Alistair Sloan, Advocate

Criminal Legal Aid Contributions, Professional Representation and Justice in Scotland

January 30th, 2013

Yesterday evening the Scottish Parliament voted by a majority of 9 to pass into law the Scottish Civil Justice Council and Criminal Legal Assistance Bill into law. The Bill will now be submitted to the Queen for Royal Assent. It was a disappointing end to a hard fought campaign by a wide range of people to try and prevent Part 2 of that Bill being passed. However, it was always going to be an impossible task with the Government having a majority in Parliament.

The first part of the Bill; the establishment of the Scottish Civil Justice Council, was generally uncontroversial and was the result of a lengthy piece of work submitted to the highest levels of scrutiny. The Scottish Civil Justice Council came as a consequence to the review of civil justice in Scotland carried out by the now Lord President, Lord Gill. It is a shame that this element of the Bill was overshadowed by the second part of the Bill. Had the two been separate it is likely that the Scottish Civil Justice Council part would have received unanimous support in the Scottish Parliament.

The significant expansion of contributions to criminal legal aid as a result of this legislation will have a profound impact on justice in Scotland. I’m not going to write at great length on the merits of the Bill as I have done that in a number of posts (and others have written elsewhere much more eloquently than I have). The proposals will undoubtedly lead to a number of appeals under Article 6 of the European Convention on Human Rights (the right to a fair trial). The Government and Presiding Office (presumably with legal advice) are both happy that the contents of the Bill are compliant with the European Convention on Human Rights; however, there is the very real possibility that the contributions system will begin to give rise to “devolution minutes” once it begins to take hold in the system. That will certainly be something to keep an eye out on to see what happens in that respect.

It is clear from speaking to practitioners in person and through social media that there is a very real anger over yesterday’s result. It is just one of many things to have arisen over the last few years that have caused anger. Some of that anger is directed towards the Law Society of Scotland; particularly in their representation of the profession in these matters.

It has been reported that there was to be a challenge lodged to the Society’s position as the sole representative body of Solicitors in Scotland which will be founded upon Article 11 of the European Convention on Human Rights. I am not a solicitor and I have not had many dealings with the Law Society of Scotland. I only know what others have told me (and I’m not inclined to make my own decision purely upon the basis of third party complaints). However, it has always been something that has intrigued me about the legal profession. I’m a supporter of Trade Unions and the representative functions that they undertake. However, I’m equally supportive of a person’s right to choose their representative body (and to elect not to belong to such a body). That goes not just for lawyers, but for others who have a single statutory representative body with no choice as to who they have representing them.

I think it is only right that if people want a different representative body that this is a choice that they have. It will be interesting to see if this case goes ahead and what the outcome of it might be; it could have a profound effect on the United Kingdom extending beyond the legal profession.

The fight to ensure justice in Scotland will no doubt continue as the programme for reform of the criminal justice system continues over the coming years. There are proposals in the pipeline that will likely gain similar; if not greater, reactions from the legal profession (corroboration and contracting to name two). It’s an unsettling time in the criminal law for Scotland; but it’s an equally interesting one.
‘Thinking time’ and Freedom of Information

January 25th, 2013

Yesterday a debate was held in Westminster Hall on the Government’s response to the Justice Committee’s post-legislative scrutiny of the Freedom of Information Act 2000. The debate was very poorly attended by MPs; but those few who did ensured a good quality debate was had.

Of concern though was the government’s response; and in particular its continued desire to see how it could include “thinking time” into the cost calculations under section 12 of the Act. Most are agreed that including such time into the cost calculations would significantly damage the Freedom of Information Act. Including such time into the cost calculations would not help reduce the burden of “frivolous” or “vexatious requests” as they are most likely to be simple requests which require little time. The requests they would affect are the ones where the public interest has to be considered; and in particular, those requests where the public interest is finely balanced.

We would begin to see more requests being refused simply because the complexity of establishing exactly where the public interest lies will take too long; that will undoubtedly mean information which could expose wrongdoing or corruption in public office is not released. That would fundamentally undermine the Act.

Another example of requests that might be covered are ones which produce a significant volume of information. Imagine another MPs expenses type request which produces volumes of recorded information. The information could easily be retrieved within existing cost limits; but when thinking time becomes included in the request such a request would be refused (not necessarily because it’s difficult to establish where the public interest lies, but because each piece of recorded information has to be considered for disclosure).

Allowing thinking time will also create a disparity between public authorities. It’s a subjective thing that is not easy to consider objectively. One FOI officer might be able to read the same document much more quickly than another FOI officer.

The introduction of “thinking time” would fundamentally undermine and significantly damage the FOIA and must be rigorously opposed by Parliament to ensure that the record of the FOIA as a strong piece of legislation is not destroyed.

