Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 112
P640/10	OPINION OF LADY STACEY in the Petition MATTHEW McALLISTER Petitioner; for Judicial Review of a decision of the Scottish Legal Aid Board to refuse to grant sanction for the employment of junior counsel Respondents: ­­­­­­­­­­­­­­­­­________________

Petitioner: Smith, Q.C., Brown; Drummond Miller LLP

Respondents: Stewart, Q.C., Davidson; Scottish Legal Aid Board

13 August 2010

Introduction
[1] This is a petition for judicial review by Mr McAllister (the petitioner) of a series of decisions made by the Scottish Legal Aid Board (SLAB) refusing sanction for the employment of junior counsel at a trial in the Sheriff Court on an indictment containing ten charges in total and libelling six charges against him under the Copyright, Design and Patents Act 1988, and the Trademarks Act 1994. The petitioner lodged a petition for judicial review as a party litigant on similar grounds to those in the current petition in May 2010. First orders were refused by Lord Brodie on 9 May 2010.

The current petition
[2] The submissions in this application for judicial review concerned three matters, namely the test to be applied by SLAB in deciding applications for sanction; the reasonableness or otherwise of the decision made; and the effect of delay in making the application for judicial review. Counsel for the petitioner made clear that he did not make any submission that there was no valid reason for the refusal of sanction, despite an averment to that effect in his pleadings. Further, he did not submit that the petitioner had a legitimate expectation that sanction would be granted as set out in the petition. He therefore sought a remit to SLAB to reconsider the application. In order to understand the arguments it is necessary to be aware of the nature of the indictment, and the course of the criminal case, as well as the chronology and content of the applications for sanction, the refusals and the applications for review.

The indictment

[3] There are eight accused persons on the indictment. The first diet for the indictment was 20 November 2006 and the first trial diet was fixed for 4 December 2006. As a result of procedure outlined below, the case has not yet called for trial and I understand that the trial diet is fixed for September 2010. The petitioner argued a devolution minute in the criminal case, which was refused by the sheriff on 18 January 2008 and appealed to the Court of Criminal Appeal. The appeal was refused on 9 December 2009. Leave was sought to appeal and was refused.

Chronology of applications and refusals
[4] Having been indicted, the petitioner sought legal advice from G. Sweeney Ltd, Solicitors in Glasgow. Mr Sweeney, a sole practitioner, took the view that the case was one in which junior counsel should be instructed and he made application for sanction for junior counsel to be instructed in the preparation of and the conduct of the trial. His application included a note by counsel dated 6 April 2007 which set out the basis on which sanction was sought. That application was refused by SLAB by letter dated 26 April 2007. The petitioner produced much but not all of the correspondence between his solicitor and SLAB. The documents produced were not complete and many in the inventories were duplicated. Both counsel were content that the relevant documents were before me, as follows:

1. note by counsel (McLaughlin) 06 04 07

2. note by counsel (McLaughlin) 26 04 07

3. SLAB to Sweeney 02 05 07

4. Sweeney to SLAB 23 05 07

5. SLAB to Sweeney 08 06 07

6. note by counsel (McLaughlin) 12 07 07

7. Sweeney to SLAB 18 07 07

8. FOI papers 19 07 07

9. SLAB to Sweeney 25 07 07

10. Sweeney to SLAB 31 07 07

11. SLAB to Sweeney 20 08 07

12. note by counsel (McLaughlin) 10 09 07

13. SLAB to Sweeney 26 09 07

14. note by counsel (McLaughlin) 11 09 07

15. SLAB to Sweeney 27 11 07

16. SLAB to Sweeney 07 01 08

17. Sheriff Hendry's decision 18 01 08

18. application Sweeney for High Court Appeal 23 01 08

19. note by counsel (Kerrigan QC) on appeal 28 08 08

20. application for senior and junior for trial 06 10 08

21. note by counsel (Kerrigan QC) 07 10 08

22. Sweeney to SLAB 11 11 08

23. Sweeney to SLAB 12 12 08

24. Sweeney to SLAB 20 01 09

25. Sweeney to SLAB 27 03 09

26. note by counsel (Smith QC and McLaughlin) undated

27. note by counsel (McLaughlin) 15 12 09

28. SLAB to Sweeney 21 01 10

29. SLAB to Sweeney 05 03 10

30. application by Beltrami 16 04 10

31. SLAB Beltrami 23 04 10

32. Lord Brodie note 09 05 10

33. SLAB minutes, 2 undated, 1 dated November 08 and 1 dated February 09

[5] Parties were agreed that this judicial review should proceed at the hearing before me without there being any continuation to a second hearing for evidence to be led.

History of the criminal case
[6] The petitioner lodged a devolution minute in the criminal process in order to argue that he could not receive a fair trial unless sanction were granted for counsel. Application to SLAB was made for counsel to do so and as the application was refused, it proceeded with counsel instructed on a pro bono basis. The case was argued before Sheriff Hendry in Glasgow Sheriff Court and refused it in terms of his note dated 18 January 2008. In that note the Sheriff narrated the argument put forward by counsel for the petitioner to the effect that a single solicitor could not provide practical and effective representation in the case. Despite the application being for one junior counsel, it was apparently argued that two junior counsel would be appropriate for each accused person. It was argued that the refusal to sanction the assistance of counsel constituted a change in the standard of representation which had been the normal practice for the last 30-40 years at least. It appears that the Sheriff asked counsel why the petitioner had not proceeded by way of judicial review and was told by counsel that it was considered necessary to exhaust all competent appeals within the process giving rise to the decision complained of before applying for judicial review. The argument on behalf of the Crown is narrated by the Sheriff to the effect that the petitioner would be well represented in his criminal trial by Mr Sweeney and it is noted that the Crown, while conceding that the devolution minute was competent, stated that the more appropriate process to challenge a decision of SLAB was by judicial review. The Crown submitted that the only question before the Sheriff was whether the petitioner could not possibly receive a fair trial.

