AS TO THE ADMISSIBILITY OF

                      Application No. 25523/94

                      by George MURDOCH

                      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.S. GÖZÜBÜYÜK

                 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 21 October 1993 by

George MURDOCH against the United Kingdom and registered on

3 November 1994 under file No. 25523/94;

      Having regard to:

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

Commission;

-     the Commission's decision of 6 September 1995 to communicate the

      application;

-     the observations submitted by the respondent Government on

      20 November 1995 and the observations of the applicant in reply

      submitted on 19 January 1996;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a citizen of the United Kingdom, born in 1951 in

Scotland. He is a student and is currently residing in Kirriemuir in

Scotland. In the proceedings before the Commission the applicant is

represented by Mr. J. Justice, a solicitor practising in Kirriemuir.

      The facts of the case, as they have been submitted by the parties,

may be summarised as follows:

A.    Particular circumstances of the case

      On 10 August 1991 the applicant was arrested in connection with

drug-related offences.

      On 28 September 1992 the applicant appeared before the High Court

of Justiciary in Perth to be tried on four charges relating to the

possession and supply of a controlled drug, namely cannabis resin, under

the Misuse of Drugs Act 1971. He was represented by Senior and Junior

Counsel, having been granted legal aid from the Scottish Legal Aid Board.

In the course of the trial, which lasted until 2 October 1992, the court

heard, among others, two police officers who from behind some bushes had

observed the applicant visit a clearing in a wood where cannabis had been

buried.

      In a judgment pronounced on 2 October 1992, the court found the

applicant guilty of having been involved in the supply of cannabis,

contrary to section 4 par. 3 (b) of the Misuse of Drugs Act 1971, and not

guilty of two other charges. The court considered the fourth charge not

proven. It sentenced the applicant to two years imprisonment.

      On 8 October 1992 the applicant gave to the High Court of Justiciary

notice of his intention to appeal against his conviction and sentence.

On 16 October 1992, however, the applicant abandoned his appeal against

sentence.

      On 28 October 1992 the applicant lodged with the High Court the note

of his appeal against conviction on the grounds, first, that the trial

judge had misdirected the jury on the law of corroboration and, secondly,

that before giving evidence one of the prosecution witnesses, police

officer F, had discussed his testimony with H, a private investigator

acting for the applicant who had been cited as a witness for the defence.

On 30 October 1992 the applicant was conditionally released pending the

outcome of his appeal.

      On 6 November 1992 the applicant applied to the Legal Aid Board for

a further grant of legal aid to cover legal representation for his

appeal. On 3 December 1992 the solicitors who had until then been

representing the applicant informed the Legal Aid Board that they could

no longer act for him, because of a conflict of interest. On

8 December the Legal Aid Board was informed that another firm of

solicitors had taken up the applicant's case.

      On 22 February 1993 the applicant's new solicitors advised him not

to instruct new counsel for his appeal because his was "the type of case

in which it (was) virtually impossible to fully comprehend the whole

evidence and the various nuances arising from it without having been

involved throughout." They also requested a written opinion from one of

the two counsel who had represented the applicant before the first

instance court on the prospects of success of the applicant's appeal. A

hearing fixed for 4 March 1993 before the High Court of Justiciary was

adjourned at the applicant's request.

      In an opinion delivered on 14 April 1993, the applicant's counsel

considered that the applicant's appeal did not have any prospects of

success. By letter dated 15 April 1993, the applicant's solicitors

informed him that, given the negative opinion delivered by counsel, it

was inevitable that legal aid would be refused. Considering, moreover,

that, even if he were to find private funding, it would be impossible for

the applicant to persuade another lawyer to argue his case, they advised

him either to abandon the appeal or to represent himself. The applicant

claims to have received this letter on 19 April 1993.

      On 18 April 1993 the applicant applied for a second adjournment. On

23 April 1993 he was informed that his request would be examined by the

court in the course of the hearing of 30 April 1993. On the same day the

Legal Aid Board refused the applicant's application for legal aid and

orally informed the applicant's solicitors.

      On 26 April 1993 the applicant wrote to the police asking them to

provide him with a copy of a video recording which contained an interview

taken by a police officer from a person immediately after the applicant's

arrest, in which the police officer in question allegedly affirmed that

2 1/2 kilos of cannabis had been discovered in the course of the

operation which led to the applicant's arrest. On the same date the

applicant also contacted the Royal Scottish Forestry Society with a view

to finding an expert on woods.

      On 27 April 1993 the applicant's solicitors informed him of the

decision of the Legal Aid Board. By letter of 28 April 1993 the Legal Aid

Board formally informed the applicant's solicitors that his application

for legal aid had been refused, because "the Board was not satisfied that

the applicant 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."

