The UK Supreme Court has bid for a fresh trial of the Nat Fraser case after they deemed his conviction unsafe. This comes a year after the Supreme Court upheld an appeal by Peter Cadder, opposing the Court of Appeal in Edinburgh, which was accused of breaching human rights.
Under section 14 of the Criminal Procedure Act 1995, Scots law previously allowed police to detain and question a suspect for up to six hours without access to a lawyer. During which time, many prosecutions were made. However, European law grants more arrest rights to suspects, providing immediate access to a lawyer. In the 2008 Salduz v. Turkey case, the European Court of Human Rights determined that people detained at police stations have the right to access a lawyer and not allowing so was a direct breach of human rights.
In the Cadder v. HMA case in 2010, the UK Supreme Court slammed the Scottish legal system for its practices that they believed contradicted the European Convention of Human Rights. The groundbreaking decision to uphold the appeal, now called the Cadder Ruling, questioned over 3,500 cases and caused the Scottish Parliament to rush through a bill that complied with the European Court of Human Rights.
Scots law now legally requires police to provide immediate access to legal representation. The emergency bill received a lot of criticism, having being decided on in one afternoon rather than the typical several month period.
Although the majority voted in favour, the Liberal Democrats voiced concerns over the financial implications of the bill. They claimed extending the detainment time could cost taxpayers millions, and tie down police resources.
In addition, several organisations raised questions, including Rape Crisis Scotland. Sandy Brindley, national coordinator of Rape Crisis Scotland, stated in an interview "We are very worried about the impact the ruling is going to have on sex offences. The police rely on admissions in interviews. It is almost becoming an unprosecutable crime. We are hearing lawyers are advising the accused to make no comment. That's having huge consequences for sex offences."
Almost one year later, the UK Supreme Court has questioned another high-profile Scottish criminal case. After it was discovered that Nat Fraser was not given access to a lawyer and that certain evidence was purposefully omitted during trial, the Supreme Court ruled that the high court in Scotland should order another trial for Nat Fraser. After Fraser lost his appeal, his lawyer succeeded in winning a bid to take the case to the court in London. His lawyer took advantage of the recent Cadder ruling to argue that his client’s rights had been breached, claiming the evidence omitted contradicted the prosecution case.
Arlene Fraser’s family are greatly disappointed by the ruling but “support the Crown's intention to seek authority to bring fresh proceedings against Nat Fraser for Arlene's murder."
First Minister Alex Salmond has always remained outspoken about his concerns on the UK Supreme Court having authority in Scottish courts. He has publicly advocated for an independent legal system that would directly give effect to the European Court of Human Rights in Strasbourg. "The big difference between the Strasbourg Court and what the Supreme Court is doing, is Strasbourg can't strike down convictions...and it certainly doesn't do it without a proper examination of the degree of protections, checks and balances within the Scottish judicial system."
Following pressure from First Minister Alex Salmond and Justice Secretary Kenny MacAskill, the Scottish Cabinet announced last week that a group of legal experts would be appointed to review rulings by the UK Supreme Court on Scottish criminal cases. Tory supporters believe Salmond is using the Nat Fraser case to stir up more controversy about the UK Supreme Court, and essentially gather more support for his campaign.
Regardless of Salmond’s agenda, a possible overturn in the Nat Fraser case could be devastating to the Scottish legal system. In addition to questioning the legal competency of Scotland’s courts, an overturn could set a precedent for future appeals.
While Nat Fraser awaits bail, the Scottish Cabinet begins the process of appointing a team of legal experts. Experts who the public and Arlene Fraser’s family hope will challenge the UK Supreme Court.
UK Supreme Court Questions Scottish Legal System
How damaging could the Nat Fraser case be for the Scottish legal system?
by Natalia Gomes (07 June 2011)