THE Scottish Legal Aid Board’s FAILURE to provide legal aid in the case of a criminal case contributed to the collapse of yet another criminal prosecution, as Sheriff Nigel Morrison QC dismissed charges against an accused of breaking curfew conditions in an antisocial behaviour order (ASBO), because of the lack of legal aid provision for the accused's solicitor to defend the charges properly.
Sitting at Edinburgh Sheriff Court, Sheriff Morrison dismissed the complaint against Jamie Marshall, who in May 2011 had a final order made against him following an interim ASBO in June 2010 ordering that he was not to be out of his home between 9pm and 7am for a three year period until May 2014.
Marshall pled guilty to three breaches of the curfew time committed in May and September 2011, but was allowed to withdraw his guilty plea after the sheriff at the sentencing diet raised concerns about the fairness of a three year ASBO under the European Convention on Human Rights. In due course his solicitor was allowed to lodge a devolution minute challenging the lawfulness of the condition.
Once the expenditure that was going to be incurred by the solicitor became clear, a second minute was lodged, raising the issue of a fair trial not being possible because there was no provision for an exceptional case under the relevant regulations for legal aid. Because of the guilty plea, the Assistance by Way of Representation (ABWOR) Regulations applied, and there was no provision for an extension of the fixed fee payable in the circumstances presented.
The maximum fee under legal aid to which Marshall's solicitor was entitled was £535, but an account of expenses produced for the sheriff showed work to date of £1,819.20 and a future estimate of £503.65.
Sheriff Morrison agreed that, unlike the case of Buchanan v McLean, appealed to the Privy Council in 2001, the argument could not be said to be premature, and the test to apply was whether there was or would be "actual or inevitable prejudice to the accused such that continuation of the proceedings by the prosecutor will result in the accused not being able to have a fair hearing because he cannot defend himself through legal assistance".
This test was met in the present case because there was "clear evidence of actual prejudice and inevitable unfairness". The solicitor had already incurred costs over three times the fee to which she was entitled. "More importantly, there are also the estimated costs yet to be incurred, a legal issue yet to be determined which the accused could not himself readily undertake, the imminent withdrawal of his solicitor and the fact that five other firms will not take over the case", the sheriff said.
The Sheriff added: "The circumstances in which the situation arose are clearly exceptional. By this I refer to the circumstances in which, having pled guilty, the sheriff raised the issue of fairness of the civil ASBO with the resulting withdrawal of the plea of guilty and the lodging of the devolution minutes and legal assistance being available only under ABWOR. I do not think that the professional standards argument arises, because the solicitor can no longer bear the expense and is to withdraw. Similarly, the swings and roundabouts approach does not apply in the face of significant expenditure."
The fact that ABWOR did not permit remuneration for the exceptional case "leads to an incompatibility of ABWOR with the accused's Convention right to a fair trial. He cannot receive a fair trial because there will be no one to represent him to ensure that his case in relation to the other devolution minute is properly and adequately advanced before the court". As a result the Lord Advocate could not continue the prosecution.
IN THE SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
Ref: ED 11011303
Act: Caldwell, procurator fiscal depute
Alt: Law, Beaumont & Co., Solicitors
Edinburgh, 9th July 2012
 The accused pleaded guilty at the first opportunity on 17th November 2011 to three charges (charges 1, 2 and 6) out of six of breaches of an anti-social behaviour order (an "ASBO") by failing to adhere to the curfew condition. He was outwith his home on 11th May 2011 at 9.20pm, on 14th May 2011 at 9.20pm and on 25th September 2011 at 4.50am, all when he was on bail.
 The first two offences (charges 1 and 2) were committed in breach of an interim ASBO pronounced on 10th June 2010 in civil proceedings brought against him by Midlothian Council under the Antisocial Behaviour etc. (Scotland) Act 2004 to the effect that he was not to be outwith his home (the same address as in the charges) between 9pm and 7am. The accused was represented at the interim hearing but, by the time of the final order, his solicitor had withdrawn from acting. The final ASBO was pronounced on 4th May 2011. The defender did not appear at the hearing on which the final order was pronounced. That order prohibited the defender (the accused), inter alia, from being outwith his residence (the same as in the charges) or any other place at which he might reside between 9pm and 7am for a period of three years, that is until 3rd May 2014.
