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PROCURATOR FISACL, FORT WILLIAM v. NORMAN McLEAN and PETER McLEAN [2000] ScotHC 58 (4th May, 2000)
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Prosser Lord Milligan Lord Morison |
Appeal No: 2518/99 2517/99 OPINION OF THE COURT delivered by LORD PROSSER in NOTE OF APPEAL TO COMPETENCY and RELEVANCY under section 174(1) of the Criminal Procedure (Scotland) Act 1995 by PROCURATOR FISCAL, Fort William Appellant; against NORMAN McLEAN and PETER McLEAN Respondents: _______ |
Appellant: Menzies, Q.C., A.D., Di Rollo, ; Crown Agent:
P. Cullen, Q.C., Crawford for Lord Advocate
Respondents: Stacey, Q.C., Collins; J. Friel & Co.: Bovey, Q.C., Devlin; G. Sweeney & Co.
15 June 2000
[1] In terms of a complaint at the instance of the appellant, who is the Procurator Fiscal at Fort William, the respondents Norman McLean and Peter McLean were charged with two offences. Both offences were charged as having been committed by both respondents, while acting along with others whose identities were unknown. The first charge was that on 21 April 1999, on MFV "Fiona Thomsen", New Pier, Mallaig, they assaulted Jose Sandos to his injury, the respondents having previously evinced malice and ill-will. The second charge was that on the same date at New Pier, Mallaig, they conducted themselves in a disorderly manner, shouted and swore at Jose Sandos and committed a breach of the peace. In terms of each charge, it is stated that it will be proved in terms of section 96 of the Crime and Disorder Act 1998 that the offence was racially aggravated. After sundry procedure, the details of which are not now in point, pleas in bar of trial were entered on behalf of each respondent, founded upon the terms of Minutes lodged under the Devolution Issues Rules. After hearing submissions on dates in September and October 1999, the Sheriff continued the diet to 5 November, to allow him to consider submissions. On 5 November, he sustained the plea in bar of trial taken by each of the respondents, and dismissed the complaint. He granted leave to appeal ex proprio motu, and by Note of Appeal dated 8 November 1999 the appellant appealed.
[2] At the hearings before the Sheriff on the Minutes, the two respondents were separately represented. The Crown was represented by the appellant, but in addition the Lord Advocate was represented by counsel, who made submissions on his behalf. The Advocate General for Scotland did not enter appearance. Before this court, the Advocate Depute representing the appellant and the Lord Advocate as having overall responsibility for the prosecution, explained that the Lord Advocate had also instructed separate counsel, in relation to those aspects of the appeal which affected the Lord Advocate's non-prosecution functions. No objection was taken to the Lord Advocate being thus separately represented in respect of different functions; but in the event, counsel representing him in respect of other matters made no substantive submissions, and it is not necessary for us to comment on the form of representation which was adopted. The two respondents were again separately represented by counsel; but it is to be noted that the Minutes lodged by them are in almost identical terms, and that while there were differences between the separate submissions advanced by their solicitors before the Sheriff, which went somewhat further than contemplated in terms of the Minutes, without objection, the Sheriff's reasoning and decision are equally applicable to the two respondents. The submissions of the Advocate Depute in this court were likewise equally applicable to each of the two respondents; and while the submissions made by counsel for each of the two respondents naturally took somewhat different forms, the issues are the same in respect of each of them, and such differences as there were in the contentions advanced by counsel do not make it necessary for us to distinguish between the two respondents in considering and disposing of the appeal.
[3] On certain fundamental matters the parties are not at issue. Section 57(2) of the Scotland Act 1998 provides that "A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law." By virtue of subsection (3), subsection (2) does not apply to certain acts of the Lord Advocate, but subsection (3) does not affect the application of subsection (2) in the circumstances with which we are here concerned. Before the Sheriff, the appellant accepted that for the purpose of devolution issues the Procurator Fiscal acts with the authority of and on the instructions of the Lord Advocate, in his capacity as head of the Prosecution Service in Scotland. That remains the position of the Crown in this appeal. It was accepted that the continuation of the prosecution of the respondents would constitute an "act" of the Lord Advocate for the purposes of section 57(2) of the Scotland Act 1998. The fundamental question is whether that act, of continuing with the prosecution, is incompatible with any of "the Convention rights". It is accepted that by virtue of section 126(1) of the Scotland Act 1998, and section 1(1) of the Human Rights Act 1998, the Convention rights include the rights set out in Article 6 of the European Convention on Human Rights. In upholding the pleas in bar of trial advanced by the respondents, the Sheriff has held that the act of the Lord Advocate in continuing with their prosecution is an act incompatible with certain of the rights set out in Article 6.
[4] Article 6 is in the following terms:
"Article 6
Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in
detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) 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 when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or
speak the language used in court."
[5] The provisions of Article 6 which lie at the heart of the present proceedings are heads (b) and (c) of paragraph 3, although head (d) of the paragraph was also said to be relevant. And while reference was made to certain specialities which arise or may arise in relation to the defence of these respondents, the main issue is a very general one, affecting all criminal prosecutions upon summary complaint where an accused person has legal aid, and the amounts payable to his solicitor are regulated by the Criminal Legal Aid (Fixed Payments)(Scotland) Regulations 1999 (S.I. 1999/491). These regulations came into force on 1 April 1999. They apply only in respect of "relevant criminal legal aid", which is defined as meaning "criminal legal aid provided by a solicitor in relation to summary proceedings other than excluded proceedings", subject to certain provisions as to the date when such legal aid is first made available or granted. The categories of proceedings which are defined as "excluded proceedings" are somewhat special and have no real bearing on the contentions in the present case.
[6] Regulation 4 of the 1999 Regulations makes provision for "fixed payments allowable to solicitors". It provides, inter alia, as follows:
"(1) There shall be made to a solicitor who provides relevant criminal legal aid in summary proceedings, in respect of the professional services provided by him and the outlays specified in paragraph (2) below, and in accordance with the provisions of this regulation, the fixed payments specified in Schedule 1.
(2) The outlays specified in this paragraph are all outlays in connection with -
(a) the taking, drawing, framing and perusal of precognitions;
(b) the undertaking by another solicitor of any part of the works; and
(c) photocopying."
Paragraphs (3) to (8) of the Regulation make a number of provisions dealing with particular circumstances. It is worth noting that the reference to summary proceedings in paragraph (1) is a reference to proceedings on a single summary complaint or on complaints which arise out of the same incident; that where a solicitor acts for more than one assisted person, he is paid substantially reduced percentages of the fixed payments in respect of all but the first; and that where the Scottish Legal Aid Board grants an application for a change of solicitor there is to be paid to each of the solicitors who act in the relevant proceedings "an equal part of the total amount payable in respect of those proceedings by virtue of paragraph (1)" - the provisions for reduced percentages not applying to the calculation of that total amount.
[7] Schedule 1 specifies nine different categories of work. It also specifies three different categories of court. For each category of court it specifies a fixed payment for each category of work. We are not here concerned with the first category of court, the District Court. The second category includes most Sheriff Courts, while the third category is a relatively small number of what may be called "remote" Sheriff Courts, to which, as it happens, Fort William has been added. The only category of work referred to by the parties in the present appeals was the first category, which is described as follows:
"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 paragraph (2) below applies; and
(iii) the first 30 minutes of conducting any trial
together with any subsequent or additional work other than that specified in paragraphs (2) to (9) below."
For this category of work, the fixed figure is £500 in ordinary Sheriff Courts, and £550 in the "remote" Sheriff Courts (with a reduction of £25 in each case in certain specified situations). Since the matter is a general one, it will be convenient to refer to the fixed payment for this first category of work as the £500 payment, notwithstanding that in this particular case the figure would be £550.
