McLean and Another v Buchanan and Another
| Jurisdiction | Scotland |
| Judgment Date | 15 June 2000 |
| Docket Number | No 73 |
| Date | 15 June 2000 |
| Court | High Court of Justiciary |
JC
Lord Prosser, Lord Milligan and Lord Morison
Procedure—Summary Procedure—Devolution issue—Right to fair trial—Equality of arms—Pannels granted legal aid on charges of assault and breach of the peace—Legal aid subject to fixed fee of £550 for preparation for and conduct of first 30 minutes of trial—Whether limit of legal aid rendered fair trial impossible—Whether appearance of fair trial precluded by legal aid limit—Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 (SI 1999 No 491), reg 4 and sched 1—European Convention on Human Rights, art 6(3)(b), (c) and (d)1
The pannels were charged on a summary complaint before the sheriff court at Fort William with assault and breach of the peace. They were granted legal aid which, in terms of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, was limited to £550 as remuneration for the pannels' solicitors in respect of their preparation for and conduct of the first 30 minutes of the pannels' trial before a “remote” sheriff court and in respect of specified outlays for that trial. The pannels lodged devolution minutes arguing that the continuation of the prosecution by the Crown was an act which was incompatible with their rights under art 6(3)(b), (c) and (d) of the European Convention on Human Rights. The sheriff (McKay) sustained the pannels' plea in bar of trial on the ground that the imposition of a limit upon the fees and outlays which would be paid to the pannels' solicitors, without any provision for review based upon a test of what was reasonably necessary in the conduct of their cases, produced an inequality of arms amounting to a breach of the pannels' right to a fair trial and, more specifically, a breach of the minimum right in art 6(3)(b) to have adequate time and facilities for the preparation of their defence. The procurator fiscal appealed. The pannels contended that while they could not identify any real risk of future detriment as a result of the fixed fee, they were nonetheless prejudiced or disadvantaged because as matters stood (and would continue to obtain), any accused person in their position had to be seen as so disadvantaged that the whole trial process had to be regarded as tainted by a flaw in their legal assistance resulting in a breach of art 6(3)(c) with consequential non-compliance with art 6(3)(b).
Held (1) that there was no basis in principle or in Scots law, or in the European jurisprudence, for regarding it as incompetent or inappropriate for a pannel to found upon an alleged breach of any of the rights conferred by art 6 of the European Convention, in the same way as a pannel might found upon alleged oppression as the ground of a plea in bar of trial (pp 621H–622A); (2) that while it might indeed be that where a solicitor had accepted instructions in a summary prosecution to be remunerated under the 1999 Regulations, his client could point to particular facts and circumstances and say with justification that his legal assistance was not effective for the purposes of art 6(3)(c), the pannels' argument in its generalised form was unpersuasive because it was unacceptably speculative (pp 624E–F, H); and (3) that, accordingly, the plea in bar of trial ought to have been repelled by the sheriff (pp 625G); and appealallowed.
Norman McLean and Peter McLean were charged in the sheriffdom of North Strathclyde at Fort William on a summary complaint at the instance of D Buchanan, procurator fiscal there, the libel of which set forth assault and breach of the peace allegedly committed on 21 April 1999.
The pannels lodged minutes in terms of ch 40 of the Act of Adjournal (Criminal Procedure Rules) 1996, as amended, and pleaded in bar of trial that the procurator fiscal's act of continuing with their prosecution was an act which was incompatible with their rights under art 6(3)(b), (c) and (d) of the European Convention on Human Rights.
On 5 November 1999 the sheriff (C G McKay) sustained the pleas in bar of trial and dismissed the complaint but ex proprio motu granted leave to the procurator fiscal to appeal.
The procurator fiscal thereafter appealed to the High Court of Justiciary by note of appeal in terms of sec 174(1) of the Criminal Procedure (Scotland) Act 1995.
