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THE USE OF HUMAN RIGHTS LEGISLATION IN THE SCOTTISH COURTS

APPENDIX: RESEARCH METHODS AND DATA SOURCES

Aims and objectives

The aims of the project were :

• To collate, monitor and review the uses and development of Human Rights legislation in the Scottish courts since May 1999; and
• To assess the feasibility of, and make recommendations for tracking of human rights cases through the court hierarchy.

The more specific objectives of the project were to :

• collate data about civil and criminal cases in the Scottish courts since May 1999 which raise human rights issues either under the Human Rights Act or the Scotland Act involving Convention question, and to develop a database for this information
• estimate the volume of cases being brought nationally;
• analyse how the legislation is being used;
• analyse trends and key developments in human rights case law;
• analyse other factors relevant to the wider context of the topic; and
• make recommendations on the feasibility and operation of a nationwide database that could include the identification and tracking of cases.

However, realising these aims and objectives presented substantial methodological problems, particularly with regard to the first two objectives, which are discussed below.

Methods

In summary, the methods used were:

• collation of details of reported and unreported cases
• creation of a searchable Access database for this information
• quantitative analysis of data
• qualitative interpretation of the data
• interviews with Scottish Court Service staff.

Finding Cases

The first difficulty in realising the aims and objectives of the project was that of finding cases which raised human rights issues.

Our approach here was to examine information contained in the following sources :

i. hard copy law reports of any cases raising human rights issues from May 1999 to August 2003;
ii. the commercial databases, Westlaw and Lexis, and the Scottish Courts Service Website for cases not reported in hard copy;
iii. the Crown Office database of criminal cases in which intimation of a devolution issue had been made to the Crown in terms of Schedule 6 of the Scotland Act 1998, which we obtained from the Crown Office;
iv. records of cases (not comprehensive) in which intimation of devolution issues had been made to the Office of the Advocate General in terms of Schedule 6 of the Scotland Act 1998;
v. court records in the Court of Session, High Court of Justiciary and two sheriff courts. ¹⁰¹

The records examined under point v were :

1) all criminal trials and criminal appeals in the High Court of Justiciary begun between 1 January 2002 and 30 December 2002 in which devolution issues had been raised;
2) all criminal trials in two sheriff courts begun between 1 January 2002 and 30 December 2002 in which devolution issues had been raised;
3) all petitions, family actions and appeals initiated in the Court of Session between 1 January 2002 and 31 March 2002, and all cases initiated by summons in January 2002;
4) all civil cases initiated in the two sheriff courts between 1 January 2002 and 31 March 2002 under ordinary cause procedure, including summary application procedure but not including divorce actions, adoptions and appeals; ¹⁰²

Summary cause procedure, small claims procedure and referrals from children's hearings (which are sui generis rather than civil or criminal) were not included.

The cases identified in this way were then grouped into the following datasets for purposes of analysis:

1) Reported cases, meaning all cases reported in hard copy law reports or available through Lexis and Westlaw, or available on the Scottish Court Services Website;
2) Crown Office Database of Criminal Cases. This collection contained all criminal cases in which intimation of a devolution issue had been made by the Lord Advocate in terms of Schedule 6 of the Scotland Act 1998 between 20 May 1999 and the end of August 2003. This dataset overlaps with that above as a substantial number of criminal cases had been reported.
3) Sample Civil Cases: Court of Session. This collection comprises all the human rights cases identified in our sample of Court of Session records (point v above). It includes a few cases also included in (1) above
4) Sample Civil Cases: Sheriff Courts. This collection comprises all the human rights cases identified in our sample of sheriff court records (point v). It includes a few cases also included in (1).
5) Sample Criminal Cases: High Court of Justiciary. This collection comprises all the human rights cases in our sample of High Court cases (point v). These cases were identified in the Crown Office database, so every case in (5) is also included in set (2) above. It includes a few cases also included in datatset (1).
6) Sample Criminal Cases: Sheriff Courts. This collection comprises all criminal cases raising human rights issues identified in our sample of sheriff court records (point v). It includes a few cases also included in (1) above. Again, the cases were identified from the Crown Office database so all these cases are also included in set (2) above.

Having explained how the data were collected and organised, we can now consider the methodological difficulties in relation to each of the objectives. The first general aim of the project was broken down into a number of specific objectives, the first of which was to collate data about civil and criminal cases in the Scottish courts raising human rights issues since 20 May 1999, when executive powers were first devolved to Scotland, with the devolution of legislative power to the Scottish Parliament becoming effective in July 1999. Ideally the research would have attempted to identify all cases raising human rights issues in the Scottish courts since May 1999. On the face of it this was a very ambitious objective as it required consideration of all courts and all forms of procedure. However, we are confident that we have identified all criminal cases raising human rights issues since devolution subject to a small margin of error, as we obtained a complete list of devolution minutes kept by the Crown Office.

