Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 18711/91

B.

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 4 May 1993)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . .1-2

A. The application

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

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . .1-2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-40) . . . . . . . . . . . . . . . . . . . .3-6

A. Particular circumstances of the case

(paras. 16-26). . . . . . . . . . . . . . . . . .3-4

B. Relevant domestic law and practice

(paras. 27-40). . . . . . . . . . . . . . . . . .4-6

III. OPINION OF THE COMMISSION

(paras. 41-51) . . . . . . . . . . . . . . . . . . . .7-8

A. Complaint declared admissible

(para. 41). . . . . . . . . . . . . . . . . . . . .7

B. Point at issue

(para. 42). . . . . . . . . . . . . . . . . . . . .7

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

(paras. 43-50). . . . . . . . . . . . . . . . . .7-8

CONCLUSION

(para. 51) . . . . . . . . . . . . . . . . . . . . . . .8

DISSENTING OPINION OF MR. HENRY G. SCHERMERS

AND SIR BASIL HALL. . . . . . . . . . . . . . . . . . . . 9-10

APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . 11

APPENDIX II DECISION ON THE ADMISSIBILITY. . . . . . .12-16

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 1960 and resident in

Glasgow. He is represented before the Commission by Mr. Desmond Queen,

solicitor, practising in Glasgow.

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

respondent Government are represented by their Agent,

Mrs. Audrey Glover of the Foreign and Commonwealth Office.

4. The case concerns the applicant's complaints under

Article 6 para. 3(c) of the Convention that he did not receive legal

aid to be represented at the hearing of his appeal and that he had as

a result to present his appeal in person.

B. The proceedings

5. The application was introduced on 4 April 1991 and registered on

22 August 1991.

6. On 2 April 1992, the Commission decided to communicate the

application to the respondent Government and to ask for written

observations on the admissibility and merits of the complaint under

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

7. The Government submitted their written observations on

7 July 1992. The applicant submitted his observations on

24 September 1992.

8. On 2 September 1992, the Commission granted the applicant legal

aid.

9. On 9 December 1992, the Commission declared the application

admissible under Article 6 para. 3(c) of the Convention. The parties

were then invited to submit any additional observations on the merits

of the application, but they did not take advantage of this

opportunity.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case. In the light of the parties' reactions, the

Commission finds that there is no basis on which a friendly settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

12. The text of the Report was adopted by the Commission on

4 May 1993 and is now transmitted to the Committee of Ministers in

accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. A schedule setting out the history of the proceedings before the

Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

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. Particular circumstances of the case

16. Between 29 March and 10 April 1990, the applicant stood trial in

the High Court of Justiciary sitting in Edinburgh. He was accused of

five charges - three charges of offences concerning a firearm, a charge

of wilful damage and a charge of assault and armed robbery.

17. The applicant received legal aid for his trial and was

represented by solicitor and counsel.

18. During the course of the trial a prosecution witness, a Mrs. G.,

entered the courtroom prior to giving evidence, to speak to a co-

accused of the applicant against whom charges had been dropped. When

the trial judge was made aware of this by counsel for the applicant,

he adjourned the case and instructed the Advocate Depute, the

prosecuting counsel, to make further enquiries into the matter. Upon

receiving the report of the Advocate Depute, the trial judge concluded

that Mrs. G.s' appearance in court for a period of 20 minutes had not

been the result of culpable negligence on the part of the Crown and,

moreover, in the light of the evidence being led at the time when

Mrs. G. was in the court and the evidence which the Crown indicated she

herself would be giving, no injustice would be done in admitting

Mrs. G. as a witness. He therefore exercised his discretion to do so.

Counsel for the applicant subsequently had the opportunity to cross-

examine Mrs. G. on the matter of her attendance in court.

19. Mrs. G. subsequently provided evidence in support of the

prosecution case.

20. The applicant was convicted of the charges and sentenced to eight

years' imprisonment.

