AS TO THE ADMISSIBILITY OF

                      Application No. 22112/93

                      by John WOTHERSPOON

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 8 February 1993

by John WOTHERSPOON against the United Kingdom and registered on

23 June 1993 under file No. 22112/93;

     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

     13 October 1995 and the observations in reply submitted by the

     applicant on 14 February 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The facts of the case, as submitted by the parties, may be

summarised as follows.

Particular circumstances of the case

     The applicant is a British citizen born in 1964 and is currently

serving a sentence of imprisonment in HM Prison Shotts. The applicant

is represented before the Commission by Mr. Thompson, a solicitor

practising in Dunfermline.

     The applicant was charged on indictment with murder and received

legal aid from the Scottish Legal Aid Board ("S.L.A.B.") for the

preparation of his defence and for his representation at trial. The

trial took place on 17-19 December 1990 and the applicant was

represented by a solicitor and by counsel. On 19 December 1990 the jury

found the applicant guilty, by a majority decision, and the trial judge

sentenced the applicant to life imprisonment.

     On 31 December 1990 the applicant's then solicitors lodged an

intimation of intention to appeal in the High Court. On

9 September 1991 the applicant himself lodged the notice of appeal. The

grounds of appeal contained in that notice claimed that the evidence

given by the only Crown eye witness (who was fifteen years old at the

time of the incident for which the applicant was convicted) was

incorrect (alleging that it was not possible that the witness had seen

what he said he had), that there was insufficient corroboration of

prosecution evidence, that certain other evidence attempted to confirm

an impossibility in relation to a bloodstain and that the applicant had

never been in possession of witness statements made to the police or

of precognitions. In those grounds the applicant also challenged the

pathologist's evidence given at trial and indicated an intention to

introduce certain video evidence.

     In or around April 1991 the applicant changed solicitors. The

legal aid granted to the applicant at trial covered the legal advice

to the applicant in connection with his appeal but not his

representation at the appeal hearing and therefore the applicant

submitted an application for further legal aid on 4 October 1991.

     On 12 and 13 December 1991 both senior and junior counsel for the

applicant gave written opinions that there were no grounds for appeal

but left open the possibility that certain video evidence might provide

such grounds. On 20 December 1991 the S.L.A.B. refused to grant legal

aid on the ground that it did not consider that the applicant had

substantial grounds for making the appeal or that it was reasonable in

the circumstances that legal aid be made available. It was noted that

senior and junior counsel's opinions had been considered.

     When the applicant appeared in the High Court on

20 December 1991, he obtained an adjournment in order to apply for a

review of the refusal of legal aid. The applicant's solicitor did not

subsequently request the S.L.A.B. to review its decision because senior

counsel had further advised that the video evidence was of no use to

the applicant's case - rather it strengthened the version of events

given by the Crown eye witness whose evidence the applicant wished to

challenge.

     The applicant, however, obtained another adjournment on

19 March 1992 to allow him have his solicitors (who had been instructed

by the applicant since March 1992) to obtain certain witness

statements. On 27 March 1992 the applicant's solicitors obtained an

acceptance from the legal advice and assistance scheme which allowed

an initial expenditure of £80 and subsequently obtained an extension

in the sum of £300. This was to be enable the applicant's solicitors

to establish whether fresh evidence was available.

     A letter dated 12 June 1992 from private investigators to the

applicant's solicitors enclosed a statement of the applicant's aunt

indicating, inter alia, that she had met the mother of the Crown eye

witness and that the mother had said on two occasions to the

applicant's aunt that her son had not seen anything. The private

investigator's letter also recalled their unsuccessful attempts to

locate the Crown eye witness.

     On the 2 August 1992 the applicant's solicitors requested the

Prosecutor Fiscal's office for a copy of the Crown's eye witness

statement and stated that they were advised that the matter had been

raised at the last appeal hearing and that the hearing had been

adjourned for that purpose. The Prosecutor Fiscal responded that it was

not appropriate to furnish a copy of that statement. Those solicitors

subsequently confirmed that no useful evidence was found as a result

of all of their enquiries.

     On 24 September 1992, the High Court refused a further

adjournment and proceeded to hear the applicant's appeal which he

presented in person. The applicant also presented to the High Court a

written statement outlining the basis on which he felt a miscarriage

of justice had occurred and challenging, in particular, the veracity

of the evidence of the Crown eye witness.

     In its judgment dated 24 September 1992, the High Court having

heard the applicant and dealt with, inter alia, the grounds of appeal

in the notice of appeal, concluded that the applicant had failed to

demonstrate that there had been any miscarriage of justice in his case

and dismissed his appeal. As regards the Crown eye witness, the High

Court noted that that witness had been cross-examined carefully and at

length, that photographs of the locus were before the jury and that the

speech of the applicant's counsel to the jury was largely an attempt

to persuade the jury that that eye witness' evidence was not reliable.

