BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish High Court of Justiciary Decisons


You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Butt & Anor v Procurtor Fiscal, Dundee [2012] ScotHC HCJAC_107 (23 August 2012)
URL: http://www.bailii.org/scot/cases/ScotHC/2012/2012HCJAC107.html
Cite as: 2013 JC 274, [2012] HCJAC 107, 2012 SCCR 649, [2012] ScotHC HCJAC_107

[New search] [Context] [Printable version] [Help]


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 concern to parties about the competency of the High Court determining an issue which did not appear to be between the prosecutor and accused (or convicted person). The court understood that the Crown, in the sense of the Lord Advocate as head of the prosecution system, did not intend to appear at the hearing. This was not surprising because there was no challenge to the proceedings continuing, in the form of a plea in bar of further procedure or similar remedy. There was no act of the Lord Advocate involved, since neither he nor any prosecutor has a role in means enquiry proceedings. What appeared to be at issue was whether "the state" in the form of the Scottish Ministers, through the Scottish Legal Aid Board or otherwise, had breached the minuter's Convention rights. The grant of legal aid in the current circumstances was not now within the powers of the court (cf Reynolds v Christie 1988 SLT 68; Legal Aid (Scotland) Act 1986 s23) and the grant of declarators of the type sought was generally the province of the civil courts (Newland, Petnr 1994 JC 122). The court was also concerned to know what "act" of a Scottish Minister was being challenged.


[10] The minuters referred to section 57(1) of the Scotland Act 1998, which provided that a member of the Scottish "Executive" had no power to do any "act" which was incompatible with Convention rights. In terms of paragraph 1 of Schedule
6, a "devolution issue" included "a question whether a failure to act" was incompatible with a Convention right. Despite dicta that "act" did not include a failure to act (R v HM Advocate 2003 SC (PC) 21, Lord Hope at para 47 and Lord Rodger at para 125), it ought to do so (see Reed & Murdoch: Human Rights in Scotland (3rd ed) para 1.139 under reference to the amendments to section 100 of the 1998 Act; see also Human Rights Act 1998 s 6(6)). The minuters had accordingly adopted the correct procedure by raising the matter as a devolution issue. The reference had been correctly made to the High Court as arising in criminal proceedings in terms of paragraph 9 of schedule 6.


[11] The minuters' Article 6 rights were breached because at the means enquiry hearing they would be required to address the court on a number of issues in relation to their failure to pay the fines. These might include their family circumstances. They might end up on an indirect route to custody. The powers of the Justice of the Peace Court to impose a community payback order (1995 Act s 227A(5)) included the imposition of unpaid work and a residence requirement; both of which amounted to a significant interference with a person's liberty. Where liberty was at stake, the interests of justice required that legal aid be available (Benham v United Kingdom (1996) 22 EHRR 293, at para 61; Airey v Ireland (1979) 2 EHRR 305 at para 24).


[12] The Scottish Ministers accepted that an "act" included a failure to act. They also accepted that Article 6(3)(c) was potentially engaged, despite the stage of the proceedings. However, they submitted that the acts which resulted in the arrest of the minuters and their appearances were those of the court itself and not the Scottish Ministers or the Lord Advocate as head of the systems of criminal prosecution. As such, if it was maintained that they breached a person's Convention rights, the remedy was by way of appeal or by a petition for judicial review (Human Rights Act 1998 s 9(1)).


[13] The provisions in relation to means inquiry courts were carefully "nuanced" to enable a party who was at risk of being imprisoned to have legal aid. The structure was that, at the time of imposing a fine, the court could simply impose a period of imprisonment as an alternative (s 219). The maximum in the case of the minuters had been, respectively, 14 and 7 days. No alternative was imposed in this case. However, the minuters, who were entitled to legal representation at that stage, would have been made aware of the consequences of non-payment. These consequences were re-inforced by warning letters sent to the minuters when they defaulted upon the instalments. Meantime, the minuters would have had access to advice from fines enforcement officers.


[14] In the event of default in payment, the court could not then simply impose an alternative of imprisonment. It is obliged in the first instance to impose, as an alternative, a community payback order (s 227M). It is only if that order is breached that the alternative of imprisonment can be imposed (s 227ZC). In the event of a hearing to consider such a breach, legal aid was available to pay for legal representation (Advice and Assistance (Assistance by Way of Representation)(
Scotland) Regulations 2003 (SSI 2003/179, regulation 4(2)(fa)(iii)). The maximum period of imprisonment would be 60 days. The issues involved were not complex (cf Benham v United Kingdom (supra); Quaranta v Switzerland, 1991 A 205; Boner v United Kingdom (1994) 19 EHRR 246)


[15] It was not clear, therefore, what act was being challenged by the minuters. Was it the making of the regulations, in which case that was not something which arose in the context of the criminal proceedings? What would be required was a petition for judicial review to the Court of Session because the making of the regulations was a matter for the Scottish Ministers (see Newland, Petnr (supra), LJG (Hope) at 126 under reference to Cordiner, Petnr 1973 JC 16, LJG (Emslie) at 18; cf Reynolds v Christie (supra)). The act of making the regulations was not a devolution issue arising in these proceedings.


