Scottish Court of Session Decisions

Fisher v Law Society Of Scotland [2003] ScotCS 102 (4 April 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kirkwood Lord Marnoch Lord Emslie	P688/01 OPINION OF THE COURT delivered by LORD KIRKWOOD in the cause JOHN MARK SUTHERLAND-FISHER Petitioner; against THE LAW SOCIETY OF SCOTLAND Respondents; For Review of a decision of the Scottish Solicitors' Discipline Tribunal dated 21 March 2001 and intimated to the Petitioner on 15 May 2001 _______

 

 

Act: Bell Q.C., et Springham, Digby Brown, S.S.C., (for the Petitioner)

Alt: O'Brien, Q.C., et Dunlop, Balfour & Manson, (for the Respondents)

4 April 2003

1. This is an appeal by John Mark Sutherland-Fisher (hereinafter referred to as "the petitioner") against a decision of the Scottish Solicitors' Discipline Tribunal dated 21 March 2001 and intimated to the petitioner on 15 May 2001.
2. The petitioner formerly practised on his own account under the firm name of Duncan & Duncan in Dingwall. In May 1997 the Council of the Law Society of Scotland (hereinafter referred to as "the respondents") carried out a routine inspection of the business books of the petitioner. That inspection revealed a number of breaches of the Solicitors (Scotland) Accounts Rules 1996 and, in particular, it revealed a deficit on the client account. A further inspection was carried out in June 1997. On 26 August 1997 the respondents lodged a complaint with the tribunal requesting that the petitioner be required to answer the allegations contained in the complaint. The complaint averred breaches by the petitioner of the Accounts Rules and attempts to conceal the existence or the extent of the deficit in the client account, and alleged that the petitioner was guilty of professional misconduct within the meaning of section 53 of the Solicitors (Scotland) Act 1980. It was subsequently made clear that the petitioner admitted the allegations made in that complaint and that his conduct had amounted to professional misconduct. In October 1997 the respondents carried out a further inspection of the financial records and books of the petitioner, and following that inspection the respondents noted further breaches of the Accounts Rules in addition to those which formed the subject of the first complaint. On 26 November 1997 the clerk to the tribunal advised that the hearing, which had been fixed for 10 December 1997, would not take place. In the meantime the petitioner had been arrested by the police on 14 November 1997 and detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. On 17 November 1997 the petitioner appeared on petition at Dingwall Sheriff Court, and his trial was eventually due to commence on 9 November 1998. However, as the defence was not ready to proceed to trial the case was deserted pro loco et tempore. A further indictment was served on the petitioner and the trial began on 26 April 1999. The trial continued on a daily basis until 27 September 1999 when defence counsel was taken ill and the case was again deserted pro loco et tempore. On 10 October 1999 a new indictment was served. The trial began on 27 March 2000 and on 26 May 2000 the petitioner was acquitted, the sheriff having sustained a no case to answer submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. Thereafter a second complaint was lodged with the tribunal, the first complaint was re-activated and a hearing was fixed in respect of both complaints for 21 March 2001.
3. At the hearing before the tribunal on 21 March 2001 the solicitor who represented the petitioner made submissions in support of a preliminary plea which had been lodged by the petitioner, and which contained two grounds. The first ground related to unreasonable delay which is not now an issue between the parties. The second ground was in the following terms:

"(b) The failure of the Complainers to make any provision for a fair Trial of their Members, such as Solicitors or ex-Solicitors in the position of the Respondent, by way of providing means for their adequate representation and Defence. There has never been Legal Aid or Legal Advice available under the statutory Legal Aid Scheme for the Defence of a Solicitor before this Tribunal.

The Respondent has a right to a fair and reasonably prompt Hearing on serious matters such as the allegations of professional misconduct made in [each] complaint. Reference is made to Article 6 of the European Code of Human Rights. ...... Said Article 6 inter alia applies to proceedings of this kind where there is a Trial or Hearing. The Complainers' allegations against the Respondent are of the utmost seriousness and could affect his right to practice as a Solicitor."

