McLean and Another v Buchanan and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Nicholls of Birkenhead,Lord Hope of Craighead,Lord Clyde,Lord Hobhouse of Woodborough,Lord Millett |
| Judgment Date | 24 May 2001 |
| Neutral Citation | [2001] UKPC D3 |
| Court | Privy Council |
| Docket Number | No 1,DRA. No. 4 of 2000 |
| Date | 24 May 2001 |
[2001] UKPC D3
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Clyde
Lord Hobhouse of Woodborough
Lord Millett
Privy Council
I agree with my noble and learned friends Lord Hope of Craighead and Lord Clyde that, for the reasons they give, these appeals should be dismissed. The relevant obligation of the State under article 6.3(c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms is to provide a defendant with effective legal assistance. Currently, both appellants are represented by competent solicitors. There is no suggestion that, so far, either appellant has lacked for proper, effective legal assistance. Nor has either solicitor stated that he intends to withdraw from the case. Thus, as matters stand, there is no good reason for believing that, if the pending prosecutions continue, the appellants will lack proper and effective legal assistance and, for that reason, they will not receive a fair trial. As Lord Hope has indicated, there are respects in which these solicitors, remunerated in accordance with the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, (SI 1999 No 491) will not receive reasonable remuneration for the work done by them in this case. This cannot be regarded as a satisfactory state of affairs. But this does not, of itself, afford a sufficient ground for supposing that, if the solicitors continue to act, they may fail properly to discharge their professional responsibilities towards their clients.
Different considerations would arise if the solicitors were to withdraw, and the appellants were unable to find replacement solicitors because of the inflexibility of the 1999 fixed payment regulations. But at present this is no more than a speculative possibility. I will therefore say nothing further about the position which might then arise, especially as the Convention Rights (Compliance) (Scotland) Bill is currently before the Scottish Parliament. Clause 7 provides that the Scottish Ministers may make regulations for the purpose of enabling the Scottish Legal Aid Board to ensure that a person to whom fixed payment criminal legal assistance is provided is not, by reason of the amount of the fixed payments, deprived of the right to a fair trial. Clause 8 provides that these regulations may operate retrospectively, and apply to pending proceedings as well as proceedings commencing after the regulations are made or come into force.
This is an appeal under paragraph 13(a) of Schedule 6 to the Scotland Act 1998, with leave of the High Court of Justiciary, against the determination of two devolution issues by that court. It is concerned with the effect of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 (SI 1999/491) on the appellants' right to a fair trial under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The issues are described in the appellants' statement of facts and issues in these terms:
"1. Whether the act of the Lord Advocate in continuing to prosecute the appellants is unlawful by virtue of section 57(2) of the Scotland Act 1998, being incompatible with the rights accorded to them under article 6 of the Convention.
2. Whether the failure of the Scottish Executive to repeal or amend the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 (SI 1999/491) is unlawful by virtue of section 57(2) of the Scotland Act 1998, being incompatible with article 6 of the Convention."
The parties to the appeal are agreed that these two issues disclose devolution issues within the meaning of paragraph 1 of Schedule 6 to the 1998 Act, for the reasons explained in Brown v Stott [2001] 2 WLR 817.
Background
The appellants are both resident in Mallaig. On 28 April 1999 they were charged on summary complaint in the Sheriff Court at Fort William that on 21 April 1999 on the MFV "Fiona Thomsen", New Pier, Mallaig, District of Lochaber, while acting with others whose identities were unknown, they did (1) assault Jose Sandos, punch and kick him repeatedly on the head and body and strike him repeatedly on the head with a pool cue all to his injury and (2) conduct themselves in a disorderly manner, shout and swear at Jose Sandos and commit a breach of the peace. At the end of each charge it was stated that it would be proved in terms of section 96 of the Crime and Disorder Act 1998 that the offence was racially aggravated. The effect of those statements was that the appellants were liable in the event of conviction to a sentence of imprisonment of up to six months.