[7] The Sheriff in his note states that he was somewhat surprised to learn of SLAB's decision to refuse the sanction for the employment of at least one junior counsel. He stated:

"the refusal of the Board to recognise that a case like this is well out of the ordinary run of jury cases in the Sheriff Court, which normally may run for 2, 3 or 4 days with relatively few witnesses or productions, suggests some degree of wilful blindness and a reluctance by the Board even to apply their own guidelines and to recognise the case as exceptional."

[8] He went on to find that the question before him, being whether it could be shown that the minuter would not receive a fair trial, had to be answered in the negative. The Sheriff was advised by both parties that the matter was of public importance beyond the present case and he therefore granted the minuter leave to appeal.

[9] The minuter's appeal to the Court of Criminal Appeal was heard on 11 December 2009 when it was refused. Leave to appeal from that decision was refused. There were seven appellants, the petitioner being the first. Numbers five and six abandoned their appeal. Only the second appellant's counsel made submissions, which were adopted by the remaining appellants. The petitioner was represented by the same senior counsel as appeared in the current petition. In paragraph 2 of the opinion of the court the following is stated:

"At the continued first diet on 15,17 and 18 January 2008 the sheriff in Glasgow refused the minute but granted leave to appeal to this Court. ... After sundry procedure, the case came out for a procedural hearing on 27 August 2008 when it was suggested that the appropriate course for the appellants to take in face of the decision to refuse sanction for junior counsel was to take a judicial review. The appellants then considered their position but all have subsequently intimated to the court that they did not intend to challenge the Board's decision by that route."

Counsel for the petitioner stated that he had been present at the appeal and that he had not said that judicial review would not be sought. He was not in a position to explain why the Court of Criminal Appeal had understood that no judicial review was intended, although it was of course correct that no judicial review had been sought by the date of the appeal hearing. He drew my attention to the terms of a note by senior counsel, Mr Kerrigan QC, dated 28 August 2008, which was produced in the petition process. In that note senior counsel states that he appeared in the criminal case before the Court of Criminal Appeal on 27 August 2008. He states that the court expressed the view that it appeared prima facie from perusal of the papers that refusal of sanction was unreasonable and that before proceeding with the appeal the court would give an opportunity for judicial review of that decision. Senior counsel states that his instructions were to proceed with judicial review, for which application for legal aid would be made. He concludes by saying

"Thus proceedings for Judicial Review of the Board's decision should be instituted forthwith as the Appeal Court will be monitoring progress. Thus there should be no slippage so that this aspect of the case can be disposed of forthwith".

Counsel was not in a position to explain why the course of action advised in the note was not carried out, other than to say that it may have been thought that the criminal appeal process had to be completed first, although that explanation did not fit with the view expressed in the note. I was advised that legal aid for judicial review had been applied for and refused. As I understood him, counsel argued that in SLAB were aware that the petitioner adhered to his view that his trial would not be a fair trial if he had no sanction for counsel. He argued that from the petitioner's perspective he took whatever steps he could take to assert that view. As will be seen below there was correspondence from the petitioner's agent at the end of 2008 and beginning of 2009 to the effect that the petitioner had not instructed an application for judicial review. Counsel argued that nevertheless the petitioner had not said unequivocally that he would nor seek judicial review; rather he had proceeded to attempt judicial review after he had exhausted his appeal rights in the criminal process.

The history of the application for judicial review
[10] The petitioner then raised an action for judicial review as a party litigant. On 9 May 2010 Lord Brodie declined to grant leave to allow the petition to proceed. The petitioner thereafter raised the current petition in which I was advised that he was represented by solicitors and counsel on a speculative basis, first orders being pronounced on 14 June 2010.

Submissions for the Petitioner
[11] The arguments which the petitioner sought to make in this petition were firstly that SLAB had applied the wrong test in refusing his application for sanction and, secondly if they had applied the correct test, they had nevertheless reached an ultra vires decision in refusing it. The second argument was on the basis that the decision was so unreasonable as to be a decision which SLAB was not entitled to make.

The statutory framework
[12] In order to understand the submissions made by the petitioner, it is necessary to consider the statutory framework. The Legal Aid (Scotland) Act 1986 by Section 21(4) provides:

"Criminal legal aid shall consist of representation, on terms provided for by this Act:

(a) by a solicitor and where appropriate by counsel."

By subsection 2 of the same section, the Secretary of State may, by regulations prescribe by reference to such considerations as appeared to him to be appropriate a class or stage of proceedings in connection with which criminal legal aid shall or as the case may shall not be available. No such regulations have been made.

[13] The Criminal Legal Aid (Scotland) Regulations 1996 provide by paragraph 14 as follows:

"14(1) Subject to sub-paragraph (2) below the prior approval of the Board shall be required:

(a) where the proceedings are in the High Court and are not proceedings relating to a prosecution or conviction for murder, for the employment of senior counsel alone, of senior counsel with junior counsel, or of more than one junior counsel;

(b) where the proceedings are in the Sheriff Court or in the District Court for the employment of counsel;

(c) for the employment of an expert witness; and

(d) for work of an unusual nature or likely to involve unusually large expenditure."

It can therefore be seen that legal aid may include representation in court by counsel when a case is indicted in the Sheriff Court. Such representation will require prior approval of SLAB. In terms of Section 21(4) sanction for representation by counsel may be granted where "appropriate".

[14] I was referred by both counsel to Hansard for the House of Lords debate on 6 March 1986 and the discussions of the First Scottish Standing Committee on 26 June 1986 to assist in the proper construction of Section 21(4). The current version of the Act is the result of amendment. In the Bill, the word "appropriate" did not appear; instead the phrase "so far as is necessary" did. In column 371 of Hansard, there was discussion of the meaning of "civil legal aid". The words used to apply to civil legal aid were the same as those used to apply to criminal legal aid and therefore both counsel argued that the discussion while concerning itself with civil legal aid was applicable also to criminal legal aid. At column 371, Lord Morton of Shuna moved an amendment to leave out the words "so far as is necessary". He argued that the word "necessary" meant in context that it had to be impossible for anyone else to do it. That would mean that counsel was never necessary in the sheriff court. He argued that the Legal Aid Central Committee currently had power to authorise counsel when it was appropriate and that that power should continue. The Lord Advocate pointed out that the formulation was the same as that found in Section 1(5) of the Legal Aid (Scotland) Act 1967. He said:

"It strikes a balance between the right of the assisted person to have proper legal representation and the need to ensure that unnecessary expenditure is not incurred from public funds.

