Scottish Court of Session Decisions

Petitioner: Skinner, Advocate; Aitken Nairn, WS

9 March 2010

Introduction
[1] This is a petition for judicial review at the instance of SD of a decision of the sheriff at Glasgow, to refuse his application for legal aid, made in terms of Section 29(4) of the Legal Aid (Scotland) Act 1986, in relation to proceedings before the sheriff under Section 65(7) of the Children (Scotland) Act 1995 at the instance of the Reporter to find grounds of referral to a children's hearing established in respect of the petitioner's child, P. As the father of P enjoying parental responsibilities and rights, SD is a relevant person in relation to these proceedings in terms of Section 93(2)(b) of the 1995 Act. In terms of Section 29(4) of the 1986 Act, legal aid shall be available to a relevant person whose financial circumstances are such that the expenses of the case cannot be met without undue financial hardship to him, provided that the sheriff is satisfied that it is in the interests of the child that legal aid be made available. It is the petitioner's contention in this petition that by her conduct at the hearing on the petitioner's application for legal aid the sheriff acted contrary to natural justice and demonstrated bias against the petitioner and in coming to the decision to refuse legal aid that she took an irrelevant factor into account.

[2] The petitioner lives together with P and P's mother Ms L in the family home. The Reporter has referred the case of P to a children's hearing on the grounds that, in terms of Section 52(2)(c) of the 1995 Act, she is likely (i) to suffer unnecessarily; or (ii) be impaired seriously in her health or development due to a lack of parental care. In support of these grounds the reporter has submitted a Statement of Facts. The Statement includes the fact that the petitioner was convicted in the High Court of rape on a date in 2003. This is accepted by the petitioner. The Statement also includes the following:

"6. Both [Ms L] and [SD] minimise and show a lack of insight into the seriousness of [SD's]offence. [SD] has not accepted full responsibility for his actions or shown victim empathy. Being exposed to these attitudes is likely to harm [P's] development.

7. [Ms L] is aware of the full details of [SD's] conviction ... [Ms L] does not accept that [SD] poses any risk to [P] and as such [Ms L] is unable to ensure [P's] developmental needs."

These facts are not accepted by the petitioner and he would wish to challenge them at the hearing on the grounds of referral. It was with a view to funding representation at that hearing that he made the application for legal aid. Ms L and the curator ad litem to P have been granted legal aid for the hearing.

[3] The petitioner avers:

"The petitioner's application was first considered by the [sheriff] in chambers without the petitioner being present or represented. The sheriff had before her the Statement of Facts, the legal aid application and a precognition of the petitioner ... the petitioner believes that the sheriff indicated that she was minded to refuse the application. As is common practice in such circumstances in Glasgow Sheriff Court, a hearing was fixed to allow the petitioner's agent to address the sheriff on the application. Said hearing was fixed for 22 December 2009 when the petitioner was represented by his agent, [Mr A]. At the outset of the hearing, [Mr A] confirmed that grounds 1-5 inclusive were accepted and went on to say that statements of fact 6 and 7 were important and were denied. Before he developed his submission the sheriff read through the grounds and asked if the Statement of Fact relating to the conviction for rape was accepted. [Mr A] confirmed that it was. The sheriff then said that she did not consider that it was in the interest of the child that she grant legal aid. [Mr A] then went on to say that in his submission it was in the interests of the child that the court hearing the case make a properly informed decision and that required all parties to participate. He began to develop a submission ... At that point and during the course of his submissions the sheriff interrupted [Mr A] and stated '[Mr A], I am not prepared to grant legal aid to a man convicted of rape'. She then confirmed that she was adhering to her decision. The hearing concluded. [Mr A] was not afforded the opportunity to develop his submission further."

Submissions
[4] The petition came before me for a first hearing on 26 February 2010. The petitioner was represented by counsel. None of the parties on whom the petition had been served appeared. Notwithstanding the absence of any contradictor, counsel recognised that I had to be satisfied as to the competency of the application if I was, as came to be his motion, to order a second hearing of the petition in terms of Rule of Court 58(2)(b)(ix). Reservations as to competency had been expressed by Lord Emslie when he had granted first orders in the petition on 4 February 2010.

