The decision in Kelly v HMA [2010] HCJAC 20 is not of itself of much import, but there are interesting comments from the Court of Criminal Appeal on the process whereby individuals are applying ot the Scottish Criminal Cases Review Commission, having previously failed to meet statutory time limits for appeals, or to apply for extensions to those limits.

The court notes at paras [14] and [15],

"We would only add that this case appears to give rise to questions similar to those raised by the court in Hunt v Aitken 2008 SCCR 919 following a referral by the Commission. In that case an appeal by way of stated case was deemed abandoned by reason of the appellant's failure to comply with certain statutory requirements, and an application by him to the court for further time within which to comply was refused. Notwithstanding this the Commission referred the matter to the court, which heard an appeal presented by way of bill of suspension. Reflecting on its statutory discretion to allow further time, the court observed that the "court's exercise of its discretion, in the interests of justice, is not dictated by an assessment of the merits of any ground of appeal", and further that the interests of justice were "not well served by an approach which too readily excuses failures to comply with the statutory requirements." The court went on to say:

"(5) Against that background, the question of interest to the court was whether, in a case where the statutory requirements...

The judgments in the first two Scottish criminal cases decided by the Supreme Court were delivered in February.

Allison v HMA [2010] UKSC 6 was an appeal where the Crown had not (at the time of the trial) disclosed to the appellant and his legal team that a police interviewee (where the interview was introduced as evidence after his death) had a number of previous convictions and outstanding charges. The information was disclosed during the appeal to the Court of Criminal Appeal and the appellant argued that the failure to dislcose had deprived him of his right to a fair hearing under Article 6 of the European Convention on Human Rights. After a procedural problem (where the appellant had not raised the devolution issue in the appropriate way and leave to appeal was denied by the High Court) the Privy Council had granted leave to appeal and the procedural issues were not considered further before the Supreme Court.

In its decision the High Court had stated,

"We consider that, in this context, a distinction has to be made between previous convictions and outstanding cases. While, in appropriate circumstances, the existence of previous convictions may be of importance in connection with the preparation of a defence and to the challenge that may be mounted to the credibility of a witness, we do not consider that the same may be said of outstanding cases. Where an individual is charged with crime, he or she is presumed to be innocent until proved guilty. If a case...

The 2009 annual report of the Scottish Law Commission was published earlier this month. In the foreword to the last annual report SLC chairman, Lord Drummond Young, had raised concerns about the failure to implement SLC reports. He notes in his foreword this year a number of very positive developments within the devolved government and parliament including meetings with the Justice Secretary and minister for Parliamentary business, a meeting with the convener of the Justice Committee.

Lord Drummond Young welcomes these developments,

"Procedures are under consideration to increase the capacity of Parliament to deal with Scottish Law Commission Bills. At the same time the Scottish Government has announced its intention to engage in a process of formal consultation on our Reports on Succession, Damages for Psychiatric Injury, Damages for Wrongful Death, and Limitation. On the criminal side, our Report on Rape and Other Sexual Offences has been implemented in the Sexual Offences (Scotland) Act 2009. Finally, in the Criminal Justice and Licensing (Scotland) Bill that is presently proceeding through the Scottish Parliament three of our reports are included; these are the Reports on Insanity and Diminished Responsibility, Age of Criminal Responsibility and Crown Appeals. In addition, the Cabinet Secretary for Justice has agreed that it would be useful if, following the publication of our reports, the Government were to issue a statement of its position on our recommendations. This is excellent progress, and I look forward to seeing practical results from these changes."

Lord Drummond Young has, though, strong words for the UK government...

The eighth programme of Law reform from the Scottish law Commission was published earlier this year.

The Eighth Programme includes some  ongoing work from the seventh programme as well as identifying a number of new projects. The SLC began work on the programme at the beginning of this year and will work on the programme until the end of 2014. The programme was prepared following extensive consultation with the legal profession and other interested bodies (and for the first time a webpage inviting suggestions from the public). The SLC notes that "Two of the new projects reflect suggestions made by consultees, and the scope of two projects being carried forward has also been changed significantly following comments by consultees."

Four projects are carried forward from the previous programme:

• Security over corporeal and incorporeal moveable property; assignation of incorporeal moveable property (this is much broader in scope than the original project which planed to look only at incorporeal property)
• Trusts
• Judicial factors
• Homicide

In addition six new projects are identified:

• Criminal liability of partnerships
• Law of contract in light of the Draft Common Frame of Reference
• Adults with incapacity
• Compulsory purchase
• Heritable securities
• Prescription and corporeal moveable property

In addition to its work under the Programme the Commission will continue to deal with requests for advice received from the Scottish Government and UK government departments (including the consideration of Similar fact evidence and the Moorov doctrine - an aspect of the World's End reference).

Additionally, the SLC will co-operate with the Law Commission for England and Wales. Current work is progressing on the law of insurance;...

In early February JUSTICE, the all party law reform organisation, published a report on "Devolution and Human Rights". The report considers political aspirations (particularly from the COnservative party) to repeal the Human Rights Act 1998, replacing the incorporation of the European Convention on Human Rights with what some refer to as a homegrown Bill of Rights. Such suggestions excite newspapers - primarily tabloids who give their standard Pavlovian responses (usually involving assertions about burglars having too many rights, while complaining about householders not being able to kill them (or at the very least violently assault them) without some form of legal consequence).

The dog that - up until now - hasn't barked in these considerations is how this will impact on the devolution settlements where the powers of the Scottish Parliament and the Scottish government have to be exercised in accordance with the ECHR. JUSTICE predicts that "it would be extremely difficult, and probably impossible, for Westminster to legislate for a bill of rights without the approval of the Scottish Parliament and the Northern Irish Assembly."

Roger Smith, Director of JUSTICE, said:

"Repeal or substantial amendment of the Human Rights Act will require changes to the devolution settlements for Scotland, Wales and Northern Ireland. This is likely to prove a legal and political nightmare.

"The devolution settlement is incredibly complex. The consent of the devolved Parliaments – certainly practically and probably constitutionally – will also be required. This is not a project in which Westminster can go it alone. Any attempt to...

The Scottish Government published a consultation paper on its proposed Referendum (Scotland) Bill on 25 February 2010.  Under the Bill, the Scottish people will be asked to vote on whether Scotland should become an independent nation or if the Scottish Parliament should have wider powers than at present.

Whatever the outcome of the consultation, it seems unlikely that any subsequent Bill will pass the Scottish Parliament, because the three main opposition parties are unanimous in their opposition.  Only the Green Party supports the SNP Government's wish to hold the referendum.

The heart of the proposal is summarised thus in the consultation paper:

The Scottish Government plans to introduce the Bill in 2010 and will be seeking the agreement of the Scottish Parliament that the referendum should be held as soon as possible.  The Scottish Government believes that Scotland’s future interests would be best served by it assuming all of the responsibilities and rights of a normal European state.  Independence would give the Scottish Parliament and Government full responsibility for those matters currently reserved to the United Kingdom Parliament and Government, including key economic and political powers and the right of representation for Scotland in the European Union.  Other aspects of an independent Scotland would remain the same.  Her Majesty The Queen would remain as Head of State and the social union with the remainder of the UK would be maintained, with the nations continuing to co-operate on a range of matters.

However, the Scottish Government acknowledges that there is also support for extending the...