Petition Of George Mcgeoch For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2013] CSOH 6 |
| Year | 2013 |
| Published date | 15 January 2013 |
| Date | 15 January 2013 |
| Court | Court of Session |
| Docket Number | P483/12 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 6 | |
| P483/12 | OPINION OF LORD BRODIE in the Petition of GEORGE McGEOCH Petitioner; for Judicial Review of decisions of the Scottish Legal Aid Board ________________ |
Petitioner: O'Neill QC, Pirie; Balfour & Manson LLP (For Taylor & Kelly, Coatbridge)
Respondent: S Wolffe QC; Scottish Legal Aid Board
15 January 2013
Introduction
[1] The petitioner is a United Kingdom national and a citizen of the European Union. He is currently serving a sentence of life imprisonment in HM Prison, Low Moss, which is in Scotland. The punishment part of the petitioner's sentence is 13 years commencing on 7 October 1998. The petitioner has a further consecutive sentence to serve in connection with another offence. The earliest date on which the petitioner might be considered for parole is July 2015.
[2] The respondent is the Scottish Legal Aid Board. The respondent is constituted in terms of section 1 of the Legal Aid (Scotland) Act 1986 ("the Act"). In the Act it is referred to as "the Board". Its general functions are to secure that legal aid and advice and assistance are available in accordance with the Act and to administer the Scottish Legal Aid Fund.
[3] By way of petition for judicial review the petitioner seeks orders: (a) for declarator that certain decisions made by the respondent in respect of applications made by the petitioner for grants to be paid from the Scottish Legal Aid Fund by way of advice and assistance and civil legal aid were unlawful because (i) they were made in implementation of an undisclosed policy by the respondent contrary to the intent and purposes of the jurisdiction and powers conferred on the respondent by the Act, (ii) separately because each of these decisions was vitiated by error of law, (iii) separately because each of these decisions contravened the petitioner's EU law right to legal aid as guaranteed and protected under Article 47 (3) of the EU Charter of Fundamental Rights, and (iv) because each of these decisions was irrational; (b) for reduction of these decisions; (c) for payment to the petitioner by the respondent of the sum of £10,000 by way of vindicatory damages; (d) for the expenses of the application; and (e) for such other relief or remedy or orders as the Court considers just and appropriate.
The relevant provisions relating to civil legal aid and advice and assistance
[4] The Act makes provision, inter alia, for making available civil legal aid, and advice and assistance. Its provisions include provisions conferring power to make regulations in relation to civil legal aid and advice and assistance. The Legal Aid and Advice (Scotland) (Consolidation and Amendment) Regulations 1996, SI 1996/2447 ("the 1996 Regulations") and the Civil Legal Aid (Scotland) Regulations 2002, SSI 2002/494 ("the 2002 Regulations")were made in terms of these powers.
[5] Part III of the Act makes provision for making available civil legal aid. In terms of section 13 of the Act "civil legal aid" means representation by a solicitor and, where appropriate, by counsel in proceedings, inter alia, before the Court of Session and the United Kingdom Supreme Court. It includes all such assistance as is usually given by a solicitor or counsel in the steps preliminary to or incidental to such proceedings. A person will be eligible for civil legal aid if he meets the financial conditions contained in section 15 of the Act. Section 14 (1) of the Act provides:
"Subject to section 15 of this Act and to subsection (2) below, civil legal aid shall be available to a person if, on an application made to the Board-
(a the Board is satisfied that he has a probabilis causa litigandi; and
(b) it appears to the Board that it is reasonable in the particular circumstances of the case that he should receive legal aid. "
In terms of regulation 4 (1) of the 2002 Regulations, for the purposes of civil legal aid proceedings in the Court of Session before a Lord Ordinary at first instance are distinct from proceedings (albeit in the same cause or petition) before the Inner House on appeal.
[6] As appears from section 14 (1) of the Act, in order for civil legal aid to be made available, a person must make an application which is sufficient in its terms to allow the respondent to ascertain his eligibility by reference to the financial conditions and to allow the respondent to be satisfied as to his having probabilis causa litigandi and that the particular circumstances of his case make it reasonable that he should receive legal aid. Provision for the making of applications and their determination is made in parts II and IV of the 2002 Regulations. Drafting an application is likely to require the services of a solicitor.
