Scottish High Court of Justiciary Decisons

Vickers v. Her Majesty's Advocate [2002] ScotHC 36 (26 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord MacLean Lord Sutherland	Appeal No: 168/01 OPINION OF THE COURT delivered by LORD COULSFIELD   in NOTE OF APPEAL by JODIE VICKERS Appellant; against THE PROCURATOR FISCAL, Fort William Respondent: _______

 

 

Appellant: Shead; G. Sweeney & Co., Glasgow

Respondent: Hanretty, Q.C., A.D.; Crown Agent

26 March 2002

1. This is an appeal under section 174 of the Criminal Procedure (Scotland) Act against a decision of the sheriff at Fort William to repel a preliminary plea on behalf of the appellant. The appellant and a co-accused were charged with offences against section 5(3) and section 5(2) of the Misuse of Drugs Act 1971. At the pleading diet on 6 April 2000, the co-accused pled not guilty but the appellant stated a plea in bar of trial on the ground that the proceedings were oppressive and lodged a devolution issue minute in support of that plea. Various diets were arranged with a view to dealing with the plea in bar of trial but the diets were adjourned in order to await the outcome of the appeal to the High Court in Buchanan v MacLean 2000 S.C.C.R. 682. The decision was issued on 15 June 2000. Thereafter an amended devolution issue minute was lodged and submissions were ultimately heard on various dates between September and November 2000. On 13 December 2000, the sheriff repelled the plea in bar of trial.
2. The argument presented to the sheriff in support of the plea was for the most part the same as the argument presented in Buchanan v MacLean, that is, it proceeded upon the ground that the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 did not represent fair or adequate remuneration for a solicitor acting in the defence of the appellant and consequently led to a breach of the appellant's rights under Article 6 of the European Convention. In his note, the sheriff explains that he took the view that the general argument presented to him was the argument that had been rejected by this court, as it has subsequently been rejected by the Judicial Committee of the Privy Council, in Buchanan v MacLean. However, an additional submission was made in this case, and repeated in the appeal. This was that, because the particular solicitor instructed by the appellant was unable, and declined, to act for her in the trial of the complaint, she was being deprived of the services of a representative of her choice. The sheriff held that that additional argument did not advance the appellant's case and that he was bound by the decision in Buchanan v MacLean. For that reason, he rejected the plea in bar of trial.
3. In the appeal, it was accepted that the decisions of this court and of the Privy Council in Buchanan v MacLean were conclusive of the general question as to the effect of the 1999 Regulations. As a result, the only point argued was the additional point argued before the sheriff, that is, that the inability of the particular solicitor selected by the appellant to act on the basis of the 1999 Regulations involved a breach of the appellant's right to a representative of her choosing. It should, perhaps, be observed that the solicitor in question is an experienced criminal practitioner but practices from Glasgow, while the trial in this case will take place in Fort William. There would, therefore, be exceptional costs involved if the solicitor were to conduct the trial in Fort William. It was submitted, as is perhaps obvious, that it might be much easier for the appellant to find a suitable representative in Glasgow, where there are an adequate number of experienced criminal practitioners, rather than in Fort William. It was also stressed in the argument that trust between an accused person and his legal representative is of the greatest importance. The case is, therefore, not one which arises out of any capricious refusal to act on the part of the solicitor but out of what may well be a genuine problem in regard to securing representation in remoter sheriff courts.
4. Nevertheless, the particular issue which arises is what is the extent of the appellant's rights under Article 6. Article 6.1 states the general right to a fair hearing and Article 6.3 sets out certain minimum rights for everyone charged with a criminal offence, including the right

"(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."

5. In Pakelli v Germany (1984) 6 EHRR 1, attention was drawn to a difference between the English and French texts of Article 6.3(c) of the Convention. The English text employs the disjunctive "or" between each of the specified rights whereas the French text uses the conjunctive "et" after the reference to "legal assistance of his own choosing". In that case the court held that the French text provided the more reliable guidance and stated,

"Accordingly, a person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing; if he does not have sufficient means to pay for such assistance, he is entitled under the Convention to be given it free when the interests of justice so require."

6. The only other decision of the European Court to which reference was made was Croissant v Germany (1992) 16 EHRR 135. The case was concerned with legal representation but it is not necessary to go into the particular facts. The court said in its judgment at paragraph 29,

"It is true that Article 6(3)(c) entitles 'everyone charged with a criminal offence' to be defended by counsel of his own choosing. Nevertheless, and notwithstanding the importance of a relationship of confidence between lawyer and client, this right cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where, as in the present case, it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant's wishes; indeed, German law contemplates such a course. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice."

7. In the argument on behalf of the appellant in this court it was conceded that in the light of the Croissant decision, the right to select a legal representative could not be considered to be absolute. It was, however, submitted that there was nothing inherently unreasonable in the appellant wishing to be represented by the particular solicitor of her choice. It was not uncommon for solicitors who did not have their centre of practice in the particular sheriff court district to represent an accused person in a serious case. Under the previous legal aid regulations, indeed, that had been recognised as entirely appropriate. There was therefore a balance to be struck. The authorities might have a legitimate purpose in seeking to limit the cost of legal aid, but the problem arose because of the inherent inflexibility of the 1999 system. In the Privy Council decision in Buchanan v MacLean, their Lordships had expressed reservations about the inflexibility of the 1999 regulations, (see for example Lord Hope at paragraphs 25 and 28 and Lord Clyde at paragraphs 50 and 51). The inflexibility of the regulations involved an unacceptable and disproportionate infringement of the right to select a legal representative.
8. It was accepted in the course of the argument that the appellant had made no attempt to obtain the services of another solicitor. In our view, it is reasonably clear that in providing that an accused person is entitled to the services of a legal representative of his or her choice, the Convention cannot be taken to be entitling the accused to insist on the services of a particular individual, irrespective of that individual's availability or, indeed, willingness to act. It is commonplace that accused persons, like litigants, might prefer to engage the services of a particular individual; but the exigencies of court time-tabling and of the practice of the particular individual in question may make it impossible for them to exercise that choice. The Convention must be read, it seems to us, reasonably in regard to the actual functioning of the courts and the legal profession. Accordingly, even where publicly funded legal aid is not in question, the content of the right must be that the accused is entitled to select from among the practitioners available, qualified and willing to act in the particular circumstances. Any other interpretation would entitle an accused person to disrupt the business of the courts in an unacceptable way by insisting on being represented by a particular individual. It may, of course, turn out in a particular case that no adequate representative can be found and in that case different considerations may come into play. However that may be, the position in the present case is that no attempt has been made to find a solicitor other than the particular individual. In these circumstances, it seems to us that there is nothing in the appellant's argument to take this case out of the ambit of the decision in Buchanan v MacLean and that it would be premature to hold that there must be a breach of the appellant's Convention rights. In these circumstances, we are of the opinion that the sheriff reached the correct conclusion and that the appeal should be refused.