Her Majesty's Advocate V. C K
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord Hardie,Lord Bracadale |
| Judgment Date | 06 May 2011 |
| Neutral Citation | [2011] HCJAC 61 |
| Court | High Court of Justiciary |
| Date | 06 May 2011 |
| Published date | 20 June 2011 |
| Docket Number | XB1276/11 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Clarke Lord Hardie Lord Bracadale | [2011] HCJAC 61 Appeal No: XB1276/11 OPINION OF THE COURT delivered by LORD CLARKE in CROWN APPEAL AGAINST GRANT OF BAIL in causa HER MAJESTY'S ADVOCATE Appellant; against C K Respondent: _______ |
Appellant: Jackson, Q.C., Hughes; J Friel & Co, Solicitors;
Respondent: McSporran, A.D.,
6 May 2011
Introduction
[1] The respondent, C K, has been charged on an indictment with eight contraventions of the Misuse of Drugs Act 1971 including drug trafficking offences. Two other persons appear on the same indictment charged with a number of similar offences. The respondent has previous convictions, on indictment, for drug trafficking offences.
[2] On 21 April 2011 the respondent applied to the sheriff, at Dumbarton, Sheriff Dunlop, to be admitted to bail. Standing the fact that she is charged with drug trafficking offences and has been previously convicted for such offences on indictment, the provisions of section 23(D) of the Criminal Procedure (Scotland) Act 1995 fell to be considered and applied by the sheriff in relation to that application. The relevant provisions are as follows:
"(1) Where subsection (2) or (3) below applies, a person is to be granted bail in solemn proceedings only if there are exceptional circumstances justifying bail.
.....
(3) This subsection applies where the person -
(a) is accused in the proceedings of a drug trafficking offence;
and
(b) has a previous conviction on indictment for a drug trafficking offence".
The sheriff granted bail. In his report to this court he noted that the Crown had opposed bail under reference to the provisions of section 23(D) as just set out. The Crown had also submitted that there was a substantial risk that the appellant might, if granted bail, commit further offences. In his written reasons given at the time of his decision the sheriff said:
"Reasons for Decision. The preparation time covered by legal aid (as detailed below) is wholly inadequate in a case of this gravity. It seemed to me for the accused to get a fair trial she had to be at liberty when such unreasonable strictures do not apply".
The "exceptional circumstances" were that "The new legal aid regulations in respect of funding inquiries where the accused are in custody cover only 21/2 hours".
[3] The appellant appealed to the High Court against the sheriff's decision to grant bail. The appeal was set down for hearing by Lord Tyre on 28 April 2011. Having heard counsel for the parties, Lord Tyre continued the hearing to be conducted before a bench of three judges on Friday 6 May. He did so because he was advised that there were a number of bail appeals pending where the point raised in the present case was being taken and that the point was likely to arise in further applications for bail. His Lordship said he considered that the matter raised important issues of general importance and that it was desirable that the point raised should be argued fully before, and determined, by a bench of three judges. In pronouncing his interlocutor continuing the appeal to be heard by a bench of three judges, he directed that the sheriff, if so advised, should provide a further report to the court. The sheriff produced a further report dated 3 May 2011.
[4] Before this court Mr Andrew Smith, Q.C., appeared, at the outset of the hearing, and advised the court that he represented the Glasgow Bar Association. He did not, as such, seek to make submissions on behalf of that organisation, but indicated that its specialist knowledge of the legal aid regulations, which are at the heart of the issue in this case, might be conveyed by him to the court, if the court considered that desirable. In the event the court did not consider that such assistance was either required or appropriate and Mr Smith withdrew.
The legal aid regulations
[5] The Criminal Legal Aid (Scotland) (Fees) Amendment (No.2) Regulations 2010 set out, inter alia, new provisions for the payment of solicitors in respect of solemn legal aid work. While the scheme of payments remains predominantly of payment by means of "detailed fees" sometimes known as "time and line" payments, certain areas of work are covered by what are known as "block fees", being payments made for all work done which falls within a block of work described in Part 2 of the Table of Fees which forms part of the regulations. In proceedings where the accused person is remanded in custody, the solicitor is entitled to claim a "block fee" for arranging and attending all meetings, including consultation, in prison with the client after full committal for trial up to the conclusion of the case. For solemn proceedings in the Sheriff Court where the accused is charged with offences like those of which the respondent stands charged, the relevant block fee under that heading is £152. That is the minimum fee paid in relation to such work however extensive that work may be. The fees payable depend on the type of charge and the court in which the proceedings are to be heard. Accordingly, if the case against the respondent is ultimately prosecuted before the High Court, and this is a matter still to be determined, then the block fee in question will be £304. In addition in Schedule 1, paragraph 1(5) it is provided, inter alia, the following items which do not fall within any block of work prescribed in Part 2 of the Table of Fees
"....
(i) The work described in paragraph 3 of Part 2 of the Table of Fees, where the Board is satisfied that the case raised unusually complex issues of fact".
In a memorandum to solicitors operating under the Criminal Legal Aid system, dated 14 April 2011, the Scottish Legal Aid Board explained that:
"In circumstances where the solicitor considers 'that the case raised unusually complex issues of fact'...an application can be made to us which allows the solicitor to be funded outwith the block fee regime and charge for attendances on a detailed basis. It was our recommendation that discretion be allowed for prison visits in complex cases. The solicitor may make such an application at any point up until 4 months from the conclusion of proceedings. This allows solicitors to take an informed view, at the accounting stage, as to whether or not the block fee payable adequately remunerates the solicitor".
Moreover the Scottish Legal Aid Board in the said memorandum has provided that:
"Recognising that the discretion to be exercised in connection with the prison block is at the conclusion of the proceedings, on the lodging of the solicitor's account, we stated that we were prepared to issue what is described as a 'letter of comfort' to solicitors in circumstances where it becomes quite apparent, on the information available to us, that the number of necessary prison attendances is likely to fall outwith the range which the fee can reasonably be expected to recover. Even if we are not initially satisfied, there is nothing to stop a solicitor reverting to us at a later stage when it becomes more apparent that the case is going to become one appropriate for the lodging of a detailed (albeit a fee which would itself be subject to assessment and possible abatement). We have to be satisfied on submission of the final account that 'the case raised unusually complex issues of fact', and so it would be pointless to issue a letter of comfort during the course of the proceedings without sufficient information at that stage to indicate that it would be likely to accept a detailed account".
It should be observed, at this stage, that the block fee regarding consultation with an accused person does not apply where that accused person is not remanded...
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Brownlee’s Application
...the ABWOR Regulations in which 15 there is also no provision for the exceptional case. There is support for this view in HM Advocate v K [2011] HCJAC 61; 2011 S.L.T. 931 ( sub nom HM Advocate v CK) 2011 S.C.C.R. 381, to which I was referred by the procurator fiscal depute, where it is state......