Cases referred to:
Advocate (HM) v Little 1999 SLT 1145
Artico v ItalyHRC Series A No 37 (1980); 3 EHRR 1
Bonisch v AustriaHRC Series A No 92 (1985); 9 EHRR 191
Borgers v BelgiumHRC Series A No 214 (1991); 15 EHRR 92
Bulut v Austria (Application No 17358/90) Reports of Judgments and Decisions 1996–II, vol 5
Clancy v CairdSC 2000 SC 441
De Cubber v BelgiumHRC Series A No 86 (1984); 7 EHRR 236
De Haan v Netherlands Application No 22839/93 (1997); 26 EHRR 417
Dombo Beheer BV v Netherlands Series A No 274–A (1993); 18 EHRR 213
Foucher v France Application No 22209/93 (1997); 25 EHRR 234
Gayne v VannetSC 2000 JC 51
Imbrioscia v SwitzerlandHRC Series A No 275 (1993); 17 EHRR 441
M v United Kingdom Application No 9728/82 (1982); 6 EHRR 310
McFadyen v AnnanSC 1992 JC 53
McNab v HM AdvocateSC 2000 JC 80
Montgomery v HM Advocate 16 November 1999, unreported, Criminal Appeal Court
Mowbray v CroweSC 1993 JC 212
Pakelli v GermanyHRC Series A No 64 (1983); 6 EHRR 1
S v SwitzerlandHRC Series A No 220 (1991); 14 EHRR 670
Sharp v Council of the Law Society of ScotlandSC 1984 SC 129
Stuurman v HM AdvocateSC 1980 JC 111
Textbooks, etc referred to:
Law Society of Scotland, Code of Conduct for Criminal Work (see Renton and Brown, Criminal Procedure Legislation, Division C)
Law Society of Scotland, Code of Conduct for Scottish Solicitors, para 5
Report of (Guthrie) Committee on Legal Aid in Criminal Proceedings (Cmnd 1015) (1960), paras 49–59
The cause called before the High Court of Justiciary, comprising Lord Prosser, Lord Milligan and Lord Morison, for a hearing on 2, 3 and 4 May 2000.
At advising, on 15 June 2000, the opinion of the court was delivered by Lord Prosser.
Opinion of the Court—[1] In terms of a complaint at the instance of the appellant, who is the procurator fiscal at Fort William, the respondents Norman McLean and Peter McLean were charged with two offences. Both offences were charged as having been committed by both respondents, while acting along with others whose identities were unknown. The first charge was that on 21 April 1999, onMFV Fiona Thomsen, New Pier, Mallaig, they assaulted Jose Sandos to his injury, the respondents having previously evinced malice and ill-will. The second charge was that on the same date at New Pier, Mallaig, they conducted themselves in a disorderly manner, shouted and swore at Jose Sandos and committed a breach of the peace. In terms of each charge, it is stated that it will be proved in terms of sec 96 of the Crime and Disorder Act 1998 that the offence was racially aggravated. After sundry procedure, the details of which are not now in point, pleas in bar of trial were entered on behalf of each respondent, founded upon the terms of minutes lodged under the Devolution Issues Rules. After hearing submissions on dates in September and October 1999, the sheriff continued the diet to 5 November, to allow him to consider submissions. On 5 November, he sustained the plea in bar of trial taken by each of the respondents, and dismissed the complaint. He granted leave to appeal ex proprio motu, and by note of appeal dated 8 November 1999 the appellant appealed.
[2] At the hearings before the sheriff on the minutes, the two respondents were separately represented. The Crown was represented by the appellant, but in addition the Lord Advocate was represented by counsel, who made submissions on his behalf. The Advocate General for Scotland did not enter appearance. Before this court, the Advocate-depute representing the appellant and the Lord Advocate had also instructed separate counsel, in relation to those aspects of the appeal which affected the Lord Advocate's non-prosecution functions. No objection was taken to the Lord Advocate being thus separately represented in respect of different functions; but in the event, counsel representing him in respect of other matters made no substantive submissions, and it is not necessary for us to comment on the form of representation which was adopted. The two respondents were again separately represented by counsel; but it is to be noted that the minutes lodged by them are in almost identical terms, and that while there were differences between the separate submissions advanced by their solicitors before the sheriff, which went somewhat further than contemplated in terms of the minutes, without objection, the sheriff's reasoning and decision are equally applicable to the two respondents. The submissions of the Advocate-depute in this court were likewise equally applicable to each of the two respondents; and while the submissions made by counsel for each of the two respondents naturally took somewhat different forms, the issues are the same in respect of each of them, and such differences as there were in the contentions advanced by counsel do not make it necessary for us to distinguish between the two respondents in considering and disposing of the appeal.
[3] On certain fundamental matters the parties are not at issue. Section 57(2) of the Scotland Act 1998 provides that “A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law”. By virtue of subsec (3), subsec (2) does not apply to certain acts of the Lord Advocate, but subsec (3) does not affect the application of subsec (2) in the circumstances with which we are here concerned. Before the sheriff, the appellant accepted that for the purpose of devolution issues the procurator fiscal acts with the authority of and on the instructions of the Lord Advocate, in his capacity as head of the prosecution...
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