Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17120/90

by Graham Alexander HIGGINS and

Kevin Michael Kennedy HIGGINS

against the United Kingdom

The European Commission of Human Rights sitting in private

on 3 December 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 July 1990

by Graham Alexander HIGGINS and Kevin Michael Kennedy HIGGINS against

the United Kingdom and registered on 5 September 1990 under file

No. 17120/90;

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 applicants, who are brothers, are British citizens born in

1960 and 1967 respectively and resident in Glasgow. They are

represented by John Carroll, a solicitor practising in Glasgow. The

facts as submitted by the applicants may be summarised as follows.

The applicants were charged inter alia with assault to severe

injury and assault by presenting a knife. They were granted legal aid

and represented by a solicitor in their trial in the Sheriff Court.

During the trial, one of the prosecution witnesses revealed

the presence of other persons near the scene of the alleged assaults.

The applicants' solicitor in cross-examination sought to discover the

identity of these persons but an objection to this line of questioning

by the Procurator Fiscal Depute was sustained by the presiding Sheriff

on the ground that the identity of these persons was not a relevant

issue to the charges or to the credibility of the prosecution witnesses.

The applicants were convicted on two of the charges and on

24 November 1989 sentenced to nine months' imprisonment.

The applicants lodged Notices of Intention to Appeal and

Grounds of Appeal on the basis that there were important eye witnesses

whose existence had not been disclosed to the defence and that the

Sheriff had erred in law in preventing the disclosure of the identity

of these witnesses. The applicants applied for legal aid which was

refused on 1 February 1990 on the ground that there were no

substantial grounds for the appeal. The Legal Aid Board also stated

that it saw no merit whatsoever in the appeal especially since the

defence was one of alibi.

Consequently, the applicants, who were of limited education,

appeared without legal representation before the High Court of

Justiciary. The first applicant read out a written statement. The

appeals of both were dismissed. The Court stated:

"It was said by the appellants today that having regard to

the exclusive powers given to the police and the procurator

fiscal service to investigate crime it was the duty of the

procurator fiscal to make known to the defence any

information in their possession which would tend to

exculpate the appellants and which the defence were not

likely to discover in their own investigations. It is quite

clear that not only the grounds of appeal themselves but

also the reasons which were given today for quashing the

convictions were framed by the same solicitor who as I have

just said, is no longer acting for the appellants. In our

opinion it is just as well because we regard this ground of

appeal as wholly without foundation, not to say

impertinent. There is no obligation on the Crown to provide

any list of witnesses other than those which are attached to

an indictment and there is no obligation on the Crown to

disclose any information in their possession which would

tend to exculpate the accused. Very often the Crown of

their own free will are prepared to give that information

and it appears in this case that everything was done within

the power of the Crown to do so but because the Crown could

not get the necessary information from the other witnesses,

obviously they could not pass it on to the defence. For

that reason alone this particular ground of appeal must

fail."

The Court also found that the Sheriff had not erred in

sustaining an objection to the defence's cross-examination since the

evidence was in the circumstances irrelevant, in particular as there

was no indication that persons referred to had been at the scene of

the incident.

COMPLAINTS

The applicants complain of a violation of Article 6 para. 3 (c)

of the Convention in that they were denied legal assistance on appeal

when they had insufficient means and when it was in the interest of

justice that it be granted.

The applicants also complain of a violation of Article 6

para. 3 (d) in that they were denied the opportunity to obtain the

attendance and examination of witnesses on their behalf under the same

conditions as witnesses against them.

THE LAW

1. The applicants complain that they were denied legal aid on

their appeal contrary to Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention, which 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 right to free legal assistance guaranteed by Article 6

para. 3 (c) (Art. 6-3-c) is subject to two conditions; that the individual

concerned does not have sufficient means to pay for legal assistance

and that "the interests of justice" require it. It is not in dispute

that the first condition was satisfied in the present case. The only

issue is whether "the interests of justice" required that the

applicants be granted legal aid before the High Court.

In the Monnell and Morris judgment (Eur. Court H.R., Monnell

and Morris judgment of 2 March 1987, Series A no. 115, p. 25, para.

67) of the European Court stated as follows:

"The interests of justice cannot ... be taken to require

an automatic grant of legal aid whenever a convicted

person, with no objective likelihood of success, wishes to

appeal after having received a fair trial at first instance

in accordance with Article 6 (Art. 6). Each applicant, it is

to be noted, benefited from free legal assistance both at his

trial and in being advised as to whether he had any arguable

grounds of appeal ...".

When determining whether "the interests of justice" requires

legal representation, the Commission must examine each case on its

facts. While the likelihood of success and the availability of legal

assistance at other stages of the proceedings are significant factors

to be taken into account, they are not the sole criteria. Other

factors in assessing the requirements of "the interests of justice"

include the importance of what is at stake for the applicant, e.g.,

the severity of the sentence, the personal ability of the applicant

and the nature of the proceedings, e.g. complexity or importance of

the issues or procedures involved (cf. Eur. Court H.R., Artico

judgment of 13 May 1980, Series A no. 37 and Pakelli judgment of

25 April 1983, Series A no. 64).

In the present case the Commission recalls that the applicants

had been sentenced to nine months' imprisonment on assault charges

after a trial in which they had been represented by counsel. The

refusal of legal aid concerned only the appeal against their

conviction and the Commission notes, however, that the Legal Aid Board

had found no substantial grounds for the appeal. The Commission notes

that the issue before the High Court concerned whether or not the

defence counsel should have been prevented from questioning a

prosecution witness as to the identity of other persons near the scene

of the alleged offence. On examination of the documents submitted by

the applicants, the Commission does not consider that the appeal

raised such complex or difficult issues that the interests of justice

required that the applicants be granted legal assistance.

It follows that this complaint is manifestly ill-founded

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

2. The applicants also complain that they were denied the

opportunity to obtain the attendance and examination of witnesses on

their behalf under the same conditions as witnesses against them

contrary to Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.

The Commission recalls that defence counsel was prevented from

pursuing a line of questioning of a witness by Sheriff, on the ground

that it was not relevant. The Sheriff's ruling was upheld by the

appeal court which also found the cross-examination irrelevant. The

Commission also recalls that the appeal court found that the

prosecution had not been in possession of the information and could

not have passed it on to the defence. In these circumstances, the

Commission finds no indication of an inequality between prosecution

and defence as regards the attendance or examination of witnesses, all

parties to the proceedings being subject to the rules of evidence

which exclude irrelevant questioning.

This complaint is therefore manifestly ill-founded within the

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

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

HIGGINS v. the UNITED KINGDOM

HIGGINS v. the UNITED KINGDOM

LEXI