 Miss Law informed me, on 3rd May 2012, that the sheriff, who took the guilty pleas on 17th November 2011 and dealt with the case on three following adjourned diets for sentence, had raised concerns about the fairness of the ASBO for three years under the European Convention on Human Rights (the "Convention") and the case was continued on that and two subsequent occasions to allow the solicitor for the accused to make investigations. At the adjourned diet on 12th February 2012, the sheriff allowed the guilty pleas to be withdrawn. The consequence was that a devolution minute was subsequently lodged on 8th March 2012. It raised the issue of the lawfulness of the daily curfew condition for three years in the ASBO of 4th May under articles 5 and 8 of the Convention arguing that under section 57(2) of the Scotland Act 1998 the Lord Advocate had no power to bring proceedings against the accused. Later, once the expenditure that was going to be incurred by the solicitor became clear, a second minute was lodged on 13th April 2012. This second minute raised the issue of a fair trial not being possible, and the Lord Advocate not having power to continue proceedings against the accused, because there was no provision for an exceptional case under the relevant regulations for legal aid.
 The case came before me on 3rd May 2012 for the first day of the debate on the second devolution minute first. The reason for this was that, following this debate, Miss Law would have to withdraw from acting and there would be no one to represent the accused at the second debate or to instruct counsel (for whom legal aid would be available, as an outlay, for arguing the first devolution minute) or to represent the accused thereafter.
 The minute was intimated to the Advocate General and, I understand, to the Scottish Legal Aid Board (SLAB). Neither was represented at the debate.
 Before an accused person pleads not guilty, or where the accused pleads guilty, he or she may be represented by a solicitor who may be paid by virtue of regulation 6 or 6A of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 (commonly known as ABWOR). Under the Advice and Assistance (Financial Limit) (Scotland) Regulation 1993, regulation 3 specifies the financial limits or sums in section 10 of the Legal Aid (Scotland) Act 1986. The limit cannot be exceeded except with the approval of the SLAB, but no application can be made to exceed the limit if it does not relate to a specified distinct matter by virtue of regulations (which do not apply here). There is no provision for the solicitor to paid in respect of exceptional circumstances. The current financial limit is £550. The Scottish Legal Aid Board Criminal Legal Assistance Handbook, Part III ABWOR - Summary Criminal Proceedings, paragraph 3.19, states that the case disposal fee is currently £515 with add-ons payable in some cases bringing these payments into line with the financial limit of £550.
 Miss Law informed me that in this case the solicitor was entitled to £485 but because there were three adjourned diets the total maximum fee was £535. (I assume that the allowable sums have increased slightly in the latest addition of the handbook.) Miss Law told me that expenditure to the date of the second minute was of the order of £1,000. I asked for a detailed note of expenses, and, at the second day of the debate, Miss Law produced a detailed account of expenses of her firm for work on behalf of the accused which showed an estimated total expenditure of £2,322.85 excluding outlays of £30. Work to date was calculated at £1,819.20, the balance of £503.65 was an estimate of work yet to be incurred (it may well be more depending, for example, on the number of occasions for which it is necessary to fix hearings for the second debate; and this debate required more diets than anticipated or estimated for). Apart from £535, none of this would be recoverable.
 ABWOR still applied in this case because the accused could not plead not guilty until the pleas in bar of trial raised by the devolution minutes had been dealt with. Once the accused, if the case reached that stage, was in a position to plead not guilty (if he chose to do so), he could receive legal aid for any trial but the solicitor's expenditure so far incurred, and estimated to occur, could not be recoverable under full legal aid.
