AS TO THE ADMISSIBILITY OF

                      Application No. 23934/94

                      by Peter MIDDLETON

                      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 1 January 1994 by

Peter MIDDLETON against the United Kingdom and registered on

21 April 1994 under file No. 23934/94;

     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

     12 October 1995;

     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, a British citizen born in 1956, is currently

resident in Newcastle Upon Tyne, England. He is represented before the

Commission by Barry Robson, a solicitor practising in Newcastle Upon

Tyne.

     On 7 December 1992 the applicant was arrested and charged on

indictment with housebreaking with intent to steal from a premises in

Jedburgh, Scotland. The applicant received legal aid from the Scottish

Legal Aid Board ("the S.L.A.B.") and he was represented by a solicitor

for the purposes of preparing his defence prior to the trial and for

representation at his trial.

     By letter dated 5 March 1993 the applicant's solicitor confirmed

that he had received all the police statements in the case. The

applicant submits that he then had two meetings with his solicitor

before the trial each meeting lasting 10 to 15 minutes.

      The trial commenced in Scotland on 15 March 1993 (being the date

initially fixed for the hearing), continued until 17 March 1993 and the

applicant was represented by his solicitor. A significant part of the

Crown evidence was given by police officers. After each day of the

applicant's trial, the Scotsman newspaper reported on the evidence that

had been given in the trial the previous day. At the trial the

applicant's solicitor argued that the newspaper articles were

prejudicial. On 17 March 1993 the trial judge commenced his directions

to the jury as follows:

     "... you are the masters of the facts and it is your function to

     consider the facts of the case as presented to you in the

     evidence and to arrive at a decision based on those facts. Now

     when we are speaking about facts established by the evidence and

     you have to decide the case on the basis of the evidence which

     has been properly placed before you and not on the basis of any

     speculation nor any comment made by mouth or indeed any article

     in any newspaper that you may have read over the last day or so

     and you should not be influenced by any of these factors."

     After the judge's summing up, the jury retired at 10.27 a.m.,

returned at 11.19 a.m. and delivered a unanimous verdict of guilty.

Having heard evidence as to the applicant's previous convictions, many

of which resulted in sentences of imprisonment (ten convictions prior

to 1987, a conviction for attempted burglary in 1987, a conviction in

1990 for handling stolen goods and a further conviction in 1992 for

burglary), the trial judge sentenced the applicant to three years

imprisonment backdated to the date of his arrest on 7 December 1992.

     On 25 March 1993 the applicant's solicitor lodged an intimation

of intention to appeal against conviction to the High Court. On

27 April 1993 the applicant's solicitor lodged a notice of appeal to

the High Court. There were two grounds of appeal contained in the

notice of appeal. In the first place, it was argued that the evidence

against the applicant was circumstantial and insufficient to link him

to the crime alleged in the indictment. Secondly, it was submitted that

the trial judge failed to direct the jury on the concept of "accessory

after the fact" when the applicant's solicitor had raised the concept

in his speech to the jury indicating that the judge would advise the

jury on this matter in due course.

     The legal aid for the applicant's trial covered legal advice in

connection with his appeal but did not cover legal representation at

the appeal hearing. Accordingly, on 31 March 1993 an application was

made to the S.L.A.B. for legal aid to cover the applicant's

representation at the appeal hearing.

     On 28 May 1993 the trial judge lodged his report on the trial in

the High Court pursuant to section 236A of the Criminal Procedure

(Scotland) Act 1975. On 25 June 1993 the applicant's counsel prepared

a written opinion (also covered by the legal aid granted for the

applicant's trial) to the effect that the applicant's appeal had no

prospect of success.

     The applicant submits that his solicitor informed him, during a

consultation on 1 July 1993, that the application for legal aid for the

appeal had been refused.

