Lord Carloway Attacks UK Supreme Courthttp://www.heraldscotland.com/new...d-from-realities-of-sco.123194378
Top judge: UK Supreme Court 'relatively remote and far removed from realities of Scots Law'
David Leask Chief Reporter
Tuesday 14 April 2015
One of Scotland's most senior judges has attacked the UK Supreme Court as "relatively remote" and "far removed from the practical realities" of Scots Law.
Lord Carloway, the Lord Justice Clerk, said the London-based court was having a "depressing influence" on justice north of the border.
Echoing remarks previously made by both other senior judicial figures and the SNP, Lord Carloway warned that the British court now wielded more influence on law that formal reform bodies.
The judge, whose real name is Colin Sutherland, has himself been at the heart of recent controversies over legal reform, most notably championing the end of corroboration, the ancient Scots Law safeguard that two two pieces of evidence are required for a conviction.
Lord Carloway's work on corroboration - now subject to a further review of its implications - was itself sparked by the UK Supreme Court's landmark 2011 decision that the human rights of a young man, Peter Cadder, were breached when he denied access to a solicitor when interviewed by police.
Lord Carloway raised the UK Supreme Court's role in a newly published speech made to a conference of Commonwealth Law Reform Agencies in Edinburgh.
His point was that the London court appeared to have more scope to reform law that the very bodies set up to lead such work, such as the Scottish Law Commission.
Lord Carloway said: "The Supreme Court, which has hitherto sat only in London, may be deemed to exercise greater autonomy in the selection of topics for the reform of Scots civil law than the Scottish Law Commission itself."
The UK Supreme Court also has a huge influence over Scots criminal law because, although not the final court of appeal, it is able to judge important issues of human rights, such as the Cadder case.
Lord Carloway continued: "In some respects, the oversight of Scots law from a position that is relatively remote, far removed from the practical realities of operating the Scottish legal system and of Scots society as a whole, is apt to have a depressing influence on the efforts of those operating positively within the jurisdiction."
Other Scottish legal figures have attacked the Supreme Court before - including many staunch unionists who are eager to uphold the terms of the 1707 treaty.
Lord Drummond Young in 2013 said accused the Supreme Court of being willing "to overturn well-established Scottish practice without having much regard to the underlying substance of the law".
However, senior defence lawyers have warmly welcomed the Supreme Court's strong emphasis on human rights, not least on Cadder.
Lord Carloway stressed that London judges - two of whom are always Scottish - would not have the final say on the law. It was always up to Holyrood to legislate to undo judge-made law from London if it wished.
Scottish ministers have clashed with the Supreme Court before, with former Justice Secretary Kenny MacAskill even warning he would withdraw funding for the tribunal.
Former First Minister Alex Salmond condemned the court's 2011 decision to quash the conviction of wife killer Nat Fraser, who has since been retried and re-convicted.
Lord Carloway also warned of the downside of all judicial activism in law reform - whether in Scotland or south of the border. Citing recent efforts to use both statute and judicial decisions to re-define rape and breach off the peace, he said some changes had "undoubtedly resulted in flurries of new, and often ingenious, arguments in the many appeals which have been generated by the well intentioned changes."
On what appeared to be a personal note, the judge also cautioned that judges who pursue reform could face "real hostility" and be undermined by their peers.
Lord Carloway, Scotland's second most senior judge, also made an impassioned plea for the justice system to embrace the digital age - by publishing all legal developments and court decisions online.
He said: "There is little merit in a reputedly good legal system of uncertain or practically unknowable extent.
"Yet our public records of our laws, including those online, as they must be in the modern era, remain perpetually incomplete and thus 'unreliable'. This is an issue of substantial constitutional importance."
This is rich coming from the only High Court judge in Scotland that thinks our justice system is antiquated and behind the rest of the modern western world when it comes to corroboration.
His anger at being caught out with Cadder is shining through.
If he thinks the rest of the western worlds justice system is more worthy than Scotland's, then why is he so unwilling to adopt their laws.
Lord Carloway has already made his views about corroboration well known and now attacking the UKSC in this fashion shows he is not a fit and proper person to be dispensing justice.
Hoekstra shows he should not be judging cases that require corroboration when he is so clearly biased towards it.
Should he now be hearing applications to the UKSC ?
The only person I see as far removed from the realities of Scots Law is Lord Carloway.
He is after all the only Judge to suggest Corroboration causes Miscarriages.
A great read by Thomas Ross on Lord Carloway's attack on UKSC.
Posted by Unlock The Law on Thursday, 16 April 2015 in News
Scotland and the Commonwealth - Do we Need a UK Supreme Court?
