Butt & Anor v Procurtor Fiscal, Dundee [2012] ScotHC HCJAC_107 (23 August 2012)

Butt & Anor v Procurtor Fiscal, Dundee [2012] ScotHC HCJAC_107 (23 August 2012)

No devolution issue arises in these proceedings because the absence of legal aid provision for means enquiry hearings is not an act or omission of the Lord Advocate or Procurator Fiscal in the context of a criminal prosecution. The proper forum for challenging the Scottish Ministers' failure to provide legal aid is the civil courts. There is no basis, on the facts presented, to hold that Article 6 ECHR requires legal representation in every means enquiry hearing.

Citation
[2012] ScotHC HCJAC_107
Parties
Minuter: Zen Riaz Butt; Minuter: Barry Duncan; Respondent: Procurator Fiscal, Dundee; Interested Party: Scottish Ministers (including the Lord Advocate)
Jurisdiction
Scotland
Judgment Date
23 August 2012
Procedural Posture
Criminal Appeal (devolution Reference) / Reference to High Court on Devolution Issue From Justice of the Peace Court
Outcome
Reference dismissed; questions answered in the negative.
Legal Topics
Legal Aid, Article 6 ECHR, Means Enquiry Hearings, Jurisdiction of Criminal Vs Civil Courts, Devolution Issues
Criminal Law Human Rights Law Constitutional Law Legal Aid Article 6 ECHR Means Enquiry Hearings Jurisdiction of Criminal Vs Civil Courts Devolution Issues

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Parties

Zen Riaz Butt

Minuter

Barry Duncan

Minuter

Procurator Fiscal, Dundee

Respondent

Scottish Ministers (including the Lord Advocate)

Interested Party

Procedural Posture

Criminal Appeal (devolution Reference) / Reference to High Court on Devolution Issue From Justice of the Peace Court

Legal Issues

  1. 1 Whether Article 6 ECHR requires state-funded legal representation at means enquiry hearings when appearing from custody
  2. 2 Whether the right to legal representation includes a right to a solicitor of choice at such hearings
  3. 3 Whether the absence of legal aid provision for means enquiry hearings constitutes a devolution issue

Ratio Decidendi

No devolution issue arises in these proceedings because the absence of legal aid provision for means enquiry hearings is not an act or omission of the Lord Advocate or Procurator Fiscal in the context of a criminal prosecution. The proper forum for challenging the Scottish Ministers' failure to provide legal aid is the civil courts. There is no basis, on the facts presented, to hold that Article 6 ECHR requires legal representation in every means enquiry hearing.

Court Disposition

Reference dismissed; questions answered in the negative.