AS TO THE ADMISSIBILITY

Application No. 12322/86

by Robert BELL

against the United Kingdom

        The European Commission of Human Rights sitting in private on

13 October 1987, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     S. TRECHSEL

                     F. ERMACORA

                     G. JÖRUNDSSON

                     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 4 June 1986

by Robert Bell against the United Kingdom and registered on 8 August

1986 under file No. 12322/86;

        Having regard to

        - reports provided for in Rule 40 of the Rules of Procedure

          of the Commission;

        - the Commission's decision of 3 December 1986 to bring the

          application to the notice of the respondent Government

          and invite them to submit written observations on its

          admissibility and merits;

        - the observations submitted by the respondent Government on

          18 March 1987 and the observations in reply submitted by

          the applicant on 1 May 1987;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a British citizen born in 1936 and resident

in Glasgow.  He is represented before the Commission by Mr.  John

Macaulay, a solicitor.  The facts which do not appear to be in dispute

between the parties may be summarised as follows.

        Towards the end of July 1985, the applicant was interviewed by

the police and charged with committing assault on a neighbour and

breaching the peace on 19 July 1985.  The applicant appeared at the

Glasgow District Court on 10 January 1986 and pleaded not guilty to

both charges.  The trial was fixed for 4 March 1986.

        On 14 February 1986 the applicant instructed his solicitor to

apply for legal aid to defend himself against the charges.  As is the

practice, the application was made through the post to the clerk of

the Court and contained details of the applicant's financial position,

a copy of the charges and a statement of the applicant's defence.  The

applicant's income consisted of £72 per week state invalidity benefit

on which he had also to support a wife and two children.  His defence

to the charge was that the alleged incidents did not take place.

There was a history of ill-feeling between the applicant and the

neighbour who had accused him of assault and the solicitor also

enclosed details of this.  The application was however rejected on

24 February 1986 as not being in the interests of justice.

        On 4 March 1986 neither the complainant (the neighbour) nor

her witness (the neighbour's mother) appeared in court and an

adjournment was granted until 8 April 1986.  On 8 April 1986 after

trial before a lay justice the applicant was found not guilty of both

charges.  In fact the prosecution abandoned the case after hearing the

evidence of the second witness, since the evidence of this witness was

totally inconsistent with the evidence of the first.  The prosecution

was conducted by the Procurator Fiscal Depute, who is a qualified

solicitor.

        The applicant now owes a bill of £300, incurred in connection

with instructing a solicitor to defend him and which he is unable to

pay.  The solicitor had appeared for him at the trial and

cross-examined both witnesses.  The applicant has a record of previous

convictions and could have faced a prison sentence if found guilty.

COMPLAINTS

        The applicant's principal complaint is that he did not have

adequate facilities for the preparation of his defence since, without

legal aid, he was unable to pay for his solicitor to interview the

witnesses and adequately prepare the case before the trial.  He also

complains that his financial circumstances and the interests of

justice required that he receive legal aid.  The applicant accordingly

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

        The applicant also complains that the Magistrate who decided

to reject his complaint must have decided that he was guilty already,

otherwise his application for legal aid would not have been refused.

He invokes Article 6 para. 2 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 4 June 1986 and registered

on 8 August 1986.

        The Commission first examined the question of admissibility of

the application on 3 December 1986 and decided to invite the

respondent Government to submit observations in writing on the

admissibility and merits of the application with regard to the

applicant's complaints under Article 6 para. 3 (c) of the Convention.

The Government submitted their observations on 18 March 1987, to which

the applicant replied on 1 May 1987, having been granted legal aid by

the President of the Commission on 8 April 1987.

SUBMISSIONS OF THE PARTIES

        A. The Government

        (a)  The facts

        The applicant's legal aid application was placed before the

stipendiary magistrate on 24 February 1986.  Neither the application

nor the covering letter made reference to any previous convictions of

the applicant; in consequence any such convictions were not known to

and could not be taken into account by the Magistrate who considered

the legal aid application.  The Magistrate refused the application

because he did not consider that in all the circumstances of the case

it was in the interests of justice that legal aid should be available

to the applicant.

