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Criminal proceedure

Brian Taylor | 16:46 UK time, Tuesday, 26 October 2010

Multi dimensional stuff, this Cadder ruling.

As the justice secretary notes: "It overturns decades of criminal procedure in Scotland."

Good thing too, some will say, arguing that it is wrong for police interviews to be conducted in the absence of a solicitor.

Kenny MacAskill, unsurprisingly, is less than content with the ruling - especially its implicit claim that there is something inherently unfair at the core of Scottish justice.

The minister insists that, to the contrary, the Scots legal system is "proud and distinctive" and, further, is "predicated on fairness with many rigorous protections for accused persons."

In essence, Mr MacAskill, himself a lawyer, is seeking three remedies.

One, he will seek Holyrood's support in rushing through emergency legislation to prevent the scope of the ruling extending further through other cases emerging.

Examining options

Scottish government insiders are at pains to argue that "emergency" does not mean ill-considered.

They insist that they have been examining options for months.

That will not, however, preclude complaints from some, notably the Liberal Democrats, to the effect that the consideration by parliament will be hasty.

Which brings us to the third strand of the MacAskill package.

He is writing to Ken Clarke, the justice secretary at Westminster, drawing attention to an "anomaly" in devolution.

This is that the European Convention on Human Rights is an intrinsic part of Scots Law, being incorporated via the Scotland Act which established a Scottish Parliament in the first place.

This apparently drives the need for emergency legislation - rather than consideration over, say, three months.

The Scottish system is in breach of its own law rather than an extrinsic code.

Comments

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  • 1. At 5:17pm on 26 Oct 2010, Dunroamin wrote:

    The legal process is always going to be a dynamic beast.

    Fighting any changes to our system, even such amendments that would provide a right for automatic legal representation (astonished to hear we haven't got that already! How far behind the rest of Europe are we on this?!) is pure nationalist dogma at the expense of justice and human rights.

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  • 2. At 5:39pm on 26 Oct 2010, reincarnation wrote:

    Clearly RE didn't bother to read the comments from his/her own party spokesman before s/he rushed into vituperation!

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  • 3. At 5:40pm on 26 Oct 2010, paul Hunter wrote:

    I thought Scottish law was unique to Scotland and England had no power to interfere...? What's going on can someone explain to me please?

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  • 4. At 5:51pm on 26 Oct 2010, reincarnation wrote:

    3. paul Hunter
    "England had no power to interfere...?"

    England can't, but the Brits can (and do) legislate on many aspects of Law in Scotland. Only in Scots Civil Law is a Scottish Court, the Supreme Court.

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  • 5. At 5:55pm on 26 Oct 2010, Wicked_Witch_of_the_West_Coast wrote:

    Paul - if you look at the Supreme Court website it explains: "For historical reasons, as a state made up of several separate jurisdictions, the United Kingdom does not have a single unified legal system.

    Instead, there is one system for England and Wales, another for Scotland, and a third for Northern Ireland.

    In most cases, The Supreme Court sits above all of these as the final court of appeal."

    Replacing our right of appeal to the House of Lords.

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  • 6. At 5:55pm on 26 Oct 2010, Dunroamin wrote:

    3. The UK Supreme Court (not English!) has UK-wide power to enforce European law. As such, it is the highest UK court for all human rights cases.

    The Scottish procedure of allowing police 6 hours of access to a suspect without a lawyer being present, was found to be against the European Convention on Human Rights.

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  • 7. At 5:56pm on 26 Oct 2010, Anagach wrote:


    Its a European issue. And the EU is not accepting that the
    differences in evidential requirements or trial process is
    allowed to interefere with what is seen as a general principle.
    Scotland is not alone in having allowed a limited period for
    initial interview.

    Its odd how the case was not accepted at a lower court if it is as
    clearcut as the current articles make out.

    My understanding is that a confession is not as critical in
    Scotland because it has to have corroboration. But it seems
    appalling to me that people could be convicted solely upon a
    confession in any country.

    Any solicitors or advocates on the board ?.


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  • 8. At 6:01pm on 26 Oct 2010, Dunroamin wrote:

    4. reincarnation: "Only in Scots Civil Law is a Scottish Court, the Supreme Court."

    No, the Court of Session, our highest civil law court, allows appeals to the UK Supreme Court.

    The High Court of Justiciary, our highest criminal law court, does not allow any further appeals to the UK Supreme Court, except on matters concerning civil rights under the Human Rights Act 1998.