[8] It is to be noticed that these fixed payments are indeed fixed: in respect of his professional services and such outlays as are specified in Regulation 4(2), the solicitor will get no more than the fixed payment for the work described at head (1) of the Schedule, regardless of how much work has been required or how essential or costly any such outlays might be. It is that fact which lies at the heart of the contention advanced by the respondents and accepted by the Sheriff, that their continued prosecution entails a breach of the respondents' rights in terms of Article 6 of the Convention.
[9] We shall return in due course to such arguments as might require consideration of the particular circumstances of these particular cases. We shall likewise return to certain arguments which touched upon the level of the fixed payment and the possibility that it might be regarded as inadequate, comparisons being made with payments under previous regulations and payments made in other jurisdictions, where the work required at initial stages might be different. None of these matters need be considered in relation to the main issue between the parties. It is also worth noting that the 1999 Regulations were made by the Secretary of State for Scotland, the relevant powers for present purposes being conferred by section 33 of the Legal Aid (Scotland) Act 1986, as amended. By the Crime and Punishment (Scotland) Act 1997, section 51, additional subsections (3A) and (3B) were inserted into section 33, with new powers specifically dealing with the question of fixed payments. Subsection (3A) provides that the Secretary of State may, by regulations under section 33, prescribe fixed payments to be made to a solicitor in respect of his professional services in providing criminal legal assistance and such outlays as might be so prescribed. Subsection (3B) provides that a solicitor who provides any criminal legal assistance in respect of which a fixed payment has been prescribed in regulations made under subsection (3A) "shall not be entitled to any other payment out of the Fund in respect of the professional services and outlays mentioned in that subsection, 'but shall be entitled to reimbursement of any other outlays which he has properly incurred'". While Schedule 1 to the 1999 Regulations covers "all work up to and including" the specified matters, Regulation 4(2), as we have noted, specifies only certain particular types of outlay.
[10] The Sheriff has provided us with a very full account of the submissions which were made to him, and of the reasoning which led him to uphold the plea in bar of trial. The submissions advanced in this court on appeal naturally differ in some respects from those advanced to the Sheriff. And the reasoning adopted by the Sheriff is naturally reflected in the submissions made here by the respondents. But the contentions put forward here were in general directed to the fundamental question which was before the Sheriff, and is before us, rather than to the rightness or wrongness of the Sheriff's handling of any particular point or issue. In these circumstances we do not think it necessary to set out his reasoning at any great length.
[11] In considering the question of whether the proposed "act" in breach of any of the accused's rights under the Convention, the Sheriff expresses the view that the only statable issue in this case relates to Article 6(3) and in particular the minimum rights of which one is the right "to have adequate time and facilities for the preparation of his defence". He notes that European jurisprudence extends the right under Article 6 to a right to "equality of arms" as between prosecution and defence, and takes this to include preparation for the defence - which must also in his view include investigation by the defence of the Crown case and of any possible answer to it. He refers to a line of argument taken by both the appellant and counsel for the Lord Advocate as to the necessity of waiting till the trial process has been completed, before it would be possible to assess the issue of a fair trial, having regard to the whole proceedings. But observing that it is in the very nature of the European court that it is looking at things done, he goes on to say that this does not seem to him to be a justification for saying that the accused has to wait for an injustice to be actually done before he can seek to do anything about it or even to prevent it.
[12] In turning to the question of what is required, in order to establish breach of a right under Article 6, he takes as a starting point the court's observations in Artico v. Italy, 1981 3 EHRR 1 at page 13, that the Convention is intended to guarantee not rights that are theoretical or illusory, but rights that are practical and effective and that this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive. He considers in some detail the question of whether proof of "prejudice" is required, referring not only to Artico but to H.M. Advocate v. Little 1999 S.C.C.R. 625 and McFadyen v. Annan 1992 J.C. 53. In considering the question of whether actual prejudice must be established, and the general issue of "equality of arms" he notes that in certain circumstances courts have been concerned not only with what may actually occur, but what may be perceived as occurring. Observing that in an adversarial system, it seems to him inappropriate that the defence should be expected to rely upon the prosecution's approach to the investigation and that they are entitled to investigate and prepare to answer charges independently, he refers to the test which applied before the 1999 Regulations were introduced, of whether or not the defence had done work "reasonably and necessarily in the conduct of their case". He regards this test as effectively removed in summary prosecutions by the provisions of the 1999 Regulations. He concludes that the imposition of a limit upon the fees and outlays which will be paid, without any provision for review based upon a "reasonably necessary" test produces an "inequality of arms", amounting to a breach of the right to a fair trial under Article 6, and more specifically for the investigation and preparation of a defence under Article 6(3)(b).
[13] Taking the view that in relation to this particular right and its breach, actual prejudice in real terms does not require to be shown, the Sheriff rejects the proposition that the accused must go to trial and be convicted before being able to raise the issue. He observes that if the accused has been unable properly to prepare for a trial, he is unlikely to be in any better position to demonstrate that, at the end of the day. "This is not a question of a failure to provide free legal assistance, but of a failure to provide it upon terms and conditions which not only render it effective and real, as opposed to ineffective and illusory, but also which place it on an equal footing with the prosecution". He likens the question of the potential effect of the limit to the principle that justice must not only be done but be seen to be done - an approach adopted by the courts in Scotland without reference to any European jurisprudence; and referring to the limit contained in the 1999 Regulations, he treats it as effectively removing the appearance of equality. While this rather brief résumé of his observations of course fails to do justice to his full reasoning, we think that it provides an overall indication of the territory which he was asked to cover, the matters which were principally in issue before him, the conclusions which he reached and thus the questions which the Advocate Depute had to address on behalf of the Crown in presenting this appeal.
[14] The Advocate Depute submitted that there were five main questions raised. First, had there been any actual prejudice to the respondents' rights to a fair trial, as a result of the 1999 Regulations, whether by way of lack of representation, or inadequate preparation or otherwise? Secondly, was there any substantial risk that these rights would be substantially prejudiced by the Regulations? Thirdly, when a plea in bar of trial was taken, on the ground that an accused would not receive a fair trial, what was the domestic Scottish law? Fourthly, did European human rights jurisprudence result in any change to Scottish law in this respect? And fifthly, in the absence of any substantial risk that the right to a fair trial would be seriously prejudiced, was the mere appearance of inequality of arms, at the stage of pre-trial preparation, sufficient to justify a plea in bar of trial being sustained?
[15] The first of these matters is not in dispute. Each of the respondents has been represented by his present solicitor throughout, and there is no suggestion that either solicitor has failed or omitted to do anything which would be appropriate for the proper defence of his client. Each respondent has been represented by his solicitor at each diet; it is not suggested that either solicitor has failed to precognosce any necessary witness, or failed in any other way to provide his client with proper services. It was confirmed by counsel for each of the respondents that this was the position. The usefulness of making this point as a separate one is perhaps this: the word "prejudice" is wide, and perhaps rather uncertain, in its scope, and quite apart from the further complications which arise when one turns to appearances and perceptions, it may also be important to distinguish between different kinds of "actual" prejudice - ranging from events, acts or omissions which have already occurred and done actual damage to the defence, through a spectrum (in which precise pigeon-holing is probably not appropriate) in which, at any particular point in time, it can be said that a risk of danger has come into existence, or at least that things have not gone as one might have wished so that there is a potential risk or a danger that some detriment to the defence will emerge in the future. The importance of this first submission by the Crown is really that it shows that we are not here in the field of damage already sustained, but are moving through the gate into these further and perhaps more complicated areas.