In the words of Iain Gray MSP in a recent debate on FOI in the Scottish Parliament; “No Government likes FOI. FOI is always inconvenient, but it is the right thing.” The UK Government may not like FOI, but it is the right thing to do and they must not be allowed to weaken the Act.
Changes to FOI in Scotland approved

January 17th, 2013

Yesterday the Scottish Parliament passed the Freedom of Information (Amendment) (Scotland) Bill which will make some amendments to the Freedom of Information (Scotland) Act 2002 (FOISA). The Bill will now go forward for royal assent. The Bill as finally approved by the Parliament can be found here.

While the Bill does make some important and much needed changes to FOISA, there is much more that the Parliament could have done to strengthen the Bill and the message that FOI is here to stay in Scotland.

One of the most controversial elements of the Bill was the removal of the public interest test in relation to information which is exempt under the so called ‘Royal exemption’. The Scottish Government, to their credit, did listen to oral and written evidence submitted to the Finance Committee on the Bill and removed that amendment from the Bill at Stage 2. The debate about the Bill then moved to what was missing from it rather than what was contained within it; primarily because what was missing was of much more concern than what was there.

One of the most significant changes which was passed by the Scottish Parliament can be found at Section 5 of the Bill. This changes the time limit for proceedings under s.65 of FOISA. Section 65 creates a criminal offence to alter, deface, block, erase, destroy or conceal a record held by the authority with the intention of preventing disclosure. Currently, FOISA means that a prosecution for an offence under this section can only be initiated within 6 months of the offence being committed. With the timescales permitted by FOISA it was impossible for a prosecution to be brought because it could be as many as 4 months before the request gets to the commissioner and could be 6 months before the Commissioner’s office is even aware that a s.65 offence may have been committed. The change that will come about as a result of this Bill means that a prosecution can be brought where it is done so within 6 months of evidence that the prosecutor believes is sufficient to justify the proceedings coming to the prosecutor’s knowledge (so long as it is not more than three years since the offence was committed).

I am not suggesting that there are significant numbers of these offences being committed, but there is little doubt that some will have been since 2005 and the impossibility of a prosecution ever being brought might have acted as an incentive for an authority so minded. The Bill passed by Parliament yesterday reinforces the fundamental nature of FOI and that those who seek to frustrate the FOI process will be prosecuted for it. It will be interesting to see if prosecutions do arise once the amendment comes into force.

Another significant change is at s.4 of the Bill and it relates to when information becomes a historical record. This will hopefully mean that information held by public authorities will be released much quicker than it might otherwise have been and that can only be a good thing for transparency and openness in public life.

Since the Bill was first published there was one thing that was noticeably absent and that was provision to extend the coverage of FOISA to bring (at the very least) the public’s FOI rights back to where they were in 2005. Since FOISA was passed in 2002 and came into force in 2005 there have been significant changes in the way public services are provided. Local authorities have transferred significant amounts of their work to private companies (many of which are publically owned); housing and leisure facilities are two prominent examples.

When these functions were carried out by local authorities the information held was subject to FOI and could be obtained to scrutinise work in these often important areas, but as these activities have been transferred to these ‘arms length organisations’ (Aleos) they have stopped being subject to FOI and people’s FOI rights have been reduced.

The Deputy First Minister made much of the designation power at s.5 of FOISA (to which some changes have been made to strengthen ministerial accountability over the use (or lack of) of these powers) and how it was the Government’s intention to use the powers. The current Government has been in power for almost six years and in that time not a single s.5 order has ever been made by them. The previous Government had not made any such orders either, but they left power only two years after FOISA came into force and were in power during a time when FOI was still bedding down and its extent and coverage was still, to an extent, being worked out. The fact that for six years the current Government has made no real effort to ensure that FOI rights are maintained, let alone extended in appropriate cases, is a significant failure. The Scottish Government can try and cover it up in any which way that they choose, but the fact remains that they have not issued a single s.5 order.

The Bill was, in the Government’s view, never about extending coverage. However, it should have been. While Parliament was spending time debating and considering FOI in Scotland it would have been a perfect opportunity to at least include those organisations previously consulted on in the coverage of FOISA. An amendment was moved yesterday by Iain Gray MSP to include Glasgow Housing Association into the list of Scottish Public Authorities, but that was defeated. A move to insert a more general amendment that would have made information held by a significant number of Aleos subject to FOISA was also rejected by the Parliament.

The Government frequently tells of its commitment to openness and transparency; indeed it was referred to many times during the passage of the Freedom of Information (Amendment) (Scotland) Bill through the Scottish Parliament. However, the Government could have demonstrated that they truly adhered to that commitment by agreeing to include those organisations previously consulted over into FOISA.

The Deputy First Minister has committed to issuing at least 2 s.5 orders; we really must see a substantial one issued this year and preferably before the summer. Anyone in Scotland who believes in FOI must now ensure that pressure is put on the Government to keep its commitment to use s.5 and to get it to do so early.

Iain Gray MSP put it well in the chamber yesterday when he said:

The point is that FOI legislation tests a Government’s moral fibre. No Government likes FOI. FOI is always inconvenient, but it is the right thing.

