THE USE OF HUMAN RIGHTS LEGISLATION IN THE SCOTTISH COURTS
Footnotes
1. For a detailed account of the human rights legislation and the Convention rights in Scots law, see Lord Reed and Murdoch J (2001) A Guide to Human Rights Law in Scotland, Edinburgh: Butterworths LexisNexis.
2. By late 2000, just before entry into force of the Human Rights Act, the European Court of Human Rights had found against the UK in over 60 cases. See Mullen, T (2001) The Human Rights Act 1998 and Scots Law, Glasgow: Legal Services Agency.
3. There have been several important decisions by the House of Lords on the meaning and application of section 3 of the Human Rights Act including R v A (No 2) ]2002] 1 AC 45; Re (S) (Minors) (Care Order: Implementation of Care Plan) [2002] 2 ACC 291; and Anderson v Secretary of State for the Home Department [2003] 1 AC 837.
4. The decisions include R (On the application of Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936; Poplar Housing and Regeneration Community Association v Donoghue [2002] QB 48; and Aston Cantlow Parochial Church Council v Wallbank [2003] 3 WLR 283. The academic literature is already substantial. See, for example, Oliver, D 'The Frontiers of the State: Public Authorities and Public Functions under the Human Rights Act' [2000] Public Law 476 and Carss-Frisk, M 'Public Authorities: The Developing Function' [2002] EHRLR 92.
5. See Ewing, K D (1999) 'The Human Rights Act and Parliamentary Democracy' 62 Modern Law Review 79.
6. See Lord Irvine of Lairg, Tom Sargant Memorial Lecture 1997, and Klug, F (2000) Values for a Godless Age, Harmondsworth: Penguin.
7. 2000 JC 208.
8. 2001 SC (PC) 43. See, also "R" v Her Majesty's Advocate & Another [2002] UKPC D3.
9. See Scottish Parliament Research Paper 01/03, ECHR Incorporation into Domestic Law: The Human Rights Act 1998 and the Scotland Act 1998 ( http://www.scottish.parliament.uk/business/research/pdf_res_papers/rp01-03.pdf ) and Scottish Parliament, PQ S1W-04755, Lord Advocate.
10. Available at http://www.scotland.gov.uk/stats/bulletins/00312-04.asp .
11. Includes the following types of cases: appeal, sheriff court petition, sheriff court referral, and closed.
12. Scottish Executive Statistical Bulletin: CrJ/2004/1, Criminal Proceedings in Scottish Courts, 2002.
13. The twelve articles and protocols included in this category were Articles 2, 3, 10, 11, 13, 14, Article 1 of Protocol 1 and Article 4(1) of Protocol 7. Together they accounted for less than 3% of all the cases; several represented less than 0.1%.
14. Based on figures for numbers of prosecutions in each local authority area supplied by the Scottish Executive. The areas chosen are those in which the local authority area corresponds exactly or very closely with the jurisdiction of the relevant PF office.
15. This group consists of eleven procedures each representing less than 4% of all cases (6 with less than 1%): in the sheriff court, summary application, and children's hearing appeal; in the Court of Session, Outer House petition (other than judicial review), appeal from sheriff principal, (Outer House), summons (Inner House) appeal from employment appeal tribunal, and other statutory appeal; in the High Court of Justiciary, petition to the nobile officium and devolution issue referral, devolution issue in the Judicial Committee of the Privy council; application to the Lands Tribunal.
16. These three Court of Session cases comprise one each of Children's Hearing Appeal, Outer House Petition, and Planning Appeal.
17. The twelve Articles and Protocols included in this category were Articles 1, 2, 4, 5, 7, 9, 10, 11, 14, 17 and 53, and Articles 1 and 2 of Protocol 1. There were also four cases in which an unspecified human rights issue was raised. These categories represented between 0.6% and 4.2% of cases in the database.