Whether the employment of counsel is necessary in any particular case will usually be clear from normal legal practice, and the kind of case to which the noble Lord referred is the kind of exceptional case which the Board would probably decide if there were any doubt. However, I should have thought that there is no difficulty in such a case."

In resisting the amendment, the Lord Advocate said:

"The effect of the amendments would not be to allow the Board to decide when the employment of counsel was appropriate but to imply that counsel should or at least could be employed at the expense of the Legal Aid Fund in every case. That cannot be right having regard to the fact that civil legal aid is available in more than the Supreme Courts. But I think there is nothing unusual about this. It follows a formulation which is already within the existing legislation."

[15] At the report of the First Scottish Standing Committee in column 215, Mr Wallace, MP moved the same amendment as that moved by Lord Morton of Shuna. He argued that the words "so far as is necessary" were capable of being interpreted as having a regrettable effect on the provision of legal aid. He repeated the point made by Lord Morton of Shuna, to the effect that only in the higher courts could counsel be said to be necessary. He argued that there were clearly many circumstances in which it would be right and proper for the legal aid board to sanction the use of counsel in the sheriff court. In resisting that amendment, Mr John McKay, M.P., the relevant Minister, stated:

"whether it is necessary to employ counsel in a particular case will usually be evidence from normal legal practice. But in a case of doubt, the Board will decide. The Board will naturally balance the assisted person's right to proper legal representation against the need to avoid unnecessary expenditure from public funds as I am sure that the Legal Aid Central Committee does at present under Article 13(4) of the Law Society's 1958 scheme. There is no question of the employment of counsel being confined to courts in which only counsel have audience either under the present system or under the new system introduced by the Bill."

At column 219, Mr McKay said:

"I appreciate that words can have different meanings for lawyers, but 'wherever appropriate' is no less restrictive than 'so far as is necessary'".

[16] Thus the words "so far as is necessary" appear in the 1986 Act, apparently giving effect to the intention of the legislature that counsel would be sanctioned to appear in Sheriff Court cases in accordance with normal legal practice.

[17] Those words were deleted and the word "appropriate" was amended into the Act by the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990. Counsel for the petitioner argued that the import of Hansard was that the Act, as amended, should be construed as contended for by the Minister, that is that sanction would be granted in accordance with normal legal usage. He argued that the Act set out a test namely whether it was "appropriate" to sanction the use of counsel.

[18] Counsel addressed me on the guidance which SLAB have provided for agents. He submitted that his application for judicial review was not an application to reduce the guidance. He had no need to do that, as he argued that the guidance was merely guidance and that SLAB were obliged to implement the statute, no matter what appeared in their guidance. He argued however that the guidance was helpful in setting the context of the application and refusal, and indicated what SLAB had in mind in considering applications. That relevant at the time of consideration of the application is under Chapter 15 of a Guide produced by SLAB for use by agents. It begins in paragraph 15(1) by stating:

"You may have to apply to us for authority to employ counsel or expert witnesses or for unusual work or work likely to involve unusually large expenditure."

That is an accurate rendition of what is said in the Regulation and counsel noted that that the employment of counsel is something different from work likely to involve unusually large expenditure. The guidance proceeds at paragraph 15(4) to state:

"Regulation 14 list of situations where you need our prior approval to employ senior and junior counsel. The Regulations do not give any criteria for approval."

[19] Paragraph 15.5 headed "Cases where sanction is needed", states:

You must apply to us for sanction:

·       where the proceedings are in the judicial committee of the Privy Council or the High Court and are not proceedings relating to a prosecution or conviction for murder, for the employment of senior counsel alone, of senior counsel with junior counsel, or of more than one junior counsel.

·       where proceedings are in the Sheriff Court, whether under solemn or summary procedure, or in the District Court. If you seek representation by counsel in the District Court, we will expect you to show there are exceptional circumstances.

Counsel for the petitioner noted that the guidance indicated that exceptional circumstances were required for District Court cases rather than for Sheriff Court cases.

[20] In paragraph 15.8 headed "Information you should provide" the guidance states:

"You must apply for sanction to employ counsel on the form SANC/APP, as soon as possible, after identifying the need for sanction. You should give us:

·       full reasons why you need to employ counsel.

·       a detailed explanation of the background and any complex novel or unusual issues.

·       details to show that the issue is beyond the competence of either a practicing solicitor or junior counsel acting alone as appropriate. (emphasis added)

Reasons for sanction of or counsel must be supported by:

·       a full explanation of the reasons to justify the employment of counsel.

·       a copy of the indictment, petition, complaint or note of appeal as appropriate. You should highlight or otherwise identify sections being relied on in the sanction request.

·       A full detailed explanation of the pertinent circumstances, rather than a mere list of abstract factors, or a broad reference to the proceedings being complex, difficult or novel."

[21] In paragraph 15.9 headed 'Identification of Factors' the guidance states:

"We have to consider all the circumstances of the individual case.

You must give us sufficient information to enable us to weigh up any factors present. The existence of a factor or factors will not automatically trigger a grant of sanction. (For example, the sheer volume of witnesses or productions may not, of itself, justify counsel but counsel might well be justified in a serious fraud case where the volume of evidence creates evidential complexity).

Where the request is to employ senior counsel, you must satisfy us that relevant factors are present to an exceptional degree. Factors to be considered include:

·       Where the volume of evidence renders a case complex, it may be more appropriate to grant sanction for junior rather than senior or, where appropriate, leading junior assisted by junior than senior and junior. On the other hand, a novel or significant issue of law might indicate the need for senior counsel.

·       In general parity of representation will not, by itself, be sufficient basis for employing counsel. However, it may tend to show the importance the Crown places on the matter and should be persuasive in the decision to allow counsel and at what level of seniority.

