# Criminal Court Procedure in Scotland **URL:** \ **Category:** Great Debates\ **Created:** [January 8, 2015, 7:18pm UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337 "2015-01-08T19:18:30Z")\ **Posts on this page:** 14\ **Page:** 11
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 16, 2015, 1:43am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/201 "2015-02-16T01:43:06Z")
> [@Steophan](#): > > Nope, never claimed that. I’ve made no claims at all about the Supreme Court’s role in Scotland, which is why it’s so strange that you keep providing cite after cite for things I’ve firstly agreed with each time you’ve posted them, and secondly which have no relation to the claim I actually did make. > > Which is that the Supreme Court is the highest criminal court in the UK. > > A statement which remains true, and one that you have yet to attempt to disprove, for some reason. The Supreme Court is one of the highest criminal courts in the UK. It is the highest court for England and Wales and Northern Ireland but not for Scotland as per its website. There are two highest criminal courts in the UK, the Appeal Court of the HCJ and the SC. Neither is superior to the other for Criminal cases. ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [February 16, 2015, 1:45am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/202 "2015-02-16T01:45:49Z")
> [@Pjen](#): > > The Supreme Court is one of the highest criminal courts in the UK. It is the highest court for England and Wales and Northern Ireland but not for Scotland as per its website. There are two highest criminal courts in the UK, the Appeal Court of the HCJ and the SC. Neither is superior to the other for Criminal cases. Exactly. So are you going to stop pretending I was wrong now? ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 16, 2015, 1:53am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/203 "2015-02-16T01:53:27Z")
> [@Steophan](#): > > Exactly. So are you going to stop pretending I was wrong now? Your final act of sophistry. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [February 16, 2015, 1:58am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/204 "2015-02-16T01:58:20Z")
> [@Pjen](#): > > I will try to assist you with your education. > [@Pjen](#): > > Further education for you . . . > [@Pjen](#): > > You do require Education. > [@Pjen](#): > > Your final act of sophistry. Knock it off. Stick to the discussion and leave the personal remarks for The BBQ Pit. [/Moderating] ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [February 16, 2015, 2:05am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/205 "2015-02-16T02:05:06Z")
Steophan, I see no point in either of you continuing this nonsense. You are clearly talking past each other with semantic sparring and barring the intervention of an actual expert of British courts, (preferably one actually trained in those arenas), none of the peanut gallery is going to be able to judge either of your claims. Let it go. [/Moderating] ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 16, 2015, 2:08am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/206 "2015-02-16T02:08:07Z")
Post 7 "My original position was that I predicted that you believed “The Highest Criminal Court in Britain used to be the House of Lords and is now the Supreme Court.” You replied “Entirely true.” I say in my post above: “There are two highest criminal courts in the UK, the Appeal Court of the HCJ and the SC. Neither is superior to the other for Criminal cases.” And you reply: “Exactly. So are you going to stop pretending I was wrong now?” So you shift your position from “The Supreme Court is the highest criminal court in the land” (1) To agreeing with the statement: “There are two highest criminal courts in the UK, the Appeal Court of the HCJ and the SC. Neither is superior to the other for Criminal cases.” (2) You cannot hold statements (1)and (2) to be true at the same time. Either the Supreme Court is the highest criminal court in the land OR There are two equal highest courts in the land. I’m out of here. Goodbye. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 16, 2015, 2:19am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/207 "2015-02-16T02:19:35Z")
> [@Pjen](#): > > It is his technique of sophistry I am trying to counter. Previously we have crossed swords like this twice and he argues points that are provably false persistently even in the face of repeated contrary cites, yet never attempts to build his own argument from cites to factual material, relying on partial quotes, misquotes or misinterpretations. His technique is to try to win an argument by obduracy rather than the building of a case. > > On the previous two occasions he has driven me to distraction and I responded in a way that got me warned and then suspended. I decided that should he continue his puerile game playing, I would respond with a completely straight bat and merely overturn his weak arguments by the provision of cites to build a convincing argument to expose his techniques. > > What I am stating is simple fact backed up by reliable cites. I hope people can see that he is merely posting his incorrect beliefs without any external supports. So your answer is no. You will be posting rebuttals on your years from now deathbed. Good for you. ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 16, 2015, 2:30am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/208 "2015-02-16T02:30:17Z")