The Bill certainly has made some important and much needed changes, but it fell far short of what was needed.

The full Stage 3 debate can be read in the Offical Report of the Scottish Parliament
Government responds to Justice Select Committee on FOIA

December 6th, 2012

Almost one week ago the UK Government finally issued its response to the Justice Committees detailed and quite frankly excellent post-legislative scrutiny of the Freedom of Information Act 2000. I am now finally getting round to putting my thoughts on the Government’s response to the Justice Committees report (although I have already written to my MP to highlight some of my major concerns with the Government’s response).

I don’t wish to give the impression that the Government’s response is a complete disaster for Freedom of Information; there are many good and bad things about their response. I will start first with things that (in my view) are worth highlighting as “good” things from the Government’s response before turning to the (in my view) “bad” things.

To be celebrated is the clear indication from the Government that they do not consider their own “open government” agenda as being a replacement for FOI. The Government’s response described the two agendas as “complimentary” to one another. This is a clear recognition by the Government that Freedom of Information plays an important role in our democracy. The Justice Committee said in their report that the FOIA “has been a significant enhancement of our democracy”.

Another big thing to celebrate from the Government’s response is that FOI requests are to remain free. There was a push by a number of public authorities during the evidence stages of the post-legislative scrutiny (which was evident before the post-legislative scrutiny and after) for there to be charges for making information requests. The Government isn’t convinced though and has ruled out charging for requests saying:

The Government agrees with the Committee’s assessment that charging for FOI requests would have an adverse impact on transparency and would undermine the objectives of the Act.

This is welcome news because we only have to look to Ireland to see what damage charging for requests can do to Freedom of Information.

One final thing from the Government’s response I personally think is worth celebrating is a change to the rules on prosecuting authorities under s.77 of the Act. Currently a prosecution under s.77 has to be launched within 6 months from the date of the offence. It can easily be more than 6 months since the offence before the Information Commissioner’s Office begins to investigate a complaint under s.50 (a likely time for a s.77 offence to be discovered). The Government has rejected the Justice Committee’s proposals to make it an “either way offence” (meaning it could be tried in the Crown Court); however, it has indicated that it will change the Act so that the six months to bring a prosecution starts when the offence is discovered rather than from when it is committed. This means that if the ICO discovers s.77 offences it can now prosecute them. The Information Commissioner did say in evidence to the Justice Committee that his office had seen evidence of destruction of information after a request had been made (an offence under s.77) but they had simply not been able to get them to court in time.

Having looked at the things worth celebrating from the Government’s response; it is time to turn to the things that are a cause for concern.

Some people have placed the first thing that I wish to address in this section as something to celebrate. However, I do not share that view and I will explain why I consider it to be a bad thing. In their report the Justice Committee suggested making the timeframe for internal reviews statutory. This is the position in Scotland under the Freedom of Information (Scotland) Act 2002 (s.21(1) provides that a review must be carried out promptly and no later than the 20th working day following receipt). The Government has decided not to implement this recommendation and has instead suggested providing guidance in the s.45 Code of Practice on the conduct of internal reviews. There is currently advice on timescales for the carrying out of reviews; that is provided by the Information Commissioner’s Office in ‘Good Practice Guide (No. 5)’ which sets out a timescale similar to that found within s.10(1) of the FOIA for initially responding to a request.

The problem is that a great number of authorities seem to frequently take considerably longer to conduct reviews than the time set out in the Commissioner’s Guidance. Some of these authorities are central government departments; which doesn’t hold out much hope for compliance with guidance in the s.45 Code of Practice. I can’t see how providing guidance to deal with a failure to apply guidance as to good practice will address the problem. It seems to me that building in a statutory framework on internal reviews is what is needed here (as is tightening up the public interest extension at s.10(3) of the Act). It is important to note though that there are a great many public authorities who conduct internal reviews diligently and don’t kick them into the long-grass. It is also important to note that the Government is of the view that reviews should be carried out quickly. I don’t see why they can’t put that view into statute rather than a Code of Practice.

Another concern is the Government’s indication that it will continue to consider what else could be included in the cost caulcations. For those with a limited knowledge of FOI; there exists the “appropriate limit” which if a request exceed the public authority can refuse to comply with the request. The current appropriate limit is £600 (for central government) or £450 (for other authorities). Furthermore, if the time taken to comply with the request exceeds 24 hours work (for central government) or 18 hours work (all other authorities) then the public authority can refuse to comply with the request. In respect of time taken to deal with the request there are certain activities which cannot be included in the calculation. The time taken to consider whether the information can be disclosed or the time taken to redact exempt information currently cannot be included. The Government is considering whether both of these activities could be included in these calculations.

