Zen Butt+barry Duncan V. Procurtor Fiscal, Dundee
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon,Lord Philip,Lord Carloway |
| Judgment Date | 2012 |
| Neutral Citation | [2012] HCJAC 107 |
| Published date | 23 August 2012 |
| Docket Number | XJ327-8/12; |
| Date | 23 August 2012 |
| Court | High Court of Justiciary |
| Year | 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Carloway Lord Mackay of Drumadoon Lord Philip | [2012] HCJAC 107 Appeal Nos: XJ327-8/12; XJ320/12 OPINION OF THE COURT delivered by LORD CARLOWAY in the devolution references in causae PROCURATOR FISCAL, DUNDEE against ZEN RIAZ BUTT and BARRY DUNCAN Minuters: _______ |
Minuters: Thornton; Bruce Short, Dundee
Scottish Ministers (including the Lord Advocate): Sheldon; Scottish Government Legal Directorate
23 August 2012
1 Procedural History
[1] On 7 July 2009, at the Justice of the Peace Court in Dundee, Barry Duncan pled guilty to using a car without insurance on 27 February 2009 in an ASDA car park, Dundee, contrary to section 143 of the Road Traffic Act 1988. On 31 July 2009 he was fined £250, payable in instalments of £5 per fortnight. An enforcement order under section 226B of the Criminal Procedure (Scotland) Act 1995 was made in that regard. Mr Duncan had been represented by a law agent at each diet.
[2] Mr Duncan did not pay the instalments as scheduled. He was cited to appear at court on 15 March 2011 for "enquiry" in terms of section 216 of the 1995 Act. He did not appear and a warrant was issued for his arrest in order to secure his attendance for the purpose of that enquiry. He appeared on 18 March 2011, when the instalment rate was varied and, for some reason, the instalments deferred for a period of about six months. Again, Mr Duncan was represented by a law agent at this diet.
[3] Meantime, on 2 June 2011, at the same court, Zen Butt pled guilty to charges on two complaints. The first, in terms of the date of the offence, libelled a contravention of section 27(1)(b) of the Road Vehicles (Construction and Use) Regulations 1986 by using a car with an under-inflated tyre in Dundee on 22 December 2010. The second was to using a car without a test certificate, contrary to section 47(1) of the Road Traffic Act 1988, on 26 December 2010 at a different location in Dundee. On 16 June 2011, he was fined £100 on the first complaint, payable at £10 per fortnight, and £70 on the second, payable at the same rate. Enforcement notices were issued in that respect. At each diet Mr Butt had been represented by a law agent.
[4] Mr Butt did not pay the fines as scheduled. On 12 October 2011, he was personally cited to attend the Court on 22 November 2011. He did not attend and, on the latter date, a warrant was issued by the Court for his arrest. As chance would have it, Mr Duncan had also failed to pay his instalments and to appear in response to a citation to attend for enquiry on 29 November 2011. A warrant to arrest him was also granted.
[5] On 7 December 2011 both Mr Duncan and Mr Butt appeared from custody. They were represented by the same agent and the two cases effectively became conjoined procedurally. The minutes record that there was an enquiry into the reasons for non-payment of the fines, but the cases were continued to 14 December 2011 to enable the agent to lodge a devolution minute. On 14 December 2011, when both were again represented, the cases were continued again "for the Lord Advocate to consider the merits of the case (Devolution Minute lodged)". A further continuation was granted on 11 January 2012, when the cases were appointed for a hearing on the Devolution Minute. Yet another continuation was granted on 30 January 2012, as the agent requested a reference of the issue to the High Court.
[6] It is worthy of remark at this stage that the procurator fiscal plays no part in what are termed means enquiry proceedings. Neither he, nor any representative of the Crown, had appeared at any diets after the imposition of the fines. They would have had no obvious interest to do so. On 13 February 2012, however, when Mr Duncan and Mr Butt were represented once more by the same law agent, a law agent for the Lord Advocate did appear and was granted a continuation of the cases until 12 March 2012 for references to the High Court be adjusted. The final appearance, meantime, was on 14 March, by which time references had been adjusted.
2. The Devolution Minutes and the References
[7] The Devolution Minutes appear to be in identical terms and purport to raise a devolution issue "within the meaning of Schedule 6 to the Scotland Act 1988". Although it is ultimately clear that the minuters are alleging that their Article 6 rights have been breached, it takes a little effort to locate what the complaint actually is. It is said to be that "there was no provision in place for the minuter to receive state-funded legal representation" at the means enquiry court. There are statements about the deprivation of the minuters' liberty in advance of the means enquiry court, but the complaint appears to relate solely to the lack of a scheme funding representation at the hearing itself. The minutes thus state:
"VII ...Given that such paid representation is not available under the Scottish Legal Aid Board regulations, the state (emphasis added) is in breach of its obligations to the Minuter under the European Convention of (sic) Human Rights".
The minutes maintain that the minuters, who could not afford to pay for representation, ought to have been represented by:
"XIII ...a meaningful solicitor with whom the individual has a solicitor-client relationship".
The violation alleged is one of Article 6(3)(c) in conjunction with 6(1). However, no remedy is sought other than a bare declarator of breach by "the state" (see prayer para (2)).
[8] The Justice of the Peace records that, as at 30 January 2012, all parties were agreed that the matter should be referred to the High Court. The "main issues" were described as follows:
"(vii) The Minuter contends that:
(1) the failure, by the Scottish Ministers, to make provision for state funded legal representation where the Minuter appears from custody at a means enquiry hearing, having been deprived of his liberty following his arrest on an apprehension warrant, is a breach of the Minuter's Article 6 rights.
(2) not only does the state have an obligation to provide him with state funded legal representation for his means enquiry hearing, this should be "meaningful" representation, which the Minuter submits means a solicitor with whom he had a previous relationship, a solicitor of his choice.
(3) the Minuter's full contentions are contained with the Minute of Notice of Intention to raise a Devolution Issue, the terms of which are repeated herein brevitatis causa.
(viii) The Scottish Ministers contend that:
(1) the provision of legal aid is not necessary to effectively participate in means enquiry hearings.
(2) advice and assistance could be provided by a solicitor in respect of preparation for such hearings.
(3) the Scottish Ministers have the power to make a Determination under section 4(2)(c) of the Legal Aid (Scotland) Act 1986".
The questions referred are:
(ix) Whether Article 6... requires that the Minuter be provided with state-funded legal representation where he is appearing from custody at a means inquiry hearing, having been deprived of his liberty following his arrest on an apprehension warrant.
(x) If so, whether the Minuter's Article 6 rights include a requirement that he be entitled to select a (state-funded) representative of his own choice to appear at such a hearing on his behalf".
3. The Court's Concern and Submissions
[9] In advance of the hearing of the appeal, the court notified its...
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