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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25523/94

George MURDOCH

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. 16-36) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-28). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 29-36). . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 37-53) . . . . . . . . . . . . . . . . . . . . .8

A. Complaints declared admissible

(para. 37). . . . . . . . . . . . . . . . . . . . .8

B. Points at issue

(para. 38). . . . . . . . . . . . . . . . . . . . .8

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

(paras. 39-46). . . . . . . . . . . . . . . . . . .8

CONCLUSION

(para. 47). . . . . . . . . . . . . . . . . . . . .9

D. As regards Article 6 para. 3 (b) of the Convention

(paras. 48-50). . . . . . . . . . . . . . . . . . 10

CONCLUSION

(para. 51). . . . . . . . . . . . . . . . . . . . 10

E. Recapitulation

(paras. 52-53). . . . . . . . . . . . . . . . . . 10

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 11

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 citizen of the United Kingdom, born in 1951

and resident in Kirriemuir in Scotland. He was represented before the

Commission by Mr. J. Justice, a solicitor practising in Kirriemuir.

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 concerns the refusal of legal aid for the applicant's

criminal appeal and the refusal to adjourn the hearing on the

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

of the Convention.

B. The proceedings

5. The application was introduced on 21 October 1993 and registered

on 3 November 1994.

6. On 6 September 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 its admissibility and

merits.

7. The Government's observations were submitted on 20 November 1995.

The applicant replied on 19 January 1996. On 5 December 1995 the

Commission (First Chamber) granted the applicant legal aid for the

presentation of his case.

8. On 12 April 1996 the Commission declared admissible the

applicant's complaints concerning the refusal of legal aid for his

appeal and the refusal to adjourn the hearing of 30 April 1993 on his

appeal. 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 April 1996 and they were invited to submit such

further information or observations on the merits as they wished. The

Government submitted observations on 28 June 1996, to which the

applicant did not reply.

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

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 10 August 1991 the applicant was arrested in connection with

drug-related offences. On 28 September 1992 he applicant appeared

before the High Court of Justiciary in Perth to be tried on four

charges relating to the possession and supply of a controlled drug,

namely cannabis resin, under the Misuse of Drugs Act 1971. He was

represented by Senior and Junior Counsel, having been granted legal aid

from the Scottish Legal Aid Board ("S.L.A.B."). In the course of the

trial, which lasted until 2 October 1992, the court heard, among

others, two police officers who from behind some bushes had observed

the applicant visit a clearing in a wood where cannabis had been

buried.

17. In a judgment pronounced on 2 October 1992, the court found the

applicant guilty of having been involved in the supply of cannabis,

contrary to section 4 par. 3 (b) of the Misuse of Drugs Act 1971, and

not guilty of two other charges. The court considered the fourth charge

not proven. It sentenced the applicant to two years imprisonment.

18. On 8 October 1992 the applicant's then solicitors gave to the

High Court of Justiciary notice of the applicant's intention to appeal

against his conviction and sentence. On 16 October 1992, however, the

applicant abandoned his appeal against sentence.

19. On 28 October 1992 the applicant's then solicitors lodged with

the High Court the note of the applicant's appeal against conviction

on the grounds, first, that the trial judge had misdirected the jury

on the law of corroboration and, secondly, that before giving evidence

one of the prosecution witnesses, police officer F, had discussed his

testimony with H, a private investigator acting for the applicant who

had been cited as a witness for the defence. On 30 October 1992 the

applicant was conditionally released pending the outcome of his appeal.

20. On 6 November 1992 the applicant applied to the S.L.A.B. for a

further grant of legal aid to cover legal representation for his

appeal. On 3 December 1992 the solicitors who had until then been

representing the applicant informed the S.L.A.B. that they could no

longer act for him, because of a conflict of interest. On

8 December the S.L.A.B. was informed that another firm of solicitors

had taken up the applicant's case.

21. On 22 February 1993 the applicant's new solicitors advised him

not to instruct new counsel for his appeal because his was "the type

of case in which it (was) virtually impossible to fully comprehend the

whole evidence and the various nuances arising from it without having

been involved throughout." They also requested a written opinion from

one of the two counsel who had represented the applicant before the

first instance court on the prospects of success of the applicant's

appeal. A hearing fixed for 4 March 1993 before the High Court of

Justiciary was adjourned at the applicant's request.

22. In an opinion delivered on 14 April 1993, the applicant's former

counsel considered that the applicant's appeal did not have any

prospects of success. By letter dated 15 April 1993, the applicant's

solicitors informed him that, given the negative opinion delivered by

counsel, it was inevitable that legal aid would be refused.

Considering, moreover, that, even if he were to find private funding,

it would be impossible for the applicant to persuade another lawyer to

argue his case, they advised him either to abandon the appeal or to

represent himself. The applicant claims to have received this letter

on 19 April 1993.

23. On 18 April 1993 the applicant applied for a second adjournment.

On 23 April 1993 he was informed that his request would be examined by

the court in the course of the hearing of 30 April 1993. On the same

day the S.L.A.B. refused the applicant's application for legal aid and

orally informed the applicant's solicitors.

24. On 26 April 1993 the applicant wrote to the police asking them

to provide him with a copy of a recording of an interview taken by a

police officer from a person immediately after the applicant's arrest,

in which the police officer in question allegedly affirmed that

2 1/2 kilos of cannabis had been discovered in the course of the

operation which led to the applicant's arrest. On the same date the

applicant also contacted the Royal Scottish Forestry Society with a

view to finding an expert on woods.

