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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25648/94

Timothy Robson

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. 16-34) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-27). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law and practice

(paras. 28-34). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 35-46) . . . . . . . . . . . . . . . . . . . . .7

A. Complaint declared admissible

(para. 35). . . . . . . . . . . . . . . . . . . . .7

B. Point at issue

(para. 36). . . . . . . . . . . . . . . . . . . . .7

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

(paras. 37-45). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 46). . . . . . . . . . . . . . . . . . . . .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 1962 and resides in

Argyll, 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 27 June 1994 and registered on

14 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 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 22 November 1995

and those of the applicant were received on 13 February 1996.

8. On 15 May 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 17 May 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. The applicant, along with two others, was charged on indictment

with eight offences under the Misuse of Drugs Act 1971 ("the 1971 Act")

and with two charges of reset. The applicant received legal aid from

the Scottish Legal Aid Board ("S.L.A.B.") for the preparation of his

defence and for legal representation at his trial.

17. The applicant was represented at his trial in the High Court in

Scotland by a solicitor and by counsel. During the trial the

prosecution relied on certain statements made by the applicant during

his questioning by police. The defence argued, in the presence of the

jury, that certain of those statements were obtained through, inter

alia, assaults, intimidation and deprivation. The prosecution disputed

this and submitted that the statements had been fairly obtained. In his

summing up to the jury, the trial judge directed the jury that before

they could accept any such statements they must be satisfied of three

matters: that the statements were in fact made, that any such

statements were accurately recorded and that they were freely made and

obtained. The trial judge then outlined the principles by which the

jury should be guided in deciding whether statements were fairly

obtained which involved balancing the public interest that crimes

should be investigated and those who commit them brought to justice

with the principle that the accused must be fairly dealt with. The jury

were directed that if they felt that the statements were unfairly

obtained then they should be excluded from the jury's consideration.

18. On 5 April 1993 the jury found the applicant guilty on four of

the charges under the 1971 Act and on one of the charges of reset. The

judge sentenced the applicant to five terms of imprisonment to run

concurrently - two sentences of 5 years, one sentence of 2 years, one

sentence of 6 months and one sentence of 4 months. On the same day a

forfeiture order was made in relation to the applicant's mother's car

which the applicant had been using and in which certain quantities of

drugs had been found.

19. On 8 April 1993 the applicant lodged an intimation of his

intention to appeal together with a note of appeal against conviction

and sentence. The grounds of appeal, outlined in the note of appeal,

challenged the severity of the sentence and noted that the applicant

wished to apply for an appeal against sentence or "possibly" for a

retrial on the charges of which he had been found guilty.

20. On 4 May 1993 the transcript of the trial judge's summing up to

the jury was filed. On 20 August 1993 the report of the trial judge on

the trial was also filed pursuant to section 236A of the Criminal

Procedure (Scotland) Act 1974. In that report, the trial judge

described the evidence against the applicant, the reasons for the

sentences given, including his consideration of mitigation offered on

the applicant's behalf and, as regards the applicant's request for a

retrial, stated that "during the trial no objections were made to the

admission of any evidence".

21. While the legal aid the applicant received for his trial would

have covered legal advice in connection with his appeal including

obtaining the opinion of counsel as to the appeal's chances of success,

it did not cover legal representation for the appeal hearing and, for

this, the applicant made a further application for legal aid on

6 May 1993.

22. On 25 November 1993 the applicant's solicitors wrote to the

S.L.A.B. requesting the granting of legal aid, advising that counsel

had advised orally that the applicant's appeal was not stateable and

notifying the S.L.A.B. that the date of the forthcoming appeal was

3 December 1993. On the same day the applicant's solicitor wrote to the

applicant indicating that counsel did not consider that he had any

ground of appeal whatsoever and that it was likely that he would have

to represent himself at the hearing of his appeal.

23. On 3 December 1993 the S.L.A.B. refused to grant legal aid on the

basis that the S.L.A.B. did not consider that the applicant had shown

substantial grounds for making the appeal and that it was not

reasonable, in the circumstances of the case, that legal aid should be

made available to the applicant. The S.L.A.B. indicated that, while

they did not receive a written opinion from counsel in connection with

the prospects of an appeal, the applicant's solicitor had informed the

S.L.A.B. of counsel's oral opinion.

24. When the appeal came on for hearing, on 3 December 1993, the High

Court granted the applicant's solicitors and counsel leave to withdraw

from acting for the applicant. An adjournment of the appeal hearing was

also granted to a later date on the basis that on that date the

applicant would be in a position to represent himself. The High Court

also suggested that, if the applicant wished to continue his appeal,

he should lodge amended grounds of appeal.

25. Pursuant to complaints made by the applicant against the police

who had interviewed him, the applicant was informed by letter dated

13 December 1993 that the Regional Prosecutor Fiscal did not intend

initiating proceedings against any of the police officers concerned.

26. On 6 January 1994, when the appeal again came on for hearing, the

applicant obtained an adjournment for a month so that he could apply

again for legal aid. On 3 February 1994 the case was again adjourned

as the court had insufficient time to consider the appeal. The

applicant had no success in obtaining legal aid and on the 2 March 1994

he presented his appeal in person. The applicant indicated that he had

abandoned his appeal against conviction but that he wished to maintain

his appeal against sentence. Having heard the applicant and considered

the documents and information before it, the High Court refused the

applicant's appeal.

27. On 1 December 1995 the applicant was released from prison.

B. Relevant domestic law and practice

1. Criminal Appeals - Solemn proceedings

28. 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.

29. 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 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.

30. 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 the

conviction and may affirm, vary or quash the sentence.

2. Legal Aid for Criminal Appeals

31. 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.

32. 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.

33. 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).

34. 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

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

about the refusal of legal aid for his criminal appeal.

B. Point at issue

36. 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

37. 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; ..."

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

he felt he had to drop his appeal against conviction, prevented the

proper presentation of his appeal against sentence 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 no. 300-B and 300-C).

39. 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.

40. 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

representatives, 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.

41. 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.

42. 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.

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

being an appeal against sentence only, was the applicant's five

concurrent terms of imprisonment - two sentences of 5 years, one

sentence of 2 years, one sentence of 6 months and one sentence of

4 months and the Commission considers that the issue at stake was

extremely important for the applicant.

44. The Commission accepts that the fact that the applicant appealed

against sentence only may have rendered his grounds of appeal less

complex. It is also noted that the applicant drafted his grounds of

appeal himself. However, it is recalled that the Court in Mr. Maxwell's

application found that, although Mr. Maxwell's grounds of appeal were

not complex and he drafted those grounds himself, the interests of

justice required that he be represented because he was unable to

competently address the appeal court on such legal issues without the

services of a legal practitioner. 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. The

Commission does not consider, in such circumstances, that it necessary

to consider whether the refusal of legal aid for the appeal was the

reason the applicant did not appeal against conviction.

45. 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

46. 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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ROBSON v. THE UNITED KINGDOM

ROBSON v. THE UNITED KINGDOM

LEXI