Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Wheatley Lady Paton Lord Marnoch

[2009] HCJAC INFO Appeal No: XC534/08, XC535/08, XC536/08, XC537/08, XC547/08, XC548/08 OPINION OF THE COURT delivered by LORD WHEATLEY in Appeals under Section 74 of the Criminal Procedure (Scotland) Act 1995 by (1)  MATTHEW McALLISTER (2)  CONNIE HENDRY (3)  JOHN HANNAH (4)  YVONNE HUGHES (5)  MARK McALLISTER (6)  MARGARET McALLISTER (7)  KEVIN FERN Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

Petitioner: (1)  Smith Q.C., Capital Defence Lawyers, Edinburgh

(2)  Gebbie, Advocate, Barony Law Practice, Edinburgh

(3)  McCluskey, Advocate; Ian McCarry, Glasgow

(4)  Ogg, Solicitor Advocate; Capital Defence Lawyers, Edinburgh

(5)  Templeton, Advocate; Capital Defence Lawyers, Edinburgh

(6)  Collins, Solicitor Advocate; Capital Defence Lawyers, Edinburgh

(7)  Jackson, Paterson Bell, Edinburgh

Respondent: Mitchell Q.C.; Crown Agent, Edinburgh

11 December 2009

[1] The appellants have been indicted in the Sheriff Court in Glasgow on various charges under the Copyright, Design and Patents Act 1988 and the Trademarks Act 1994. In short, the allegations against each of the accused are that they have been in possession of, or dealing in articles that they knew infringed copyright law at various stalls in the Barras Market, Gallowgate, Glasgow between 8 October 2005 and 3 December 2005, and between 18 and 26 February 2006, and that they had in their possession for gain goods which bore certain unauthorised trademarks. The first appellant's agents formed the view that the case merited the granting of sanction for the employment of junior counsel by the Scottish Legal Aid Board in order properly to prepare and present the accused's defence, and made an application to that effect. However, the Board refused this request. It appears that similar applications were made in respect of the other accused, and were also refused.

[2] After the indictments on all of the accused had been served, the first appellant lodged a devolution minute. This was to the effect that the indictment should be dismissed against him as he would not receive a fair trial in terms of Article 6(3)(b),(c) and (d) of the European Convention on Human Rights, if sanction for the employment of junior counsel was not given. The basis of the minute was that the case was a complicated one, raising a number of legal issues; that there was a large amount of documentary and label productions, and that the case was liable to take a substantial amount of time. At the continued first diet on 15, 17 and 18 January 2008 the sheriff in Glasgow refused the minute but granted leave to appeal to this Court. The remaining appellants followed suit. After sundry procedure, the case came out for a procedural hearing on 27 August 2008 when it was suggested that the appropriate course for the appellants to take in the face of the decision to refuse sanction for junior counsel was to take a judicial review. The appellants then considered their position but all have subsequently intimated to the court that they did not intend to challenge the Board's decision by that route. A full hearing of the appeals against the sheriff's refusal to grant the devolution minutes was then instructed.

[3] At the hearing before this Court the fifth and sixth appellants abandoned their appeal, but the remaining appellants sought to have the sheriff's decision reversed. Submissions were made by counsel for the second appellant, and adopted by the remaining appellants. As matters appropriate to a judicial review of the Scottish Legal Aid Board's decision were not relevant to our consideration, it was accepted that the only live issue before the Court was whether in general terms the appellants could demonstrate that they would not get a fair trial because of the refusal by the Board to sanction the employment of junior counsel. The grounds of appeal, read short, were that in terms of Article 6(1) of the European Convention on Human Rights, everyone charged with a criminal offence has a right to a fair trial; and that Article 6(3) provides certain additional minimum rights, including (d) the right to adequate time and facilities for the preparation of the defence and (c) the right to defend oneself, with the proviso that if sufficient funds are not available to pay for legal assistance, then it was to be given free if the interests of justice so required. The appellants maintained that these rights had been violated by the refusal by the Board to sanction the employment of junior counsel.

[4] Counsel for the second appellant before this Court submitted that, although the case had been indicted in the Sheriff Court, it was a complex and unusual prosecution. There was the risk of a substantial custodial sentence in the event of conviction. The sheriff had considered that this was an exceptional case. There were 177 productions and 118 labels, comprising some 7,000 items. The prosecution was promoted by the enforcement agencies of substantial commercial organisations. There were complex legal questions; for example the evidence against the appellant was apparently based on covert surveillance carried out by the aforementioned agencies. The sheriff had concluded that, in the case of the first appellant, the co-accused had not (at that time) sought representation by counsel, and that the procurator fiscal depute would also be unassisted when he presented the evidence in court. However, while the Crown had the assistance of the agencies already mentioned, a solicitor would have to service the needs of other clients while he was conducting the trial. The question of whether justice would be done in this case, it was said, depended upon both a qualitative and quantitative assessment of the legal assistance available to the accused. In support of this submission, counsel for the second appellant referred to several authorities. These included Dowsett v The United Kingdom no. 39482/98, ECHR 2003 - VII; Eur. Court H.R., Campbell and Fell judgment of 28 June 1994 Series A no. 80; Eur. Court H.R., Artico judgment of 13 May 1980 Series A no. 37; Eur Court H.R., David v Portugal judgment of 21 April 1998, Reports of Judgements & Decisions 1998 - II; Steel and Morris v The United Kingdom, no. 68416/01 ECHR 2005 - II, and Laskowska v Poland, no. 77765/01 [13 June 2007: official report n.y.p.]. Counsel concluded that the defence were in the best position to judge whether the circumstances under which the prosecution was brought would lead to an inequality of arms and thus to an unfair trial. The lack of sanction for the employment of a junior counsel, it was said, would in this case lead to such an inequality of arms and prevent the appellant from conducting her defence properly and effectively. It was therefore the Court's duty to intervene and dismiss the indictment.