[7] The services of a solicitor may be obtained as advice and assistance, as provided for by part II of the Act. In terms of section 6, "advice and assistance" includes oral or written advice provided to a person by a solicitor or where appropriate by counsel on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking the advice and as to any steps which that person might appropriately take having regard to the application of Scots law to those circumstances. No point is taken here as to what might be the ambit of the expression "Scots law" (cf Donaldson v Scottish Legal Aid Board [2012] CSOH 176).
[8] Section 10 (3) of the Act provides a financial limit for the cost of advice and assistance. An increase in that limit may be authorised. In terms of regulation 12 (1) of the 1996 Regulations, where at any time it appears to a solicitor that the cost of giving the advice and assistance is likely to exceed the limit applicable under section 10 of the Act, he shall apply to the respondent for its approval to an increased limit, stating the reasons for the excess, the likely amount, and giving such other information as may enable the respondent to consider and determine that application. If it approves such an application the respondent shall authorise such increased limit as it thinks fit. It may require that the advice and assistance be subject to such conditions, and limited to such subject matter as it thinks fit. The respondent shall inform the solicitor of its decision in regard to any such application.
[9] Legal aid may be made available for certain sorts of specially urgent work which require to be undertaken before an application for civil legal aid has been determined. Legal aid for this purpose may be referred to as "special urgency cover". Provision is made for special urgency cover by regulation 18 of the 2002 Regulations which is, inter alia, in the following terms:
"Legal aid in matters of special urgency
18. - (1) The Board may make legal aid available for specially urgent work undertaken before an application is determined, if it is satisfied that at the time such work was undertaken there was probabilis causa litigandi and it appears to the Board that it is reasonable in the particular circumstances of the case that the applicant should receive legal aid, in either of the following circumstances:-
(a) where any step specified in paragraph (2) below has required to be taken as a matter of special urgency to protect the applicant's position; or
(b) in any other circumstances where the Board is satisfied on application that steps require to be taken as a matter of special urgency to protect the applicant's position.
(2) The steps referred to in paragraph (1) (a) above are-
...
(t) initiating or opposing appellate proceedings other than such proceedings in the House of Lords or Judicial Committee of the Privy Council;
...
(3) Where a solicitor undertakes work under paragraphs (1) (a) and (2) above, the solicitor shall, within 28 days of commencement of the work, both notify the Board of such commencement and, if an application for legal aid has not already been submitted, submit an application for legal aid; and failure to do so shall exclude that work from any legal aid that may be made available.
(4) Where the Board is satisfied in accordance with paragraph (1) (b) above that step require to be taken as a matter of special urgency to protect the applicant's position-
(a) the Board shall so certify and may specify that the steps to be taken shall be limited to such work, or such purposes, or such period, or be subject to such conditions, all as it shall consider appropriate in the circumstances; and
(b) the solicitor shall, if an application for legal aid has not already been submitted, submit an application for legal aid within 28 days of commencement of the urgent work and failure to do so shall exclude that work from any legal aid that may be made available.
...
(6) Where work is carried out by a solicitor in the circumstances described in paragraph (1), and an application for legal aid made in terms of section 14 of the Act is subsequently refused-
(a) section 4(2)(a) of the Act shall be modified so that there shall be paid out of the Fund-
(i) where the Board is satisfied as to the factors in paragraph (7), payments to meet such sums as the Board approves; or
(ii)where the Board is not satisfied as to the factors in paragraph (7), any contribution paid by, or expenses awarded to, a person for whom a solicitor has undertaken specially urgent work; and
(b) section 4(3)(b) of the Act shall be modified so that there shall be paid into the Fund any sum recovered under an award of a court or an agreement as to expenses in any proceedings in favour of the person for whom that work is carried out.
(7) The factors referred to in paragraph (6)(a) above are that the Board shall be satisfied that-
(a) the solicitor had reasonable grounds for believing, on the information available at the time the work was done, that the applicant would be eligible for legal aid in terms of section 15 of the Act; and
(b) the work was actually, necessarily and reasonably done, due...
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