It was noted that it was for the jury to assess that witness' evidence

and that it must be assumed that they accepted that evidence.

     On 27 September 1992, the applicant was accused by a prison

officer of smuggling contraband out of the prison during a prison visit

with the applicant's brother and friend. The following day the

applicant appeared before the prison Governor who considered that the

applicant had been in breach of prison regulations. The applicant was

placed on closed visits and a weeks prison pay was forfeited. The

closed visits continued for the following four and a half months.

     On 1 December 1992 the applicant petitioned the nobil officium

of the High Court in relation to his conviction but by letter dated 10

December 1992 the applicant was informed that his appeal had been

refused.

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 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.

     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 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 copy 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). The nobil officium of the High Court constitutes

the ultimate residual power of the High Court to bring proceedings

under review.

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, 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

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

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 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, that court can adjourn the hearing and

recommend that the 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 Court in the Granger application (Eur.

Court H. R., 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 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.

Access to Crown statements and precognition of Crown witnesses : While

there is no obligation on the Crown to provide a list of prosecution

witnesses to the defence, as a matter of practice the Prosecutor Fiscal

provides a list of Crown witnesses on request on the basis that the

defence will reciprocate by providing a list of their witnesses. Also

as a matter of practice, defence solicitors can have a discussion with

the Prosecutor Fiscal as to the nature of the Crown evidence in order

that the defence may arrange, for example, the precognitions they find

necessary or consider an appropriate plea. There is no entitlement to

obtain copies of the Crown witness statements.

     The defence may request precognition of Crown witnesses (ie. the

witnesses may be requested to submit to questioning by the defence

prior to the trial). There is no obligation on the Crown witness to

give precognition although there is some authority for the view that

it is part of that person's civic duty to do so. If a witness is

reluctant, the defence can apply for precognition on oath. While there

is some authority for the view that precognition on oath should only

be allowed in exceptional circumstances, it has been held that the

object of the statutory provision is to place the defence on equal

terms with the Crown in the preparation of the case (Brady v. Lochart

1985 SCCR 349).

COMPLAINTS

     The applicant complains that his trial was unfair because he has

been denied access to the original witness statements and to

precognition of two Crown witnesses (an eye witness and a policeman)

contrary to Article 6 para. 3 (b) and (d) of the Convention.

     The applicant also complains that his appeal hearing was unfair

due to the refusal of legal aid for his appeal and that he was obliged

to present his own appeal though incapable of doing so and he invokes

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

     The applicant further complains of being penalised on the basis

of an unfounded accusation of smuggling materials out of prison. He

invokes Article 3, 7 and 8 of the Convention in this regard.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 8 February 1993 and was

registered on 23 June 1993.

     On 1 December 1993 the Commission decided to communicate the

application to the respondent Government and to request them to submit

observations on the admissibility and merits of the applicant's

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

     On 8 March 1994 the Commission decided to adjourn consideration

of the admissibility of the application pending the outcome of similar

cases before the Court.

     Once those judgments were delivered the Government's observations

were received on 13 October 1995. The applicant's observations were

received on 14 February 1996.

THE LAW

1.   The applicant complains that he was denied access to the original

witness statements and precognition of two Crown witnesses (the only

eye witness and a policeman) contrary to Article 6 para. 3 (b) and (d)

(Art. 6-3-b, 6-3-d) of the Convention and in this respect he submits

that if he knew what the eye witness was going to say he could have had

expert evidence to contradict that evidence ready for the trial. He

also submits that if he had been granted legal aid for his appeal he

could have pursued this point more profitably on appeal by obtaining

relevant witness evidence prior to his appeal.

     Article 6 (Art. 6) of the Convention, insofar as relevant, reads

as follows:

     "3.  Everyone charged with a criminal offence has the following

     minimum rights: ...

           b.  to have adequate time and facilities for the

           preparation of his defence; ...

           d.  to examine or have examined witnesses against him and

           to obtain the attendance and examination of witnesses on

           his behalf under the same conditions as witnesses against

           him; ..."

     As regards his submission about a denial of access to witness

statements or to precognition of those witnesses, the Commission finds

that the applicant has submitted no evidence to demonstrate that, prior

to or during his trial (during which time the applicant was legally

represented), any application was made for a list of the names of

prosecution witnesses, that any request was made for an indication from

the Prosector Fiscal as to the nature of the Crown evidence or that any

such information, if requested, was refused. In addition, there is no

evidence that the applicant attempted to take precognition of any Crown

witness prior to his trial as he was entitled to do or to take

precognition on oath for which he could have applied in the case of a

reluctant witness.

