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AS TO THE ADMISSIBILITY OF

Application No. 18123/91

by W.W.

against the United Kingdom

The European Commission of Human Rights sitting in private on

14 October 1992, the following members being present:

MM. S. TRECHSEL, President

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

MM. L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 23 October 1990

by W.W. against the United Kingdom and registered on 24 April 1991

under file No. 18123/91;

Having regard to

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

the Commission;

- the observations submitted by the respondent Government on

15 July 1992 and the observations in reply submitted by the

applicant on 24 August 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1968. He is

currently serving a sentence of imprisonment at Shotts Prison,

Lanarkshire. He is represented by Anthony Mahon, a solicitor practising

in Glasgow.

The facts as submitted by the parties may be summarised as

follows.

The applicant and his brother stood trial at Glasgow High Court

for attempted murder and various other offences on 22 February 1989.

The counsel instructed by the applicant's solicitor had to

withdraw on the eve of the trial. The applicant met his replacement for

the first time on the morning before the trial began. He requested that

counsel move for an adjournment to ensure adequate preparation of the

case. Counsel however did not make any application for an adjournment

when the proceedings commenced.

The applicant was identified in court as one of the victim's

assailants by three eye-witnesses. One of these eye-witnesses had been

accompanying the victim on 6 November 1988, the day of the attack.

This eye-witness had pointed out the applicant at an identification

parade which was held on 11 November 1988. The applicant had legal

representation when he took part in the identification parade .

The applicant was convicted of attempted murder on 24 February

1989. He was sentenced to 10 years' imprisonment for the offence.

The applicant applied to the Scottish Legal Aid Board for legal

aid for the purpose of appealing against his conviction and sentence.

His application was refused on 7 September 1989 on the basis that the

appeal appeared to be without merit. The applicant proceeded to

conduct his own appeal.

On 13 October 1990 the High Court of Justiciary adjourned the

hearing of the applicant's appeal so that the applicant could provide

and investigate evidence on the question of perjury of an essential

Crown witness.

On 25 October 1989 solicitors acting on the applicant's behalf

submitted a fresh application for legal aid. This application was

refused on 1 November 1989 since it did not point to substantial

grounds of appeal. This view was taken in light of the fact that the

aforesaid solicitors did not provide any evidence to indicate that

perjury had in fact been committed.

The applicant presented his appeal on 14 June 1990. He requested

another adjournment in order to request legal aid again. However his

request was refused by the Court. The applicant addressed the Court for

1 1/2 hours and made numerous submissions in support of lengthy grounds

of appeal.

It appears from the transcript of the appeal court's judgment

that the applicant's grounds of appeal against conviction included

complaints concerning the conduct of the defence by his counsel, that

the trial judge had misdirected the jury on a number of occasions, that

the police had failed to conduct properly an identification parade in

which the applicant appeared, that the jury's verdict was inconsistent

and that the conviction rested solely on eye-witness evidence.

The Court dismissed the applicant's appeal against conviction and

sentence and, in the process of so doing, stated that the applicant had

"wholly failed to satisfy it that there was any miscarriage of

justice". As regarded his complaints about his counsel, the Court found

no substance in the criticisms made and referred to the note of the

trial judge which described the defence as "excellent".

COMPLAINTS

The applicant complains that he did not have adequate time and

facilities for the preparation of his defence contrary to Article 6

para. 3 (b) of the Convention in that he only met the replacement

defence counsel on the morning of the opening day of the trial and that

counsel failed to request an adjournment to ensure the adequate

preparation of the case.

The applicant complains that his rights under Article 6 para. 3

(d) of the Convention were violated in that counsel appearing on his

behalf failed to call certain witnesses and to lead in evidence certain

productions.

The applicant also contends that his rights under Article 6 para.

3 (c) of the Convention were violated by virtue of the fact that he was

denied legal aid for the purposes of appealing against his conviction

and sentence.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 October 1990 and registered

on 24 April 1991.

On 2 April 1992, the Commission decided to communicate the

application to the respondent Government and to ask for written

observations on the admissibility and merits of the application.

The Government's observations were submitted on 15 July 1992

after one extension in the time-limit and the applicant's observations

in reply were submitted on 24 August 1992.

THE LAW

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

appeal. He invokes Articles 6 para. 3 (c) (Art. 6-3-c) in this respect.

Article 6 para. 3 (c) (Art. 6-3-c) provides :

"(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 have made no observations as regards the

admissibility of this part of the application.

The Commission has made a preliminary examination of the merits

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

Convention. It considers that this complaint raises serious issues of

fact and law which can only be resolved by an examination of the

merits. The complaint cannot therefore be declared manifestly ill-

founded under Article 27 para. 2 (Art. 27-2) of the Convention, but

must be declared admissible, no other ground of inadmissibility having

been established.

2. The applicant complains also that his counsel was not properly

prepared and failed to apply for an adjournment and to call certain

witnesses and evidence.

However, under Article 25 para. 1 (Art. 25-1) of the Convention,

the Commission may only receive an application from a person, non-

governmental organisation or group of individuals where the applicant

alleges a violation by one of the Contracting Parties of the rights and

freedoms set out in the Convention and where that Party has recognised

this competence of the Commission. The Commmission may not, therefore,

receive applications directed against private individuals. In this

respect the Commission refers to its established case-law ( see e.g.

No. 172/56, Dec. 20.12.57, Yearbook 1 pp. 211, 215; No. 852/60, Dec.

19.9.61, Yearbook 4 pp. 346, 352; No. 3925/69, Collection 32 pp. 56,

58; No. 4072/69, Dec. 3.2.70, Yearbook 13 pp. 708, 716; No. 9022/80,

Dec. 13.7.83, D.R. 33 pp. 21, 36).

The Commission recalls that the applicant complains in effect of

the alleged conduct of his counsel. The Commission has examined the

question of whether this conduct could entail the responsibility of the

respondent Government. The Commission finds that the matters complained

of relate in substance to the manner in which the applicant's counsel

decided to conduct the defence - in particular, his decision as to

whether an adjournment was necessary and as to which witnesses or

productions would be of use to the defence. The Commission finds no

indication from the facts as submitted that the applicant's solicitor

failed properly to instruct the replacement counsel. It further notes

that the matter was brought to the attention of the appeal court which

found the criticisms of counsel to be unfounded. In these

circumstances, the Commission finds no ground on which the

responsibility of the respondent State could arise.

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

founded with the provisions of the Convention 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 of the case, the

applicant's complaint under Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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W.W. v. THE UNITED KINGDOM

W.W. v. THE UNITED KINGDOM

LEXI