·       In a criminal case in the Sheriff Court, we may not always view the severity of the likely sentence on its own as sufficient to justify the use of counsel but it is a factor we will consider carefully where there are other factors present to support the use of counsel. For example, if the Crown is using an Advocate Depute for the case, we will take this into account in considering whether sanction for the employment of counsel is justified.

·       Similarly where a remit may be made to the High Court for sentence, this is not in itself sufficient reason to sanction the employment of counsel at an early stage. Bear in mind that you can employ junior counsel without our approval in the High Court. (Often, the only factor put forward is that the case might be remitted to the High Court for sentencing in the event of a finding of guilt. This would rarely be sufficient to justify employing counsel for the conduct of the trial itself).

·       Where a case is likely to require cross-examination of another solicitor practising in the same locality, or if a procurator fiscal or a sheriff or a court official we will consider a request sympathetically.

·       A request for counsel simply because it will be necessary to lead the evidence of an expert witness would not normally be justified without reference to other salient circumstances.

Application for sanction may refer to an individual solicitor's circumstances. These could include any of the following:

·       The nominated solicitor's inability to attend the diet personally due to personal business or professional circumstances may justify the employment of counsel. The circumstances would not be exceptional and with no possibility that the case could be dealt with on an agency basis or by adjournment. A mere clash of dates would not normally justify the employment of counsel.

·       However, we may consider sympathetically the use of counsel where, just before the diet, the solicitor has suddenly become ill, or a partner or key member of staff has died or become ill. In that situation, you should tell us what other arrangements you have tried to put in place, and how the client may be prejudiced if they are not represented by either the nominated solicitor or by counsel.

·       Generally, you should not take instruction for work you are not in a position to undertake. However, the lack of availability of an experienced local bar in smaller, more rurally based courts may mean that solicitors may, from time to time, need to take on case work involving matters they are not familiar with and assistance might be needed to run the case. In more populated areas where there is a wide range of solicitors' firms, lack of experience would not be viewed as a supportive factor."

[22] Thus the guidance refers, among other things, to the issue at trial being "beyond the competence of a practicing solicitor".

[23] The notes by counsel which were submitted in support of the application for sanction were in such terms as to indicate that the writer of them had the legislation and the guidance notes in mind. In his first note, he set out briefly the charges and referred to the Crown case as having a significant number of productions and labelled productions. He described the Crown case as highly complex and voluminous without further elaboration. He explained that there were 66 Crown witnesses including highly technical witnesses and police officers. He noted that where there were 177 Crown productions, many of which productions were files containing a significant number of documents, and 89 labelled productions each containing a significant number of discs. There were technical matters which would need to be investigated and explained with regard to the labelled productions. Counsel said that, in view of the volume, the technical nature of the charges, the complexity of the evidence, the authorities on the statutory charges, the value involved and the possible ramifications if the applicant were to be sentenced that "an experienced agent would be unable to cope with this alone without the involvement of junior counsel". He went on to say that this was the type of case where the court would normally expect to see representation by junior counsel. He said that it was clearly appropriate and in the interests of justice for sanction to be granted. That application was refused. A further note was prepared by counsel in which he amplified on his earlier submission. He said that the case involved one of the most valuable seizures of counterfeit stock by the authorities in Scotland and that the wholesale value of the illegal music discs alone was £466,506. He referred to another case recently brought under the same legislation in which sentences of 20 months imprisonment after a plea of guilty were imposed, and in which the goods were worth more than £100,000. He noted that the present case involved a much greater sum and that the applicant was on six charges out of ten in the indictment spread over a period of months and at various places. There were complications in that he was charged art and part with some co-accused and with juveniles. Counsel asserted that this case could easily be remitted to the High Court for sentence should conviction ensue. He expanded on the voluminous nature of the productions which he had by then had an opportunity to see.

[24] He referred to the terms of the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA). He said that much of the Crown case depended on covert video surveillance and that objection might require to be taken, with reference to authorities from the European Court of Human Rights and elsewhere. There would also be arguments about whether warrants under which searches had been carried out were valid warrants. There was a further complication concerning searches in that some of the evidence gathering had been by persons other police officers. He referred to statutory defences which he described as complicated and he referred to corroboration being necessary to show that the applicant "knew or had reason to believe" that he was committing a breach of copyright law. He then noted that there were persons who had been originally alleged to have been involved in the matter but had now been made Crown witnesses. He noted that all of this might result in the necessity to make a submission under Section 97 of the Criminal Procedure (Scotland) Act 1995. He noted that a defence expert would be necessary and that the involvement of junior counsel in identifying and consulting with the defence expert would be invaluable. Finally, he referred SLAB to an extract from the Bonomy Report concerned with sanction for the employment of counsel and solicitor advocates in which it was said as follows:

"14.16 If the jurisdiction of the Sheriff Court is extended, the Scottish Legal Aid Board should review their policies in relation to granting sanction for the employment of counsel and solicitor advocates in cases in the Sheriff Court. That would counter the argument, deployed in opposition to extending the jurisdiction of the Sheriff Court, that the quality of pleadings is higher among advocates that among solicitors and thus higher in the High Court in general and would ensure that a wide choice of representation was available in serious Sheriff Court cases. In cases were it can be said with a measure of confidence that there is a risk that the accused will be sentenced to a period in excess of 3 years, the accused should have the same range of representation available to him as he would have under the present system."

That application was refused.

[25] A further note by counsel was produced dated 12 July 2007 in which counsel noted that the agent was a sole practitioner and stated that even if it was appropriate for him to conduct the trial he had an office to run and it would be impossible for him to devote the resources to the preparation and presentation of the complex case. He said that the location, a well known market, might lead to a novel submission under RIPSA. He referred once again to the Bonomy Report and submitted that the Board had failed to give it due weight. This application was refused.

[26] The letter from SLAB dated 2 May 2007 stated:

"whilst the value of the music discs is estimated at £400,000, it is noted that there are eight accused on the indictment. The issues involved in RIPSA authorisation is not so novel or complex as to be beyond a solicitor. There is no information of the complexity of the issues involved in the defence to the charges. While there will be a considerable amount of cross-referencing of evidence, this is not considered sufficient to merit the involvement of junior counsel."

