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AS TO THE ADMISSIBILITY OF

Application No. 16212/90

by R.

against the United Kingdom

The European Commission of Human Rights (First Chamber)

sitting in private on 17 April 1991, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

H. DANELIUS

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 3 April 1989

by R. against the United Kingdom and registered

on 26 February 1990 under file No. 16212/90;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born on 7 January 1960.

He is currently detained at Shotts prison, Lanarkshire, Scotland,

serving a life prison sentence. He is represented before the

Commission by Messrs. Ian McCarry, solicitors, of Glasgow. The facts

of the case may be summarised as follows.

The applicant was charged with the following offences: 1) rape,

assault, indecent assault and robbery of a named woman between 10 June

1986 and 31 December 1986; 2) assault and indecent assault of a named

woman between 1 September 1986 and 30 November 1986; 3) assault,

indecent assault, robbery and abduction of a named woman between 10

June 1986 and 31 December 1986; 4) assault, indecent assault, rape and

robbery of a named woman between 1 January 1987 and 31 December 1987;

5) assault, indecent assault and robbery of a named woman between 1

February 1987 and 28 February 1987; 6) assault, indecent assault and

robbery of a named woman between 1 January 1987 and 31 December 1987;

7) theft of bracelet from premises between 25 and 29 April 1988; and 8)

abduction, assault, indecent assault, rape and robbery of a named

woman between 3 and 4 September 1988.

At a preliminary diet of the High Court on 7 December 1988,

the applicant, legally aided by counsel, objected to the latitude and the

lack of relevancy of the charges. The High Court ordered that charges

numbers 5 and 7 be withdrawn and that the Crown be given leave to

amend charges 1, 3, 4 and 6 to meet partially the objections of the

applicant. The Crown amended the charges. In charge 1 the period was

reduced to between 1 April 1986 and 30 September 1986. In charge 3

the period was reduced to between 1 October 1986 and 25 December 1986.

In charge 4 the period was reduced to between 1 April 1986 and 30

September 1986. In charge 6 the period was reduced to between 10

January 1987 and 17 January 1987.

On 19 December 1988 the applicant was convicted of the six

amended charges by the High Court at Airdrie. He was sentenced to

life imprisonment. The applicant states that counsel was not engaged

until two or three days before his trial.

The applicant's solicitors drafted grounds of appeal on behalf

of the applicant. The grounds of appeal against conviction were that

the applicant had been prejudiced at the trial by the latitude of the

charges against him, the bias of the judge and his misdirection of the

jury. The grounds of appeal against sentence were that it was

excessive, given the applicant's background and personal history and

that the judge did not order medical or psychiatric reports on the

applicant.

On 8 September 1989 the Scottish Legal Aid Board received an

application from the applicant seeking legal aid for an appeal against

conviction and sentence. The Board refused legal aid as it did not

consider that there were substantial grounds of appeal.

Given the applicant's means there was no possibility that he

could afford to instruct counsel privately.

On 29 September 1989 the appeal was heard. The applicant had

no legal representation. He relied on draft grounds of appeal

proposed by his solicitor. The appeal was dismissed.

COMPLAINTS

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

Convention that he was not given means to pay for legal assistance at

the hearing of his appeal on 29 September 1989, when the interests of

justice required it.

He also complains under Article 6 of the Convention of

insufficient time his counsel was permitted for preparing the trial,

of the behaviour of his lawyer, and that his sentence was excessive.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 April 1989 and

registered on 26 February 1990.

On 2 July 1990, the Commission decided to give the United

Kingdom Government notice of the application and to invite them to

submit observations on the admissibility and merits of the

application.

The Government submitted its response on 7 December 1990 and

the applicant replied on 5 February 1991.

On 14 December 1990, the Commission decided to grant the

applicant legal aid.

On 9 April 1991 the Commission decided to transfer the case to

the First Chamber.

THE LAW

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

his appeal against conviction and sentence contrary to the interests

of justice. He invokes Article 6 (Art. 6) of the Convention. The

Commission has examined this complaint under Article 6 para. 1 and

para. 3 (c) (Art. 6-1, 6-3-c) of the Convention, which provide, so far

as relevant, as follows:

"1. In the determination of his civil rights and

obligations or 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. ..."

"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 Commission notes that the Government have made no

observations as to admissibility, while reserving their position on

the merits, of this complaint.

The Commission has made a preliminary examination of the

present applicant's complaint concerning legal aid on appeal under

Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention (cf.

Eur. Court H.R., Granger judgment of 28 March 1990, Series A no.

174). It considers that it raises serious issues of fact and law

which are of such complexity that its determination should depend on a

full examination of the merits. It follows that this complaint cannot

be declared manifestly ill-founded under Article 27 para. 2 (Art.

27-2) of the Convention and must be declared admissible, no other

ground for declaring it inadmissible having been established.

2. The applicant also complains that his counsel was permitted

insufficient time for preparing the trial, of the behaviour of his

counsel and that his sentence was excessive. He alleges a violation

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

As to the complaint concerning the time the applicant's

counsel had for preparing the trial, the Commission notes that the

applicant had been represented by a solicitor under the legal aid

scheme from an early stage of the proceedings. The Commission recalls

that it may not consider complaints concerning individuals, including

lawyers, and finds that the applicant has not indicated that any

special issue arose in connection with his counsel which could not have

been dealt with by his solicitor at an earlier stage.

As to the allegation that the sentence was excessive, the

Commission notes that Article 6 (Art. 6) of the Convention provides

procedural guarantees rather than a review of sentencing or sentencing

policy. The Commission finds no indication in the file that the

sentence was so excessive that any other provisions of the Convention

may be at issue.

It follows that this part of the application must be declared

manifestly ill-founded 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 relating to the lack of legal

aid on the hearing of his appeal;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M. DE SALVIA) (J.A. FROWEIN)

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R. v. THE UNITED KINGDOM

R. v. THE UNITED KINGDOM

LEXI