Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 18949/91

Peter Maxwell

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 4 May 1993)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . .1-2

A. The application

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

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . .1-2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-37) . . . . . . . . . . . . . . . . . . . .3-5

A. Particular circumstances of the case

(paras. 17-23). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law and practice

(paras. 24-37). . . . . . . . . . . . . . . . . .3-5

III. OPINION OF THE COMMISSION

(paras. 38-48) . . . . . . . . . . . . . . . . . . . .6-7

A. Complaint declared admissible

(para. 38). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 39). . . . . . . . . . . . . . . . . . . . .6

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

(paras. 40-47). . . . . . . . . . . . . . . . . .6-7

CONCLUSION

(para. 48) . . . . . . . . . . . . . . . . . . . . . . .7

DISSENTING OPINION OF MR. HENRY G. SCHERMERS

and SIR BASIL HALL. . . . . . . . . . . . . . . . . . . . .8-9

APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . 10

APPENDIX II PARTIAL DECISION ON THE ADMISSIBILITY. . .11-14

APPENDIX III FINAL DECISION ON THE ADMISSIBILITY. . . .15-19

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 1944 and currently

serving a sentence of imprisonment in HM Prison Perth.

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 was refused legal aid

for the presentation of his appeal against conviction.

B. The proceedings

5. The application was introduced on 25 March 1991 and registered

on 15 October 1991.

6. On 2 April 1992, the Commission (First Chamber) decided to invite

the Government to submit written observations on the admissibility and

merits of the complaints under Article 6 para. 3(c) of the Convention.

The remainder of the application was declared inadmissible.

7. The Government submitted their written observations on

1 July 1992. The applicant submitted his observations on

14 August 1992.

8. On 2 December 1992, the Commission transferred the case to

Plenary from the First Chamber.

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

admissible insofar as it raised issues 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.

10. On 9 February 1993, the Government submitted observations on the

merits and on 25 February 1993, the applicant submitted further

material.

11. 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. Consultations with the parties took place

between 22 October 1991 and 1 September 1992. In the light of the

parties' reactions, the Commission now finds that there is no basis on

which a friendly settlement can be effected.

C. The present Report

12. 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. NOWICKI

13. 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.

14. 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.

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

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

decisions on the admissibility of the application as APPENDIX II and

APPENDIX III.

16. 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

17. On 28 May 1990, the applicant, along with a co-accused, stood

trial on an indictment of breaking into a house and assaulting the

occupant to his severe injury. On 29 May 1990, he was convicted and

sentenced to 5 years' imprisonment. The applicant, who had been

granted free legal aid, was represented at trial by a solicitor and

counsel.

18. On 17 December 1990, the applicant's solicitors applied to the

Scottish Legal Aid Board for legal aid for representation at his appeal

against conviction. In a note dated 10 January 1991, counsel advised

that the applicant had no grounds of appeal against conviction.

The applicant's solicitors submitted to the Legal Aid Board that the

applicant should nonetheless be given legal aid in view of the lengthy

sentence which he had received.

19. On 23 January 1991, the Scottish Legal Aid Board rejected the

applicant's application for legal aid for an appeal against conviction.

It did so because it did not consider that there were substantial

grounds for such an appeal.

20. The applicant prepared and submitted his own grounds of appeal

against conviction.

21. On 21 March 1991, the applicant addressed the High Court of

Justiciary in its appellate function on his grounds of appeal.

22. The grounds of appeal were, inter alia, as follows:

1. He could not substantiate his contention that a crucial

witness was giving false evidence against him because to do so

would have involved revealing to the jury a previous conviction.

2. A number of witnesses were not called by the Crown or

Defence.

3. Crucial evidence was fabricated.

4. The verdict of the jury was not supported by the evidence.

5. His legal advisers disregarded instructions which he gave

them and did not defend him in accordance with his instructions.

23. On the same date the Court refused the applicant's appeal against

conviction. It found that none of the grounds of appeal supported the

suggestion that there was any miscarriage of justice in the case.

B. Relevant domestic law and practice

Appeals against conviction by persons convicted on indictment

24. 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.

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

any alleged miscarriage of justice in the proceedings.

26. 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.

27. 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

28. 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)).

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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."

37. 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

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

that he was refused legal aid for the presentation of his appeal

against conviction.

B. Point at issue

39. 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

40. 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".

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

appeal against conviction is 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.

42. 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 lay emphasis on the fact that there is an automatic

right of appeal in Scotland without the requirement of obtaining leave

to appeal.

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

44. 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.

45. 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).

46. 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 the applicant was

appealing in this case against a conviction for which he had received

a sentence of five years' imprisonment. There is consequently no

question as to the importance of what was at stake in the appeal.

47. 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 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. Consequently, 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

48. 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 five years

imprisonment. In other respects his case was very different from that

of Mr. Granger. Unlike Mr. Granger he understood the grounds of his

appeal - indeed he formulated them himself. There was no difficult

legal issue such as the issue over 'precognitions' in the Granger case.

The applicant was advised by his Counsel that there was no ground

for an appeal against his conviction. The Legal Aid Board, too,

concluded that there was no substantial ground for an appeal.

Notwithstanding the advice which the applicant had received he pressed

on with his appeal with no objective likelihood of success. In these

circumstances we do not consider that the interests of justice required

that he should have been given legal aid at the appeal stage (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

________________________________________________________________

25.03.91 Introduction of the application

15.10.91 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).

Commission's decision to declare the other complaints

inadmissible

01.07.92 Government's observations

14.08.92 Applicant's observations

02.12.92 Transfer of the case from the First Chamber to the

Plenary

09.12.92 Commission's decision to declare the remainder of the

application admissible.

Examination of the merits

09.12.92 Commission's deliberations on the merits

09.02.93 Government's observations

25.02.93 Applicant's observations

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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MAXWELL v. the UNITED KINGDOM

MAXWELL v. the UNITED KINGDOM

LEXI