[5] It was counsel's submission that the application was competent. Lord Emslie had suggested that consideration be given to the identification of a better or different remedy, perhaps by way of an application to the nobile officium. Counsel advised me that there was no statutory appeal from the sheriff's refusal of legal aid. Contrary to Lord Emslie's suggestion, there was no obvious alternative remedy that was better than an application to the supervisory jurisdiction of the Court of Session, as regulated by Chapter 58 of the Rules of Court. The supervisory jurisdiction was a wide one. Decisions of the Scottish Legal Aid Board had been held to be amenable to judicial review: K v Scottish Legal Aid Board 1989 SLT 617 (where competency was considered); and McTear v Scottish Legal Aid Board 1997 SLT 108 and S v Scottish Legal Aid Board 2007 SLT 711 (where competency was not challenged). While in terms of Section 29(2)(c)(i) and (4) of the 1986 Act, an application for legal aid in respect of proceedings under Section 65(7) of the 1995 Act must be made to the sheriff, in the event of an appeal to the Sheriff Principal or Court of Session in respect of a decision made by the sheriff in Section 65(7) proceedings (under Section 51(11) of the 1995 Act) then, in terms of Section 29(2)(b) and (5) of the 1986 Act, an application for legal aid for the appeal hearing must be made to the Scottish Legal Aid Board. It seemed clear that a refusal of legal aid by the Scottish Legal Aid Board in these circumstances would be subject to judicial review. It would be anomalous if a refusal by the sheriff were not so subject, particularly given that the criteria to be applied by the Scottish Legal Aid Board, on the one hand, and the sheriff, on the other, are, while not precisely the same, at least broadly similar. The author of Kearney, Children's Hearings and the Sheriff Court (2^nd edition) a highly regarded and very experienced retired sheriff, states at paragraph 33-04 that the refusal of legal aid by the sheriff may be the subject of judicial review. While Sheriff Kearney cites no authority from that proposition, it is entirely consistent with principle. There is nothing novel about the Court of Session reviewing the decision of an inferior court by way of reduction: Walker The Law of Civil Remedies in Scotland at pages 171 to 172. What was sought here fell squarely within the principles enunciated in West v Secretary of State for Scotland 1992 SC 385. The distinction which was once made as between decisions which were judicial (and therefore amenable to review) and those which were administrative (and therefore not amenable to review) is no longer valid: Watt v Strathclyde Regional Council 1992 SLT 324 at 329A-E, Clyde and Edwards Judicial Review paragraphs 8.20 to 8.26. This was not a case where it was clear that there was an alternative remedy available with the result that judicial review was excluded in terms of Rule of Court 58.3(2). Were it to be suggested that the proper remedy was by way of action of reduction, under reference to the decisions Bell Fiddes 1996 SLT 51 at 52H and Saunders Petitioner 1999 SC 564, that would be wrong. The view expressed by Lord Menzies in Glasgow City Council Petitioner 2004 SLT 61 at 69D was to be preferred. Regard should be had to what Lord Menzies said in Glasgow City Council Petitioner supra at 69A to the effect that a respondent cannot escape the supervisory jurisdiction by pointing to "arcane or rarely used means of appeal of doubtful efficacy". Even where an alternative remedy may exist or may have existed, justice may require the court to exercise its supervisory jurisdiction where justice so requires: Network Rail Infrastructure Ltd 2008 SLT 25. The critical question is whether a jurisdiction had been entrusted to the sheriff. If so, she was subject to judicial review in the event that she exercised that jurisdiction unlawfully, unless it was clear that an alternative remedy was available to the petitioner.

Discussion

[6] The petitioner seeks reduction of the decision of the sheriff refusing his application for legal aid and an order granting that application, failing which an order requiring the application to be reconsidered by another sheriff of Glasgow and Strathkelvin at Glasgow, together with such further order or orders in the circumstances as to the court shall seem proper. The petitioner is therefore inviting the Court of Session to exercise its supervisory jurisdiction over an inferior court. The procedure through which he seeks to obtain this remedy is that provided by chapter 58 of the Rules of Court. I have been persuaded that my initial doubts about the competency of this petition were not well founded. As I consider that on no view can the remedy sought by the petitioner be granted without further enquiry into what precisely happened at the hearing before the sheriff and without giving the sheriff the opportunity to report on any aspect of the petition that she considers appropriate but, in particular, the averments as to her alleged conduct, I shall therefore order a second hearing in terms of RCS 58.9 (2) (ix).

