Procurator Fisacl, Fort William V. Norman Mclean And Peter Mclean
| Jurisdiction | Scotland |
| Judge | Lord Prosser,Lord Milligan,Lord Morison |
| Court | High Court of Justiciary |
| Date | 04 May 2000 |
| Docket Number | 2518/99 |
| Published date | 28 June 2000 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Prosser Lord Milligan Lord Morison | Appeal No: 2518/99 2517/99 OPINION OF THE COURT delivered by LORD PROSSER in NOTE OF APPEAL TO COMPETENCY and RELEVANCY under section 174(1) of the Criminal Procedure (Scotland) Act 1995 by PROCURATOR FISCAL, Fort William Appellant; against NORMAN McLEAN and PETER McLEAN Respondents: _______ |
Appellant: Menzies, Q.C., A.D., Di Rollo, ; Crown Agent:
P. Cullen, Q.C., Crawford for Lord Advocate
Respondents: Stacey, Q.C., Collins; J. Friel & Co.: Bovey, Q.C., Devlin; G. Sweeney & Co.
15 June 2000
[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, on MFV "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 section 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 as having overall responsibility for the prosecution, explained that 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 subsection (3), subsection (2) does not apply to certain acts of the Lord Advocate, but subsection (3) does not affect the application of subsection (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 Service in Scotland. That remains the position of the Crown in this appeal. It was accepted that the continuation of the prosecution of the respondents would constitute an "act" of the Lord Advocate for the purposes of section 57(2) of the Scotland Act 1998. The fundamental question is whether that act, of continuing with the prosecution, is incompatible with any of "the Convention rights". It is accepted that by virtue of section 126(1) of the Scotland Act 1998, and section 1(1) of the Human Rights Act 1998, the Convention rights include the rights set out in Article 6 of the European Convention on Human Rights. In upholding the pleas in bar of trial advanced by the respondents, the Sheriff has held that the act of the Lord Advocate in continuing with their prosecution is an act incompatible with certain of the rights set out in Article 6.
[4]Article 6 is in the following terms:
"Article 6
Right to a fair trial
1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2.Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3.Everyone charged with a criminal offence has the following minimum rights:
(a)to be informed promptly, in a language which he understands and in
detail, of the nature and cause of the accusation against him;
(b)to have adequate time and facilities for the preparation of his defence;
(c)to defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d)to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e)to have the free assistance of an interpreter if he cannot understand or
speak the language used in court."
[5]The provisions of Article 6 which lie at the heart of the present proceedings are heads (b) and (c) of paragraph 3, although head (d) of the paragraph was also said to be relevant. And while reference was made to certain specialities which arise or may arise in relation to the defence of these respondents, the main issue is a very general one, affecting all criminal prosecutions upon summary complaint where an accused person has legal aid, and the amounts payable to his solicitor are regulated by the Criminal Legal Aid (Fixed Payments)(Scotland) Regulations 1999 (S.I. 1999/491). These regulations came into force on 1 April 1999. They apply only in respect of "relevant criminal legal aid", which is defined as meaning "criminal legal aid provided by a solicitor in relation to summary proceedings other than excluded proceedings", subject to certain provisions as to the date when such legal aid is first made available or granted. The categories of proceedings which are defined as "excluded proceedings" are somewhat special and have no real bearing on the contentions in the present case.
[6]Regulation 4 of the 1999 Regulations makes provision for "fixed payments allowable to solicitors". It provides, inter alia, as follows:
"(1)There shall be made to a solicitor who provides relevant criminal legal aid in summary proceedings, in respect of the professional services provided by him and the outlays specified in paragraph (2) below, and in accordance with the provisions of this regulation, the fixed payments specified in Schedule 1.
(2)The outlays specified in this paragraph are all outlays in connection with -
(a)the taking, drawing, framing and perusal of precognitions;
(b)the undertaking by another solicitor of any part of the works; and
(c)photocopying."
Paragraphs (3) to (8) of the Regulation make a number of provisions dealing with particular circumstances. It is worth noting that the reference to summary proceedings in paragraph (1) is a reference to proceedings on a single summary complaint or on complaints which arise out of the same incident; that where a solicitor acts for more than one assisted person, he is paid substantially reduced percentages of the fixed payments in respect of all but the first; and that where the Scottish Legal Aid Board grants an application for a change of solicitor there is to be paid to each of the solicitors who act in the relevant proceedings "an equal part of the total amount payable in respect of those proceedings by virtue of paragraph (1)" - the provisions for reduced percentages not applying to the calculation of that total amount.
[7]Schedule 1 specifies nine different categories of work. It also specifies three different categories of court. For each category of court it specifies a fixed payment for each category of work. We are not...
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