Lord Advocate Elish Angiolini on legal identity ‘loss’

Elish Angiolini Elish Angiolini’s comments came in the wake of the Cadder ruling on questioning suspects

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Scotland’s top prosecutor has warned of a loss of identity for Scots law under UK Supreme Court powers to make decisions on Scots human rights cases.

Lord Advocate Elish Angiolini suggested the court should only consider newer legislation or decisions with major constitutional consequences.

Her comments came after the Supreme Court’s ruling on the Cadder case.

It meant Scottish police could no longer question suspects without allowing them access to a lawyer.

The Lord Advocate made her remarks as she was questioned by MSPs on plans to increase Holyrood’s powers under the Scotland Bill, currently going through Westminster.

Last year, the Scottish Parliament rushed through emergency legislation after the Supreme Court upheld an appeal by teenager Peter Cadder, whose assault conviction was based on evidence gained before he spoke to his solicitor.
‘Loss of identity’
Previously in Scotland, suspects could be questioned for six hours without a lawyer present, but judges ruled this violated human rights to a fair trial.

Commenting on the human rights convention, Ms Angiolini told the parliament’s Scotland Bill Committee: “My slight concern is that, because of the approach of the Supreme Court, there is a real danger that we will not just have harmonisation of our criminal law, procedure and evidence, through that process, but that there will be a complete loss of identity for Scots law unless it is something which is genuinely rarely exercised in the context of something which is of substantial constitutional significance across the United Kingdom or where it is a very new piece of jurisprudence which is clearly ambiguous.”

Even though the High Court is the highest court of criminal appeal in Scotland, it was overruled by the Supreme Court on a constitutional issue, because the need to consider European human rights legislation was written into the Scotland Act – the piece of Westminster legislation which established devolution.

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