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AS TO THE ADMISSIBILITY OF

Application No. 13731/88

by Arthur BARRIE

against the United Kingdom

The European Commission of Human Rights sitting in private on

14 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 11 February 1988

by Arthur BARRIE against the United Kingdom and registered on 5 April

1988 under file No. 13731/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1964 and resident

in Glasgow. He is represented by Mr. John Carroll, a solicitor

practising in Glasgow. The facts as submitted by the applicant may be

summarised as follows.

The applicant is a 24 year old unemployed man suffering the

handicap of profound deafness and an inability to communicate by

speech.

In early 1986, the applicant began a relationship with a Miss

B. As a result of the relationship, Miss B gave birth to a child Lucy

Ann on 10 November 1986.

By letter dated 6 February 1987 the applicant received an

intimation copy of Miss B's application for legal aid to raise an

action for Interdict and Interim Interdict to prevent the applicant

molesting her or removing her child. He consulted a solicitor and, in

accordance with procedure, a letter objecting to Miss B's application

for legal aid was submitted. It was pointed out, to the legal aid

authorities, that the circumstances were that the applicant was a deaf

mute. He did have a relationship with Miss B and that relationship

ended about May 1986. The last contact the applicant had with Miss B

resulted in criminal proceedings being taken against him. The

applicant had been charged with assaulting Miss B with a pair of

scissors on 8 December 1986. In addition, the applicant wished it to

be known that he had not threatened to remove the applicant's child

from her care.

On 3 April 1987, the applicant was served with a copy of the

Interim Interdict granted to Miss B on 27 March 1987 in his absence

and summoned to a diet before the Sheriff on 10 April 1987.

On 7 April 1987 the applicant lodged an application for

emergency legal aid with the Scottish Legal Aid Board. The rules

required that that application be followed up with a full application

for legal aid, the emergency cover being for a very limited period

only. A certificate of emergency legal aid was granted on 7 April

1987. The applicant attended the Sheriff's court on 10 April 1988

with his solicitor. The Sheriff continued the Interim Interdict and

attached thereto a power of arrest. The Interim Interdict ordered the

applicant not to molest Miss B in any way by abusing her or

threatening her or by putting her in a state of fear and alarm or

distress or by using violence towards her and also ordered the

applicant not to remove Miss B's child.

The applicant, through his solicitors, thereafter lodged a

full application for legal aid and this was duly considered by the

Scottish Legal Aid Board.

By letter dated 2 September 1987 the applicant was advised

that the application had been refused because it was unreasonable that

he should receive legal aid in the particular circumstances of the

case and that it had not been shown that there was probable cause of

action. Further explanation was sought of the Scottish Legal Aid

Board and the Board advised that, in their opinion, "there is no

probable cause that * would be unreasonable to make

legal aid available. No defence has been put forward and it is not

accepted that a defence in a civil trial would impinge on criminal

proceedings".

The applicant applied for a review of the decision and

stressed that he was profoundly deaf and incapable of speech. By

letter dated 10 November 1987, the Scottish Legal Aid Board maintained

its decision.

The criminal proceedings against the applicant, who had

pleaded not guilty, were deserted by the prosecution on 8 December

1987.COMPLAINTS

The applicant alleges violations under Article 6 of the

Convention on the ground that he was denied access to the Court to

challenge the interdict by the refusal of legal aid when the interests

of justice required that it be granted. The applicant was in receipt

of supplementary benefit amounting to £1,240.20 per annum. The

allegations within the condescendence of the writ were of criminal

conduct on the part of the defender (applicant). He denied the

substantive elements of the condescendence. The allegations also

formed part of a criminal charge on which the applicant had appeared

in Court and had pleaded not guilty.

THE LAW

The applicant complains of being denied access to court by a

refusal of legal aid, and invokes Article 6 (Art. 6-1) of the

Convention, which, in its first sentence of paragraph 1, provides,

inter alia:

"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."

The Commission must first consider whether the proceedings in

respect of which the applicant was refused legal aid involved the

determination of a criminal charge against him or of any of his civil

rights or obligations. The Commission recalls that the applicant was

the defender in proceedings brought by Miss B for an Interdict and

Interim Interdict ordering the applicant not to molest her or use

violence towards her and not to remove Miss B's child. The Interim

Interdict granted to Miss B on 27 March 1988 was continued in those

terms on 10 April 1988 following a hearing at which the applicant was

present and represented. The applicant was refused legal aid for

representation either to appeal or to defend further proceedings in

the matter. The Commission finds that these proceedings do not

involve the determination of a criminal charge.

__________

* the text of the opinion as sent to the applicant

appears to omit several words

The Commission also finds that they do not involve the

determination of any of the applicant's civil rights and obligations,

since the subject-matter of the proceedings, the Interim Interdict,

forbids behaviour already prohibited by the criminal law and places no

additional restrictions upon the applicant and does not prohibit him

from doing anything which he would otherwise have had the right to do.

It therefore follows that the applicant's complaint is

incompatible ratione materiae 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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BARRIE v. the UNITED KINGDOM

BARRIE v. the UNITED KINGDOM

LEXI