THE PROCURATOR FISCAL EDINBURGH v. JAMIE PAUL MARSHALL

[1] The accused pleaded guilty at the first opportunity on 17 th November 2011 to three charges (charges 1, 2 and 6) out of six of breaches of an anti-social behaviour order (an "ASBO") by failing to adhere to the curfew condition. He was outwith his home on 11 th May 2011 at 9.20pm, on 14 th May 2011 at 9.20pm and on 25 th September 2011 at 4.50am, all when he was on bail.

[4] The case came before me on 3 rd May 2012 for the first day of the debate on the second devolution minute first. The reason for this was that, following this debate, Miss Law would have to withdraw from acting and there would be no one to represent the accused at the second debate or to instruct counsel (for whom legal aid would be available, as an outlay, for arguing the first devolution minute) or to represent the accused thereafter.

[5] The minute was intimated to the Advocate General and, I understand, to the Scottish Legal Aid Board ( SLAB ). Neither was represented at the debate.

[8] ABWOR still applied in this case because the accused could not plead not guilty until the pleas in bar of trial raised by the devolution minutes had been dealt with. Once the accused, if the case reached that stage, was in a position to plead not guilty (if he chose to do so), he could receive legal aid for any trial but the solicitor's expenditure so far incurred, and estimated to occur, could not be recoverable under full legal aid.

[9] Against this background, the argument for the accused may be simply put. There was a breach of article 6(3)(c) of the Convention as there could not be a fair hearing because the accused could not receive legal assistance since there was no provision in ABWOR for the exceptional case to allow his lawyer to be properly remunerated and for the accused to be represented. The Lord Advocate could not, therefore, continue the proceedings against the accused and the complaint fell to be dismissed.