 Against this background, the argument for the accused may be simply put. There was a breach of article 6(3)(c) of the Convention as there could not be a fair hearing because the accused could not receive legal assistance since there was no provision in ABWOR for the exceptional case to allow his lawyer to be properly remunerated and for the accused to be represented. The Lord Advocate could not, therefore, continue the proceedings against the accused and the complaint fell to be dismissed.
 Miss Law referred me to Buchanan v McLean, 2001 SCCR 475, in the Privy Council. The case is also reported in 2002 SC (PC) 1. That case arose under the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 which are the regulations that would apply when the accused pleads not guilty. I shall refer to those regulations as the 1999 Regulations. The argument in that case was that there could not be a fair hearing under article 6(3)(c) of the Convention because the accused's solicitor could not be properly remunerated and there was an inequality of arms. There was no provision for the exceptional case to allow for a solicitor to receive further remuneration than the fixed fee. The case floundered because it was held that it had not been shown that some form of actual or inevitable prejudice would result. The argument was premature. There was much criticism in the opinion of Lord Hobhouse of Woodborough, for instance, of the fact that the solicitors had provided no evidence of prejudice. Similar views, about the requirement for actual or inevitable unfairness and the lack of proof at the stage at which the argument was presented, were expressed by the High Court of Justiciary in McAllister v HM Advocate, 11th December 2009, unreported, a case under the 1999 Regulations. In that case the issue was whether the appellants could not get a fair trial because of the refusal of SLAB to sanction the employment of junior counsel.
 The case of Buchanan, therefore, did not reach and decide the issue of whether, had prejudice been shown, the accused's right to a fair hearing would be put at risk if there was no provision for the exceptional case such that his solicitor could receive more than the fixed fee. There is a strong hint in the opinions in that case, however, that had it been necessary to decide this issue the argument would have succeeded. I shall refer to these shortly.
 The arguments for the procurator fiscal were (1) that it was not the act of the prosecutor which would have the result of there being a breach of article 6, it was the consequence of the legislation; (2) that the remarks in Buchanan about incompatibility were obiter; and (3) until the second devolution minute had been heard, one could not know the extent to which the accused was disadvantaged and could not have a fair trial.
 In relation to the first argument, Miss Law submitted that first one looked at the question of fairness and, if there were unfairness, then the prosecutor could not continue to act by prosecuting the case under section 57(2) of the Scotland Act 1998. I accept that argument. The Lord Advocate cannot continue a prosecution as a consequence of which the accused's Convention rights will be infringed. That is the case unless the exception in section 57(3) applies, which it does not here.
 As for the second argument, I accept that the remarks in Buchanan, about the absence of provision for the exceptional case giving rise to a breach of article 6, were obiter. They are nonetheless powerful and persuasive. Lord Hope of Craighead states in paragraph 45 that "the greater the inflexibility the greater is the risk that occasionally, especially in exceptional or unusual cases, the scheme will lead to injustice". Lord Clyde at paragraph 68 says "there is a real likelihood that in another case a serious risk of a contravention may arise". In paragraph 71 he wrote that -
"risk may arise from the lack of flexibility in the present Regulations. No allowance is made for any unusual or exceptional circumstances. The requirements of fairness in judicial proceedings are rarely, if ever, met by blanket measures of universal application. Universal policies which make no allowance for exceptional cases will not readily meet the requirements of fairness and justice."
In paragraph 80 Lord Hobhouse of Woodborough said that "the critical defect in the 1999 Regulations is their inflexibility... they need to be amended to incorporate an element of flexibility ... to avoid breaches of article 6 of the Convention". In paragraph 81 he goes on to state that he did not accept that the Regulations were "fully compatible with article 6; they require a proportion of cases to be dealt with in a manner which will deny the accused his right under that article as occurred in Glendinning."