Earlier this week, marking the 800th Anniversary of the Magna Carta, the Commonwealth Lawyers Association held the 19th Commonwealth Law Conference. We spoke to President of the Scottish Criminal Bar Association, Advocate, Tommy Ross who has given his comments on Lord Carloway's speech. Mr Ross makes the case for the continued relevance of the UK Supreme Court in Scotland and defends the legal profession on their opposition to the abolition of corroboration.
Is a UK Supreme Court Still Relevant in Scotland?
Whilst the purpose of the conference is to provoke discussion around how a community of commonwealth lawyers can continue to operate, regulate and legislate for some of the most robust and powerful economies in the world, particular issues that stood out for Scottish lawyers was the continued relevance of the Supreme Court for the whole of United Kingdom.
Addressing the conference, Lord Carloway expressed his concerns about whether the Supreme Court should exercise as much power over an arguably remote and distinct jurisdiction such as Scotland. He said:
"The Supreme Court, which has hitherto sat only in London, may be deemed to exercise greater autonomy in the selection of topics for the reform of Scots civil law than the Scottish Law Commission itself."
He continued: "In some respects, the oversight of Scots Law from a position that is relatively remote, far removed from the practical realities of operating the Scottish legal system and of Scots society as a whole, is apt to have a depressing influence on the efforts of those operating positively within the jurisdiction."
Whist many agree with Lord Carloway about how Scotland should be ruled and how Scot's law should be developed, many in the legal profession maintain that the UK Supreme Court Still has a very important role to play.
Tommy Ross makes the case for the continued relevance of the UK Supreme Court in Scotland. He said:
Commonwealth Law Conference
The comments that I find objectionable form a very small part of Lord Carloway's interesting speech on the subject of Law Reform, but some of the language used was singularly unfortunate.
Before coming to those parts, I cannot agree with his Lordship's comments about the UK Supreme Court. It plays an important function in protecting the ordinary citizen from the excesses of the state. It was the United Kingdom that signed up to the European Convention on Human Rights, so the United Kingdom needs a court to ensure that the citizen's rights are respected and protected, whether that citizen resides in London, Edinburgh or Cardiff. This speech was being delivered to lawyers from the Commonwealth. He described the UK Supreme Court as 'relatively remote' and 'far removed from the practical realities of operating the Scottish Legal System'. From that description, would any of those Commonwealth lawyers have guessed that the Justices of the UK Supreme Court include two of the brightest stars of the Scottish legal firmament, Lord Reed (who served as in the Inner and Outer House of the Court of Session for 13 years) and Lord Hodge, a former Scottish judge who served as a part-time Law Commissioner on the Scottish Law Commission for 6 years? Scottish lawyers bring cases to the UK Supreme Court and argue them there before Scottish judges. It would be very unfortunate if any of those Commonwealth lawyers left Glasgow with an impression of Scotland's citizens being subject to some form of non-participatory rule by an English court.
The Scottish Legal Profession
Mr Ross also criticised Lord Carloway's attack of the legal profession:
In a speech apparently designed to encourage lawyers to participate in the law reform process, it seems very unfortunate that Lord Carloway elected to use language that might discourage them from doing that very thing.
He talked of 'a tendency in some quarters, notably the media, some politicians and certain reactionary elements of the legal profession to personalize the attack on any reforms recommended by judicial figureheads that they may wish to undermine'. He claimed that 'reactionary or excessively defensive forces among the legal profession can, and often do, behave in a manner obstructive to progressive law reform, especially where there is a transparent perceived financial self-interest'
Lord Carloway proposed the abolition for the requirement for corroboration in Scottish Criminal cases. For those who are unfamiliar, corroboration is the requirement that two pieces of evidence 'corroborate' each other, meaning that they support each others version of the events. The abolition of corroboration was designed to allow a greater number of cases where the victim was the only witness to be effectively prosecuted, however this would leave the legal system wide open to vexatious and vindictive claims. Mr Ross Continues:
Let us look at those comments in the context of his most controversial proposal, the abolition of corroboration.
First, the allegation of self interest. The abolition of corroboration would financially benefit every single defence lawyer in Scotland. The cases which cannot be prosecuted at today for lack of corroboration would immediately come into the legal services market, resulting in more business for everybody. Yet every single defence lawyer I know is AGAINST a measure that would increase his / her cash flow. Self interest? Let us be honest, those who represent accused people for a living are not highly thought of in polite society. Many believe that we are 'in bed' with the accused, working on a bonus system like Premier League footballers. The suggestion that we would stand in the way of law reform to serve the interests of those same accused does not help.