     Furthermore and as noted by the High Court on appeal, the Crown

eye witness was cross examined at length and in detail by counsel for

the applicant at the trial and the applicant's counsel's speech to the

jury at the end of the trial concentrated on the credibility of this

witness' evidence. The applicant would have had the same possibilities

in relation to the police witness. Furthermore, the applicant's

representatives, in their submissions to the Commission, accept that

precognition, either voluntarily or on oath if the witness was

reluctant, was an option open to the applicant prior to the trial and

that the Crown eye witness' statement to the police would not

necessarily have been of any great evidential value in view of that

witness' cross examination at trial.

     Finally, the Commission does not find any evidence to demonstrate

that the lawyers, for whom the applicant received legal aid, did not

provide effective assistance within the meaning of the Artico judgment

(Eur. Court H.R., Artico judgment of 13 May 1980, Series A no. 37, p.

18, para. 36).

     In such circumstances, the Commission considers this complaint

manifestly ill-founded pursuant to Article 27 para. 2 (Art. 27-2) of

the Convention.

     The Commission considers that the applicant's submission, as to

the refusal of legal aid for his appeal, which is made in the context

of this complaint under Article 6 para. 3 (b) and (d)

(Art. 6-3-b, 6-3-d), is a matter which should be considered below

within the context of the applicant's complaint under Article 6 para.

3 (c) (Art. 6-3-c) of the Convention.

2.   The applicant also complains that his appeal hearing was unfair

due to the refusal of legal aid for his appeal and he invokes Article

6 para. 3 (c) (Art. 6-3-c) of the Convention which, insofar as

relevant, 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 it is no longer justified to continue

the examination of this complaint given the changes made by the 1995

Act to the criminal appeals and criminal legal aid systems in Scotland.

However, the Commission notes that the provisions of the 1995 Act

relate to appeals from convictions handed down on or after

26 September 1995 and clearly do not benefit the applicant in any way

as regards his complaint under Article 6 para. 3 (c) (Art. 6-3-c) of

the Convention, his legal aid application and appeal having been

determined pursuant to the 1975 Act (mutatis mutandis, Eur. Court H.R.,

Axen judgment of 8 December 1983, Series A no. 72, p. 11, para. 24).

     As regards the substance of the complaint under Article 6 para.

3 (c) (Art. 6-3-c) of the Convention, the applicant submits that the

refusal of legal aid prevented the proper presentation of his appeal

and thereby led to his appeal hearing being unfair. The Government has

no observations on the substance of this complaint in light of the

Court judgments in the Boner and Maxwell cases (Eur. Court H.R., Boner

and Maxwell judgments of 28 October 1994, Series A nos. 300-B and

300-C).

     The Commission considers that this complaint of the applicant

raises issues of fact and law which are of such complexity that their

determination should depend on an examination of the merits. This

complaint 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.

3.   The applicant further complains of being penalised on the basis

of an unfounded accusation of smuggling materials out of prison during

a prison visit. He invokes Articles 3, 7 and 8 (Art. 3, 7, 8) of the

Convention in this regard.

     As to whether the applicant has exhausted domestic remedies as

required by Article 26 (Art. 26) of the Convention, the Commission

recalls that if there exists a mere doubt as to the chances of success

or as to the effectiveness of a domestic remedy, Article 26 of the

Convention requires that that remedy must be tried (No. 13669/88, Dec.

7.3.90, D.R. 65, p. 245 and No. 10148/82, Dec. 14.3.85, D.R. 42, p.

98). In addition, the Commission recalls that exhausting the applicable

complaints procedures involving, inter alia, the Home Office, in

relation to a complaint about the imposition of solitary confinement

on a prisoner, constitutes compliance with the requirements of Article

26 (Art. 26) of the Convention (No. 7630/76, Dec. 6.12.79, D.R. 19, p.

113).

     The Commission recalls that the applicant did not pursue the

matter (either the finding of guilt or his punishment) further with the

prison authorities or with the Home Office. The Commission also notes

that the applicant claims that the prison video recordings of the

relevant visit would support his case because those recordings confirm

that the applicant did not smuggle anything to his visitors during the

visit. In addition, the applicant accepts that he would have been

entitled to petition the Secretary of State in relation to the closed

visits but that he decided against doing so since other prisoners have

similarly petitioned but to no avail. Furthermore the Commission

considers that there exist no reasons in the present case for the

applicant to be absolved from exhausting any such remedies.

     In the circumstances, the Commission considers that the applicant

has not exhausted domestic remedies as required by Article 26 (Art. 26)

of the Convention and the complaint must be declared inadmissible

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE without prejudging the merits the applicant's

     complaint about the refusal of legal aid for his appeal;

     DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber         President of the First Chamber

     (M. F. BUQUICCHIO)                       (C. L. ROZAKIS)