Tuesday, 26 October 2010

My Country's Laws Count for Nothing

I know next to nothing about the law on a professional basis.  My own dealings with legal people have ensured the legal profession made far more out of them than me.

The Cadder case did attract my attention though and I've followed it through the legal eagle blogger Peat Worrier. The verdict on this case was given today.

Kenny MacAskill announced in the Scottish Parliament today that he will propose changes to the Scottish legal system tomorrow and is expected to carry the Parliament with him.  The new rules, it is understood, will increase the length of time a suspect can be held without charge from the current six hours to twelve.  That time can be doubled if a senior officer deems it appropriate.

For those of you outside England who aren't too aware of the Scottish legal system, for decades we have had many safety nets available to protect anyone under suspicion of committing a crime.  In the case of Cadder, I understand an offer was made to him to contact a solicitor yet he refused.  Then he made particular confessions without a solicitor present.  His appeal was on the grounds that his human rights were abused but do read Peat Worrier and other sites by googling 'Cadder'.

There's a morsel of relief from the decision today. Past cases will be excluded from appeal and only those pending will have to adhere to the decision.

Will this make our legal system fairer?  I don't think so but I certainly think it will make lawyers richer including those who offer legal aid.  Earlier tonight I think it was the HR lawyer Paul McBride I heard on radio saying:  "It's a disgrace that a court in England can overturn law made by Scottish judges but that's the way it is in the Scottish devolution settlement." Forgive me if I have the wrong lawyer but I had just jumped in the car.  The words are certainly those of a prominent Scottish lawyer.

Time we took Independence rather than asking for it because now it's more than obvious our laws, (which protect us), count for nothing and a court in another country can over-rule our justices.  Of course if people still want to be part of the EU then it will ever be thus.


Mr. Mxyzptlk said...

The best advice you may ever get



If you think you might one day run the risk of being arrested, you must find out what to do in that situation. If prison, fines, "community service", etc don't appeal to you, by following this advice you can massively reduce the risk of all three. In the police station, the cops rely on people's naivety. Wise Up.
When you have been arrested:

You have to give the police your name, address and date of birth. They also have the right to take your fingerprints, photo and non-intimate body samples. The Criminal Justice and Public Order Act 1994 has now removed the traditional "right to silence". However, all this means is that the police/prosecution can point out your refusal to speak to them, when the case comes to court, and the court may take this as evidence of your guilt. The police cannot force you to speak or to give a statement, whatever they may say to you in the station. Refusing to speak cannot be used to convict you by itself. It's yet to be seen how the police will use this change in the law, but we reckon the best policy if you want to get off is remain silent. The best place to work out a good defense is afterwards, with your solicitor or witnesses, not under pressure in the hands of the cops. If your refusal to speak comes up in court, the best defense we think is to refuse to speak until your solicitor gets there, then get them to agree to your position. You can then say you acted on legal advice. Keeping silent is still the best thing to do in police custody.

Mr. Mxyzptlk said...

perhaps your title should be

My Freedom counts for nothing

RMcGeddon said...

SR . All Scottish Law is subordinate to the ECHR so even if the UK Supreme Court had voted in favour of Scottish Law it would have gone to appeal in Europe and been defeated there. We know this because in 2008 the ECHR stated that all suspects must have a lawyer immediately if they request one.
The SNP are keen on the EU so I'm surprised that they didn't change their laws in 2008.
This plan by the SNP to ban retrospective cases will be challenged and defeated by the ECHR aswell. The plan to hold some suspects for 24 hours 'because Scotland is really big and it will take a while to find a lawyer ' will also be illegal and will be challenged in the ECHR.
The Human Rights Act 1998 made the European Convention on Human Rights (ECHR) part of the UK national law.
Maybe the SNP should dust off their copy of this Act before they cost Scotland any more money needlessly.
Ideally we should leave the EU and have our own laws but this is impossible with all parties in the UK apart from UKIP wanting to remain in the EU.

Anonymous said...

Why does English law have supremacy over Scots Law. Ours is better.

RMcGeddon said...

tris said..

" Why does English law have supremacy over Scots Law. Ours is better."

There's no supremacy of English Law over Scots Law. We're all subordinate to the ECHR. The decision today was taken by the UK Supreme Court which is responsible for UK Law not English Law.
I don't think Scots law is always better. No right to see a lawyer ? A 'not proven' cop out of a law ?

subrosa said...

Thank you for the link Niko. I have read and absorbed it. Yes, that would be a better title.

subrosa said...

Aye RM, I knew this happened back in 2008 but thought that Elish Angiolini had made changes to accommodate the ruling then.

The slippery slope to an EU state continues.

subrosa said...

Tris, RM gives you the answer. The Supreme Court is a branch of the ECHR and an expensive one at that.

JuliaM said...

"Will this make our legal system fairer?  I don't think so but I certainly think it will make lawyers richer...

It's becoming increasingly apparent that that's the main aim of our legal system now...

subrosa said...

Aye Julia and let's not utter the words 'legal aid'.

Chalcedon said...

I thought this here supreme court was adjudication in relation to the European Convention on Human Rights. It's not a case of English law trumping Scots law but EU law above all.

subrosa said...

Yes that's how I understand it Chalcedon, but why it is necessary to have a Supreme Court in England? Why can't the ECHR handle the cases directly?

Richard Lucas said...

Erm, the ECHR is nothing to do with the EU. "EU Law" is nothing to do with this issue. The United Kingdom was part of the process that led to the ECHR, and our involvement predates our EU membership by about 25 years, and was part of the post WW2 movement that also led to the creation of the UN and other supra-national organisations.

Crinkly & Ragged Arsed Philosophers said...

The Supreme Court is Westminsters answer to the independence of Scottish Law and the problems that can cause under devolution.

It merely proves that only an independent Scotland can truly claim independence of its institutions.

RMcGeddon said...
This comment has been removed by the author.
RMcGeddon said...


The ECHR and the EU are closely linked though. Both taxpayer funded. Share the same flag. Operate out of Strasbourg and share thousands of meetings and understandings. So it's easy to confuse them.

subrosa said...

Isn't the ECHR based in Strasburg Richard and related indirectly to the EU through its financing? Possibly that's why the EU and ECHR become inter-related, although they're not.

subrosa said...

Thanks for that RA. Only if we are free of the EU's influence too though don't you think.

RMcGeddon said...

The ECHR is part of the Council of Europe which, like Richard said, preceded the EU.
The Council of Europe has 47 members including Russia and Turkey.


I was initially confused as to why a case in Turkey was affecting laws in Scotland but it's because 'The Scotland Act' setting up Devolution to Scotland enshrined the ECHR as final arbritator on Scottish Law. Above Scottish judges and UK Supreme Court judges. Tony Blair also made the ECHR as final arbritator when he signed the UK up to Article 11 in 1998. Probably to give his wife more human rights casework.

The ECHR doesn't actually say that a lwayer must be present straight away for suspects but rather that the suspect must have ' fair treatment' on arrest.
It has beeen a festering sore in the background with hundreds of cases of Scottish lawyers appealing sentences for miscarriage of justice due to the 2008 Turkish ruling.
Found this one in East Scotland..


subrosa said...

You've done a lot of work finding this out RM. Thanks. As for your link it'll take some time to digest so I'll do it later this evening.

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