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EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 15861/89

M.

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 8 September 1992)

TABLE OF CONTENTS

Page

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

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

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 M. against the

United Kingdom on 22 August 1989. It was registered on 4 December 1989

under file No. 15861/89.

The applicant was represented before the Commission by

Drummond Miller W. S., solicitors, of Edinburgh. The respondent

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

Foreign and Commonwealth Office.

2. On 9 December 1991 the European Commission of Human Rights

declared the application partially admissible insofar as it concerned

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

that he was refused legal aid for his appeal against conviction and

rejected his remaining complaints under Article 6. 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."

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

reached a friendly settlement of the case and on 8 September 1992

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.

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

MM. S. TRECHSEL, President

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

PART I

STATEMENT OF THE FACTS

5. The applicant is a British citizen born in 1948 and is currently

serving a prison sentence in H.M. Prison Saughton, Edinburgh. The

facts as submitted by the parties may be summarised as follows.

6. The applicant, his son and elder brother were charged with a

number of offences relating inter alia to assaults inflicting grave

injuries with a sword and knife in an incident in a public house. The

applicant pleaded guilty to two charges of attempted murder and on

27 July 1988 was sentenced to two terms of imprisonment of eight years

to run concurrently. While it appears that legal aid for Senior

Counsel was not granted by the Scottish Legal Aid Board since it

considered that the case did not present such features as would justify

employment of such counsel, the applicant was in fact represented by

Senior Counsel at trial, Mr. I. Hamilton Q.C. In his letter of

11 February 1990 to the Scottish Legal Aid Board, the applicant stated:

"I was allowed a Junior Q.C. for my defence, but my solicitor

said this would not do for the High Court and got a Q.C.

for the same money as the Junior."

7. The charges against his son were dropped at the beginning of the

trial, although his brother, who pleaded not guilty, was found guilty

of 3 charges and also sentenced to two terms of imprisonment of eight

years, to run concurrently.

8. The applicant appealed against sentence on the ground that it was

excessive in view of his previous good record, his personal

circumstances and the circumstances of the offence. The Note of Appeal

was prepared by his solicitors. His brother appealed against the

conviction and sentence.

9. The applicant had applied for legal aid for his appeal, but legal

aid had been refused by the Legal Aid Board on 28 November 1988, on the

ground that it did not consider that he had substantial grounds for

making the appeal or that it was reasonable in the particular

circumstances of the case that legal aid should be made available to

him. The Board noted that this appeal had not been supported by a

counsel's opinion.

10. The appeal was heard by the High Court of Justiciary. While the

Advocate Depute was present for the Crown, as in all appeals, he played

no part in the appeal and was not requested by the court to assist it

in any way. The applicant was present and submitted a written statement

to the Court and made oral submissions concerning his past good record.

11. The High Court gave its judgment on 5 May 1989 and dismissed the

applicant's appeal. The Court found that the sentence was not

excessive since the applicant had taken the principal part in the

assault and had been the person who inflicted the injuries with a

sword. His brother's appeal was also dismissed.

12. 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. He

also complained under Article 6 of the Convention of the conduct of the

Procurator Fiscal and his legal representatives, of being unable to

obtain the examination of witnesses and of a failure properly to serve

the indictment.

PART II

SOLUTION REACHED

13. 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.

14. 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.

15. Between March 1991 and July 1992 there were negotiations between

the parties concerning a friendly settlement of the case in light of

the Practice Note which had been circulated to the appeal courts

concerning legal aid:

"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"

16. By letter dated 2 July 1992, the Government offered to make an

ex gratia payment to the applicant of £1 200 as to damages and to pay

the costs which the applicant has actually and necessarily incurred and

which were reasonable as to quantum. By letter dated 31 July 1992, the

applicant accepted this offer.

17. At its session on 8 September 1992 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.

18. 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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M. v. THE UNITED KINGDOM

M. v. THE UNITED KINGDOM

LEXI