McLean and Another v Buchanan, Procurator Fiscal and Another: PC 24 May 2001

(Appeal from High Court of Justiciary (Scotland)) It was not an infringement of a defendant’s right to a fair trial where the costs of defending the case brought against him would be substantial, but where his solicitors would be paid only a small fixed fee sum. In this case the defendants had the benefit of solicitors and counsel continuing to act for them, despite any such difficulty. The difficulty of conflict of interest in a solicitor under financial pressure to deal with a case simply was to be controlled by the professional standards governing his activities. Where however, because of the regulations, no representation could be found, the defendant’s right to a fair trial might be prejudiced, and some solution had to be found.
Lord Nicholls of Birkenhead agreed with Lord Hope: ‘1. As Lord Hope has indicated, there are respects in which these solicitors, remunerated in accordance with the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, (SI 1999 No 491) will not receive reasonable remuneration for the work done by them in this case. This cannot be regarded as a satisfactory state of affairs. But this does not, of itself, afford a sufficient ground for supposing that, if the solicitors continue to act, they may fail properly to discharge their professional responsibilities towards their clients.
2. Different considerations would arise if the solicitors were to withdraw, and the appellants were unable to find replacement solicitors because of the inflexibility of the 1999 fixed payment regulations. But at present this is no more than a speculative possibility. I will therefore say nothing further about the position which might then arise, especially as the Convention Rights (Compliance) (Scotland) Bill is currently before the Scottish Parliament.’
Lord Hope said: ‘I share the concerns which my noble and learned friends Lord Clyde and Lord Hobhouse have expressed about the potential for injustice which is inherent in the fixed payment regime. A scheme which provides for various items of work and the associated outlays to be paid for in stages, for each of which a prescribed amount will be paid as a fixed fee, will not necessarily be incompatible with the Convention right to a fair trial. But 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 stated: ‘But I do not consider that it would be right to leave the case without making some observations on the present form of the regulations. While I have not been persuaded that they have caused, or on the present information are likely to cause, a contravention of Article 6 in the present case, it seems to me that there is a real likelihood that in another case a serious risk of a contravention may arise. 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 should be represented, then a breach will occur. This does not seem to me to be a fanciful possibility. We were informed that cases have occurred where as a result of the regulations no solicitor has been found to act for an accused person. The case of Glendinning in Perth Sheriff Court (February 2001) was quoted to us as an example.
. . I see nothing wrong in principle in a scheme which proceeds upon a basis of fixed sums for specified work. Moreover, in so far as the approach adopted recognises that different cases will require different amounts of work, and that different cases will have different degrees of profitability, the policy of adopting a basis of a fixed sum may not in itself be unreasonable if in its general operation the solicitors engaged in the work covered by the regulations, taking as it were the rough with the smooth, will find the amounts acceptable. And it is right to recognise that the scheme is not altogether rigid. In a rough and ready way account is taken of the extra costs involved in a long trial, reflecting the extra work involved. Moreover the outlays covered by the fixed sums are only the ‘prescribed outlays’ and that phrase may be open to construction so as to allow for outlays, but not fees, which fall outside the scope of the definition. In that connection it is to be remembered that in deciding whether or not the regulations comply with the Convention every effort of construction has to be made in order to avoid such a contravention. Section 3 of the Human Rights Act 1998 requires subordinate legislation to be construed in a way compatible with the Convention ‘[S]o far as it is possible to do so’. That approach may go some way to avoid a contravention, but if it is found to be impossible to find a compliance by any technique of interpretation, the consequence may be an invalidity in the regulations.
It appears that the danger has been recognised by the Scottish Executive, in that some provision for a remedy has been incorporated in the current Convention Rights (Compliance) (Scotland) Bill. This allows for the making of regulations to prevent a person being deprived of the right to a fair trial. No draft regulations were shown to us and it remains unclear what solution is to be devised. The most obvious, but perhaps not the only, 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 standards required for fairness and justice.’
Lord Hobhouse said: ‘There is much to be said for schemes of legal aid which reduce the bureaucracy involved provided that they do not undermine the principle that the lawyer should receive fair remuneration for the work which he is required to do.
. . ‘As has been pointed out, the critical defect in the 1999 Regulations is their inflexibility. A more sophisticated code for predefined fixed payments might avoid the pitfalls but the First Schedule to the 1999 Regulations is anything but sophisticated. If the 1999 Regulations are to be retained as the structure, they need to be amended to incorporate an element of flexibility to give the Legal Aid Board the power to avoid breaches of Article 6 of the Convention. This is apparently also the view of the Scottish Executive. It has introduced into the Scottish Parliament the Convention Rights (Compliance) (Scotland) Bill to amend certain enactments, including those relating to legal advice and assistance and legal aid, which are or may be incompatible with the convention and to enable further changes in the law where there is or may be incompatibility. Clause 8 of the Bill would amend the 1986 Act, with retrospective effect, so as to enable the fixed payment regime to be amended so as to avoid accused persons being ‘deprived of the right to a fair trial’. This is a welcome development even though the proposed revised regulations have not yet been published even in draft.’

Lord Hope of Craighead, Lord Nicholls of Birkenhead, Lord Clyde, Lord Hobhouse
Gazette 12-Jul-2001, [2001] 1 WLR 2425, [2001] UKPC D3, 2001 GWD 19-720, 2001 SCCR 475, 2001 SLT 780, 2002 SC (PC) 1, [2001] UKHRR 793
PC, PC, Bailii
Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, European Convention on Human Rights 6
Cited by:
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Lists of cited by and citing cases may be incomplete.

Legal Aid, Legal Professions, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.83563