policing in scotland and human rights dr genevieve lennon school of law, university of dundee
TRANSCRIPT
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Policing in Scotland and Human Rights
Dr Genevieve LennonSchool of Law, University of Dundee
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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
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Scottish criminal court structure in relation to human rights
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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
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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?
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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
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(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
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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)
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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
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Fraser in the Supreme Court
• Cameron test (Criminal Procedure (Scotland) Act 1995, s.106(3)): fresh evidence
• McInnes test (Article 6: non disclosure)
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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
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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’
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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’
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Crime Control vs Due Process
Due Process: Legitimacy of
the system is key
• Formality• Lack of finality
Crime Control: high proportion of
convictions• Speed• Informality• Finality
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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
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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
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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
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Questions? Comments?
Dr Genevieve LennonSchool of Law, University of Dundee