21. The applicant indicated his intention to appeal against

conviction to the Clerk of the High Court of Justiciary on

17 April 1990. A Note of Appeal was thereafter lodged by the

applicant's solicitors on 13 June 1990. Two of the six grounds of

appeal were concerned with the trial judge's decision to admit the

witness.

22. The applicant made an application for legal aid in or about May

or June 1990. The application to the Scottish Legal Aid Board was

accompanied by a memorandum for legal aid, a copy of the note of

appeal, a supplementary statement of the grounds of appeal and a copy

of the judge's summing-up to the jury. The original indictment and a

note of previous convictions were also lodged.

23. In their letter of 25 July 1990, the Scottish Legal Aid Board

informed the applicant that the information it had received was

insufficient and required the opinion of counsel as to the prospects

of success of the appeal. The applicant had already obtained an

Opinion dated 10 June 1990 and this was forwarded to the Scottish Legal

Aid Board as was a Supplementary Opinion dated 6 September 1990. These

opinions were inconclusive, counsel stating that he had been provided

with insufficient material on which to assess the merits of the appeal.

As the applicant and his trial solicitor disagreed with the advice of

counsel, the applicant states that a copy of a letter from the trial

solicitor expressing this disagreement was also sent. A letter dated

2 November from the applicant's new solicitors to the Scottish Legal

Aid Board records that counsel had informed them by telephone that he

did not support the appeal and that consequently they could no longer

support the legal aid application or appeal and that they agreed with

counsel's view.

24. On 14 November 1990, the Scottish Legal Aid Board informed the

applicant that his application for legal aid had been refused as the

Board was not satisfied that the applicant had substantial grounds for

making an appeal. By letter of 11 December 1990, the Board added that

it was not satisfied that there was any merit in the appeal.

25. The applicant continued to receive the advice of his solicitor,

but as solicitors have no rights of audience in the High Court of

Justiciary and counsel could not be instructed because of the refusal

of legal aid, the applicant had to present the case himself on

24 January 1991 in Edinburgh. The Crown was represented by counsel.

The applicant had no legal knowledge and received no assistance with

his submission to the court.

26. The appeal court considered the first two grounds of appeal

relating to Mrs. G. and held that these were ill-founded and that the

trial judge had approached the matter properly. As the applicant did

not address the court on the remaining grounds of appeal, these were

not considered by the court. It did however consider the other points

raised by the applicant but reached the "clear conclusion that there

was no miscarriage of justice in this case". The appeal against

conviction was unanimously dismissed.

B. Relevant domestic law and practice

Appeals against conviction by persons convicted on indictment

27. Pursuant to section 228 of the Criminal Procedure (Scotland) Act

1975 every person convicted of a criminal charge on indictment in

Scotland has a right of appeal to the High Court of Justiciary against

conviction or sentence or both.

28. In an appeal, the appellant may bring under review by the Court

any alleged miscarriage of justice in the proceedings.

29. An appeal is heard by a bench of not less than three judges. At

the hearing of the appeal the appellant or his counsel if he is

represented makes submissions to the Court in support of the grounds

of appeal. The Court is then addressed by counsel for the Crown.

30. In disposing of an appeal against conviction the High Court may

affirm the verdict of the trial court; set aside the verdict of the

trial court by either quashing the conviction or by substituting an

amended verdict of guilty; or set aside the verdict of the trial court

and authorise a new prosecution (section 254 of the Criminal Procedure

(Scotland) Act 1975).

Availability of legal aid for criminal appeals

31. Legal aid is available for appeal against conviction or sentence

where the applicant qualifies on financial grounds and where "he has

substantial grounds for making the appeal and it is reasonable in the

particular circumstances of the case that legal aid should be made

available to him" (Legal Aid (Scotland) Act 1986 section 25(2)).

32. The administration of legal aid in Scotland, including decisions

as to the granting of legal aid for criminal appeals, is the

responsibility of the Scottish Legal Aid Board, an independent body

established on 1 April 1987 whose members are appointed by the

Secretary of State for Scotland.

33. Legal aid which has been made available for a trial on indictment

extends, where the accused person is convicted, to include

consideration and advice by a solicitor on the question of the appeal.