Just a final note to say that the original statement was among a dozen or so I made to indicate how it is an English habit to think that things English are things British, and ignore the other home nations. The statement about the Supreme Court was to test whether or not there was a differentiation between two completely different criminal law systems. Reviewing this thread and the original one it is apparent that there has been a gradual realisation that an early firmly held belief about the uniqueness and purview of the Supreme Court has been found to be false, and a sudden collapse into agreement with its contrary is a clear face-saving measure. ---
**Author:** ![Capt.Ridley\_s\_Shooting\_Party](https://avatars.discourse-cdn.com/v4/letter/c/cc9497/32.png) [@Capt.Ridley\_s\_Shooting\_Party](https://boards.straightdope.com/u/Capt.Ridley_s_Shooting_Party)\ **Post date:** [February 17, 2015, 9:40am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/209 "2015-02-17T09:40:34Z")
There are no completely separate legal systems within Britain. There’s four legal systems that are highly devolved, and largely remain separate from each other, but are not completely separate. A good example being the Supreme Court, in its role as arbiter of compliance with ECHR throughout Britain and of compliance with the various statutes that define devolved powers, hearing Cadder v. HM Advocate in Scotland in 2010, wherein it was ruled that the Scottish practice of barring arrested persons from access to legal advice during interview was incompatible with the right to a fair trial, and therefore bringing Scotland in line with England that had recognised the right to legal advice as fundamental since … basically forever. In particular, that case had the knock on effect of rendering many previous criminal convictions unsafe in Scotland, as testimony obtained by police interviewing suspects or witnesses without legal representation had been used to satisfy the requirements of corroboration. ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 17, 2015, 11:07am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/210 "2015-02-17T11:07:54Z")
> [@Capt.Ridley\_s\_Shooting\_Party](#): > > There are no completely separate legal systems within Britain. There’s four legal systems that are highly devolved, and largely remain separate from each other, but are not completely separate. > > A good example being the Supreme Court, in its role as arbiter of compliance with ECHR throughout Britain and of compliance with the various statutes that define devolved powers, hearing Cadder v. HM Advocate in Scotland in 2010, wherein it was ruled that the Scottish practice of barring arrested persons from access to legal advice during interview was incompatible with the right to a fair trial, and therefore bringing Scotland in line with England that had recognised the right to legal advice as fundamental since … basically forever. > > In particular, that case had the knock on effect of rendering many previous criminal convictions unsafe in Scotland, as testimony obtained by police interviewing suspects or witnesses without legal representation had been used to satisfy the requirements of corroboration. I agree totally. The SC has the power to determine whether Scottish Law is in compliance with Devolution or Treaty obligations. The SC has NO powers to overturn Scottish Criminal cases, but can find that the law itself needs to change, so the SC is not the highest court for Scottish Criminal cases as it is in English and Welsh, and Northern Irish cases where it acts as the highest court of criminal appeal for those two jurisdictions in a way that it does not for Scottish Cases. The process goes like this- For England and Wales and Northern Ireland- Conviction in lower court Appeal to Appeal Court results in confirmation of conviction and sentence Appeal to Supreme Court available for ANY reason, including trial process and fairness Supreme Court may: 1/ Allow an appeal and quash it 2/ Alter a sentence 3/ Order a retrial 4/ Confirm the finding and the sentence. For Scotland Conviction in lower court Appeal to Appeal Court results in confirmation of conviction and sentence Appeal to Supreme Court available only for matters of administration- devolution or treaty matter but not including process or fairness. Supreme court may find the process of justice in Scotland ultra fires and Send the result to the Scottish Government with instruction to change the law It cannot: 1/ Allow an appeal and quash it 2/ Alter a sentence 3/ Order a retrial 4/ Confirm the finding and the sentence. After the Scottish Government has amended the law the original appellants and any other people affected by the law change may appeal through the High Court of Justiciary in Scotland for any relief available under the new law. The SC can require a change in Scottish law but cannot directly hear Scottish Criminal cases as it can in the other two jurisdictions. The UK has two senior Criminal Courts- the SC for England and Wales, and Northern Ireland, and the Appeal Court of the HCJ for Scotland. The SC plays no part in Criminal Cases in Scotland, although it can require a subsequent law change which may result in retrial in the Scottish Courts under the new law. The UK has a single senior Civil and Administrative Court- the Supreme Court, which covers all three jurisdictions. ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 17, 2015, 11:25am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/211 "2015-02-17T11:25:40Z")