There is a major problem here in that it is hard to objectively judge reading and redacting time. One FOI officer in one authority might take longer to read and consider information than another FOI officer in another authority considering the same information. It becomes about the ability of individual FOI officers. Moreover, it risks meaning that large volumes of information might be refused simply because it will take a long time to consider the information. It would also mean that cases where the public interest is finely balanced could be refused because it will take too long. This could conceivably prevent important information exposing wrongdoing in a public authority from being revealed. It would, in my view, fundamentally undermine the purposes of the FOIA. The Government is also considering slightly reducing the current 24/18 hours limits.

Another issue, which I hadn’t initially picked out, is the Government’s indication that multiple requests by one person on unrelated issues to a public authority could be grouped together. Currently, making multiple requests on the same (or substantially similar issues) can be grouped together for the purposes of the repeated/vexatious exemption. Permitting the grouping together of unrelated requests by a named individual or group will likely harm journalists. One of the fundamentals of the FOIA is that it is supposed to be “applicant blind” there is no way that such a change could be implemented which wouldn’t harm journalists without giving consideration to the identity of the applicant. Imagine the effect on large organisations like the BBC or large national newspapers that might make a large number of requests on different issues to public authorities. As a result of this change a request which could uncover wrongdoing could be refused because they’ve exceeded their “quota” of FOI requests to the public authority.

Another concerning issues is the Government’s apparent intention to extend the use of the so called “ministerial veto”. This would be concerning if the veto was to be used widely an in circumstances that are not exceptional. The point of the ICO and appeals from there to tribunals and the courts is to allow independent people to consider the request and information objectively. It would undermine the purposes of FOI if the Government were regularly to become the final arbiter of what information they hold gets released. We’ve already seen an increased use of the veto since the 2010 election; most recently to hide the content of letters Prince Charles had sent to a number of Government departments.

On the whole; there are some excellent things from the Government’s response that will strengthen FOI. However, there are also things which are of concern and could weaken the FOI regime and should be opposed if the Government tries to introduce them. No doubt there will be further blog posts on FOI to come as both the UK and Scottish Government’s go about amending the respective FOI legislation.

If you’ve read the blog post to the end then thanks and congratulations! I could have said much more, but didn’t want to write a full-blown essay on the Government’s response. The Government’s response can be read here.
Why #ProtestForJustice really does matter

December 3rd, 2012

So much excellent writing has been produced on the ‘Protest for Justice’ movement that has taken hold of Scotland’s legal profession. The movement is in response to the Scottish Government’s plans regarding criminal legal aid.

The concern from the legal profession is that the proposed changes to legal aid will harm access to justice for the poorest and most vulnerable in our society. They are the people who are working and contributing to society, but are low earners who are living on the breadline. They can ill afford the costs of living let alone significant contributions towards legal aid should they find themselves in the unfortunate position of requiring the services of a defence lawyer.

I have written before on just why criminal legal aid matters to everyone in society and not just those that people consider to be ‘criminals’. It provides a few examples of how everyday situations can result in an otherwise law abiding person requiring the services of a criminal defence solicitor. There are many more such situations where something a person does every single day of their life can suddenly result in finding themselves in a living nightmare facing, sometimes very serious, criminal charges.

Most of us knew that when the decision to strike was taken that there would be little support from the general public in Scotland. Criminal lawyers are not particularly well liked by many in society. They are seen to be earning salaries which often only partners in the bigger commercial firms have the potential to earn and while earning these salaries they are engaging in activities which society appears to find morally repugnant.

I’m not a criminal defence lawyer, but those who know me will know that criminal defence is the area that I want to practice in when I complete my studies in 2014. When people ask me what type of law I wish to practice I get the same questions that those already practicing in the field get. These questions are flawed in the presuppositions they make and are based on an understanding of the criminal justice system that is ill-informed and could even be described, on occasions, as prejudiced.

The role of a criminal defence lawyer is multifaceted. However, the central principle is to ensure that the accused receives a fair trial (and that includes the guilty). There is absolutely no obligation upon any individual to convict themselves. A guilty person is perfectly entitled to run a trial and put the Crown to proof. The burden of proving the accused’s guilt rests with the Crown. It is for the Crown to prove the accused’s guilt and not for the accused to prove their innocence. The system is built in this way primarily to take account of the power of the State against the power of the accused.

The State has at its disposal a vast array of resources that an accused person does not. To begin with; the State has a professional investigation team (the police) to gather the evidence supporting the view that the accused is guilty of an offence. It then as a professional legal team (the Crown Office and Procurator Fiscal Service) to assess the evidence, build the case and present it in court. The professional legal team can instruct the investigation team to conduct further investigations, to take statements from particular individuals and conduct further (expensive) forensic examinations.

On the other hand the accused has their single defence lawyer (if the case is going to the High Court that lawyer will often be assisted by Counsel in the same way that the State is often assisted by Counsel in the High Court). They don’t have an investigative team with the resources and experience of the police. The knowledge and experience gap between the accused and the State is somewhat filled by the defence lawyer. They will assess the evidence obtained by the Crown and advise the client based on that evidence. If the defence lawyer can see no possible or realistic defence to the charges brought against the individual then the advice would be to plead guilty. However; it is only advice and not an instruction. The accused might not feel as though they are guilty or they might be able to bring something to the evidence at a later date which casts a different light on the Crown’s evidence. In both circumstances the accused has the right to put the Crown to proof.