[27] The second letter to which I was referred dated 8 June 2007 was rather longer and was written by the Head of Legal Services-Criminal of SLAB. He stated that the charges were considered together with the nature and extent of the evidence, the technical evidence, the police surveillance and the potential ramifications for the applicant but it was considered that these were "all matters that a solicitor could undertake and that there were not matters identified that demonstrated that the case was beyond a solicitor and justified the employment of counsel." He noted that "the charges themselves are not unknown in the criminal courts, there is available guidance and the case law together with the expert evidence for which, as appropriate, the separate sanctions could be applied for to address the Crown evidence regarding surveillance and evidence gathering by the police that presumably referred to RIPSA and search warrants these are not unknown in the summary courts and a solicitor is capable of conducting trials involving all of these matters". He noted that the ramifications for the applicant were considered but that was only one factor and predicated a finding of guilt. If there was such a finding and a remit to the High Court, which was not demonstrated, then the appropriate representation by counsel would be available at that stage. He then considered the review which had been sought and dealt with matters separately. As regards sentence, he said that had been considered already. As regards volume of evidence, he said that cross-referencing was a matter for agents to undertake and not junior counsel. As regards problems with the evidence, he said that RIPSA

"has been a fundamental part of the investigation of crime and Scottish criminal law since its introduction. It is not a new or used (sic) piece of legislation and is a matter that an agent should and would be expected to be familiar with. The taking of timeous objections, the admissibility of evidence and presumably the question of fairness, are all matters that an agent would be expected to be capable of undertaking. There was no information regarding the complications alluded to and the way in which such things were beyond a solicitor's capabilities. As regards warrants, the writer noted that warrants are always amenable to challenge and that that features in all cases. There had been no explanation given of how such a challenge could not be undertaken by criminal practitioners."

He then turned to the claims made concerning investigations by persons other than police officers. He said:

"It was stated that a significant part of the evidence gathering was done by investigators who are not police officers - the legal authority of their actions may become relevant - no further information was provided regarding any basis to challenge that they or the police were acting outwith their powers/in a way not authorised by the warrants referred to etc. There is guidance available from the High Court and the institutional writers regarding warrants together with Sheriff Stoddart's book and in the legislation regarding what is or is not competent but again insufficient information was available to show that this was beyond a solicitor."

He said of statutory defences and corroboration that no information had been provided as to how the circumstances was "beyond the solicitor's capabilities". In connection with the persons now used as Crown witnesses, he said that that was a regular occurrence in the criminal courts. He considered the possibility of a submission of no case to answer and said that there was no information to suggest that that was beyond a solicitor. In considering the Bonomy Report, the writer said that the applicant is one of a number of accused and whilst gravity is a factor, it is not the only factor and with this case, it has not been shown that this case is in the higher end of the Sheriff Court.

[28] Following a further review SLAB in a letter of 25 July stated:

"Counsel's note dated 12 July 2007 has been considered. However for the reasons previously intimated, it has not been demonstrated that the matter is so novel, complex or voluminous so as to take the case outwith the capabilities of a solicitor and make it appropriate that junior counsel is sanctioned. In reaching the view, the Board has not been influenced by the number of accused on the indictment."

[29] A further review was sought and the Board replied on 26 September 2007. With the review, agents had sought sanction for senior and junior to prepare and conduct the devolution minutes. Once again, the application for sanction for junior for the trial was refused on the basis that:

"the case was not so novel or complex to merit the employment of junior counsel and that the conduct of the case should be within the capability of a solicitor".

The writer of the letter expanded to some extent. He said that as regards sentence there had not been enough information to show that the applicant was facing a remit to the High Court for sentence. As regards volume of evidence, there was insufficient information to show how the volume of productions and the number of witnesses would add to the complexity of the case as to show that the conduct of the trial was beyond the capability of a solicitor. The agent being a sole practitioner did not show the need for the involvement of junior counsel. The writer reminded the solicitor that the guidance advised that generally, solicitors should not take instructions for work that they were not in a position to undertake. As regards RIPSA, the writer said that there was insufficient information to address the novelty and complexity of the matter. The writer said that the Board had not been influenced by the number of accused on the indictment. He said that as regards the remarks in the Bonomy Report, insufficient information had been given to show that this was a case which would previously have been conducted in the High Court, and furthermore, it had not been shown that the issues involved in the case were beyond the capability of a solicitor. Finally, the writer indicated that the application for senior and junior for the devolution minute had been refused. It seems that review of that was sought and by a letter of 27 November 2007, SLAB confirmed that it was refused and confirmed that for the avoidance of doubt, all the information including all notes forwarded by counsel had been considered once more. On 7 January 2008 SLAB wrote to agents advising that the matter had been considered by four different Board solicitors as well as SLAB's Cases Committee. It was refused, it not having been shown that the matter was so novel or complex as to merit the employment of junior counsel. Finally, SLAB refused new agents sanction for junior counsel to conduct the trial by letter dated 23 April 2010 to Messrs Beltrami & Berlow. In that letter, the Board stated:

"The application for sanction for the involvement of counsel in this case to conduct the trial is refused. Agents make reference to the notes from counsel provided in support of the earlier sanction applications. Our previous reasons for refusal are adhered to and reference is made to the decision letters from the Board.

It is not shown that the involvement of junior counsel is necessary in this case. The charges on indictment are not uncommon at sheriff and jury level. It is not shown that the volume and the nature of the evidence for consideration by the defence is sufficient to show a need for the involvement of counsel. The number of witnesses is not considered to be sufficient to merit counsel's involvement.

It is not shown that the issues for consideration by the defence are so complex as to merit the involvement of counsel.

It is not considered that the involvement of counsel is reasonable or necessary in this case."

