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Criminal legal aid - fixed payments - inadequate funds to meet solicitor's expenditure - whether compatible with accused's right to fair trialMclean and Another v Buchanan (Procurator Fiscal, Fort William) and Another: PC (Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Clyde, Lord Hobhouse of Woodborough and Lord Millett): 24 May 2001A complaint was brought against both appellants alleging assault and breach of the peace.

They entered pleas of not guilty and were granted legal aid under the fixed fee system laid down by the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 (SI 1999/491).Thereafter they raised as a devolution issue the fact that the expenditure liable to be incurred by the solicitors would far exceed the fixed fee.

They claimed that the continuation of the prosecution would be incompatible with their right to a fair trial and in particular the right, pursuant to article 6(3)(c) of the European Convention on Human Rights that everyone charged with a criminal offence who has insufficient means to pay for legal assistance shall be given it free.The sheriff upheld their plea but the High Court reversed his decision.

The appellants appealed to the judicial committee.Michael McSherry (solicitor advocate), instructed by Jim Friel & Co, Glasgow, for the first appellant; Mungo Bovey QC and Andrew Devlin (instructed by G Sweeney & Co, Glasgow) for the second appellant; J M Drummond Young QC, AD and Simon Di Rollo (instructed by Crown Office, Edinburgh) for the procurator fiscal; HM Advocate General for Scotland did not appear but made written submissions.Held, dismissing the appeals, that the question was not the adequacy of the funding provided under the legal aid scheme but whether there would inevitably be an absence of effective representation for the appellants in the preparation and presentation of their defences, thus depriving them of their right to a fair trial; that the appellants had not been disabled in the presentation of their respective defences so far as they had enjoyed the services of solicitors and counsel, their solicitors were still acting for them and it had not been shown that they were contemplating withdrawing their services; that despite the inadequacy of funding there was no reason to expect that the solicitors would fail to comply with the professional codes of conduct to which they were subject or fail to provide effective representation for their clients; that, accordingly, no unfairness existed so far as could be ascertained at the present stage; that, however, while the regulations had not caused or, on the information available, were likely to cause, a contravention of article 6 in the instant case, there was a real likelihood that in another case a serious risk of a contravention might arise; but that the danger had been recognised by the Scottish Executive which in the current Convention Rights (Compliance) (Scotland) Bill had made provision for the making of regulations to prevent a person being deprived of the right to a fair trial.

(WLR)