Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28944/95

by Thomas William FAULKNER

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 4 March 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 June 1995 by

Thomas William FAULKNER against the United Kingdom and registered on

26 October 1995 under file No. 28944/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

10 September 1996 and the observations in reply submitted by the

applicant on 25 November 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1947 and is currently

serving a sentence of imprisonment in Northern Ireland. He is

represented before the Commission by Messrs McCann & McCann, solicitors

practising in Belfast. The facts of the application may be summarised

as follows.

A. Particular circumstances of the case

On 8 June 1994 the applicant and a friend were arrested by police

when returning to Scotland, after the police had found an amount of

drugs in the vehicle in which they were travelling. The applicant and

his companion were charged with possession of a controlled Class A drug

(Ecstasy) with intent to supply, contrary to the Misuse of Drugs

Act 1971. Bail was refused to the applicant and his co-accused and they

were detained pending their trial. The applicant spent 117 days

remanded in custody prior to his trial.

On 4 October 1994, the first day of the trial before the High

Court of Justiciary in Dumfries, the charges against the applicant's

co-accused were withdrawn. The applicant was convicted on

6 October 1994 and sentenced to seven years imprisonment. The applicant

was legally represented at the hearing but he dismissed his lawyer

after the trial.

On 19 October 1994 the applicant lodged an intimation of

intention to appeal against sentence and conviction, he later decided

to proceed only with the appeal against conviction. On

17 November 1994 the Scottish Legal Aid Board ("S.L.A.B.") made

emergency legal aid cover available to the solicitors of the applicant,

to allow the note of appeal to be drafted and lodged. On

22 November 1994 the applicant's solicitors made a formal application

for legal aid. S.L.A.B required the applicant to obtain a written

opinion from his counsel of the prospects of his appeal being

successful. On 6 December 1994 the applicant's solicitors wrote to

S.L.A.B. stating that they were no longer acting for the applicant and

enclosing Counsel's opinion which concluded:

"Taking the charge a whole and having considered the general and

particular direction given in this case, I do not consider that

there are any grounds upon which an appeal against conviction

could be found."

The applicant subsequently applied to S.L.A.B. for legal aid to

finance his obtaining the transcript of the trial hearing, the cost of

which was estimated at approximately £800.00. On 11 January 1995

S.L.A.B. wrote to the applicant indicating that legal aid could only

be considered for the transcript if the applicant had a lawyer acting

for him and if S.L.A.B. had already granted a legal aid certificate for

the appeal in relation to such legal representation.

Since the applicant's detailed grounds of appeal had not been

lodged by 30 November 1994, the clerk of the High Court wrote to the

applicant on 18 January 1995 stating that the appeal had been deemed

to have been abandoned by the applicant. On 16 February 1995 the

applicant lodged detailed grounds of appeal against his conviction. He

submitted, inter alia, that a jury properly directed could not have

convicted him on the basis of the prosecution evidence and he

challenged the fingerprint evidence used against him.

Subsequently the trial judge prepared and lodged in the High

Court his report on the trial. On 19 April 1995 the applicant's new

lawyers wrote to S.L.A.B. asking for a reply to the application for

legal aid for the applicant's appeal, stating that they required to

know the response of S.L.A.B. by the close of business that day in

order to be able to prepare for the appeal (including obtaining the

transcript of the trial). The solicitors' letter also noted that the

appeal had been fixed for 28 April 1995 and that it was an extremely

complicated appeal.

The appeal was heard in the High Court on 22 June 1995 and the

applicant represented himself. The applicant alleges that he was not

allowed to speak in court or to read out his prepared statement to the

court and that his request to the court for legal aid, to which he

alleged he was entitled pursuant to Article 6 of the European

Convention of Human Rights, was also refused.

The written judgment of the High Court dated 22 June 1995 notes

that the court had the applicant's detailed grounds of appeal before

it together with the transcript of the trial judge's charge to the jury

(to which the applicant's grounds of appeal related) and that the

applicant was content that his appeal be considered on that basis. The

judgment went on to consider seven distinct grounds of appeal but

dismissed the appeal.

