So, you were wrong from the start, and the Supreme Court is, in fact, the highest court in the land, having the power to overturn verdicts in England and Wales, and to compel the Scottish government to change its laws. Powers that no other court in the land has.
You could possibly get away with saying that it is the highest court in the UK, but not the highest court in Scotland, if you really felt like it, but your original assertion would still have been wrong. And your own cites, as well as those of AK84 show that.
That’s not an absurdity, that’s a fact. The ECHR is a higher court than the Supreme Court, and is, again in fact, where people appeal to - such as prisoners who can’t vote - when they’ve exhausted the appeals within the UK. It’s only not relevant to the question in this thread as it’s not a court in the UK. Obviously, it does have powers on criminal law, as it can require those laws to be changed, and applied retroactively.
No-one has made such a claim. The Supreme Court can require that the law be changed, and the lower courts make new findings based on the corrected law.
Yes. No-one’s disputed that. The Supreme Court operates at a higher level, determining not whether the laws were applied correctly, but whether the laws themselves were legal. Much like, as mentioned earlier, the ECHR can do to the Supreme Court.
The big difference, of course, is that the UK has the power to ensure Scotland makes these changes, unlike the EU over the UK. Which is fortunate for those of us who believe convicted criminals should be punished.
A criminal appeal from Scotland, England or N Ireland will have the same result. Its not an Administrative law issue (and Administrative law decisions generally don’t lead to “new legislation” incidentally).
Administrative Law decides whether the Acts of Public Bodies are within powers or within the law. Courts are Public Bodies. However, Judicial Review as understood every damn place on the Planet, does not extend to Superior Courts of Record, such as the High Court of Justiciary and the Court of Sessions. Decisions of such Courts are only challengeable if a right of Appeal has been given. An appeal is not judicial review.
More importantly, the golden standard for looking at the nature of proceedings, is to see the procedure by which they are governed. Appeals to Supreme Court from HCJ under the compatibility route are governed by Criminal Procedure (see my earlier posts). They are therefore Criminal proceedings. I don’t know anyone who has every argued otherwise.
Now therefore, returning to the issue at hand, when the HCJ (sitting as Criminal Appeals Court) hands down a decision a disappointed litigant can challenge it (with leave) before the SC. This is the same as the case with a litigant from the Court of Appeals of England or N Ireland. The difference is that in Scotland, said litigant will have the to show that the HCJ’s actions violated the HRA guaranteed Convention rights, while in England and N Ireland, s/he will have to show that the case raises a matter of law of general public importance.
If anything, it will be easier in getting a reversal in Scottish criminal cases, because per Art 6 as interpreted by the European Court, where the decision of the Court below is unreasonable (Van Kuck v Germany) or not in consonance with the facts (Khamidov v Russia) Art6 violation has occured and the judgement should be set aside. A judgement by the HCJ where either a factual determination has been upheld which could not have been reasonably upheld or an interpretation of law was handed down which was unreasonable, the SC can and will reverse.
No. I was not wrong from the start. The highest court in Scotland for criminal cases is the HCJ. The SC cannot overturn its decisions. The SC cannot alter verdicts or sentences. The SC cannot order the Scottish courts to change any of its verdicts or sentences. The SC cannot order the Scottish Government to change the law. All it can do is indicate for administrative or treaty purposes that Scottish law currently does not comply with an Act of Parliament or UK Treaty obligations.
Contrariwise the SC can overturn decisions of lower English courts by finding that a trial was in error in its verdict or sentence and can free people, reduce their sentences or order a retrial. It lacks all these powers over Scottish courts.
which shows what happens when the SC reviews the few Scottish Criminal cases in its remit.
The SC found that Scottish law did not comply with ECHR requirements; this required no change in Scottish legal decisions which remained unchanged. It did place an onus on Holyrood to change the law. Eventually they altered the law to comply with ECHR requirements and the HCJ was then asked to review any cases where this new legislation might impact on their previous verdicts.
FURTHER the UK Supreme Court site cited says clearly:
"Q. What is the jurisdiction of the Supreme Court over criminal matters in Scotland?