[16] In moving to the second of the five main questions which he said were raised, the Advocate Depute passed through this gate. In asking the question - "Is there 'any substantial risk' that the respondents' rights 'will be seriously prejudiced' by the 1999 Regulations?", he was of course building in certain assumptions or assertions as to what the real issues may be. Other language, more or less different, might of course be used. But in considering the rights of an accused person in terms of Article 6 of the Convention, and whether they have been or will be or may be breached, it is important to look at matters broadly, rather than confine oneself to a particular conceptual pigeon-hole.
[17] In looking at these issues, and however they may be formulated, it will be necessary to consider whether and how the impact of the fixed payment upon the solicitor can be seen as introducing some disadvantage, or risk of disadvantage, for his client. The Advocate Depute observed that according to the Sheriff, it had been accepted by the solicitor for each respondent that it could not be said that "inadequate" fees gave rise to a question of a breach of the Convention rights while they themselves continued bound to represent their clients to the best of their abilities, in terms of their acceptance of instructions under the Criminal Legal Aid Scheme. Both were on the Register maintained by the Legal Aid Board in terms of section 25A of the Legal Aid (Scotland) Act 1986, and had accepted the respondents' instructions on the basis that payment for their services and outlays would be made in accordance with Regulation 4 and Schedule 1 of the 1999 Regulations. Having agreed to work upon that basis, their actings in terms of their instructions would be regulated by the relevant Law Society codes, and the Scottish Legal Aid Board's code of practice. The Advocate Depute referred to both the code of conduct for Scottish solicitors, and the more specific code of conduct for criminal work. We shall return to the terms and significance of these codes; but in effect the Advocate Depute's submission was that if a solicitor conformed to the requirements of these codes, his client would receive a proper and adequate defence, properly and adequately prepared. It was not, and could not really be, suggested that the respondents' solicitors, or any solicitor acting on this basis, would act in breach of these professional obligations, or even that there was any material risk that he would do so. Neither the present case, nor the case of any solicitor who had agreed to act in terms of the Regulations and was bound by these codes, was comparable with the case of Artico: there was no question in such Scottish cases of "shirking", and the position of any accused who, for one reason or another, had no solicitor was another matter entirely.
[18] While the present case is concerned with alleged breach of rights under the Convention, any such case can usefully be approached by considering the position in Scots law, before it was affected by the Convention, in cases of "oppression", and in particular cases where that principal was invoked in a plea in bar of trial, on the basis that the accused could not and would not obtain a fair trial. In considering this aspect of matters, the Advocate Depute referred to McFadyen v. Annan, and Stuurman 1980 J.C. 111. He submitted that the effect of these cases was that in Scots law one must demonstrate not merely a risk of prejudice, but so grave a risk that it could not be cured by the judge's charge. He did not suggest that in the field of law with which we were concerned in this case, there was any real question of the risk of prejudice being cured by the judge's charge, or by the equivalent process of a judge in summary procedure putting some matter out of his mind. But these cases demonstrated that in Scots law, prior to the Convention, one was concerned with the principles of substantial justice, and with a practical risk of real unfairness. Along with these cases, it was necessary to consider Gayne v. Vannet 1999 S.L.T. 1292, which the Advocate Depute submitted was not distinguishable as a matter of Scots law, and effectively determined the question of whether the payment limit imposed by the 1999 Regulations would have any effect on the extent and quality of preparation in cases such as the present ones, let alone the question of fair trial. Even with European jurisprudence available as a persuasive consideration, he submitted that the correct view of Scots law was that substantial risk had to be demonstrated, and that any impact of the payment limits under the Regulations was purely speculative. That would not suffice. According to Scottish law, the respondents would have no valid plea in bar of trial, merely because their solicitors' agreed form of remuneration was under the 1999 Regulations.
[19] The Advocate Depute therefore turned to his fourth question: does the jurisprudence concerning Convention rights change the position, as it was and would be under Scots law? Moving on from Gayne, which provided a bridge between the purely Scottish question and this wider European question, the Advocate Depute started by submitting that the jurisprudence was in any event of persuasive authority only. But on that footing, he acknowledged that the jurisprudence must be considered, and turned to the provisions of Article 6, and in particular Article 6(3), which the Sheriff had identified as the only statable argument. In considering whether prejudice was an essential element, as it is in "ordinary" Scots law, the Advocate Depute directed our attention first to the case of H.M. Advocate v. Little, and Lord Kingarth's observations in this connection.
[20] In Little, the court was considering the accused's entitlement in terms of Article 6(1), to a fair and public hearing "within a reasonable time" by an independent and impartial tribunal established by law. In holding that the accused did not need to demonstrate "prejudice" in order to show a breach of the right to a hearing within a reasonable time, Lord Kingarth contrasts that particular right with other aspects of the entitlement under Article 6. The Advocate Depute submitted that while prejudice need not be shown in cases of delay, Lord Kingarth's observations in Little showed that prejudice was an essential element of any other breach of the right to fair trial under Article 6. Reference was made to McNab v. H.M. Advocate 1999 S.C.C.R. 930 and Montgomery and Coulter v. H.M. Advocate, 16 November 1999 unreported. It was submitted that the Sheriff had erred in relying upon the observation of Lord Kingarth in Little, to the effect that proof of actual prejudice was not required. He was wrong to treat the investigation and preparation of the defence as akin to the right to trial within a reasonable time. The issue was not whether the point was taken before or after trial. In relation to questions of fairness, as distinct from questions about the reasonableness of delay, there was an inherent need to show some substantial prejudice, if breach of the right to fairness was being alleged. The law was effectively the same as the Scots law of oppression.
[21] Turning from Scottish authorities to European jurisprudence, the Advocate Depute acknowledged that in Artico, at paragraph 35, the court in considering Article 6(3)(c) had stated, as a general proposition, that "the existence of a violation is conceivable even in the absence of prejudice". But he noted that in that case, there had been substantial emphasis on the absence of practical and effective legal assistance. And he submitted that the position was rather as set out in the later case of Imbrioscia v. Switzerland, 1993 17 E.H.R.R. 441 in the judgment of the court at paragraphs 33 to 38. In particular, he drew attention to paragraph 36, where the court make certain observations in relation to the "reasonable time" requirement of paragraph 1, but go on to say this: "Other requirements of Article 6 - especially of paragraph (3) - may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them." Not only was "prejudice" an essential element of such alleged breaches of the right to fair trial. The prejudice with which one was concerned was prejudice to the "fairness of the trial", and when one was considering these requirements before the case went to trial, it was necessary for the accused to show that the fairness of the trial was likely to be "seriously prejudiced" by an initial failure in compliance. It was also important to note what was said at paragraph 38, to the effect that it was left to the Contracting States to choose the means of ensuring that the right conferred by Article 6(3)(c) was secured, regard being had to the entirety of the domestic proceedings. For there to be the required "prejudice" to fair trial, it would be necessary for an accused person not merely to show some theoretical or potential or possible risk. He would have to show that he had been placed at a material disadvantage, involving an actual and material risk of harm to his defence. It was submitted that the 1999 Regulations, seen in the context of Scottish procedures and Scottish professional requirements, came nowhere near to constituting the specific and identifiable kind of disadvantage which would have to be present before one could say that the right to fair trial had been prejudiced, in the manner set out at Article 6(3)(c) or otherwise.
