Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28891/95

by John McATEER

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 November 1994

by John McATEER against the United Kingdom and registered on 6 October

1995 under file No. 28891/95;

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

17 February 1997 and the observations in reply submitted by the

applicant on 9 April 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1965 and is currently

serving a sentence of imprisonment in Dungavel prison, Scotland. he

is represented before the Commission by Mr. Derick Williamson, a

solicitor practising in Glasgow.

The facts as submitted by the parties may be summarised as

follows.

Particular circumstances of the case

On 14 July 1994 the applicant was convicted by the High Court in

Scotland of the offence of attempted extortion and of a contravention

of the Bail Etc. (Scotland) Act 1980, the matters to which the first

conviction referred having taken place while the applicant was on bail.

The applicant was sentenced to two consecutive periods of imprisonment

of six years and three months. He was legally aided and represented at

the hearing.

The applicant appealed against conviction and sentence for

attempted extortion, arguing that there was insufficient corroborated

evidence to support his conviction and that his sentence was excessive.

The applicant applied to the Scottish Legal Aid Board

("S.L.A.B.") for legal aid for his appeal, submitting with his

application a note from his counsel. The note from counsel stated that

the appeal against conviction, which alleged that there was

insufficient corroboration, was an appeal which had "merit". The note

further stated that counsel considered six years imprisonment to be

excessive, and that the appeal against sentence had good prospects of

success. However no reasons were given to substantiate these views.

By a letter dated 26 October 1994, S.L.A.B. informed the applicant's

solicitors that legal aid had been refused on the basis that there were

no substantial grounds for the appeal and that it was not reasonable,

in the particular circumstances of the case, that legal aid should be

made available. The applicant requested S.L.A.B. to reconsider its

decision. His solicitors were notified, by letter dated 20 January

1995, that the application for legal aid had been reconsidered, but

that the decision remained the same.

On 18 January 1995, prior to the refusal of S.L.A.B. to alter

their decision to refuse legal aid, there had been an appeal hearing

before the High Court of Justiciary sitting as a Court of Appeal ("the

High Court"). The applicant had no legal aid and claims that he was not

represented at all during his appeal. However it appears from the

documents and is submitted by the Government that the applicant was

indeed represented by counsel on 18 January 1995. At this hearing an

application was made to the Court to allow the applicant to lodge

additional grounds of appeal. These additional grounds concerned an

alleged misdirection of the jury regarding the combination of charges

for which the applicant could be found guilty, a failure to warn the

jury to treat with caution the evidence of a witness who had a poor

command of English and a misdirection of the jury concerning the

requirement of majority verdict for an acquittal. The High Court

allowed the applicant to lodge these additional grounds and the appeal

hearing was continued over to a future date for further submissions and

a further report from the trial judge. The applicant's solicitors

wrote to S.L.A.B. informing them that the appeal hearing on 18 January

had been continued and asking them to reconsider the application for

legal aid for the continued appeal. S.L.A.B replied on 24 February

1995 seeking further information about why the appeal had been

continued. The applicant's solicitors supplied this information on

11 May 1995, enclosing the additional grounds of appeal and the trial

judge's report. On 15 May 1995 S.L.A.B. reconsidered their decision and

granted the applicant legal aid.

However prior to the granting of legal aid, the continued appeal

had been heard on 9 May 1995 by the High Court. The applicant

represented himself at this hearing. The High Court rejected the

applicant's initial ground of appeal relating to the sufficiency of

corroboration and also rejected the additional grounds raised at the

previous hearing. Finally, the High Court rejected the applicant's

appeal against sentence, stating that the sentence imposed was

reasonable in light of the applicant's "formidable" list of previous

convictions.

Relevant domestic law and practice

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 proceeding 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, provide a report in writing giving his 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

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 copy the same 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 quashing the conviction, substituting an

amended verdict of guilty or by authorising a new prosecution

(section 254 of the 1975 Act).

Legal Aid for Criminal Appeals

Responsibility for the administration of legal aid in Scotland

is vested in the Scottish Legal Aid Board ("S.L.A.B.") which is an

independent body whose members are appointed by the Secretary of State.

Legal aid, which has been available for the trial normally extends 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 prepare and lodge

the statutory intimation of intention to appeal and for the drafting

and lodging of the notice of appeal setting out the grounds of appeal.

To extend legal aid beyond this point a further application to

S.L.A.B. is required. This application will be granted on the

fulfilling of 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 S.L.A.B will take into

account, inter alia, any opinion completed 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, then the court can adjourn the hearing and

recommend that S.L.A.B. review their decision. This practice was

formalised by the circulation of a Practice Note to this effect in 1990

following the judgment of the English Court of Human Rights in the

Granger application (Eur. Court HR, Granger 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).

The Criminal Justice (Scotland) Act 1995 ("the 1995 Act")

The 1995 Act, which applies to appeals from convictions handed

down on or after 26 September 1995, 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 the 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.

COMPLAINT

The applicant complains under Article 6 para. 3(c) of the

Convention that he was refused legal aid for his appeal. The applicant

was obliged to represent himself and he states that he was unable to

engage in legal argument or properly present his appeal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 November 1994 and registered

on 6 October 1995.

On 16 October 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

17 February 1997, after an extension of the time-limit fixed for that

purpose. The applicant replied on 9 April 1997.

THE LAW

The applicant complains that his appeal hearing was unfair

because due to a refusal of legal aid for his appeal he was obliged to

appear unrepresented and he was unable to engage in legal argument or

properly present his appeal. He invokes Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention, which reads 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 Government argue that in respect of the appeal hearing of

18 January 1995, although the applicant was refused legal aid, he was

in fact represented by counsel and thus there was no breach of his

rights under Article 6 (3)(c) (Art. 6-3-c) in respect of that hearing.

With regard to the continued appeal hearing on 9 May 1995 the

Government state that the applicant's solicitors failed to provide

S.L.A.B. with requested information or inform them of the date of the

hearing until 11 May 1995. The Government state that had S.L.A.B. been

informed of the date for the continued hearing and been provided with

the additional information, it is probable that legal aid would have

ben granted for the hearing (S.L.A.B. did grant legal aid to the

applicant on 15 May 1995, after the continued appeal hearing had taken

place). The Government submit that the applicant did not obtain legal

aid for the continued appeal due to the failure of the applicant's

solicitors to provide S.L.A.B. with certain information or inform them

promptly of the date of the hearing. The Government thus consider that

the fault lies with the applicant's solicitors and that the

Government's responsibility is not engaged.

The Government also submit that, as the system of legal aid for

criminal appeals in Scotland as been changed pursuant to the decisions

of the European Court of Human Rights in the Boner and Maxwell cases,

that no useful purpose would be served by the continuation of this

application, which should accordingly be struck out of the list.

The Commission recalls that pursuant to Article 30 (Art. 30) of

the Convention it may strike a petition out of its list of cases where

the matter has been resolved, or where it is no longer justified to

continue the examination of the merits. In the present case the

criminal proceedings concerning the applicant ended prior to the new

legislation and legal aid scheme coming into force, and the new scheme

has not assisted the applicant in any way. Accordingly the matter has

not been resolved and the Commission finds no other reason which would

justify striking the petition out of the list of cases.

The Commission considers that the application raises issues of

fact and law which are of such complexity that their determination

should depend on an examination of the merits. The application cannot

therefore be regarded as being manifestly ill-founded within the

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

ground for declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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McATEER v. THE UNITED KINGDOM

McATEER v. THE UNITED KINGDOM

LEXI