 In my opinion, if the 1999 Regulations were thought to be inflexible giving rise to incompatibility with article 6, then so must be the ABWOR Regulations in which there is also no provision for the exceptional case. There is support for this view in HM Advocate v CK, 2011 SCCR 381, to which I was referred by the procurator fiscal depute, where it is stated in paragraph  that-
"It is wholly reasonable, in our judgment, to have a system of fixed block fees covering certain areas of work, provided exceptions can be made therefrom so that additions may be made to the fee where the complexity of the case is made out and justifies this" (emphasis added).
 It is interesting to note that, during the progress of Buchanan in the Privy Council, the Government decided to make provision in the 1999 Regulations for the exceptional case. Subsequently those regulations were amended to provide for the exceptional case. It is all the more remarkable that, in the light of that, in the ABWOR Regulations in 2003, no provision was made for the exceptional case. The Government cannot have been unaware of the issue at the time of the enactment of the ABWOR Regulations as they were enacted after the case of Buchanan.
 In relation to the third argument, Miss Law submitted that "trial" does not mean the actual trial, i.e. only that part of the proceedings at which evidence is led. Fairness could be tested before the trial. One did not have to wait until the result of the other devolution minute to ascertain whether the accused would be disadvantaged. It was clear that he would be disadvantaged now because he would not be represented at a debate on that devolution minute. I agree that the word "trial" must include any part of the prosecution process, and not merely the trial itself. The accused would not be represented when the other devolution minute came to be argued.
 Miss Law distinguished the facts in Buchanan from this on the grounds that in this case there was evidence of prejudice and the issue was not premature. Her firm had already incurred expenditure over three times the maximum fee that she could receive and the case was not yet finished. She recognised that a substantial amount of expense had already been incurred without detriment to the accused, but, she pointed out, the expenditure was not yet over and no one will represent the accused. In the light of the cost to her firm, which could not be recovered, she would have to withdraw from acting after this debate, the accused would not be represented to argue the second devolution minute and would not be in a position to present the legal argument himself. She had approached five other firms to ask if they would take over the case but they had all declined. The procurator fiscal relied on what was said about the lack of prejudice and about prematurity in the cases of McAllister, Buchanan, and Gayne v Vannet which is reported at 2000 JC 51.
 As for actual prejudice, in McAllister it was, I note, held that the test was that it had to be shown that-
"the proceedings would necessarily bring about a breach of the appellant's Convention rights, or would inevitably result in the proceedings as a whole being unfair in the convention sense".
Reference was made in the opinion of the court to what Lord Hamilton said in Transco Plc v HM Advocate (No.2), 2004 SCCR 553, 577, para.  (also 2005 JC 44, 63) that a person could succeed only if he could "demonstrate that this is one of those 'rare and isolated cases' in which it can be said at this stage that proceeding to jury trial will 'inevitably' result in an infringement of the appellant's right to a fair trial." The argument in Transco was that trial by jury could not be fair. McAllister was not, it appears, mentioned in Buchanan, either in the High Court or the Privy Council.
 In the High Court of Justiciary in Buchanan, reported in 2000 JC 603, although the argument that every accused was disadvantaged because payments would be determined by the 1999 Regulations did not persuade the court (para. ), Lord Prosser went on to state that:-
"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 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."
 In the Privy Council in Buchanan Lord Hope of Craighead stated that in a plea in bar of trial it must be shown that "some form of actual or inevitable prejudice will result so that the sheriff cannot be expected to reach a fair verdict in all the circumstances" (para. 37). Lord Clyde put it this way:- "the test has to be whether the act of the prosecutor in continuing with the prosecution will inevitably have the consequence of a breach of article 6" (para. 51). Lord Hobhouse of Woodborough indicated that "it will always be necessary to ask in any individual case whether it comes into the category equivalent to that in Glendinning where the disparity is such as to amount to a denial of equality of arms and a fair trial" (para. 79).