[22] The Advocate Depute therefore turned to his fifth main question. In the absence of the appropriate risk of prejudice, was the mere appearance of "inequality of arms" enough? He submitted that "inequality of arms" was the only form of unfairness or prejudice which was relied upon in the present case. And he submitted that in that context, the mere appearance of an inequality was not enough to produce a breach of Article 6. It was important to understand what the courts had seen as involved in "equality of arms". The expression had been considered in the context of civil proceedings, in Dombo Beheer B.V. v. The Netherlands 1993 18 E.H.R.R. 213 and in particular in the court's judgment at paragraph 33. The court observes that the requirement of "equality of arms", in the sense of a "fair balance" between the parties, applies in principle to civil cases as well as to criminal cases. And the paragraph continues as follows:
"The Court agrees with the Commission that as regards litigation involving opposing private interests, 'equality of arms' implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. It is left to the national authorities to ensure in each individual case that the requirements of a 'fair hearing' are met."
It was submitted that this passage showed what was involved in the concept of "equality of arms". It was not some notional imbalance, which in fact might not leave either party at any substantial disadvantage. Far less was it any mere appearance of inequality, with no actual underlying disadvantage to either party.
[23] Again, one came back to the fact that the Scottish law of oppression was reflected in, rather than altered by, European jurisprudence.
[24] Turning to the alleged inequality of arms in the present case, the Advocate Depute referred to the case of M. v. United Kingdom, App. 9728/82, 6 E.H.R.R. 310. The commission had there recognised "that financial restraints may be necessary to ensure the most cost effective use of the funds available for legal aid" and rejected as "manifestly ill-founded" the appellant's complaint that a further consultation was required with his counsel, where the latter did not consider this necessary for the proper pursuit of his appeal. It was accepted by the Advocate Depute that in principle, budgetary restraints in this or any other jurisdiction might be so restrictive that it could be said that they had placed accused persons, or a particular accused person, at a substantial disadvantage of the type identified in Dombo Beheer B.V. But that general and theoretical possibility did not create an inequality of arms in a case such as this, where no actual or substantial disadvantage had been identified. A mere appearance of disadvantage would not suffice, and in the present case there was not even such an appearance. On the whole matter, the Crown appeal should be sustained, an order should be made in terms of section 174(4) of the 1995 Act, and the Sheriff's decision should be reversed, a direction being made to the Sheriff to fix a trial diet.
[25] Before turning to the submissions advanced on behalf of each of the respondents, we would note briefly the position adopted by counsel for the Lord Advocate in relation to his non-prosecution responsibilities. Before the Sheriff, submissions had been made to the effect that the Lord Advocate was not only in breach of the respondents' rights under Article 6 of the Convention, but was also guilty of a continuing failure, as a member of the Scottish Executive, to take steps to amend the 1990 Regulations, so as to remove this breach of the respondents' E.C.H.R. rights. On the basis that the 1999 Regulations constitute a breach of these rights, the Sheriff concludes that the Lord Advocate's failure to secure amendment in this way is a failure of the type contemplated by Schedule 6(1)(e) of the Scotland Act. However, counsel for the Lord Advocate submitted that there was essentially only the primary question, as to whether the Lord Advocate was in breach by continuing with the prosecution. If he was not, there could be no breach by failure to amend the Regulations. Equally, if he was in breach of these respondents' rights, by continuing to prosecute them, the plea in bar of trial would be upheld, and the respondents' rights would thus be vindicated. It would no doubt then be necessary for the Executive to consider amendment. But in this case, the court should limit itself to consideration of the live issue between the parties: Bönisch v. Austria, Series A No. 211, paragraph 27. On that basis, he made no submissions on the wider point regarding the Lord Advocate's responsibilities as a member of the Executive, and counsel for neither respondent suggested that these matters required consideration. We return therefore to the main issue.
[26] Mrs. Stacey on behalf of the first respondent, Norman McLean, submitted that it was necessary to consider the overall structure of Article 6. The whole Article was concerned with the "Right to a fair trial". Within that overall purpose, Article 6(1) set out an entitlement which had a number of different elements. Each element was described in words which were specific to that element, as distinct from other elements. Thus, the hearing must be "fair" and "public"; it must be within a "reasonable" time; and it must be by an "independent" and "impartial" tribunal. Each such word, setting a particular criterion or standard that must be achieved in the relevant respect, required to be interpreted and applied by the courts according to its own meaning. When one came to Article 6(3), the Article laid down a number of actual requirements, where a person was charged with a criminal offence, with words which were designed not to express general principles such as fairness, reasonableness, independence or impartiality, but to require simple and practical steps to be taken. Each was thus "free-standing", and the question of whether there had been or would be a breach of these specific rights depended on its own more down to earth language. It would be an error, and it was an error committed by the Advocate Depute, to ask a broad question as to the fairness of a particular situation, when the complaint was not one of unfairness, but of breach of one of these identified and free-standing rights under Article 6(3). What must be demonstrated on behalf of her client was a breach of Article 6(3)(c). One must consider also heads (b) and (d). Counsel acknowledged of course that there was no breach of head (d) at this stage. And any risk of a breach of head (b) could be seen as one example of, rather than separate from, the breach of head (c) which was said to arise when solicitors were acting under the 1999 Regulations. And while the right in terms of head (b) was to have "adequate" time and facilities for the preparation of the defence, introducing a word which was again a question of criteria or standards to be identified by the court, head (c) itself brought in such wider issues of principle only in the second part of the head, the first part being concerned with a straightforward right "to defend himself in person or through legal assistance of his own choosing". That free-standing right did not involve assessment of fairness or the like. And in particular, it did not raise any question as to whether some definite, actual disadvantage had already emerged.
[27] The independence or interdependence of the various paragraphs, heads and rights contained in Article 6 received further consideration in the submissions of counsel for the second respondent. While adopting the submission that head 3(c) was essentially to be judged on its own terms, so that the question was a different one from those which might arise under Article 6(1), counsel accepted that the specific rights set out in paragraph (3) must be seen as specific examples of the overall right to a fair trial. As the matter was put in Artico, at paragraph 32:
"Paragraph 3 of Article 6 contains an enumeration of specific applications of the general principle stated in paragraph 1 of the Article. The various rights of which a non-exhaustive list appears in paragraph 3 reflect certain of the aspects of the notion of a fair trial in criminal proceedings. When compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten, nor must it be severed from its roots."
Those roots were indeed important for the respondents: as the court in Artico emphasised in paragraph 33, the Convention is intended to guarantee "effective" rights, and in particular effective assistance. We do not understand the submissions advanced for the respondents as severing paragraph (3) from its roots. The proposition is rather that while interpreting it within the overall context of Article 6, and in particular Article 6(1), one must remember that at each head, it is stating a specific, identified right, which has been picked out and more specifically described than the rights contained in Article 6(1).
[28] Even on that basis, however, the right to have "adequate" time and facilities for preparation, in terms of head (b), must in our opinion be a right to have such time and facilities as will be reasonably sufficient to exclude the kind of substantial disadvantage which is referred to in Dombo Beheer B.V., and the kind of prejudice to fair trial which is referred to in Artico. And while head (c) contains no comparable word, it is clear that what is required by that head is, for present purposes, defence through "effective" legal assistance. The word "effective" again appears to us to show that the criteria are practical, and that one is concerned with excluding substantial disadvantage or prejudice to the fairness of the trial.