        (b)  Relevant domestic law and practice

        The provisions of Scots law as to the availability of legal

aid in relation to criminal proceedings were at the relevant time to

be found in the Legal Aid (Scotland) Act 1967 and in subordinate

legislation made thereunder.  The 1967 Act was repealed and

re-enacted, with some changes, by the Legal Aid (Scotland) Act 1986,

which came into operation on 1 April 1987.

        The Legal Aid (Scotland) Act 1967 provides that legal aid is

available in relation to summary proceedings where the court before

which the proceedings are being taken

        (a) is satisfied after consideration of the financial

circumstances of the accused that the expenses of the case cannot be

met without undue hardship to the accused or his dependants, and

        (b) "considers that in all the circumstances of the case it is

in the interests of justice that legal aid should be available to the

accused".  Legal aid may also be refused if the court is satisfied

that an applicant for legal aid has available rights or facilities

making it unnecessary for him to obtain legal aid, or has a reasonable

expectation of obtaining financial or other help from a body of which

he is a member.

        At the relevant time there was no statutory definition of what

matters should be taken into account in determining whether it is in

the interests of justice that legal aid should be available.  In

relation to the District Court, however, the Secretary of State has

from time to time suggested certain factors which may suggest that it

is in the interests of justice that legal aid should be made

available.  At present these suggested factors, which are neither

definitive nor binding, are as follows:

        a.  that the charge is a grave one which, if proved, is such

        that the accused is at serious risk of loss of liberty or

        livelihood;

        b.  where the accused is unable to follow the proceedings and

        state his own case because of his inadequate knowledge of

        English, mental illness or other mental or physical

        disability;

        c.  where the nature of the defence involves expert

        cross-examination of a witness for the prosecution;

        d.  where legal representation is desirable in the interests

        of someone other than the accused, for example in cases

        involving children where it would be undesirable that the

        accused himself should cross-examine witnesses.

        These guidelines suggest that each court will have evolved its

own approach to the criteria "for the interests of justice", but that

where the charge is relatively trivial and the probable sentence, if

the accused is convicted, a comparatively small fine, the decision

that the accused should be defended at public expense with legal aid

would not normally be justified.

        Remedies where criminal legal aid is refused

        The decision of a court on the merits of an application for

criminal legal aid is declared by Rule 9 of the Rules for Legal Aid in

Criminal Proceedings 1964 to be final; but it is open to an applicant

at any time to make a further application for the consideration of the

court on the ground either that there has been a material change in

his financial circumstances or that he has additional facts affecting

his eligibility for legal aid to bring to the notice of court.

Further, if in reaching its decision the court acted oppressively or

if it exercised its statutory discretion so improperly as to indicate

that it had not in fact reached its decision on the merits at all, it

would be possible to challenge that purported decision by an

application to the nobile officium (the equitable jurisdiction) of

the High Court of Justiciary.  Until recently it was thought that

judicial review might be available.  It was held earlier this year,

however, by the Court of Session that this was not so, at least where

the refusal of legal aid was by the court.  The latter decision is

presently subject to appeal.

        Status and powers of the District Court

        The District Court has only a summary jurisdiction and deals

with prosecutions which are thought not to be sufficiently serious to

be dealt with by a Sheriff.  The jurisdiction of the District Court is

normally exercised by one or more Justices of the Peace, who are

laymen without legal qualifications, assisted by a legally qualified

clerk; the maximum terms of imprisonment which may be imposed by the

District Court, so constituted, is 60 days and the maximum fine

£1,000.  In certain cases, however, the District Court may be

constituted by a Stipendiary Magistrate, who is a full-time legally

qualified judge; when so constituted, the District Court has the same

summary criminal jurisdiction and powers as a Sheriff, that is in

general to impose a period of imprisonment not exceeding 3 months and

a fine not exceeding £2,000.

        The role of the prosecutor in Scottish criminal proceedings

        The prosecutor in all criminal proceedings before the Sheriff

and the District Courts is a Procurator Fiscal.  Procurators Fiscal

are appointed by the Lord Advocate from persons who are qualified as

advocates or as Scottish solicitors and act under his direction.  When

they appear as prosecutors in court, they do so for the Crown.  The

interest of the Crown is to see that justice is done rather than

merely to procure a conviction.  The Procurator Fiscal therefore has a

duty to ensure that all material evidence is laid before the Court,

whether or not such evidence is in favour of the Crown case, with the

object of ensuring that only the guilty are convicted and in general

that justice is done.  A Procurator Fiscal will thus lead all evidence

which appears to him to be relevant including evidence which would

point to acquittal as well as evidence pointing to conviction.