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  • 9. At 6:07pm on 26 Oct 2010, JTomlin wrote:

    2. reincarnation
    "Clearly RE didn't bother to read"...

    It's known as "knee-jerk opposition". If a member of the SNP does it, then it MUST be wrong and bad, according to R-E which is why his posts are really best ignored.

    Overturning "decades of criminal procedure in Scotland" is something that the Parliament of Scotland should take a look at. To the best of my knowledge, the SNP weren't even in control of Scottish law for "decades". I don't know enough about Scottish criminal law to know whether this is a justified change or not. Defendants' rights should be protected, but how to best do so is certainly a matter for serious debate and not knee-jerk rants. I am sure we are in agreement there.

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  • 10. At 6:08pm on 26 Oct 2010, reincarnation wrote:

    6. Reluctant-Expat

    But your spokesperson "Conservative justice spokesman John Lamont described the ruling as "devastating" and said that the "whole operation of the European Court of Human Rights must be reviewed".

    "All right minded people will be angry and disturbed that a freely given confession, by someone of sound mind, taped and witnessed, can no longer be used as evidence in a court of law," he said.

    "This mess needs to be sorted as soon as possible and Scottish Conservatives stand ready to work with the rest of parliament to limit the damage."

    So whose dogma are you criticising?

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  • 11. At 6:15pm on 26 Oct 2010, reincarnation wrote:

    8. Reluctant-Expat

    Agreed. I got them the wrong way round.

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  • 12. At 6:24pm on 26 Oct 2010, JTomlin wrote:

    "Essentially, ministers need to make Scots law comply with European legislation, and emergency legislation brought forward by Scottish Justice Secretary Kenny MacAskill will comprise a number of strands."

    The emergency legislation and Mr. McAskill's concerns are clearly NOT a matter of keeping Scottish law from changing at any cost but to make Scottish law comply with the European legislation in a reasonable and orderly fashion.

    There are numerous issues such as the legal aid budget and in changing the maximum time of detention to allow for the arrival of attorneys.

    Knee-jerk opposition to any and all acts by the SNP by a certain poster is ridiculous. This is obviously something that has to be encoded into Scottish law. The coverage by the press makes it clear that this is not unexpected and planning for it has been going on for some time.

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  • 13. At 6:27pm on 26 Oct 2010, Dunroamin wrote:

    10. You are defending the existing procedure? You think we should allow police to interview suspects without legal advice?

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  • 14. At 6:35pm on 26 Oct 2010, JTomlin wrote:

    13. Reluctant-Expat
    "You are defending the existing procedure?"

    Actually, "Conservative justice spokesman John Lamont" was defending the existing procedure.

    The news coverage, if you bothered to read it, makes it clear that the Tories are defending the existing procedure, not the SNP.

    Oops for R-E. =-)



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  • 15. At 6:38pm on 26 Oct 2010, Dunroamin wrote:

    This comment was removed because the moderators found it broke the House Rules.

  • 16. At 6:45pm on 26 Oct 2010, reincarnation wrote:

    13. Reluctant-Expat

    I even quoted the Tory for you!

    It's your party that wants to stop the Court of Human Rights having any determination of procedures in Scots Law.

    Of course, it may be that you have recently become an LD due to the Coalition in Westminster. Do tell!

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  • 17. At 6:45pm on 26 Oct 2010, Dunroamin wrote:

    13. I assume reincarnation is now scrambling around in search of the SNP's stance on this before he declares his 'own' opinion....

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  • 18. At 6:47pm on 26 Oct 2010, Dunroamin wrote:

    Ah, he's apparently found it......[awaits moderation].....

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  • 19. At 6:48pm on 26 Oct 2010, Anagach wrote:

    13. At 6:27pm on 26 Oct 2010, Reluctant-Expat wrote:

    10. You are defending the existing procedure? You think we should allow police to interview suspects without legal advice?


    Yes. For a short and limited time and with caution, which it
    is.

    All people will confess given time and pressure, and some people
    happily confess to anything dispite it being impossible.

    A confession should never be allowed to convict someone without
    corroboration and without a very serious look at how any kind of
    confession was obtained.

    The main concern advanced by the EU for this change to a number
    of EU countries laws was the emphasis on confessions in
    inquisitorial criminal justice systems. The prevention of
    torture and undue pressure on suspects to such provide confessions
    is supposedly enhanced if they are prevented from immediate legal
    representation. It also prevents the defendant from presenting
    their case or allowing evidence to be collected on their behalf.