Secondly, the reference to "reactionary lawyers". In Lord Carloway's consultation document, I agreed with around 80% of his proposals, I strongly disagreed publically with his proposal to abolish corroboration (a position generally in line with ALL of his fellow judges). I agree with 80% of his recent lecture on law reform, I disagree with his comments on the UK Supreme Court. Will Lord Carloway publicly clarify who he means when he talks of 'reactionary lawyers', or are all of those who have publically disagreed with him to be tarred with the same brush? Unclarified, will his use of this perjorative term encourage lawyers of future generations to become involved in the process of law reform, or discourage those reluctant to potentially hinder a legal career in development?
We agree with Mr Ross that is is disappointing that Lord Carloway when presenting Scotland to the rest of the Commonwealth would choose to bring forward such negativity about his fellow members of the legal profession without much clarification, however it seems to have engaged the purpose of the conference - to encourage discussion.
The Commonwealth conference has evidently sparked debate about the future of Scot's law and the place of Scotland in the Commonwealth. On the back of the Commonwealth games and the Scottish referendum it is important that the momentum and engagement of those interested in Scotland's legal system and legal politics is kept going.
Mr Ross's comments on Lord Carloway's speech do just that, hopefully encouraging comment and debate from other members of the legal profession and also form the general public.
Last modified on Thursday, 16 April 2015
Cadder, Fraser and indeed Holland & Sinclair show Scottish courts cannot be trusted to review themselves.
None of the above cases were given the light of day by our top Scottish Appeal court judges.
Indeed in the Patrick Docherty (which has echoes of all the cases mentioned above) recent referral by SCCRC shows they have learnt nothing when it comes to Cadder and Fraser. (Disclosure & Right to a Solicitor)
When it comes to setting aside appeals in Scotland it matters who you are complaining about and the courts are more concerned with costs and public perception than justice itself which is evident in the case of Gage where world renowned experts are not allowed to be heard in our courts because the courts were afraid of the costs if everyone wanted to call such experts.
Justice Scotland style is a joke and now Lord Carloway would block us having an appeal court as Thomas Ross says above run by two of Scotland's best ever judges.
Carloway inferring they are interfering in matters they know nothing of, is tantamount to judge murmering and bringing his profession into disrepute and he should be sacked.
Lawyer: reforming judge wrong to accuse "reactionary lawyers" of self-interest
Published on 17 April 2015
One of Scotland's most senior judges has come under fire from a leading lawyer for accusing his critics of having "transparent self-interest".
Lord Carloway, the Lord Justice Clerk, had said his proposed abolition of corroboration had sparked "real hostility" from his fellow legal professionals.
But in an unusually strongly worded speech the judge had suggested some of this hostility stemmed from lawyers with a financial motive for keeping the age-old Scots Law Safeguard.
Lord Carloway - whose real name is Colin Sutherland - said: "Reactionary or excessively defensive forces among the legal profession can, and often do, behave in a manner obstructive to progressive law reform, especially where there is transparent perceived financial self-interest."
This remark sparked an equally robust response from Thomas Ross, who chairs the Criminal Bar Association.
M Ross argued lawyers opposed to ending the safeguard - under which two pieces of evidence are required to secure a conviction - were acting against their own financial interests.
This, the theory goes, is because without corroboration more cases would go to court, creating more business for defence agents.
Mr Ross said: "Every single defence lawyer I know is against a measure that would increase his or her cash flow. Self interest?
"Let us be honest, those who represent accused people for a living are not highly thought of in polite society.
"Many believe that we are 'in bed' with the accused, working on a bonus system like Premier league footballers, cash for results.
"The suggestion that we would stand in the way of law reform to serve the interests of those same accused does not help."
Lord Carloway came up with proposals to end corroboration as he examined the fall-out of the 2011 Cadder case, when the UK Supreme Court said detained suspects had a right to legal advice if they wish it.
His proposals are now subject to another Government review in to their implication.
Lord Carloway - in a speech to a conference of Commonwealth Law Reform Agencies in Edinburgh - also criticised the Supreme Court, as "remote" and "far removed from realities of Scots Law". That line has already provoked a rebuke from Lord McCluskey, a former solicitor general and senior judge himself.
The 85-year-old the court's London location was "unimportant" and stressed Edinburgh was also remote for people in the Highlands.
Lord McCluskey added: "What is important is that the Scottish judges who sit in the Supreme Court are invariably two of the very best Scots lawyers of their entire generation."
Mr Ross, in turn, said he thought the London court ensured human rights of all UK citizens wherever they lived. The lawyer added that he agreed with most of Lord Carloway's reform proposals and most of his speech.
But he added: "Will Lord Carloway clarify who he means when he talks of 'reactionary lawyers', or are all of those who have publicly disagreed with him to be tarred with the same brush.
"If so, will his use of this pejorative term encourage or discourage lawyers of future generations to become involved in the process of law reform?"