18. The other Articles were Articles 2, 5, and 14 and Article 2 of Protocol 1.
19. Entitlement to social security benefits (except benefits of a purely discretionary nature) is generally thought to fall within the scope of Article 6. See Harris, D J, O'Boyle M and Warbrick, C (1995) Law of the European Convention on Human Rights, London: Butterworths, 180-182; Lord Reed and Murdoch J (2001), 5.17. The primary forum for resolving benefit disputes in the UK is usually a tribunal, but there are circumstances in which cases may be heard in the ordinary courts whether by way of appeal or judicial review.
20. Convention determining the State responsible for examining Applications for Asylum lodged in one of the Member States of the European Communities. The 1990 Convention has since been replaced by EC Regulation 343/2003.
21. 2002 S.C.L.R. 248.
22. See, for example, Jordan v United Kingdom (2003) 37 EHRR 2.
23. 2004 SLT 555.
24. The few findings of violation of this provision in respect of detention conditions have all involved factual circumstances of greater severity: see, for example, Peers v Greece (2001) 31 EHRR 51; Kalashnikov v Russia (2003) 36 EHRR 34; and Lorse v Netherlands (2003) 37 EHRR 3.
25. (2003) 36 EHRR 31.
26. See A v United Kingdom (1999) 27 EHRR 611.
27. 20th March 2003.
28. See Lord Reed and Murdoch, J (2001), 4.47.
292002 SC (PC) 63.
30. Vervuren v H M Advocate 2002 SLT 555.
31. S v Miller (No 2) 2001 SLT 1304.
32. See DG v Ireland, judgment of 16 May 2002, Reports of Judgments and Decisions 2002-III.
33. This was a petition for judicial review and was one of the cases in the sample referred to in chapter two. There was no opinion.
34. Drozd and Janousek v France and Spain (1992) 14 EHRR 745, para 118.
35. 2000 SCCR 384.
36. Flynn v HM Advocate 2004 SLT 863.
37. The relevant provisions have been amended by section 39 of the Criminal Justice (Scotland Act) 2003.
38. See section 17 of the Criminal Procedure (Amendment) (Scotland) Act 2004.
39. Report of the European Committee for the Prevention of Torture to the United Kingdom, CPT/Inf (96) 11, at para 278.
40. For example, Asifa Saleem v Secretary of State for the Home Department [2000] 4 All ER 814.
41. Paterson v Webster 2002 SCCR 734.
42. Tant v H M Advocate, 1 st July 2003.
43. 2001 SC (PC) 43.
44. Naismith, S 'Human rights, Self-incrimination: the case law of the European Court of Human Rights' Human Rights & UK Practice 2001, 2 (4), 3-14.
45. See, for example, Pillay, R 'Self Incrimination and Article 6' [2001] EHRLR 78.
46. 2000 JC 208.
47. David Millar v Dickson, Karen Payne and others v Heywood 2002 SC (PC) 30. This issue is now before the court again in the cases of Robertson, O'Dalaigh and Ruddy, Glasgow Herald, 8 th September 2004.
48. Davidson v Scottish Ministers [2004] UKHL 34.
49. 2000 SLT 602.
50. Clancy v Caird 2000 SC 441. A challenge has since been made to the position of temporary High Court judges, Glasgow Herald, 8 th September 2004.
51. Clark v Kelly 2003 SLT308.
52. For example, Beggs v H M Advocate 2001 SCCR 836.
53. BBC, Petitioners 2002 JC 27.
54. PF, Linlithgow v Watson & Burrows 2002 SC (PC) 89.
55. "R" v Her Majesty's Advocate & Another [2002] UKPC D3.
56. HM Advocate v McIntosh 2001 SCCR 191.
57. Phillips v United Kingdom, No. 41087/98, ECHR 2001-VII.
58. Buchanan v Mc Lean 2000 SC (JC) 603.
59. Webster v Dominick 2003 SCCR 525.
60. Flynn v HM Advocate 2004 SLT 863.
61. (1982) 4 EHRR 293.
62. (1995) 20 EHRR 205.
63. (1992) 15 EHRR 137.
64. West Lothian Council v M 2002 SC 411. As the sheriff's decision to free for adoption was taken before its entry into force it was not necessary for the sheriff to exercise his discretion in accordance with the Human Rights Act.