A. The main role of the UK Supreme Court is to hear appeals from courts in the United Kingdom’s three legal systems: England and Wales, Northern Ireland and Scotland.
The Supreme Court acts as the highest court for civil appeals from the Court of Session in Scotland. The highest court for criminal appeals however remains as the Court of Appeal in Scotland.
The Supreme Court hears some criminal appeals, from other jurisdictions in the UK but not from Scotland.
However, the Supreme Court also determines “devolution issues” (as defined by the Scotland Act 1998). These are legal proceedings about the powers of the three devolved administrations. Devolution issues were previously heard by the Judicial Committee of the Privy Council and most are about compliance with rights under the European Convention on Human Rights, brought into national law by the Scotland Act 1998 and the Human Rights Act 1998. It was in this capacity that the Supreme Court considered the Cadder case.
The Scottish Government is very concerned that the role of the Supreme Court in criminal matters has gone far beyond that which was intended. Virtually any objection, challenge or point of law can be characterised as a devolution issue, potentially giving rise to a right of appeal to the Supreme Court. The First Minister has written o the UK Government stating that we want to see the High Court of Justiciary restored to being the highest authority in criminal matters in Scotland."
The decisions by the ECHR do not change UK law. Parliament is supreme. As in the current Prisoners’ Votes case, a decision is not binding in British or English law and requires legislation to make the law compliant with the ECHR. On the other hand, a judicial review or landmark case in the SC or HC in England or the HCJ in Scotland actually changes the law requiring Parliament to legislate to overturn such decisions.
As per my cite from the Supreme Court webpage above, this is false. It states clearly that it can only find on the administrative competence of the law.
If you read the Cadder Case you will see that the SC judgement had no effect in Scotland until a considerable time later the Scottish Government made a change in the law.
No,No,No. As per the Supreme Court website quoted above this is specifically not the case.
For England and Wales and Northern Ireland the SC is the final court of appeal for criminal matters. In Scotland it is the HCJ. The only appeals to the SC available to a Scottish litigant is over matters of devolved powers or compliance with the ECHR or other treaty.
Specifically, if the litigant merely disagrees with the HCJ there is no possibility of the SC hearing the case. The only matters that the SC can be asked to rule on are administrative.
For instance if there is a dispute about the admissibility of, say, LCNDNA evidence, that would be decided finally by the SC in England, Wales and Northern Ireland, and by the HCJ in Scotland; there would be no further appeal beyond the HCJ on this matter as the SC is limited to administrative matters that are not raised by rules of evidence.
"The Supreme Court acts as the highest court for civil appeals from the Court of Session in Scotland. The highest court for criminal appeals however remains as the Court of Appeal in Scotland.
The Supreme Court hears some criminal appeals, from other jurisdictions in the UK but not from Scotland.
However, the Supreme Court also determines “devolution issues” (as defined by the Scotland Act 1998). These are legal proceedings about the powers of the three devolved administrations. Devolution issues were previously heard by the Judicial Committee of the Privy Council and most are about compliance with rights under the European Convention on Human Rights, brought into national law by the Scotland Act 1998 and the Human Rights Act 1998."
See PDF:The Jurisdiction of the Supreme Court in Scottish Appeals
You are (as usual) arguing against a claim nobody has made. If all appeals in Scotland fail, an appeal can be made to the UK Supreme Court. If all appeals fail in the UK, an appeal can be made to the ECHR. They are higher courts, which can require that the governments of the lower jurisdictions change laws, and apply them in such a way that some cases must be retried. No, it’s not the same procedure as a criminal appeal court within the lower jurisdiction. That’s not the point.
The only difference is that, if the UK ignores an ECHR decision, nothing will happen. If Scotland ignores a UK Supreme Court decision, the UK Government has the power to change Scottish law.
You even acknowledge in your cites that Scottish law has changed, and criminal court decisions reversed, based on the decisions of the Supreme Court. How do you think that would be possible, if it’s not a higher court?