4. In support of that ground it was submitted to the tribunal that the petitioner would have to appear at the hearing of the complaints without any legal representation. While he had made it clear that he would be admitting the allegations contained in the first complaint, the allegations in the second complaint were very serious. The petitioner had not been employed since 1997 and he was without personal resources to meet the cost of legal representation. In the circumstances, for there to be a fair hearing it was necessary that the petitioner should have legal representation.
5. The test adopted by the tribunal was whether the provision of legal representation would be "indispensable" (Airey v Ireland (1979) 2 E.H.R.R. 305) in the sense that the petitioner would be materially prejudiced if he did not have such representation. However, the tribunal observed that there was no indication that the subject matter of either complaint was particularly complex. The petitioner was a solicitor, and the complaints related to the financial intromissions and record-keeping of his former firm and the application of the Accounts Rules, matters with which the petitioner should be familiar. In addition, he might be entitled to support in the preparation of the case under the legal advice and assistance scheme. In the circumstances, the tribunal was not satisfied that the petitioner would be prejudiced and might not receive a fair trial if he was not provided with legal representation. The tribunal accordingly dismissed the preliminary plea, and adjourned the hearing of the two complaints to a date to be arranged. The interlocutor of the tribunal was in the following terms:

"Edinburgh 21st March 2001. The Tribunal having considered the Complaints at the instance of the Council of the Law Society of Scotland against John Mark Sutherland-Fisher, Solicitor, formerly having a place of business at Royal Bank Buildings, High Street, Dingwall and now residing at North Cadboll House, North Cadboll, Fearn, By Tain, Ross-shire, Dismiss the Respondent's preliminary plea based on Article 6 of the European Convention on Human Rights and adjourn the hearing of the Complaints to a date to be arranged, and reserve the matter of the expenses occasioned by the hearing on this date."

6. The petitioner has appealed in terms of section 54 of the Solicitors (Scotland) Act 1980 against the decision of the tribunal dated 21 March 2001, and Statement 5 of his petition, which effectively sets out the grounds on which the appeal has been taken, is inter alia in the following terms:

"...... The Tribunal and the Respondents are public authorities for the purposes of the Human Rights Act 1998. It is unlawful for them to act in a way which is incompatible with the Petitioner's rights under the European Convention on Human Rights ('the Convention'). The Tribunal erred in law in finding that the Petitioner had no right to free legal representation before the Tribunal.

The Tribunal accordingly misdirected itself in law. In terms of article 6(1) of the Convention the Petitioner has a right to a fair hearing before the Tribunal. That right entails that the pursuer (sic) has the means by which to investigate and prepare any defence to the detailed charges laid against him. The charges related to breaches of the accounting rules. Reference is made to the Complaints lodged by the Respondents with the Tribunal. In order to investigate the allegations the Petitioner requires the assistance of an accountant to review his accounting records. The Petitioner did not and does not have the means to pay for an accountant to prepare a report. He has been unemployed since 1997. Further, and in any event, the Petitioner was and is unable to fund any legal representation before the Tribunal. He would be materially disadvantaged at any such hearing without legal representation. The case is complex. Effective representation requires experience in contentious matters, and in particular the practice of the Disciplinary Tribunal. The Petitioner has no experience in either. He has no recent experience of any legal matters. The Petitioner is unable to represent himself objectively and effectively before the Tribunal. For the Tribunal to determine the complaints against the Petitioner without free legal representation would amount to a determination of the Petitioner's civil rights and obligations in breach of article 6(1)."

7. The petitioner now seeks (1) recall of the tribunal's interlocutor of 21 March 2001 and; (2) interdict against the respondents from convening a hearing in respect of the second complaint in the absence of the availability of appropriate legal representation to the petitioner.
8. Article 6(1) of the Convention provides inter alia as follows:

"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."

Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

9. Section 7(1) of the Act provides inter alia as follows:

"A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may ....

(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act."

