Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 23934/94

Peter Middleton

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 16 October 1996)

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. 16-33) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-25). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law and practice

(paras. 26-33). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 34-44) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 34). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 35). . . . . . . . . . . . . . . . . . . . .6

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

(paras. 36-43). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 44). . . . . . . . . . . . . . . . . . . . .7

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . .8

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 1956 and resident in

Newcastle upon Tyne, England. He was initially represented before the

Commission by Barry Robson, a solicitor practising in Newcastle upon

Tyne, he subsequently withdrew his instructions from that solicitor and

he was represented for the remainder of his application before the

Commission by A.C. Baker, a solicitor practising in Newcastle, England.

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

respondent Government were represented by 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 1 January 1994 and registered

on 21 April 1994.

6. On 12 October 1994 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 12 October 1995

pursuant to unsuccessful settlement negotiations and after one

extension of the time-limit fixed for this purpose. On 24 October 1995

the Commission granted the applicant legal aid for the representation

of his case. No observations were received from the applicant within

the time allowed. A request by the applicant's representatives for an

extension of time was made more than two months after the expiry of the

time limit fixed and was, accordingly, denied.

8. 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.

9. 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. No

further observations were submitted.

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:

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

12. 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.

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 7 December 1992 the applicant was arrested and charged on

indictment with housebreaking with intent to steal from a premises in

Jedburgh, Scotland. The applicant received legal aid from the Scottish

Legal Aid Board ("the S.L.A.B.") and he was represented by a solicitor

for the purposes of preparing his defence prior to the trial and for

representation at his trial.

17. The trial took place between 15-17 March 1993 and the applicant

was represented by his solicitor. After the judge's summing up, the

jury unanimously found the applicant guilty. Having heard evidence as

to the applicant's previous convictions, many of which resulted in

sentences of imprisonment (ten convictions prior to 1987, a conviction

for attempted burglary in 1987, a conviction in 1990 for handling

stolen goods and a further conviction in 1992 for burglary), the trial

judge sentenced the applicant to three years imprisonment backdated to

the date of his arrest on 7 December 1992.

18. On 25 March 1993 the applicant's solicitor lodged an intimation

of intention to appeal against conviction to the High Court. On

27 April 1993 the applicant's solicitor lodged a note of appeal to the

High Court. There were two grounds of appeal contained in the note of

appeal. In the first place, it was argued that the evidence against the

applicant was circumstantial and insufficient to link him to the crime

alleged in the indictment. Secondly, it was submitted that the trial

judge failed to direct the jury on the concept of "accessory after the

fact" when the applicant's solicitor had raised the concept in his

speech to the jury indicating that the judge would advise the jury on

this matter in due course.

19. The legal aid for the applicant's trial covered legal advice in

connection with his appeal but did not cover legal representation at

the appeal hearing. Accordingly, on 31 March 1993 an application was

made to the S.L.A.B. for legal aid to cover the applicant's

representation at the appeal hearing.

20. On 28 May 1993 the trial judge lodged his report on the trial in

the High Court pursuant to section 236A of the Criminal Procedure

(Scotland) Act 1975. On 25 June 1993 the applicant's counsel prepared

a written opinion to the effect that the applicant's appeal had no

prospect of success.

21. The applicant submits that he was informed by his solicitor

during a consultation on 1 July 1993 that the application for legal aid

for the appeal had been refused.

22. By letter dated 15 September 1993 the applicant's solicitor

informed the applicant that counsel's opinion had been forwarded to the

S.L.A.B.. In a letter dated 24 September 1993 to the applicant his

solicitor stated that he was waiting to hear from the S.L.A.B. as to

whether the S.L.A.B. "confirm" that legal aid has been refused. On

1 October 1993 the S.L.A.B. wrote to the applicant indicating that a

decision on legal aid "was still pending" and that the S.L.A.B. awaited

counsel's opinion.

23. The applicant's appeal was heard on 8 October 1993 and the

applicant presented his appeal in person. His appeal was rejected, the

court finding (in a five page judgment) that the trial judge's view on

the evidence and his direction to the jury were correct. On the date

of the appeal hearing the S.L.A.B. had neither refused nor granted the

applicant further legal aid but the applicant submits that he was under

the impression that legal aid had already been refused.

24. The S.L.A.B. notified the applicant, by letter dated

21 October 1993, that his solicitor had lodged counsel's opinion with

the S.L.A.B. on 15 October 1993. Unaware that the appeal hearing had

already taken place, the S.L.A.B. proceeded to consider the legal aid

application and, by letter dated 3 November 1993, notified the

applicant's legal representatives that the legal aid application had

been refused. The S.L.A.B. refused legal aid because (as outlined in

its letter to the applicant dated 25 May 1994) the S.L.A.B. was not

satisfied that the applicant had substantial grounds for making the

appeal nor was it reasonable, in the particular circumstances of the

case, that legal aid should be made available to the applicant. The

S.L.A.B. noted that the applicant's counsel did not support his appeal.

25. The applicant was released from prison on 6 June 1994.

B. Relevant domestic law and practice

1. Criminal Appeals - Solemn proceedings

26. 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.

27. Pursuant to section 236A of the 1975 Act, the trial judge must

furnish a written report covering the case in general and the grounds

of the appeal. 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).

28. 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.

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. 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

30. 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.

31. 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.

32. 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).

33. 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

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

about the refusal of legal aid for his criminal appeal.

B. Point at issue

35. 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

36. 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; ..."

37. The applicant submits that the refusal of legal aid meant that

he was obliged to present his own appeal, though he was incapable of

doing so, and that this rendered his appeal hearing unfair. The

Government have 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) apart from their acceptance that, had the opinion

of applicant's counsel been submitted to the S.L.A.B. prior to the

appeal hearing, it is very likely that the S.L.A.B. would have refused

legal aid for the same reasons as were in fact eventually given by the

S.L.A.B..

38. 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 S.L.A.B. was not satisfied that there were

substantial grounds for making the appeal and that it was reasonable

that legal aid be granted.

39. 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.

40. 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.

41. 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 as in those cases, that it is not in dispute that

he lacked sufficient means to pay for legal assistance for his appeal

and that the applicant was unrepresented for his appeal hearing.

Although the decision of the S.L.A.B. was in fact taken after the

applicant's appeal hearing, in light of the Government's acceptance

outlined above and the eventual decision of the S.L.A.B., the

Commission considers that the applicant was obliged to represent

himself at his appeal hearing.

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

the applicant's conviction for housebreaking with intent to steal

following which he was sentenced to three years imprisonment. It is

true that the conviction and sentence are less serious than the

convictions and sentences in the Boner and Maxwell cases. However, the

Commission considers that the conviction and sentence at stake were

extremely important for the applicant. The Commission is also of the

opinion that the grounds of the applicant's appeal were relatively

complex and that, although he may have understood the grounds of appeal

drafted by his legal representative, those grounds required, as in the

Boner case, a certain legal skill and expertise to present to the

appeal court.

43. The Commission therefore considers that the interests of justice

required that the applicant be granted legal aid for representation at

the hearing of his appeal in the High Court and that, accordingly, the

refusal of legal aid for such representation constitutes a violation

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

CONCLUSION

44. 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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MIDDLETON v. THE UNITED KINGDOM

MIDDLETON v. THE UNITED KINGDOM