     By letter dated 15 September 1993 the applicant's solicitor

informed the applicant that counsel's opinion had been forwarded to the

S.L.A.B.. In a letter dated 24 September 1993 to the applicant his

solicitor stated that he was waiting to hear from the S.L.A.B. as to

whether the S.L.A.B. "confirm" that legal aid has been refused. On

1 October 1993 the S.L.A.B. wrote to the applicant directly indicating

that a decision on legal aid "was still pending" and that the S.L.A.B.

awaited counsel's opinion.

     The applicant's appeal was heard on 8 October 1993 and the

applicant presented his appeal in person. His appeal was rejected, the

court finding (in a five page judgment) that the trial judge's view on

the evidence and his direction to the jury were correct. On the date

of the appeal hearing the S.L.A.B. had neither refused nor granted the

applicant further legal aid but the applicant submits that he was under

the impression that legal aid had already been refused.

     The S.L.A.B. notified the applicant, by letter dated

21 October 1993, that his solicitor had lodged counsel's opinion with

the  S.L.A.B. on 15 October 1993. Unaware that the appeal hearing had

already taken place, the S.L.A.B. proceeded to consider the legal aid

application and, by letter dated 3 November 1993, notified the

applicant's legal representatives that the legal aid application had

been refused. The reasons given by the S.L.A.B. for refusing legal aid

were outlined (in a subsequent letter to the applicant dated

25 May 1994) as follows:

     ".... the Board was not satisfied that you had substantial

     grounds for making the appeal, nor was it reasonable, in the

     particular circumstances of the case that legal aid should be

     made available to you. In arriving at this decision, the Board

     noted that your appeal was not supported by counsel"

     The applicant was released from prison on 6 June 1994.

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.

     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

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).

Legal Aid for Criminal Appeals : Responsibility for the administration

of legal aid in Scotland is vested in the Scottish Legal Aid Board

("the 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 S.L.A.B. 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 the

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 Crown

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 under:

1.   Article 6 para. 1 of the Convention that newspaper articles,

published during the trial and describing the evidence presented during

the previous days of the trial, had prejudiced the jury. He also

complains that his solicitor did not adequately raise the issue of

"accessory after the fact" in his speech to the jury.

2.   Article 6 para. 3 (b) of the Convention that he did not have

adequate time to prepare his defence prior to his trial. He submits,

inter alia, that he had only two short pre-trial meetings with his

solicitor and that he received the Crown witness statements only ten

days prior to the trial. Despite this, no adjournment of the

applicant's trial was sought by his solicitor or granted by the trial

court.

3.   Article 6 para. 3 (c) of the Convention that he was refused legal

aid for his appeal and that he was obliged to present his own appeal

though he was incapable of doing so.

4.   Article 6 para. 3 (d) of the Convention that his solicitor did

not call the applicant's wife and co-accused as defence witnesses to

give evidence during the trial and did not interview Crown witnesses

on the applicant's behalf prior to the trial.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 1 January 1994 and was

registered on 21 April 1994.

     On 12 October 1994 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

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

     The Government's observations were received on 12 October 1995

pursuant to unsuccessful settlement negotiations and after one

extension of the time-limit fixed for this purpose. No observations

were received from the applicant within the time allowed. A request by

the applicant's representatives for an extension of time was made more

than two months after the expiry of the time-limit fixed and was,

accordingly, denied.

THE LAW

1.   The applicant complains, in the first place, that his trial was

unfair because the publication of newspaper articles during the trial

meant that the jury was prejudiced against him and because his

solicitor did not adequately raise the issue of "accessory after the

fact" in his speech to the jury. He invokes Article 6 para. 1

(Art. 6-1) of the Convention, which, insofar as relevant, reads as

follows:

     "1.  In the determination ... of any criminal charge against him,

     everyone is entitled to a fair and public hearing within a

     reasonable time by an independent and impartial tribunal

     established by law. ... ."

