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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22112/93

John Wotherspoon

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 16 October 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-31) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 17-23). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law and practice

(paras. 24-31). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 32-43) . . . . . . . . . . . . . . . . . . . . .7

A. Complaint declared admissible

(para. 32). . . . . . . . . . . . . . . . . . . . .7

B. Point at issue

(para. 33). . . . . . . . . . . . . . . . . . . . .7

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

(paras. 34-42). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 43). . . . . . . . . . . . . . . . . . . . .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 1964 and is currently

serving a sentence of imprisonment at HM Prison, Shotts. He was

represented before the Commission by Mr. Thompson, a solicitor

practising in Dunfermline.

3. The application is directed against the United Kingdom. The

respondent Government were represented by Ms. Susan Dickson, Agent,

Foreign and Commonwealth Office.

4. The case mainly concerns the refusal of legal aid for the

applicant's criminal appeal. The applicant invokes Article 6 para. 3(c)

of the Convention.

B. The proceedings

5. The application was introduced on 8 February 1993 and registered

on 23 June 1993.

6. On 1 December 1993 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. On 8 March 1994 the Commission, pursuant to a request by the

Government, decided to adjourn the application pending the judgments

in the Boner and Maxwell cases (Eur. Court HR, Boner and Maxwell v. the

United Kingdom judgments of 28 October 1994, Series A no. 300-B and

300-C).

8. The Government's observations were submitted on 13 October 1995.

On 5 December 1995 the Commission granted the applicant legal aid for

the representation of his case. The applicant's observations in reply

were received on 14 February 1996 after one extension of the time-limit

fixed for this purpose.

9. On 12 April 1996 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.

10. The text of the Commission's decision on admissibility was sent

to the parties on 19 April 1996 and they were invited to submit such

further information or observations on the merits as they wished.

Further observations were not submitted by either party.

11. 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

12. 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:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

13. The text of this Report was adopted on 16 October 1996 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.

14. 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.

15. The Commission's decision on the admissibility of the application

is annexed hereto.

16. 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

17. The applicant was charged on indictment with murder and received

legal aid from the Scottish Legal Aid Board ("S.L.A.B.") for the

preparation of his defence and for his representation at trial. The

trial took place on 17-19 December 1990 and the applicant was

represented by a solicitor and by counsel. On 19 December 1990 the jury

found the applicant guilty, by a majority decision, and the trial judge

sentenced the applicant to life imprisonment.

18. On 31 December 1990 the applicant's then solicitors lodged an

intimation of intention to appeal in the High Court. On 9 September

1991 the applicant himself lodged the note of appeal. The grounds of

appeal contained in that note argued that the evidence given by the

only Crown eye witness (who was fifteen years old at the time of the

incident for which the applicant was convicted) was incorrect in that

it was not possible that the witness had seen what he said he had seen.

It was also submitted that there was insufficient corroboration of

prosecution evidence, that certain other evidence attempted to confirm

an impossibility in relation to a bloodstain and that the applicant had

never been in possession of certain witness statements made prior to

the trial. The applicant also challenged the pathologist's evidence

given at trial and indicated an intention to introduce certain video

evidence.

19. In or around April 1991 the applicant changed solicitors. The

legal aid granted to the applicant at trial covered the legal advice

to the applicant on the question of his appeal and counsel's opinion

on the prospects of the appeal but did not cover the applicant's

representation at the appeal hearing. Accordingly, the applicant

submitted an application for further legal aid on 4 October 1991. On

12 and 13 December 1991 both senior and junior counsel for the

applicant gave written opinions that there were no grounds for appeal

but left open the possibility that certain video evidence might provide

such grounds. On 20 December 1991 the S.L.A.B. refused to grant legal

aid for his appeal on the grounds that it did not consider that the

applicant had substantial grounds for making the appeal or that it was

reasonable in the circumstances that legal aid be made available. It

was noted that senior and junior counsel's opinions had been

considered.

