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AS TO THE ADMISSIBILITY

Application No. 11711/85

by Willilam McDERMITT

against the United Kingdom

The European Commission of Human Rights sitting in private on

15 May 1987, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

G. TENEKIDES

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

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 26 June 1985 by

William McDERMITT against the United Kingdom and registered on

19 August 1985 under file No. 11711/85;

Having regard:

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

Procedure of the Commission;

- the Commission's decision of 13 December 1985 to bring the

application to the notice of the respondent Government and

invite them to submit written observations on its

admissibility and merits;

- i -

- the observations submitted by the respondent Government on

2 April 1986 and the observations in reply submitted by the

applicant on 19 May 1986;

- the supplementary information submitted by the applicant on

29 April 1987 and by the respondent Government on 12 May 1987;

- the letter of the respondent Government dated 13 May 1987

informing the Commission of their offer of settlement to

the applicant;

- the letter of the applicant's solicitor dated 13 May 1987

stating that they no longer wish the application to proceed.

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1947 and is

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

solicitor. The facts, as submitted by the parties, may be

summarised as follows.

The applicant was arrested on 21 July 1984 for breach of the

peace and spent 17 days in prison on remand before being released on

bail. He was served with a summary criminal complaint on charges of

breach of the peace and obstruction of police officers, contrary to

Section 41 (1)(a) of the Police (Scotland) Act 1967. Both offences are

punishable by imprisonment, nine months maximum in the case of the

obstruction charge.

The applicant appeared for trial before a stipendiary

magistrate on 17 May 1985. The prosecution was represented by a

qualified lawyer, all criminal prosecutions in Scotland being carried

out by officers from the Procurator Fiscal's office. A late

application for legal aid was immediately presented before the

commencement of proceedings by the applicant's solicitors. The

magistrate accepted the applicant's statement of means. However,

without investigating the defence to the charges, the magistrate

refused the application on the ground that it was not in the interests

of justice. The applicant alleges that on enquiry, the magistrate

explained that it was not in the interests of justice to give legal

aid for the offences of breach of the peace or resisting arrest.

The solicitor representing the applicant continued to act for

him at the applicant's request, thereby rendering the applicant liable

to an account. The solicitor cross-examined the prosecution

witnesses, who included the applicant's wife, on behalf of the

applicant. Following the submission made for the defence, the

applicant was acquitted on the more serious charge of obstruction.

The applicant was found guilty of a breach of the peace and fined

£50, to be paid in instalments.

The applicant did not appeal against the magistrate's refusal

of legal aid, no appeal being available under the Act of Adjournal

(Rules for Legal Aid in Criminal Proceedings) 1964, Rule 9:

"The decision of a Court on an application for legal aid or

under section 8 (2) hereof shall be final:

Provided that it shall be open to a person at any time to

make a further application for the consideration of the

Court on the ground 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 the Court."

COMPLAINTS

The applicant complains that the refusal of legal aid was

contrary to the interests of justice. He submits that the charges

were of a serious nature, carrying the risk of a prison term. The

prosecutor regarded the charges as of sufficient seriousness to merit

trial before a stipendiary magistrate and the prosecution was carried

out by a qualified lawyer who was an officer of the Crown.

The circumstances of the case therefore required that the

applicant receive free legal assistance. The judge however appeared

to make his decision to refuse legal aid on policy grounds, without

considering the interests of justice.

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

Convention.

The applicant also invokes Article 6 para. 3 (b) and (d) of

the Convention submitting that to refuse legal aid denies an applicant

facilities for his defence and prevents examination of witnesses on

the same terms as the prosecution.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 June 1985 and registered

on 19 August 1985.

On 13 December 1985 the Commission decided to bring the

application to the notice of the respondent Government in respect of

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

Convention and to invite them to submit written observations on its

admissibility and merits pursuant to Rule 42 para. 2 (b) of the Rules

of Procedure.

The Government's observations were submitted on 2 April 1986

and the reply thereto submitted by the applicant on 19 May 1986.

The Commission decided on 3 December 1986 to invite the

parties to a hearing on the admissibility and merits of the

application and the date for the hearing was set for 13 May 1987.

The hearing did not in fact take place.

Supplementary information concerning the application was

submitted on 29 April 1987 by the applicant and on 12 May 1987 by the

respondent Government.

The information from the Government included a signed

precognition from the magistrate dated 7 May 1987, in which the

magistrate concludes that, on reconsideration of the matter, when

rejecting the applicant's application for legal aid, he temporarily

overlooked the existence of the statutory charge. The Government also

submitted an affidavit sworn by the magistrate on 8 May 1987 which

stated inter alia that he had taken the view that where a minor charge

under the Police (Scotland) Act 1967 relating to struggling with

police officers is included in a complaint with a charge of the breach

of the peace, the struggle with police officers charge should be

incorporated in the breach of the peace charge.

On 13 May 1987, the respondent Government accepted that "from

the information recently obtained from the magistrate it now appears

to the Government that the legal aid application made by the applicant

on 17 May 1985 may in all the circumstances of the case not have been

appropriately dealt with by him".

On the same day, the respondent Government submitted the

following letter:

"I have the honour to refer to our discussions this morning

and to inform you that the Government are prepared

1) to make an ex gratia payment to the applicant of

£300, and

2) to pay the applicant's reasonable legal costs in

respect of the proceedings before the Commission."

By letter dated 13 May 1987 the applicant's solicitor

submitted the following:

"I hereby accept the terms of settlement specified in

the letter of 13 May 1987 from the Agent of the

Government of the United Kingdom and accordingly withdraw

the above application."

FINDING OF THE COMMISSION

Having regard to the information submitted by the parties on

13 May 1987, the Commission notes that the applicant has withdrawn his

application. The Commission finds that there are no reasons of a

general character affecting the observance of the Convention which

necessitate a further examination of the case.

For these reasons, the Commission

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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McDERMITT v. THE UNITED KINGDOM

McDERMITT v. THE UNITED KINGDOM

LEXI