A Note by Counsel on the prospects of an appeal can be obtained under

this grant of legal aid, where Counsel has been previously involved on

the appellant's behalf in the proceedings.

34. To obtain legal aid to proceed with an appeal, a further

application to the Scottish Legal Aid Board is required. The solicitor

preparing the Note of Appeal will, where appropriate, arrange to obtain

the opinion of Counsel as to the prospects of the appeal, and will

lodge this with the application for legal aid.

35. Applications for legal aid for criminal appeals are determined

by the Board, which includes at least 2 practising members of the

Faculty of Advocates, at least 2 members of the Law Society of Scotland

and at least one other person having experience of the procedure and

practice of the courts.

36. The Board normally reaches a decision as to whether there are

substantial grounds on the basis of the documents before them, which

normally include copies of a Note of Appeal and the Judge's charge to

the jury. The views expressed by the applicant's solicitor and Counsel

will also be taken into account in the Board's consideration.

37. Although the legislation does not provide for a formal review,

the Board will as a matter of practice, when requested to do so,

reconsider an application which has been refused. Such consideration

involves reference by the Board to an external reporter who was not

involved in the initial decision to refuse the application and who

reports to the Board on the merits of the application.

38. In a solemn criminal appeal where legal aid has been refused, if

the Appeal Court considers that, prima facie, an appellant may have

substantial grounds for taking the appeal and it is in the interests

of justice that the appellant should have legal representation in

arguing these grounds, the Court ex proprio motu may adjourn the

hearing and make a recommendation that the Board's decision to refuse

legal aid should be reviewed.

39. The practice of the Court in this regard was formalised by a

Practice Note to this effect issued on 4 December 1990 by the Lord

Justice General, to all Appeal Court Chairmen and Clerks:

"In any appeal where legal aid has been refused and the court

considers that, prima facie, an appellant may have substantial

grounds for taking the appeal and it is in the interests of

justice that the appellant should have legal representation in

arguing these grounds, the court shall forthwith adjourn the

hearing and make a recommendation that the decision to refuse

legal aid should be reviewed."

40. The Scottish Legal Aid Board has decided that where a

recommendation is made by the Court in criminal appeal cases that a

decision to refuse legal aid should be reviewed, they will grant legal

aid. The Manual of Procedure of the Scottish Legal Aid Board provides

in para. 6.12:

"In any criminal appeal where legal aid has been refused, and the

Appeal Court considers that the appellant may have substantial

grounds for taking the appeal, and it is in the interests of

justice that the appellant should have legal representation in

arguing those grounds, the Appeal Court can adjourn the hearing

and recommend that the Board re-considers the decision to refuse

legal aid.

In these circumstances, the Board will receive a letter from the

High Court of Justiciary giving the details of the case where

they are recommending a re-consideration of the decision to

refuse. If we are asked to re-consider a decision in these

circumstances, then the application should be granted

automatically. The case need not be seen by a reporter or Board

solicitor, but ought to be referred to the Assistant Manager for

the appropriate action."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that he was refused legal aid for the hearing of his appeal against

conviction.

B. Point at issue

42. The issue to be determined is whether there has been a violation

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

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

43. Article 6 para. 3(c) (Art. 6-3-c) provides that:

"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".

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

appeal against conviction was in violation of the above provision. He

states that very serious matters were at stake in his appeal and that

the interests of justice required that he receive legal representation

since he was unable to present the arguments properly himself or to

highlight the points of his appeal as proper legal representation would

have done.

45. The Government submit that Article 6 para. 3(c) (Art. 6-3-c) does

not bestow a right to receive legal aid where an appeal has "no

objective likelihood of success" and refer to the Monnell and Morris

case (Eur. Court H.R., Monnell and Morris judgment of 2 March 1987,

Series A no. 115, p. 25, para. 67). In this case, the Government recall

that the applicant's counsel advised that the applicant had no ground

of appeal against conviction and, in their submission, there was

nothing complex in the case either factually or legally which indicated

that the interests of justice required legal representation. The

Government also emphasise that there is an automatic right of appeal

in Scotland without any requirement to obtain leave for appeal.

