The Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) recently published a report on police and prison facilities in Scotland after its visit in 2018.
This was an ad hoc visit and it aimed to evaluate the developments made since the CPT’s last visit to Scotland in 2012. The CPT’s delegation visited five police custody facilities and five prisons across Scotland. The report covers several areas, including the treatment of detained persons in police facilities, the conditions of male prisons, inmates in segregation and those on remand. It also focused on female prisons in general, and healthcare.
Police custody facilities
Overall, the CPT’s delegation was satisfied by the conditions and treatment in the police facilities that it visited. Every detained person that they interviewed reported that they had been correctly treated whilst in custody. However, an area of concern was the number of detainees who made allegations that they had suffered ill-treatment at the time of their arrest. Around one third of the detained persons alleged that they experienced excessively tight handcuffing and physical abuse by police officers. Several also claimed that they experienced this treatment despite not resisting arrest. The delegation reported that many of those making the allegations had visible signs of injury, such as bruises, scratches, and swelling.
In the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court judgment as anything other than a comprehensive defeat for the government.
Yet, as my colleague Dominic Ruck Keene’s post alluded to, the ultimate political ramifications of Miller would have made the Article 50 process appreciably more turgid had the Justices accepted the various arguments relating to devolution.
The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland)  UKSC 51 – read judgment here
The Supreme Court has today unanimously struck down the Scottish Parliaments’s Named Persons scheme as insufficiently precise for the purposes of Article 8, overturning two previous decisions at the Court of Session (see our previous coverage here).
Ross v Lord Advocate  CSIH 12, 19th February 2016 – read judgment
The Inner House of the Court of Session has rejected a reclaiming motion (appeal) from a decision of the Outer House in which it was held that the Lord Advocate’s refusal to publish specific guidance on the circumstances in which individuals would be prosecuted for assisted suicide did not violate Article 8 of the European Convention on Human Rights (ECHR).
Factual and Legal Background
The petitioner, Gordon Ross, suffers from Parkinson’s disease. He anticipates that there will come a time when he will not wish to continue living but, because of his physical state, he would require assistance to end his own life. Mr Ross was apprehensive that anyone who assisted him would be liable to criminal prosecution and therefore sought clarification from the Lord Advocate (the head of the prosecution service in Scotland) as to the factors that would be taken into account in deciding whether or not to prosecute. Continue reading →
Hands v Scottish Ministers  CSOH 9, 15th January 2016 – read judgment
The Outer House of the Court of Session has refused a petition for judicial review brought by a convicted murderer against decisions made by the Scottish Prison Service (SPS) about his prison conditions and supervision level. Continue reading →
Macklin v Her Majesty’s Advocate  UKSC 77, 16th December 2015 – read judgment
The Supreme Court has unanimously dismissed an appeal against a decision of Scotland’s High Court of Justiciary (available here) in which it refused to overturn a criminal conviction on the basis that the non-disclosure of evidence breached the appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).
On 26th September 2003, Paul Macklin was convicted of possessing a handgun in contravention of section 17 of the Firearms Act 1968 and of assaulting two police officers by repeatedly presenting the handgun at them. At trial, the key issue was the identification of the gunman, with both police officers identifying the appellant in the dock. Two witnesses testified that the man in the dock was not the gunman, however, their evidence was undermined for various reasons including discrepancies in police statements and unreliable alibis.
Several years later, following a change in practice regarding the disclosure of evidence, the Crown disclosed the fact that a fingerprint from another individual with a serious criminal record had been found in a car abandoned at the scene of the crime. The Crown also disclosed statements from six further individuals who had seen the incident.
The High Court’s Decision
Macklin appealed against his conviction on the grounds that the Crown had failed to disclose material evidence, and that by leading and relying on dock identifications without having disclosed that evidence and without an identification parade, the Lord Advocate had infringed his rights under Article 6 ECHR.