      On 30 April 1993 the High Court of Justiciary held a hearing on the

applicant's appeal. The applicant, who represented himself, informed the

court that he did not pursue his first ground of appeal that there was

a misdirection on the law of corroboration. He also applied for an

adjournment, so as to be able to prepare the remaining ground of appeal,

and for the court's permission to lodge three additional grounds. The

applicant wished to argue the following: first, due to certain changes

made by the jury in the charge of which he had been convicted, the

quality, character and strength of the evidence as a whole was

insufficient and his conviction had been, as a result, perverse and

unreasonable; secondly, in his summing-up to the jury the trial judge had

not given fair weight to the special defence of incrimination the

applicant had lodged; thirdly, his counsel had erred in not informing the

trial judge about the conversation between F and H.

      Considering that the applicant had had ample time to obtain the

information he needed to prepare his appeal, the court rejected his

request for an adjournment. It also considered that the additional

grounds of appeal were plainly without substance. The principal evidence

on which the prosecution had relied related to the part of the charge of

which the applicant had been found guilty. The judge had reminded the

jury of the applicant's special defence of incrimination and explained

their significance. As regards the third additional ground, the court

considered that, if there was a miscarriage of justice, this would lie

in the fact that the conversation had taken place and in the effect of

that conversation on the evidence. This ground, however, already existed

in the applicant's note of appeal.

      The court further held that, even assuming that the applicant's

version of facts regarding the conversation between F and H had been

true, the conversation could not have had any material effect on the

decision of the jury to convict the applicant. The incident had not

influenced the defence in their decision not to use the evidence

discussed between F and H. This consisted of a video recording of the

undergrowth by the clearing in the wood where the cannabis had been

found, which had been made by H one year after the applicant's arrest.

The applicant's lawyers had considered that showing the video to the jury

might be prejudicial to the applicant's defence. There was no indication

that F's evidence had been tainted by what had occurred. Furthermore, the

point that the applicant wished to establish on the basis of the video,

namely that by reason of the undergrowth the police officers could not

have a proper view of the clearing, would not undermine the prosecution's

case. Finally, the court considered that the applicant should not be

given permission to call expert evidence which the defence had had the

opportunity to call at the trial hearing, but chose not to.

      In the light of all the above, the court considered that there had

been no miscarriage of justice. It rejected the applicant's appeal.

      On 28 May 1993 the applicant wrote to the Lord Advocate to complain

about the manner in which his defence had been conducted before the first

instance court.

      On 3 June 1993 the Procurator Fiscal's Office informed the applicant

that the video recording he had requested on 26 April 1993 did not form

part of the evidence against him and, as a result, he could not have

access to it. In any event, the tape probably had been destroyed.

      On 1 July 1993 the applicant was advised by the Crown Office that

he should raise his complaints regarding the conduct of his counsel and

solicitors with the Dean of the Faculty of Advocates and the Secretary

of the Law Society of Scotland.

B.    Relevant domestic law and practice

(i)   Prior to the Criminal Justice (Scotland) Act 1995 ("the 1995 Act")

      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 - 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 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 Legal Aid Board 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

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 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).

(ii)  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.

COMPLAINTS

      The applicant complains that he was not granted legal aid and, as

a result, he had to defend himself before the court of appeal.

      The applicant further complains that, as a result of the decision

of the appeal court to refuse his request for an adjournment of the

hearing of 30 April 1993, he did not have adequate time for the

preparation of his defence.

      The applicant also complains that the police had fabricated the

evidence against him. He relies, in this connection, on a series of

phrases which, although being rather uncommon, invariably figured in all

the statements and testimony of certain prosecution witnesses. He submits

that this constitutes proof of the existence of a "master statement" used

by the police. The applicant further submits that the prosecution did not

call three witnesses whom it had originally cited and who could have

established that the police had fabricated the evidence against him.

Moreover, the Procurator Fiscal refused to allow him access to a video-

recording on the basis of which he could establish certain discrepancies

between the evidence given by the police in court and the allegations

they had made against him immediately after his arrest. The applicant

claims that the video in question contained an interview taken by a

police officer from a person immediately after the applicant's arrest,

in which the police officer in question affirms that 2 1/2 kilos of

cannabis had been discovered in the course of the operation which led to

the applicant's arrest, whereas the applicant was only charged with

supplying 1 1/4 kilos.

      Finally, the applicant complains that his legal representatives and

the private investigator acted against his interests.

      The applicant invokes, in general, Article 6 paras. 1 and 3 (b), (c)

and (d) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 21 October 1993 and was registered

on 3 November 1994.

      On 6 September 1995 the Commission decided to communicate the

application to the respondent Government and to request them to submit

observations on admissibility and merits.

      The Government's observations were received on 20 November 1995. The

applicant's observations were received on 19 January 1996.

THE LAW

1.    The applicant complains that he was not granted legal aid for his

appeal.

      The Government request the Commission to strike the application out

of its list of cases, insofar as it relates to the particular complaint.

They argue that it is no longer justified for the Commission 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,

pursuant to the judgments of the European Court of Human Rights in

Maxwell and Boner (Eur. Court H.R., Maxwell judgment of 28 October 1994

and Boner judgment of the same date, Series A no. 300). The applicant

considers that the examination of his complaint should continue, in order

for him to receive sufficient financial compensation.

