My last attempt at writing about Human Rights and how European conventions and laws apply in Scotland drew a response from a solicitor that I was either a fool or a man of no integrity. I was to choose which; there was no third option which perhaps allowed me the luxury of having a point.
In my post here therefore, other than a brief reference to my personal knowledge of Lord McCluskey, I am going to quote from qualified individuals (Lord McCluskey and the Legal Editor of the Guardian) with whom, as a layman, I agree.
Firstly, as regards Lord McCluskey, my own father many, (many) years ago had the occasion to appear before Lord McCluskey. Having had a particularly raw deal from other members of the judiciary and legal profession, he had been dreading the experience. However as it turned out, Lord McCluskey was the first legal figure to believe my father’s version of events and ruled in his favour.
I have no wish to go into greater detail on that other than to say that what was accepted by Lord McCluskey and rejected by the others was the truth. My view therefore of Lord McCluskey may be subjective but it is formed by his deeds and actions in a real life situation.
At the grand old age of 82, Lord McCluskey was appointed recently by the Scottish Government to chair an Independent Review Group examining the relationship of the High Court of Justiciary and the United Kingdom Supreme Court
In their first deliberations just released, The McCluskey report recommended a new provision, with proposed amendments to the Scotland Bill, which would place the High Court of Justiciary “on an equal footing with its counterparts elsewhere in the UK, by enabling the Supreme Court to grant permission to appeal only if the High Court of Justiciary has granted a certificate that the case raises a point of general public importance”.
Let me take you back to 2000 when Lord McCluskey delivered a warning on the consequences of“An unbridled ride to rights”
From that Guardian article comes this:
In February Scotland’s appeal court declared that an important element of the police armoury against drink drivers was unusable. Margaret Brown, 30, was charged after police confronted her at 3am in a 24-hour supermarket smelling of alcohol and clutching a bottle of gin. Asked who had driven the car parked outside, she admitted: “It was me.” Section 172 of the Road Traffic Act 1988 makes it an offence for the keeper of a car to refuse to identify the driver if asked by police. Parliament enacted it because a prosecution could not be brought without evidence that the person charged was driving the car.
Her own admission was the key evidence that Brown had been driving while over the limit. Without it there would be no prosecution But the court ruled that article 6 of the European Convention, the right to a fair trial, protected her against self-incrimination. So the prosecution could not rely on it as a significant part of the case against her.
At Brown’s appeal hearing the then solicitor general, Colin Boyd, argued that without section 172, there could be “momentous effects” on the use of roadside cameras to trap speeding drivers, since prosecutions relied on the section for proof of the driver’s identity. In his judgment, the Lord Justice General, Lord Rodger, left the question of speed traps open, but pointed out that the European Court of Human Rights had ruled that the protection against self-incrimination applied to “all types of criminal offence without distinction, from the most simple to the most complex”.
Lord McCluskey, burst into print in Scotland on Sunday a few days later, describing the results of the new human rights regime as “devastating”. He said he had warned in his 1986 Reith lectures that the Canadian charter of rights and freedoms, modelled on the European Convention, would produce “a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers.” He added: “Prophetic or what?”
Lord McCluskey predicted: “The police are about to embark on a helter-skelter of discovery about the restraints upon their traditional powers and practices”. They should be looking “long and hard” at article 8 of the convention, which guarantees a right to privacy. It was a right enjoyed by everyone, including “those whom the police are pursuing because they believe them to be drug dealers, fraudsters, paedophiles or wife-batterers”. The police could tap telephones, use secret cameras or engage in covert surveillance only if they had a valid warrant “under a law which has been promulgated and publicised as a law designed to permit the invasion of article 8 privacy.” It had been suggested, he said, that “it was a bit like sailing in the Titanic toward a legal iceberg. My own fear is that the better simile is with an avalanche; all we can hear at the moment is a distant roar; but it is coming and we are going to have to struggle to avoid being buried in new claims of right.”
In 2007 Lord McCluskey wrote:
IN FEBRUARY, The Scotsman published an article in which I highlighted some of the anomalies resulting from the ways in which the Courts and the Scottish Executive were applying the Human Rights Act and the European Convention on Human Rights. I wrote: “In Scotland, we have the revolting spectacle of criminals being compensated to the tune of millions of taxpayers’ money, because they had to use chamber pots in their cells overnight. Just think about it: when the European Convention on Human Rights was written in 1950, half the people of Europe were still using chamber pots overnight, or holes in the ground! Did anyone imagine that, 50 years later, convicted murderers and rapists would be entitled to financial compensation because they didn’t have en suite facilities?”
The same scandal has now been thrown into dramatic focus by a decision of the highest court, the House of Lords, as reported in The Scotsman last Thursday. The issue before the court was: “Can a claim for damages based on an alleged breach, by the Scottish Executive, of a prisoner’s right under the European Convention become time-barred by a section of the Human Rights Act?”
If that sounds a bit technical, then don’t read the judgements: they are fiendishly complicated. The implications, however, are clear. Prisoners in Scottish jails during the last eight years or so who had to slop out are now free to sue for damages as compensation for the indignities of having to do so. Most will get Legal Aid. The Scottish Executive believed that claims older than one year were “time-barred”, so the sums involved were not unacceptably great. The Lords have decided that the Executive was wrong. The consequence is that some £70m of taxpayers’ money (plus legal expenses) will have to be paid over to countless convicted criminals. So if you try to persuade your MSP that a few hundred thousand pounds spent in your district would save lives, reduce accidents or improve public services, you are likely to be met with the reply: “Sorry: all our spare funds have had to be allocated to alleviate the suffering of convicts caused by their having had to slop out.”
(The ruling came via the Napier case. Napier was a remand prisoner with particular medical needs.)
Many judges in that court come from countries where prison conditions are so primitive that our jails look like rest and recreation camps. I know that from personal experience. I take lawyers and others from countries in Europe and beyond to visit our prisons. They marvel at the modern conditions there, contrasting the much inferior conditions in their prisons. I find it difficult to believe that a court comprising judges from such backgrounds would take a tender-hearted view when applying the “inhuman and degrading” test to the sensibilities of convicted criminals. If the alternative to paying out £70m to convicts is an appeal to Strasbourg, it surely must be worth a try.
The Review Group’s report can be downloaded here
Filed under: The Law | Tagged: european convention on human rights, european court of human rights, human rights, lord mccluskey, uk supreme court | 2 Comments »