[7] In deference to the submissions that I heard I should explain the basis of my conclusion as to the competency of the petition.

[8] It is the case, as counsel submitted, that refusals of legal aid by the Scottish Legal Aid Board have been the subject of judicial review. In K v Scottish Legal Aid Board supra Lord Cullen held that such a challenge was competent and competency has not been challenged in the subsequent cases. I agree that it might look to be anomalous if judicial review was not available to challenge a refusal of legal aid for the hearing on the grounds of referral but was available to challenge a refusal of legal aid for the appeal against a decision made at the hearing but of itself this cannot be determinative. Anomalies occur. However, that decisions of the Scottish Legal Aid Board refusing legal aid may competently be made subject to the supervisory jurisdiction of the Court of Session gives support to the same sort of decision, when made by the sheriff, also being subject to that jurisdiction.

[9] As a matter of generality, the decrees and other decisions of inferior tribunals are subject to the supervisory jurisdiction of the Court of Session. As counsel submitted, this follows from the first principle enunciated by the Court in West supra at 412:

"The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or other instrument".

As noted above, the procedural vehicle by which the supervisory jurisdiction is exercised is as now provided by chapter 58 of the Rules of Court and now only by chapter 58: West supra at 404. That the Sheriff Court is a tribunal subject to the supervisory jurisdiction is demonstrated by what was said by the Lord Justice-Clerk in Lord Advocate v Johnston 1983 SLT 290 at 293 and by Lord Morison, giving the Opinion of the Court under reference to what had been said in Lord Advocate v Johnston, in Gupta's Tr v Gupta 1996 SC 82 at 84. Lord Advocate v Johnston and Gupta's Tr v Gupta were appeals, but there are examples of challenges to a decision of the sheriff being made by way of petition for judicial review. They include Lothian Regional Council v Lord Advocate 1993 SCLR 565 (where competency was conceded) and Ho, Ho, Hong and Chin v Lord Advocate 2004 SC 1 (where a plea to the competency was repelled). In Reynolds v Christie 1988 SLT 68, Lord Morison dismissed as incompetent a petition for judicial review of the decision of a stipendiary magistrate to refuse an accused person legal aid to defend a criminal charge (a factual situation not very different from the present case) but his reason for doing so was that he took the view that the petitioner was seeking to invoke the supervisory jurisdiction in respect of criminal business. It being a matter of criminal business the application should have been to the High Court of Justiciary for an exercise of the nobile officium of that court. The availability of judicial review of decisions of the sheriff is subject to the terms of RCS 58.3 (2) to which I shall return, but, as appears from West, there is no question but that, to use the language of the Lord Justice-Clerk in Lord Advocate v Johnston, the Court of Session has a super-eminent power to "rectify an injustice occasioned by the sheriff doing something which in the proper exercise of his judicial duty he was not entitled to do." A fundamental feature of an application to the supervisory jurisdiction is that it proceeds on averments that the inferior tribunal has exceeded or abused its jurisdiction, powers or authority or failed to do what the jurisdiction, power or authority requires: West supra at 413. I do not intend to enter into questions of relevancy but I would accept, as counsel submitted, that there are such averments in the present case.

[10] I now return to RCS 58.3 (2). Consideration of the question of competency with the assistance of the submissions of counsel, albeit in the absence of a contradictor, appeared to indicate that the only real question over the availability of judicial review in the present case arose from the possibility of there being an alternative remedy and therefore whether RCS 58.3 (2) excluded the application. This was the direction in which Lord Emslie had pointed the petitioner at the stage of making first orders. Clyde and Edwards supra have this at paragraph 12.01:

"As a general proposition it may be said that judicial review is not available if there is an alternative means of relief open to the applicant."

At paragraph 12.02 they go on:

"The point is reflected in the provisions of Rule of Court 58.3 (2) ...It is thought that this rule does not constitute any separate obstacle to recourse to judicial review where an alternative remedy exists, but only provides that alternative statutory remedies should be pursued under their own procedure rather than by the procedure under judicial review."

