Wf For Judicial Review Of A Decision Of The Scottish Ministers To Refuse To Make A Determination For Legal Aid Under Section 4(2)(c) Of The Legal Aid (scotland) Act 1986
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2016] CSOH 27 |
| Year | 2016 |
| Published date | 12 February 2016 |
| Date | 09 February 2016 |
| Court | Court of Session |
| Docket Number | P1055/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 27
P1055/15
OPINION OF LORD GLENNIE
In the cause
WF
Petitioner;
for judicial review of a decision of the Scottish Ministers to refuse to make a determination for legal aid under section 4(2)(c) of the Legal Aid (Scotland) Act 1986
Petitioner: Bain QC, C Mitchell; Drummond Miller LLP
Respondents: C O’Neill, solicitor advocate; Scottish Government Legal Directorate
Interveners (Rape Crisis Scotland): Kelly, Ewing, solicitor advocates; Balfour + Manson LLP
9 February 2016
Introduction
[1] This petition for judicial review arises in respect of criminal proceedings against an accused (“the accused”) brought on indictment in the sheriff court in September 2014. The petitioner, a complainer in the criminal proceedings, has applied for legal aid so as to enable her to be represented at a hearing before the sheriff of the accused’s petition for recovery of her medical records. She argues that recovery of such documents would infringe her Convention rights to private and family life. The Scottish Ministers have refused to make legal aid available for this purpose, arguing inter alia that she has no right to be heard or represented in front of the sheriff on that application.
[2] In this petition the petitioner seeks reduction of that decision. She also seeks declarator that the failure of the Scottish Ministers to promulgate such legislation as may be required to enable her to be represented before the sheriff in opposition to the application for recovery of her medical records is incompatible with, and a breach of, her Convention rights under Article 8 and/or Articles 6 and 14.
Outline facts
[3] There are seven charges on the indictment, all containing allegations of assault and domestic abuse in the period from 2008 to 2011. The petitioner in these judicial review proceedings is the complainer and, no doubt, the principal witness in respect of the first five charges. To avoid confusion which might arise from the fact that this petition for judicial review involves consideration of a separate petition procedure in the sheriff court, in which the present petitioner is an interested party, I shall refer to her throughout this Opinion as “the complainer”.
[4] To assist with his defence to the charges brought against him, the accused seeks to recover from the NHS and other havers all medical, psychiatric and psychological records relating to the complainer from 2007 to 2014. In November 2014 the sheriff allowed his petition for commission and diligence – brought in terms of section 301A of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) – to be received and authorised intimation thereof “on all interested parties”. The petition sought an order for intimation on the Lord Advocate, the Procurator Fiscal, responsible officers within the NHS and other havers, and the complainer. The sheriff’s order must be taken as authorising intimation to all of those parties. At all events, it is clear that the petition was in fact intimated on all of those parties, including the complainer. The sheriff assigned a date in December 2014 for a hearing on that petition.
[5] Following intimation of the petition on her, the complainer sought legal advice. An application was made on her behalf to the Scottish Legal Aid Board (“SLAB”) for legal aid to enable her to be represented in the petition proceedings before the sheriff in opposition to the petition for recovery of her medical records based on her right to respect for her private and family life under Article 8 ECHR. SLAB refused to grant legal aid on the basis that there was no provision in the legal aid legislation and regulations for legal aid to be granted for such proceedings. That refusal on that ground is not challenged.
[6] Thereafter, in May 2015, the complainer applied to the Scottish Ministers in terms of section 4(2)(c) of the Legal Aid (Scotland) Act 1986 (“the 1986 Act”), which gives the Scottish Ministers the power to direct the grant of legal aid in circumstances not otherwise covered by the rules. That application was refused. By letter dated July 2015 the Scottish Ministers noted that, before any hearing took place before the sheriff, a preliminary issue required to be considered “as to whether your client has a locus to appear in relation to the specification of documents”. The letter went on to say that the Scottish Ministers did not consider that it was appropriate to make a payment out of the Legal Aid Fund, and gave these reasons for that decision:
“The court must be satisfied that the release of documents will serve a proper purpose and that it is in the interests of justice to grant an order for their release (McLeod v HM Advocate 1998 JC 67 at 80). The court requires to be satisfied that the material sought will be of material assistance in these circumstances. In considering this matter, the court will require to balance the interests of the accused with the right of the complainer to respect for private life – DM v HM Advocate [2015] HCJAC 4. The court will require to take account of relevant ECHR case law. For example, Z v Finland (case 22009/93), judgment of 25 February 1997 in relation to the process for taking account of the interests of the person whose article 8 rights may be affected by a disclosure of medical records.