Decision


[16] The court does not consider that any devolution issue arises in the proceedings before the Justice of the Peace Court. Schedule 6 of the Scotland Act 1998 defines a "devolution issue" as including a variety of different questions including "(e) ...whether a failure to act by a member of the Scottish [Government] is incompatible with any of the Convention rights...". In the context of first instance criminal proceedings, a devolution issue may arise when the Lord Advocate, or one of the procurators fiscal, is said to be prosecuting in circumstances where a trial will inevitably be unfair; thus breaching Article 6. Such an act is incompatible with the Convention in terms of section 57(2). A devolution issue may also arise collaterally in a criminal process, where, for example, an Act of the Scottish Parliament is challenged as contravening Article 8. When it does, the power of the criminal courts to deal with it generally arises because of a continuing prosecution by the Lord Advocate, or those for whom he is responsible, in breach of a Convention right. The court is able to grant a remedy by halting the prosecution (see David Lawson Ltd v
Torrance 1929 JC 119, LJG (Clyde) at 121).


[17] The complaint which is made here is that the minuters' Article 6 rights have been infringed by virtue of the absence of legal aid to cover representation at a means enquiry court. However, that contention does not, of itself, create a devolution issue, far less one which arises in the proceedings. It is first necessary to identify who is said to be infringing the minuters' rights. It is clearly not the Lord Advocate, or the local procurator fiscal, since neither takes any part in these proceedings. Despite all the action being initiated by the court, it cannot be the court that is being blamed since that could not create a devolution issue, as distinct from a human rights complaint. There is no application seeking to prevent the means enquiry hearing continuing. It appears therefore that the minuters are seeking to challenge, in a criminal process, the acts or omissions of the Scottish Ministers as the persons who are capable of making regulations which could enable the Scottish Legal Aid Board to pay for legal representation. Certainly, the remedy which the minuters seek in the devolution minutes is a declarator against the "state". Since the actings of the
United Kingdom government are not susceptible to review by way of a devolution issue minute, this word must be a reference to the Scottish Government, in the form of the Scottish Ministers.


[18] However, the Scottish Ministers are not parties to the criminal processes; although they have been allowed to appear in them. They cannot competently be made such parties since, in each instance, the process is one directed, at least originally, by the procurator fiscal against one of the minuters. In any event, neither the Justice of the Peace Court nor the High Court, which operate within the realms of the criminal law, have jurisdiction to grant general declarators of rights which oblige the Scottish Ministers to act in particular ways in relation to the general population. That is the province of the civil courts. Matters could be different, were it to be contended that the means enquiry should be terminated because of inevitable unfairness. That would be something which could be dealt with by the criminal court. If that court erred in its decision, however, that still does not give rise to a devolution issue, unless there is a continuing act of the Lord Advocate in that process.


[19] If the minuters wish to pursue the Scottish Ministers for a breach of their Convention rights, then they must do so in the proper forum. That forum is a civil court (Newland, Petnr 1994 SC 122, LJG (Hope) at 126, following Cordiner, Petnr 1973 SC 16, LJG (Emslie) at 18, see also Sommerville v Langmuir 1932 JC 55, Lord Anderson at 58,

LJ-C (Alness) at 59). Since the action would be one reviewing administrative actings, the obvious course of action is to raise a petition in the Court of Session for judicial review under section 7 of the Human Rights Act 1998. In that event, the minuters will be able to convene the appropriate public bodies and/or the Scottish Ministers as respondents and the matter can proceed upon proper written pleadings, which identify precisely what act, or failure to act, is being challenged and set out the contentions of all parties properly convened. Thereafter, any order of the court will be binding upon those parties and effective in providing a remedy.


[20] Accordingly, this court does not consider that it is appropriate to adjudicate on the civil issue of whether, as a generality, the Scottish Ministers ought to provide legal aid for all means enquiry hearings in the Justice of the Peace Courts. However, in this process, it is able to answer the question of whether the minuters' Article 6 rights have been, or rather will inevitably be, infringed should they appear at a means enquiry court without a lawyer. The answer is that there is no basis for such a contention, given the limited information presented in the devolution issue minutes. The minuters have not attempted to explain why they have not paid their fines. They have not stated that their circumstances are in any way complicated, such that, in the interests of justice, they require the services of a lawyer to present them to the court in an effective manner. For this court to hold that the minuters' rights have been, or will inevitably be, breached, it would require to hold that, as a matter of Article 6 fairness, every person who appears before any means enquiry court at any time must be entitled to be represented by a lawyer. The court does not understand the Convention jurisprudence to dictate such a blanket response.


[21] Article 6(3)(c) of the Convention requires that every person accused of a criminal offence must be able, throughout the proceedings, to defend himself effectively. This entails the provision of legal aid "when the interests of justice so require". This will occur where, for example, a combination of the seriousness of consequences and the complexity of the legal or factual background points towards a lawyer being of material assistance (see generally Reed & Murdoch: Human Rights in Scotland (3rd ed) para 5.207, under reference to McDermitt v United Kingdom (1987) DR 52, 244; Perks v United Kingdom (1999) 30 EHRR 33, following Benham v United Kingdom (1996) 22 EHRR 54). As a generality, where deprivation of liberty is at stake, the interests of justice in principle call for legal representation (Benham v United Kingdom (1996) 22 EHRR 293, at para 61), but even that is not averred to be the position in the minuters' current situations. It follows that the questions posed in the reference must be answered in the negative, on the basis of the limited information provided.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotHC/2012/2012HCJAC107.html