EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 18711/91
B.
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 4 May 1993)
TABLE OF CONTENTS
page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . .1-2
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . .1-2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-40) . . . . . . . . . . . . . . . . . . . .3-6
A. Particular circumstances of the case
(paras. 16-26). . . . . . . . . . . . . . . . . .3-4
B. Relevant domestic law and practice
(paras. 27-40). . . . . . . . . . . . . . . . . .4-6
III. OPINION OF THE COMMISSION
(paras. 41-51) . . . . . . . . . . . . . . . . . . . .7-8
A. Complaint declared admissible
(para. 41). . . . . . . . . . . . . . . . . . . . .7
B. Point at issue
(para. 42). . . . . . . . . . . . . . . . . . . . .7
C. Article 6 para. 3(c) of the Convention
(paras. 43-50). . . . . . . . . . . . . . . . . .7-8
CONCLUSION
(para. 51) . . . . . . . . . . . . . . . . . . . . . . .8
DISSENTING OPINION OF MR. HENRY G. SCHERMERS
AND SIR BASIL HALL. . . . . . . . . . . . . . . . . . . . 9-10
APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . 11
APPENDIX II DECISION ON THE ADMISSIBILITY. . . . . . .12-16
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a British citizen born in 1960 and resident in
Glasgow. He is represented before the Commission by Mr. Desmond Queen,
solicitor, practising in Glasgow.
3. The application is directed against the United Kingdom. The
respondent Government are represented by their Agent,
Mrs. Audrey Glover of the Foreign and Commonwealth Office.
4. The case concerns the applicant's complaints under
Article 6 para. 3(c) of the Convention that he did not receive legal
aid to be represented at the hearing of his appeal and that he had as
a result to present his appeal in person.
B. The proceedings
5. The application was introduced on 4 April 1991 and registered on
22 August 1991.
6. On 2 April 1992, the Commission decided to communicate the
application to the respondent Government and to ask for written
observations on the admissibility and merits of the complaint under
Article 6 para. 3(c) of the Convention.
7. The Government submitted their written observations on
7 July 1992. The applicant submitted his observations on
24 September 1992.
8. On 2 September 1992, the Commission granted the applicant legal
aid.
9. On 9 December 1992, the Commission declared the application
admissible under Article 6 para. 3(c) of the Convention. The parties
were then invited to submit any additional observations on the merits
of the application, but they did not take advantage of this
opportunity.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. In the light of the parties' reactions, the
Commission finds that there is no basis on which a friendly settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
12. The text of the Report was adopted by the Commission on
4 May 1993 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
13. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. A schedule setting out the history of the proceedings before the
Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
16. Between 29 March and 10 April 1990, the applicant stood trial in
the High Court of Justiciary sitting in Edinburgh. He was accused of
five charges - three charges of offences concerning a firearm, a charge
of wilful damage and a charge of assault and armed robbery.
17. The applicant received legal aid for his trial and was
represented by solicitor and counsel.
18. During the course of the trial a prosecution witness, a Mrs. G.,
entered the courtroom prior to giving evidence, to speak to a co-
accused of the applicant against whom charges had been dropped. When
the trial judge was made aware of this by counsel for the applicant,
he adjourned the case and instructed the Advocate Depute, the
prosecuting counsel, to make further enquiries into the matter. Upon
receiving the report of the Advocate Depute, the trial judge concluded
that Mrs. G.s' appearance in court for a period of 20 minutes had not
been the result of culpable negligence on the part of the Crown and,
moreover, in the light of the evidence being led at the time when
Mrs. G. was in the court and the evidence which the Crown indicated she
herself would be giving, no injustice would be done in admitting
Mrs. G. as a witness. He therefore exercised his discretion to do so.
Counsel for the applicant subsequently had the opportunity to cross-
examine Mrs. G. on the matter of her attendance in court.
19. Mrs. G. subsequently provided evidence in support of the
prosecution case.
20. The applicant was convicted of the charges and sentenced to eight
years' imprisonment.
21. The applicant indicated his intention to appeal against
conviction to the Clerk of the High Court of Justiciary on
17 April 1990. A Note of Appeal was thereafter lodged by the
applicant's solicitors on 13 June 1990. Two of the six grounds of
appeal were concerned with the trial judge's decision to admit the
witness.
