Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 90

P127/16

NOTE BY LADY WISE

In the petition

by

WILLIAM FREDERICK IAN BEGGS

Petitioner;

for

Judicial Review of a decision by the Scottish Legal Aid Board dated 4 November 2015 to refuse an application by him for legal aid

Petitioner:  K Campbell QC;  Drummond Miller LLP

Respondents:  Crawford QC;  Scottish Legal Aid Board

5 May 2016

[1]        This hearing came before me in respect of an application for permission to proceed under Rule of Court 58.7.  The petitioner seeks review of a decision by the respondent, the Scottish Legal Aid Board, to refuse the grant of legal aid to support a proposed appeal to the UK Supreme Court.  The decision against which the petitioner seeks legal aid to appeal to the UK Supreme Court is that of the Inner House in an appeal under section 56 of the Freedom of Information (Scotland) Act 2002 – [2014] CSIH 10.  In essence the petitioner, who has been convicted of murder, continues to deny responsibility for the crime.  He states that he has information to the effect that the deceased he was convicted of murdering was engaged in a sexual encounter with another man close to the point when he was last seen alive.  He believes that those events were in part captured on CCTV located around Kilmarnock town centre, and that the police are in possession of that and undisclosed witness statements dealing with those events.  Parts of the information requested by the petitioner were ultimately released to him but he appealed to the Inner House against a decision of the Scottish Information Commissioner to withhold the balance of the information from him.  The Inner House was not persuaded that the Commissioner had fallen into any error of law in reaching the decision that he did and refused the appeal.

[2]        On 4 November 2015 the respondent refused the petitioner’s application for legal aid to appeal that decision to the UK Supreme Court.  Subsequently, on 10 December 2015 the respondent refused an application by the petitioner for legal aid to judicially review the decision of 4 November 2015.  The petitioner took that matter to a sheriff at Edinburgh (Sheriff Morrison QC) who decided that there was probable cause in the petitioner’s appeal to the UK Supreme Court and that it was reasonable to grant legal aid for a judicial review of the Board’s decision to refuse funding for the judicial review proceedings in this court.  Accordingly the petitioner has the benefit of legal aid for these proceedings.  However, the respondent maintains that there is no basis for judicially reviewing the refusal to grant legal aid for the substantial application to appeal to the Supreme Court.

[3]        At the hearing before me it was not in dispute that the test for permission is contained within section 27B of the Court of Session Act 1988 (as amended by the Courts Reform (Scotland) Act 2014).  The test in that new provision is that the court may grant permission for a petition of this sort to proceed only if satisfied that:

“(a)      The applicant can demonstrate a sufficient interest in the subject matter of the application, and

(b)        The application has a real prospect of success.”

It was not in dispute before me that the petitioner can demonstrate a sufficient interest in the subject matter of the application.  It was also agreed that the test of requiring a real prospect of success presented a fairly low hurdle for a petitioner to overcome. 

[4]        Mr Campbell QC for the petitioner submitted that the court should be cautious about taking an adverse view of proceedings of this sort early in the case when it may not yet be well prepared.  A note in the proceedings from Lord Bannatyne to the effect that the statements in paragraph 9 of the petition gave no explanation as to why the refusal for grant of legal aid was a manifest error should be read in that context.  Mr Campbell placed considerable reliance on the decision by Sheriff Morrison QC of 1 February 2016 to grant legal aid for these proceedings.  Sheriff Morrison examined the reasoning of the respondent in relation to the decision taken on the substantive refusal.  It was accepted that considerable emphasis was placed in the original application on an English case of Evans v Information Commissioner [2012] UKUT 313.  Sheriff Morrison considered that the respondent was correct in concluding that Evans was not in point and Mr Campbell conceded that point could no longer be regarded as an arguable one on the basis of which an appeal could be taken.  However, he relied heavily on Sheriff Morrison’s view that the petitioner has an arguable case for appealing the Inner House decision.  Further, he expressed the view that the case raises an issue of general public importance which should be considered by the Supreme Court.  He accepted that where Sheriff Morrison states at paragraph 6 of his note that it would be unreasonable to require the applicant to make a further application for legal aid, this appeared to be a misreading of the respondent’s decision of 4 November 2015.  The fresh application referred to in that decision must be a fresh application to the information commissioner.  Even so, it was argued that it was inevitable that the same response would be generated on a further application and so this could not be properly classified as an alternative remedy.  In any event, it was self-evident that a person of moderate means who had been convicted of murder would pursue a case such as this given that murder is the gravest of crimes.