10. Before us, it was common ground that the respondents are a "public authority" and that the presentation of the complaints before the tribunal constituted "legal proceedings" within the meaning of section 7(1)(b) of the Act. It was also agreed that the proceedings before the tribunal involved a determination of the petitioner's civil rights.
11. Counsel for the petitioner submitted that the issue before the court was whether it was possible for the petitioner to obtain a fair hearing before the tribunal in the absence of legal representation. The second complaint against the petitioner involved allegations of a fraudulent scheme to defraud clients. They were allegations which, if established, would have serious consequences for the petitioner. The allegations in the second complaint, which were very similar to the charges which the petitioner had faced in the criminal trial, were more complicated than a mere failure to comply with the Accounts Rules. The allegations in the second complaint had already been the subject of two criminal trials lasting some weeks. In the criminal court the petitioner had had the services of counsel, and an expert witness in the form of an accountant, to enable him to present his defence. It was not disputed that legal aid would not be available to the petitioner before the tribunal, and the respondents were not prepared to supply him with legal assistance. A judicial factor had been appointed by the respondents, and the petitioner was unable to meet the cost of legal representation. The legal advice and assistance scheme would not include legal representation or the cost of an accountant giving evidence.
12. With regard to the test which had to be applied in relation to Article 6(1), we were referred to Airey v Ireland (1979) 2 EHRR 305, X v United Kingdom (1984) 6 E.H.R.R. 136, McVicar v United Kingdom (2002) 35 EHRR 22 and S v Miller 2001 SC 977. In light of these authorities, senior counsel for the petitioner accepted that the proper test to be applied was whether, in the particular circumstances of this case, it could be said that the provision of legal representation to the petitioner would be indispensable due to the complexity of the case. That was really the same as saying that there would be "obvious unfairness" if the petitioner had to appear before the tribunal to answer the second complaint without legal representation (Pine v The Law Society [2002] UKHRR 81). Senior counsel for the petitioner conceded that it would not be sufficient for the petitioner to establish that there was a risk that he would not receive a fair hearing. It was submitted that in this case the petitioner would not be able to obtain a fair hearing in the absence of legal representation. It would be necessary for the petitioner to have legal representation to enable his defence to be conducted properly and efficiently. It was particularly important that the respondent's witnesses should be able to be cross-examined effectively. If the petitioner had to appear on his own he would be at a material disadvantage, particularly as the case against him will be conducted by an experienced fiscal.
13. Counsel then turned to consider whether the existence of legal representation for the petitioner at the stage of an appeal to the Court of Session would be sufficient to meet the requirements of Article 6(1). In relation to the question whether the petitioner would receive a fair hearing, the proper establishment of the facts was essential. The facts had to be established and considered by the tribunal and, if they were not properly established because the petitioner was not legally represented, then the existence of the appeal procedure would not meet the Article 6 requirements. The damage would have been done before the hearing of the appeal and could not be remedied by the appeal process. If there was a lack of effective cross-examination at the tribunal hearing, it would be difficult for the appeal court to say what the position might have been if the cross-examination had been carried out effectively. Further, the members of the tribunal had expertise and experience in this particular field, making it necessary that there should be a fair hearing before the tribunal. While the Act gave wide powers to the court on appeal, those powers could not be regarded as a substitute for a fair hearing before the tribunal (S v Miller, supra, per Lord President Rodger at paras.[38] and [39].) While there was authority that an appeal procedure could cure procedural irregularities or a lack of impartiality in the lower court or tribunal, the position was different in a case where lack of legal representation at the tribunal resulted in the facts not being properly elicited (Gautrin v France (1998) 28 EHRR 196, Kingsley v United Kingdom (2001) 33 EHRR 288 and Preiss v General Dental Council [2001] 1 WLR 1926). In the circumstances the right of appeal would not satisfy the requirements of Article 6.
