Policing in Scotland and Human Rights by OF6eor4

VIEWS: 4 PAGES: 18

									Policing in Scotland and Human
              Rights
         Dr Genevieve Lennon
  School of Law, University of Dundee
                     Outline
1. Scottish criminal court structure in relation to
   human rights
2. Cadder and the right to legal advice under
   Article 6
3. Fraser and the comparison between the right to
   a fair trial under Article 6 and a ‘miscarriage of
   justice’ under the Criminal Procedure (Scotland)
   Act 1995
4. In defence of guilty people walking free: why the
   integrity of the criminal process is crucial to
   policing
Scottish criminal court structure in
     relation to human rights
  Scottish criminal court structure in
       relation to human rights
• Scotland has a separate legal system and
  courts
• Scotland Act 1998: all devolution issues are
  reserved matters
• All appeals on devolution issues go, ultimately,
  to the Supreme Court
  Controversy over the Fraser case
• Alex Salmond: ‘The increasing
  involvement of the UK Supreme
  Court in second guessing
  Scotland's highest criminal
  court of appeal is totally
  unsatisfactory’
• Independent Review Group
• Scottish Parliament has no
  competence to alter Scotland
  Act or Human Rights Act 1998
• Representativeness of ECtHR vs.
  Supreme Court?
             Facts of Cadder
• Appellant detained and questioned under
  caution; not offered access to lawyer
• Convicted; prosecution relied on
  statements made when under caution
• Appealed on basis of infringement of Art 6
  (Some of the) Differences between
Criminal Procedure in Scotland and the
            rest of the UK

• Length of pre-
  charge detention (6
  hrs vs. 96 hrs)
• Corroboration
• Pre-charge access to
  a lawyer
The Right to Legal Advice under Art. 6
• Not absolute
• 2009 Crown Court: 70% guilty plea
• 45% of detainees request legal advice (Kemp
  & Blamer 2011)
• 49% of terrorist suspects request legal advice
  (Brown 1993)
              Facts of Fraser
• Convicted of murdering his
  wife
• Prosecution relied on evidence
  regarding wife’s rings
• Fraser tried to add ground of
  appeal of infringement of
  Art.6 on basis of non-
  disclosure – refused
• Leave to appeal to SC refused
  but granted by SC
     Fraser in the Supreme Court
• Cameron test (Criminal Procedure (Scotland)
  Act 1995, s.106(3)): fresh evidence

• McInnes test (Article 6: non disclosure)
   Article 6: the right to a fair trial
• Right to a fair and public hearing within a
  reasonable time by an independent and
  impartial tribunal established by law
• Factual guilt and procedural fairness
• Holistic approach to ‘trial’ – from pre-charge
  detention to conviction
• Defects can be cured by the court
   Criminal Procedure (Scotland) Act
             1995, s.106(3)
• Alleged miscarriage of justice
  – Fresh evidence
  – Unreasonable verdict
• Factual guilt and procedural fairness, but
  emphasis on former

• England: Criminal Appeal Act 1995, s.2: ‘if
  conviction is unsafe’
In defence of guilty people walking free (sometimes):
 why the integrity of the criminal process is crucial to
                        policing


• The Royal Commission on
  Criminal Procedure (1981):
  have regard ‘both to the
  interests of the community in
  bringing offenders to justice
  and to the rights and liberties
  of persons suspected of crime’
Crime Control        vs    Due Process

Crime Control:            Due Process:
high proportion of          Legitimacy of
   convictions              the system is
• Speed                     key
• Informality             • Formality
• Finality                • Lack of finality
Crime Control                       Due Process


• Scotland?
  – Varies over time; depends on the particular aspect
    of the CJS
  – Due process lens
  – Legitimacy of system as a whole is of central
    importance
      R v Mullen [2000] QB 520
• Mullen convicted of
  conspiracy to cause
  explosions
• Kidnapped from
  Zimbabwe
• Court of Appeal allowed
  appeal based on
  legitimacy argument
                 Conclusion
• Allegations of human rights infringements in
  trial raise devolution issues and will be heard
  (ultimately) by the Supreme Court
• Gap in practice if not law between criminal
  appeals procedure in Scotland and Article 6,
  ECHR
• Integrity of criminal process as a whole is
  fundamental to our CJS
 Questions? Comments?


       Dr Genevieve Lennon
School of Law, University of Dundee

								
To top