Petition By William Frederick Ian Beggs For Judicial Review Of A Decision By The Scottish Legal Aid Board Dated 4 November 2015

CourtCourt of Session
JudgeLady Wise
Neutral Citation[2016] CSOH 90
Docket NumberP127/16
Date05 May 2016
Publication Date30 June 2016


[2016] CSOH 90



In the petition





Judicial Review of a decision by the Scottish Legal Aid Board dated 4 November 2015 to refuse an application by him for legal aid

Petitioner: K Campbell QC; Drummond Miller LLP

Respondents: Crawford QC; Scottish Legal Aid Board

5 May 2016

[1] This hearing came before me in respect of an application for permission to proceed under Rule of Court 58.7. The petitioner seeks review of a decision by the respondent, the Scottish Legal Aid Board, to refuse the grant of legal aid to support a proposed appeal to the UK Supreme Court. The decision against which the petitioner seeks legal aid to appeal to the UK Supreme Court is that of the Inner House in an appeal under section 56 of the Freedom of Information (Scotland) Act 2002[2014] CSIH 10. In essence the petitioner, who has been convicted of murder, continues to deny responsibility for the crime. He states that he has information to the effect that the deceased he was convicted of murdering was engaged in a sexual encounter with another man close to the point when he was last seen alive. He believes that those events were in part captured on CCTV located around Kilmarnock town centre, and that the police are in possession of that and undisclosed witness statements dealing with those events. Parts of the information requested by the petitioner were ultimately released to him but he appealed to the Inner House against a decision of the Scottish Information Commissioner to withhold the balance of the information from him. The Inner House was not persuaded that the Commissioner had fallen into any error of law in reaching the decision that he did and refused the appeal.

[2] On 4 November 2015 the respondent refused the petitioner’s application for legal aid to appeal that decision to the UK Supreme Court. Subsequently, on 10 December 2015 the respondent refused an application by the petitioner for legal aid to judicially review the decision of 4 November 2015. The petitioner took that matter to a sheriff at Edinburgh (Sheriff Morrison QC) who decided that there was probable cause in the petitioner’s appeal to the UK Supreme Court and that it was reasonable to grant legal aid for a judicial review of the Board’s decision to refuse funding for the judicial review proceedings in this court. Accordingly the petitioner has the benefit of legal aid for these proceedings. However, the respondent maintains that there is no basis for judicially reviewing the refusal to grant legal aid for the substantial application to appeal to the Supreme Court.

[3] At the hearing before me it was not in dispute that the test for permission is contained within section 27B of the Court of Session Act 1988 (as amended by the Courts Reform (Scotland) Act 2014). The test in that new provision is that the court may grant permission for a petition of this sort to proceed only if satisfied that:

“(a) The applicant can demonstrate a sufficient interest in the subject matter of the application, and

(b) The application has a real prospect of success.”

It was not in dispute before me that the petitioner can demonstrate a sufficient interest in the subject matter of the application. It was also agreed that the test of requiring a real prospect of success presented a fairly low hurdle for a petitioner to overcome.

[4] Mr Campbell QC for the petitioner submitted that the court should be cautious about taking an adverse view of proceedings of this sort early in the case when it may not yet be well prepared. A note in the proceedings from Lord Bannatyne to the effect that the statements in paragraph 9 of the petition gave no explanation as to why the refusal for grant of legal aid was a manifest error should be read in that context. Mr Campbell placed considerable reliance on the decision by Sheriff Morrison QC of 1 February 2016 to grant legal aid for these proceedings. Sheriff Morrison examined the reasoning of the respondent in relation to the decision taken on the substantive refusal. It was accepted that considerable emphasis was placed in the original application on an English case of Evans v Information Commissioner [2012] UKUT 313. Sheriff Morrison considered that the respondent was correct in concluding that Evans was not in point and Mr Campbell conceded that point could no longer be regarded as an arguable one on the basis of which an appeal could be taken. However, he relied heavily on Sheriff...

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