      The Commission notes that the provisions of the 1995 Act apply to

appeals from convictions handed down on or after 26 September 1995. They

cannot benefit the applicant in any way as regards his complaint under

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, since his

conviction was handed down on 2 October 1992 and his legal aid

application and appeal were determined pursuant to the 1975 Act. In

addition, the applicant has raised a claim for just satisfaction and

continuing the examination of his complaint may be of relevance in this

connection (see, mutatis mutandis, Eur. Court H.R., Guzzardi judgment of

6 November 1980, Series A no. 39, p. 31, para. 85; Silver judgment of

23 March 1983, Series A no. 61, pp. 31-32, para. 81; Axen judgment of

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

      In the light of the above, the Commission considers that it cannot

accede to the Government's request to strike the application out of its

list of cases, insofar as it relates to this particular complaint.

2.    The Commission further considers that the applicant's complaint

concerning the refusal of the authorities to grant him legal aid for his

appeal should be examined under Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention which provides the following:

      "Everyone charged with a criminal offence has the following minimum

      rights:

      ...

           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 submit that, in the light of the Maxwell and Boner

judgments of the Court, they have no observations to make. The applicant

submits that this amounts to acknowledging that his rights have been

violated.

      In the light of the parties' observations, the Commission considers

that this part of the application raises serious questions of fact and

law which are of such complexity that their determination should depend

on an examination of the merits. It cannot, therefore, be regarded as

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

(Art. 27-2) of the Convention, and no other ground for declaring it

inadmissible has been established.

3.    The applicant complains of the decision of the appeal court to

refuse his request for an adjournment of the hearing of 30 April 1993.

      The Commission considers that the complaint should be examined under

Article 6 para. 3 (b) (Art. 6-3-b) of the Convention which provides the

following:

      "Everyone charged with a criminal offence has the following minimum

      rights:

      ...

      to have adequate time and facilities for the preparation of his

      defence;

      ..."

      The Government submit that the applicant had adequate time for the

preparation of his appeal. His note of appeal was lodged on

28 October 1992. A first adjournment was ordered on 4 March 1993. The

applicant's solicitors delayed asking for counsel's advice on the

prospects of the applicant's appeal. The applicant was informed that

legal aid would be refused on 19 April 1993. The applicant, who took an

active part in the preparation of his appeal, was in a position to

present himself his arguments before the appeal court. The Commission

should be reluctant to disturb the finding of the appeal court that the

applicant had sufficient time to prepare for his appeal.

      The applicant submits that the time he had at his disposal was not

adequate given his lack of legal training and the extreme complexity of

the case. In this connection with the latter he refers to his

solicitors' letter of 22 February 1993.

      In the light of the parties' observations, the Commission considers

that this part of the application raises serious questions of fact and

law which are of such complexity that their determination should depend

on an examination of the merits. It cannot, therefore, be regarded as

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

(Art. 27-2) of the Convention, and no other ground for declaring it

inadmissible has been established.

4.    The applicant also complains that the police had fabricated the

evidence against him, that the prosecution did not call three witnesses

whom it had originally cited and that the Procurator Fiscal refused to

allow him access to a video-recording.

      The Commission considers that an issue could arise under Article 26

of the Convention, which provides that the Commission may only deal with

a matter after all domestic remedies have been exhausted, in that the

applicant did not raise his complaints before the courts of first and

second instance. It is not necessary, however, for the Commission to

pronounce on this issue, because the applicant's complaints are in any

event manifestly ill-founded.

      The Commission has taken note of the applicant's submissions

concerning the standard phrases allegedly used by the prosecution

witnesses and the alleged content of the video-recording complained of.

It does not find, however, any indication that the police fabricated the

evidence against the applicant. As regards, moreover, the applicant's

complaint concerning the three witnesses whom the prosecution had

initially cited but eventually decided not to call, the Commission

recalls that Article 6 (Art. 6) of the Convention does not guarantee a

right for the accused to have examined as witnesses for the prosecution

persons on whose statements the prosecution no longer wishes to rely.

Moreover, the applicant does not deny that he had been made fully aware

of the content of the statements of these witnesses. In the light of all

the above, the Commission considers that no appearance of a violation of

Article 6 (Art. 6) of the Convention is disclosed.

      It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5.    Finally, the applicant complains that his legal representatives and

the private investigator acted against his interests.

      The Commission considers, however, that the actions of these persons

do not incur the liability of the United Kingdom under the Convention.

      It follows that this part of the application is incompatible ratione

personae and must be rejected as incompatible within the meaning of

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

      For these reasons, the Commission, unanimously,

      DECLARES ADMISSIBLE, without prejudging the merits, the applicant's

      complaints concerning the refusal for legal aid for his appeal and

      the decision of the appeal court not to adjourn the hearing of

      30 April 1993;

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber          President of the First Chamber

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