[29] Turning to the question of breach of her client's rights, counsel for Norman McLean acknowledged at the outset that the solicitor had already done all that was necessary and appropriate, at this stage, on behalf of his client; and that while he had not yet, in the circumstances, taken further steps which would be necessary if the case were to go to trial, including precognition of witnesses, he would not go to trial inadequately prepared or without appropriate precognitions. But it was evident, now, that at various stages in the future, he would have to consider whether it was practicable for him to continue to act, or whether the only proper course would be to withdraw. Counsel submitted that the introduction of a fixed payment, to cover both the outlays which were necessary in the client's interests and the remuneration (if any) which the solicitor would eventually receive for himself was essentially a systemic failure: the system placed the solicitor in a situation which was "in conflict with the interest of his client", with an inherent incompatibility between the client's right to effective representation and the solicitor's personal, and entirely proper, interests and needs as a practitioner. Without suggesting that this court, or indeed anyone, could make any assessment of what figure might represent a reasonable average payment in summary criminal cases, counsel pointed out that the previous average was over £800, which at least suggested that the £500 fixed payment was not a generous average, and would, in particular cases, be quite inadequate in itself to cover outlays and any proper remuneration. In such a particular case, or even taking a particular solicitor's practice as a whole, it could be seen that he would be faced with dilemmas and subject to pressure, in deciding whether he could afford to continue to represent his client if (as Article 6(3) required and as his own professional obligations would demand) all the work necessary for an effective defence was to be done. Breach of the client's right to defend himself through effective legal assistance would arise not only when the situation became impossible, but at the outset, when this conflict of interests arose. If there was conflict, the assistance could not realistically be called effective, and there would be a breach of Article 6(3).
[30] In counsel's submission, the client could not know, when he instructed his solicitor, that the solicitor would always carry out all of his proper duties, for the whole length of the case. The system provided no objective safeguard which would enable the client to be sure on these matters. His interest was to have advice from a solicitor on the law which was applicable, given in a completely disinterested fashion, and once that advice had been given, to have the solicitor act in accordance with the instructions which he had accepted. And viewing the matter from the point of view of the solicitor, he of course wanted to carry out his professional obligations, in accordance with professional codes; but the system which had been set up created a contrary interest, to do as little as possible. A question would at least arise in such circumstances as to whether a solicitor might indeed do as little as he could get away with. The court should not accept that that was effective legal assistance. But even if the courts held that this was prima facie an effective service, the question would remain in the minds of the client and the public, and with these appearances and perceptions, the courts should hold that the legal assistance, even if prima facie effective, could not in fact be regarded as effective. The issue therefore arose in every summary criminal case where the Regulations applied.
[31] Although she advanced these propositions thus broadly, counsel for Norman McLean accepted that the position was not simply black and white. As regards appearances and perceptions, an accused person who was receiving legal assistance which would otherwise be regarded as effective could not claim that his own perception that it was ineffective rendered it ineffective ipso facto: what one was concerned with was a reasonable perception of conflict of interest, and a reasonable apprehension that the solicitor, in his own interests, might either do less than he should, or might abandon his client. But if, in the context of these Regulations, one asked why a client should not reasonably trust a professional man to abide by professional standards and requirements (and if at an objective level, one considered whether this professional context assured effective assistance) counsel submitted that the rigid system of fixed payments, with no safeguard or safety valve to allow for the actual requirements of the actual case, should indeed be seen as importing a substantial risk that even an honourable solicitor acting in good faith might allow professional standards to drop in the context of insufficient payment. In a sense, it could be acknowledged that the matter was one of degree, in as much as an obviously high level of fixed payment would mean that an actual conflict of interests would emerge less often, and would correspondingly allow a greater confidence on the part of client or public. But the fundamental conflict of interest would still be there. Similarly, if a solicitor had a large practice of this type, it might be that on a "swings and roundabouts" principle, it would be, and be seen to be, practicable for him to keep his instructions and deliver an effective service in unremunerative or loss-making cases, in the context of a practice and other cases which were profitable. But that was an unsatisfactory approach, of doubtful reliability and, in any event, illustrating, rather than meeting, the fundamental conflict of interest. Nor, in contemporary circumstances, would one assume or rely on the kind of cross-subsidisation from other types of work within the same firm which had in the past enabled some solicitors to do criminal work for poorer clients for little or no remuneration.
[32] On the whole question of whether the existence of professional standards could be seen as almost automatically ensuring effective legal assistance, and the related questions of the client's perception and public confidence, counsel referred us to the Report on Legal Aid in Criminal Proceedings by Lord Guthrie's Committee, 1960 Cmnd. 1015. Paragraphs 49 to 59 inclusive deal with what is called "the quality of the service". While a distinction could of course be drawn between the situation faced by Lord Guthrie's Committee and the system now operating under the 1999 Regulations, this section of the Report illustrated the fundamental importance of many of the matters now founded upon by counsel: the crucial need for a relation of trust between solicitor and client, the possibility of "utterly inadequate preparation of the defence", absence of remuneration leading to dissatisfaction on the part of the client, who might fail to appreciate that the agent has taken every necessary step and perhaps, principally, the terms of paragraph 55:
"Some, though not all, of the professional witnesses felt that a system in which remuneration was not related to the amount of work done on behalf of the client was open to the criticism that an agent might, in order to avoid unremunerated time and trouble, advise his client to plead guilty where this was not in his client's best interests. In their main memorandum of the Law Society put this criticism of the present system in the following words:
'It is unsatisfactory from the point of view of the accused. So long as the professional remuneration is quite inadequate, there will always be a tendency to persuade an accused to plead guilty so as, in the words of one solicitor, to "get quit of the case". The standard of investigation and pleading must inevitably suffer.'
We think that fidelity to professional standards would usually prevent such occurrences, but there is a risk that a solicitor might so act, and, even where the suspicion is unjustified, the client may suspect that his agent's advice that he should plead guilty is not disinterested."
Counsel submitted that the Report showed the real risks of inferior service, and of personal interest creating a conflict even in a professional context, where a solicitor was not, and was perceived not to be, remunerated in accordance with a system which took into account the realities of the case in hand. The 1999 Regulations set up a system which was in this sense quite arbitrary. Even at summary level, cases could not be said to fall within "ordinary limits". There would be wide variations, and ignoring them involved an inherent lack of effective assistance. In proceeding upon the basis that the question was one of effective assistance and ensuring adequate preparation, counsel for Norman McLeod did not need to take issue with the Advocate Depute at a fundamental level, on the issue of whether "prejudice" is required to constitute breach. And by focussing on inherent, existing "conflict of interests" as prejudicial in itself, she did not need to search for or identify specific prejudicial events which would or might emerge in the future, but which meanwhile could only be described in terms of potential or risk. Any risk of future detriment was, in terms of this submission, general, and inherent in the present and continuing conflict of interest.