Putting the Crown to proof is simply telling the Crown: ‘you think I’m guilty, so prove it’. There are incentives built into the system to persuade a guilty accused to enter a guilty plea. For example, pleading guilty at the earliest opportunity can attract up to a one third discount on the sentence given by the Court. In serious cases a third can be a considerable amount of time off a prison sentence. You might argue that it’s not fair to reward an accused person for doing “the right thing”; that reducing their sentence is an injustice to the victim of the crime. One could view it that way; or one could consider that a guilty plea can save the stress of the complainer having to give evidence to prove that they are a victim of a crime. It also saves expensive court time and frees up the police and prosecution to focus on other crimes that have been committed.

The role of a criminal defence solicitor is essential in ensuring both the integrity and fairness of the criminal justice system. It is essential that all those who cannot afford to pay for a lawyer can obtain the specialist services that they offer when facing a criminal charge. If it was you who was in the dock protesting your innocence you would want someone fighting your corner. Don’t let the Scottish Government remove that from you and others.

Further Reading

Sarah Prentice: Why I won’t desert the ‘sinking ship’ (Sarah Prentice, Scotsman)
Vulnerable left to count the cost of justice (Aamer Anwar, The Scottish Sun)
Courts face widespread disruption as angry lawyers plan first national strike (Gareth Rose, Scotsman)
Public interest test for royal exemption to stay

November 28th, 2012

Yesterday Deputy First Minister of Scotland Nicola Sturgeon MSP announced that the Scottish Government would be moving amendments at Stage 2 of the Freedom of Information (Amendment) (Scotland) Bill to remove the currently proposed absolute exemption in respect of correspondence with senior royals. At the same time the Deputy First Minister announced that the Government would be proposing amendments which would require the Scottish Ministers to keep the list of bodies covered by the Freedom of Information (Scotland) Act 2002 under constant review. Currently, there exists only a discretionary power upon the Scottish Ministers to do this.

The amendments to the so called “Royal Exemption” (section 41 of FOISA) were heavily criticised by a great number of people who provided evidence to the Finance Committee. The Scottish Information Commissioner was heavily critical of the proposed amendment in her written evidence. The Campaign for Freedom of Information in Scotland was also critical of it in their written evidence and (for what it’s worth) I also criticised the amendment in my own written evidence to the Finance Committee (see paragraphs 8-16). An amendment to the UK Freedom of Information Act making the exemption absolute was passed into law, but it had avoided proper scrutiny having been entered into the Bill at the end stages of Parliament’s consideration. There has been a lot of controversy surrounding the ‘Prince Charles letters’ (the release of which was vetoed by the Attorney General recently). The argument against the introduction of the absolute exemption was essentially that it cannot be in the public interest to remove a test which considers the public interest. It is with relief that the Government now proposes to remove the amendment and it is hoped that Parliament will vote in favour of its removal.

There has also been a great deal of consideration about the bodies covered by the Act. FOISA was passed in 2002 and came into force in 2005. Since its coming into force there have been significant changes in the way public services have been organised and delivered. However, as these changes have happened the list of bodies covered by FOISA has remained largely unchanged (it has only been changed by primary legislation which has created or abolished statutory bodies). The Scottish Ministers currently have the power to order that new bodies be covered by the legislation. It has never been used and is currently discretionary. The Deputy First Minister has announced that the Act will be changed to require the Scottish Ministers to keep the list of bodies covered by the Act under review. This is important because as public authorities start using private companies and ALEOs to perform public services, it is important that information access rights are maintained and not lost. Both the previous and current Information Commissioner’s spoke of their concern at the erosion of information access rights in Scotland as did the Campaign for Freedom of Information in Scotland. I have also suggested a number of bodies that ought to be covered under the Act such as COSLA, The Law Society of Scotland and Faculty of Advocates (in respect of the regulatory functions only). There are many others such as Housing Associations that ought to be covered by the legislation.

While the Freedom of Information (Amendment) (Scotland) Bill is still imperfect in that it doesn’t restore information access rights which have been lost over the last 7 years; it will be significantly improved by the amendments announced by Nicola Sturgeon.
Why criminal legal aid matters to everyone and not just ‘criminals’

November 8th, 2012

Some people believe that they will never require the service of a criminal lawyer; they obey the law and just go about life. Every day when we wake up we do not know what the day will bring. It could pass quite uneventfully, or something terrible could happen which results in being detained by the police and/or charged with a criminal offence.