On 19 September 1995 S.L.A.B. confirmed that the applicant's

request for "a criminal appeal certificate has been refused as the

Board was not satisfied that the appellant had substantial grounds of

appeal, nor that it was reasonable, in the particular circumstances of

the case, that legal aid should be made available to him".

B. Relevant domestic law and practice

1. Prior to the Criminal Justice (Scotland) Act 1995

("the 1995 Act")

(a) Criminal appeals - Solemn proceedings

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 granted by

statute (section 228 of the Criminal Procedure (Scotland) Act 1975 -

"the 1975 Act"). No leave to appeal is therefore required.

In an appeal, the appellant may ask the court to review an

alleged miscarriage of justice in the proceedings in which he was

convicted (section 228(2) of the 1975 Act). A miscarriage of justice

is not defined by statute but the term includes such matters as

misdirections by the trial judge, wrong decisions on the admissibility

of evidence and breaches of natural justice. The nature of the alleged

miscarriage of justice must be specified in the grounds of appeal which

must be lodged within eight weeks of the date when sentence is imposed

upon the appellant (section 233(1) and (2) of the 1975 Act). 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).

Pursuant to section 236A of the 1975 Act the trial judge must,

as soon as is reasonably practicable after receiving a copy of the

notice of appeal, furnish a report in writing giving the trial judge's

opinion on the case generally and on the grounds contained in the

notice of appeal. 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

is also permitted to lodge other documents in support of the appeal.

It is also open to the judges at that 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 provide copies of the

statement to the judges to read for themselves.

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 court may dismiss the appeal and affirm the verdict of the

trial court. In addition, the trial court verdict can be set aside

either by the appeal court either by quashing the conviction or by

substituting an amended verdict of guilty or by authorising a new

prosecution (section 254 of the 1975 Act).

(b) Legal Aid for Criminal Appeals - Solemn proceedings

Responsibility for the administration of legal aid in Scotland

is vested in the Scottish Legal Aid Board 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 (by a lawyer and by

counsel previously involved in the case) on the question of an appeal.

Where appropriate legal aid is also available to enable a solicitor to

draft and lodge the statutory intimation of intention to appeal and the

notice of appeal setting out the grounds of appeal.

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 Legal Aid Board will take into account,

inter alia, any opinion prepared by counsel as to the appeal's

prospects of success.

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 Legal Aid Board review their decision. This

practice was formalised by the circulation of a Practice Note to this

effect in 1990 following the judgment of the Court in the Granger

application (Eur. Court HR, Granger v. the United Kingdom 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).

2. The 1995 Act - criminal appeals and legal aid for such appeals

The 1995 Act applies only to appeals from convictions handed down

on or after 26 September 1995. That Act 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.

COMPLAINTS

The applicant asserts that he is innocent of the charge of which

he was convicted and complains that his conviction was not proven

according to law as the evidence did not support the charge (Article 6

para. 2 of the Convention), that he was refused facilities in order to

properly prepare his trial (Article 6 para. 3 (b) of the Convention),

that he was refused legal aid for his appeal and that he was not

allowed to defend himself in person at the appeal (Article 6

para. 3 (c) of the Convention) and that fingerprint evidence was

erroneously referred to and relied upon by the High Court on appeal

(Article 6 para. 3 (d) of the Convention). He also complains about his

detention pending trial and that his mail is being interfered with by

the prison authorities.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 June 1995 and registered on

26 October 1995.

On 26 June 1996 the Commission decided to communicate the

applicant's complaints under Article 6 para. 3 (c) concerning the fact

he was refused legal aid for his appeal, to the respondent Government.

The Government's written observations were submitted on

10 September 1996. The applicant replied on 25 November 1996, after

an extension of the time-limit.