[5] It should be noted that all of the authorities cited by counsel for the second appellant dealt with matters post-trial. In addition, counsel for the second appellant fully conceded that he had not looked at the papers in the case, and that he had no instructions from his client on the substantive matters charged in the indictment. He had therefore no idea whether any of the matters which he had identified as making the case exceptional would in the event of the trial proceeding present any difficulty in practice, or be the source of any unfairness to the appellant. His submission at the end of the day was that if he raised matters which might suggest that unfairness could result, then it was for the court to be satisfied at this stage that such matters would not preclude a fair trial. The court had to dispel any risk of unfairness that might arise in the trial and must do so at this stage. If the risk of any unfairness could not be discounted, then the court would have a duty to desert the indictment against the accused.

[6] Noting that all the authorities cited by the appellant were post-trial, the advocate depute suggested that none of these cases supported the appellant's claim that an assessment could be made at this point in the case that legal assistance by a solicitor would be inadequate. In essence they described various fundamental and unconstested propositions concerning the right to a fair trial and the principle idea of equality of arms, but did not provide much further assistance beyond the expression of a generality of ideas. The appellant's counsel had misunderstood the nature of the entitlement to legal assistance in terms of the Convention. The assistance provided by the state to an accused person in terms of Article 6(3)(c) comprised the right to be represented by an advocate, in the broad sense of that word, who is expected to be effective in the assistance he gives. The question is whether the assistance is effective, and that matter is normally assessed after trial. It can be assumed here that a qualified solicitor, on the duty roll of solicitors competent to do criminal business, will be able to deal with all matters raised in the trial.

[7] We are satisfied that the proper test to apply in matters of this kind is that described in the case of Transco Plc v Her Majesty's Advocate 2004 SC (J) 29; 2004 SLT 995; 2004 SCCR 553, where it was held that the appellants' minute could succeed only if they could show 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. As put more particularly by Lord Hamilton in his opinion (at para [44]), the appellant in these circumstances can succeed only if he "can 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.". As counsel for the second appellant was in effect arguing for a wholly different test to be applied in the present case, that would be enough to dispose of this appeal.

[8] However, we also conclude that on no possible view could the appropriate test be satisfied in the present case, particularly because the issues that may arise at the trial cannot at this time be identified. Counsel for the second appellant freely conceded that he could not say whether any of the matters he had pointed to as potential sources of unfairness or inequality of arms would in fact turn out to be so. He is not instructed in that matter. It is therefore impossible to assess what weight, if any, will attach to the fact that the complaint on which the indictments are based came from large organisations with interests to protect (presumably the same arguments would apply in cases where the complaint came from banks, building societies or insurance companies), that 1,700 items (all apparently of a similar nature) have to be considered, or that covert surveillance was used to obtain the information on which the charges were based. In the result, we are satisfied that the circumstances in the present case falls far below the proper test described by Lord Hamilton in Transco Plc.

[9] Further, we should add that we think that the submissions made on behalf of the second appellant were essentially misguided. The contention appeared to be that, despite their obligation of disclosure, because the Crown had greater resources than the defence, this entitled the defence to some kind of additional legal assistance in order to satisfy the test of equality of arms. In our opinion that contention is unsound In the present case, it is understood that an unassisted procurator fiscal depute will appear for the prosecution, and that individual solicitors will represent each of the appellants. Beyond that, there is in our view no general entitlement to further or additional assistance to satisfy the principle of equality of arms; see Buchanan v McLean 2001 SLT 780; 2001 SCCR 475, per Lord Hope of Craighead at para [40]. We also refer to what was recently said in the case of Taylor v City of Westminster Magistrates Court [2009] EWHC 1498; 173 2009 JP 405 by Cranston J at para 28:

"...As the jurisprudence makes explicit, Art.6 does not require a state to write a blank cheque for the type of legal assistance to be provided. In essence, the jurisprudence establishes that in this type of case as long as the defendant is represented by a lawyer who is competent to put the case there is no breach of the equality of arms principle. ...What must be done is to ensure that a party has someone who can ensure that a defendant's case is properly and adequately advanced before the court. The convention jurisprudence is not prescriptive as to the procedure by which this is to be done or as to how it is to be effected in practice."

In our view therefore the idea of equality of arms (essentially the only principle substantively relied upon by the appellants in this case) comprises no more than that the means must be made available to anyone accused of a criminal offence that his arguments can be properly deployed before the court. It therefore follows that references to the resources available to the Crown in the preparation of the case will normally have no part of an equality of arms argument. In all the circumstances we have decided that these appeals must be refused, and the case is returned to the sheriff to proceed as accords.