Lord Carloway attacks Supreme Court as having ‘depressing influence’ on Scottish legal system

The lord justice clerk has attacked the UK Supreme Court, calling it remote and “far removed” from the realities of Scots law.

Lord Carloway said the court had a “depressing influence” on the legal system in Scotland.

The unusual remarks came in a speech made by the judge at a conference of Commonwealth Law Reform Agencies in Edinburgh.

He said: “The Supreme Court, which has hitherto sat only in London, may be deemed to exercise greater autonomy in the selection of topics for the reform of Scots civil law than the Scottish Law Commission itself.”

While the criminal law court hierarchy in Scotland ends with the High Court of Justiciary, the Supreme Court can deal with particular questions relating to devolution and arising from civil or criminal proceedings.

It did so notably in Cadder v HM Advocate 2010 where the court held the Scottish police’s practice of interviewing suspects without a solicitor was held as being incompatible with the European Convention on Human Rights (ECHR) and was, as such, unlawful under the Scotland Act 1998.

He said: “In some respects, the oversight of Scots Law from a position that is relatively remote, far removed from the practical realities of operating the Scottish legal system and of Scots society as a whole, is apt to have a depressing influence on the efforts of those operating positively within the jurisdiction.”

The lord justice clerk also criticised those who opposed his plans to abolish corroboration, the requirement in Scots criminal law for every crucial fact to be supported by two different and independent sources of evidence.

He noted people who propose radical change, as he has done, may face “real hostility” and can be “undermined” by their own peers.

As he defended judges’ right to suggest legal reform, Lord Carloway said the “down-side is, however, a tendency in some quarters, notably the media, some politicians and certain reactionary elements of the legal profession, to personalise the attack on any reforms recommended by judicial figureheads that they wish to undermine.”

Scotland’s second most senior judge also said: “‘Reactionary or excessively defensive forces among the legal profession can, and often do, behave in a manner obstructive to progressive law reform, especially where there is transparent perceived financial self-interest.”

A report published last month by a review group recommended fundamental reforms to the way in which children and vulnerable people give evidence as well as the way in which “the evidence of witnesses in general is captured and presented”.

However, there were warnings the sweeping reforms, which would also see pre-recorded statements used, could undermine the defence’s ability cross-examine witnesses.