Lord Carloway: Supreme Court appeals should not require High Court of Justiciary certification

Lord Carloway

The review group has published its report following a consultation on the practice and procedure relating to “compatibility issues” arising in criminal proceedings in Scotland.

The Scotland Act 2012 (sections 34 to 37) made a number of significant changes to criminal procedure in Scotland, including the introduction of compatibility issues and changes to the right of appeal to the Supreme Court.

A compatibility issue is a question, in criminal proceedings, of whether a public authority has acted unlawfully under the Human Rights Act, or in a way which is incompatible with EU law; or whether an Act of the Scottish Parliament is incompatible with the European Convention on Human Rights or EU law.

A review of these amendments was required by section 38 of the 2012 act, and the Secretary of State for Scotland invited the Lord Justice General, Lord Carloway, to chair this review.

To inform its work, the review group conducted a consultation to gather views on the practice and procedure relating to compatibility issues in criminal proceedings in Scotland.

It said that the amendments made by the 2012 Act have reduced the burden that was placed on the Scottish criminal courts by the previous law and practice and that an appeal to the UKSC on a compatibility issue should not require certification by the High Court that the issue raises a point of law of general public importance.

There is merit in a single procedure through which an individual may challenge legislation on Convention or EU grounds. Such challenges should continue to be defined as a ‘compatibility issue’ and be subject to compatibility issue procedure.

The Criminal Courts Rules Council should consider the extent to which amendment of Chapter 40 of the Criminal Procedure Rules is required in order to set out clearly the matters which must be specified in compatibility and devolution minutes, the review group suggested.

It added that applications for permission to appeal against a decision to refuse leave to appeal to either the Sheriff Appeal Court or the High Court should remain possible and that the existing appeal time limits are appropriate and should not be amended.

Finally, it said law officers should not be required to seek permission to appeal to the UKSC against the determination of a compatibility issue referred to the High Court under section 288ZB(2) of the Criminal Procedure (Scotland) Act 1995.