As indicated in Chapter one, the practical effect of the case law has been that any defence to, or objection to, the initiation or continuation of a prosecution on human rights grounds has been treated as raising a devolution issue and, therefore, requires intimation to the Lord Advocate. So, every criminal case which has raised a question under the European Convention on Human Rights should now be included in the Crown Office record of devolution minutes. As the Crown Office began recording intimations in May 1999, their database should be a complete record of all criminal cases raising human rights issues since executive functions were devolved.

The existence of the Crown Office database meant also that the second of the specific objectives could readily be achieved as regards criminal cases to estimate the number of cases being brought nationally. In fact what we were able to produce was a very accurate estimate. This, of course, is to make certain assumptions about the data collected by Crown Office, and we ought, therefore, to discuss whether the Crown Office database is a complete record of criminal cases raising human rights issues. There are a number of possible reasons why it might not be.

The first is that accused persons may be raising human rights points without intimating them. Either the prosecution or the judge could, of course, insist that this is incompetent but the possibility remains that accused persons are from time to time permitted to argue human rights points without intimating them in terms of Schedule 6. Whether this has been happening to any substantial degree is not something our research methods were specifically designed to establish.

A second possibility is that Crown Office officials are not recording all cases actually intimated to the Lord Advocate. It appears unlikely that this happens to any significant degree as there is a clear system for recording cases and a small number of staff has been involved in this. It is also worth noting that our other sources of data (reported cases, cases identified by sheriff clerks) did not reveal any cases which did not appear in the Crown Office database. ¹⁰³ It seems reasonable to conclude that any margin of error in recording devolution minutes is small. If we also assume that the law on intimation is being observed, there are reasonable grounds for concluding that our estimate of the volume of criminal cases raising human rights issues is a very accurate one.

However, achieving the first two objectives in relation to civil cases proved much more difficult. The requirement to intimate a devolution issue in terms of Schedule 6 to the Scotland Act applies only to cases in which a claim is made either (a) that an Act of the Scottish Parliament is beyond legislative competence; (b) a purported or proposed exercise of power by a member of the Scottish Executive is incompatible with Convention rights; or (c) that a failure to act by a member of the Scottish Executive is incompatible with Convention right. A number of categories of cases raising human rights issues will not raise devolution issues, such as cases involving local authorities and Scottish quangos (unless the body in question is acting under legislation the validity of which may be challenged under the Scotland Act), cases involving UK departments and UK quangos and disputes between private parties. Nor is there any other obvious short cut to identifying human rights cases.

Whilst, in theory, the Scottish Executive could have decided to set up a system whereby Scottish Court Service staff could have identified and recorded human rights cases, no such system was set up when executive and legislative powers were first devolved. As noted above (at footnote 67), a pilot exercise for tracking human rights cases was conducted between the beginning of October 2002 and the end of April 2003 in certain sheriff courts, but was unsuccessful, although it did reveal the potential difficulties of monitoring such cases systematically.

In the absence of a system of contemporaneous researching of human rights cases, the obvious alternative would have been to examine court records for evidence of human rights arguments. However, this option faced a number of formidable difficulties. The first was the sheer scale of the exercise. Socio-legal research in the courts typically has a much tighter focus in terms of courts and procedures covered. However, human rights issues may arise in any civil court and under any procedure.

Therefore to attempt to identify all human rights cases retrospectively would have required us to trawl through all court records, case by case, over a period of more than four years in order to identify those which raised human rights issues. This would have been an immensely time-consuming process, and not one that would have been achievable within any conceivable level of funding.

So, identifying all human rights case was not feasible. That in itself would probably not be a matter of grave concern provided that the second objective could be achieved - a reasonably accurate estimate of the numbers of human rights cases being brought - for a shorter period. However, even this more modest aim would have been very difficult to fulfil.

The obvious approach would have been to look at a sample of court records over an appropriate period. However, to produce a reliable estimate of the number of civil human rights cases being brought in any period would have required us to look at records in the Court of Session and in a representative sample of sheriff courts. This would have involved far less work than attempting to identify all human rights cases, but given the need to include at least four sheriff courts to provide a representative sample, this would still have been an enormous task given the variety of procedures and the numbers of cases involved.

