of the cases indicate that the boundary between civil and criminal cases cannot be entirely clear-cut, for example, one of the public order cases was an unsuccessful challenge to the Protection of Wild Mammals (Scotland) Act 2002 which made hunting with dogs a criminal offence, the property rights cases included challenges to confiscation orders under the Proceeds of Crime (Scotland) Act 1995, and the civil procedure cases included an unsuccessful attempt to interdict the Crown from prosecuting an individual for fraud. Table 11 shows the distribution of the 38 cases in the sampling exercise which yielded a total of 54 human rights issues. Where a case could be related to more than one subject area both appear in the table

Table 11: Sample civil cases by subject

Source: Human Rights in Scottish Courts Database

2.34 The areas in which human rights points were most frequently raised were civil procedure (about a fifth of cases), asylum and immigration control (together about one seventh), and child law (about one ninth of cases). It can be seen that the distributions are broadly comparable in the two groups of cases with many categories appearing in both reported and sample cases, and some such as asylum and immigration and civil procedure figuring prominently in both. Both sets of data (human rights issues by Article and issues by subject) suggest that not only is the full range of substantive Convention rights being raised in litigation, but also that such rights are being raised in a wide variety of legal and administrative contexts. Perhaps the only area of public administration affecting large numbers of people which does not appear to be producing cases is social security. ¹⁹

OUTCOMES FOR CIVIL AND CRIMINAL CASES

2.35 In this section we discuss the outcomes of cases in the sense of whether or not the courts granted a remedy for a human rights violation. Civil and criminal cases are considered together here. As the Crown Office database did not include information on outcomes, this section presents only the data from the reported cases and the cases in the sample.

2.36 Of the 232 reported civil and criminal cases, a remedy was awarded in 39 cases (16.8%). This suggests that remedies are being granted on human rights grounds in a small but significant minority of cases. We should point out here that we only treated a remedy as awarded on human rights grounds where there was a specific indication in the report that the human rights argument had influenced the award of the remedy. It is, therefore, possible that we have understated the effect of human rights arguments in achieving positive outcomes for those raising them. Whether these are appropriate outcomes is not something which can be judged from these figures alone.

2.37 We also tried to ascertain whether remedies were awarded under the Human Rights Act or the Scotland Act and the provision under which the remedy was awarded, an issue which seemed important given that special procedures require to be invoked for many human rights cases in Scotland.

2.38 In three of the 39 cases remedies were awarded under both the Scotland Act and the Human Rights Act. There were 11 cases in which remedies were awarded under the Human Rights Act only. The most common reason for granting a remedy was that a public authority has acted unlawfully in terms of section 6 of the Human Rights Act, there being ten such cases. There were three cases in which the principle of compatible interpretation in section 3 was the basis of the remedy, and one case in which relief was given in terms of section 12 (special provision for freedom of expression)

2.39 In 25 of the reported cases a remedy was granted under the Scotland Act only, all of these being granted in terms of section 57 of the Scotland Act (unlawful action by the Scottish Executive). All challenges to the validity of Acts of the Scottish Parliament under section 29 were unsuccessful.

2.40 Remedies were awarded in response to human rights claims in only 3 of the 95 civil and criminal cases (3%) in the sample of cases. One was in terms of the principle of compatible interpretation in section 3 of the Human Rights Act. Two were awarded for unlawful action by the Scottish Executive in terms of section 57(2) of the Scotland Act, and these both related to delay in bringing a prosecution. The success rate is significantly lower than for reported cases. However, two points may be made.

2.41 Firstly, a number of the cases in the sample were still continuing at the conclusion of our study. We know that the cases relating to the fixing of punishment parts in life sentences were ultimately successful, and others could also succeed. Secondly, reported cases will generally be cases in which the human rights argument, even if unsuccessful, had some merit. Whereas if there are a significant number of spurious or highly speculative human rights arguments being made, these are extremely unlikely to be reported.

CONCLUSIONS

2.42 We should begin this concluding section by emphasising the limitations of our data as described above and in more detail in the Appendix. This means that many of the inferences drawn from the data and statements made are to a degree provisional. However, it does appear possible to draw some general conclusions.

2.43 First, points based on Convention rights have become an established category of argument within the Criminal Justice system. Although there was a dip in the number of cases after the first eighteen months, there appears to be a steady stream of such cases continuing to go through the courts. However, these represent a tiny proportion of the total number of criminal prosecutions. The research was not designed to establish how much time the raising of a human rights point adds to a case, but given the small proportion of cases in which such arguments are made, even if the raising of human rights points is having a major impact on the time taken to dispose of individual cases, it does not appear possible for there to be a substantial impact on the resources required to run the system of criminal courts as a whole. This statement leaves out of account any indirect resource implications for the courts, such as the need created for judicial training on human rights law, and any resource implications for other agencies within the criminal justice system such as the police and the Procurator Fiscal service.

