APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Carloway Lord Mackay of Drumadoon Lord Philip
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Minuters: Thornton; Bruce Short, Dundee
Scottish Ministers (including the Lord Advocate): Sheldon; Scottish Government Legal Directorate
23 August 2012
1 Procedural History
[1] On 7
July 2009, at the Justice of the Peace Court in Dundee,
Barry Duncan pled guilty to using a car without insurance on 27
February 2009 in an ASDA car park, Dundee,
contrary to section 143 of the Road Traffic Act 1988. On 31
July 2009 he was fined £250, payable in instalments of
£5 per fortnight. An enforcement order under section 226B of the Criminal
Procedure (Scotland) Act
1995 was made in that regard. Mr Duncan had been represented by a law
agent at each diet.
[2] Mr Duncan
did not pay the instalments as scheduled. He was cited to appear at court on 15
March 2011 for "enquiry" in terms of section 216 of the
1995 Act. He did not appear and a warrant was issued for his arrest in order to
secure his attendance for the purpose of that enquiry. He appeared on 18
March 2011, when the instalment rate was varied and, for
some reason, the instalments deferred for a period of about six months. Again,
Mr Duncan was represented by a law agent at this diet.
[3] Meantime, on
2 June 2011, at the same court, Zen Butt
pled guilty to charges on two complaints. The first, in terms of the date of
the offence, libelled a contravention of section 27(1)(b) of the Road Vehicles
(Construction and Use) Regulations 1986 by using a car with an under-inflated
tyre in Dundee on 22
December 2010. The second was to using a car without a
test certificate, contrary to section 47(1) of the Road Traffic Act 1988, on 26 December
2010 at a different location in Dundee.
On 16 June 2011, he was fined £100 on
the first complaint, payable at £10 per fortnight, and £70 on the second,
payable at the same rate. Enforcement notices were issued in that respect. At
each diet Mr Butt had been represented by a law agent.
[4] Mr Butt did
not pay the fines as scheduled. On 12
October 2011, he was personally cited to attend the Court
on 22 November 2011. He did not attend
and, on the latter date, a warrant was issued by the Court for his arrest. As
chance would have it, Mr Duncan had also failed to pay his instalments and
to appear in response to a citation to attend for enquiry on 29
November 2011. A warrant to arrest him was also granted.
[5] On 7
December 2011 both Mr Duncan and Mr Butt appeared from
custody. They were represented by the same agent and the two cases effectively
became conjoined procedurally. The minutes record that there was an enquiry
into the reasons for non-payment of the fines, but the cases were continued to 14
December 2011 to enable the agent to lodge a devolution
minute. On 14 December 2011,
when both were again represented, the cases were continued again "for the Lord
Advocate to consider the merits of the case (Devolution Minute lodged)". A
further continuation was granted on 11
January 2012, when the cases were appointed for a hearing
on the Devolution Minute. Yet another continuation was granted on 30
January 2012, as the agent requested a reference of the
issue to the High Court.
[6] It is
worthy of remark at this stage that the procurator fiscal plays no part in what
are termed means enquiry proceedings. Neither he, nor any representative of
the Crown, had appeared at any diets after the imposition of the fines. They
would have had no obvious interest to do so. On 13
February 2012, however, when Mr Duncan and Mr Butt were
represented once more by the same law agent, a law agent for the Lord Advocate did
appear and was granted a continuation of the cases until 12
March 2012 for references to the High Court be adjusted.
The final appearance, meantime, was on 14 March, by which time references
had been adjusted.
2. The Devolution Minutes and the References
[7] The
Devolution Minutes appear to be in identical terms and purport to raise a
devolution issue "within the meaning of Schedule 6 to the Scotland
Act 1988". Although
it is ultimately clear that the minuters are alleging that their Article 6
rights have been breached, it takes a little effort to locate what the complaint
actually is. It is said to be that "there was no provision in place for the minuter
to receive state-funded legal representation" at the means enquiry court. There
are statements about the deprivation of the minuters' liberty in advance of the
means enquiry court, but the complaint appears to relate solely to the lack of
a scheme funding representation at the hearing itself. The minutes thus state:
"VII ...Given that such paid representation is not available under the Scottish Legal Aid Board regulations, the state (emphasis added) is in breach of its obligations to the Minuter under the European Convention of (sic) Human Rights".
