S.d. (ap) For Judicial Review Of A Decision Of The Sheriff Taken On 22 December 2009 To Refuse The Petitioner's Application For Legal Aid
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2010] CSOH 28 |
| Year | 2010 |
| Published date | 10 March 2010 |
| Date | 09 March 2010 |
| Court | Court of Session |
| Docket Number | P117/10 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 28 | |
| P117/10 | OPINION OF LORD BRODIE in the Petition SD (AP) Petitioner; for Judicial Review of a decision of the sheriff taken on 22 December 2009 to refuse the petitioner's application for Legal Aid ________________ |
Petitioner: Skinner, Advocate; Aitken Nairn, WS
9 March 2010
Introduction
[1] This is a petition for judicial review at the instance of SD of a decision of the sheriff at Glasgow, to refuse his application for legal aid, made in terms of Section 29(4) of the Legal Aid (Scotland) Act 1986, in relation to proceedings before the sheriff under Section 65(7) of the Children (Scotland) Act 1995 at the instance of the Reporter to find grounds of referral to a children's hearing established in respect of the petitioner's child, P. As the father of P enjoying parental responsibilities and rights, SD is a relevant person in relation to these proceedings in terms of Section 93(2)(b) of the 1995 Act. In terms of Section 29(4) of the 1986 Act, legal aid shall be available to a relevant person whose financial circumstances are such that the expenses of the case cannot be met without undue financial hardship to him, provided that the sheriff is satisfied that it is in the interests of the child that legal aid be made available. It is the petitioner's contention in this petition that by her conduct at the hearing on the petitioner's application for legal aid the sheriff acted contrary to natural justice and demonstrated bias against the petitioner and in coming to the decision to refuse legal aid that she took an irrelevant factor into account.
[2] The petitioner lives together with P and P's mother Ms L in the family home. The Reporter has referred the case of P to a children's hearing on the grounds that, in terms of Section 52(2)(c) of the 1995 Act, she is likely (i) to suffer unnecessarily; or (ii) be impaired seriously in her health or development due to a lack of parental care. In support of these grounds the reporter has submitted a Statement of Facts. The Statement includes the fact that the petitioner was convicted in the High Court of rape on a date in 2003. This is accepted by the petitioner. The Statement also includes the following:
"6. Both [Ms L] and [SD] minimise and show a lack of insight into the seriousness of [SD's]offence. [SD] has not accepted full responsibility for his actions or shown victim empathy. Being exposed to these attitudes is likely to harm [P's] development.
7. [Ms L] is aware of the full details of [SD's] conviction ... [Ms L] does not accept that [SD] poses any risk to [P] and as such [Ms L] is unable to ensure [P's] developmental needs."
These facts are not accepted by the petitioner and he would wish to challenge them at the hearing on the grounds of referral. It was with a view to funding representation at that hearing that he made the application for legal aid. Ms L and the curator ad litem to P have been granted legal aid for the hearing.
[3] The petitioner avers:
"The petitioner's application was first considered by the [sheriff] in chambers without the petitioner being present or represented. The sheriff had before her the Statement of Facts, the legal aid application and a precognition of the petitioner ... the petitioner believes that the sheriff indicated that she was minded to refuse the application. As is common practice in such circumstances in Glasgow Sheriff Court, a hearing was fixed to allow the petitioner's agent to address the sheriff on the application. Said hearing was fixed for 22 December 2009 when the petitioner was represented by his agent, [Mr A]. At the outset of the hearing, [Mr A] confirmed that grounds 1-5 inclusive were accepted and went on to say that statements of fact 6 and 7 were important and were denied. Before he developed his submission the sheriff read through the grounds and asked if the Statement of Fact relating to the conviction for rape was accepted. [Mr A] confirmed that it was. The sheriff then said that she did not consider that it was in the interest of the child that she grant legal aid. [Mr A] then went on to say that in his submission it was in the interests of the child that the court hearing the case make a properly informed decision and that required all parties to participate. He began to develop a submission ... At that point and during the course of his submissions the sheriff interrupted [Mr A] and stated '[Mr A], I am not prepared to grant legal aid to a man convicted of rape'. She then confirmed that she was adhering to her decision. The hearing concluded. [Mr A] was not afforded the opportunity to develop his submission further."