22. The applicant made an application for legal aid in or about May
or June 1990. The application to the Scottish Legal Aid Board was
accompanied by a memorandum for legal aid, a copy of the note of
appeal, a supplementary statement of the grounds of appeal and a copy
of the judge's summing-up to the jury. The original indictment and a
note of previous convictions were also lodged.
23. In their letter of 25 July 1990, the Scottish Legal Aid Board
informed the applicant that the information it had received was
insufficient and required the opinion of counsel as to the prospects
of success of the appeal. The applicant had already obtained an
Opinion dated 10 June 1990 and this was forwarded to the Scottish Legal
Aid Board as was a Supplementary Opinion dated 6 September 1990. These
opinions were inconclusive, counsel stating that he had been provided
with insufficient material on which to assess the merits of the appeal.
As the applicant and his trial solicitor disagreed with the advice of
counsel, the applicant states that a copy of a letter from the trial
solicitor expressing this disagreement was also sent. A letter dated
2 November from the applicant's new solicitors to the Scottish Legal
Aid Board records that counsel had informed them by telephone that he
did not support the appeal and that consequently they could no longer
support the legal aid application or appeal and that they agreed with
counsel's view.
24. On 14 November 1990, the Scottish Legal Aid Board informed the
applicant that his application for legal aid had been refused as the
Board was not satisfied that the applicant had substantial grounds for
making an appeal. By letter of 11 December 1990, the Board added that
it was not satisfied that there was any merit in the appeal.
25. The applicant continued to receive the advice of his solicitor,
but as solicitors have no rights of audience in the High Court of
Justiciary and counsel could not be instructed because of the refusal
of legal aid, the applicant had to present the case himself on
24 January 1991 in Edinburgh. The Crown was represented by counsel.
The applicant had no legal knowledge and received no assistance with
his submission to the court.
26. The appeal court considered the first two grounds of appeal
relating to Mrs. G. and held that these were ill-founded and that the
trial judge had approached the matter properly. As the applicant did
not address the court on the remaining grounds of appeal, these were
not considered by the court. It did however consider the other points
raised by the applicant but reached the "clear conclusion that there
was no miscarriage of justice in this case". The appeal against
conviction was unanimously dismissed.
B. Relevant domestic law and practice
Appeals against conviction by persons convicted on indictment
27. Pursuant to section 228 of the Criminal Procedure (Scotland) Act
1975 every person convicted of a criminal charge on indictment in
Scotland has a right of appeal to the High Court of Justiciary against
conviction or sentence or both.
28. In an appeal, the appellant may bring under review by the Court
any alleged miscarriage of justice in the proceedings.
29. An appeal is heard by a bench of not less than three judges. At
the hearing of the appeal the appellant or his counsel if he is
represented makes submissions to the Court in support of the grounds
of appeal. The Court is then addressed by counsel for the Crown.
30. In disposing of an appeal against conviction the High Court may
affirm the verdict of the trial court; set aside the verdict of the
trial court by either quashing the conviction or by substituting an
amended verdict of guilty; or set aside the verdict of the trial court
and authorise a new prosecution (section 254 of the Criminal Procedure
(Scotland) Act 1975).
Availability of legal aid for criminal appeals
31. Legal aid is available for appeal against conviction or sentence
where the applicant qualifies on financial grounds and where "he has
substantial grounds for making the appeal and it is reasonable in the
particular circumstances of the case that legal aid should be made
available to him" (Legal Aid (Scotland) Act 1986 section 25(2)).
32. The administration of legal aid in Scotland, including decisions
as to the granting of legal aid for criminal appeals, is the
responsibility of the Scottish Legal Aid Board, an independent body
established on 1 April 1987 whose members are appointed by the
Secretary of State for Scotland.
33. Legal aid which has been made available for a trial on indictment
extends, where the accused person is convicted, to include
consideration and advice by a solicitor on the question of the appeal.
A Note by Counsel on the prospects of an appeal can be obtained under
this grant of legal aid, where Counsel has been previously involved on
the appellant's behalf in the proceedings.
34. To obtain legal aid to proceed with an appeal, a further
application to the Scottish Legal Aid Board is required. The solicitor
preparing the Note of Appeal will, where appropriate, arrange to obtain
the opinion of Counsel as to the prospects of the appeal, and will
lodge this with the application for legal aid.
35. Applications for legal aid for criminal appeals are determined
by the Board, which includes at least 2 practising members of the
Faculty of Advocates, at least 2 members of the Law Society of Scotland
and at least one other person having experience of the procedure and
practice of the courts.
