Scottish Human Rights Law Group

A collateral challenge as to the compatibility with the Convention right to a fair trial of the new criminal legal aid regulations introduced in Scotland with effect from 1 April 1999 by the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999.  

It was argued on behalf of the accused that these new criminal legal aid regulations, which replace the previous “time and line” basis for public money available to solicitors in respect of their investigation, preparation and conduct of the defence in summary criminal trials with a fixed fee scale, the adequacy of which cannot be challenged in any particular case, breached the Convention principle of equality of arms.   It was submitted that any decision of the prosecuting authorities (whose funds were not similarly limited in any particular case) to initiate proceedings where the defence funds are so arbitrarily limited would potentially constitute action by the Lord Advocate incompatible with the accused’s Convention rights under Article 6(3)(b) “to have adequate time and facilities for the preparation of his defence”, under Article 6(3)(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” and under Article 6(3)(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”.   The Lord Advocate, and those acting under his authority, are statutorily bound to respect all of these rights when bringing prosecutions.   In the event, the Privy Council dismissed the challenge in the particular case on the basis that it was clear that a solicitor had been willing to take up and argue the case, notwithstanding the limits placed on his remuneration.    

The Board noted, however that if it could be shown that no legal representation was available to an individual because of the legal aid limits, this might constitute a breach of his Convention rights.  The Scottish Ministers were exhorted by Lord Clyde in his judgment to amend the regulations by introducing an element of flexibility whereby fixed fees could be increased at the discretion of the Legal Aid Board in appropriate circumstances. This hint was duly taken up by the Ministers.