    Now is 6 hours a lot of time in that context.





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  • 20. At 7:00pm on 26 Oct 2010, Anagach wrote:

    15. At 6:38pm on 26 Oct 2010, Reluctant-Expat wrote:
    Meh.


    Care to remind us again of your personal details. The bizarre
    and obsessive hate-ins, your employement status, your address -
    assuming its not under some bridge in Greenwich when you set
    foot in the 'Home Country'.

    And your qualifications for posting here that you seem to think
    so superior to other peoples ?.

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  • 21. At 7:10pm on 26 Oct 2010, Dunroamin wrote:

    16. I asked if you are in favour of the current system.

    Anagach has said he is (although he clearly has a fundamental misconception of criminal law among others).

    How about you?

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  • 22. At 7:10pm on 26 Oct 2010, kaybraes wrote:

    Looks like the lawyers , a goodly number of whom are warming the benches in Holyrood will see this as another licence to print money . Considering that the majority of people the police take into custody are going to get legal aid, this will just be an additional source of income to supplement the "plead not guilty this time so I can double the fee when you plead guilty next time " method of making money from the legal aid system. It makes you wonder whether the criminal or the lawyer should be in the dock.

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  • 23. At 7:21pm on 26 Oct 2010, reincarnation wrote:

    18. Reluctant-Expat

    OK Let's go for some clarity here on our respective positions.

    I'd have preferred it if either the former Lab/LD, or the current SNP Governments had altered the law, or that the High Court had not ruled that questioning without legal representation was lawful (a remarkably strange decision, in my view). Glad, however, that the Government has accepted the necessity for change and has prepared for that.

    As usual, you have not responded to points previously made to you (and I don't really expect a response now). However, you are a Tory (or so you have claimed). Either you agree with Lamont, that the European Court of Human Rights should have no jurisdiction in Scots Law - and all your posturing here is your normal nonsense - or you agree with me that the Tory Party's stance on this is totally and utterly wrong.

    When you don't respond appropriately, readers will draw their own conclusion about you and your posts.

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  • 24. At 7:36pm on 26 Oct 2010, Wee-Scamp wrote:

    Have to say I'm surprised that the London based Supreme Court can hold sway over Scottish Law because it suggests that Scottish Law isn't as distinct as we thought it was.

    I'm also surprised that this particular anomaly has only just come to light. Frankly I see nothing wrong with interviewing a suspect for up to six hours without a lawyer present. However, if they insist on it the lawyer should attend that initial interview for no payment. I don't see why this change should make lawyers any richer than they are.

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  • 25. At 8:09pm on 26 Oct 2010, Lallands Peat Worrier wrote:

    Legally speaking, this is a complex issue. It arises as a result of the case of Salduz v. Turkey in the European Court of Human Rights. Under the Scotland Act 1998, ministers may only lawfully act in accordance with the values of the European Convention on Human Rights. The Lord Advocate, Scotland's chief prosecutor, is a "minister" for the purposes of the 1998 Act. While the Supreme Court nominally does not have jurisdiction over the criminal law of Scotland - this case arose under a "devolution minute" and specifically this requirement for Scottish Ministers to act in accordance with the human rights norms of the Council of Europe. Accordingly, that is how the new UK Supreme Court can wade in on this apparently criminal case.

    I'm a strong believer in folk being able to access the reasoning in these cases themselves. While there are some legal technicalities, the two leading judgements are broadly accessible. Those interested can read the full judgment of the Court in text here, without footering about with the Court's pdf files.

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  • 26. At 8:28pm on 26 Oct 2010, Patch Bruce wrote:

    as an ex cop i agree with this totally. to many cops out there twisting suspects explanations into evidence against them. LONG OVERDUE

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  • 27. At 8:52pm on 26 Oct 2010, Griff wrote:

    As a police officer serving in England I have never understood how this has gone on for so long. I have always thought the Scottish authorities were a wee bit smug about how they did things. I always sensed that they believed that whatever the Scottish legal system did it was superior to that of England and Wales. The Police and Criminal Evidence Act 1984 has served us well and the Scots could do with adopting most if not all of the Act. It has been in use for 25 years and as a living instrument has been tweaked and updated over that time. It wouldn’t take much to adopt it is Scotland surely.
    PACE isn’t perfect. Civil libertarians think that the state has too many powers and the police sometimes believe it restricts them. The truth is probably somewhere in the middle which shows it is working.