The minutes maintain that the minuters, who could not afford to pay for representation, ought to have been represented by:
"XIII ...a meaningful solicitor with whom the individual has a solicitor-client relationship".
The violation alleged is one of Article 6(3)(c) in conjunction with 6(1). However, no remedy is sought other than a bare declarator of breach by "the state" (see prayer para (2)).
[8] The Justice
of the Peace records that, as at 30 January 2012,
all parties were agreed that the matter should be referred to the High Court.
The "main issues" were described as follows:
"(vii) The Minuter contends that:
(1) the failure, by the Scottish Ministers, to make provision for state funded legal representation where the Minuter appears from custody at a means enquiry hearing, having been deprived of his liberty following his arrest on an apprehension warrant, is a breach of the Minuter's Article 6 rights.
(2) not only does the state have an obligation to provide him with state funded legal representation for his means enquiry hearing, this should be "meaningful" representation, which the Minuter submits means a solicitor with whom he had a previous relationship, a solicitor of his choice.
(3) the Minuter's full contentions are contained with the Minute of Notice of Intention to raise a Devolution Issue, the terms of which are repeated herein brevitatis causa.
(viii) The Scottish Ministers contend that:
(1) the provision of legal aid is not necessary to effectively participate in means enquiry hearings.
(2) advice and assistance could be provided by a solicitor in respect of preparation for such hearings.
(3) the Scottish Ministers have the power to make a Determination under section 4(2)(c) of the Legal Aid (Scotland) Act 1986".
The questions referred are:
(ix) Whether Article 6... requires that the Minuter be provided with state-funded legal representation where he is appearing from custody at a means inquiry hearing, having been deprived of his liberty following his arrest on an apprehension warrant.
(x) If so, whether the Minuter's Article 6 rights include a requirement that he be entitled to select a (state-funded) representative of his own choice to appear at such a hearing on his behalf".
3. The Court's Concern and Submissions
[9] In advance
of the hearing of the appeal, the court notified its concern to parties about
the competency of the High Court determining an issue which did not appear to
be between the prosecutor and accused (or convicted person). The court
understood that the Crown, in the sense of the Lord Advocate as head of the
prosecution system, did not intend to appear at the hearing. This was not
surprising because there was no challenge to the proceedings continuing, in the
form of a plea in bar of further procedure or similar remedy. There was no act
of the Lord Advocate involved, since neither he nor any prosecutor has a role
in means enquiry proceedings. What appeared to be at issue was whether "the
state" in the form of the Scottish Ministers, through the Scottish Legal Aid
Board or otherwise, had breached the minuter's Convention rights. The grant of
legal aid in the current circumstances was not now within the powers of the
court (cf Reynolds v Christie 1988 SLT 68; Legal Aid (Scotland)
Act 1986 s23) and the grant of declarators of the type sought was generally the
province of the civil courts (Newland, Petnr 1994 JC 122). The court
was also concerned to know what "act" of a Scottish Minister was being
challenged.
[10] The minuters
referred to section 57(1) of the Scotland Act 1998, which provided that a
member of the Scottish "Executive" had no power to do any "act" which was
incompatible with Convention rights. In terms of paragraph 1 of Schedule 6,
a "devolution issue" included "a question whether a failure
to act" was incompatible with a Convention right. Despite dicta that
"act" did not include a failure to act (R v HM Advocate 2003 SC (PC) 21, Lord Hope at para 47 and Lord Rodger at para 125), it ought to do so
(see Reed & Murdoch: Human Rights in Scotland (3rd ed) para
1.139 under reference to the amendments to section 100 of the 1998 Act; see
also Human Rights Act 1998 s 6(6)). The minuters had accordingly adopted the
correct procedure by raising the matter as a devolution issue. The reference
had been correctly made to the High Court as arising in criminal proceedings in
terms of paragraph 9 of schedule 6.
