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EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 18123/91

W. W.

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 6 April 1993)

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PART I: STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . 2-3

PART II: SOLUTION REACHED. . . . . . . . . . . . . . . . . . . . . 4

INTRODUCTION

1. This Report relates to the application introduced under

Article 25 of the European Convention on Human Rights by W. W. against

the United Kingdom on 23 October 1990. It was registered on

24 April 1991 under file No. 18123/91.

2. The applicant was represented before the Commission by

Anthony Mahon, a solicitor from Glasgow. The respondent Government

were represented by their Agent, Mrs. Audrey Glover of the Foreign and

Commonwealth Office.

3. On 14 October 1992 the European Commission of Human Rights

declared the application admissible. It then proceeded to carry out

its task under Article 28 para. 1 of the Convention which provides as

follows:

"In the event of the Commission accepting a petition

referred to it:

a. it shall, with a view to ascertaining the facts,

undertake together with the representatives of the

parties an examination of the petition and, if need

be, an investigation, for the effective conduct of

which the States concerned shall furnish all necessary

facilities, after an exchange of views with the

Commission;

b. it shall at the same time place itself at the

disposal of the parties concerned with a view to

securing a friendly settlement of the matter on the

basis of respect for Human Rights as defined in this

Convention."

4. The Commission (Second Chamber) found that the parties had

reached a friendly settlement of the case and on 6 April 1993 adopted

this Report which, in accordance with Article 28 para. 2 of the

Convention, is confined to a brief statement of the facts and of the

solution reached.

5. The following members were present when the Report was adopted:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

J.-C. GEUS

M. NOWICKI

PART I

STATEMENT OF THE FACTS

6. The applicant is a British citizen born in 1968. He is

currently serving a sentence of imprisonment at Shotts Prison,

Lanarkshire.

7. The applicant and his brother stood trial at Glasgow High Court

for attempted murder and various other offences on 22 February 1989.

8. The applicant was identified in court as one of the victim's

assailants by three eye-witnesses. One of these eye-witnesses had been

accompanying the victim on 6 November 1988, the day of the attack.

This eye-witness had pointed out the applicant at an identification

parade which was held on 11 November 1988. The applicant had legal

representation when he took part in the identification parade.

9. The applicant was convicted of attempted murder on

24 February 1989. He was sentenced to 10 years' imprisonment for the

offence.

10. The applicant applied to the Scottish Legal Aid Board for legal

aid for the purpose of appealing against his conviction and sentence.

His application was refused on 7 September 1989 on the basis that the

appeal appeared to be without merit. The applicant proceeded to

conduct his own appeal.

11. On 13 October 1989 the High Court of Justiciary adjourned the

hearing of the applicant's appeal so that the applicant could provide

and investigate evidence on the question of perjury of an essential

Crown witness.

12. On 25 October 1989 solicitors acting on the applicant's behalf

submitted a fresh application for legal aid. This application was

refused on 1 November 1989 since it did not point to substantial

grounds of appeal. This view was taken in light of the fact that the

aforesaid solicitors did not provide any evidence to indicate that

perjury had in fact been committed.

13. The applicant presented his appeal on 14 June 1990. He requested

another adjournment in order to request legal aid again. However his

request was refused by the Court. The applicant addressed the Court for

1 1/2 hours and made numerous submissions in support of lengthy grounds

of appeal.

14. It appears from the transcript of the appeal court's judgment

that the applicant's grounds of appeal against conviction included

complaints concerning the conduct of the defence by his counsel, that

the trial judge had misdirected the jury on a number of occasions, that

the police had failed to conduct properly an identification parade in

which the applicant appeared, that the jury's verdict was inconsistent

and that the conviction rested solely on eye-witness evidence.

15. The Court dismissed the applicant's appeal against conviction and

sentence and, in the process of so doing, stated that the applicant had

"wholly failed to satisfy it that there was any miscarriage of

justice". As regarded his complaints about his counsel, the Court found

no substance in the criticisms made and referred to the note of the

trial judge which described the defence as "excellent".

16. The applicant complained to the Commission under

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

aid for his appeal though the interests of justice required it.

17. Following the dismissal of the applicant's appeal, a new practice

was introduced with regard to legal aid in the appeal court.

"PRACTICE NOTE

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.

4 December 1990

LORD JUSTICE GENERAL"

18. On 14 October 1992, the Commission declared admissible the

applicant's complaint under Article 6 para. 3(c) of the Convention.

PART II

SOLUTION REACHED

19. Following its decision on the admissibility of the application,

the Commission placed itself at the disposal of the parties with a view

to securing a friendly settlement in accordance with

Article 28 para. 1 (b) of the Convention and invited the parties to

submit any proposals they wished to make.

20. In accordance with the usual practice, the Secretary, acting on

the Commission's instructions, contacted the parties to explore the

possibilities of reaching a friendly settlement.

21. Between October 1992 and February 1993 there were negotiations

between the parties concerning a friendly settlement of the case.

22. By letter dated 16 December 1992 the Government offered to make

an ex gratia payment to the applicant of £1200 as to damages and to pay

the applicant's legal costs. By letter dated 10 February 1992, the

applicant accepted this offer.

23. At its session on 6 April 1993 the Commission found that the

parties had reached agreement regarding the terms of a settlement. It

further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

24. For these reasons, the Commission adopted the present Report.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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W.W. v. the UNITED KINGDOM

W.W. v. the UNITED KINGDOM

LEXI