It is impossible to say whether the number of criminal cases raising human rights points which appears to have steadied at 150-200 cases a year is at an appropriate level, or unduly high or unduly low. By an appropriate level, we mean a level at which we could say that, (a) in most cases in which arguments based on Convention rights are made that those arguments are plausible, and (b) that in most cases in which those arguments could plausibly be made they are in fact made. We have to some extent been able to make judgments about whether the human rights points being made in practice are well-founded, but only in relation to reported cases (there being insufficient information in the Crown Office database). There were a few of the reported cases in which weak or ill-informed arguments were advanced although in the great majority of cases the arguments advanced had some substance. The doctrinal issues arising from the reported cases are discussed at length in Chapter 3. However, reported cases are only a small fraction of the whole and not necessarily representative of all criminal cases raising human rights points. It may be the case that spurious or weakly grounded arguments are more frequently made in unreported cases than in reported cases but our research did not provide the information that would be required to resolve this issue. On the possibility that opportunities to make plausible human rights claims are frequently missed we can make no comment as the research examined only cases in which human rights arguments were actually made.

2.44 Second, human rights points are raised in a higher proportion of cases under solemn procedure than under summary procedure.

2.45 Third, it appears that almost the full range of Convention rights is being deployed in argument in criminal cases but that the vast majority are essentially issues of procedural fairness under Article 6. A predominance of Article 6 cases was anticipated before the introduction of the legislation but perhaps not to this degree.

2.46 Fourth, it appears that criminal cases raising human rights points are not evenly distributed round Scotland, however, our research was not designed to establish the reasons for the distribution.

2.47 Fifth, it is not possible to establish the frequency with which human rights issues have been raised in civil cases because the research only examined reported cases and, even with far greater resources for the research, it would have been difficult to establish reliable figures in the absence of a comprehensive central record of human rights cases comparable to the Crown Office database. The possibility of producing such a record is discussed in

five. However, as with criminal cases, whilst it appears that points based on Convention rights are being regularly raised, it is unlikely that this is occurring in more than a small fraction of civil cases.

2.48 When considering the impact on resources expended on civil justice, the issues are different from those in criminal justice. In the criminal justice system human rights arguments are generally being raised in defence to prosecutions. Therefore, although they may increase the resources expended on a case, arguments based on Convention rights are not adding additional cases to the system. By contrast, on the civil side, whereas points raised by the defender do not by definition add to the caseload of the courts, pursuers may be raising cases which would not have been brought before the enactment of the human rights legislation. However, there will be many cases in which the pursuer is merely adding a human rights argument to an action that would in any event have been brought on other grounds. Many judicial reviews are likely to have fallen into this category. However, if our assumption that human rights cases form only a minor part of the civil caseload is correct, then it seems unlikely that there has been a substantial impact on the resources required to run the civil courts.

2.49 Sixth, judicial review is the most frequently used form of action for raising human rights points. It is also clear that of all the forms of civil litigation, judicial review is the procedure most affected by human rights.

2.50 Seventh, the full range of Convention rights is being used to make arguments in civil cases. It also appears that the cases concern a wide range of subject matter in terms of areas of Scots law and public administration. It appears that the area of public administration most affected to date by human rights claims in the civil courts is immigration control (including determination of asylum claims). There has also been a significant number of claims by prisoners, but many of these concern a single issue - the continuation of the practice of slopping out in some prisons.

2.51 Eighth, analysis of the outcomes of reported cases suggests that human rights arguments affect the outcome of cases in a manner favourable to the litigant raising them in a significant minority of cases. The success rates should also be treated with some caution because there are occasions when the court does not explicitly dispose of the case on human rights grounds, but still gives the litigant the result they wish, on other grounds.

2.52 Ninth, in the reported cases, remedies were more frequently sought under the Scotland Act than under the Human Rights Act. This reflects the larger number of criminal cases all of which typically invoke the Scotland Act because of the role of the Lord Advocate in prosecution.

2.53 Apart from the limitations of the data already referred to the most important point to be borne in mind in considering these conclusions is that this is a study of the ordinary courts. It did not cover tribunals as it would not have been feasible to include both in the same study. However, it is clear that human rights arguments are raised regularly in some tribunals, for example, the immigration tribunals (immigration adjudicator and immigration appeal tribunals). Some of these cases eventually reach the ordinary courts through appeal mechanisms or (in the case of the immigration tribunals) judicial review. Equally, many do not. Therefore, our study cannot be treated as an overview of the use of human rights arguments in the legal system, but only of their use in the ordinary courts. The lack of systematic information about tribunals is a gap that could usefully be filled by further research. Looking at the courts alone might produce a skewed impression of the extent and nature of the use of human rights arguments in legal disputes, and in particular the extent and nature of their use in the context of particular areas of public administration.

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