Prisoner serving life sentence loses challenge against refusal of legal aid

A prisoner serving a life sentence who submitted freedom of information requests for information he believed would help prove his innocence has had a petition for judicial review of the decision not to grant him legal aid refused.

William Beggs was refused legal aid to appeal to the UK Supreme Court challenging the decision to uphold the police’s refusal to disclose certain information that he requested. That decision was upheld by the Scottish Information Commissioner and subsequently the Inner House of the Court of Session.

The petition was heard in the Outer House of the Court of Session by Lord Tyre.

Exempt from disclosure

The petitioner was originally convicted of murder in 2001 and sentenced to life imprisonment. He submitted his first FOI request in July 2010 seeking, among other things, information on steps taken to investigate the veracity of certain evidence or to eliminate a named person from the inquiry. That request was refused on the ground that the information sought was exempt from disclosure.

Following an application to the Scottish Information Commissioner under the Freedom of Information (Scotland) Act 2002 it was determined that the police had been entitled to withhold the information sought. The petitioner appealed this decision to the Court of Session, who refused the appeal in January 2014.

The petitioner applied for legal aid to appeal this decision to the Supreme Court. The Scottish Legal Aid Board refused this request. The petitioner applied to the Outer House for judicial review of this decision, which was refused in 2016.

The petitioner later submitted a second FOI request in revised terms to the police. This request was refused on the ground that it was vexatious. The Commissioner determined in December 2018 that it was not vexatious and required the police to carry out a review.

In the meantime the petitioner submitted a third application for legal aid to appeal to the Supreme Court against the decision of the Inner House. That application was refused on 11 June 2018, on the ground that the petitioner had not exhausted the review procedure before the Commissioner. Following a request for review of that decision, the Board again refused the application. This decision was the one challenged in the Outer House in the present application.

In January 2019 the police refused the second FOI request on the same ground as the first. In July 2019 the petitioner applied to the Commissioner again for a determination in relation to this refusal, which had not been determined at the time of this case.

The petitioner argued that the Board’s decision was unreasonable and unlawful, as the decision failed to take into account the background of his dealings with the Commissioner, in particular the history of delays. It was further submitted that the Board’s decision constituted a breach of the petitioner’s right of access to justice and his rights under section 6 of the Human Rights Act 1998.

Speculative suggestions

In his opinion, Lord Tyre first addressed the petitioner’s arguments, saying: “It is readily apparent from the terms of the decision that there is no substance to the petitioner’s assertion that the Board failed to give any weight to the history of the petitioner’s dealings with the Commissioner. The Board noted in particular that the new request was different from and more detailed than the previous one, so that it was speculative to suggest that it would be rejected out of hand by the police and by the Commissioner.”

He continued: “The Board also took into account, in my view reasonably, what could happen if the Commissioner were to decide (as in fact occurred) that the request was not vexatious. It noted in particular that it remained to be seen what finding the Commissioner might make in relation to any alternative reasons for refusing the request which the police might in due course advance. In my opinion it was clearly within the scope of the Board’s discretion to conclude that a privately funded individual of moderate means would at least await a final decision by the Commissioner on his or her application before embarking on risky and expensive litigation before the Supreme Court.”

On the access to justice arguments, he said: “The petitioner submitted that the ‘real world’ impact of the Board’s decision was to deprive him of access to the courts and to justice. There is, however, no absolute right to legal aid.”

He continued: “I was not referred to any authority in support of the proposition that a court challenge to a refusal by the Commissioner to order disclosure of information should properly be regarded as a continuation of a previous criminal trial, and for my part I regard the proposition as somewhat far-fetched. In any event, even if it were appropriate to regard proceedings as far removed as these from the criminal trial as engaging the petitioner’s right to a fair trial, I would not regard that right as having been breached by the Board’s refusal of legal aid.”

On the appropriate remedy in such a case, Lord Tyre concluded: “I accept the Board’s submission that if I had been minded to grant orders in the petitioner’s favour, it would not have been competent to grant declarator in the terms sought, because a declarator in those terms would amount to a finding that the only reasonable course of action open to the Board was to grant legal aid. It is not for the court to require the Board to grant legal aid; any declarator would have had to be specific to the decision under challenge, with the effect of requiring the Board to re-make the decision.”

For these reasons, the petition was refused.