EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 28944/95

Thomas William Faulkner

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 21 October 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-35)              3

A. The particular circumstances of the case

(paras. 16-24)              3

B. Relevant domestic law

(paras. 25-35)              4

III. OPINION OF THE COMMISSION

(paras. 36-44)              7

A. Complaint declared admissible

(para. 36) 7

B. Point at issue

(para. 37) 7

C. As regards Article 6 para. 3 (c) of the Convention

(paras. 38-43)              7

CONCLUSION

(para. 44) 8

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 9

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a British citizen, born in 1947 and is currently serving a sentence of imprisonment in Northern Ireland.  He was represented before the Commission by Messrs McCann & McCann , solicitors practising in Belfast.

3. The application is directed against the United Kingdom.  The respondent Government were represented by their Agent, Ms Susan Dickson of the Foreign and Commonwealth Office, London.

4. The case concerns the refusal of legal aid for the applicant in connection with his appeal from conviction.  The applicant invokes Article 6 para. 3 (c) of the Convention.

B. The proceedings

5. The application was introduced on 27 June 1995 and registered on 26 October 1995.

6. On 26 June 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint under Article 6 para. 3 (c) of the Convention.

7. The Government's observations were submitted on 10 September 1996.  The applicant replied on 25 November 1996 after an extension of the time-limit.

8. On 4 March 1998 the Commission declared admissible the applicant's complaint under Article 6 para. 3 (c) of the Convention.  It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent to the parties on 18 March 1998 and they were invited to submit such further information or observations on the merits as they wished.  Neither the Government nor the applicant submitted any such observations.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

       MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 21 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 8 June 1994 the applicant and a friend were arrested by police when returning to Scotland, after the police had found an amount of drugs in the vehicle in which they were travelling.  The applicant and his companion were charged with possession of a controlled Class A drug (Ecstasy) with intent to supply, contrary to the Misuse of Drugs Act 1971.  Bail was refused to the applicant and his co-accused and they were detained pending their trial.  The applicant spent 117 days remanded in custody prior to his trial.

17. On 4 October 1994, the first day of the trial before the High Court of Justiciary in Dumfries , the charges against the applicant's co-accused were withdrawn.  The applicant was convicted on 6 October 1994 and sentenced to seven years' imprisonment.  The applicant was legally represented at the hearing but he dismissed his lawyer after the trial.

18. On 19 October 1994 the applicant lodged an intimation of intention to appeal against sentence and conviction, he later decided to proceed only with the appeal against conviction.  On 17 November 1994 the Scottish Legal Aid Board ("S.L.A.B.") made emergency legal aid cover available to the solicitors of the applicant, to allow the note of appeal to be drafted and lodged.  On 22 November 1994 the applicant's solicitors made a formal application for legal aid.  S.L.A.B required the applicant to obtain a written opinion from his counsel of the prospects of his appeal being successful.  On 6 December 1994 the applicant's solicitors wrote to S.L.A.B. stating that they were no longer acting for the applicant and enclosing Counsel's opinion which concluded:

"Taking the charge a whole and having considered the general and particular direction given in this case, I do not consider that there are any grounds upon which an appeal against conviction could be found."

19. The applicant subsequently applied to S.L.A.B. for legal aid to finance his obtaining the transcript of the trial hearing, the cost of which was estimated at approximately 800.00.  On 11 January 1995 S.L.A.B. wrote to the applicant indicating that legal aid could only be considered for the transcript if the applicant had a lawyer acting for him and if S.L.A.B. had already granted a legal aid certificate for the appeal in relation to such legal representation.

20. Since the applicant's detailed grounds of appeal had not been lodged by 30 November 1994, the clerk of the High Court wrote to the applicant on 18 January 1995 stating that the appeal had been deemed to have been abandoned by the applicant.  On 16 February 1995 the applicant lodged detailed grounds of appeal against his conviction.  He submitted, inter alia , that a jury properly directed could not have convicted him on the basis of the prosecution evidence and he challenged the fingerprint evidence used against him.

21. Subsequently the trial judge prepared and lodged in the High Court his report on the trial. On 19 April 1995 the applicant's new lawyers wrote to S.L.A.B. asking for a reply to the application for legal aid for the applicant's appeal, stating that they required to know the response of S.L.A.B. by the close of business that day in order to be able to prepare for the appeal (including obtaining the transcript of the trial).  The solicitors' letter also noted that the appeal had been fixed for 28 April 1995 and that it was an extremely complicated appeal.

