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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> McLean & Anor v. Procurator Fiscal (Scotland) [2001] UKPC D3 (24 May 2001) URL: https://www.bailii.org/uk/cases/UKPC/2001/D3.html Cite as: [2001] UKPC D 3, [2001] WLR 2425, [2001] 1 WLR 2425, 2001 SLT 780, [2001] HRLR 51, 2001 GWD 19-720, 2002 SC (PC) 1, [2001] UKHRR 793, 2001 SCCR 475, [2001] UKPC D3 |
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McLean & Anor v. Procurator Fiscal (Scotland) [2001] UKPC D3 (24 May 2001)
DRA. No. 4 of 2000
(1) Norman McLean and
(2) Peter McLean Appellants
v.
(1) Procurator Fiscal, Fort William and
(2) Her Majesty's Advocate General Respondents
FROM
THE HIGH COURT OF JUSTICIARY
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 24th May 2001
------------------
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Clyde
Lord Hobhouse of Woodborough
Lord Millett
------------------
Lord Nicholls of Birkenhead
_______________
Lord Hope of Craighead
"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 Legal Aid Scheme
"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and any related appeal to the High Court of Justiciary under section 174(1) of the 1995 Act has been disposed of or withdrawn."
Section 21(3) of the 1986 Act provides that, subject to certain provisions which are not in point in this case, criminal legal aid shall not be available until the conclusion of the first diet at which the accused has tendered a plea of not guilty.
"(2) The outlays specified in this paragraph are all outlays in connection with –
(a) the taking, drawing, framing and perusal of precogitions;
(b) the undertaking by another solicitor of any part of the work; and
(c) photocopying."
"All work up to and including:
(i) any diet at which a plea of guilty is made and accepted or plea in mitigation is made;
(ii) the first 30 minutes of conducting a proof in mitigation other than in circumstances where paragraph (2) below applies; and
(iii) the first 30 minutes of conducting any trial
together with any subsequent or additional work other than that specified in paragraphs 2-9 below."
The relevant item of work in the present case, as the appellants have pled not guilty, is that which relates to the first 30 minutes of conducting any trial. In that connection it should be noted that the third, fourth and fifth categories provide for additional fixed payments of £100, £200 and £400 for conducting a trial for the first day (after the first 30 minutes), for the second day and for the third and subsequent days respectively.
Application of this Scheme to these proceedings
The appellants' Convention rights
"(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."
"Paragraph 3 of article 6 contains an enumeration of specific applications of the general principle stated in paragraph 1 of the article. The various rights of which a non-exhaustive list appears in paragraph 3 reflect certain of the aspects of the notion of a fair trial in criminal proceedings. When compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten, nor must it be severed from its roots."
The second issue
The first issue
Conclusion
_________________
Lord Clyde
"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 work; and
(c) photocopying."
Schedule 1 prescribes a table of fixed sums under reference both to the court in which the work is done and the particular work done. The first category of work, other than in cases where the accused pleads guilty or a plea in mitigation is made, comprises "all work up to and including the first 30 minutes of conducting any trial, together with any subsequent or additional work other than that specified in paragraphs 2-9 below". The later paragraphs are not of relevance to the present case. The fixed fee in the present case in light of the particular court in which the proceedings have been taken is £550. The appellants claim that this sum is quite inadequate to meet the fees and outlays properly incurred in the present case.
"Solicitors are free to refuse to undertake instructions, but once acting should withdraw from a case or transaction only for good cause and where possible in such a manner that the clients' interests are not adversely affected."
In the particular context of criminal work in the Code of Conduct prepared by the Law Society of Scotland it is stated in paragraph 3 that "a solicitor is under a duty to prepare and conduct criminal legal aid cases by carrying out work which is actually and reasonably necessary and having due regard to economy".
"Although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial."
Several comments may be made about the paragraph.
"requires that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent."
(De Haes and Gijsels v Belgium (1997) 25 EHRR 1 para 53). Reference to that principle provides one way of formulating the breach of the Convention which can occur through the absence of a competent and effective representation. The essence of the right is that the accused may have the services of a representative, if he wishes to have that service, and that the representative does all that is required of him or her. If effective representation is provided, then there should be no inequality of arms in that respect, even if the representative is inadequately remunerated or is acting pro bono.
