Monday, June 20, 2011
Luke Mitchell is set to have his conviction quashed by Supreme Court, can Scots get a fair trial in their own country and who will ensure it?
If you asked any aspiring politician do they believe in fairness and equality, they would say yes.
Capture a politician at election time and they would be only too keen to get their record of supporting equality on the record.
The ‘problem’ with fairness is that it has to apply to all to have any meaning and value, not just for the individual but for society as a whole.
Rule of law is important.
The UK Supreme Court has caused much outcry among some people over two decisions they made regarding Peter Cadder and Nat Fraser.
In each case the UK Supreme Court made the correct decision.
Another high profile case is that of Luke Mitchell found guilty of the murder of Jodi Jones, it is said that he is set to have his conviction quashed by the Supreme Court.
What is the most important thing in Scottish law?
Is it the independence of Scots Law or the right to a fair trial?
The Sunday Herald has come down and said it is the independence of Scots law.
They are wrong; it is the right to a fair trial.
What use is the independence of the judiciary if a person cannot get a fair trial in their own country?
What does that say about our values and society as a whole?
The big breakthroughs in law have always come for standing up for those whose rights have been opposed.
It is the speech delivered by Anthony Hopkins in the movie, Amistad before the Supreme Court.
It conveys a sentiment about the nature of justice.
If Luke Mitchell is freed, it will provoke a storm but upholding the rule of law and human rights is more important than independence of the legal system.
Scotland will never vote for independence if the legal system cannot guarantee the right to a fair trial.
It will simply not happen.
In the Luke Mitchell case, the argument is similar to Cadder, he is claiming his trial was unfair because he had no access to a lawyer during interview.
A breach of EU human rights!
Team Angiolini when protesting Cadder put forward the argument that because other ‘safeguards’ were in place, the actions of denial of human rights were acceptable.
And the Appeal Court in Edinburgh agreed.
That was complete crap.
Human rights of the individual cannot be taken away and replaced with other ‘safeguards’ by a third party and they cannot be surrendered or voluntary opted out of either.
So, the Police, the Crown Office and Appeal Court in Edinburgh got it wrong.
Should I be fighting to keep the ‘independence’ of the legal system when it has become so corrupted?
Should any elected politician?
Recently QC Paul McBride pulled out of a debate on the Supreme Court, the organisers had to cancel it because they couldn’t find anyone else to defend the Scottish Government line.
Given the furore, you would have thought everyone and his brother would be available and want to be in there.
Mitchell’s legal team is now going directly to the UK Supreme Court, why?
Because the Appeal Court in Edinburgh refused them leave to appeal.
Senior lawyers on both sides of the Border say this will result in his conviction being quashed.
Nicholas Scullion, who has successfully represented clients using the Cadder ruling, is certain the First Minister knows the likely decision, which could come within weeks.
“I do not think the public of Scotland will be behind any court that releases Luke Mitchell, but the reality is the Supreme Court probably will call this in and if so they have to release him. There are three bullet points of Cadder and Luke Mitchell fits every one. If they don’t quash the conviction it really calls into question the legitimacy of the Supreme Court”.
“The only reason for not doing it would be because they are afraid of Alex Salmond, and that would be a breach of European convention.”
I have met Alex Salmond a few times in passing myself, I always found him to be pleasant, reasonable and hard working, in fact I have a lot of time for him; he has done a lot.
If Luke Mitchell’s conviction is quashed and I fully expect it to be by the UK Supreme Court, he should step back and look dispassionately at the nature of justice in Scotland.
There are problems.
The Nat Fraser case highlighted how the Crown Office deliberately withheld evidence in a criminal case in order to try and secure a conviction.
That should have sent alarm bells ringing in the justice department.
And it didn’t.
The Campaign for Human Rights at Glasgow University