[5]        Senior counsel for the respondents Ms Crawford emphasised that section 14 of the Legal Aid (Scotland) Act 1986 provides that civil legal aid shall only be available to a person if (a) the Board is satisfied that he has a probabalis causa litigandi;  and (b) it appears to the Board that it is reasonable in the particular circumstances of the case that she should receive legal aid.  For present purposes Miss Crawford was prepared to approach the matter on the basis that the petitioner may well have an arguable case and that seemed to be the approach of Sheriff Morrison.  However, in order to pursue judicial review proceedings against the respondent, the petitioner would require to point to some manifest error or irrationality in the decision made.  It was clear from the reasons given by the Board that there were four matters relied on in the refusal.  First, there was rejection of the petitioner’s reliance on the Evans case and that point was now conceded.  Secondly, the Board had reached a view on prospects of success.  In doing so it had taken account of the material provided in support of the application.  Thirdly, the Board noted and relied on the petitioner’s ability to make a fresh freedom of information request if he continued to be dissatisfied.  Fourthly, and finally the respondent considered that it would not be a good use of public funds to grant legal aid for an appeal to the Supreme Court in the circumstances of the case.  It was not relevant for the petitioner now to seek to give further reasons why it was in the public interest that disclosure be made to him of the material referred to.  That was not an argument made to the Inner House which explained why a fresh application would be required rather than appealing to the UK Supreme Court.  It was important to understand that the case was not about an alleged miscarriage of justice.  It was more narrowly about whether the police should disclose certain information to the petitioner who had applied to them.  The Legal Aid Board had a wide discretion in reaching its decision.  There was nothing to indicate it had exercised that discretion unreasonably.  One aspect of the decision-making process was prospects of success as part of the reasonableness leg as distinct from whether there was an arguable point of law.  Reliance was placed on the decision of Lord Kirkwood in McTear v Scottish Legal Aid Board 1997 SLT 108.  It was there made clear that in an application for judicial review of a decision of the Scottish Legal Aid Board the court could not interfere with a decision of the Board merely because the court might have reached a different conclusion or exercised its discretion in a different way.  Particular reference was made to the opinion at page 117B-E where it is made clear that the Board is entitled to reach its own view on prospects of success, having regard to but not being bound by any views expressed in counsel’s opinion.

[6]        Having considered the submissions and papers I rose from the bench for a short period to consider my decision.  The following is the script of the brief ex-tempore decision that I delivered:

“The test for permission to proceed in terms of section 27B of the 1988 Act is a relatively low hurdle for a petitioner such as Mr Beggs to overcome.  The argument in this case is about whether the petition discloses a basis on which it can be said that there was a ‘manifest error’ in the Legal Aid Board’s approach to the decision taken on 4 November 2015.  The Board’s decision was taken applying the test in section 14 of the Legal Aid (Scotland) Act 1986 which requires both probabalis causa litigandi and reasonableness.  The reasonableness leg affords the Board a very wide discretion – McTear v Scottish Legal Aid Board 1997 SLT 108.  For present purposes the respondent accepts that there is an arguable point of law in the petitioner’s proposed appeal to the UK Supreme Court and that the note of Sheriff Morrison, number 6/4 of process, appears to support that.  However, it is important to acknowledge that Sheriff Morrison’s note does not address the reasonableness leg of section 14.

The Board’s reasons for refusing legal aid for an appeal to the Supreme Court are based on four matters, the first of which is now conceded by the petitioner to be correct and the second, third and fourth of which are not challenged in any meaningful sense in the petition.  In assessing whether it was reasonable to grant legal aid, the Scottish Legal Aid Board was entitled to express a view on the material before it that prospects of success were not good and to feed into that the availability of a fresh request to the information commissioner, something a privately funded individual of moderate means would surely undertake rather than embarking on a risky and costly appeal to London.  In my view, no unreasonableness in the Wednesbury sense is identified at all in this petition.  It discloses no other judicial review grounds and the bald averments in paragraph 9 are an insufficient basis to allow it to proceed.  Accordingly I refuse permission to proceed as I can discern no real prospect of the petitioner succeeding.”

[7]        I understand that the petitioner has marked a reclaiming motion against my decision and this Note is provided to record the reasons given at the time.