22. The appeal was heard in the High Court on 22 June 1995 and the applicant represented himself.  The applicant alleges that he was not allowed to speak in court or to read out his prepared statement to the court and that his request to the court for legal aid, to which he alleged he was entitled pursuant to Article 6 of the European Convention of Human Rights, was also refused.

23. The written judgment of the High Court dated 22 June 1995 notes that the court had the applicant's detailed grounds of appeal before it together with the transcript of the trial judge's charge to the jury (to which the applicant's grounds of appeal related) and that the applicant was content that his appeal be considered on that basis.  The judgment went on to consider seven distinct grounds of appeal but dismissed the appeal.

24. On 19 September 1995 S.L.A.B. confirmed that the applicant's request for "a criminal appeal certificate has been refused as the Board was not satisfied that the appellant had substantial grounds of appeal, nor that it was reasonable, in the particular circumstances of the case, that legal aid should be made available to him".

B. Relevant domestic law

PRIOR TO THE CRIMINAL JUSTICE (SCOTLAND) ACT 1995

("THE 1995 ACT")

Criminal appeals - Solemn proceedings

25. In solemn proceedings in Scotland where the trial proceeds upon an indictment before a judge sitting with a jury, a person convicted of a criminal charge has an automatic right of appeal granted by statute (section 228 of the Criminal Procedure (Scotland) Act 1975 - "the 1975 Act"). No leave to appeal is therefore required.

26. In an appeal, the appellant may ask the court to review an alleged miscarriage of justice in the proceedings in which he was convicted (section 228(2) of the 1975 Act).  A miscarriage of justice is not defined by statute but the term includes such matters as misdirections by the trial judge, wrong decisions on the admissibility of evidence and breaches of natural justice.  The nature of the alleged miscarriage of justice must be specified in the grounds of appeal which must be lodged within eight weeks of the date when sentence is imposed upon the appellant (section 233(1) and (2) of the 1975 Act).  An appellant may not, at the appeal hearing, found any aspect of his appeal on a ground which is not contained in the notice of appeal unless, exceptionally and on showing cause, he obtains the leave of the court to do so (section 233(3) of the 1975 Act).

27. Pursuant to section 236A of the 1975 Act the trial judge must, as soon as is reasonably practicable after receiving a copy of the notice of appeal, furnish a report in writing giving the trial judge's opinion on the case generally and on the grounds contained in the notice of appeal. Section 234 of the 1975 Act provides that the appellant can opt to present his case in writing instead of orally. However, in practice appellants present their case orally.

28. While there is no statutory provision relating to the conduct of the appeal hearing (other than defining the quorum of judges as being three), the practice is that an appellant is afforded an opportunity to make oral submissions at such a hearing in support of his appeal and is also permitted to lodge other documents in support of the appeal. It is also open to the judges at that hearing to ask questions, or to put points to, the appellant.  In addition, where an appellant refers to a pre-prepared statement, the practice is for the court to ask the appellant to present that statement orally or to provide copies of the statement to the judges to read for themselves.

29. The Crown is always represented by counsel (the Advocate Deputy) at the hearing of criminal appeals.  The duty of such counsel is to act solely in the public interest and not to seek to uphold a wrongful decision.  Accordingly, they will only address the court if requested to do so or if it is necessary to bring to the attention of the court some matter relevant to the appeal, whether favourable or not to the prosecution.

30. The court may dismiss the appeal and affirm the verdict of the trial court.  In addition, the trial court verdict can be set aside either by the appeal court either by quashing the conviction or by substituting an amended verdict of guilty or by authorising a new prosecution (section 254 of the 1975 Act).

Legal Aid for Criminal Appeals - Solemn proceedings

31. Responsibility for the administration of legal aid in Scotland is vested in the Scottish Legal Aid Board which is an independent body whose members are appointed by the Secretary of State.

32. Legal aid, which has been available for the trial, extends normally to include consideration and advice (by a lawyer and by counsel previously involved in the case) on the question of an appeal. Where appropriate legal aid is also available to enable a solicitor to draft and lodge the statutory intimation of intention to appeal and the notice of appeal setting out the grounds of appeal.