THE LAW

1. The applicant complains that he was refused legal aid for his

appeal in breach of Article 6 para. 3 (c) (Art. 6-3-c). He also

complains about the refusal of proper facilities to prepare his appeal,

referring to Article 6 para. 3 (b) (Art. 6-3-b) of the Convention.

Article 6 para. 3 (Art. 6-3) of the Convention provides, so far

as relevant, 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..."

The Commission considers that the applicant's complaint

concerning facilities to prepare his appeal is subsumed by the

complaint concerning the refusal of legal aid.

In the light of the decision of the Eur. Court of Human Rights

in the cases of Boner v. the United Kingdom and Maxwell v. the United

Kingdom (Eur. Court HR, judgments of 28 October 1994, Series A

nos. 300-B and 300-C) the Government make no observations as to

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention. They do, however,

contend that as the system of criminal appeals and criminal legal aid

has now been amended by the Criminal Justice (Scotland) Act 1995, the

application should be struck out on the grounds that there is no

justification for continuing an examination.

The applicant notes that the Criminal Justice (Scotland) Act 1995

did not have retroactive effect and did not therefore affect his

position.

The Commission recalls that, as the applicant underlines, the

amendments to the criminal legal aid system in Scotland do not affect

the facts of the present case. The applicant therefore remains a

"victim" of the alleged violation of the Convention, within the meaning

of Article 25 (Art. 25) of the Convention, such that the Commission

does not consider it appropriate to strike the case out of its list of

cases.

As to substance of the complaint under Article 6 para. 3 (c)

(Art. 6-3-c), the Commission considers that the complaint raises issues

of law and fact under the Convention, the determination of which should

depend on an examination of the merits. The Commission concludes

therefore that this complaint is not manifestly ill-founded, within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds for declaring it inadmissible have been established.

2. The applicant claims that the conviction against him was not

properly proved and that on appeal the judges incorrectly referred to

and relied upon fingerprint evidence. The applicant further complains

that he was not heard at his appeal. He invokes Article 6 para. 2 and

Article 6 para. 3 (c) and (d) (Art. 6-2, 6-3-c, 6-3-d) of the

Convention.

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant

case-law (see eg. No. 458/59, X v. Belgium, Dec. 29.3.60, Yearbook 3,

pp. 222, 236; No. 5258/71, X v. Sweden, Dec. 8.2.73, Collection 43,

pp. 71, 77; No. 7987/77, X v. Austria, Dec. 13.12.79, D.R. 18, pp. 31,

45; No. 19890/92, Ziegler v. Switzerland, Dec. 3.5.93, D.R. 74,

p. 234).

To the extent that the present complaints could give rise to

issues under Article 6 (Art. 6) of the Convention, the Commission notes

that it appears from the written judgment of the High Court that the

High Court had before it the applicant's grounds of appeal, and he

stated that he was content that the appeal should be considered on the

basis of those grounds. The Commission finds no substantiation for the

applicant's claim that he was prevented from addressing the High Court.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant complains about being detained in custody prior to

trial and that since in prison his mail has been interfered with. He

invokes no specific Articles in relation to these complaints.

As to the applicant's pre-trial detention, the Commission notes

that the detention ended on 6 October 1994, when the applicant was

convicted, but that the application was introduced only on

27 June 1995. In this regard, the applicant has therefore failed to

comply with the six months time-limit provided for in Article 26

(Art. 26) of the Convention.

As to the complaint concerning the alleged interference with the

applicant's correspondence, the Commission notes that the applicant has

not submitted any evidence which could confirm his allegations or which

shows that he has raised the matter with the prison governor or any

other authority. This complaint is therefore unsubstantiated.

It follows that this part of the application must be rejected in

accordance with Article 27 (Art. 27) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints concerning the failure to grant legal aid

for an appeal, and

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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FAULKNER v. THE UNITED KINGDOM

FAULKNER v. THE UNITED KINGDOM

LEXI