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  • 28. At 9:03pm on 26 Oct 2010, JTomlin wrote:

    18. Reluctant-Expat
    "Ah, he's apparently found it......[awaits moderation]....."

    The question is: Have you yet figured out the position of the party you claim to support? Or are you going to admit that you are in opposition to that position?

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  • 29. At 9:06pm on 26 Oct 2010, Patch Bruce wrote:

    Griff your spot on too many super cop detectives up here manipulate suspects words into condemning evidence, i've seen it done and its criminal.

    Take a sexual crime allegation. Female claims she is raped, guy is interviewed, admits having consensual sex with accuser, ....... suspects explanation manipulated by super cop into being an admission of guilt. I've seen it done its terrible.

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  • 30. At 9:07pm on 26 Oct 2010, frankly francophone wrote:

    #25 Lallands Peat Worrier

    Thank you for that. Much appreciated.

    While perusing comments here it occurred to me to turn to Renton and Brown on the subject of procedure in Scotland concerning questioning of a suspect in the absence of a solicitor. You will know, of course, to which tome I am alluding (Criminal Procedure According to the Law of Scotland). There one reads that the position from 1887 has been that the accused is entitled, immediately upon his arrest, to have intimation sent to any properly qualified solicitor that his or her professional assistance is required by the accused and informing him or her of the place to which the accused is to be taken for examination. It is stated that the solicitor is entitled to have a private interview with the accused before the examination and to be present thereat.

    "There is no right to the presence of a solicitor at any earlier stage, e.g. at the time when the accused is charged, but a request to have a solicitor at that time will normally be granted, and refusal to grant such a request may constitute oppression."

    I believe it is true to say that in Scotland a confession is by itself not considered to be sufficient evidence of guilt, as corroboration is required. That is to say that a confession in the form of a statement to police in the absence of a solicitor is not something over which the fiscal would be very likely to turn cartwheels of delight.

    "By the law of Scotland no person can be convicted of a crime or a statutory offence, except when the legislature otherwise directs, unless there is evidence of at least two witnesses implicating the person accused with the commission of the crime or offence with which s/he is charged."

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  • 31. At 9:07pm on 26 Oct 2010, Sheneval wrote:

    Brian,

    And the criminals rubbed their hands with glee and gave thanks to their great benefactor 'The European Court of Human Rights' written by lawyers for interpretation by lawyers, and the lawyers involved laughed all the way to the bank.

    Meanwhile there was much wailing and gnashing of teeth amongst the weak and the innocent innocent echoed by the taxpayers, all of whom were suffering from this monstrous piece of legislation, which was having an ever increasing stranglehold around their necks and their pockets.

    Who will give us justice? they cried and the lawyers smiled and counted their pieces of silver and the politicians washed their hands of any responsibility saying: we have made the laws and you must live by them for many of us are lawyers ourselves.

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  • 32. At 9:20pm on 26 Oct 2010, gedguy2 wrote:

    Any law that protects an innocent accused's rights (all are innocent until convicted) can only be applauded. To allow a police force, however well run it is, the authority to 'interview' their prisoner without the 'innocent' prisoner given the right to have legal representation present smacks of undemocratic processes. Protect the accused and condemn the guilty.

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  • 33. At 9:22pm on 26 Oct 2010, CassiusClaymore wrote:

    The real error was adopting the political (rather than legal) ECHR into Scots law - this sort of thing was bound to happen.

    CC

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  • 34. At 9:32pm on 26 Oct 2010, Patch Bruce wrote:

    i;m just glad we don't have the death penalty or we would have seen many an innocent man hanged by now because of this anomaly.

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  • 35. At 9:54pm on 26 Oct 2010, JTomlin wrote:

    Ah... The 2010 Prosperity Index which "ranks 110 countries, according to their overall abilities to foster the drivers of prosperity" is out, I see.

    Fascinating reading, especially for those Labourites who keep making nasty comments about Ireland and Iceland--which rank AHEAD of the UK.

    http://www.prosperity.com/rankings.aspx

    And top on the list. Imagine that. Norway

    THIRTEEN places above the UK. Makes interesting reading.

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  • 36. At 10:24pm on 26 Oct 2010, Philip wrote:

    While not wishing to stifle opinion or debate...are you sure Brian that the heading should be spelt that way...tut tut

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  • 37. At 10:34pm on 26 Oct 2010, Anagach wrote:

    21. At 7:10pm on 26 Oct 2010, Reluctant-Expat wrote:

    (although he clearly has a fundamental misconception of criminal law among others).


