Tuesday, April 28, 2009

Restrictions of legal aid for defamation challenged over Edinburgh City Council’s false ‘convicted murderer’ claim

Danny Wilson, whom Edinburgh City Council falsely claimed was a convicted murderer, has been awarded legal aid for a judicial review on the directions issued by the Scottish Government over restrictions for legal aid in defamation cases. (Good luck Danny – its about time those long held directions which definitely amount to prejudice against the individual, were overturned – Ed)

The Scotsman reports :

Danny Wilson's case has sparked a judicial review. All he wanted was an apology for being wrongly called a murderer

Published Date: 27 April 2009
By John Forsyth

A MAN who was falsely reported by Edinburgh City Council officials to be a convicted murderer has been awarded legal aid to fund a judicial review of the Scottish Government's "directions" that restrict legal aid for defamation actions.

It is the latest significant milestone in the long haul from grievance to resolution for Danny Wilson. "All I wanted at the outset was the council to say sorry," says Mr Wilson, "but the whole thing is going to end up in the legal textbooks."

Mr Wilson now lives in Wales but was in Edinburgh between 1991 to 1998. In 2004, he and his partner began a course of IVF treatment at Shrewsbury Hospital, but on one visit were told they were no longer to be treated. "I can still see the hostile look on faces of staff when we arrived," he recalls. "We asked what was up. They said, 'We must have a meeting.' When I asked why we were no longer to get treatment they said, 'Surely you know?'"

The clinic had received a letter from Edinburgh City Council's social work department advising, among other falsehoods, that Mr Wilson was a convicted murderer and had served the prison element of a life sentence. "I said it was a complete mistake but they said, 'Prove it'."

The council later acknowledged to Mr Wilson that the information in the letter was incorrect and unsubstantiated, but when the clinic asked for clarification was only told the council could not confirm or disprove the allegation – even though it came from them in the first place.

The clinic refused to continue with the course of IVF treatment and Mr Wilson and his partner incurred financial loss in securing treatment elsewhere. "It was even difficult going to the clinic to get my own samples back," he says. "All the staff seemed to know the story and looked at me as if I'd crawled out from under a stone."

It appeared the false allegation had entered the council system via a clinic in the city and Mr Wilson raised a complaint with the Local Government Ombudsman. "I was just as stunned by their approach," he says. "They rejected the complaint apparently on the basis it would be too expensive for councils to validate every bit of information on their files.

"It means the council can hoover up gossip, mistakes or malicious falsehoods about people and never be faulted when they pass them on. Who knows how many people have had their reputations destroyed in council files without them knowing a thing about it or having a chance to challenge the falsehood?"

In 2008 Mr Wilson approached Cameron Fyfe of Ross Harper, who lodged an application for legal aid to support an action for defamation.

The law in Scotland was changed in 2007 when The Legal Aid Profession and Legal Aid (Scotland) Act permitted the granting of Legal Aid in cases involving defamation and verbal injury. However, there were a series of "directions", among them a requirement that an applicant must demonstrate there is "something exceptional about the person or the case".

Specifically, the Scottish Legal Aid Board (SLAB) "must be satisfied that the degree of exceptionality is the same as, or is approximately the same as, in the facts found in the case of Steel and Morris v United Kingdom." This is the famous "McLibel" case, in which two activists were sued in England by the McDonalds burger chain.

Mr Wilson's first application to SLAB was rejected and an appeal was dismissed, though the Sheriff Principal said he found the hurdles placed in the way of a successful application "extraordinary".

SLAB confirmed it had received three applications for legal aid in support of defamation actions since the new rules came in. All had been turned down.

In December 2008, Mr Fyfe applied for legal aid to apply for a judicial review of the Scottish Government regulations on the basis that the directions effectively put legal aid beyond reach, and therefore breach Article 6 (1) of the European Convention of Human Rights. SLAB has agreed to fund the review.

Mr Fyfe says: "This is really good news. There's a sense SLAB are unenthusiastic about funding judicial review but the board will have taken advice that our case has a reasonable prospect of success. It's still a long haul."

A judicial review in his favour will take Mr Wilson back to the starting blocks. He believes a social work department is particularly vulnerable to malicious falsehood because applicants often overstate the details of their predicament. He is particularly vexed at how Edinburgh's social work department seemed to drag its feet in undoing the damage or explaining how it passed on such a falsehood.

He adds: "The council couldn't even bring itself to say it was wrong. An alleged murder conviction must be the easiest fact of all to check … They just said the information was being 'removed from my file'. That just made it worse."

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