Redefining Supreme

Did you know that the UK Supreme Court's role in Scots Law was slightly trimmed back a few weeks ago?  I must admit it had escaped my notice, so when I caught up with the news today I couldn't resist making my first edit to Wikipedia for eighteen months (I used to be a prolific Wikipedia contributor a few years ago, until I was worn down by edit wars and the absurd complexity of the site's rules).  The previous wording on the UK Supreme Court article was -

"The main role of the Supreme Court is to hear appeals from courts in the United Kingdom's three legal systems: England and Wales, Northern Ireland, and Scotland. (English and Welsh law differ only to the extent that the National Assembly for Wales makes laws for Wales that differ from those in England, and the two countries have a shared court system.) The Supreme Court acts as the highest court for civil appeals from the Court of Session in Scotland, but the highest appeal for criminal cases is kept in Scotland.

Permission to appeal from the Court of Session is not required and any case can proceed to the Supreme Court of the United Kingdom if two Advocates certify that an appeal is suitable. In England, Wales and Northern Ireland, in contrast, permission to appeal is required, either from the Court of Appeal or from a Justice of the Supreme Court itself."

I've now altered the second paragraph so that it reads -

"For civil cases decided prior to September 2015, permission to appeal from the Court of Session is not required and any such case can proceed to the Supreme Court of the United Kingdom if two Advocates certify that an appeal is suitable. The entry into force of the Courts Reform (Scotland) Act 2014 has essentially brought the procedure for current and future Scottish civil cases into line with England, Wales and Northern Ireland, where permission to appeal is required, either from the Court of Appeal or from a Justice of the Supreme Court itself."

It always seemed crazy that a country with its own supreme court for criminal law allowed an external court such a gratuitously large say over civil cases. It's particularly satisfying that the anomaly has been rectified by Scottish Parliament legislation, rather than the change being "granted" by our betters in London.

Tony Kelly's lawyerly inconsistency

Just as a quick follow-up to my earlier post about the Supreme Court controversy, I was more than a touch bemused by Tony Kelly's defence of the status quo on Newsnight Scotland tonight. He has a very confident air about him, as if it can be taken as read that he's talking common sense, but in fact with each answer to one of Isabel Fraser's questions he seemed to be cheerfully contradicting what he'd only just said in the previous answer. For instance, when she asked him if it wouldn't be a good idea to ensure that the Supreme Court had a majority of Scottish judges when it dealt with Scottish cases, he made a high-minded 'juges sans frontières' point that it shouldn't be about checking a judge's passport or birth certificate. But then Fraser countered by suggesting that Scottish judges would have a better understanding of the context in which the decisions of lower courts had been made, to which his rather startling reply was "exactly". He added that this was why the presence of Lord Hope and Lord Rodger in the Supreme Court line-up was so important. OK, so suddenly it is about "passports and birth certificates" after all, Tony?

But he saved the best for last. When asked if it wouldn't be better to bypass London altogether and go straight to Strasbourg, he said no, because all the judges would be "foreign" - presumably in this instance meaning anyone from outside the UK. Yup, that inspiring, idealistic point you made about judges leaving their passports and birth certificates at home is really looking in fine shape now, Tony.

A proxy argument for British nationalism? Perish the thought.

The human rights red herring

Has anyone noticed how the 'defence of human rights' has suddenly been seized upon as a convenient proxy for unionism? The legal experts wheeled out on Newsnight last night seemed to have an unanswerable point when they claimed that the SNP's politics were blinding them to the benefits of a system that allows for speedy human rights appeals to the UK Supreme Court - unanswerable, that is, until you remember that a Scottish court could easily perform precisely the same function. As Alex Salmond pointed out, the 'speed' issue is also a red herring, because a dedicated Scottish bench for human rights cases could do the job just as quickly as the UK Supreme Court, with the possibility of a laborious appeal to Strasbourg still there as a final safeguard, just as it is in every other European jurisdiction from Ireland to Russia. When you bear all that in mind, the experts' argument is stripped down to the basic assumption that they daren't utter aloud - that a predominantly English court is bound to be superior in quality to a Scottish court. The cringe rears its ugly head again.