25. On 27 April 1993 the applicant's solicitors informed him of the

decision of the S.L.A.B. By letter of 28 April 1993 the S.L.A.B.

formally informed the applicant's solicitors that his application for

legal aid had been refused, because "the Board 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."

26. On 30 April 1993 the High Court of Justiciary held a hearing on

the applicant's appeal. The applicant, who represented himself,

informed the court that he did not pursue his first ground of appeal

that there was a misdirection on the law of corroboration. He also

applied for an adjournment, so as to be able to prepare the remaining

ground of appeal, and for the court's permission to lodge

three additional grounds. The applicant wished to argue the following:

first, due to certain changes made by the jury in the charge of which

he had been convicted, the quality, character and strength of the

evidence as a whole was insufficient and his conviction had been, as

a result, perverse and unreasonable; secondly, in his summing-up to the

jury the trial judge had not given fair weight to the special defence

of incrimination the applicant had lodged; thirdly, his counsel had

erred in not informing the trial judge about the conversation between

F and H.

27. Considering that the applicant had had ample time to obtain the

information he needed to prepare his appeal, the court rejected his

request for an adjournment. It also considered that the additional

grounds of appeal were plainly without substance. The principal

evidence on which the prosecution had relied related to the part of the

charge of which the applicant had been found guilty. The judge had

reminded the jury of the applicant's special defence of incrimination

and explained their significance. As regards the third additional

ground, the court considered that, if there was a miscarriage of

justice, this would lie in the fact that the conversation had taken

place and in the effect of that conversation on the evidence. This

ground, however, already existed in the applicant's note of appeal.

28. The court further held that, even assuming that the applicant's

version of facts regarding the conversation between F and H had been

true, the conversation could not have had any material effect on the

decision of the jury to convict the applicant. The incident had not

influenced the defence in their decision not to use the evidence

discussed between F and H. This consisted of a video recording of the

undergrowth by the clearing in the wood where the cannabis had been

found, which had been made by H one year after the applicant's arrest.

The applicant's lawyers had considered that showing the video to the

jury might be prejudicial to the applicant's defence. There was no

indication that F's evidence had been tainted by what had occurred.

Furthermore, the point that the applicant wished to establish on the

basis of the video, namely that by reason of the undergrowth the police

officers could not have a proper view of the clearing, would not

undermine the prosecution's case. Finally, the court considered that

the applicant should not be given permission to call expert evidence

which the defence had had the opportunity to call at the trial hearing,

but chose not to. In the light of all the above, the court considered

that there had been no miscarriage of justice. It rejected the

applicant's appeal.

B. Relevant domestic law

1. Criminal Appeals - Solemn proceedings

29. 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.

30. 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).

31. 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.

32. 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

33. 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.

34. 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.

35. 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).

36. 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. Complaints declared admissible

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

that he was not granted legal aid for his criminal appeal in breach of

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention. It also declared

admissible his complaint that he did not have adequate time and

facilities for the preparation of his defence in accordance with

Article 6 para. 3 (b) (Art. 6-3-b) of the Convention, as a result of

the appeal court's refusal to adjourn the hearing of 30 April 1993 on

his appeal.

B. Points at issue

38. The issues to be determined by the Commission are

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

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

- whether there has been a violation of Article 6 para. 3 (b)

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

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

39. 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; ..."

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

criminal appeal 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 H.R., Boner and

Maxwell v. the United Kingdom judgments of 28 October 1994, Series A

nos. 300-B and 300-C).

41. 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.

42. 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.

43. 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.

44. 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.

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

the applicant's conviction for having been involved in the supply of

cannabis, contrary to section 4 par. 3 (b) of the Misuse of Drugs Act

1971, following which he was sentenced to two 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.

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

CONCLUSION

47. 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.

D. As regards Article 6 para. 3 (b) (Art. 6-3-b) of the Convention

48. Article 6 para. 3 (b) (Art. 6-3-b) of the Convention reads as

follows:

"3. Everyone charged with a criminal offence has the following

minimum rights: ...

b. to have adequate time and facilities for the

preparation of his defence".

49. The applicant submits that, as a result of the High Court's

refusal to adjourn the hearing of 30 April 1993, he was left with

inadequate time for the preparation of his defence. The Government

submit that, after the applicant's application for leave to lodge

additional grounds of appeal had been refused, it was not necessary to

adjourn the hearing. The applicant was able to address the court on the

single remaining ground of appeal in considerable detail. There is

nothing to suggest that something was missing from his argument which,

if it had been put before the appeal court, might have led to a

different result.

50. The Commission considers that, in the light of its conclusion

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

no separate issue arises under Article 6 para. 3 (b) (Art. 6-3-b) of

the Convention.

CONCLUSION

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

no separate issue arises under Article 6 para. 3 (b) (Art. 6-3-b) of

the Convention.

E. Recapitulation

52. 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 (see para. 47).

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

no separate issue arises under Article 6 para. 3 (b) (Art. 6-3-b) of

the Convention (see para. 51).

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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MURDOCH v. THE UNITED KINGDOM

MURDOCH v. THE UNITED KINGDOM

LEXI