46. The Commission recalls that Article 6 para. 3 (Art. 6-3-c)

contains an enumeration of specific rights of the defence. They

exemplify the notion of fair trial in respect of typical procedural

situations which arise in criminal cases, but their intrinsic aim is

always to ensure, or contribute to ensuring, the fairness of the

criminal proceedings as a whole. The guarantees enshrined in Article 6

para. 3 (Art. 6-3) must accordingly be interpreted in the light of the

function which they have in the overall context of the proceedings (cf.

Can v. Austria, Comm. Report 12.7.84, para. 48, Eur. Court H.R.,

Series A no. 96, p. 15). The manner in which the guarantees apply in

relation to appellate or cassation courts may also be influenced by the

special features of those proceedings including the nature of the

procedure and the powers of the appellate body concerned (Monnell and

Morris judgment loc. cit., p. 22, para. 56).

47. The right to free legal assistance guaranteed by Article 6

para. 3(c) (Art. 6-3-c) is subject to two conditions: that the

individual concerned does not have sufficient means to pay for legal

assistance and that "the interests of justice" require it. It is not

in dispute that the first condition was satisfied in the present case.

The only issue is whether "the interests of justice" required that the

applicant be granted legal aid before the High Court.

48. When determining whether "the interests of justice" required

legal representation, the Commission must examine each case on its

facts. While the likelihood of success and the availability of legal

assistance at other stages of the proceedings are significant factors

to be taken into account, they are not the sole criteria. Other

factors in assessing the requirements of "the interests of justice"

include the importance of what is at stake for the applicant, e.g. the

severity of the sentence, the personal ability of the applicant and the

nature of the proceedings, e.g. complexity or importance of the issues

or procedures involved (cf. Eur. Court H.R., Granger judgment of

28 March 1990, Series A no. 174, pp. 18-19, paras. 47-48 and Comm.

Report 12.12.88, loc.cit, pp. 24-25, paras. 50-52).

49. In the present case, the Commission notes that several of the

features present in the Granger case are absent. In particular in the

Granger case the appeal concerned acknowledged "difficult" legal

distinctions of some complexity and during the proceedings the court

adjourned in order to obtain a transcript of evidence so as to be able

to examine the matter more thoroughly. Nonetheless there was a legal

issue before the appeal court in this case as to whether the judge had

properly exercised his discretion to admit Mrs. G. as a witness.

Further the present applicant was appealing against a conviction for

which he had received a sentence of eight years' imprisonment. There

is consequently no question as to the importance of what was at stake

in the appeal.

50. The Commission recalls that the High Court has wide powers as to

the disposing of appeals and that the procedure is not limited but

allows any alleged miscarriage of justice to be challenged. The

proceedings involve an oral hearing at which the Crown is automatically

represented. The Commission notes that the Scottish system affords an

automatic right of appeal in all cases. However where appeals are

provided for, the guarantees of Article 6 para. 3(c) (Art. 6-3-c)

cannot be evaded on the ground of the other incidental benefits of the

system. The effectiveness of the contribution by an unaided applicant

to appeal hearings at which the prosecution is represented by counsel,

and consequently the fairness of those proceedings, must be seriously

in doubt. Therefore, having regard in the present case to the nature

of the proceedings and the length of sentence at stake, the Commission

finds that the interests of justice required the provision of legal

assistance.

CONCLUSION

51. The Commission concludes, by 17 votes to 2, that there has been

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

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. English)

DISSENTING OPINION OF MR. HENRY G. SCHERMERS AND SIR BASIL HALL

We do not share the view of the majority of the Commission that

there has been a violation of Article 6 para. 3(c) in this case.

"The manner of application of Article 6 to proceedings before

courts of appeal depends on the special features of the proceedings

involved; account must be taken of the entirety of the proceedings in

the domestic legal order and of the role of the appellate court

therein." (Jan-Ake Andersson v. Sweden judgment of 29.10.91, Series A

no. 212 B, p. 43, para. 22.)