That very assumption led Isabel Fraser into an amusing circular argument on the same programme. She suggested to the First Minister that the Scottish courts couldn't possibly be left to their own devices, because they had been shown to be wrong before. But how precisely had they been shown to be wrong, Isabel? Because, she explained, the UK Supreme Court had overruled their decisions, therefore they must have been wrong!

To sum up :

1) This isn't about human rights, because the European Convention is incorporated into Scots Law and no-one in government is suggesting that should change.

2) This isn't about speed, because a Scottish court could act just as fast as the UK Supreme Court (or faster).

3) This isn't even about the Supreme Court's ability to adjudicate on genuine devolution matters. The problem is the way that the Scotland Act irrationally defines anything relating to the European Convention on Human Rights as a devolution issue. Since the High Court of Justiciary performs exactly the same function in Scotland as the final court of appeal for criminal cases that the UK Supreme Court performs in England and Wales, it would be far more logically consistent for a Scottish court to also deal with human rights appeals in criminal cases, and for the Supreme Court to do the same for cases in its own criminal law jurisdiction. The present (or should I say emerging) set-up is colonial in character.

The words say 'serious offence', the punishment tells a different story

The BBC reports on the punishment for a woman found to have made a false complaint of sexual assault -

A woman who admitted wasting police time by making false allegations of sexual assault in South Yorkshire has been fined £80.

The 41-year-old claimed to have been attacked by two men on land off Greenland Road in Darnall in January and two arrests were made.

Police said their investigation found inconsistencies in her account and the woman later admitted making it up.

News of the allegation spread fear and panic in the local area, police said...

"Her false report tied up a good deal of police time that could have been spent on other matters, and unfortunately, cases like this can only have an adverse effect on efforts to tackle genuine reports of rape."

I'm not exactly part of the hang 'em, flog 'em tendency, so I'm not going to say this relatively light punishment was wrong in its own terms, but I do wonder about the tone of the police comments. Taking a deliberate action that could have utterly wrecked the lives of two innocent people is (or at least certainly ought to be regarded as) a very serious offence, so if something as minor as a fixed penalty fine has been issued as a result, you'd think the police might want to justify that decision by emphasising the mitigating factors. Instead, with the references to "fear and panic" and "adverse effect on tackling genuine reports of rape", it's hard to escape the conclusion that they - startlingly - consider themselves to have acted with a degree of severity in this instance.

The broader context here is the ongoing efforts to 'rebalance' the way the justice system treats the victims and perpetrators of rape and sexual assault, and thus boost the conviction rate. This approach is predicated on the assumption that wholly bogus complaints are extremely rare, and that therefore removing certain protections for the defendant will only have the effect of sending more of the guilty to prison, rather than risking miscarriages of justice. If that is to be the guiding philosophy, then surely instances like this where someone has been clearly demonstrated to have concocted a story from scratch become that bit more serious, as they threaten the integrity of the system. And yet an £80 fixed penalty sends out just one message - that this is a routine, relatively minor offence.

Hattersley's consent principle

The case of a chef who was cleared yesterday of raping a severely drunk woman reminded of me of the edition of Question Time a year or two back when Roy Hattersley claimed it was self-evident that, once a woman had consumed a certain level of alcohol, any sex that took place was by definition rape - because no consent to sex could be meaningfully given. Without getting into the rights and wrongs of this particular case (and no-one can doubt the difficulties of obtaining a conviction even when a rape has genuinely occurred), Hattersley's proposition seemed to me to be a recipe for chaos, not to mention injustice on a mammoth scale. Taken literally, it would probably mean that rape has taken place within the majority of marriages in this country at some point or another - although in most cases the 'victims' would be somewhat surprised to learn of this. And there's another even more important point. Don't women sometimes have sex with severely drunken men? Why is sex with a drunk woman 'rape' and sex with a drunk man just...well, 'drunk sex'? And how should the law define sex between two equally drunk people - perfectly OK on the part of the woman, but rape on the part of the man?

Before anyone misunderstands me, if a relatively sober man takes advantage of a woman who is practically unconscious, that is clearly rape. But there does seem to be a very convenient double-standard creeping in here.