|SCCRC MOJ SELL BY DATE
Joined: 09 Mar 2015
|Posted: Thu Oct 29, 2015 11:58 am Post subject: LETTER FROM IAN SUTHERLAND TO SCOTTISH MINISTER FOR JUSTICE
|Mr Rennie, unsure if you are Mr Sutherland's MSP for FK10 38D, to fully take such concerns forward.
Mr. Matheson, I have just received a letter from Mr Ian Sutherland, 32643 of HMP Glenochil, dated 24 October 2015, who has tried on THREE occasions to contact you by letter but on each occasion a Mr Patrick Down has responded.
This is despite the fact Mr Sutherland has corresponded with you, remains dissatisfied with Mr Down's response and there would appear to be a 'conflict of interest' whereby said person has continued to answer further letters despite being informed of such position.
The bottom-line is before Mr Sutherland can engage 91 of The Scotland Act 1998 Maladministration “(1) The Parliament shall make provision for the investigation of relevant complaints made to its members in respect of any action taken by or on behalf of — (a) a member of the Scottish Executive in the exercise of functions conferred on the Scottish Ministers, or (3) The Parliament may make provision for the investigation of complaints in respect of — (a) any action taken by or on behalf of an office-holder in the Scottish Administration”
The position made by you, and for and on your behalf to several members of the public would appear to be: that a member of the state prosecutor can be seconded to the government sponsored SCCRC and can independently and impartially investigate acts of the state prosecutor and then return to the Crown, and this “benefits” the justice system. Mr. Sutherland’s position is to “rely” on section 7(1) of the Human Rights Act 1998 “but only if he is (or would be) a victim of the unlawful act” and the following legally binding provisions, unless these are removed by an Act of Parliament: -
Schedule 6 of The Scotland Act 1998 whereby: (c) “a question whether the purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, within devolved competence, (d) a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights or with EU law, e)a question whether a failure to act by a member of the Scottish Executive is incompatible with any of the Convention rights or with EU law”
Section 57(2) of The Scotland Act 1998, “A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law”
Section 3 Interpretation of legislation of the Human Rights Act 1998 “(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”
Section 11 of the Human Rights Act 1998 Safeguard for existing human rights, “A person’s reliance on a Convention right does not restrict — (a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom”
Section 2 of the Human Rights Act 1998 Interpretation of Convention rights, “(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any — (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights”
Section 6(3) of the Human Rights Act 1998, “(3) In this section “public authority” includes — (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature”
Further your stated position is not a slight variance but the polar opposite of the Scottish Government Justice Strategy for Scotland “…Respecting the proper separation of organisational powers, is crucial to deliver an effective and efficient justice system” and amounts to maladministration of the highest order. This is also in contravention of Article 46 of the Convention whereby you are bound by decisions of Strasbourg in the likes of the requisite need for structural independence [Findlay –v- UK, ECtHR]
Your assertion I have a domestic remedy via the Courts is misplaced. Article 13 of the Convention has not even been incorporated into the constitution. Secondly, In the course of their Tsfayo judgment, the ECHR emphatically endorse the Administrative Court's decisions in R (Bewry) -v- Norwich City Council  EWHC Admin 657 and R (Bono and another) -v- Harlow District Council  1 WLR 275 (Admin). As a result of the ECHR’s decision, it is strongly arguable that if an individual's claim is dismissed solely on the grounds of credibility by a decision maker who is not independent and impartial, by definition, judicial review cannot cure the first instance deficiencies and a violation of Article 6 has taken place, so why are you misleading Mr Sutherland in this way?
As an institution, temporary sheriffs [Starrs v Ruxton 2000 JC 208, 250] did not constitute an independent and impartial tribunal for the purposes of Article 6(1) so why would this mechanistic structure and actings of the SCCRC polluted by acts of the Lord Advocate, an ex officio Scottish Minister by way of ‘temporary secondment’ of staff to the SCCRC be lawful? Article 6 is engaged as soon as the SCCRC review how the Court has performed under Article 6 - the right to a fair trial.