        The Legal Aid (Scotland) Act 1986

        When the Legal Aid (Scotland) Act 1986 was brought into force

on 1 April 1987, responsibility for granting legal aid in relation to

summary proceedings in the District Court was transferred from the

court to the Scottish Legal Aid Board, an independent body established

by the Act to administer legal aid and advice and assistance in

Scotland.  The criteria for making legal aid available continue to be

the financial circumstances of the accused and whether in all the

circumstances of the case it is in the interests of justice that legal

aid should be made available to him.  The Act specifies certain factors

which are to be taken into account by the Board in determining whether

it is in the interests of justice that criminal legal aid should be

made available; the Board will also take into account any other

factors which appear to it to be relevant in relation to a particular

application.  The Act requires the Board to establish a procedure

under which any person whose application for criminal legal aid in

summary proceedings has been refused may apply to the Board for a

review of his application.  It is now also possible to apply to the

Court of Session for judicial review of any decision of the Board

which is thought to be illegal or oppressive.

        (c)  Admissibility and merits

         i.  Exhaustion of domestic remedies

        In the Government's submission, the applicant has failed to

exhaust all domestic remedies in respect of this complaint as required

by Article 26 of the Convention.  A person who has been refused legal

aid has the right at any time to make a further application for the

consideration of the court on the ground that he has additional facts

affecting his eligibility for legal aid to bring to the notice of the

court.  In his letter to the Commission dated 1 August 1986 the

applicant's representative states that Mr.  Bell "had such a police

record that there is every probability that he would have received a

custodial sentence".  The Government would not necessarily accept that

this was the case.  But in any event, as is indicated above, this

matter (to which the applicant could have drawn attention in his

initial application or in a subsequent application) could clearly be

relevant to the Court's consideration of whether in a particular case

legal aid should be made available.  If this fact was not made known

to the court at the time of the original application, it would appear

to be such an additional fact affecting his eligibility as would

entitle him to make a further application following refusal.

        Additionally, although it is agreed that, apart from the

possibility of a further application, the refusal of legal aid by a

court, so long as that refusal is within the law, is final, illegality

or oppressiveness on the part of a judge can be challenged in the

superior courts, as explained above.

        ii.  Substantive issues

        Before a person is entitled to be given free legal assistance

under Article 6 para. 3 (c) of the Convention two conditions have to

be fulfilled.  First, the applicant must not have sufficient means to

pay for legal assistance.  Second, the interests of justice must

require that he be given free legal assistance.  In the present case,

the Government do not seek to suggest that the applicant had

sufficient means.  The principal question that arises is therefore

whether, in the circumstances of the case, the interests of justice

required that he be given free legal assistance.  The Government

submit that they did not.

        In considering Mr.  Bell's application for legal aid, the court

concluded that in all the circumstances of the case it was not in the

interests of justice that legal aid should be available to the

accused.  In the Government's submission it would not be appropriate

for the Commission to seek to substitute its own judgment of this

matter, long after the event, for that of the national authority

concerned.  It would be consistent with the case-law under the

Convention in this and other fields if the Commission were to confine

its investigation to considering whether, in all the circumstances,

the national court gave proper consideration to the question whether

the interests of justice required free legal aid (see, for example,

No. 5871/2, Dec. 30.9.74, D.R. 1 pp. 54, 55; Nos. 3104/67 and

3168/67, Decs. 5.4.68, cited in Yearbook 11 pp. 488, 490).  The

Government submit that in the present case there is no indication

that, in refusing legal aid, the court did not give proper

consideration to the question whether the interests of justice

required that it be granted.

        Three aspects may be relevant to the question whether the

interests of justice required that the applicant be given legal aid:

(a) the degree of complexity of the case; (b) the seriousness of the

case i.e. the likely outcome if the applicant were found guilty;

(c) the fact that the prosecution was conducted by a legally

qualified person.