33. To extend legal aid beyond this point a further application to the Legal Aid Board is required.  This application will be granted on fulfilling two conditions.  In the first place, the appellant must be financially eligible for legal aid. Secondly, the appellant must have substantial grounds for making the appeal and it must be reasonable that legal aid should be made available in the circumstances.  In deciding on these issues the Legal Aid Board will take into account, inter alia , any opinion prepared by counsel as to the appeal's prospects of success.

34. If legal aid has been refused and the appellate court is of the view that, prima facie, the appellant may have substantial grounds for taking the appeal and that it is in the interests of justice that the appellant should have assistance with the costs of legal representation to argue these grounds, that court can adjourn the hearing and recommend that the Legal Aid Board review their decision.  This practice was formalised by the circulation of a Practice Note to this effect in 1990 following the judgment of the Court in the Granger application (Eur. Court HR, Granger v. the United Kingdom judgment of 28 March 1990, Series A no. 174).  Where such a recommendation is made, legal aid is automatically granted (paragraph 6.12 of the Manual of Procedure of the Scottish Legal Aid Board).

THE 1995 ACT - CRIMINAL APPEALS AND LEGAL AID FOR SUCH APPEALS

35. The 1995 Act applies only to appeals from convictions handed down on or after 26 September 1995.  That Act provides that an appellant must apply for leave to appeal and such leave will be granted when the appellant shows arguable grounds for appeal.  In line with that new appeals system, the 1995 Act also provides that legal aid will be granted for an appeal where the applicant is financially eligible for legal aid and where leave to appeal has been granted.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

36. The Commission has declared admissible the applicant's complaint in respect of the refusal of legal aid for his appeal.

B. Point at issue

37. The issue to be determined in the present case is:

- whether the refusal of legal aid in relation to the applicant's appeal constitutes a violation of Article 6 para. 3 (c) of the Convention.

C. As regards Article 6 para. 3 (c) of the Convention

38. Article 6 para. 3 of the Convention provides as follows:

"Everyone charged with a criminal offence has the following minimum rights:

...

c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require..."

39. In the light of the decision of the Eur. Court of Human Rights in the cases of Boner v. the United Kingdom and Maxwell v. the United Kingdom (Eur. Court HR, judgments of 28 October 1994, Series A nos. 300-B and 300-C) the Government make no observations as to Article 6 para. 3 (c) of the Convention.  They do, however, contend that as the system of criminal appeals and criminal legal aid has now been amended by the Criminal Justice (Scotland) Act 1995, the application should be struck out on the grounds that there is no justification for continuing an examination.

40. The applicant notes that the Criminal Justice (Scotland) Act 1995 did not have retroactive effect and did not therefore affect his position.

41. The Commission recalls that it found in its decision on admissibility of the present application that the applicant therefore remains a "victim" of the alleged violation of the Convention, within the meaning of Article 25 of the Convention, and did not consider it appropriate to strike the case out of its list of cases.

42. The Commission also recalls that in the above-mentioned case of Boner v. the United Kingdom, the European Court of Human Rights found as follows:

"43. ... The situation in a case such as the present, involving a heavy penalty, where an appellant is left to present his own defence unassisted before the highest instance of appeal, is not in conformity with the requirements of Article 6.

44. Given the nature of the proceedings, the wide powers of the High Court, the limited capacity of an unrepresented appellant to present a legal argument and, above all, the importance of the issue at stake in view of the severity of the sentence, the Court considers that the interests of justice required that the applicant be granted legal aid for representation at the hearing of his appeal. ... " (above-mentioned Boner v. the United Kingdom judgment, pp. 75 and 76).              

43. The position is the same in the present case.  In particular, the Commission notes that the applicant had been sentenced to a term of seven years' imprisonment, and the powers of the High Court were the same in the present case as in Boner v. the United Kingdom.  The fact that counsel did not consider that there were substantial grounds for appeal cannot affect the position as in the case of Maxwell v. the United Kingdom, too, counsel was not prepared to represent the applicant (above-mentioned Maxwell v. the United Kingdom judgment, p. 97, para. 38).

CONCLUSION

44. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 3 (c) of the Convention.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary             President

            to the First Chamber              of the First Chamber