     As regards the applicant's complaint concerning jury prejudice,

the Commission recalls that, according to the constant case-law of the

Convention organs, the existence of impartiality must be determined

according to a subjective test namely, on the basis of a personal

conviction of a particular judge in a given case - personal

impartiality being assumed until there is proof to the contrary (see,

for example, Eur. Court H.R., Padovani judgment of 26 February 1993,

Series A no. 257-B, p. 20, paras. 25-26).

     In addition, an objective test must be applied. It must be

ascertained whether sufficient guarantees exist to exclude any

legitimate doubt in this respect. Even appearances may be important;

what is at stake is the confidence which the court must inspire in the

accused in criminal proceedings and what is decisive is whether the

applicant's fear as to a lack of impartiality can be regarded as

objectively justifiable (Eur. Court H.R., De Cubber judgment of

26 October 1984, Series A no. 86, p. 14, para. 26 and Padovani

judgment, loc. cit., p. 20, paras. 25 and 27).

     Furthermore, these principles apply equally to each juror as the

sole arbiters of fact (Eur. Court H.R., Holm judgment of

25 November 1993, Series A no. 279-A, p. 14, para. 30 and, mutatis

mutandis, No. 19874/92, Ferrantelli and Santangelo v. Italy, Comm.

Report 2.3.95, unpublished). Moreover, given that juries in the United

Kingdom deliberate in private, give no reasons for their decisions and

that there is, at the very least, a strong inhibition on enquiring

about the nature of juror discussions, it is not possible to adduce

evidence as to the subjective impartiality on the part of one or more

jurors. In such  circumstances, additional importance would therefore

attach to ensuring that the impartiality of the jury is, "by other

means", objectively guaranteed (No. 14191/88, Holm v. Sweden, Comm.

Report 13.10.92, Series A no. 279-A, p. 26, para. 64 and No. 22399/93,

Pullar v. the United Kingdom, Comm. Report 11.1.95, p. 7 para. 39).

     Finally, the Commission recalls that a careful redirection to the

jury can, in certain circumstances, suffice to establish the objective

impartiality of a jury in the United Kingdom (No. 22299/93, Gregory v.

the United Kingdom, Comm. Report 18.10.95).

     In the present case, the Commission finds no evidence of

subjective bias on the part of any juror. As to whether the applicant's

fears of bias on the part of the jurors due to the newspaper coverage

can be said to be objectively justifiable, the Commission recalls that,

in the present case, the trial proceeded over three days and considers

that the trial judge was well placed to evaluate the jurors by his

interaction with them over that period. Having been made aware of the

issue concerning newspaper reports, the trial judge commenced his

directions to the jury by carefully emphasising the necessity to decide

the case on the facts placed before them during the trial and not on

the basis of any speculation or comment made elsewhere including those

in newspapers.

     In addition, the newspaper articles submitted by the applicant

were relatively short and the Commission considers that they simply

recorded, without comment, the evidence that had been presented during

the previous days of the trial by various witnesses including the

applicant.

     In the circumstances, the Commission considers that the

applicant's fears of bias on the part of the juror's are not

objectively justifiable. The Commission concludes that this complaint

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

(Art. 27-2) of the Convention.

     The Commission has considered at paragraph 3. below the

applicant's complaints as to his solicitor's handling during the trial

of the "accessory after the fact" issue.

2.   The applicant further complains that his trial was unfair because

he did not have adequate time to prepare his defence. In particular,

he submits that he only had two pre-trial meetings with his solicitor

each lasting 10 to 15 minutes and that he received the Crown witness

statements ten days before the trial. He also complains that no

adjournment was given by the trial court even in light of these

circumstances. The applicant invokes Article 6 para. 3 (b) (Art. 6-3-b)

of the Convention, which, insofar as is 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;..."

     As regards the applicant's meetings with his solicitor, the

Commission considers that there is no evidence that the applicant was

prevented by the prison or other authorities from arranging any further

meetings with his solicitor.