20. When the applicant appeared in the High Court on 20 December

1991, he obtained an adjournment in order to apply for a review of the

refusal of legal aid. The applicant's solicitor did not subsequently

request the S.L.A.B. to review its decision because senior counsel had

further advised that the video evidence was of no use to the

applicant's case - rather it strengthened the version of events given

by the Crown eye witness whose evidence the applicant wished to

challenge.

21. The applicant obtained another adjournment of his appeal on

19 March 1992 to allow him have his then solicitors (who had been

instructed by the applicant since March 1992) to obtain certain witness

statements and evidence to challenge the Crown eye witness evidence.

On 27 March 1992 the applicant's solicitors obtained the approval of

the legal advice and assistance scheme for an initial expenditure of

£80 and subsequently of an additional £300 in order to pursue those

statements and that evidence. A letter dated 12 June 1992 from private

investigators to the applicant's solicitors enclosed a statement of the

applicant's aunt indicating, inter alia, that she had met the mother

of the Crown eye witness and that the mother had said on two occasions

to the applicant's aunt that her son had not seen anything. The private

investigator's letter also recalled their unsuccessful attempts to

locate the Crown eye witness. Those solicitors subsequently confirmed

that no useful evidence was found as a result of all of their

enquiries.

22. On 24 September 1992, the High Court refused a further

adjournment and proceeded to hear the applicant's appeal which he

presented in person. The applicant also presented to the High Court a

written statement outlining the basis on which he felt a miscarriage

of justice had occurred and challenging, in particular, the veracity

of the evidence of the Crown eye witness.

23. In its judgment dated 24 September 1992, the High Court having

heard the applicant and dealt with, inter alia, the grounds of appeal

in the notice of appeal, concluded that the applicant had failed to

demonstrate that there had been any miscarriage of justice in his case

and dismissed his appeal. On 1 December 1992 the applicant lodged a

written petition against conviction to the nobil officium of the High

Court. There is no evidence, and the Government do not contend, that

the applicant was legally represented or was granted legal aid for that

petition. By letter dated 10 December 1992 the applicant was informed

that his petition had been refused.

B. Relevant domestic law and practice

1. Criminal Appeals - Solemn proceedings

24. 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.

25. 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).

26. 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). 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. 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 it is also permitted to lodge other documents. It is

also open to the judges at the 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 make copies for the

judges.

27. 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. The appeal court may, inter alia, affirm or set aside a

conviction and may affirm, vary or quash a sentence. The nobil officium

of the High Court constitutes the ultimate residual power of the High

Court to bring proceedings under review.

2. Legal Aid for Criminal Appeals

28. Responsibility for the administration of legal aid in Scotland

is vested in the Scottish Legal Aid Board ("S.L.A.B.") which is an

independent body whose members are appointed by the Secretary of State.

Legal aid, which has been available for the trial, extends normally to

include consideration and advice on the question of an appeal. Where

appropriate legal aid is also available to enable a solicitor to

prepare and lodge the statutory intimation of intention to appeal and

for the drafting and lodging of the notice of appeal setting out the

grounds of appeal.

29. 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 S.L.A.B. will take into account, inter

alia, any opinion completed by counsel as to the appeal's prospects of

success.

30. 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 S.L.A.B. review their decision. This practice was

formalised by the circulation of a Practice Note to this effect in 1990

following the judgment of the European Court of Human Rights in the

Granger application (Eur. Court H. R., Granger 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).

31. The Criminal Justice (Scotland) Act 1995 applies to appeals from

convictions handed down on or after 26 September 1995. It 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

32. The Commission has declared admissible the applicant's complaint

about the refusal of legal aid for his criminal appeal.

B. Point at issue

33. The only point at issue is whether the refusal of legal aid for

the applicant's appeal constitutes a violation of Article 6 para. 3(c)

(Art. 6-3-c) of the Convention.