[11] The minuters'
Article 6 rights were breached because at the means enquiry hearing they would
be required to address the court on a number of issues in relation to their
failure to pay the fines. These might include their family circumstances. They
might end up on an indirect route to custody. The powers of the Justice of the
Peace Court to impose a community payback order (1995 Act s 227A(5)) included
the imposition of unpaid work and a residence requirement; both of which
amounted to a significant interference with a person's liberty. Where liberty
was at stake, the interests of justice required that legal aid be available (Benham
v United Kingdom (1996) 22 EHRR 293, at para 61; Airey v
Ireland (1979) 2 EHRR 305 at para 24).
[12] The Scottish
Ministers accepted that an "act" included a failure to act. They also accepted
that Article 6(3)(c) was potentially engaged, despite the stage of the
proceedings. However, they submitted that the acts which resulted in the
arrest of the minuters and their appearances were those of the court itself and
not the Scottish Ministers or the Lord Advocate as head of the systems of
criminal prosecution. As such, if it was maintained that they breached a
person's Convention rights, the remedy was by way of appeal or by a petition
for judicial review (Human Rights Act 1998 s 9(1)).
[13] The
provisions in relation to means inquiry courts were carefully "nuanced" to
enable a party who was at risk of being imprisoned to have legal aid. The
structure was that, at the time of imposing a fine, the court could simply
impose a period of imprisonment as an alternative (s 219). The maximum in the
case of the minuters had been, respectively, 14 and 7 days. No alternative was
imposed in this case. However, the minuters, who were entitled to legal
representation at that stage, would have been made aware of the consequences of
non-payment. These consequences were re-inforced by warning letters sent to
the minuters when they defaulted upon the instalments. Meantime, the minuters
would have had access to advice from fines enforcement officers.
[14] In the event
of default in payment, the court could not then simply impose an alternative of
imprisonment. It is obliged in the first instance to impose, as an
alternative, a community payback order (s 227M). It is only if that order
is breached that the alternative of imprisonment can be imposed (s 227ZC). In
the event of a hearing to consider such a breach, legal aid was available to
pay for legal representation (Advice and Assistance (Assistance by Way of
Representation)(Scotland)
Regulations 2003 (SSI 2003/179, regulation 4(2)(fa)(iii)). The maximum period
of imprisonment would be 60 days. The issues involved were not complex (cf
Benham v United Kingdom (supra); Quaranta v
Switzerland, 1991 A 205;
Boner v United Kingdom (1994) 19 EHRR 246)
[15] It was not
clear, therefore, what act was being challenged by the minuters. Was it the
making of the regulations, in which case that was not something which arose in
the context of the criminal proceedings? What would be required was a petition
for judicial review to the Court of Session because the making of the
regulations was a matter for the Scottish Ministers (see Newland, Petnr
(supra), LJG (Hope) at 126 under reference to Cordiner, Petnr
1973 JC 16, LJG (Emslie) at 18; cf Reynolds v Christie (supra)).
The act of making the regulations was not a devolution issue arising in these
proceedings.
Decision
[16] The court
does not consider that any devolution issue arises in the proceedings before
the Justice of the Peace Court. Schedule 6 of the Scotland Act 1998 defines a
"devolution issue" as including a variety of different questions including "(e)
...whether a failure to act by a member of the Scottish [Government] is
incompatible with any of the Convention rights...". In the context of first
instance criminal proceedings, a devolution issue may arise when the Lord
Advocate, or one of the procurators fiscal, is said to be prosecuting in
circumstances where a trial will inevitably be unfair; thus breaching Article
6. Such an act is incompatible with the Convention in terms of section 57(2). A
devolution issue may also arise collaterally in a criminal process, where, for
example, an Act of the Scottish Parliament is challenged as contravening
Article 8. When it does, the power of the criminal courts to deal with it generally
arises because of a continuing prosecution by the Lord Advocate, or those for
whom he is responsible, in breach of a Convention right. The court is able to grant
a remedy by halting the prosecution (see David Lawson Ltd v Torrance
1929 JC 119, LJG (Clyde)
at 121).