Some examples might make this a bit clearer:

Example 1

It’s been a long at work and you get into your car to drive home. You didn’t sleep too well the night before; the baby kept you awake most of the night. As a result, you’re rather tired by the end of the day. You’re driving along the road and you momentarily lose your concentration and before you know it you’ve been involved in a collision. It’s fine; the insurance will sort it out. However, a passenger in the car you hit dies as a result of the accident. Suddenly, you find yourself in the middle of a police investigation. You’re later detained by the police and suddenly find yourself needing the services of a criminal defence lawyer. You get one and they steer you through the interview, but the decision is to charge you with causing death by careless driving. It’s serious; you’re facing a prison sentence. You‘re going to plead guilty, but you want the shortest sentence possible so you instruct a defence lawyer to represent you. You’re not particularly well off, but suddenly you’re facing a three figure bill as a “contribution” towards your legal aid costs. You’ve always tried to live a good life; you don’t steal things and such like. However, you’re in the middle of the criminal justice system facing a prison sentence of up to 14 years.

Example 2

A lot of people like to go out and have a good time; often drinking far too much and becoming intoxicated with alcohol. Someone rubs you up the wrong way and you give him a bit of a punch and they fall over hitting his head off a nearby table. Unknown to you at the time you punched them the victim has a weak skull and dies as a result of your actions. Thinking everything would be ok, but without checking, you walked away; you didn’t summon any help. A few days later there is a knock at the door and a couple of police officers are on your doorstep. They inform you of what had happened and detain you on suspicion of murder. A little extreme you might say, but entirely possible. You’re suddenly, out of a drunken shove, facing the most serious charge in our criminal law and the possibility of serving a life sentence. Suddenly, you need the services of a criminal defence lawyer. In the end you get charged with Culpable Homicide, but that’s still a serious offence potentially carrying some serious time in prison (up to and including life imprisonment). You’re now also facing a significant contribution towards your legal aid.

Example 3

A third and final example of how easily it is from your life to turn into a living nightmare where you, an otherwise innocent individual, find yourself caught up in the criminal justice system as the accused. Some new neighbours move in next door. You don’t get on with them and a dispute begins between you and them. Things don’t start off too bad at first, but the quickly escalate. One day you’ve had a bit too much to drink and you start having an argument in the street with said neighbour. Another neighbour calls the police who turn up and you end up back at the police station accused of committing a breach of the peace. You think you’re fine and don’t get a lawyer at the police station. Things don’t go quite how you expected them to and you’re charged with committing a breach of the peace. You now consider that you need a lawyer, but when you find out that you’re going to have to make a contribution of your costs you decide you can’t afford to instruct a lawyer and you go it alone trying to represent yourself. Any decent solicitor will tell you this is a bad idea; not because they lose out on fees, but because it usually ends up badly for the accused. A non-legally trained individual trying to defend themselves against the might of the state which has money and qualified lawyers at its disposal is a significant imbalance in power and really isn’t going to end well. Yes, the court will try and assist an unrepresented accused, but there is a limit to what the Court can do. In this case it goes badly for you and you’re convicted of a breach of the peace. You now have a criminal record; a criminal record that might have been avoided had you been professional represented by a defence solicitor. A solicitor might not have got you acquitted, but they could have worked to reduce the level of fine or community service you get.

All of the above three examples sounds farfetched and extreme; “it’ll never happen to me” you might say. However, they are examples of what could happen to any one of us on any given day (and there are many, many more). All of them resulting in an otherwise law abiding citizen being caught up in the criminal justice system and needing the professional services of a criminal defence lawyer. One day it really might be you and you are in need of criminal legal aid. However, the legal aid has dwindled; it’s almost impossible to get because of government reform and requires you to put up considerable amounts of money that you simply might not have. If you’ve never thought about it before I challenge you to think of all the things you do in a day which could lead to you needing the services of a criminal lawyer; I’m sure if you really think about it you will come up with many.

This is why criminal legal aid matters to everyone (it’s also why the right to a fair trial matters to everyone).
Stage 1 report on FOISA Amendment Bill

November 2nd, 2012

The Scottish Parliament’s Finance Committee has today, 2 November 2012, published its stage 1 report into the Freedom of Information (Amendment) (Scotland) Bill. The Bill aims to amend aspects of the Freedom of Information (Scotland) Act 2002 (FOISA).

One of the amendments to the Bill has drawn particular criticism from a wide range of people and organisations, including the Scottish Information Commissioner. The amendment at Section 1 of the Bill would remove the public interest from the “Royal Exemption” (Section 41) in FOISA. Currently information is exempt if it relates to (a) communications with Her Majesty, with other members of the Royal Family or with the Royal Household; or (b) the exercise by Her Majesty of Her prerogative of honour. The exemption is currently subject to the public interest test; requiring public authorities to balance the arguments for and against disclosure to arrive at a decision on whether not the public interest in not releasing the information outweighs the public interest in releasing the information.

The amendment at Section 1 of the Bill would remove the public interest test in relation to s.41 where the information relates to communications with (a) Her Majesty, (b) the person second in line to the throne, (c) a person who has acceded to the throne and become second in line to the throne. Currently, it would mean that correspondence with the Queen and Prince Charles would be exempt under FOISA; even when the public interest would be in the information being released.