    Yawn. What would that be son?. Or can't you spare the electrons.

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  • 38. At 10:40pm on 26 Oct 2010, reincarnation wrote:

    36. Philip

    Brian is using code. He's introducing an extra letter in every blog which will spell out a secret message.

    "t" in the last one, "e" in this one.

    This could become exciting!

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  • 39. At 10:46pm on 26 Oct 2010, clammylegg wrote:

    36. Philip

    He's nervous as he thinks he might have to spend 3 days on the west coast listening to elmer enough to crack anyone up.

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  • 40. At 11:34pm on 26 Oct 2010, Harry Stottle wrote:

    #39
    Does anybody know if the Fiddler's Rally is being televised?

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  • 41. At 11:51pm on 26 Oct 2010, Tom wrote:

    If a person is silly enough to talk without a lawyer present then surely they should be put in jail?

    Lawyer's do not work towards justice but their clients best interests afterall. By introducing this lawyer's will simply ensure that potentail criminals do not fall into any of the traps that can catch them out.

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  • 42. At 11:52pm on 26 Oct 2010, reincarnation wrote:

    40. Harry Stottle

    Fiddlers are getting the same coverage as the SNP.

    http://www.bbc.co.uk/programmes/b00jcnvh

    Even the Beeb aren't going to be quite so obvious!

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  • 43. At 11:56pm on 26 Oct 2010, reincarnation wrote:

    41. Tom
    "If a person is silly enough to talk without a lawyer present then surely they should be put in jail?"

    Jail for stupidity? Richard Baker may be lacking, but there is no need to put him in jail.

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  • 44. At 00:50am on 27 Oct 2010, Andy wrote:

    kaybraes wrote:
    "Looks like the lawyers , a goodly number of whom are warming the benches in Holyrood will see this as another licence to print money . Considering that the majority of people the police take into custody are going to get legal aid, this will just be an additional source of income to supplement the "plead not guilty this time so I can double the fee when you plead guilty next time " method of making money from the legal aid system. It makes you wonder whether the criminal or the lawyer should be in the dock."


    Sounds like it's guilty until proven innocent with you.


    As to the issue, I think it a good think that a lawyer should be present from the start of questioning. I also don't see the reason for any delay in getting that specific bit changed. I can understand that politicians may be worried about other items being added to this one specific amendment though, but it could go through by itself I would have thought.

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  • 45. At 02:15am on 27 Oct 2010, ady wrote:

    Europe again...who dat.

    Are there any rulings due on whether European law is valid when a sovereign population haven't actually ever ratified European membership in a democratic referendum?

    Or are we sticking to the Soviet style system where the Erich Honeckers and Vidkun Quislings get to sign over a captive population?
    Welcome to the Democratic Peoples Republic of Scotland folks.

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  • 46. At 02:26am on 27 Oct 2010, ady wrote:

    No-one seems to notice that European law is no more valid than Polynesian law until it gets ratified.

    United Kingdom European Constitution referendum
    http://en.wikipedia.org/wiki/United_Kingdom_European_Constitution_referendum

    We're still waiting...and until that vote happens the constitutive rules of international law view unratified treaties as unperfected acts that generate no rights or obligations.

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  • 47. At 02:33am on 27 Oct 2010, ady wrote:

    So European law is actually..a voluntary code of practice.

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  • 48. At 03:04am on 27 Oct 2010, reincarnation wrote:

    47. ady

    It would be helpful if you understood that the European Court of Human Rights is nothing to do with the European Union.

    It is a function of the Council of Europe - an entirely separate organisation founded in 1949. More information about it can be found here

    http://en.wikipedia.org/wiki/Council_of_Europe

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  • 49. At 06:24am on 27 Oct 2010, ForteanJo wrote:

    Interesting news this morning. There could be as much as 24 BILLION barrels of oil left in the north sea. So much for the unionist claim that the oil is running out and there's hardly any left. Yet another lie bites the dust in the face of reality.

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  • 50. At 06:32am on 27 Oct 2010, ForteanJo wrote:

    What's going on? We've got Tavish Scott stating this morning that the tugs stationed around Shetland should be retained because these waters provide "billions and billions" of revenue for the UK exchequer. Coming on top of the estimate of the billions of barrels still available in the north sea, the unionist lies are falling quicker than Shaun Maloney in the Motherwell penalty box!

