Scottish criminal cases in the supreme court : is the devolution/compatibility issues jurisdiction justifiable?

  • Colin Hamilton

Student thesis: Doctoral Thesis

Abstract

Since 1999, the Judicial Committee of the Privy Council (JCPC) and subsequently the Supreme Court (SC) have had the ability to hear Scottish criminal cases raising devolution and (since 2013) compatibility issues. This jurisdiction is controversial because before 1999 there was a long tradition of Scots criminal law being allowed to develop in its own way without scrutiny from a UK-wide court. This thesis considers whether sending Scottish criminal cases to the JCPC/SC is justifiable. Chapter 1 considers how the jurisdiction developed and why it is controversial. Chapter 2 shows that arguments made by critics of the JCPC/SC's jurisdiction resemble those made by legal nationalists. It considers legal nationalism in Scotland, Quebec and South Africa to explore the relationship between law and national identity and to examine whether there is a need to accommodate differences between legal systems. Chapter 3 evaluates claims that Scots criminal law, procedure and evidence are distinctive when compared with English law. Chapter 4 analyses claims that the JCPC/SC's jurisdiction has an unwelcome impact on Scots law by importing human rights law into Scots law, producing decisions which fit uneasily with existing Scots law, harmonising Scots law with English law, causing confusion and prompting legislative intervention. It tests whether the JCPC/SC benefited Scots law by protecting human rights. Chapter 5 considers how courts in general, top courts and the JCPC/SC's jurisdiction might gain legitimacy and uses these findings to argue that the JCPC/SC's jurisdiction is legitimate and justifiable. It considers important questions including whether the JCPC/SC complies with limits on its powers, whether the JCPC/SC should sit with a majority of judges trained in Scots law and whether there is a need to protect human rights to the same level in each part of the UK. The thesis concludes that the jurisdiction needs little reform.
Date of Award31 Oct 2019
Original languageEnglish
Awarding Institution
  • University Of Strathclyde
SupervisorAileen McHarg (Supervisor) & Paul James Cardwell (Supervisor)

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