This is important, readers will probably be aware of the recent Upper Tribunal decision under the UK Freedom of Information Act which found that it was in the public interest to release certain correspondence between Prince Charles and seven Government departments. The decision of the Upper Tribunal was vetoed by the Attorney General. The UK Freedom of Information Act now has the same exemption as is being proposed in Scotland. The UK amended exemption escaped proper scrutiny as it was added into a Bill late on in the parliamentary process.

The Scottish Government argues that the exemption is needed to bring Scotland into line with the rest of the UK (a rather odd argument for a Government who wants to separate Scotland from the rest of the UK). However, the Finance Committee were not overly convinced by this argument. It seems that arguments founded on the public interest fared better with the Committee. It was argued by many, including Rosemary Agnew, that removing the public interest test was, by definition, against the public interest; a very sensible comment to make. We know from the Upper Tribunal that Prince Charles likes to lobby Government on matters and that an independent tribunal looking at the correspondence found that it went far beyond “his preparation for the throne”. Arguing for a removal of the public interest test with that as a background doesn’t help your arguments very much.

On other areas of the Bill the Committee was more supportive of the Government position. The proposed extension of the Section 18 “neither confirm or deny” exemption to cover personal information is an uncontroversial one. There are very good reasons as to why public authorities would not want to reveal that they hold personal information about an individual. However, it should not become the standard response when a person asks for their personal information, wrongly, under FOISA. Section 18 should be used rarely and only when absolutely necessary. The fact that Section 18 comes with its own public interest test should mean that it is only used when necessary.

The proposed amendment to the “information otherwise available” exemption is uncontroversial as well and simply clarifies the current exemption.

The Bill doesn’t deal with the extension of FOISA to bodies not already covered. However, a number of people provided written submissions and other evidence to the Committee on this point anyway. It is an important point. The way in which public money is spent and public services re delivered has changed drastically since 2002 (when FOISA was passed by the Scottish Parliament). While there have been some amendments to the list of Scottish Public Authorities (primarily through primary legislation which has created, closed or merged public bodies) the Scottish ministers have never used their powers to designate new public authorities. As more and more is being spent and delivered by Arms Length External Organisations (ALEOs) it is important that these ALEOs are subjected to FOISA. We also have a great number of private enterprises performing public services and these organisations fall outside of FOISA. Information access rights have been damaged and reduced over the years and the Government has made no real attempt to ensure that the position is restored to what it was in 2002 and 2005.

The Scottish Government has, thus far, refused to use this Bill as an opportunity to at least restore information access rights to their 2005 level and has also refused to use the Bill to extend rights to other organisations. In my written evidence to the Committee I suggested that organisations such as the Law Society of Scotland and the Faculty of Advocates (insofar as information is not held for the purposes of representing their members) and COSLA should be covered by FOISA. The Committee has invited the Government to bring before it a timetable for extending information access rights in FOISA to other organisations and details of any amendments to the power to designate. The Committee has said that it will reconsider its position on this issue when the Bill comes back at Stage 2.

Information access rights are important and vital to the Scottish people. It is important that this Bill makes the rights work better for people. On the whole I do support this Bill but do think that it could go much further and is a bit of a wasted opportunity. I hope that the Scottish Government rethink their position on Section 1 of the Bill and decide to either tighten it up considerably or, better still, remove it entirely from the Bill.
A waste of money? The Scottish Government’s EU advice FOI appeal

October 30th, 2012

The independence referendum coverage has been polarised on one issue lately: the position of an independent Scotland in the European Union. This issue really came to the forefront of the political discourse following the Deputy First Minister’s statement last week which confirmed that the Scottish Government had not yet commissioned detailed advice on this question. This came in the context of a Freedom of Information request made by Catherine Stihler MEP of the Labour Party.

The debate that has ensued following the Deputy First Minister’s revelations and ignores the finer details of the Freedom of Information request and FOI law. Ms Stihler had sought from the Scottish Ministers the legal advice they had received on the position of an independent Scotland in the European Union. The Scottish Ministers had refused to confirm or deny the existence of the information pursuant to Section 18 of the Freedom of Information (Scotland) Act 2002 (FOISA). To cut a very long story short Ms Stihler eventually appealed to the Scottish Information Commissioner who found that that the Ministers were not entitled to rely on Section 18 of the FOISA. The Scottish Ministers initially appealed this decision to the Court of Session, but later dropped that appeal.

When it was revealed that the Ministers had not sought advice there were instant accusations of the Scottish Ministers wasting taxpayers’ money. Those accusations related to the fact that the Scottish Ministers had went to court to protect advice that didn’t even exist. This entirely ignores the purpose of Section 18 of the FOISA.

While it was frustrating that the Scottish Ministers decided to appeal the decision and while I personally considered the Commissioner’s reasoning in her decision to be correct and flawless, it was the right of the Scottish Ministers to appeal the decision. The fact that the information did not exist is irrelevant. That comes from the wording and purpose of Section 18 of FOISA.