65. See, e.g. K and F, Applicants 2002 SCLR 769.
66. Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471.
67. Sen v Netherlands (2003) 36 EHRR 7.
68. R. (on the application of Mahmood (Amjad)) v Secretary of State for the Home Department [2001] 1 WLR 840.
69. R (on the application of Westminster City Council) v National Asylum Support Service [2002] 4 All ER 654
70. Secretary of State for Defence v Macdonald 2002 SC 1.
71. Lustig-Prean v United Kingdom (2001) 31 EHRR 23.
72. 2003 SLT 366.
73. Lord Reed and Murdoch, J (2001), 6.24.
74. Buchan, Petitioner, 3rd July 2001.
75. BBC, Petitioners 2000 JC 521. This case related to the Lockerbie trial.
76. Adams, Petitioner 2002 SCLR 881.
77. Karl Construction Ltd v Palisade Properties 2002 SC 270.
78. HM Advocate v Burns 2000 SCCR 884; and see HM Advocate v McSalley 2000 JC 485.
79. See Booker Aquaculture Ltd (t/a Marine Harvest McConnell) v Secretary of State for Scotland 2000 SC 9. In this case, which arose before the entry into force of the Human Rights Act and the Scotland Act, the petitioner relied on the fundamental right to Property in Community law which reflects the terms of the First Protocol.
80. Secretary of State for Defence v Macdonald 2002 SC 1
81. Fife Council v the Scottish Ministers, unreported.
82. (2001) 33 EHRR 18.
83. In one instance, however, the court raised the question whether in future it would be appropriate to consider whether it is relevant to take into account any failure by the accused to take such steps as may be open to him to try to expedite the hearing of the appeal, even although it is only delay attributable to the prosecutor or judiciary which can strictly be taken into account.
84. (2003) 36 EHRR 31.
85. 2002 SC 79.
86. R. (On the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions 2001 [2001] 2 WLR 1389.
87. Joint Committee on Human Rights (2003-2004) 14 th Report: www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/130/a2
88. As noted above, in Flynn v HM Advocate, the Privy Council was able to give the legislation a compatible interpretation.
89. Harris, D J, O'Boyle, M and Warbrick, C (1995) Law of the European Convention on Human Rights, London: Butterworths, pp 12-14; Lord Reed and Murdoch, J, 3.85-90.
90. See, for example, R v DPP, ex parte Kebilene [2000] 2 AC 326; A v Scottish Ministers 2001 SC 1; Stott v Brown 2001 SCCR 62.
91. 2001 SCCR 62.
92. In the District Court the clerk must be present.
93. In Raine and Walker's Research (2002) for the Lord Chancellor's Department Human Rights cases were identified for the research by the court clerks. This was done by adding tick boxes to the standard forms already being completed court for each case.
94. Scottish Executive (2002) Improving Practice: The 2002 Review of the Practices and Procedure of the High Court of Justiciary, recommendation 24.
95. 1997 SLT 724.
96. 2000 SC (JC) 603.
97. 2002 SC 79.
98. R. (On the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions 2001 [2001] 2 WLR 1389.
99. Special considerations would apply where the human rights argument was based on the human rights principles protected by Community law, given the principle of Supremacy of Community law.
100. See The Scottish Human Rights Commission (2003) Edinburgh: The Scottish Executive, available at: http://www.scotland.gov.uk/consultations/justice/shrs-00.asp .
101. In addition to the sources already mentioned, before the research began, the Scottish Executive had initiated an exercise which attempted to obtain information about relevant cases from the supreme courts and five sheriff courts, by asking court staff to flag relevant cases in monthly returns to the Justice Department. However, this proved to be impracticable, for the same reasons detailed in the discussion of court-based monitoring in this report. What little information was submitted was not sufficiently reliable or comprehensive to be used for more than the identification of a small number of cases to be looked at.
102. In addition to examining court records and the Crown office database we piloted a postal questionnaire to solicitors. This had a low response rate and the exercise clarified that questionnaires to solicitors would not have been a reliable method of identifying cases.
103 Neither did the pilot questionnaire to solicitors.