        It is clear from the case-law that a principal consideration

is the legal and factual complexity of the case.  Thus in No. 8000/77,

(Dec. 9.5.78 unpublished except as regards other aspects in D.R. 13

p. 81) the Commission stated (at p. 13 of its Decision):

        "Moreover, the Commission considers that the applicant's

        case was not so complex in law or fact as to require the

        intervention of a lawyer in the interests of justice,

        this being the only reason where legal assistance must

        be granted free of charge."

        In the present case, there was no suggestion that the accused

suffered from any disability which would have made it difficult for

him to present his own case or that any complex question of law or

fact might arise.

        In the Government's submission, the likely outcome of the

case if the accused is found guilty is a relevant factor, at least in

the sense that, where a case does not raise complex issues of law and

fact, the fact that a severe sentence might be imposed could lead to

the conclusion that the interests of justice required free legal

assistance.  So far as the Magistrate was aware in this case the

applicant had no previous convictions and would be treated as a first

offender.  On the basis of the information before him, the Magistrate

took the view that the probable sentence, if the accused had been

convicted, would have been no more than a comparatively small fine.

        The fact that the prosecution is legally represented may in

certain circumstances be a relevant factor in determining whether the

interests of justice require that the accused be legally represented.

Thus, in its Report in the Pakelli case (Eur.  Court H.R., Series B

no 53 p. 9) the Commission found that the participation of a member of

the Office of the Federal Attorney in the hearing of a criminal appeal

before the Federal Supreme Court could not replace, but rather

required, the representation of the case for the defence by a person

with legal knowledge.  However, the Pakelli case was one involving

complex legal arguments and is in no way comparable with the present

case.  This issue would seem to be closely connected with, and at

least in the present case not distinct from, the question whether the

case raises complex issues of fact or law.  In any event, the

Government wish to emphasise that in the Scottish criminal justice

system the prosecutor is always a qualified lawyer, however minor or

straightforward the offence which is charged.  As has been explained,

the prosecutor is a public official independent of the police whose

duty is to see that justice is done rather than merely to procure a

conviction.  The requirement that the Procurator Fiscal be a qualified

lawyer ensures that persons are prosecuted, even on the most minor of

charges, only after consideration has been given to the merits of the

charge by a person with legal training and experience, and that the

prosecution will be conducted in an impartial manner.  It is thus part

of the protection given to accused persons by the criminal justice

system.  The Government submit, therefore, that in determining

whether, in a Scottish criminal prosecution, the interests of justice

require that free legal assistance be granted, the fact that the

prosecutor is a qualified lawyer cannot in itself be a sufficient, or

even an important, consideration.  Any other view would apparently

lead to the conclusion that Article 6 para. 3 (c) of the Convention

requires in Scotland that any person without sufficient means, however

minor or straightforward the charges against him and whatever the

other circumstances of the case, should always be entitled to free

legal assistance.  It is submitted that that cannot be a proper

interpretation of Article 6 para. 3 (c).

        B. The applicant

        (a)  The facts

        The applicant does not concede that previous convictions

should have more than an incidental or passing significance in

considering applications for legal aid where an accused maintains

his innocence and chooses to go to trial.  The applicant in his

application for legal aid presented a perfectly satisfactory defence

to the charge and the application should have been considered on its

merits alone.

        (b)  Relevant domestic law and practice

        The applicant disputes that the charges against him can be

described as minor.  Also what the Government consider a comparatively

small fine may be an enormously heavy fine to an accused such as the

applicant whose income is the minimum state benefit.

        Remedies where legal aid is refused

        The applicant submits that there is no remedy by way of

nobile officium in such cases and cites the decision of the High

Court of Justiciary in the case of McLachlan.

        The District Court

        There are eight courts at the Glasgow District Court, four

sitting with Stipendiary Magistrates and four with lay Magistrates.

The chances of appearing before the Stipendiary Magistrate who has

increased powers are 50%.

        It is misleading to suggest that the Stipendiary Magistrate's

powers are limited to three months' imprisonment.  In appropriate

common law cases, into which category the applicant would have fallen

had be appeared before a Stipendiary Magistrate, their powers are

increased to six months' imprisonment.

        Role of the prosecutor

        It is inaccurate to suggest that in the applicant's case the

prosecutor was even remotely in a position to present any of the

evidence which led to the applicant's acquittal.  It is an elementary

truth of criminal procedure that the roles of prosecutor and defender

can never properly be performed simultaneously by one individual.