Section 18 of FOISA provides:

(1)Where, if information existed and was held by a Scottish public authority, the authority could give a refusal notice under section 16(1) on the basis that the information was exempt information by virtue of any of sections 28 to 35, 39(1) or 41 but the authority considers that to reveal whether the information exists or is so held would be contrary to the public interest, it may (whether or not the information does exist and is held by it) give the applicant a refusal notice by virtue of this section.

(2)Neither paragraph (a) of subsection (1) of section 16 nor subsection (2) of that section applies as respects a refusal notice given by virtue of this section.

What does this mean? Well, put simply it means that where a public authority believes that to reveal whether particular information is held (or not held) is contrary to the public interest it can issue a refusal notice under Section 18. The public authority is not required to comply with the ordinary requirements of FOISA to confirm whether the information is held (and either release it or issue a refusal notice under Section 16 of FOISA) or whether it is not held (and issue a refusal notice under Section 17 of FOISA). For section 18 to apply the public authority must be satisfied that if the information did exist that it would be exempt under certain exemptions of FOISA.

Section 18 has successfully been deployed, for example, where a police force was asked for information about a particular investigation. It was found to be contrary to the public interest to reveal whether the information was held or not. It was also successfully deployed by the Scottish Ministers in relation to an information request relating to the honours process.

There is very little in the way of case law from the courts in relation to the FOISA. More than 1,500 decisions have been issued by the Office of the Scottish Information Commissioner since FOISA entered into force in 2005, but there are only about half a dozen reported appeals to the courts. None of these have been in relation to Section 18. In terms of the operation of FOISA it would have been particularly helpful to have had a considered judgment from the Court of Session (perhaps even the United Kingdom Supreme Court if it had gone that far) on the application of Section 18, especially given the nature of Section 18. Undoubtedly the Scottish Ministers would have raised the Ministerial Code issue and it would have been very helpful to have had judicial consideration of the relationship between the Ministerial Code and FOISA.

On the issue of legal advice and FOISA, it is generally accepted that there is a strong public interest in public authorities being able to obtain legal advice and for that advice to remain protected. The public interest in its release has to be particularly strong before it will be released. There are few examples of the Scottish Information Commissioner or the UK Information Commissioner ordering the release of legal advice. Where the public interest rested in respect of legal advice must, as with all FOI requests, be judged on a case-by-case basis as request are received. Advice that has previously been protected under FOISA might later be released as a result of a subsequent request for information if the public interest balance shifts.

Section 18 is an important exemption; sometimes to reveal whether information exists or not is simply not in the public interest. There has to be an exemption for that situation when it arises (although it should arise rarely). Public authorities must be free to appeal a commissioner’s decision regardless of whether the information exists or not. I am actually disappointed that this case never actually made it to court because we are lacking vital judicial guidance on both the application of Section 18 of FOISA and on the relationship between FOISA and the Ministerial Code. By all means attack the SNP for appearing to make assertions which were not based on any legal advice, but don’t attack them for exercising their statutory right to appeal a decision of the Commissioner to the Court of Session. That does not help the cause of FOI one bit.
We can now deny that

October 23rd, 2012

I have written often on here about a Freedom of Information request made to the Scottish Ministers by Labour MEP Catherine Stihler. You can read the history of this request here, here, here and here.

Today, Deputy First Minister Nicola Sturgeon MSP made the embarrassing confession that there was no legal advice on the position of an independent Scotland in the European Union. The Ministers were ordered by Rosemary Agnew, the Scottish Information Commissioner, to reveal whether they held such advice and until today the Ministers refused to comply with that order. They had lodged an appeal in the Court of Session which was due to be heard on 18 and 19 December 2012.

Taking a case to the Court of Session is not cheap; it’s really rather expensive. The Ministers have wasted Government money and indeed money from the Office of the Scottish Information Commissioner by pursuing an appeal that aimed to keep secret that they had, until now, been lying to the Scottish people. The very clear implication of the statements made to Parliament prior to today was that the Government had received advice and it was from that advice they were making their assertions.

The Scottish Ministers have said that the white paper will be informed by the advice they have received, but given that we know they’ve given an impression they had advice when they did not, can we really trust what this Government is saying on this vitally important issue? Is the position of the Scottish Government simply going to be on what Alex Salmond has decided is the case rather than on any concrete evidence? Of course, we’re unlikely to see any legal advice the Government ever actually receives because of Legal Professional Privilege so we have to go on trust and today the SNP will have, undoubtedly, lost some of the trust that the Scottish people had in them.

I still await a decision from the Commissioner on my request to the Ministers on whether they received advice over the competence of the Scottish Parliament. A somewhat moot point now that a Section 30 order is to be made. However, it does remain an important one in light of recent events.

Scottish Information Commissioner’s Decision 111/2012 – Catherine Stihler MEP and the Scottish Ministers