[30] Counsel for the petitioner argued that SLAB had applied the wrong test. He argued that the letters sent by SLAB while not a model of clarity were clear enough to show that they had refused the application on the basis that nothing had been submitted to them to persuade them that the conduct of the trial was beyond the capability of a solicitor. He argued that that was not the test as it could be seen from the legislation that the grant of sanction for counsel should be made when it was appropriate so to do. Applicants did not need to show that the conduct of the case was beyond the capability of a solicitor. Nor did they need to show that the case would previously have been indicted in the High Court. He accepted that counsel who had written the notes to accompany the applications had made reference to whether or not matters were beyond the capability of a solicitor and he indicated that counsel had probably taken that from the guidance note written by SLAB. While counsel indicated that he personally would have written the notes in a different way he argued that it was up to SLAB to apply the correct test no matter what counsel said. Each time counsel had supplied more information SLAB had answered as though each point had to be addressed separately. SLAB should have considered the whole picture. Counsel's own note written jointly with junior counsel who had prepared most of the notes, set out the correct test, but the refusal was maintained. When Sheriff Hendry had given his judgment in the devolution minute he had indicated some surprise that SLAB had refused sanction. He had noted that the case was not of the ordinary sort to be found in the sheriff court. Counsel accepted that Sheriff Hendry was dealing with a criminal case and therefore was applying the law relevant to the devolution minute. Therefore any remarks he may have made about the legal aid application were obiter. The views of Sheriff Hendry were known to SLAB. They should have been given greater weight than they apparently were. He noted that SLAB when being directed to the Sheriff's views simply said that the Sheriff might not be aware of all the facts and circumstances. They did not elaborate on what they meant by that. Counsel noted that the fact that Mr Sweeney was a solicitor advocate had been introduced by one of the SLAB committee members, apparently as a further reason for refusal. The minute was produced by him. Counsel argued that Mr Sweeney's status as a solicitor advocate made no difference. What was being sought was sanction to instruct counsel (which includes solicitor advocates as well as members of the Faculty of Advocates) and if it were being suggested that Mr Sweeney, as a solicitor advocate, could deal with the case as a solicitor in some way differently because he was a solicitor advocate then that was wrong. In summary, counsel's submissions on his first argument were that the wrong test had been used by SLAB and that they had failed to ask themselves the correct question which was whether or not it would be appropriate in all of the circumstances to sanction the use of junior counsel. Instead they had employed a higher test, that of whether the trial would be beyond the competence of a solicitor. He argued that a logical application of that test would result in sanction never being granted in the sheriff court. He accepted that SLAB did grant sanction for counsel in the sheriff court in some cases, but argued that in this case the documents showed that they had applied the higher test.

[31] As to the second argument counsel made reference to a request made under the Freedom of Information (Scotland) Act 2002, by another counsel, for details of grants and refusals of sanction from SLAB which had resulted in statistics being supplied which he had lodged as productions in this case. He referred to one graph which showed that in the beginning of 2007 there was a decline in the number of requests for sanction which were granted. He noted that this happened at a time when the powers of sentence of the sheriff were increased. He argued that one would expect that there would be rather more cases granted at that time than less. He accepted that there had been no attempt by him to seek recovery of documents in this case to demonstrate what had been granted and what had been refused at the relevant time. He argued that the statistical information in itself showed that the decision was one which was unreasonable in the Wednesbury sense. He referred to the cases of Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, and the case of Padfield v Minster of Agriculture [1968] AC 997.

[32] Counsel indicated that he understood that counsel for SLAB intended to submit an argument on delay. He asked to hear that argument first and then reply. He explained that the answers had not been made available to him until shortly before the hearing. While the answers contain a plea of delay, they did not set out any argument directed to delay. I agreed that course of action.

Submissions for SLAB
[33] In response to the petitioner's counsel, counsel for SLAB dealt with the arguments in reverse order. He argued that the statistics did not show that the decision was unreasonable in the Wednesbury sense. The statistics were not developed to show any reasonable inferences could be drawn from them at all. It could not be argued that the decision to refuse sanction was on its face unreasonable as it was a decision which SLAB was entitled to make. Counsel for the petitioner had properly recognised that SLAB could refuse sanction, and therefore the argument that the decision was unreasonable could not succeed.

[34] He then moved to what he described as the real battleground which was the argument about the test applied by SLAB. He argued that no test was set out in the Act and that the terms of Section 21 were definitional. The point of the clause was to set out that criminal legal aid consisted of representation in court and that that representation was to be by legally qualified persons. He argued that the words "necessary" when the Act was passed, and as now amended, "appropriate", were not intended to set out a test. He argued that as originally enacted when the word "necessary" was used, it was plain that sanction had been granted for certain cases in the sheriff court and if one construed "necessary" as meaning "essential because no one else could do it" then sanction for counsel in the sheriff court would never be granted. That had not been the case. He argued that the reason for the substitution of the word "appropriate" was to bring the statute into line with practice. He submitted, tentatively, that it might have been connected to the introduction by that same act of solicitors with extended rights of audience. He did not elaborate on that proposition.

He argued that SLAB therefore have to decide, on receipt of an application, if it is appropriate. It must be axiomatic that full information should be supplied to SLAB to allow them to consider an application. The guidelines set out what an applicant's agent would be wise to do in making an application. They are not exhaustive but rather illustrative. It is necessary to consider all of the circumstances. If a person is a solicitor advocate that may be relevant, as showing a certain level of skill and experience. Therefore it is part of the whole circumstances which should be looked at in deciding whether or not it is appropriate to grant a sanction for counsel. He argued that none of the requests in this case were backed up by detail which would normally be sought. While assertions are made that RIPSA may become an issue, along with questions about warrants and persons no longer on the indictment, no clear indication is given that any of these matters are relevant to the defence, nor is it clear what defence there might be. Counsel submitted that in charges 9 and 10 the petitioner is the only accused person, and it was reasonable to expect an explanation in the application of how these abstract complexities feature in the case when he has in effect been caught red-handed. Counsel argued that it was trite law that the weight to be attached to any factor is a matter for the decision maker. The applications asserted that the matters involved were beyond the capabilities of a solicitor and it was therefore necessary to instruct counsel. SLAB could not be criticised for responding to the applications.