"On that basis, he made no submissions on the wider point regarding the Lord Advocate's responsibilities as a member of the Executive, and counsel for neither respondent suggested that these matters required consideration."
In sustaining the appeal and reversing the sheriff's decision it can be argued that the court was proceeding solely on the first issue and was putting aside the second issue altogether. But since the court expressly held that the plea in bar ought to have been repelled I consider that they should be taken to have determined both of these issues which were before the Sheriff so that an appeal on both issues could competently have been taken to this Committee. However in the circumstances it is unnecessary to decide this matter or to consider precisely what is required to constitute a "determination" for the purposes of paragraph 13 and I prefer to reserve my opinion on that.
_______________
Lord Hobhouse of Woodborough
"on the basis that the continued prosecution of the [appellants] at the instance of the Procurator Fiscal on behalf of the Lord Advocate constitutes a breach of the right of each accused to a fair trial as required by Article 6 of the ECHR; and in particular, a breach of Article 6.3 thereof in that there is, by reason of the arbitrary financial limitation imposed upon the investigation and preparation for trial in the defence of each accused in terms of the 1999 Regulations, an inequality of arms as between the prosecutor and the defence. No such limitation is placed upon the Prosecution in its investigation and preparation for trial." (p 19 of his report)
He made a report to the High Court of Justiciary following the appellants' appeal to that court under s.174 of the Criminal Procedure (Scotland) Act 1995. This report runs to some 34 pages in which he sets out fully the rival contentions and explains his conclusion that the appellants were entitled to a bar of trial. The appellants' convention rights to a fair trial were breached by the 1999 Regulations. Fatally the Legal Aid Board were left with no discretion to increase the allowable fees; the Scottish Executive had failed to secure the amendment of the Regulations. The appellants were 'victims' of these breaches.
"It is the present situation itself which they describe as prejudicial or advantageous, not because of some apprehended future consequence, but simply on the basis that as matters stand (and will continue to stand) any accused person in their position must be seen as so disadvantaged that even if no specific detrimental event were ever to occur, the whole trial process, and in particular the legal assistance afforded to them, is so tainted by a flaw in their legal assistance that Article 6.3(c) is not being and will not be complied with, with consequential non-compliance with Article 6.3(b)." (p 624)
They rejected this argument. The Court declined to conclude that there would in fact be an unfair trial and therefore declined to find any breach of the appellants' rights under Article 6. They held that the pleas in bar ought to have been repelled.
"standing the mandatory nature of the statutory fixed fee system, that there is no mechanism whereby the accused can be provided with a level of legal aid which will result in a solicitor being prepared to undertake the necessary work of preparation [in] breach of the accused's convention rights [and it] cannot be cured." (§50)
In that case there was express evidence from the solicitor of one of the accused, which the sheriff accepted, that the cost would be about ten times the fee allowed and that he "simply could not afford to undertake this case on the basis of the current Legal Aid regime". Another solicitor told the sheriff that he had approached a number of senior solicitors practising in the field of criminal law in Glasgow and none would be prepared to act in a case of that kind on legal aid nor would they expect any other solicitor to do so. It was not a case of swings and roundabouts as the disparity was too great. The sheriff rejected the contrary arguments of the prosecution which really amounted to no more than saying that the application for a dismissal was premature and included the remarkable argument, also advanced by the respondents before your Lordships, that "the solicitors should act under the fixed fee and if it was inadequate they could withdraw". The judgment of the sheriff merits attention and his conclusion may be regarded as inevitable having regard to the evidence which he accepted. If there had been similar evidence in the present case, I would be prepared to regard the success of the appellants' pleas in bar as equally inevitable. But the appellants do not have the evidence and on any view the present case is not as strong as Glendinning. There is not yet any problem about the appellants' representation. The disparity between that fixed fee and the reasonable remuneration is unlikely to approach a factor of 10.
________________
Lord Millett