CONCURRING OPINION OF JUDGE DE MEYER

The "interests of justice" normally require that a person "charged with a criminal offence" be assisted by a lawyer.

Without such assistance very few people are able "to present" their "case in an adequate manner" [1] and "to make an effective contribution to the pro ceedings" [2] .

This is so at each stage of them, and even more so in the higher instances.

It has to be observed thereby that legal assistance is needed, not only in so far as it is "useful ... to the examina tion of the legal questions" [3] in a narrow sense, but also since it is proper to ensure that the facts be ascertained, understood and appraised in a legally relevant manner.

The burden of proving that the interests of justice require legal assistance must not be laid upon the accused person. In order legitimately to dispense with such assistance, if the person concerned has not knowingly and willingly waived it, it has to be clearly and convincingly established that they do not require it in the instance concerned.

There were no valid reasons for such an exception in the circumstances of the present case.

CONCURRING OPINION OF SIR JOHN FREELAND

1.   I have voted with the other members of the Court for the finding that there has been a violation of paragraph 3 (c) of Article 6 (art. 6-3-c), but the reasoning which has led me to this conclusion has in certain respects differed from theirs.

2.   On the one hand, the material before the Court has to my mind gone far to demonstrate that the possibility of Mr Boner ’ s having in fact suffered any substantive injustice by virtue of his lack of legal representation at the hearing of his appeal is extremely remote. His solicitors and counsel had, in accordance with their rules of professional conduct, declined to continue to act for him because they had come to the view that the grounds of appeal could not be supported; and the Scottish Legal Aid Board had refused his application for legal aid for the appeal because it was not satisfied that there were substantial grounds for making the appeal. He nevertheless exercised the unfettered right of appeal to which every person convicted of a criminal charge in Scotland is entitled. The appellate court judges would have been provided, well in advance of the hearing, with the appellant ’ s written grounds of appeal, to which no answers were submitted by the prosecution, and with the other papers in the case. They would have known in advance that the appellant was to be unrepresented. In their prior consideration of the matter and at the hearing itself they would have taken particular care to determine whether any of the grounds advanced by him, however inexpertly argued, might raise a point of substance. In accordance with long tradition, they would have been at pains to ensure that he, as an appellant in person, was treated with courtesy and consideration and was not placed in a humiliating or distressing position as a result of his lack of legal expertise. Counsel for the Crown, who apparently took no active part in the hearing, would have been under a duty to draw to the court ’ s attention any substantial arguments of which he was aware that might weigh in the appellant ’ s favour. Lastly, if at any stage the court had concluded that Mr Boner might have had substantial grounds for taking the appeal, then, in conformity with the practice introduced in the wake of the Granger case, it would have immediately adjourned the hearing and legal assistance would have been provided.

3.   On the other hand, even if, as I believe, no substantive injustice has been established, that does not dispose of the question whether, in the words of sub-paragraph 3 (c) of Article 6 (art. 6-3-c), "the interests of justice" required that Mr Boner should be given free legal assistance for the hearing of his appeal. As we were reminded in argument, justice should not only be done, it should also be seen to be done. The appeal raised a legal issue concerning the exercise of the trial judge ’ s discretion and Mr Boner ’ s conviction had led to the imposition of a sentence of eight years ’ imprisonment. As regards the view taken by Mr Boner ’ s solicitors and counsel and by the Legal Aid Board of the prospects of success of an appeal, lawyers may of course disagree; and it was clear from the pleadings of the Government themselves that there have been cases in which legal aid has been refused yet counsel has subsequently appeared for an appellant and won his appeal. More importantly, the Crown was represented at the hearing of the appeal (as it is in all comparable cases) by counsel who was present and able to advance a legal argument if called upon by the court to do so. Admittedly he was not called upon; but that might be simply because the absence of legal assistance left Mr Boner unable to persuade the court that he had an argument which required a response. Given that there was a legal issue to be addressed on Mr Boner ’ s appeal and that, having regard to the severity of his sentence, so much was at stake for him, I am satisfied that his lack of legal representation for the hearing, when counsel for the Crown was present, produced at least the appearance of injustice.

4.   I have therefore, on balance, concluded that the "interests of justice" should have been regarded as requiring the grant to him of free legal assistance for the hearing of his appeal and that failure to grant such assistance amounted, in the circumstances, to a violation of Article 6 para . 3 (c) (art. 6-3-c).

[*]  The case is numbered 30/1993/425/504.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 300-B of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[1] Quaranta v. Switzerland judgment of 24 May 1991, Series A no. 205, p. 18, para . 36.

[2] Granger v. the United Kingdom judgment of 28 March 1990, Series A no. 174, p. 19, para . 47.

[3] Pakelli v. Germany judgment of 25 April 1993, Series A no. 64, p. 18, para . 38.