> [@Capt.Ridley\_s\_Shooting\_Party](#): > > In particular, that case had the knock on effect of rendering many previous criminal convictions unsafe in Scotland, as testimony obtained by police interviewing suspects or witnesses without legal representation had been used to satisfy the requirements of corroboration. The Supreme Court finding neither changed the law in Scotland, nor overturned any convictions as that is beyond its powers. What did happen is that the Scottish Government agreed reluctantly to change the law resulting in the guaranteed access of suspects to a solicitor before the previous six hour limit. It had been argued unsuccessfully that as the Scottish Trial system required (unlike in England) two separate strands of evidence to convict, a confession alone not being sufficient to gain a conviction; this safeguard still remains although it is being questioned now. Once the law was changed to allow solicitors access, the government set up a commission to investigate any possible miscarriages of justice and determine guidelines for any future appeals through the Scottish Criminal Law courts. 867 current cases were dropped following this ruling. Some cases have been appealed through the Scottish Courts but there have been few verdicts overturned as the Calder ruling did not affect many of the cases as they did not rely on confessions in the first six hours, but were supported by other evidence. The main result has been to make rape in Scotland almost impossible to prove because of the law on corroboration. This is currently being discussed as a candidate for changing the rules on corroboration. ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 17, 2015, 11:34am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/212 "2015-02-17T11:34:18Z")
Have done a little more research. I had been surprised that I could not find any links to historic cases overturned by Cadder. I could find that Cadder’s conviction had been overturned after the Scottish Law was amended, but was surprised that the press had not been full of cases seeking relief from previous convictions. The reason is that Cadder was not made retrospective so previous potentially unsafe convictions were not open to appeal, but all future interviews must be done with solicitors. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [February 17, 2015, 11:48am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/213 "2015-02-17T11:48:09Z")
> [@Pjen](#): > > Have done a little more research. I had been surprised that I could not find any links to historic cases overturned by Cadder. I could find that Cadder’s conviction had been overturned after the Scottish Law was amended, but was surprised that the press had not been full of cases seeking relief from previous convictions. > . There was this one, wasn’t there? > **[Ryan McCallum's rape conviction overturned after Cadder ruling](https://www.bbc.com/news/uk-scotland-20543598)** > > A man who was jailed for rape in 2009 has his conviction overturned because he was questioned by police without having access to a lawyer. ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 17, 2015, 12:09pm UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/214 "2015-02-17T12:09:52Z")
> [@Captain\_Amazing](#): > > There was this one, wasn’t there? > > [Ryan McCallum's rape conviction overturned after Cadder ruling - BBC News](http://www.bbc.com/news/uk-scotland-20543598) That is interesting. I had searched for such without success but had found a BBC website that said that it was not retrospective: [http://m.bbc.co.uk/news/uk-scotland-11627386](http://m.bbc.co.uk/news/uk-scotland-11627386) Q: How many cases does it affect? Could there be a flood of appeals? Ministers say there are 3,471 cases which may relate to the Cadder ruling, although it is up to the Crown to decide whether they are relevant - as Scottish Justice Secretary Kenny MacAskill put it, they are not “sure-fire winners”. The ruling is not retrospective, but it does apply to live appeals and cases which are pending and on-going. The press has certainly not been full of such cases. It may be that the ruling was not retrospective before the original date that the Cadder appeal was filed with the Appeal Court. Or the case may have been already in the appeal process. Additionally it would only apply to those convictions where evidence from the first six hours was necessary for corroboration. [Previous page](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337.md?page=10)