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  • 51. At 06:46am on 27 Oct 2010, Patch Bruce wrote:

    41. At 11:51pm on 26 Oct 2010, Tom wrote:
    If a person is silly enough to talk without a lawyer present then surely they should be put in jail?


    Tom believe me its not as simple as it seems. I experienced well over twenty years of this. Many guilty men will always want to confess, its a release for them. However there are a few cases (often high profile ones, with little corroborative evidence, where someone being questioned says something innocently and then finds that what he says is taken and then evidence is constructed round that statement by over zealous or even worse or less frequently corrupt cops to, make him look guilty. It happens. believe me. and I personally would rather see two guilty men go free, than one innocent man convicted and loose everything.

    But I suppose it depends whether or not you want a justice system that simply gets the job done and locks up anyone for the crime or whether we have a system we can be proud of, where cops investigate properly and lock up the right guy, rather than merely making the evidence fit, as a short cut to get the thing cleared up.

    D.n.a. evidence for instance is so easy to plant, follow the guy you have a grudge against, watch for him throwing down a cigarette butt. Carefully collect it. Break in to your target premises, leave the cigarette butt, off with the safe. Forensics find the DNA, your enemy is arrested, he cant explain his movements over the appropriate time, saying he was out walking the dog. Cops twist the evidence or rather the lack of appropriate information, to make him look guilty, charge the suspect, Bobs your uncle your enemy is now going to be tried and probably convicted of that crime.

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  • 52. At 08:02am on 27 Oct 2010, fairliered wrote:

    I have just listened to Kenny MacAskill on BBC Breakfast. Not having read the comments on this blog until this morning, I had only heard the BBC Scotland version, which, as usual, was swpun to give the impression that the incompetent SNP had failed to update Scots law when they should have. It was good to get another version, which is backed up by the majority of comments on this blog.

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  • 53. At 08:21am on 27 Oct 2010, fairliered wrote:

    Some of you may be interested in the following organisation, in which ideas are suggested for campaigns.

    I am supporting the third one from the top.

    http://38degrees.uservoice.com/forums/78585-campaign-suggestions

    Sorry, can't get the hyperlink to work




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  • 54. At 08:50am on 27 Oct 2010, Ecksfreelunch wrote:

    Bit reminiscent of the prevarication over slopping out which ultimately resulted in unnecessary costs to the government. There has been a fair amount of discussion in legal circles about why the current issue hadn't been brought to the floor of Holyrood by a backbencher in order to test the lack of compliance with the ECHR. After all the lack of compliance reaches back into previous administrations at Holyrood.
    On a seperate issue, is it possible to view debates somewhere from the SNP conference in Perth?

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  • 55. At 09:14am on 27 Oct 2010, Westie wrote:

    52. At 08:02am on 27 Oct 2010, fairliered wrote:
    I have just listened to Kenny MacAskill on BBC Breakfast. Not having read the comments on this blog until this morning, I had only heard the BBC Scotland version, which, as usual, was swpun to give the impression that the incompetent SNP had failed to update Scots law when they should have. It was good to get another version, which is backed up by the majority of comments on this blog.

    On the Gordon Brewer Show last night it was business as usual. Clear statements from KM followed by the same questions being asked over and over in an attempt to catch him out, say something that could be latched onto and general belittling of any point KM made. Do you think Brewer is aware that every time he does this in an attempt ot discredit the SNP he is having a go at Scotland, the audience, the subject the experts on hand. Poor-very poor.

    I would have loved to hear what the lawyer in the studio said about the two selected newspaper headlines (Guess which ones?) which stated 3500 cases would be reopened, just after his professional opinion stated we may be looking ast only dozens. as the programme ended I think you could see him shake his head and point at the newspapers on the desk. Hopefully he told Brewer "he could definitely smell s***e"

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  • 56. At 09:20am on 27 Oct 2010, ady wrote:

    --It is a function of the Council of Europe - an entirely separate organisation founded in 1949. More information about it can be found here--

    Had a look, this was never ratified by a referendum either, so could also be regarded as voluntary best practice.
    they also appear to have shoehorned in the European ruling body on pharmaceuticals...which makes sense within the context of a gigantic bureaucracy which was built without a steering wheel.
    Pretty hilarious really...the body overseeing human rights also oversees cod liver oil tablets...uh okay...that makes sense.

