Scottish High Court of Justiciary Decisons

STEPHEN GAYNE v. PROCURATOR FISCAL, GLASGOW [1999] ScotHC 207 (12th August, 1999)

The appellant was charged on a summary complaint in Glasgow Sheriff Court with breach of the peace and assault to severe injury. He pled guilty to these charges by letter dated 2 March 1999. On 30 April at an intermediate diet the sheriff allowed the appellant's solicitor to withdraw the plea and to intimate a plea in bar of trial. On 26 May, after debate, the sheriff repelled the plea but granted leave to appeal under section 174(1) of the Criminal Procedure (Scotland) Act 1995.

The circumstances in which the point at issue arises are as follows. Legal aid was granted to the appellant by the Scottish Legal Aid Board on 6 April. In accordance with The Criminal Legal Aid (Fixed Payments)(Scotland) Regulations 1999, which came into force on 1 April and governed the legal aid in the present case, fixed payments are allowable to solicitors in summary proceedings. Under Regulation 4 of, and para. 1 of Schedule 1 to, the Regulations the sum of £500 is payable in respect of certain specified outlays and the professional services provided by the solicitor, covering all work up to and including (i) any diet at which a plea of guilty is made and accepted or plea in mitigation is made; (ii) the first 30 minutes of conducting a proof in mitigation other than in the circumstances where para. 2 applies; and (iii) the first 30 minutes of conducting any trial, together with any subsequent or additional work other than that specified in paras. 2-9.

According to the sheriff's report, he was informed that in the present case there were six Crown witnesses, including at least one child, and four defence witnesses. He was also informed that, on the basis of the previous legal aid rates which were in force prior to 1 April, the estimated cost of the outlays and work as described in para. 1 would be £949.35. It was also pointed out that, according to the annual report of the Scottish Legal Aid Board for 1997/98, the average cost per case in summary proceedings in the Sheriff Court which were disposed of without trial was £866.08. It was argued that this was the nearest equivalent to the work which would require to be done up to and including the first half hour of the trial.

The plea in bar of trial which was argued before the sheriff was on the basis of oppression. Mr. Shead, who appeared before this court for the appellant, adopted the same basis in contending that the sheriff had been wrong in repelling the plea. Mr. Shead submitted that it was clear that there were cases in which the court would interfere with the right of the Lord Advocate to proceed with a prosecution. In Normand v. Rooney 1992 S.C.C.R. 336, which was concerned with the effect of delay, it was held that the test for oppression was whether the harm or injury caused to the accused by the delay was so grave that no sheriff could be expected to reach a fair verdict in all the circumstances. Mr. Shead accepted that this was a high test, but submitted that it was met. At common law an accused had a right to a fair trial. One of the essentials to a fair trial was the provision of legal representation. Such representation must be effective representation. Where legal aid was granted it was because the Legal Aid Board were satisfied, in terms of section 24(1) of the Legal Aid (Scotland) Act 1986, that this was "in the interests of justice".

In support of his submission Mr. Shead referred to Article 6(3)(c) of the European Convention on Human Rights which states that the minimum rights of everyone who is charged with a criminal offence include the right "to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free where the interests of justice so require". This was a particular aspect of the general right to a fair trial under Article 6(1). The rights set out at Article 6 had their counterparts in the law of Scotland (Anderson v. H.M. Advocate 1996 S.C.C.R. 114 at page 121); and decisions of the European Court of Human Rights were considered by courts in Scotland for whatever persuasive effect they might have, pending the incorporation of the Convention (McLeod v. H.M. Advocate 1998 SCCR 77, per Lord Justice General Rodger at page 93). Mr. Shead referred to the decisions of the European Court of Human Rights in Airey v. Ireland (1979) 2 E.H.R.R. 305 and Poitrimol v. France (1993) 18 E.H.R.R. 130. He pointed out that in Shaw, Petitioner; Milne, Petitioner 1998 S.C.C.R. 672, in which those decisions were cited, the court, having pointed out that society as a whole had an interest in an accused person having a fair trial, stated at page 678:

Mr. Shead accepted that whether a fair trial could not take place, and hence that it was oppressive for the case to proceed, depended on the practical effect of the limit to the amount payable to the solicitor under the new Regulations. Legal aid should be adequate to allow proper preparation for trial. The assistance provided should be sufficient to enable witnesses to be precognosced, since it was important that particular questions should be put to them before the trial. Otherwise critical points might be missed. At what stage should a solicitor raise the difficulty which was created by the limit on legal aid? Should he conduct the defence in the knowledge that there had not been proper preparation? How could the sheriff make adequate allowance for the absence of defence witnesses who had not been cited? It would serve no useful purpose for the sheriff to adjourn the trial.