The Appeal Court of the High Court of Justiciary dismissed his appeal. The court held that the fingerprint evidence and three of the undisclosed statements neither materially weakened the Crown case nor materially strengthened the defence. Whilst the other three statements should have been disclosed, there was not a real possibility of a different verdict had there been disclosure. Finally, leading dock identifications from the two police officers without an identification parade did not infringe Article 6.
The Supreme Court
The Supreme Court first dealt with the issue of its jurisdiction. Under section 124(2) of the Criminal Procedure Scotland Act 1995, every interlocutor (decision) and sentence of the High Court of Justiciary is final, conclusive, and not subject to review by any court. However, under section 288ZB of the 1995 Act, as inserted by section 35 of the Scotland Act 2012, the Supreme Court has jurisdiction to hear an appeal concerning the question of whether a public authority has acted compatibly with the ECHR. As the question raised by the appellant was whether the conduct of the prosecution was compatible with Article 6 the Supreme Court had jurisdiction to hear the matter.
As the European Court of Human Rights explained in Edwards v United Kingdom the question of whether a failure of disclosure breached Article 6 had to be considered in light of the proceedings as a whole. Translating the Strasbourg approach into domestic law in McInnes v HM Advocate (available here), Lord Hope set out two stages to the analysis. First, should the material which had been withheld from the defence have been disclosed? The test here was whether the undisclosed evidence might have materially weakened the Crown case or materially strengthened the defence. Second, taking into account all of the circumstances, was there a real possibility that the jury would have arrived at a different verdict in the event of disclosure?
The appellant challenged the High Court’s conclusion that some of the undisclosed material did not have to be disclosed under Article 6 on the basis that under current Crown practice the evidence would be disclosed. The Supreme Court dismissed this argument. For Lord Reed the argument was a “non sequitur” and Lord Gill described it as “specious”. The fact that the evidence would now be disclosed did not mean that non-disclosure breached Article 6.
Regarding the evidence which should have been disclosed, the appellant argued that the High Court had failed to apply the second part of the test from McInnes. The Supreme Court also rejected this argument. As it was confined to compatibility issues, the Supreme Court could only ask whether the High Court had applied the correct test, not whether it had applied the test correctly. The Crown’s submission to the High Court was expressly founded on the McInnes test and, by reciting the words of the test, the court made clear that it had applied it. The appellant tried to argue that the High Court’s conclusions on the second part of the McInnes test were so manifestly wrong that it had not in reality applied that test. However, this was essentially an argument that the High Court had applied the test incorrectly and the Supreme Court was not prepared to entertain it. The High Court had applied the correct tests for the purposes of Article 6 and found that the appellant’s trial was fair.
In the end, the role of the Supreme Court was limited. As Lord Reed made clear, the court was not sitting as a criminal appeal court exercising a general power of review. The Article 6 issues had been authoritatively determined by the High Court of Justiciary when it dismissed Macklin’s appeal against his conviction. All the Supreme Court could do was ensure that in exercising its appellate function, the High Court had applied the appropriate Article 6 tests as set out in McInnes.
O’Neill and Lauchlan v Scottish Ministers  CSOH 93, 28th October 2015 – read judgment
The Outer House of the Court of Session has dismissed challenges brought by two convicted paedophiles to the Scottish Prison Service’s refusal to allow them to visit each other in prison. The decisions were challenged under articles 8 and 14 ECHR, as it was claimed that the prisoners were in a homosexual relationship. Continue reading →
Yesterday morning, in a speech to civic organisations in Glasgow, First Minister Nicola Sturgeon warned that “no responsible government” would consider repeal of the Human Rights Act 1998 due to the numerous negative consequences, both in the domestic and international sphere, that would result from such a move – (see a transcript of the speech here).