[35] Counsel argued that there is no necessity for SLAB to give reasons for their decision. He made reference rather in passing to the case of AB (Petitioner) 1991 SCLR 702 in which sanction for senior counsel in a criminal trial was refused. No reasons were given and it was held that as the decision was one for the Board to make and as there was no provision for reasons being given they were entitled to refuse unless the decision was one that was on the face of it unreasonable. It was said not to be such a decision. He argued in any event that as they had given reasons in this case, he would deal with what had been said. It was clear that SLAB had considered whether or not it was appropriate to grant sanction and in doing so had considered all that they had been told and had done so. Where legal aid is granted, and there is an application for sanction for counsel, then it is incumbent on SLAB to consider whether the application explains why the case is such as to take it out of the normal run of cases which are dealt with by solicitors. He made reference to the letter from SLAB dated 25 July 2007 in which the writer said

"However for the reasons previously intimated, it has not been demonstrated that the matter is so novel, complex or voluminous so as to take this case outwith the capabilities of a solicitor and make it appropriate that Junior Counsel is sanctioned. In reaching the view, the Board has not been influenced by the number of accused on the indictment."

Counsel argued that the letter showed that SLAB had applied the correct test, although he argued that there was no "magic" in using the word appropriate and that all of the correspondence showed that the correct test had been used.

Delay
[36] Counsel then went on to argue his second plea in law, which is that the petitioner having unreasonably delayed and acquiesced in the respondent's decisions, the petition should be refused. Notwithstanding its terms, counsel sought to argue that the petitioner had waived his right to apply for judicial review. He referred to the statement apparently made to the High Court. He argued that the applicant had intimated to the High Court, presumably after a procedural hearing, that he did not intend to seek judicial review of SLAB's decision. He referred to letters written by Mr Sweeney on 12 December 2008 and 20 January 2009. In the former Mr Sweeney said that

"1. As detailed in Senior Counsel's note seeking sanction application (sic)the Court gave the opportunity to the defence of considering progress by way of judicial review.

2. Mr McAllister has not instructed an application for judicial review. As the Board would be a party to such proceedings it is not considered appropriate to disclose the views taken on the matter."

and in the latter he said

"In reference to our response at point 2 of our letter dated 12 December 2008, we would have thought that it was perfectly apparent that the possibility of judicially reviewing the Board's decision not to make sanction available for Junior Counsel at trial would have been explored with our client, together with Senior and Junior Counsel, and that following advice given, the client's instructions were that Judicial Review should not be undertaken and that we should proceed with the Appeal Hearing."

[37] Counsel argued that delay may be a factor against granting relief in a judicial review case because one of the objects of judicial review is to encourage good government. In England there is a time limit of three months. In Scotland there is no time limit but litigants should not be allowed an approach to litigation involving administrative bodies which is clearly contrary to the interests of justice and proper administration. He accepted that SLAB did not have an interest in the way in which for example a local or licensing authority did in having decisions made and acted upon, but argued that there was an interest in the proper administration of justice. In this case a criminal trial has been held up for a long time. The applicant had said through his lawyers that he was not going to proceed to judicial review. The criminal case had already been delayed by the hearing of the appeal. The petitioner should not now be allowed to delay matters further by seeking judicial review. Counsel made reference to Lord Carloway's opinion in the case of Edgar Road Property LLP v Moray Council and British Land Company [2007] CSOH 88. At paragraph 23 Lord Carloway gave his opinion on mora taciturnity and acquiescence. It is not a matter of discretion for the court. Rather it is a matter to be decided by the court determining whether the party founding on such a plea has established it on the facts. Counsel argued that this is not a preliminary plea but a plea on the merits. I understood him to mean that delay could be in certain circumstances a reason to refuse an applicant relief to which he would otherwise be entitled in an action of judicial review. Counsel made reference to the case of Sommerville v Scottish Ministers 2007 SC 140, a case which had gone to the House of Lords and in which the opinion of the Lord President at paragraph 94 had been upheld. The point made was that prejudice is not necessary. As I understood counsel he argued that in the present case, the petitioner had not raised an action for judicial review until 2010, despite having been indicted in 2006 and having had his application for sanction refused in 2007. The Court of Criminal Appeal had been told by his agents that he was not raising such an action, and SLAB had been told that in the letters referred to. Therefore the whole circumstances of this delay had to be taken into account and were such as to justify refusing his application for judicial review.

Reply for the petitioner

[38] In reply, counsel for the petitioner submitted that the pleadings for SLAB did not include a plea of waiver. Their only plea is one of delay and acquiescence. He argued that it is clear from Lord Carloway's opinion in Edgar Road Properties that it is necessary to have averments about acquiescence in order to succeed in a plea of delay. He argued that there are no averments about acquiescence here. He argued that both Lord Wheatley and Lord Brodie had misunderstood the position when they thought that this petitioner had said that he was not going to proceed with a judicial review. The position was that he had concentrated his efforts on the criminal case and had proceeded as he thought necessary to exhaust that case before turning to judicial review. He had never intimated that he did not intend to apply for judicial review at some time. Counsel, while maintaining his position that there were no averments of acquiescence, argued that the correspondence and the apparent indication given to the Court of Criminal Appeal were not sufficient to amount to acquiescence. On the contrary, the petitioner had continuously advised SLAB that he did not believe he could have a fair trial without sanction for counsel, and so had given no indication that he gave up any right to seek to use any process available to him to endeavour to have the decision to refuse sanction reconsidered. Counsel argued that the criminal court had control over delay in a criminal process and that SLAB did not have an interest to assert in prevention of delay. On being asked if the court in the current petition had any interest to assert control over delay, counsel agreed that it did.