    I notice that the Council of the European Union should not be confused with the European Council or the Council of Europe...as well as the European union council...all of which are separate legal entities.

    One could also think that someone somewhere is taking the mick in a rather huge manner with all these entities.

    It does however make perfect sense within a European context, those Germans chappies do love their gigantic bureaucracies.

    If you haven't seen it yet I strongly recommend a Terry Gilliam film called BRAZIL.
    I have a feeling you would enjoy it...actually it might even provide a few pointers.

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  • 57. At 09:33am on 27 Oct 2010, ady wrote:

    I discovered a new word today, thanks to the European thingummybob.

    We're living in a dystopia.
    http://en.wikipedia.org/wiki/Dystopian

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  • 58. At 09:38am on 27 Oct 2010, sid_ts63 wrote:

    #54 ecksfreelunch - morning, good of you to bring up slopping out.
    lets look at the differences.
    the last executive sat on their hands ,did not prepare for the possible outcome of the court case and indeed once they lost the case they still did not face up to what they had to do to ensure they complied with the ruling. it cost the country unnecessarily.
    on this occasion the Government planned ahead so that they had a plan should they lose the case. there was no point in pushing thru laws etc until they lost the case. A very big difference in how both situations were dealt with . one was reactive, a total hash and cost the country needlessly the other was planned, was proactive and whilst it may have some consequences the numbers have been heavily reduced by this action and should be applauded as opposed to what we are witnessing right now which is pretty pathetic
    Sid

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  • 59. At 09:57am on 27 Oct 2010, Ecksfreelunch wrote:

    I have to say that such issues as this are "above" petty party politics. No party in Holyrood can be seen to have emerged well from this needless prevarication. If one legal case fails, one convicted individual is freed, one crime goes unpunished, one life is ruined through unsupervised interviewing, then our political masters are at fault. For posters to defend the actions of one political party and its actions against another simply misses the fundamnetal point. Scots Law has been undermined through the actions of those who make laws; our parliamentarians.

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  • 60. At 10:22am on 27 Oct 2010, bingowings87 wrote:

    #49,

    What's the source? Is it Oil & Gas UK? They published an Economic Report in July quoting a figure of 15-24 billion bboe (Oil & Gas) potentially still to be recovered for all of the UKCS, so it's hardly new news.

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  • 61. At 10:33am on 27 Oct 2010, ady wrote:

    I would be more inclined to see this case as a classic example of a society which has agreed to be controlled by a gigantic dysfunctional narcissistic bureaucracy.

    ...but that's just me.

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  • 62. At 11:43am on 27 Oct 2010, frankly francophone wrote:

    #51 patchbruce

    That is interesting and certainly worth bearing in mind. Personally, I am under no illusions about the police, and nor is the Crown Office or the Procurator Fiscal service, which, as you know, examines the evidence and precognosces witnesses, including police officers, before a report is submitted to Crown Counsel, who decide whether a prosecution will proceed in non-summary cases, the decision in summary cases resting with the procurator fiscal. At precognition unsatisfactory evidence or defective police procedure in any shape or form can and should come to light. If the fiscal is not satisfied, prosecution does not proceed. If the Advocate Depute on whose desk the file lands is not satisfied, prosecution does not proceed.

    It is not unknown for police officers to have prosecution cases prepared against them as a result of misconduct in the course of investigating a crime. They cannot all end up being prosecuted, however, not least because proof is excruciatingly difficult in such cases.

    In Scotland the burden of proof is so onerous, rightly, that any fiscal will tell you that most of the time it is impossible to establish the guilt of the perpetrator of a crime even when one can be reasonably satisfied that one knows who committed it. Here the law of unintended consequences comes into play. As it is so difficult to construct a case which can satisfy the rigorous evidential requirements of Scottish courts, sooner or later some bod or another will be tempted to cut corners. But the system knows this and takes it into account.