Submissions
[4] The petition came before me for a first hearing on 26 February 2010. The petitioner was represented by counsel. None of the parties on whom the petition had been served appeared. Notwithstanding the absence of any contradictor, counsel recognised that I had to be satisfied as to the competency of the application if I was, as came to be his motion, to order a second hearing of the petition in terms of Rule of Court 58(2)(b)(ix). Reservations as to competency had been expressed by Lord Emslie when he had granted first orders in the petition on 4 February 2010.
[5] It was counsel's submission that the application was competent. Lord Emslie had suggested that consideration be given to the identification of a better or different remedy, perhaps by way of an application to the nobile officium. Counsel advised me that there was no statutory appeal from the sheriff's refusal of legal aid. Contrary to Lord Emslie's suggestion, there was no obvious alternative remedy that was better than an application to the supervisory jurisdiction of the Court of Session, as regulated by Chapter 58 of the Rules of Court. The supervisory jurisdiction was a wide one. Decisions of the Scottish Legal Aid Board had been held to be amenable to judicial review: K v Scottish Legal Aid Board 1989 SLT 617 (where competency was considered); and McTear v Scottish Legal Aid Board 1997 SLT 108 and S v Scottish Legal Aid Board 2007 SLT 711 (where competency was not challenged). While in terms of Section 29(2)(c)(i) and (4) of the 1986 Act, an application for legal aid in respect of proceedings under Section 65(7) of the 1995 Act must be made to the sheriff, in the event of an appeal to the Sheriff Principal or Court of Session in respect of a decision made by the sheriff in Section 65(7) proceedings (under Section 51(11) of the 1995 Act) then, in terms of Section 29(2)(b) and (5) of the 1986 Act, an application for legal aid for the appeal hearing must be made to the Scottish Legal Aid Board. It seemed clear that a refusal of legal aid by the Scottish Legal Aid Board in these circumstances would be subject to judicial review. It would be anomalous if a refusal by the sheriff were not so subject, particularly given that the criteria to be applied by the Scottish Legal Aid Board, on the one hand, and the sheriff, on the other, are, while not precisely the same, at least broadly similar. The author of Kearney, Children's Hearings and the Sheriff Court (2nd edition) a highly regarded and very experienced retired sheriff, states at paragraph 33-04 that the refusal of legal aid by the sheriff may be the subject of judicial review. While Sheriff Kearney cites no authority from that proposition, it is entirely consistent with principle. There is nothing novel about the Court of Session reviewing the decision of an inferior court by way of reduction: Walker The Law of Civil Remedies in Scotland at pages 171 to 172. What was sought here fell squarely within the principles enunciated in West v Secretary of State for Scotland 1992 SC 385. The distinction which was once made as between decisions which were judicial (and therefore amenable to review) and those which were administrative (and therefore not amenable to review) is no longer valid: Watt v Strathclyde Regional Council 1992 SLT 324 at 329A-E, Clyde and Edwards Judicial Review paragraphs 8.20 to 8.26. This was not a case where it was clear that there was an alternative remedy available with the result that judicial review was excluded in terms of Rule of Court 58.3(2). Were it to be suggested that the proper remedy was by way of action of reduction, under reference to the decisions Bell Fiddes 1996 SLT 51 at 52H and Saunders Petitioner 1999 SC 564, that would be wrong. The view expressed by Lord Menzies in Glasgow City Council Petitioner 2004 SLT 61 at 69D was to be preferred. Regard should be had to what Lord Menzies said in Glasgow City Council Petitioner supra at 69A to the effect that a respondent cannot escape the supervisory jurisdiction by pointing to "arcane or rarely used means of appeal of doubtful efficacy". Even where an alternative remedy may exist...
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