Discussion
[39] In this case, having considered all I have come to the view that the submissions of the petitioner in regard to the test used by SLAB are correct. That is not however determinative of the questions raised in this petition. As it was agreed between parties that there were no regulations or further legislation which gave any criteria for what "appropriate" meant, it seemed to me a sterile debate to argue as to whether this clause was a definition or a test. It seemed to me clear that the power given to SLAB, which had previously resided with the Central Legal Aid Committee, was to grant legal aid consisting of representation by a qualified lawyer, including sanction for counsel where it was appropriate so to do. I accept that the clause does give a definition of legal aid. It seems to me that it also sets a test, in very wide terms, which has to be satisfied in order that SLAB gives sanction for counsel. I am of the view that the words of the act and the extracts from Hansard show that it was intended that this would be governed by normal legal usage. That I hold to be a reference to existing practice of granting sanction for counsel in cases in the sheriff court, and to the practice of the court granting expenses in civil cases with sanction for the employment of counsel in the sheriff court. Neither counsel argued that anything turned on this being criminal legal aid rather than civil legal aid. It appears that no difference was made by the legislature between civil and criminal legal aid in this regard. It seems to me tolerably clear from the correspondence that SLAB considered the question of whether or not the case was beyond the capabilities or competence of a solicitor in deciding whether a grant of sanction would be appropriate. That was the wrong test. They were required rather to consider whether or not it was appropriate in all the circumstances to sanction counsel. It also seems to me clear that the applications were at least initially presented on the basis that the reason it would be appropriate to sanction the employment of counsel was that the work was beyond the capabilities of a solicitor. It is hardly surprising that SLAB considered the material put before them. However it is also clear that the guidance produced by SLAB makes reference to the work being beyond the capabilities of counsel. Thus SLAB were not simply responding to an argument put to them. I am of the opinion that counsel for SLAB was correct when he argued that SLAB did not require to give reasons for their decision. It seemed to me that a great deal of detailed work had been done by counsel in describing the case serially in notes, and by SLAB in considering them and replying in detail. I have some doubt as to whether all of that was necessary or justifiable when what was required was a description of the case and a decision whether, in all the circumstances, it would be appropriate to sanction the use of counsel. Counsel for the petitioner agreed that he would not have been able to mount his current arguments (though not conceding that he may not have other arguments) had SLAB simply said that having considered all of the information they did not regard the use of counsel as appropriate. However, as reasons were given I have to consider all that was said and I have formed the view that the test applied was not that in the legislation, but was a higher test.

[40] I do not accept counsel for the petitioner's argument that should he be wrong in the first argument about the correct test then the decision is one which is so unreasonable as to be ultra vires. In my opinion the statistical information referred to before me was not sufficient to enable me to draw any particular inference. Given that SLAB were entitled to refuse the application if they thought it was not appropriate to grant it, counsel correctly recognised that it was very difficult to argue that the decision was irrational.

[41] In relation to delay it appeared to me that the petitioner had attempted to exhaust his criminal remedies before proceeding to judicial review. He may have been advised so to do by his lawyers. Counsel for the petitioner was not able to submit that it would have been incompetent for the petitioner to have sought judicial review at the same time as proceeding with the devolution minute. He submitted that it would have seemed odd, but he could not argue that it would have been incompetent. It did not seem to me to be conducive to good administration to allow an indictment first raised in 2006 to remain outstanding until 2010 while remedies are followed in a serial fashion. Counsel for the petitioner told me that in his own view the devolution minute was unstateable. He himself had not made any argument at the Court of Appeal. While it was not clear from the papers provided to me that the petitioner had through counsel said that he was not proceeding with judicial review at any time in the future it was plain that the question of judicial review had been raised in the sheriff court and by the Court of Criminal Appeal and the petitioner had acted so as to show that he was proceeding with his criminal appeal and not proceeding with judicial review, taken at the best for him, at that time. There was no explanation for the apparent change of tack, from senior counsel advising that the application for legal aid for judicial review should be made as soon as possible, to the agent's letter to the effect that judicial review had been discussed but not instructed. I was told by counsel for SLAB that the application for legal aid for judicial review had to be considered by the Sheriff Principal and was not yet determined.

[42] It seemed to me clear that Lord Carloway's opinion in the Edgar Road Properties case was that delay was not in itself sufficient to operate as a bar to judicial review. In paragraph 24 his Lordship states that there must be the additional elements of taciturnity and acquiescence. Both counsel were agreed that prejudice was not required, in light of the Lord President's opinion in the Somerville case. In the present case there had clearly been delay in seeking judicial review. It was not entirely clear to me exactly why that delay had happened. Nor was it clear to me that the petitioner had ever indicated unequivocally that he did not intend to raise such an action at an appropriate time, depending on legal advice and funding. Plainly the information given to the Court of Criminal Appeal came close to that, as did his agent's letter to SLAB in 2008 and 2009. I was informed by counsel however that when he appeared in the Court of Criminal Appeal he gave no such indication and that he did not understand that any such indication had been given.

[43] I am persuaded on balance that the petitioner's plea in law should be upheld. I am influenced in so doing by the discussion in the Edgar Road Properties case. If delay in itself is not enough to act as a bar to judicial review, then I am of the view that in this case there are no sufficient averments of taciturnity and acquiescence to entitle me to hold that the whole circumstances are such as to enable an inference that the petitioner acted in such as way as to show that he abandoned his right to seek judicial review. That being so I have considered whether the decision making by SLAB was such as to require reconsideration by them. I considered whether the test which I have found SLAB applied was significantly different form the correct test. I have come to the view that while I regard it as a narrow case, reconsideration is necessary. I agree with counsel for SLAB that there is no 'magic' in using the word 'appropriate'. I agree with him that SLAB have a wide discretion to exercise in making their decision, and that the weight they place on various circumstances is for them to decide. I agree that SLAB were entitled to decide that counsel mentioned possible complications without explaining in any detail how they would arise in the case. I am however persuaded that the decision was made by applying the wrong test and that it was significant. SLAB asked themselves if it was shown that the trial would be beyond the capabilities or competence of the solicitor making the application. They took into account that he had extended rights of audience. They do not appear to have considered the point made by Sheriff Hendry, that the case was different from most sheriff court jury trials. I have come to the view that SLAB did not consider whether taken as a whole it would be appropriate to instruct counsel. I am of the opinion in all of the circumstances that the application should be reconsidered.

[44] I uphold the petitioner's plea in law. I was not addressed on expenses.