[33] In these circumstances, counsel for Norman McLeod did not need to meet, or rely on, European jurisprudence to any great extent. Foucher v. France 1997 25 E.H.R.R. 234, at paragraphs 38 and 39 on page 243, treated the provisions of Article 6(3) as "specific guarantees", illustrating the concept of a fair trial as referred to in Article 6(1). It was important to note that "their intrinsic aim is always to ensure, or to contribute to ensuring, that criminal proceedings are fair in their entirety". An absence of conflict of interest between solicitor and client was an example of a right affecting the entire proceedings, although arising under one of the specific heads of Article 6(3). Pakelli v. Germany 1983 6 EHRR 1 (which, at paragraph 31, one may note, throws some light on differences between the French and English texts of Article 6(3)(c)) showed the importance of the pre-trial stages, in relation to head (3)(c). And Borgers v. Belgium 1992 15 E.H.R.R. 92, although concerned with the very different matter of a non-member being in attendance at the deliberations of the court, was of importance in the present case, in view of what was said by the court at paragraph 24 in relation to the "wider concept" of a fair trial. As was there observed, there had been a considerable evolution in the court's case-law "notably in respect of the importance attached to appearances and to the increased sensitivity of the public to the fair administration of justice". It was submitted by counsel that just as appearances were important in relation to the impartiality of a court, so also they were important in relation to client's perceptions and public confidence in the proper representation of accused persons. The importance of what had been said in Borgers was emphasised in Bulut v. Austria, Application 17358/90, 22 February 1996, at paragraph 47; and at paragraph 49, it had been observed that "the principle of the equality of arms does not depend on further, quantifiable unfairness flowing from a procedural inequality." While the facts of the case were different, the conflict between a solicitor's personal interests and those of his client was unfair on the client, and amounted to an inequality which made it unnecessary to look for further, quantifiable unfairness flowing from it. S. v. Switzerland, Application 12629/87 and 13965/88, 28 November 1991, again differed on its facts, being concerned with the question of whether a client could communicate with his lawyer free of surveillance; but the opinion of the court that "An accused's right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society, and follows from Article 6 para. (3)(c)", showed that the relationship between client and legal adviser was regarded as a fundamental part of this particular aspect of fair trial, and was in point when considering a conflict of interest affecting that relationship. Again, the question was not whether it made a difference in the particular case. This was a "basic" matter, inherently disadvantageous to an accused person.
[34] Counsel for Peter McLean approached the issues from a somewhat different angle. But in his submissions he effectively adopted what had been said by counsel for Norman McLean, although expanding on these matters and advancing certain further contentions. Where arguments were initially advanced, or cases initially referred to, by counsel for Norman McLean, we have in general dealt with the matter already, taking into account what was said by Mr. Bovey for Peter McLean.
[35] At the outset of his submissions, Mr. Bovey drew our attention to the wide responsibilities which lie upon a solicitor in Scotland, over the pre-trial period. Referring to such matters as the recovery of documents, the absence of access to prosecution material, and the overall burden of preparation in an adversarial system, he contrasted the situation in Scotland with that which may obtain in other jurisdictions. He suggested, in a broad way, that the solicitor in Scotland operating under the 1999 Regulations appeared to be less well funded, having regard to his heavy responsibilities, than legal representatives might be elsewhere. Acknowledging that "standard" fees (with some possibility of a non-standard fee in a non-standard case) had obvious advantages, he emphasised that his criticism related to fixed payments, with no mechanism for exceptional payments in exceptional cases. In the absence of any mechanism for responding to exceptional need for expenditure by the defence, there was a straightforward "inequality of arms" between defence and Crown. He was not submitting that the Crown had a "bottomless purse"; but the Crown's resources included not only those of the prosecution service, but of the police and various other departments whose services might be in point. If a particular step appeared to be a bona fide necessity, although perhaps unusual, it was apparent that funds would be available on the Crown side, but not when the defence were faced with the like situation. Mr. Bovey's primary submission was thus that there was an overall inequality of arms, affecting all cases in which the 1999 Regulations determined the amount of the payment. But the evident inadequacy of the actual £500 figure meant that there was a secondary or alternative argument, based upon that inadequacy. That argument itself would apparently be available very generally; but in any event, it was evident that in the present case the sum of £550 was hopelessly inadequate, taking into account the need for the devolution issue to be explored and proceeded with, and the need, if the matter were to go to trial, to precognosce witnesses in Spain. While Mr. Bovey did not generally adopt the language of "conflict of interest" which had been used by Mrs. Stacey, he included in his own formulation of the argument the very similar proposition, that it was inherent in the system of non-variable payments that pressures and dilemmas would face solicitors with hard decisions as to whether a particular step could be afforded, and the potential for misjudgment, and solicitors being more likely to fail to take steps on behalf of their client which were in their client's interests.
[36] Mr. Bovey acknowledged that if his submissions were upheld, this would have a general effect on all cases in which the 1999 Regulations were in use. They would plainly have to be replaced or altered. But that would not in fact be difficult; and even if it was difficult, that had no bearing upon the issue which the court had to decide.
[37] Moving on from the main issue of an actual inequality of arms, or conflict of interest, constituting a fundamental prejudice to the fair trial of accused persons, Mr. Bovey submitted that this was a context in which "appearances" were relevant: just as they had been held to be relevant in relation to the independence or impartiality of a court, he submitted that appearances were also an essential part of equality of arms and fairness of trial. This was evident not only from cases such as Borgers v. Belgium, in which the court's general observations were supplemented by the comment that "it could reasonably be thought" that the court's deliberations afforded the Avocat Général an additional opportunity to promote his submissions, even if his advisory participation in those deliberations was as limited as it had been in that case. There was perhaps no exact dividing line between situations where appearances alone were seen as prejudicial to fair trial, and situations where, without exact knowledge of any consequences, one would infer from appearances that there "must" have been some unfair advantage or disadvantage. Reference was made to Mowbray v. Crowe 1993 J.C. 212 at pages 217 to 218. In cases where the 1999 Regulations determined payment, and dealing with the matter as a general one, one could say either that the client was disadvantaged by the general conflict of interest and inequality of arms; or that the perceptions of the client and the public were relevant, and that there was the appearance of disadvantage; or that given this appearance of disadvantage, one could reasonably infer that there "must" be actual disadvantage.
[38] Acknowledging that fair trial would only be prejudiced on the basis of perceptions or appearances if the perception or appearance of unfairness was one which could be regarded as reasonable in response to the known circumstances, Mr. Bovey turned to consider whether there were sufficient guarantees or safeguards to exclude the concerns which an accused person or the public might reasonably have, when faced with the fact that payments under the Regulations were at a fixed level, without regard to any of the particular facts of the case. Taking as his starting point the Scots law of oppression, and the opinions in Montgomery and Coulter, Mr. Bovey submitted that the Sheriff had not erred, or misapplied Montgomery and Coulter, or indeed H.M.A. v. Little, in his discussion of prejudice and the general proposition that justice must not only be done, but be seen to be done. In Montgomery and Coulter, the court had cited De Cubber v. Belgium Series A No. 86 (1984); 7 E.H.R.R. 236, in which the court had referred to considerations "relating to the functions exercised and to internal organisation" and had said that in this regard even appearances might be important. Citing the maxim that "justice must not only be done: it must also be seen to be done", the court had gone on to say "What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused." These dicta were concerned with the confidence which the public and an accused must have in the courts themselves. But it was submitted that this confidence could be undermined not only by appearances of partiality or dependence in the court, but also by appearances of inequality of arms or conflict of interest or risks of ineffective legal assistance, in the structures which determined the manner in which the defence would be conducted. Cases like S. v. Switzerland and Mowbray v. Crowe illustrated this. And in relation to defence, as in relation to the courts themselves, the question was whether (as it was put in Montgomery and Coulter) "the fear...can be held to be objectively justified." One must consider the basis for possible fear, and whether there were other features, such as safeguards or guarantees, which might mean that the fear could not be held to be objectively justified. In cases such as the present, where the limitations on the defence raised either an implicit disadvantage, or an appearance which, at first sight, would provide objective justification for fear, one must consider whether there was anything else which would suggest that the fear was not in fact thus justified. But if there were objective features which would justify such a fear, it was that objective justification which mattered: it might be that in a particular case, a particular accused was not in fact frightened that his solicitor would let him down in some way. If, as here, the matter was brought before the court, on the instructions of a client whose solicitor had identified the reasons for apprehension on his behalf, then the court should proceed upon the basis of the objective circumstances, justifying such fears on the part of an accused, or the public. If the appearances are such as to justify reasonable fear, that would be enough.
