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MAXWELL v. the UNITED KINGDOMDISSENTING OPINION OF MR. HENRY G. SCHERMERS AND SIR BASIL HALL

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Document date: May 4, 1993

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MAXWELL v. the UNITED KINGDOMDISSENTING OPINION OF MR. HENRY G. SCHERMERS AND SIR BASIL HALL

Doc ref: • ECHR ID:

Document date: May 4, 1993

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DISSENTING OPINION OF MR. HENRY G. SCHERMERS AND SIR BASIL HALL

We do not share the view of the majority of the Commission that

there has been a violation of Article 6 para. 3(c) in this case.

"The manner of application of Article 6 to proceedings before

courts of appeal depends on the special features of the proceedings

involved; account must be taken of the entirety of the proceedings in

the domestic legal order and of the role of the appellate Court

therein." (Jan-Ake Andersson v. Sweden judgment of 29.10.91, Series A

no. 212 B, p. 43, para. 22.)

This principle applies not only in relation to para. 1 of that

Article but also in relation to para. 3(c) which states a specific

aspect of the basic entitlement to a fair hearing conferred by para. 1

(Granger judgment of 28.3.90, Series A no. 174, p. 17, paras. 43 and

44.)

Under the Scottish system everyone convicted of a crime at first

instance has a right to appeal to the High Court of Justiciary. An

appeal will however only succeed if a miscarriage of justice is

established. The function of the Court is then to examine whether

there is ground for finding that there has been a miscarriage of

justice and not to re-hear the case. The Court examines whether at

first instance there has been an error of law or a procedural error.

The appellant is required to state the grounds in his notice of appeal

and may not, in general, found his appeal on a ground not stated in the

notice (see Granger judgment loc.cit., pp. 12 and 13, paras. 26 and

27).

Like Mr. Granger the applicant was sentenced to five years

imprisonment. In other respects his case was very different from that

of Mr. Granger. Unlike Mr. Granger he understood the grounds of his

appeal - indeed he formulated them himself. There was no difficult

legal issue such as the issue over 'precognitions' in the Granger case.

The applicant was advised by his Counsel that there was no ground

for an appeal against his conviction. The Legal Aid Board, too,

concluded that there was no substantial ground for an appeal.

Notwithstanding the advice which the applicant had received he pressed

on with his appeal with no objective likelihood of success. In these

circumstances we do not consider that the interests of justice required

that he should have been given legal aid at the appeal stage (see the

Monnell and Morris judgment of 2.3.87, Series A No. 115, p. 25,

para. 67).

The majority of the Commission place weight on the fact that the

prosecutor was legally represented while the applicant was not. If the

prosecutor is to be present on an appeal (what he obviously must be -

to assist the court if necessary) he can only be present through the

presence of a counsel. If the prosecutor has played an active part in

arguing that the appeal should have been dismissed, question of

equality of arms might have arisen. There is no indication that that

was so in this case, which distinguishes the case from Granger where

the Solicitor-General addressed the court at length (Granger judgment

of 20 March 1990, Series A no. 174, p. 11 para. 18 and p. 18 para. 47.

Furthermore there is an obvious difficulty in counsel putting forward

an argument on a point which he believes to be without foundation, so

that the purpose served by representation in the circumstances is not

obvious.

Accordingly there was, in our opinion, no breach of

Article 6 para. 3(c) in this case either taken alone or as an element

in the right to a fair hearing conferred by Article 6 para. 1.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

25.03.91 Introduction of the application

15.10.91 Registration of the application

Examination of admissibility

02.04.92 Commission's decision to invite the parties to submit

observations on the admissibility and merits of the

complaint under Article 6(3)(c).

Commission's decision to declare the other complaints

inadmissible

01.07.92 Government's observations

14.08.92 Applicant's observations

02.12.92 Transfer of the case from the First Chamber to the

Plenary

09.12.92 Commission's decision to declare the remainder of the

application admissible.

Examination of the merits

09.12.92 Commission's deliberations on the merits

09.02.93 Government's observations

25.02.93 Applicant's observations

03.04.93 Commission's consideration of the state of proceedings

04.05.93 Commission's deliberations on the merits, final votes

and adoption of the Report

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