Matthew Mcallisters And 6 Others V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Marnoch,Lady Paton |
| Neutral Citation | [2009] HCJAC 107 |
| Court | High Court of Justiciary |
| Published date | 22 December 2009 |
| Year | 2009 |
| Date | 11 December 2009 |
| Docket Number | XC534/08, |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Wheatley Lady Paton Lord Marnoch | [2009] HCJAC 107 Appeal No: XC534/08, XC535/08, XC536/08, XC537/08, XC547/08, XC548/08 OPINION OF THE COURT delivered by LORD WHEATLEY in Appeals under Section 74 of the Criminal Procedure (Scotland) Act 1995 by (1) MATTHEW McALLISTER (2) CONNIE HENDRY (3) JOHN HANNAH (4) YVONNE HUGHES (5) MARK McALLISTER (6) MARGARET McALLISTER (7) KEVIN FERN Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Petitioner: (1) Smith Q.C., Capital Defence Lawyers, Edinburgh
(2) Gebbie, Advocate, Barony Law Practice, Edinburgh
(3) McCluskey, Advocate; Ian McCarry, Glasgow
(4) Ogg, Solicitor Advocate; Capital Defence Lawyers, Edinburgh
(5) Templeton, Advocate; Capital Defence Lawyers, Edinburgh
(6) Collins, Solicitor Advocate; Capital Defence Lawyers, Edinburgh
(7) Jackson, Paterson Bell, Edinburgh
Respondent: Mitchell Q.C.; Crown Agent, Edinburgh
11 December 2009
[1] The appellants have been indicted in the Sheriff Court in Glasgow on various charges under the Copyright, Design and Patents Act 1988 and the Trademarks Act 1994. In short, the allegations against each of the accused are that they have been in possession of, or dealing in articles that they knew infringed copyright law at various stalls in the Barras Market, Gallowgate, Glasgow between 8 October 2005 and 3 December 2005, and between 18 and 26 February 2006, and that they had in their possession for gain goods which bore certain unauthorised trademarks. The first appellant's agents formed the view that the case merited the granting of sanction for the employment of junior counsel by the Scottish Legal Aid Board in order properly to prepare and present the accused's defence, and made an application to that effect. However, the Board refused this request. It appears that similar applications were made in respect of the other accused, and were also refused.
[2] After the indictments on all of the accused had been served, the first appellant lodged a devolution minute. This was to the effect that the indictment should be dismissed against him as he would not receive a fair trial in terms of Article 6(3)(b),(c) and (d) of the European Convention on Human Rights, if sanction for the employment of junior counsel was not given. The basis of the minute was that the case was a complicated one, raising a number of legal issues; that there was a large amount of documentary and label productions, and that the case was liable to take a substantial amount of time. At the continued first diet on 15, 17 and 18 January 2008 the sheriff in Glasgow refused the minute but granted leave to appeal to this Court. The remaining appellants followed suit. After sundry procedure, the case came out for a procedural hearing on 27 August 2008 when it was suggested that the appropriate course for the appellants to take in the face of the decision to refuse sanction for junior counsel was to take a judicial review. The appellants then considered their position but all have subsequently intimated to the court that they did not intend to challenge the Board's decision by that route. A full hearing of the appeals against the sheriff's refusal to grant the devolution minutes was then instructed.
[3] At the hearing before this Court the fifth and sixth appellants abandoned their appeal, but the remaining appellants sought to have the sheriff's decision reversed. Submissions were made by counsel for the second appellant, and adopted by the remaining appellants. As matters appropriate to a judicial review of the Scottish Legal Aid Board's decision were not relevant to our consideration, it was accepted that the only live issue before the Court was whether in general terms the appellants could demonstrate that they would not get a fair trial because of the refusal by the Board to sanction the employment of junior counsel. The grounds of appeal, read short, were that in terms of Article 6(1) of the European Convention on Human Rights, everyone charged with a criminal offence has a right to a fair trial; and that Article 6(3) provides certain additional minimum rights, including (d) the right to adequate time and facilities for the preparation of the defence and (c) the right to defend oneself, with the proviso that if sufficient funds are not available to pay for legal assistance, then it was to be given free if the interests of justice so required. The appellants maintained that these rights had been violated by the refusal by the Board to sanction the employment of junior counsel.
[4] Counsel for the second appellant before this Court...
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The Attorney General's Reference
...No. 32238/04. 4 Application No. 31541/96. 5 See Quaranta v Switzerland Application No. 12744/87 at [33]–[34]. 6 Ibid at [35]. 7 [2009] HCJAC 107. 8 Ibid at 9 SVGMCRAP2014/0009 (delivered 3rd August 2017, unreported). 10 DOMHCVAP2006/001 (delivered 22nd September 2008, unreported). 11 SLUHCV......