Rule of Court 58.3 is in the following terms:

"58.3 - (1) Subject to paragraph (2), an application to the supervisory jurisdiction of the court, including an application under section 45 (b) of the Act of 1988 (specific performance of statutory duty), shall be made by petition for judicial review.

(2) An application may not be made under paragraph (1) if that application is made, or could be made, by appeal or review under or by virtue of any enactment."

The question therefore is whether this application, which seeks, inter alia, reduction of the sheriff's decision refusing legal aid, could be made "by appeal or review under or by virtue of any enactment."

[11] Bell v Fiddes 1996 SLT 51 was an application by means of petition for judicial review for reduction of a sheriff court decree pronounced in absence. Counsel for the respondent argued that the petition was incompetent as not falling within chapter 58. He pointed out that there were separate rules dealing with petitions for suspension (chapter 60) and actions of reduction (chapter 53). In dismissing the petition as incompetent Lord Marnoch said this (at 52H):

"I can well understand that the phrase 'supervisory jurisdiction of the court' could be taken to cover, in its widest meaning, actions of reduction of inferior court decrees and indeed, perhaps, various other forms of legal process. In my opinion, however, particularly in light of the recent revision of the rules, it is not to be presumed that other provisions dealing specifically with these matters are simply otiose. Rather do I think that ...for the purposes of chapter 58 the reference to the 'supervisory jurisdiction of the court' must be construed as excluding procedures for which specific provision is made elsewhere in the rules and as being, in effect, confined to the type of jurisdiction described and delineated by the First Division in West v Secretary of State for Scotland. Indeed, standing the very clear guidance given by the First Division on this matter, I do not consider that it would have been open to me to decide otherwise."

Lord Marnoch's reference to the proper construction of "supervisory jurisdiction of the court" is explained by the submission by counsel for the petitioner who had conceded that the petition did not fall within the principles of West (it was sought to reduce a decree pronounced in absence and suspend and interdict diligence) but nevertheless submitted that any reduction of a decree of an inferior court could only stem from an exercise of the supervisory jurisdiction. Lord Marnoch accepted that as a possible use of language but he explained that in the context of chapter 58 the expression was to be understood in the narrower sense of review of abuse of power as described in West.

[12] I would respectfully agree with the correctness of the decision in Bell and, indeed, everything said by Lord Marnoch, if I have understood him correctly. He was concerned to reject a submission to the effect that chapter 58 had superseded or rendered otiose chapters 53 and 60 of the Rules of Court in every case where what was sought was reduction or suspension of the decrees of inferior courts. I agree with Lord Marnoch that that is not so. It not only remains competent to seek reduction of a sheriff court decree by way of an action of reduction, as is referred to in chapter 53, but in a case such as that with which Lord Marnoch was concerned that may be the only way to proceed. It does not follow that where the application is to the "jurisdiction described and delineated by the First Division in West v Secretary of State for Scotland" the procedure should not be in terms of chapter 58, simply because a remedy sought (RCS 58.4 uses the expression "order") is reduction of a decree or other order of an inferior court. Bell is certainly not authority for that proposition. When Lord Marnoch says that the 'supervisory jurisdiction of the court' must be construed as excluding procedures for which specific provision is made elsewhere in the rules", I would again agree if, as I think he is, he is simply explaining that the meaning of the expression where it appears in chapter 58 is the narrower rather than the wider one.

[13] More problematic is the decision of Lord Maclean in Saunders Petitioner

1999 SC 564. That case was an application brought in terms of chapter 58 for reduction of a decree of the sheriff granting a reponing note. Counsel for the respondent argued that the petition was incompetent, being excluded by RCS 58.3 (2) in that the application could be made by "appeal or review under or by virtue of any enactment". The word "enactment" comprehended the Rules of Court and RCS 53.2, so counsel asserted, provided for just the sort of application that had been made in that case. He founded on Lord Marnoch's observations in Bell v Fiddes which, he suggested, well illustrated the point that he sought to advance, and he commended Lord Marnoch's reasoning. Lord Maclean acceded to the argument and said this in dismissing the petition as incompetent:

"I am in no doubt that counsel for the respondents is well founded in his submission. The substance of the petition is the reduction of a sheriff court decree. Separate provision for that is made in Rule of Court 53.2 which has its own specific procedure by way of intimation to the inferior court. It matters not, as it seems to me, that the case might also fall within West principles, which both counsel, as it happens, thought this case did. Rule of Court 58.3(2) makes it abundantly clear that an application for judicial review in terms of that chapter may not be made if the application could be made by appeal or review under another specific rule of court. I will therefore uphold the [respondent's] first plea-in-law. I hold the petition to be incompetent, and I will dismiss it."