     As regards the Crown witness statements, there is no evidence as

to whether, and if so when, the Prosecutor Fiscal was requested for a

list of all Crown witnesses. In addition, the applicant was entitled

to take precognition of Crown witnesses (either voluntarily or on oath

in the case of a reluctant witness) and the applicant confirms that

this was not done. In any event, the applicant's solicitor's letter of

5 March 1993 confirms that that solicitor had by then received all of

the police statements (which constituted a significant part of the case

against the applicant). Furthermore, the applicant's solicitor would

have had the opportunity to cross-examine all Crown witnesses during

the trial and address the jury as to their evidence.

     As to the failure by the trial court to adjourn the trial, there

is no evidence that any application for an adjournment was made to the

court.

     In the above circumstances, the Commission concludes that this

complaint is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

     Insofar as the matters raised by the applicant in this context

give rise to complaints against his solicitor in relation to the

preparation for and conduct of his trial, the Commission has considered

this matter at paragraph 3. below.

3.   In the context of some of the applicant's complaints, the

applicant complains about his solicitor's preparation for and conduct

of his trial. In particular, the applicant complains, inter alia, that

his solicitor did not adequately raise the issue of "accessory after

the fact" in his speech to the jury, did not apply for an adjournment

of the trial, did not call the applicant's wife and co-accused as

defence witnesses to give evidence during the trial and did not

interview Crown witnesses prior to the trial.

     The Commission recalls that, as regards complaints about lawyers

for whom the applicant has received legal aid, the responsibility of

the State can only be engaged in relation to that lawyer's actions to

the extent that the applicant is not provided with effective assistance

by that lawyer (Eur. Court H.R., Artico judgment of 13 May 1980, Series

A no. 37, p. 16, para. 33).

     Having considered the matters raised by the application relating

to the applicant's solicitor's preparation and conduct of his trial,

the Commission does not consider that the applicant has demonstrated

that his solicitor failed (as a result of, for example, his solicitor's

absence or mistake) to exercise the defence rights prior to or during

the trial. The Commission further considers that the fact that the

applicant's solicitor may have resolved not to take certain available

steps does not constitute less than "effective assistance" within the

meaning of the afore-mentioned Artico judgment and does not, therefore,

engage the responsibility of the State.

     Accordingly, the Commission concludes that this complaint is

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

(Art. 27-2) of the Convention.

4.   Finally, the applicant complains that his appeal hearing was

unfair because he was refused legal aid for his appeal and that he was

obliged to present his own appeal though he was incapable of doing so.

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 apply

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).

     The Government also point out that the applicant had not, as a

matter of fact, been refused legal aid at the time of his appeal but

accept that, if the opinion prepared by the applicant's counsel had

been submitted to the S.L.A.B. prior to the appeal hearing, it is

likely that the decision of the S.L.A.B. would have been the same as

that eventually given. From the correspondence submitted by the

applicant, it is apparent that the information which the applicant

received from his solicitor and from the S.L.A.B., in relation to the

status of the application for legal aid for the appeal, was

inconsistent. As a result the applicant represented himself at the

appeal hearing because, according to the applicant, he was under the

impression that legal aid for his appeal had already been refused.

     The Commission does not consider that the fact that the applicant

conducted his own appeal at a time when the decision on legal aid had

not yet been given can affect the applicant's ability to claim to be

a victim of a violation of the Convention. The Commission considers,

and it is not disputed by the Government, that had the decision of the

S.L.A.B. been given before any appeal hearing took place, the decision

of the S.L.A.B. was not likely to have been any different. Accordingly,

the applicant would have had to represent himself at his appeal in any

event and, in such circumstances, the Commission considers that the

applicant can claim to be a victim of a violation of Article 6 para.

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

     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

(particularly as he found himself in a different legal system to that

applicable where he resided at the relevant time) and thereby led to

his appeal hearing being unfair. The Government have 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.

     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)