        (c)  Admissibility and merits

        The applicant submits that there was a complex background to

this case and that every civilised system of criminal procedure

recognises the undesirability of individuals conducting their own

defence where cross-examination is involved.  It is submitted that,

given the complex and detailed nature of the applicant's defence, the

applicant could not have reasonably been expected to make any

effective or useful contribution to the proceedings.  The tenor of the

Government's response is that they would wish the great bulk of

summary criminal cases to proceed as pleas of guilty, thereby saving

the expense of free legal assistance to accused persons for trial.

The applicant submits this approach is fundamentally wrong, since an

accused should be under no pressure to plead guilty because he cannot

finance his defence.  To agree with the Government's submissions would

have the practical effect of erasing the protection given by Article 6

para. 3 (c) of the Convention.

THE LAW

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

defence although he had insufficient means and allegedly the interests

of justice required that legal aid be granted.  The Government has

contended, inter alia, that there is nothing in the present case to

indicate that the Magistrate concerned did not take all relevant

factors into account when deciding that the interests of justice did

not require that legal aid be granted.

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

        "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 does not consider it necessary to decide

whether the applicant has fulfilled the exhaustion of domestic

remedies rule laid down in Article 26 (Art. 26) of the Convention, because it

finds the application anyway inadmissible for the following reasons:

        The evaluation of the requirements of the interests of justice under

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention lies in the first place

with the domestic courts.  In this respect the Commission notes the guidelines

issued to Justices of the Peace in Scotland concerning legal aid, which

guidelines indicate the relevant factors to be taken into account in deciding

whether it is in the interests of justice that legal aid should be granted.

They include the consideration of whether the charge is grave and, if proved,

would place the accused at serious risk of loss of liberty, whether the accused

is able to follow the proceedings and state his own case and whether the nature

of the defence involves expert examination of a witness for the prosecution.

        The applicant alleges, however, that the Magistrate in his

case ignored the interests of justice in refusing him legal aid on

24 February 1986.

        The Commission does not find his allegation substantiated by

the facts of the case.  There is no indication in the case-file that

in refusing the applicant legal aid, on the grounds that it was not in

the interests of justice, the Magistrate did not apply the

aforementioned guidelines, having regard to the information available

to him in the applicant's legal aid application, or that he made his

decision on arbitrary grounds.  It is of particular significance that

the applicant's previous convictions were not known by the Magistrate

when he considered the applicant's legal aid application and that it

was likely that he would have deemed the case before him to have been

a somewhat trivial neighbours' dispute which would not result, in case

of conviction, in more than a fine for the applicant.

        In these circumstances, the Commission concludes that it has

not been shown in the present case that the interests of justice,

within the meaning of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention,

required a grant of free legal assistance to the applicant.  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.

2.      The applicant also complains that the refusal of legal aid

deprived him of adequate facilities for the preparation of his

defence.

        Article 6 para. 3 (b) (Art. 6-3-b) of the Convention provides as

follows:

        "Everyone charged with a criminal offence has the following

        minimum rights:

        (b) to have adequate time and facilities for the preparation

        of his defence".

        However, the Commission finds no evidence in the present case

that the applicant had inadequate facilities to prepare his defence.

This finding is borne out by his acquittal.  It follows that this

aspect of the case is also manifestly ill-founded within the meaning

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

3.      Finally, the applicant complains that the refusal of legal aid

by the Magistrate indicates that he presumed the applicant's guilt,

contrary to Article 6 para. 2 (Art. 6-2) of the Convention, which provides as

follows:

        "Everyone charged with a criminal offence shall be

        presumed innocent until proved guilty according to law".

        However, the Commission repeats that the Magistrate rejected

the applicant's application for legal aid on the grounds that it was

not in the interests of justice and that the Magistrates' guidelines

indicate a number of factors be taken into account in reaching such a

decision.  There is nothing in the facts of the application as it has

been presented to indicate that the Magistrate failed to give the

matter proper consideration.  Similarly the Commission finds no

evidence that the Magistrate was motivated by any presumption of the

applicant's guilt.  The Commission concludes, therefore, that this

complaint has not been substantiated and that the case fails to

disclose any appearance of a violation of Article 6 para. 2 (Art. 6-2) of the

Convention.

        It follows that this part of the application is similarly 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)