Scottish Ministers consider that the decision-making process in these types of cases enables the views of complainer or [sic] to be taken into account sufficiently and for their interest to be protected for the purposes of ECHR, including article 8, without the need for them to participate and be represented at the hearing to determine the matter. Scottish Ministers also consider that this applies in the specific circumstances of your client’s case.
In light of this consideration a determination to the Scottish Legal Aid Board to make legal aid available will not be provided.”
That is the decision which is challenged in these judicial review proceedings.
[7] It is apparent from that letter that the refusal of legal aid is based upon the proposition that the complainer has no right to appear or be represented in the petition proceedings before the sheriff and does not need to appear or be represented in order for her Article 8 rights to be adequately protected. It is probably for that reason that no consideration appears to have been given to the question of the complainer’s financial means or of her ability to appear and argue her case in person if she had a right to attend but was not able to obtain legal representation. I was shown documents which were submitted to the Scottish Ministers in support of the application for legal aid, including (a) a certificate from a medical practitioner stating that the complainer suffers from recurrent depression and should avoid stressful situations and (b) a note by counsel, based in part on her own observations of the complainer when they met outside court at a calling of the petition, speaking to the complainer’s vulnerability, her lack of understanding of the legal process and of how to assert her Article 8 rights, and her inability to speak on her own behalf in a formal court setting. The letter of July 2015 makes no mention of these matters.
[8] The petition for recovery of the documents has called before the sheriff on at least 13 occasions. The next hearing is due to take place early in February 2016. The trial itself was originally fixed for October 2014 but the trial diet has been deserted more than once. It is presently due to take place late in February 2016, about two weeks after the hearing on the petition for recovery of documents. Whether it will in fact take place then must be open to doubt.
The main issue in the present proceedings
[9] Although the decision under review concerns the refusal of legal aid, the reasons for that refusal raise the issue of whether the complainer has any locus to appear and be represented in the sheriff court petition procedure. That was the main issue focused in the submissions before me. I therefore propose to deal with that issue first before going on to consider (a) whether the determination not to grant legal aid should be reduced and (b) the more general question of whether legal aid should now be granted.
Submissions
[10] Ms Bain QC appeared for the complainer. Ms O’Neill appeared for the Scottish Ministers. Pursuant to leave granted by the court on an earlier occasion, Rape Crisis Scotland participated as Interveners. They did not appear by counsel but lodged detailed written submissions to which both parties made reference in the course of their own submissions. I am grateful to them all for their assistance.
Complainer
[11] Ms Bain’s submissions started with the uncontroversial proposition that the complainer’s Article 8 rights (right to respect for private and family life) were engaged by the petition for recovery of her medical records. Medical records are highly sensitive and the person to whom they relate is entitled to seek to protect their privacy. She referred to Murdoch and Reed, Human Rights Law in Scotland, 3rd Edition, at para 6.116. It followed, she submitted, that the complainer was entitled to seek to vindicate those rights by appearing in court in opposition to their production. She referred to English authority in support of the proposition that a person whose rights were potentially affected in this way has a right to be heard: R(B) v Crown Court at Stafford [2007] 1 WLR 1524 and M v Director of Legal Aid Casework [2014] EWHC 1354 (Admin). The right to be heard did not depend upon the existence of a statutory provision or rule of court entitling the complainer to appear; it was inherent in her Article 8 rights which would be breached if she were not given the opportunity to be heard. The case of X and Y v The Netherlands 1985 EHRR 235 showed that Article 8 might in certain circumstances require the state to adopt measures designed to...
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