36. The Board normally reaches a decision as to whether there are
substantial grounds on the basis of the documents before them, which
normally include copies of a Note of Appeal and the Judge's charge to
the jury. The views expressed by the applicant's solicitor and Counsel
will also be taken into account in the Board's consideration.
37. Although the legislation does not provide for a formal review,
the Board will as a matter of practice, when requested to do so,
reconsider an application which has been refused. Such consideration
involves reference by the Board to an external reporter who was not
involved in the initial decision to refuse the application and who
reports to the Board on the merits of the application.
38. In a solemn criminal appeal where legal aid has been refused, if
the Appeal Court considers that, prima facie, an appellant may have
substantial grounds for taking the appeal and it is in the interests
of justice that the appellant should have legal representation in
arguing these grounds, the Court ex proprio motu may adjourn the
hearing and make a recommendation that the Board's decision to refuse
legal aid should be reviewed.
39. The practice of the Court in this regard was formalised by a
Practice Note to this effect issued on 4 December 1990 by the Lord
Justice General, to all Appeal Court Chairmen and Clerks:
"In any appeal where legal aid has been refused and the court
considers that, prima facie, an appellant may have substantial
grounds for taking the appeal and it is in the interests of
justice that the appellant should have legal representation in
arguing these grounds, the court shall forthwith adjourn the
hearing and make a recommendation that the decision to refuse
legal aid should be reviewed."
40. The Scottish Legal Aid Board has decided that where a
recommendation is made by the Court in criminal appeal cases that a
decision to refuse legal aid should be reviewed, they will grant legal
aid. The Manual of Procedure of the Scottish Legal Aid Board provides
in para. 6.12:
"In any criminal appeal where legal aid has been refused, and the
Appeal Court considers that the appellant may have substantial
grounds for taking the appeal, and it is in the interests of
justice that the appellant should have legal representation in
arguing those grounds, the Appeal Court can adjourn the hearing
and recommend that the Board re-considers the decision to refuse
legal aid.
In these circumstances, the Board will receive a letter from the
High Court of Justiciary giving the details of the case where
they are recommending a re-consideration of the decision to
refuse. If we are asked to re-consider a decision in these
circumstances, then the application should be granted
automatically. The case need not be seen by a reporter or Board
solicitor, but ought to be referred to the Assistant Manager for
the appropriate action."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
41. The Commission has declared admissible the applicant's complaint
that he was refused legal aid for the hearing of his appeal against
conviction.
B. Point at issue
42. The issue to be determined is whether there has been a violation
of Article 6 para. 3(c) (Art. 6-3-c) of the Convention.
C. Article 6 para. 3(c) (Art. 6-3-c) of the Convention
43. Article 6 para. 3(c) (Art. 6-3-c) provides that:
"3. 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".
44. The applicant submits that the refusal of legal aid for his
appeal against conviction was in violation of the above provision. He
states that very serious matters were at stake in his appeal and that
the interests of justice required that he receive legal representation
since he was unable to present the arguments properly himself or to
highlight the points of his appeal as proper legal representation would
have done.
45. The Government submit that Article 6 para. 3(c) (Art. 6-3-c) does
not bestow a right to receive legal aid where an appeal has "no
objective likelihood of success" and refer to the Monnell and Morris
case (Eur. Court H.R., Monnell and Morris judgment of 2 March 1987,
Series A no. 115, p. 25, para. 67). In this case, the Government recall
that the applicant's counsel advised that the applicant had no ground
of appeal against conviction and, in their submission, there was
nothing complex in the case either factually or legally which indicated
that the interests of justice required legal representation. The
Government also emphasise that there is an automatic right of appeal
in Scotland without any requirement to obtain leave for appeal.
46. The Commission recalls that Article 6 para. 3 (Art. 6-3-c)
contains an enumeration of specific rights of the defence. They
exemplify the notion of fair trial in respect of typical procedural
situations which arise in criminal cases, but their intrinsic aim is
always to ensure, or contribute to ensuring, the fairness of the
criminal proceedings as a whole. The guarantees enshrined in Article 6
para. 3 (Art. 6-3) must accordingly be interpreted in the light of the
function which they have in the overall context of the proceedings (cf.
Can v. Austria, Comm. Report 12.7.84, para. 48, Eur. Court H.R.,
Series A no. 96, p. 15). The manner in which the guarantees apply in
relation to appellate or cassation courts may also be influenced by the
special features of those proceedings including the nature of the
procedure and the powers of the appellate body concerned (Monnell and
Morris judgment loc. cit., p. 22, para. 56).