It was stated above that there was no obvious short cut to identify civil human rights cases. One possibility would have been to try to find out from lawyers details of cases in which they had been involved which raised human rights points, including names, case references and dates of calling in Court. The researchers could then have identified relevant records without trawling all court records, shortening the time taken. Obtaining information from solicitors, however, would itself have been a major task requiring, for example, time-consuming and costly postal and/or telephone surveys of all solicitors doing court work in the Court of Session and in the areas of the sheriff courts chosen, and the usefulness of such an exercise would depend upon the response rate. In fact we did carry out a postal survey of 300 solicitors in one sheriff court area to see whether that turned up human rights cases not identified in other ways. There were only 38 responses, a rate of only 5%, and this confirmed our initial assumption that such a survey was not likely to be a reliable means of identifying human rights cases.

The second major problem was the limited information available from court records, which varies according to the court, the procedure, and how far the case has progressed. If the judge has had to make a decision on the merits in order to dispose of the case then one would expect to find any human rights issue which had figured prominently in the pleadings or oral argument to be referred to in the judge's opinion. However, many civil cases settle, so to examine only cases in which a reasoned opinion was issued would under-estimate the extent to which human rights arguments were being raised.

Of course, if a human rights argument were felt to be important to a case, one would expect the party raising it to put it in their pleadings. Cases proceeding in the Court of Session or under Ordinary Cause procedure in the Sheriff Court will generally have detailed pleadings which have will been retained by the court, which, theoretically, should make it easy to establish whether a human rights argument was raised. However, reading through such pleadings is extremely time-consuming - the problem identified above. By contrast in Summary Causes, the "pleadings" will only be available in live cases as, once a case is disposed of, the Summons is returned to the successful party. There may well also be cases in which the human rights argument is not mentioned in the pleadings, but only emerges at the stage of the oral argument.

For these reasons, trawling through court records is likely to fail to identify a significant number of cases in which human rights arguments have in fact been used.

Given the limitations of what may be established from court records, and the resource constraints described, it became clear that it would not be possible to produce a reliable estimate of the total volume of civil cases raising human rights issues. The data collection strategy adopted was, therefore, to undertake a more limited sampling exercise as described above to obtain some indication of the volume of litigation, and which could also be used to achieve the other objectives of the project. Although these samples related to a very brief period we were able to compare them to the reported civil cases, and this gave some, albeit very limited indication of the volume of civil human rights cases.

Quantitative and Qualitative Analysis

The third objective was to analyse how the human rights legislation was being used. This required both quantitative and qualitative analysis. As regards the former, it meant first establishing the types of subject matter that were being litigated. For this purpose, the datasets were analysed both in terms of the Convention's own categorisation of issues (Article 5, Article 6 and so forth) and in terms of domestic law and policy (criminal justice, child protection, immigration and asylum, etc.). We also analysed the cases in terms of the outcomes of litigation, the nature of the remedies used, the parties to the actions, and the geographical spread of litigation. However, our ability to perform these analyses varied for each dataset because the categories of information we had were not consistent across all datasets. To give an example, we were able to ascertain the geographical spread of criminal cases raising human rights issues because that information was included in the Crown Office database. We were not able to ascertain the geographical spread of civil cases because our research was limited. In the main text we make clear the nature of the data on which any conclusions about human rights litigation are based.

The third objective also required qualitative analysis, and the fourth objective - to analyse trends and key developments in human rights case law - was essentially qualitative. We interpreted "key developments" to mean both developments in doctrine, that is, decisions or sets of decisions which develop or clarify human rights law, and decisions which required or might require changes to, or otherwise had a significant impact on, domestic law or policy. This aspect of the research was methodologically more straightforward, albeit time-consuming, requiring us to read, analyse and consider the significance of reported cases in the database.

The fifth objective was to analyse other factors relevant to the wider context of the topic. This required us to examine and consider a range of material in the public domain such as judicial statistics and relevant legislation.

Interviews

The second main aim of the project was to assess the feasibility of, and make recommendations for, a nationwide monitoring system for identifying and tracking cases through the Court system. The research into reported cases and court records described above was clearly very relevant to this aim. In addition, the researchers conducted interviews with Scottish Court Service staff working in the High Court of Justiciary, Court of Session, and two sheriff courts. We interviewed six staff in all. The interviews were semi-structured interviews designed to gather information about the working practices of the court staff in each court, the extent to which information about human rights arguments were recorded, actual or potential difficulties that impeded the recording of information about human rights arguments and their views on the implementation of a nation-wide monitoring system for human rights cases.

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