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

34. Article 6 para. 3(c) (Art. 6-3-c) of the Convention reads as

follows:

"3. 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; ..."

35. The applicant submits that the refusal of legal aid for his

criminal appeal prevented the proper preparation of his appeal (in that

he could not obtain further witness statements and evidence in order

to pursue his challenge to the Crown eye witness evidence). It also

meant that he had to represent himself at the appeal hearing, prevented

the proper presentation of his appeal before the appeal court and

thereby led to his appeal hearing being unfair. The Government has no

observations on this complaint in light of the Court judgments in the

Boner and Maxwell cases (Eur. Court HR, Boner and Maxwell v. the United

Kingdom judgments of 28 October 1994, Series A no. 300-B and 300-C).

36. As regards the applicant's submission as to the preparation of

his case, the Commission notes that the applicant was granted an

adjournment by the appeal court on 19 March 1992 and a total of £380

from the legal advice and assistance scheme to enable solicitors to

pursue the witness evidence which the applicant considered relevant to

his challenge to the Crown eye witness evidence. The enquiries were

conducted by the applicant's then solicitors and the fact that they

yielded no useful results does not demonstrate any unfairness as

regards his appeal.

37. As to his having to represent himself at the appeal hearing, the

Commission recalls the above-mentioned Boner and Maxwell cases.

Mr Boner had been convicted of assault and armed robbery, a charge of

wilful damage and three charges relating to firearms and was sentenced

to eight years imprisonment. Mr Maxwell was found guilty of assault and

was sentenced to five years imprisonment. Both were refused legal aid

for their appeals (for which appeals leave was not required) on the

grounds that the SLAB was not satisfied that there were substantial

grounds for making the appeal and that it was reasonable that legal aid

be granted.

38. The grounds of appeal of both applicants were described by the

Court as not particularly complex. However, the Court found that,

although Mr Boner understood the grounds of appeal drafted by his legal

representative, those grounds required a certain legal skill and

expertise to present to the appeal court. As regards Mr. Maxwell, the

Court found that, although he may have formulated the grounds of appeal

himself, he was unable to competently address the appeal court on such

legal issues without the services of a legal practitioner.

39. The Court therefore found that, 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 interests of justice required that those applicants

be granted legal aid for representation at the hearing of their

criminal appeals and that the refusal of such legal aid constituted a

violation of Article 6 para. 3(c) (Art. 6-3-c) of the Convention.

40. The Commission notes that the present applicant was subject to

the same legal aid rules and criminal appeal system as applied in the

Boner and Maxwell cases, that he was refused legal aid for his appeal

for the same reasons outlined in those cases and that it is not in

dispute that he lacked sufficient means to pay for legal assistance for

his appeal. The fact that the applicant received £380 from the legal

advice and assistance scheme to enable his solicitors to pursue further

witness evidence for his appeal does not alter the fact that the

applicant did not receive legal aid for representation at his appeal

hearing.

41. It is further noted that the matter before the appeal court was

the applicant's conviction for murder following which a life sentence

had been imposed. The conviction and sentence were even more serious

than in the Boner and Maxwell cases and the Commission considers that

the issues at stake were extremely important for the applicant. The

Commission also considers that the grounds of the applicant's appeal

were relatively complex and that, although he drafted the grounds of

appeal himself, he was unable to competently address the appeal court

on such legal issues without the services of a legal practitioner.

42. The Commission therefore considers that the interests of justice

required that the applicant be granted legal aid for representation at

the hearing of his criminal appeal. Accordingly, the Commission

considers that the refusal of legal aid for the applicant's

representation at his appeal hearing before the High Court constitutes

a violation of article 6 para. 3(c) of the Convention.

CONCLUSION

43. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 3(c) (Art. 6-3-c) of the

Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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WOTHERSPOON v. THE UNITED KINGDOM

WOTHERSPOON v. THE UNITED KINGDOM

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