In reply the Advocate depute emphasised that the decisions of the European Court to which Mr. Shead had referred dealt with the situation in which the accused was without legal representation, and not a complaint that the quality of his representation was affected by the extent of funds available by way of legal aid. He cited the decision of the European Commission of Human Rights in M. v. United Kingdom, (No. 9728/82) (1983) which showed that it was recognised that financial restraints might be necessary to ensure the most cost effective use of funds available for legal aid. In that case the Commission found that Article 6(3)(c) did not require additional consultation between the applicant and his counsel where the latter did not consider this necessary for the proper pursuit of the appeal. The Advocate depute also emphasised that it was important to bear in mind, in regard to the question whether legislation was or was not compatible with the rights which were guaranteed by Article 6, that each country was entitled to a margin of appreciation. In the present case there was no question of the appellant lacking representation funded by legal aid. His solicitor had agreed to act for him on the basis of the allowances provided for under the new Regulations. So long as he continued to act for him, he was under obligation to act in compliance with the code of conduct for solicitors holding practising certificates issued by the Law Society of Scotland. Under Rule 5 of that code he was under a professional obligation to provide adequate professional services to the client. It could not be assumed that, even if he ceased to act for him, no other solicitor would be prepared to act for him on the same basis.

In my view the Advocate depute's response to Mr. Shead's submissions was well-founded. In the present case it may be taken that the Scottish Legal Aid Board were satisfied that it was in the interests of justice that the appellant should have legal aid for his defence against the charges. However, there is no question of his ceasing to enjoy the legal aid which was granted to him. The narrower question in the present appeal is whether the limit imposed by the new Regulations means that he cannot receive a fair trial. The Legal Aid Board were not entitled to grant the appellant legal aid except in accordance with the new Regulations. Neither the Board nor this court is able to disregard the new limits which have the force of law. On one view the appellant's complaint is directed to the question whether the Regulations are consistent with the rights to which Article 6 of the Convention refers. However, in considering any question of that sort it would be necessary to take into account the margin of appreciation which each country is permitted, the cost-effective use of limited resources and the extent to which solicitors are able to balance the higher level of cost in some cases against a lower level in others. However that may be, the question is whether the sheriff was in error in considering that the appellant could not receive a fair trial by reason of the limit imposed under the new Regulations. The appellant poses that question in a situation where he is still represented by a solicitor who has undertaken to act for him on the basis of allowances provided for under those Regulations. As matters stand it is little more than speculation whether the limit will have any practical effect on the extent and quality of the preparation for the trial, let alone anything which might put the fairness of that trial at risk. In Poitrimol v. France the European Court stated (at para. 34):

It has not been shown that there will be a failure in this respect, let alone that it is oppressive for the case to proceed to trial.

In these circumstances I consider that the sheriff came to the correct decision, and that this appeal should be refused.

I agree with what has been said by your Lordship in the chair.

However, I wish to add that I, for my part, am unconvinced that even a total lack of legal representation would necessarily result in an "unfair trial" and thus constitute "oppression" as that term has been understood in the past. Indeed, Mr. Shead very fairly accepted that, in general, the absence of legal representation might or might not lead to an unfair trial albeit, without such representation, the risk of unfairness is considerably greater. In that state of affairs, and in agreement with the sheriff, it seems to me that it will be very seldom, if ever, that the common law plea of oppression could be sustained in advance of trial in relation solely to the matter of legal representation or the lack of it. In saying that I respectfully associate myself with the minority opinion delivered by Mr. Justice Dawson in the High Court of Australia in Dietrich v. The Queen [1992] 177 C.L.R. 292. Moreover, while that case can be cited for the view that proceedings should in some way be "stayed" until legal representation is available, it is to be noted that the majority of the court confined that view to where "serious offences" were involved and, even as regards these, certain of the opinions delivered were not without qualification. Speaking for myself, I have some difficulty in seeing just where any line should be drawn as between serious and other offences or, for that matter, on which side of it the present case would fall. But it is in any event clear from the opinions delivered that the approach of the majority was based on the risk of a trial without representation proving unfair rather than on any acceptance of the argument that an enforced lack of representation would always, and of necessity, result in a miscarriage of justice.

It remains only to add that nothing which I have said should be understood as detracting in any way from the extreme desirability for legal representation in any case involving either legal or factual complexity. It is simply that there have been cases in the past and there may, I think, be cases in the future which fall into those categories and in which, despite the enforced lack of legal representation, a conviction can still be seen as having been fairly and properly obtained. I also recognise that rather different questions will arise in their own right if and when Article 6(3)(c) of the European Convention on Human Rights is actually incorporated into our law. For the present, however, both for the reasons given by your Lordship and the reasons set out above I am of opinion that this appeal should be refused.

For the reasons given by your Lordship in the chair and by Lord Marnoch I agree that this appeal should be refused.