    Nevertheless, all is not perfect, needless to say. Now that Scotland has its own legislature again, it can address imperfections in its legal system more easily than was the case before the present constitutional arrangements, which, of course, are themselves imperfect, came into force. It should not be forgotten that the Scottish legal system was in the tender care of the Smother of Parliaments for an unbearably long time, when "Scottish requirements and interests" had "to conform to UK ones", while legislation was made when London wished it, "too frequently to a pattern settled in London, and discussed in an assembly dominated by party political considerations in which seven-eighths of the members" had "little knowledge of or interest in Scotland." (David M Walker, The Scottish Legal Tradition, 3rd edition revised, Edinburgh, 1969)

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  • 63. At 12:35pm on 27 Oct 2010, redrobb wrote:

    H'mmm Mr MacAskill, tell me is the former resident of of HM Barlinie pushing up daisies yet! Well now we have big bruvther south of the border telling you to get the Scots legal system in order, yes indeed our system has to incorporate whatever the mandarins of Europe dictate! But I see some irony here, Mr MacAskill you choose to ignore requests from big bruvther south indeed bigger bruvther across the atlantic, when you released a former resident of HM's, why did you then not do the same and ignore this ruling about a having a lawyer present during police questioning? The word consistency springs to mind....NEWS JUST IN, the daises have still not flowered yet!

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  • 64. At 12:58pm on 27 Oct 2010, reincarnation wrote:

    63. redrobb
    "I see some irony here"

    You see little - and understand less, I think.

    Rulings of the UK Supreme Court are not "requests" as long as we are part of the UK. They are mandatory.

    Incidentally, the former prisoner in HMP Belmarsh released by Jack Straw on compassionate grounds, before al-Megrahi (who was in Greenock, not the Bar-L) is still doing well it seems. Now that is ironic.

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  • 65. At 1:27pm on 27 Oct 2010, bingowings87 wrote:

    #64,

    Megrahi started his sentence in Bar-L in 2001 and was moved to Greenock in 2005.

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  • 66. At 3:02pm on 27 Oct 2010, JTomlin wrote:

    63. redrobb
    "But I see some irony here, Mr MacAskill you choose to ignore requests from big bruvther south "...

    Oh, you mean big brother's request to release al-Megrahi as a trade for oil. Well, THAT certainly would have been more profitable.

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  • 67. At 3:05pm on 27 Oct 2010, Anagach wrote:


    62. At 11:43am on 27 Oct 2010, frankly francophone wrote:

    Thanks, the quote at the end pins down the uncomfortable nature of
    a legal West Lothian question in reverse, which we lived with for nearly
    300 years, where consideration for fundamental differences in system
    was often lacking.

    However we now to some extent face the same issue writ even
    larger as moves to harmonise laws at European and International
    level have to accomodate, with great difficulty, a quite
    disparate collection of legal systems.

    Ho hum.

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  • 68. At 3:31pm on 27 Oct 2010, Dunroamin wrote:

    23. I suppose, without any clear stance from the SNP, I couldn't expect you to be brave enough to climb off your fence and risk having an opinion of your own, could I.

    Let's face it, it just wouldn't be normal to have nationalists daring to disagree with the SNP for fear of incurring the rage and wrath of other nationalists.

    And I thought my own personal stance on this matter was quite clear. Is it not?

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  • 69. At 3:35pm on 27 Oct 2010, FreedomforShetland wrote:

    This is my first post although I have been a sometime lurker. I have taken note of what you all say about feeding the troll but I feel I have to post this piece and link. Apologies for being off topic

    "Pupils will move into the new Mid Yell Junior High School next Friday on their first day back after the October break.

    The new school has progressed “according to plan”, according to the schools service quality improvement manager Matthew Moss, with staff and pupils excited about the move.

    The £8,750,000 building, close to the former school, has taken roughly a year and a half to complete and the holidays have been very busy with last-minute cleaning and preparations, said Mr Moss"

    Full article is here
    http://www.shetlandtimes.co.uk/2010/10/19/new-mid-yell-school-set-to-open-just-in-time-for-new-term

    With the school taking 18months to build I hardly think that RE can claim this one is labour.


    Sorry for being off topic on my first post


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  • 70. At 3:40pm on 27 Oct 2010, FreedomforShetland wrote:

    I think this issue has been handled well by KM, as well as most things he deals with. It's a pity that the issue is being misreported by some. Because the justice department have been preparing for this outcome we a re less likely to get a knee-jerk reaction which would be detrimental to all.

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  • 71. At 3:41pm on 27 Oct 2010, Dunroamin wrote:

    61. The election is in just over six months. Not long now.

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  • 72. At 3:52pm on 27 Oct 2010, JTomlin wrote:

    68. Reluctant-Expat
    "And I thought my own personal stance on this matter was quite clear. Is it not?"

    Haha! Yes, dear. Your own personal stance on all matters is quite clear.

    Whatever it is and whatever they have done the "evil SNP" is absolutely in the wrong. Doesn't matter what they did or how they did it.

    We all know that. *pat on head*

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