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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 24487/94

Steven John Given

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. 16-30) . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 16-23). . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law and practice

(paras. 24-30) . . . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 31-41) . . . . . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

(para. 31). . . . . . . . . . . . . . . . . . . . . . 6

B. Point at issue

(para. 32). . . . . . . . . . . . . . . . . . . . . . 6

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

(paras. 33-40). . . . . . . . . . . . . . . . . . . . 6

CONCLUSION

(para. 41). . . . . . . . . . . . . . . . . . . . . . 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 1970 and is currently

serving a prison sentence in Edinburgh. He was represented before the

Commission by John McLaughlin, a solicitor practising in Perth,

Scotland.

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 and the applicant invokes Article 6

para. 3(c) of the Convention in this respect.

B. The proceedings

5. The application was introduced on 28 December 1993 and registered

on 28 June 1994.

6. On 6 April 1995 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 August 1995

after one extension of the time-limit fixed for this purpose. The

applicant's observations in reply were received on 2 October 1995. The

Government submitted further observations on 22 November 1995. On

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

representation of his case.

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 received.

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. Having been tried on indictment before a judge and jury, the

applicant (together with a co-accused) was found guilty on 18 May 1993

by the High Court of Justiciary in Scotland of attempted murder and

breach of the peace. The trial judge had available to him a note of the

applicant's previous convictions indicating four previous convictions

for assault and one for theft, none of which convictions resulted in

a custodial sentence. The trial judge also had a social enquiry report

on the applicant's personal circumstances available to him. The

applicant was sentenced to six years imprisonment for attempted murder

and to three months imprisonment for breaching the peace, the sentences

to run concurrently from the date of sentencing. The applicant was

legally represented at his trial.

17. Counsel's opinion dated 2 May 1993 indicated that there was no

realistic prospect of a successful appeal. On 28 May 1993 the applicant

lodged an intimation of intention to appeal against both conviction and

sentence. The applicant applied to the Scottish Legal Aid Board

("S.L.A.B.") for legal aid for his appeal but this was refused on the

grounds that the applicant had not satisfied the S.L.A.B. that he had

substantial grounds for making the appeal.

18. On 6 August 1993 the applicant lodged a minute of abandonment of

his appeal against conviction and indicated his intention to proceed

with his appeal against sentence. On 13 August 1993 he also lodged an

application for an extension of time for appealing in relation to

sentence only and the High Court granted that extension on

16 August 1993.

19. On 17 August 1993 the applicant's solicitors lodged a note of

appeal against sentence only, which note detailed the grounds of the

applicant's appeal. Those grounds referred to the relatively minor

nature of the applicant's previous convictions and to the facts that

the applicant had been recovering from an injury at the time of the

incident, that the trial judge had failed to differentiate between the

actions of the applicant and his co-accused, that the evidence clearly

showed that the victim was behaving in an aggressive and quarrelsome

manner and that the evidence clearly showed that the assault was in no

way premeditated.

20. The trial judge prepared, pursuant to section 236A of the

Criminal Procedure (Scotland) Act 1975, a report giving his opinion on

the grounds of appeal and pointed out that on the evidence it was not

possible to distinguish between the applicant and his co-accused as

regards the parts they had played in the offence itself and disagreed

that the evidence indicated that the applicant took a much more

restricted part in the assault than his co-accused.

21. The trial judge also noted that, though the applicant had a

relatively minor record of previous offences, four out of five of these

convictions were for assault. The trial judge went on to state that the

records of the two defendants were not markedly different and that,

while the victim had made a nuisance of himself, the trial judge felt

justified in describing the offence as "a brutal and highly destructive

attack of a cowardly character on a seriously drunk man". Finally, the

trial judge indicated that he agreed that there was no indication that

the assault concerned was premeditated or that any weapon of any sort

was used.

22. The applicant represented himself at his appeal. The High Court,

in a three page judgment dated 5 November 1993, dismissed the appeal,

referring to the points of appeal which the applicant set out in his

note of appeal, to the applicant's submission before the High Court and

to the opinion of the trial judge.

23. The High Court stated that, in determining the appeal, regard was

had to the fact that it was the trial judge who heard the evidence,

that the charge was one which the jury accepted as attempted murder and

that it was on that charge that the jury decided to convict the

applicant. It was noted that a charge of attempted murder is a very

serious charge and that the injuries which were described in the trial

judge's report fully justified a conviction for that offence. The High

Court concluded that the sentence which the trial judge imposed could

not reasonably be said to be excessive, having regard to the part which

the applicant played in the incident, the degree and severity of the

injuries and the nature of the charge of which he was convicted.

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 against

conviction and/or sentence granted by statute (section 228 of the

Criminal Procedure (Scotland) Act 1975 - "the 1975 Act"). No leave to

appeal is therefore required.

25. 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. 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 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.

26. 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.

2. Legal Aid for Criminal Appeals

27. 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.

28. 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 prepared by counsel as to the appeal's prospects of

success.

29. 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 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).

30. The Criminal Justice 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

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

about the refusal of legal aid for his criminal appeal.

B. Point at issue

32. 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

33. 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; ..."

34. The applicant submits that the refusal of legal aid prevented the

proper presentation of his appeal (particularly in relation to certain

complex grounds of appeal such as the extent of his involvement in the

assault) and thereby led to his appeal hearing being 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

nos. 300-B and 300-C).

35. The Commission recalls the above-mentioned Boner and Maxwell

cases. Mr Boner had been convicted on charges of assault, armed robbery

and of wilful damage together with 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.

36. 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.

37. 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.

38. 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 similar reasons as in those cases, that it is not in dispute that

the applicant lacked sufficient means to pay for legal assistance for

his appeal and that the applicant was unrepresented for his appeal

hearing.

39. It is further noted that the matter before the appeal court,

being an appeal against sentence, was the applicant's two concurrent

sentences of six years imprisonment for attempted murder and three

months imprisonment for breaching the peace and the Commission

considers that the issue at stake was of importance for the applicant.

The Commission accepts that the fact that the applicant was appealing

against sentence only may have rendered his grounds of appeal less

complex. It is also noted that the applicant's solicitor drafted the

grounds of appeal. However, it is also recalled that the Court in

Mr. Boner's application found that, although Mr. Boner's grounds of

appeal were not complex and although he understood the grounds of

appeal which had been drafted by his legal representative, those

grounds required a certain legal skill and expertise to present to the

appeal court. Equally, the Commission considers that the grounds of

appeal in the present case also required a certain legal skill and

expertise to present to the appeal court.

40. 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

41. 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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GIVEN v. THE UNITED KINGDOM

GIVEN v. THE UNITED KINGDOM

LEXI