Within common law judgment Ruddy –v- Strathclyde Police, it states, “In Ruddy, counsel supplemented that reference by placing before this court the judgment of the Grand Chamber of 13 December 2012 El‑Masiri v The Former Yugoslav Republic of Macedonia. Further reference was made to Buntov v Russia (application no 27026/10), particularly at paragraphs 120 and following, with a further reference to paragraph 80 of the decision of the ECtHR of 16 September 2010 in Tigran Ayrapetyan v Russia (application no 75472/01). It was clear from those statements of principle that an effective investigation which complied with the obligation under the Convention required to have both structural and practical independence; and to afford effective participation. The need for structural dependence, in addition to any practical independence was, submitted counsel, particularly evident from the judgments of the ECtHR in the judgments of 2 October 2012 in Najafli v Azerbaijan (application no 2594/07); of 9 October 2012 in Mikiashvili v Georgia (application no 18996/06); of 14 October 2010 in Georgiy Bykov v Russia (application no 24271/03); and of 21 October 2008 in Çağlayan v Turkey (application no 30461/02). The earlier decision of 24 May 2007 in Zelilof v Greece (application no 17060/03), upon which the defenders had relied before the sheriff and the sheriff principal, was not in the mainstream of the jurisprudence of the ECtHR which now firmly recognised structural independence as an important requirement for full compliance with the ECtHR), so therefore why are you not just refusing to interpret and apply such legally binding decisions under common law and ECtHR level?
The SCCRC 'Mission' is to operate “completely independent” of the Court, Government and Crown, which is rhetoric, illusionary and is neither ‘practical’ nor ‘effective’, in breach of the Rule of Law applied in ALL other jurisdictions. So why is Scotland under your watch as Cabinet Secretary for Justice applying a SNP led Banana Republic test?
The Scottish Government appointed Mr. Gerard Sinclair into a role of “Sheriff” in the full knowledge there was a ‘conflict of interest’. Other members of the Court, Sheriff Gordon, has been a member of the Board, and it has been established that there has been further pollution of this right to have an ‘independent’ review. Your fallback position is that there is a Code of Conduct and Conflict of Interest policy, which must be adhered to. This is a logically absurd position, as the person considering whether there has been a ‘conflict of interest’ is the Chief Executive, who is a member of the Court as a “sheriff”, which amounts to just that. Further scrutiny of your assertion, this corporate governance secures rights is misplaced by the fact that Sheriff Sinclair appointed a member of the state prosecutor into the role of investigating acts and omissions of the state prosecutor, when any fool could reasonably see there was a ‘conflict of interest’ and Mr. Sinclair should be removed from post on both counts.
For brevity as the point has been made, and supported by citations, Belios v Switzerland, ECtHR; Procola v Luxembourg; McGonnell v UK; Piersack v Belgium re-approves the ‘separation of powers’ applies to the UK and the nature of its Executive. It has been adopted as a necessary part of the UK constitution and raises questions on constitutional rights, to include miscarriage of justice applications and associated legitimate expectations and in particular compliance with articles 6, 13 and 14. In the Belios decision an officer returning to departmental duties (in-point with the actings of Mr. Hanlon of the COPFS) could undermine the confidence in ‘independence’. There were legitimate doubts as to the independence and organizational impartiality, which did not satisfy the requirements of Article 6 (1), for example. (Also see Procola v Luxembourg)
The burden of proof rests with the state to organize its institutions to be Convention compliant and you are either disingenuously ‘pretending’ that no breach has occurred or subjecting the populace of Scotland to what is maladministration. I refer you to Mr. Hanlon’s curriculum vitae and you will establish he did return to departmental duties within the Crown. As identified within the UK Supreme Court judgment of Magill –v- Magill, UKHL 67 at para. 88, “There is a close relationship between the concept of independence and that of impartiality. In Findlay v United Kingdom (1997) 24 EHRR 221, 244, para 73 the European Court said: "The Court recalls that in order to establish whether a tribunal can be considered as 'independent', regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of 'impartiality', there are two aspects to this requirement. First, the tribunal must be subjectively free from personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The concepts of independence and objective impartiality are closely linked..."
Mr Sutherland therefore asks you to confirm if you stand by your response to several members of the populace of Scotland and Mr Sutherland, because if so, he will exercise his constitutional right to engage section 91 ‘Maladministration’ by reporting such an incompatible right with your obligations under the EU Contracting Party sign-up to the Convention to the Scottish Parliament. Can you please as a matter of urgency, please respond in person setting out your precise position without any form of interception or interference by Mr. Down.
Thanks in anticipation of your valued assistance in the public interest and interests of justice, where ‘justice must not only be done, but seen to be done’.