My difficulty with this passage, which contains all of Lord Maclean's reasoning, is the statement that special provision for the reduction of a sheriff court decree is made in RCS 53.2. That is so in only a very limited sense (at least as far as the current text of the rule is concerned). To my mind there is simply no question of an action with a conclusion for reduction, whether of a sheriff court decree or any other writing or act, being made "under or by virtue of" RCS 53.2 or, indeed, any other rule within chapter 53. Reduction is a very long-established common law remedy (the same can be said for suspension) for annulling a wide variety of acts or writings adverse to the pursuer's rights. Chapter 53 does not set out to restate the right to bring an action with such a conclusion or indeed deal with the availability or competency of the remedy in any way whatsoever. Rather, under the general heading "Actions of Reduction", there is in chapter 53 an assortment of provisions dealing with some aspects of procedure incidental to certain situations. RCS 53.1 allows there to be conclusions for suspension, interdict and liberation where diligence may proceed on a document which it is sought to be reduced. RCS 53.2 provides for intimation to the clerk of an inferior court or tribunal the decree, order, decision or warrant of which it is sought to reduce. RCS 53.3 to RCS 53.7 make provision for the production of documents which are sought to be reduced. RCS 53.8 allows for challenge to deeds ope exceptionis. There is nothing further in the chapter. RCS 53.2 assumes that it is competent to seek to reduce a decree, order, decision or warrant of an inferior court or tribunal but it does not confer the right to do so or regulate the applicable procedure in any comprehensive way. It simply requires intimation to the clerk at certain stages in a case that is proceeding by way of action. In Glasgow City Council Petitioners supra at 69E Lord Menzies declined to give RCS 58.3 (2) "the extended meaning suggested in Saunders". In Ho, Ho, Hong and Chin v Lord Advocate, Saunders was ignored. I would follow Lord Menzies. With all respect to Lord Maclean, I do not consider that his construction of the effect of RCS 58.3 (2) is one that is available. I am attracted by Lord Menzies's view that "appeal or review under or by virtue of any enactment" does not comprehend other provisions of the Rules of Court but it is unnecessary for me to come to a conclusion on that. Counsel advised that there was no statutory provision for appeal or review of the sheriff's decision to refuse legal aid. That the sheriff's decision refusing legal aid was not reduced to writing does not prevent it being reduced: Bain v Hugh L S McConnell Ltd 1991 SLT 691 at 695C. In all the circumstances that have been brought to my attention, I consider the present petition to be competent.

Second Hearing

[14] RCS 58.9 provides what the Lord Ordinary may do at a first hearing. Being satisfied that there had been service on the parties designated in the Schedule, as ordered by Lord Emslie, and having heard counsel, but only on the issue of competency, I did not consider it appropriate to determine the petition without further enquiry and therefore will order a second hearing. For my own part, irrespective of what other remedies it may grant, I very much doubt whether it is open to this court to grant the petitioner's legal aid application, as the petitioner seeks. That appears to me to be something that only the sheriff can do: cf Reynolds v Christie supra and K v Scottish Legal Aid Board supra. However, I make no decision about that. The matter can be considered at the second hearing in the event of the petitioner insisting on that feature of his application. Similarly, I make no decision as to the relevancy of the petitioner's averments. Relevancy can be considered after the petitioner has had the opportunity to prove them and for that purpose I will order, in terms of RCS 58.9 (2) (b) (vi), that all facts founded on by the petitioner be supported by evidence on affidavit. I shall also request the sheriff (but not order her) to provide a report to this court on any aspect of the petition that she wishes but in particular, the truth or otherwise of the averments as to her alleged conduct of the hearing. In terms of RCS 58.9 (2) (ix), I require to specify the issues for consideration at the second hearing. These are whether the petitioner's averments are established and what, if any, remedy the petitioner is entitled to, having regard to what is established.