 That case is McLeod v Glendinning, Perth Sheriff Court, February 2001, unreported, a decision of Sheriff Tierney. It seemed important to see what the full circumstances were in that case although Lord Hobhouse of Woodborough does refer to it at paragraph 78 in Buchanan. I was not able to find a copy of the decision. I asked Miss Law and the procurator fiscal for their assistance, and Miss Law was subsequently able to find it. I invited both Miss Law and the procurator fiscal to address me on this case if they wished, but both declined. In that case, under the 1999 Regulations when there was no provision for the exceptional case and there was a fixed fee of £500, the solicitor for the first accused estimated that the cost of work to be done would be about £5,000. The solicitor for the second accused had approached a number of senior solicitors in Glasgow, and both solicitors had discussed the matter informally with other solicitors, but none was prepared to take the case on. Sheriff Tierney held that the then rigid system of the fixed fee regardless of the work or complexity, where the fee was so low that no solicitor could reasonable be expected to bear the cost, was a denial of the entitlement to free legal assistance under article 6(3)(c). He rejected the Crown argument that the issue was premature, as also the "swings and roundabouts" approach that solicitors would act for a fixed fee in a number of cases because in some the fee would be more than the work involved. He held that there was a current disadvantage and a real risk of a future disadvantage.
 The test which I must apply, therefore, following Buchanan, is whether there is or will be actual or inevitable prejudice to the accused such that continuation of the proceedings by the prosecutor will result in the accused not being able to have a fair hearing because he cannot defend himself through legal assistance.
 It was said in Buchanan, McAllister and Gayne, that there would not be prejudice where solicitors will not reduce their standards of preparation because of inadequate remuneration and will conduct the defence in accordance with professional standards as required by their codes of conduct: see, for example, Lord Hope of Craighead at paragraph 38 in Buchanan. A difficulty for a solicitor is that, if the issue is raised too soon or without sufficient evidence of prejudice, the solicitor will be met with the argument that the matter is premature. If the solicitor raises the issue too late, the argument will be that the accused has suffered no detriment (because the solicitor has upheld professional standards and continued to act or has been prepared to rely on the swings and roundabouts approach). In this case the solicitor cannot have anticipated or sought the turn of events that have occurred which have resulted in substantial expenditure.
 There was recognition in Buchanan that there could be unfairness. Lord Clyde said that "if the result of the Regulations is that no legal representative is available for an accused in a case where the Convention requires that he be represented, then a breach will occur" (paragraph 68). Lord Hobhouse of Woodborough referred to the probability of inequality of arms and possibility of unfairness in paragraph 75.
 In my opinion, actual and inevitable prejudice in this case has been demonstrated. The facts of this case can be distinguished from those in Buchanan, and indeed McAllister, because there is clear evidence of actual prejudice and inevitable unfairness. This is also not a case in which it could be said that the argument in relation to actual and inevitable prejudice is premature. It seems to me that this case is equivalent to that of Glendinning. The estimate of the substantial expenditure so far incurred by the accused's solicitor is already over three times the fee to which the solicitor is entitled. More importantly, there are also the estimated costs yet to be incurred, a legal issue yet to be determined which the accused could not himself readily undertake, the imminent withdrawal of his solicitor and the fact that five other firms will not take over the case. The circumstances in which the situation arose are clearly exceptional. By this I refer to the circumstances in which, having pled guilty, the sheriff raised the issue of fairness of the civil ASBO with the resulting withdrawal of the plea of guilty and the lodging of the devolution minutes and legal assistance being available only under ABWOR. I do not think that the professional standards argument arises, because the solicitor can no longer bear the expense and is to withdraw. Similarly, the swings and roundabouts approach does not apply in the face of significant expenditure.
 In conclusion, ABWOR does not permit remuneration of the solicitor for the exceptional case. This leads to an incompatibility of ABWOR with the accused's Convention right to a fair trial. He cannot receive a fair trial because there will be no one to represent him to ensure that his case in relation to the other devolution minute is properly and adequately advanced before the court. The Lord Advocate cannot in these circumstances continue the prosecution against the accused in breach of his Convention rights. Accordingly, the complaint falls to be dismissed.