[17] The complaint
which is made here is that the minuters' Article 6 rights have been infringed
by virtue of the absence of legal aid to cover representation at a means
enquiry court. However, that contention does not, of itself, create a
devolution issue, far less one which arises in the proceedings. It is first
necessary to identify who is said to be infringing the minuters' rights. It is
clearly not the Lord Advocate, or the local procurator fiscal, since neither
takes any part in these proceedings. Despite all the action being initiated by
the court, it cannot be the court that is being blamed since that could not
create a devolution issue, as distinct from a human rights complaint. There is
no application seeking to prevent the means enquiry hearing continuing. It
appears therefore that the minuters are seeking to challenge, in a criminal
process, the acts or omissions of the Scottish Ministers as the persons who are
capable of making regulations which could enable the Scottish Legal Aid Board
to pay for legal representation. Certainly, the remedy which the minuters seek in
the devolution minutes is a declarator against the "state". Since the actings
of the United Kingdom
government are not susceptible to review by way of a devolution issue minute,
this word must be a reference to the Scottish Government, in the form of the
Scottish Ministers.
[18] However, the
Scottish Ministers are not parties to the criminal processes; although they
have been allowed to appear in them. They cannot competently be made such
parties since, in each instance, the process is one directed, at least
originally, by the procurator fiscal against one of the minuters. In any
event, neither the Justice of the Peace Court nor the High Court, which operate
within the realms of the criminal law, have jurisdiction to grant general declarators
of rights which oblige the Scottish Ministers to act in particular ways in
relation to the general population. That is the province of the civil courts. Matters
could be different, were it to be contended that the means enquiry should be
terminated because of inevitable unfairness. That would be something which
could be dealt with by the criminal court. If that court erred in its
decision, however, that still does not give rise to a devolution issue, unless
there is a continuing act of the Lord Advocate in that process.
[19] If the minuters
wish to pursue the Scottish Ministers for a breach of their Convention rights,
then they must do so in the proper forum. That forum is a civil court (Newland,
Petnr 1994 SC 122, LJG (Hope) at 126, following Cordiner, Petnr 1973
SC 16, LJG (Emslie) at 18, see also Sommerville v Langmuir
1932 JC 55, Lord Anderson at 58,
LJ-C (Alness) at 59). Since the action would be one reviewing administrative actings, the obvious course of action is to raise a petition in the Court of Session for judicial review under section 7 of the Human Rights Act 1998. In that event, the minuters will be able to convene the appropriate public bodies and/or the Scottish Ministers as respondents and the matter can proceed upon proper written pleadings, which identify precisely what act, or failure to act, is being challenged and set out the contentions of all parties properly convened. Thereafter, any order of the court will be binding upon those parties and effective in providing a remedy.
[20] Accordingly,
this court does not consider that it is appropriate to adjudicate on the civil issue
of whether, as a generality, the Scottish Ministers ought to provide legal aid
for all means enquiry hearings in the Justice of the Peace Courts. However, in
this process, it is able to answer the question of whether the minuters'
Article 6 rights have been, or rather will inevitably be, infringed should they
appear at a means enquiry court without a lawyer. The answer is that there is
no basis for such a contention, given the limited information presented in the
devolution issue minutes. The minuters have not attempted to explain why they
have not paid their fines. They have not stated that their circumstances are
in any way complicated, such that, in the interests of justice, they require
the services of a lawyer to present them to the court in an effective manner. For
this court to hold that the minuters' rights have been, or will inevitably be,
breached, it would require to hold that, as a matter of Article 6 fairness,
every person who appears before any means enquiry court at any time must be entitled
to be represented by a lawyer. The court does not understand the Convention
jurisprudence to dictate such a blanket response.
[21] Article 6(3)(c)
of the Convention requires that every person accused of a criminal offence must
be able, throughout the proceedings, to defend himself effectively. This
entails the provision of legal aid "when the interests of justice so require". This
will occur where, for example, a combination of the seriousness of consequences
and the complexity of the legal or factual background points towards a lawyer being
of material assistance (see generally Reed & Murdoch: Human Rights in
Scotland (3rd ed) para 5.207, under reference to McDermitt v
United Kingdom (1987) DR 52, 244; Perks v United Kingdom
(1999) 30 EHRR 33, following Benham v United Kingdom (1996) 22
EHRR 54). As a generality, where deprivation of liberty is at stake, the
interests of justice in principle call for legal representation (Benham v
United Kingdom (1996) 22 EHRR 293, at para 61), but even that is not
averred to be the position in the minuters' current situations. It follows
that the questions posed in the reference must be answered in the negative, on
the basis of the limited information provided.