[39] In cases such as the present, there was no question of dispelling any objectively held fears or misgivings, in the manner discussed in Montgomery v. Coulter at page 356A. What safeguards were there? It was of course accepted that the fact of a solicitor being a professional person, whose conduct was subject to professional codes, afforded one kind of safeguard. It was also accepted that the Code of Conduct for Scottish solicitors "contains a statement of the basic values and principles which form the foundation of the solicitor profession", and that these values and principles "reflect the legal, moral and professional obligations of the solicitor" to clients, courts, the public and the profession. Paragraph 5 of the Code provides that solicitors should not accept instructions unless they can adequately discharge these, stating that a solicitor may face disciplinary action by the Law Society in respect of a service to a client which is held to be an inadequate professional service. The Code of Conduct for Criminal Work provides, at paragraph 3, that "a solicitor is under a duty to prepare and conduct criminal legal aid cases by carrying out work which is actually and reasonably necessary and having due regard to economy". While the guidance note which follows this provision is not yet geared to the 1999 Regulations, it was not suggested that the provision itself no longer applied to a solicitor conducting criminal legal aid cases at summary level. And Mr. Bovey accepted that these professional requirements afforded some degree of safeguard, and went some way towards dispelling any fear that a solicitor would provide inadequate services when remunerated under the 1999 Regulations. On the other hand, he referred to Sharp v. The Law Society of Scotland 1984 S.C. 129. The suggestion that solicitors acting under the 1999 Regulations might provide, or appear to provide, inadequate assistance to an accused person was not a suggestion that he would behave disgracefully or dishonourably, so as to be guilty of professional misconduct in the broad sense. A fear of disgraceful or dishonourable conduct on the part of a professional man might not be seen as objectively justified. But a failure to comply with the rules set out in the Codes was not itself disgraceful or dishonourable, or even necessarily "professional misconduct". As the Lord President said in Sharp, at page 134, "whether such a failure should be treated as professional misconduct must depend upon the gravity of the failure and a consideration of the whole circumstances in which the failure occurred..." and that was a question for members of the profession: "A departure from these standards which would be regarded by competent and reputable solicitors as serious and reprehensible may properly be categorised as professional misconduct." If a solicitor who was conducting a defence under the 1999 Regulations committed a breach of these Codes, because the payment available to him was so small that necessary work could not be done without his putting his hand deep into his own pocket, it was very far from clear that there would be any question of professional misconduct in the mind of other responsible members of the profession. In such circumstances, with regulations which were inherently productive of conflict and dilemmas, the Codes could not be seen as either ensuring adequate preparation and effective legal assistance, or as taking away the justification for a fear that the solicitor might do less than he should in the client's interests. That was particularly true from the point of view of the client: safeguards which were designed to ensure high levels of performance, with sanctions which would not help the client, were unconvincing in that context.
[40] Mr. Bovey drew our attention to a number of cases in which courts have discussed the question of whether issues of unfairness can, or perhaps must, be raised as stages prior to the conclusion of proceedings. In particular, he referred to Clancy v. Caird, Extra Division, 4 April 2000, unreported, submitting that if the present respondents had not taken a plea in bar of trial, they might be held to have waived their rights. And he drew attention to the interrelation between questions as to when a point should be raised, and questions as to whether a breach of Convention rights occurred only after actual damage had been suffered. Both the test for breach, and the time when the point should be taken, were to be found in Imbrioscia v. Switzerland, at paragraph 36, where the court observed that the requirements of Article 6(3) might be relevant "before a case is sent for trial" if and in so far as "the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them." A domestic court in particular should act in advance of trial: De Haan v. Netherlands 1997 26 E.H.R.R. 417. The respondents being at an inherent disadvantage, the Sheriff had been right to uphold the plea in bar of trial.
[41] Before we discuss the main issues in the case, it is convenient to comment upon certain questions of procedure and timing which may arise in relation to breach of Convention rights, and in particular rights under Article 6. First, we consider that it is unnecessary and inappropriate for us to express any views as to waiver of such rights: no question of waiver arises in this appeal. Secondly, whatever differences there may be between the familiar Scots concept of oppression and breach of any of the rights conferred by Article 6 of the Convention in relation to criminal proceedings, we see no basis in principle or in Scots law, or in the European jurisprudence, for regarding it as incompetent or inappropriate to found upon such an alleged breach, in the same way as one may found upon alleged oppression, prior to trial, and in particular as the ground of a plea in bar of trial. We shall come to the question of what test must be met, in order to establish breach of particular rights under Article 6; and in any individual case, it may be harder to meet that test in advance of trial than it would be during or after trial. But it is not necessarily impossible; and if an accused person offers to meet the test at that stage, we are in no doubt that he is entitled to attempt to do so. Thirdly, as we have indicated, certain of the arguments advanced on behalf of the respondents depended upon the fact that the fixed payment for the first stage of defence work in summary proceedings was, in ordinary Sheriff Courts, £500, rather than, say, £1,000 or £5,000 or larger sums. It does not appear to us that we have any basis for regarding that sum as reasonable or unreasonable, speaking generally; nor do comparisons with the past, or with other jurisdictions, in terms of work or in terms of remuneration, enable us to reach a view as to whether this particular sum is adequate or inadequate, generous or ungenerous, in relation to any percentage of cases, or types of cases. Moreover, in so far as the arguments advanced on behalf of the respondents touched upon the facts of this particular case, we are of course aware that both respondents are still represented by their original solicitors, who have continued to act not merely in relation to the devolution issue before the Sheriff, but also throughout this appeal. That being so, we can see that in the circumstances, the £550 will not be sufficient to meet outlays and remuneration. But it is not suggested that there has been any detriment thus far to either respondent; and with such knowledge as we thus have, we see no basis upon which we could hold that the test for breach of Article 6(3) has been met in the case of these respondents, if it has not been met upon the general grounds which constituted the main arguments advanced on behalf of the respondents.
[42] There are two other matters which we should mention before we turn to those main arguments. As we have noted, Regulation 4(2) specifies certain categories of outlay. Even at the stage of work which is covered by the first head of Schedule 1 of the Regulations, the fixed payment is in respect of professional services and only these specified outlays. If there are other outlays at that stage, it appears that in terms of section 33(3B) of the Legal Aid (Scotland) Act 1986 the solicitor would be entitled to reimbursement of those outlays, if properly incurred. In this respect, if no other, there appears to be a recognition of particular circumstances justifying particular outlays which will be reimbursed. The general proposition that the fixed payment is all that the solicitor will get, for "everything which is done at the stage covered by the first head of Schedule 1" is thus apparently not quite accurate. But we were not addressed upon this matter, and it does not seem to us that this particular exception has any material bearing upon the general issues.
[43] Finally, before turning to the main issues, we would mention one feature of section 33 of the 1986 Act which seems to us to have a bearing on some of those issues. In section 33(1), (2) and (3) the section deals with both "fees" and "outlays". Regulations may prescribe the "work" in respect of which "fees" may be charged; and generally it is clear that fees and outlays are distinct, one from the other. The distinction persists, in the later subsections (3A) and (3B) with the provisions which we have already mentioned in relation to both prescribed outlays and other outlays; but there is no longer a reference to fees, and the fixed payments are single fixed payments in respect of both professional services and the prescribed outlays. It is of some significance that there has not merely been a change, introducing fixed payments, but that the fixed payments thus introduced, as a single cake of given size, mean that for the first time, there is an inevitable diminution of the slice available for remunerating services whenever the slice required for outlays increases, and vice versa. Whether or not there was some perceived purpose or advantage in this interrelation, within a fixed sum, between the outlays expended in the client's interests, and the amount available to the solicitor towards his own overheads and profits, the fact that remuneration will vary in inverse proportion to outlays is perhaps as significant as the fact that the overall figure is fixed.