14. In relation to the remedy sought, it was submitted that the factual issues which would have to be determined by the tribunal were complex, and that the tribunal erred in stating that the issues were not sufficiently complex. The complexity had been demonstrated by the fact that the petitioner had been put on trial for fraud on the basis of charges which were very similar to the allegations in the second complaint, that he had been represented by counsel and that expert accountancy evidence had been made available to the defence at a cost to the Legal Aid Board of around £10,000. It was accepted that not every solicitor would require legal assistance before the tribunal, but in the circumstances of this case legal representation for the petitioner was indispensable. Accordingly, the respondents should be interdicted from convening a hearing in respect of the second complaint in the absence of the availability of appropriate legal representation for the petitioner.
15. Counsel for the respondents agreed that the appropriate test to be applied to the facts of the present case was whether it had been demonstrated that the provision of legal representation to the petitioner at the tribunal hearing in relation to the second complaint was indispensable. That test was effectively the same as the test of "obvious unfairness" which the Commission had derived from Airey in X v United Kingdom, supra and which had been adopted in Pine v The Law Society. The Tribunal had referred to Airey, and it was not suggested that it had applied the wrong test.
16. Turning to the facts of the present case, the petitioner had admitted the allegations contained in the first complaint and it was not contended that he required legal representation for the hearing of that complaint. So far as the second complaint was concerned, the allegations contained in it were canvassed in the course of the criminal trial and the petitioner had the services of a chartered accountant who sat in during the trial for several weeks and prepared a report. The respondents had stated that they were not going to lead any accounting evidence before the tribunal. At the tribunal hearing the onus of proof would be on the respondents, the standard of proof being proof beyond reasonable doubt. The procedure before the tribunal was not complex. The petitioner had practised on his own account from 1986, having been admitted in 1984, and therefore he must have been operating the Accounts Rules. The charges in the second complaint related to matters which should be within the petitioner's own knowledge. The charges related to his alleged actions, not those of a partner or a cash room clerk. He was legally trained and should be able to analyse legal propositions dispassionately. It had not been suggested that he was inarticulate, or that he suffered from any illness adversely affecting his ability to represent himself before the tribunal. While it was accepted that legal aid would not be available to him for the proceedings before the tribunal, and that he did not have the funds to pay for legal representation, he would be entitled to seek legal advice and assistance in terms of sections 6 and 8 of the Legal Aid (Scotland) Act 1986 and regulation 12 of the Advice and Assistance (Scotland) Regulations 1996. Applying the agreed test of "indispensability", it was submitted that the petitioner had not established that the provision of legal representation at the tribunal hearing would be indispensable in the sense that without such representation he would be unable to receive a fair hearing.
17. Counsel went on to submit that, in any event, even if there was doubt as to whether the tribunal hearing, considered in isolation, would be Article 6 compliant in the absence of legal representation for the petitioner, the difficulty was resolved by reason of the fact that there existed a full, unrestricted right of appeal to this court (Tehrani v UK Central Council for Nursing, Midwifery and Health Visiting 2001 SC 581). The right of appeal did not provide an answer only in cases of procedural irregularities or lack of impartiality. The test was whether a full hearing would be available on appeal to meet the requirements of Article 6. In the event of an appeal to the Court of Session, a transcript of the proceedings before the tribunal would be available, and the petitioner would have the right to legal aid and the services of counsel. In particular, the court would have power to remit to any person to make further inquiry into the facts, or to take further evidence and to report to the court (Rule of Court 68.7). It would be open to the petitioner to argue that, as a result of his having no legal representation, something had gone wrong before the tribunal (Twalib v Greece (2001) 33 EHRR 584) and the court could deal with any alleged deficiencies at the tribunal hearing. In that respect the case of S v Miller fell to be distinguished, and the court should prefer the approach adopted in Preiss v General Dental Council, supra. Accordingly, even if the court were to be persuaded that the petitioner could not receive a fair hearing before the tribunal in the absence of legal representation, it was submitted that on a fair analysis he would receive a fair hearing over the whole proceedings, taking the right of appeal into account, as the tribunal was "subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of art 6(1)" (Albert and Le Compte v Belgium (1983) 5 EHRR at p. 542). In the circumstances the appeal should be refused and the case remitted back to the Tribunal to proceed as accords.