47. The right to free legal assistance guaranteed by Article 6
para. 3(c) (Art. 6-3-c) is subject to two conditions: that the
individual concerned does not have sufficient means to pay for legal
assistance and that "the interests of justice" require it. It is not
in dispute that the first condition was satisfied in the present case.
The only issue is whether "the interests of justice" required that the
applicant be granted legal aid before the High Court.
48. When determining whether "the interests of justice" required
legal representation, the Commission must examine each case on its
facts. While the likelihood of success and the availability of legal
assistance at other stages of the proceedings are significant factors
to be taken into account, they are not the sole criteria. Other
factors in assessing the requirements of "the interests of justice"
include the importance of what is at stake for the applicant, e.g. the
severity of the sentence, the personal ability of the applicant and the
nature of the proceedings, e.g. complexity or importance of the issues
or procedures involved (cf. Eur. Court H.R., Granger judgment of
28 March 1990, Series A no. 174, pp. 18-19, paras. 47-48 and Comm.
Report 12.12.88, loc.cit, pp. 24-25, paras. 50-52).
49. In the present case, the Commission notes that several of the
features present in the Granger case are absent. In particular in the
Granger case the appeal concerned acknowledged "difficult" legal
distinctions of some complexity and during the proceedings the court
adjourned in order to obtain a transcript of evidence so as to be able
to examine the matter more thoroughly. Nonetheless there was a legal
issue before the appeal court in this case as to whether the judge had
properly exercised his discretion to admit Mrs. G. as a witness.
Further the present applicant was appealing against a conviction for
which he had received a sentence of eight years' imprisonment. There
is consequently no question as to the importance of what was at stake
in the appeal.
50. The Commission recalls that the High Court has wide powers as to
the disposing of appeals and that the procedure is not limited but
allows any alleged miscarriage of justice to be challenged. The
proceedings involve an oral hearing at which the Crown is automatically
represented. The Commission notes that the Scottish system affords an
automatic right of appeal in all cases. However where appeals are
provided for, the guarantees of Article 6 para. 3(c) (Art. 6-3-c)
cannot be evaded on the ground of the other incidental benefits of the
system. The effectiveness of the contribution by an unaided applicant
to appeal hearings at which the prosecution is represented by counsel,
and consequently the fairness of those proceedings, must be seriously
in doubt. Therefore, having regard in the present case to the nature
of the proceedings and the length of sentence at stake, the Commission
finds that the interests of justice required the provision of legal
assistance.
CONCLUSION
51. The Commission concludes, by 17 votes to 2, that there has been
a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
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 a lengthy term
of imprisonment - in his case eight years. In other respects there was
little similarity between his case and that of Mr. Granger. It is
clear that he understood the grounds of his appeal. No difficult legal
problem like the issue over "precognitions" arises in his case.
The substantial ground of his appeal was that Mrs. G., a witness
for the prosecutor had come into Court while evidence for the
prosecutor was being given, and that in these circumstances the trial
judge should have exercised his discretion not to admit the witness's
evidence. The trial judge after hearing counsel for the applicant and
for the prosecutor concluded that the witness should give evidence.
The evidence being given when Mrs. G. came into the Court was of a
technical character and unrelated to the evidence which Mrs. G. could
give.
The applicant appealed against his conviction. New solicitors
and a new counsel were acting for him. It appears that at that stage
he was legally aided for the purpose of obtaining advice on an appeal.
Both had some difficulty, it appears, in finding out what had happened
at the trial, and in particular what objection had been taken to the
witness giving evidence. When the information was obtained their
conclusion was that there was no ground for an appeal. That conclusion
was made known to the Legal Aid Board who concluded that they were not
satisfied that there was any merit in the appeal, and did not authorise
legal aid for the appeal.
Notwithstanding that the applicant pressed on with his appeal.
In these circumstances we do not consider that the interests of justice
required that he should have been given legal aid at the hearing (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
________________________________________________________________
04.04.91 Introduction of the application
22.08.91 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).
07.07.92 Government's observations
24.09.92 Applicant's observations
02.09.92 Commission's grant of legal aid for the applicant
09.12.92 Commission's decision declaring the application
admissible
Examination of the merits
09.12.92 Commission's deliberations on the merits
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
Full & Egal Universal Law Academy