[44] The fact that a solicitor will only be remunerated for his work and services to the extent that he has not used up the fixed payment on outlays is not in itself of any significance to the client, and correspondingly cannot, in itself, constitute a threat to his rights under Article 6(1) or 6(3). Matters which affect the solicitor do not ipso facto affect the client. Nor has the client any obvious interest in how the single sum is split between outlays and remuneration: while outlays may seem to be more obviously in his interests, and not in the solicitor's interests, it may nonetheless be more in his interests, as well as the solicitor's, that more be spent on work done, rather than on outlays. Nonetheless, we think that there is undoubted force in Mrs. Stacey's contention that the payment structure under the 1999 Regulations produces what can properly be called a "conflict of interest" for the solicitor, his personal interest being that as little as possible of the fixed sum should go towards outlays, and as much as possible towards remuneration for work and services - particularly as that remuneration will come to him, if outlays can be kept low, quite regardless of whether his actual work and services are considerable or negligible. In so far as his personal interests are concerned the best thing for him would be to keep both outlays and actual work done to a minimum.
[45] However acceptable (or even perhaps desirable) Parliament may have thought it to be, the introduction of this identifiable conflict of interest, and of a provision for remuneration which freed the solicitor from any need to carry out work in order to obtain it, seems to us to have significant disadvantages as well as any advantages. But the argument remained at the broad and general level of an assertion or suggestion that the simple existence of this conflict of interest was not merely in some sense undesirable from the client's point of view, but prejudiced fair trial in the ways described at Article 6(3)(b) and (c).
[46] In the context of the present case, and the arguments presented to us, we have found it more natural to think in terms of "disadvantage", rather than either actual detriment suffered, or "prejudice" - a term which probably needs to be followed up with further clarification, particularly when one is speaking of the position in advance of trial. Whatever the terminology which one finds most convenient, it is clear that the very general argument advanced on behalf of the respondents does not depend upon, and would not usually proceed upon a background of, any identifiable error or omission or shortfall in performance on the part of the solicitor prior to the plea in bar being advanced. Equally, the submission is not simply that some such specific and detrimental event will inevitably, or probably or possibly occur during the future progress of the case. We do not doubt that there may be cases in which actual past detriment might provide a basis for a plea in bar of trial, with that actual past detriment having ruled out the possibility of fair trial in a way that could not be rectified. Equally, we are satisfied that even without such a detrimental act having already occurred, some breach of Article 6(3)(b) or (c) might have occurred, as yet with no specific detrimental consequence, but with a predictable future consequence which could not be averted, and which would negate fair trial. The discussion of "The Test to be Applied" in Montgomery and Coulter is in our opinion entirely in point, in relation to this problem of a future and unavoidable unfairness, of which there is a real risk. However, the argument advanced in the present case on behalf of the respondents, in each of the ways in which it was advanced, does not take the form of asserting a "real risk" of the trial being unfair in a way which cannot be corrected or avoided or averted. The situation which the respondents say has arisen is not one which entails a real risk of a future detrimental event. They do not claim to be able to identify any such future detrimental event, as either inevitable or even a real risk. It is the present situation itself which they describe as prejudicial or disadvantageous, not because of some apprehended future consequence, but simply upon the basis that as matters stand (and will continue to stand) any accused person in their position must be seen as so disadvantaged that even if no specific detrimental event were ever to occur, the whole trial process, and in particular the legal assistance afforded to them, is so tainted by a flaw in their legal assistance that Article 6(3)(c) is not being, and will not be, complied with, with consequential non-compliance with Article 6(3)(b).
[47] We are not persuaded that this argument is sound. We appreciate that as it is formulated, it avoids the need to identify any specific detrimental event, past or future. And it may be that there are situations which involve some clear present disadvantage to an accused which does not necessarily entail identifiable past or future detrimental events, while itself perhaps falling short of what one could categorise as damaging per se. It may indeed be that in circumstances where a solicitor has accepted instructions to act for the defence in a summary prosecution, and will thus be paid in terms of the 1999 Regulations, his client could point to the facts and circumstances of the case, and say with justification that he is so disadvantaged that his legal assistance is not effective for the purposes of Article 6(3)(c), which must be regarded as breached. But in its generalised form, the submission that every accused person is thus disadvantaged to that degree and in that way, simply because payments to his solicitor will be determined by the 1999 Regulations, is in our opinion unpersuasive.
[48] The submission is not merely that a solicitor who is paid in this way will have difficult decisions to take, as to how best to use his resources. Nor is the contention simply that for lack of resources he may abstain from some outlay, or some work, which would otherwise have been treated as necessary. Nor is it said simply that he might on occasion be tempted to set his own interests above those of his client. It is suggested that on occasion a solicitor would in fact thus betray his client's interests.
[49] In any individual case, we would regard this process of reasoning, from the form of the Regulation to departure from professional standards, out of self interest, as quite unacceptably speculative. There are innumerable situations in which "self interest" would point to a betrayal of standards and of the client's interests. But we see no basis for any fear that this will occur, with no specific reason for fear. And while the expansion of the argument, into a form which covers every case where a solicitor is remunerated in terms of the 1999 Regulations, may make it easier to understand that no particular detriment can be identified, this move from individual cases, each with its own potentially unfair characteristics, to a supposedly general disadvantage, prejudicing fair trial for the purposes of Article 6 in all cases, but without any suggestion that the notional disadvantage would ever produce any detrimental event in any case or any identifiable percentage of cases, is in our opinion quite unrealistic.
[50] So far as perceptions and appearances are concerned, we do not wish to go so far as saying that legal assistance could never be regarded as ineffective on the basis of public concerns which have an objective justification. Similarly, the concerns of an individual accused, if founded upon facts which objectively justify such concerns, might in our opinion provide a sufficient basis for saying that there was a breach of Article 6(3)(c). But again, this would depend upon the particular facts of particular cases. We are quite unable to say that the mere possibility of such fears or concerns, in some case at some time, and perhaps in some specific situations having an objective justification, warrants the suggestion that in every actual case where this is a theoretical possibility, the notional fear or concern of the client can be treated as if it existed, and provides a basis for holding Article 6(3)(c) to have been breached in that and every other case.
[51] It is not difficult to imagine, and counsel had no problem in suggesting, how unfairly, in ordinary terms, these Regulations might bear upon solicitors, in particular circumstances. And it is very far from clear what the ordinary honourable solicitor should do, if having accepted instructions in all good faith he finds that the case, in his view, needs funding on a scale for which the fixed payment is hopelessly inadequate, and for which he himself, however respectful of his professional Code, does not feel obliged, or simply cannot afford, to pay. But the possibilty that there will be such problem cases does not in our opinion warrant the proposition advanced by the respondents, with the rights of every accused person being regarded as breached, simply because the fixed payment to his solicitor, for services and prescribed outlays, could not, if the case were somewhat exceptional, be supplemented. Nothing that was said to us would justify us in holding that in the vast majority of cases, the fixed payment system presents the solicitor with any significant conflict of interests, having regard to his ordinary professional standards. And that being so, we see no proper basis for apprehension upon the part of the client or the public, in such cases. Neither in terms of "conflict of interest", nor in terms of "equality of arms", can we see any basis for our holding that what might be the case in particular circumstances is the case in all circumstances.
[52] In our opinion, the plea in bar ought to have been repelled. We sustain the Crown appeal, reverse the Sheriff's decision and make the appropriate order under section 174(4) of the 1995 Act, directing the Sheriff to fix a trial diet.
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