Decision

18. The petitioner seeks to interdict the respondents from convening a hearing in respect of the second complaint in the absence of the availability of appropriate legal representation to the petitioner. He contends that, if he does not have legal representation at the tribunal hearing, it will not be possible for him to receive a fair hearing in terms of Article 6(1). In this connection it is common ground that it would not be sufficient for the petitioner to demonstrate that, in the absence of legal representation, there is a risk that he would not receive a fair hearing.
19. The first question which arises is the test to be applied for the purpose of considering whether the pursuer can show ab ante that he will not be able to receive a fair hearing. In Airey v Ireland, supra, at para. 26, the court made the following observations:

"In certain eventualities, the possibility of appearing before a court in person, even without a lawyer's assistance, will meet the requirements of Article 6(1); there may be occasions when such a possibility secures adequate access even to the High Court. Indeed, much must depend on the particular circumstances.

..... Article 6(1) may sometimes compel the state to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court ...... by reason of the complexity of the procedure or of the case."

20. There is no doubt that legal representation in cases of this nature will be regarded as an advantage: but it does not follow that the absence of legal representation will necessarily deprive a party of a fair hearing. The requirements of Article 6 (1) with respect to legal advice and representation must depend on the facts of each individual case (Pine v The Law Society, supra, at paras. [14] and [27]). In the present case parties are agreed that the proper test to be applied is the test of "indispensability" and that it is for the petitioner to demonstrate that at the tribunal hearing into the second complaint the provision of legal representation on his behalf would be indispensable in the sense that without such representation he would not be able to present his case properly and effectively and thus could not receive a fair hearing (Airey v Ireland, supra, at para. 24, S v Miller, supra, at paras. [36] and [40]). On the basis of the Convention authorities to which we were referred, we are satisfied that the test of indispensability is the appropriate test to apply and, indeed, this was the test adopted by the tribunal.
21. Bearing that test in mind, we turn to the facts of the present case. The petitioner is a qualified lawyer and it appears from the second complaint that the allegations relate to actions of the petitioner in the course of his legal practice, and not actions by a partner or by an employee. On that basis the factual allegations made against him must be taken to be matters within his own knowledge. The allegations include breaches of the Accounts Rules with which the petitioner, who was a sole practitioner, must be assumed to be familiar. He has gone to trial and been acquitted on criminal charges which, we are told, were very similar to the allegations contained in the second complaint, and in the course of that trial he had the services of an accountant who prepared a report. The respondents have stated that they do not intend to lead any accounting evidence before the tribunal. It also appears that, while the petitioner will not be entitled to legal aid, he will be able to seek legal advice and assistance in terms of the Advice and Assistance (Scotland) Regulations 1996, and at this stage there is no reason to suppose that such advice and assistance will not be available. Like the tribunal, we are not satisfied that the subject-matter of the second complaint is particularly complex. In these circumstances we are not satisfied, in advance of the tribunal hearing, that the provision of legal representation to the petitioner will be indispensable in the sense that in the absence of such representation he cannot receive a fair hearing.
22. That is sufficient for the decision in this case. However, it is contended on behalf of the respondents that, even if the tribunal proceedings, considered in isolation, do not comply with the requirements of Article 6(1), they are subject to subsequent control by a judicial body, namely the Court of Session, that has full jurisdiction and does provide the guarantees of Article 6(1) (Albert and Le Compte v Belgium, supra, at para. 29; Twalib v Greece, supra, at page 604). It is clear that in the event of an appeal to the Court of Session the petitioner would be eligible for legal aid and the services of counsel. The court can deal with disputed issues of fact and of law, and a transcript of the proceedings before the tribunal would be available. Further, the court has power to remit to any person to make further inquiry into the facts, or to take further evidence and to report to the court. In this connection the proceedings before the tribunal cannot be viewed in isolation, and in the circumstances we are certainly not in a position to say that the proceedings taken as a whole, and including the full right of appeal, would not be Article 6 compliant.
23. In our opinion, in the particular circumstances of this case, the petitioner is not entitled to the remedies which he seeks, and for the reasons which we have given we refuse the appeal and remit the case back to the tribunal to proceed as accords.