CONCURRING OPINION OF JUDGE DE MEYER

My reasoning in Boner v. the United Kingdom (judgment of 28 October 1994, Series A no. 300-B) also applies to 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 Maxwell ’ 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. It was accepted by all the solicitors and counsel who were instructed on his behalf at the time that his appeal had no likelihood of success; 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 Maxwell might have had substantial grounds for taking the appeal, then, in conformity with the practice introduce d in the wake of the Granger [1] 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 Maxwell should be given free legal assistance for the hearing of his appeal. Justice should not only be done, it should also be seen to be done. The appeal raised various issues of some complexity and Mr Maxwell ’ s conviction had led to the imposition of a sentence of five years ’ imprisonment. As regards the view taken by Mr Maxwell ’ 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 Maxwell 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 Maxwell ’ 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 31/1993/426/505.  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-C of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[1] Granger v. the United Kingdom judgment of 28 March 1990, Series A no. 174.