This principle applies not only in relation to para. 1 of that

Article but also in relation to para. 3(c) which states a specific

aspect of the basic entitlement to a fair hearing conferred by para. 1

(Granger judgment of 28.3.90, Series A no. 174, p. 17, paras. 43 and

44.)

Under the Scottish system everyone convicted of a crime at first

instance has a right to appeal to the High Court of Justiciary. An

appeal will however only succeed if a miscarriage of justice is

established. The function of the Court is then to examine whether

there is ground for finding that there has been a miscarriage of

justice and not to re-hear the case. The Court examines whether at

first instance there has been an error of law or a procedural error.

The appellant is required to state the grounds in his notice of appeal

and may not, in general, found his appeal on a ground not stated in the

notice (see Granger judgment loc. cit., pp. 12. and 13, paras. 26 and

27).

Like Mr. Granger the applicant was sentenced to a lengthy term

of imprisonment - in his case eight years. In other respects there was

little similarity between his case and that of Mr. Granger. It is

clear that he understood the grounds of his appeal. No difficult legal

problem like the issue over "precognitions" arises in his case.

The substantial ground of his appeal was that Mrs. G., a witness

for the prosecutor had come into Court while evidence for the

prosecutor was being given, and that in these circumstances the trial

judge should have exercised his discretion not to admit the witness's

evidence. The trial judge after hearing counsel for the applicant and

for the prosecutor concluded that the witness should give evidence.

The evidence being given when Mrs. G. came into the Court was of a

technical character and unrelated to the evidence which Mrs. G. could

give.

The applicant appealed against his conviction. New solicitors

and a new counsel were acting for him. It appears that at that stage

he was legally aided for the purpose of obtaining advice on an appeal.

Both had some difficulty, it appears, in finding out what had happened

at the trial, and in particular what objection had been taken to the

witness giving evidence. When the information was obtained their

conclusion was that there was no ground for an appeal. That conclusion

was made known to the Legal Aid Board who concluded that they were not

satisfied that there was any merit in the appeal, and did not authorise

legal aid for the appeal.

Notwithstanding that the applicant pressed on with his appeal.

In these circumstances we do not consider that the interests of justice

required that he should have been given legal aid at the hearing (see

the Monnell and Morris judgment of 2.3.87, Series A no. 115, p. 25,

para. 67).

The majority of the Commission place weight on the fact that the

prosecutor was legally represented while the applicant was not. If the

prosecutor is to be present on an appeal (what he obviously must be -

to assist the court if necessary) he can only be present through the

presence of a counsel. If the prosecutor has played an active part in

arguing that the appeal should have been dismissed, question of

equality of arms might have arisen. There is no indication that that

was so in this case, which distinguishes the case from Granger where

the Solicitor-General addressed the court at length (Granger judgment

of 20 March 1990, Series A no. 174, p. 11 para. 18 and p. 18 para. 47.

Furthermore there is an obvious difficulty in counsel putting forward

an argument on a point which he believes to be without foundation, so

that the purpose served by representation in the circumstances is not

obvious.

Accordingly there was, in our opinion, no breach of

Article 6 para. 3(c) in this case either taken alone or as an element

in the right to a fair hearing conferred by Article 6 para. 1.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

04.04.91 Introduction of the application

22.08.91 Registration of the application

Examination of admissibility

02.04.92 Commission's decision to invite the parties to submit

observations on the admissibility and merits of the

complaint under Article 6(3)(c).

07.07.92 Government's observations

24.09.92 Applicant's observations

02.09.92 Commission's grant of legal aid for the applicant

09.12.92 Commission's decision declaring the application

admissible

Examination of the merits

09.12.92 Commission's deliberations on the merits

03.04.93 Commission's consideration of the state of proceedings

04.05.93 Commission's deliberations on the merits, final votes

and adoption of the Report

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B. v. the UNITED KINGDOM

B. v. the UNITED KINGDOM

LEXI