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AS TO THE ADMISSIBILITY OF

Application No. 13098/87

by James WITTER

against the United Kingdom

The European Commission of Human Rights sitting in private on

6 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

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 12 June 1987

by James WITTER against the United Kingdom and registered on 20 July

1987 under file No. 13098/87;

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 1948 and resident

in Birmingham. He is represented by John Carroll, a solicitor

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

be summarised as follows.

The applicant was charged with reckless conduct and two

instances of breach of the peace on 9 October 1985. On 2 May 1986 in

Airdrie Sheriff Court the applicant pleaded not guilty to the charge

of reckless conduct, which was accepted by the Court, and pleaded

guilty to both charges of breach of the peace. Following the

applicant's statements in mitigation, the Court fined the applicant

£100.

On 11 June 1986, the applicant received a letter from the

Procurator Fiscal's office, informing him that he had been accused of

attempting to defeat the ends of justice and that a warrant had been

issued for his arrest. He was invited to answer the warrant in court

on 24 June 1986. After attending the Court, the applicant was

judicially examined before a Sheriff on 25 June 1986. The charge on

the Petition against him alleged that the applicant had stated falsely

in mitigation of the charges of breach of the peace that he had paid

over £100 to the occupiers of the house in compensation for the damage

he had caused to the property during the incident for which he was

charged with breaching the peace and that this had influenced the

Sheriff to reduce the penalty and so defeat the ends of justice. The

applicant stated in answer to the Procurator Fiscal that although he

had not given money to the occupiers expressly for the damage alleged,

he had made payments over £100 on their behalf in respect of various

of their liabilities, e.g. phone bills, food bills and social

security. The applicant was then liberated on bail.

Subsequently on 7 December 1986, the applicant was arrested

and taken to Airdrie police office, where he was visited by a

solicitor. An application for legal aid was completed the same day.

The applicant appeared in the Sheriff Court on 8 December 1986 and his

solicitor made a preliminary objection on the grounds that the charge

was insufficiently specified. A diet of debate was fixed for

19 January 1987 and the applicant released on bail. Though the

proceedings had been commenced on petition, they were subsequently

reduced to summary procedure.

On 19 January 1987, the Sheriff Court heard the debate on the

preliminary objection but dismissed it. The applicant entered a plea

of not guilty and the trial was fixed for 22 May 1987. The applicant's

legal aid application was submitted by letter dated 22 January 1987

but on a date unknown between 22 January 1988 and 10 February 1987,

legal aid was refused on the ground that it was not in the interests

of justice.

On 22 May 1987, the applicant appeared in court unrepresented

but applied for an adjournment in order to put his legal advisers in

funds and thereby secure legal representation. The adjournment was

refused but due to lack of court time, a new trial date was fixed for

6 July 1987. By this date, the applicant had raised sufficient funds

to cover cost of work from 1 April 1987.

After the trial, where he was represented, the applicant was

convicted. The sentence was deferred for 3 weeks to enable the Court

to obtain a Social Enquiry Report and the applicant was remanded in

custody.

The applicant appealed against the refusal of bail and applied

to the Scottish Legal Aid Board for emergency legal aid for this

purpose. The appeal was heard on 14 July 1987 in the High Court, the

applicant's solicitor presenting the case. Following the hearing the

applicant was released on bail. The Scottish Legal Aid Board refused

legal aid by letter dated 23 July 1987.

The applicant was subsequently given a non-custodial

sentence of one year's probation. He applied for legal aid to pursue

an appeal against his conviction. He was informed by letter dated 24

November 1987 from the Scottish Legal Aid Board that the application

was refused. By letter dated 31 December 1987, the Board stated as

reason for the refusal that he had failed to show that he had

substantial grounds for appeal. The applicant's solicitors are unable

to act further for the applicant and the applicant will be required to

represent his appeal in person.

COMPLAINTS

The applicant complains that he has been denied legal aid for

his trial, in respect of his appeal against refusal of bail and in

respect of his appeal against conviction.

The applicant submits that at his trial he faced a grave

charge and prosecution by a qualified lawyer from the Procurator

Fiscal's office. The witnesses included a Sheriff, a Procurator

Fiscal Depute and a sheriff clerk and it was essential that his

defence be conducted by a qualified lawyer. He therefore submits that

legal aid was required in the interests of justice. He also contends

that in preparation of his defence an accused is entitled to take

precognitions of prosecution and defence witnesses but that without

legal aid he was unable to meet the cost of enquiry into the

prosecution case and thereby properly to prepare his defence.

The applicant submits that the effect of his conviction is

that he is now unemployable in the line of work for which he is

trained. The refusal of legal aid for his appeal means that he will

now have to conduct his appeal in person. He complains also of the

refusal of legal aid for appeal against refusal of bail, although his

grounds were obviously justified since the appeal was granted

immediately.

The applicant invokes Article 6 para. 3 (b) and (c) of the

Convention.

THE LAW

1. The applicant complains of being refused legal aid for his

trial, in respect of his appeal against refusal of bail and in respect

of his appeal against conviction.

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

"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;

..."

a) The applicant complains that he was refused legal aid for his

trial on charges of attempting to defeat the ends of justice. The

Commission notes that legal aid was refused on the ground that it was

not required in the interests of justice. Nevertheless, at the time

of his trial, the applicant had sufficient funds to pay for his legal

representation. Moreover, at the trial, the applicant was present

himself and represented by his solicitor. Consequently, since the

applicant did in fact have sufficient means to pay for 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.

b) The applicant also complains of being refused legal aid to

appeal against refusal of bail.

According to the case-law of the Convention organs proceedings

as to whether a detained person should be released on bail do not

relate to the determination of that person's "civil rights" or

"obligations" nor of any "criminal charge" against him, and

consequently Article 6 para. 1 (Art. 6-1) of the Convention is not

applicable to such proceedings (see e.g. No. 6541/74, Dec. 18.12.74,

D.R. 1 p. 82). The Commission considers that Article 6 para. 3 (c)

(Art. 6-3-c) is also not applicable to such proceedings.

The Commission recalls that the proceedings before the High

Court only concerned a review of the order of detention on remand and

did not concern any appeal against conviction. Consequently, the High

Court did not determine a charge of a criminal offence within the

meaning of Article 6 para. 3 (Art. 6-3) of the Convention. It

therefore follows that this 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.

c) The applicant further complains of a refusal of legal aid on

appeal against conviction.

The Commission recalls that 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) of the Convention (see e.g. Eur. Court H.R.,

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

para. 67).

The Commission notes that the applicant was represented at his

trial and that the applicant's application for legal aid was refused

on 31 December 1987 on the basis that he had failed to show that he

had substantial grounds of appeal.

On an examination of the facts as submitted by the applicant,

the Commission therefore finds no evidence that the decision refusing

legal aid was contrary to Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention.

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 applicant further complains that as a result of the

refusal of legal aid for the preparation of his trial he was unable

properly to prepare his defence. He invokes Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention which guarantees the right to adequate

time and facilities for the preparation of his defence to everyone

charged with a criminal offence.

The Commission recalls that the applicant had sufficient means

to pay for legal representation at his trial on 6 July 1987 and to

cover work done on his behalf from 1 April 1987. The Commission finds

no indication that the applicant did not have adequate facilities for

the preparation of his defence.

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.

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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WITTER v. THE UNITED KINGDOM

WITTER v. THE UNITED KINGDOM

LEXI