The appellants pled not guilty at the first diet, and the case was adjourned for trial. They applied for and were granted criminal legal aid under section 24 of the Legal Aid (Scotland) Act 1986. The certificates which were granted to them by the Scottish Legal Aid Board were effective from 5 and 10 May 1999 respectively. A diet of trial was then fixed for 29 July 1999 in the Sheriff Court at Fort William. They instructed two firms of solicitors whose offices are in Glasgow to conduct their defence. The solicitors, who carry on business as sole practitioners, are both eligible to provide criminal legal assistance. The payments to which they are entitled for conducting summary proceedings in the Sheriff Court at Fort William are those described in the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999.
On 29 July 1999 the solicitors lodged pleas in bar of trial on the appellants' behalf. They founded upon minutes which they had lodged under the Act of Adjournal (Devolution Issues Rules) 1999 (SI 1999/1346) raising the two issues previously mentioned as devolution issues under and in terms of section 98 and Schedule 6 to the Scotland Act 1998. Leave had to be given under section 144(5) of the Criminal Procedure (Scotland) Act 1995 for the pleas in bar to be lodged at this stage, as they had not been stated at the first diet. Leave also had to be given for the pleas of not guilty to be withdrawn. After granting leave and hearing submissions on various dates in September and October 1999 the sheriff (Sheriff Colin McKay) continued the diet to 5 November 1999. On that date he sustained the pleas in bar of trial by each of the appellants and dismissed the complaints. He held that the imposition of a financial limit on the fees and outlays that would be paid to the solicitors under the 1999 Regulations produced an inequality of arms amounting to a breach of the appellants' right to a fair trial under article 6 of the Convention. He also held that the failure of the Scottish Executive to amend the regulations upon the coming into force of section 57(2) of the Scotland Act 1998 was incompatible with the appellants' Convention rights. He granted leave to appeal his decision to the High Court of Justiciary. The Scottish Legal Aid Board informed the solicitors by letters dated 22 December 1999 and 10 and 17 January 2000 that all the work in connection with the appeal, as well as that in the sheriff court, fell within the fixed payment provided by the 1999 Regulations.
On 15 June 2000 the High Court of Justiciary (Lords Prosser, Milligan and Morison) allowed the appeal, reversed the decision of the sheriff and remitted the case to him with a direction to fix a trial diet: Buchanan v McLean, 2000 JC 603. The opinion of the court was delivered by Lord Prosser. He said at pp 624-625 that it had not been asserted that there was a real risk of detriment in this particular case and that, while the 1999 Regulations might be unfair to solicitors in particular circumstances, he was not persuaded that every accused person was disadvantaged by the Regulations to such a degree that his legal assistance was not effective for the purposes of article 6(3)(c) of the Convention.
On 22 June 2000 the High Court granted leave to appeal to the Judicial Committee. An appeal to the Judicial Committee is a distinct proceeding for the purposes of Part IV of the Legal Aid (Scotland) Act 1986: see section 21(1)(c), inserted by SI 1999/1042. Their Lordships were informed that fresh legal aid certificates have been issued for the purposes of this appeal. The fees and outlays to which the solicitors are entitled under those certificates for these proceedings are not subject to the 1999 Regulations.
The Legal Aid Scheme
The Legal Aid (Scotland) Act 1986 provides that legal aid may be made available in criminal proceedings in two ways. The first is by way of advice and assistance under Part II of the Act. The second is by way of criminal legal aid under Part IV. Although this case is concerned with the provision of criminal legal aid, it should be noted that the provision of advice and assistance under Part II of the Act includes assistance by way of representation, known as ABWOR: see section 6(1). Regulation 6(1)(a) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 1997 (SI 1997/3070) provides that the assistance by way of representation which may be provided under Part II of the Act in relation to summary criminal proceedings under the Criminal Procedure (Scotland) Act 1995 shall be the representation of an accused who is not in custody:
"at any diet (other than a diet which has been preceded by a plea of not guilty) at which a plea to the competency or relevancy of the complaint or proceedings, or a plea in bar of trial, is tendered on his behalf, and thereafter until that plea has been determined by the court and any related appeal to the High Court of Justiciary under section 174(1) of the 1995 Act has been disposed of or...
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