The ECHR decision is binding on the UK government to change the law and allow prisoners to vote, based on the treaties that the UK is a party to. Fortunately, the government is simply ignoring that, and will hopefully continue to do so. I’m fine with the UK government breaking it’s own laws when it would lead to a patently absurd result, and when there’s no consequences for doing so.
Likewise, a decision by the Supreme Court can oblige Scotland to change its laws. Good luck trying to ignore that, unlike the EU, the UK actually has power in Scotland. The Scottish parliament is emphatically not supreme.
“The Supreme Court hears some criminal appeals, from other jurisdictions in the UK but not from Scotland.”
That is a pretty firm statement from a rather reputable source.
You have provided no cites for your incorrect beliefs.
Agreed that a Supreme Court decision on an administrative devolved matter occurs, it can require the Scottish Government to review the law as happened in Calder. What it cannot do is overturn any Scottish Court verdict as it has no standing in Scotland on the criminal law.
Yes, I know, that’s what both AK84 and I have been saying. I have no idea why you keep posting cites that support our position and undermine your own, and still continue to claim that the Supreme Court is not the highest court in the UK.
So, if it is not the highest court, to which higher court should the Scottish government appeal its judgements?
The Supreme Court is not the highest CRIMINAL court in Scotland. It is the highest civil and administrative court in Scotland.
That is why the Supreme Court website states:
“The Supreme Court hears some criminal appeals, from other jurisdictions in the UK but not from Scotland.”
Now how about producing one cite for the Supreme Court being the highest Court of Criminal appeal in Scotland. You have not done so, so far as there is no such cite because it is untrue.
Well, if we want actual case law, handed down by UK Courts on this issue, perhaps we can see O’Niell v HM Advocate, especially paragraphs 4-11
Specifically
[QUOTE=The Supreme Court which is evidently not Supreme]
T***his court has jurisdiction to hear appeals in relation to criminal proceedings ***in the High Court of Justiciary under Part II of Schedule 6 to the Scotland Act 1998 (“the 1998 Act”). The opening paragraph of Part II is in these terms:
[/QUOTE]
Any textbook on Scottish Law will inform you that the Appeal Court of the High Court of the Justiciary is the highest criminal court in Scotland.
Prior to 1994 the House of Lords (as predecessor to the SC) had no authority at all over Scottish Criminal Justice. The Privy Council decided administrative matters between the various home nations. In a tidying up exercise, such administrative functions were passed to the newly constituted Supreme Court, but only as constrained to administrative matters outlined in statute.
You have still provided no cites, just your erroneous opinion.
Yes. Now go and read the Act which makes it clear that these appeals are on devolution and administrative matters only, and do not form part of the criminal law in Scotland, but relate solely to the relations between the devolved powers and UK legislation. Scottish Criminal law has never been integrated with English Law and there is no appeal on criminal (only administrative) matters.
You have still provided no convincing cite for the SC being part of the criminal justice system in Scotland because it is not the case. The SC can only hear the administrative functions of Scottish criminal justice, not the actual Criminal Justice itself.
Any school child in Scotland knows this is true, as does anyone who has bothered to learn Scottish Law.
How do you explain the clear statement from the Supreme Court above that it is not the final court of criminal appeal for Scotland. You are not only arguing against me, but also against the clear statement of fact on the Steen Court website.
From your cite the appropriate paragraph which ties this to UK Treaty obligations under the ECHR and which opened the door to an administrative appeal is:
The period of time relied on in this case extends from 17 September 1998, when the appellants were detained under section 14 of the 1995 Act on suspicion of conspiracy to murder, to 10 June 2010 when they were convicted. It was not until 5 April 2005 that the appellants appeared on petition at Kilmarnock Sheriff Court on charges which ultimately formed the basis for the charges in the indictment of which they were convicted. There was a further period until 10 September 2008 when the indictment was served on them, but the focus of attention at this stage is on that which occurred between 17 September 1998 and 5 April 2005. The question which this court has been asked to decide requires it to identify the right starting point for the purposes of the reasonable time guarantee in article 6(1) of the European Convention on Human Rights.