by Fraser Simpson
Proposals for Repeal of the Human Rights Act
It has been a longstanding Tory policy to repeal the Human Rights Act and replace it with a British Bill of Rights. Such a policy is motivated by discontent over a handful of decisions from the European Court of Human Rights (“ECtHR”) that have allegedly “undermine[d] the role of UK courts in deciding on human rights issues”. In October 2014, the then Justice Secretary Chris Grayling announced Tory proposals to treat Strasbourg judgments as “advisory” – irrespective of the potential incoherence between treating judgments in such a way and the UK’s obligations under Article 46, ECHR (see John Wadham’s post here). However, the 2015 Tory manifesto included less specific promises to “scrap the Human Rights Act” in order to “break the formal link between British courts and the European Court of Human Rights”. Little substantive information has been provided on the development of these plans, apart from an intention, included in the Queen’s speech, to conduct consultations and publish proposals this autumn. Continue reading →
The Outer of House of the Court of Session has refused an individual’s request for clarification of the prosecution policy relating to assisted suicide in Scotland.
by Fraser Simpson
The Petitioner, Mr Ross, suffers from Parkinson’s disease and currently resides in a care home due to his dependence on others. Although not wishing to currently end his life, Mr Ross anticipates that in the future he will wish to do so and will require assistance.
In July 2014, the Petitioner requested from the Lord Advocate – the head of the prosecution service in Scotland – guidance on the prosecution of individuals who assist others to commit suicide. The Lord Advocate replied that such cases would be referred to the Procurator Fiscal – the Scottish public prosecutor – and dealt with under the law of homicide. The Lord Advocate further stated that decisions regarding whether prosecution would be in the public interest would be taken in line with the published Crown Office and Procurator Fiscal Service Prosecution Code (“COPFS Code”). However, he admitted that it would often be in the public interest to prosecute such serious crimes as homicide. Continue reading →
The Christian Institute (and others) v Scottish Ministers  CSIH 64, 3rd September 2015 – read judgment
The Court of Session’s appeal chamber – the Inner House – has unanimously rejected challenges to the Scottish government’s controversial named person scheme. Three individual petitioners, as well as The Christian Institute, Family Education Trust, The Tymes Trust, and Christian Action Research and Education (CARE), contested the appointment of named persons and the scheme’s provisions for data sharing.
Beggs v Scottish Ministers  CSOH 98, 21st July 2015 – read judgment
The Court of Session’s first instance chamber – the Outer House – has held that the way in which the Scottish Prison Service (SPS) handled a prisoner’s correspondence breached Article 8 of the European Convention on Human Rights.
The petitioner, William Beggs, was a prisoner at HMP Glenochil until March 2013 and thereafter at HMP Edinburgh. In 2001 he was sentenced to life imprisonment for the 1999 murder of 18 year-old Barry Wallace, whose dismembered body parts Beggs disposed of in Loch Lomond. Continue reading →
The Queen’s speech suggests a slowing of the Government’s plans to replace the Human Rights Act with a British Bill of Rights. But recent comments from the Scottish Human Rights Commissioner suggest the Conservatives may be considering removal of HRA protections in relation to English and reserved UK-wide matters only, leaving the Human Rights Act in place in the other devolved areas of the UK.
by David Scott
Much ink has been spilled over the Government’s proposals. This article will take a narrow look at Scotland’s relationship with the Human Rights Act, and how devolution may be a future thorn in the Government’s side.
But wait! I thought the Human Rights Act was enshrined in the Scotland Act. Doesn’t that protect the Human Rights Act in Scotland?
The Outer House of the Court of Session has refused a prisoner’s claim for damages resulting from an alleged failure to afford him a reasonable opportunity to rehabilitate himself.
by Fraser Simpson
For a refresher on the Scottish Court system, see David Scott’s post here.
This case follows a Supreme Court judgment last year in which it was affirmed that under Article 5 ECHR there exists an implied duty to provide prisoners with a reasonable opportunity to rehabilitate themselves and to show that they are no longer a danger to the public (R (on the application Haney and Others) v. The Secretary of State for Justice,  UKSC 66). According to the Supreme Court, a failure to satisfy this duty does not affect the lawfulness of the detention but it does entitle the prisoner to damages.
Main v Scottish Ministers  CSIH 41, 22nd May 2015 – read judgment
The Court of Session’s appeal chamber – the Inner House – has had to decide whether the scheme of indefinite notification requirements for sexual offenders in Scotland is compatible with Article 8 of the European Convention on Human Rights.
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