AS TO THE ADMISSIBILITY OF
Application No. 13731/88
by Arthur BARRIE
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 11 February 1988
by Arthur BARRIE against the United Kingdom and registered on 5 April
1988 under file No. 13731/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1964 and resident
in Glasgow. He is represented by Mr. John Carroll, a solicitor
practising in Glasgow. The facts as submitted by the applicant may be
summarised as follows.
The applicant is a 24 year old unemployed man suffering the
handicap of profound deafness and an inability to communicate by
speech.
In early 1986, the applicant began a relationship with a Miss
B. As a result of the relationship, Miss B gave birth to a child Lucy
Ann on 10 November 1986.
By letter dated 6 February 1987 the applicant received an
intimation copy of Miss B's application for legal aid to raise an
action for Interdict and Interim Interdict to prevent the applicant
molesting her or removing her child. He consulted a solicitor and, in
accordance with procedure, a letter objecting to Miss B's application
for legal aid was submitted. It was pointed out, to the legal aid
authorities, that the circumstances were that the applicant was a deaf
mute. He did have a relationship with Miss B and that relationship
ended about May 1986. The last contact the applicant had with Miss B
resulted in criminal proceedings being taken against him. The
applicant had been charged with assaulting Miss B with a pair of
scissors on 8 December 1986. In addition, the applicant wished it to
be known that he had not threatened to remove the applicant's child
from her care.
On 3 April 1987, the applicant was served with a copy of the
Interim Interdict granted to Miss B on 27 March 1987 in his absence
and summoned to a diet before the Sheriff on 10 April 1987.
On 7 April 1987 the applicant lodged an application for
emergency legal aid with the Scottish Legal Aid Board. The rules
required that that application be followed up with a full application
for legal aid, the emergency cover being for a very limited period
only. A certificate of emergency legal aid was granted on 7 April
1987.
The applicant attended the Sheriff's court on 10 April 1988
with his solicitor. The Sheriff continued the Interim Interdict and
attached thereto a power of arrest. The Interim Interdict ordered the
applicant not to molest Miss B in any way by abusing her or
threatening her or by putting her in a state of fear and alarm or
distress or by using violence towards her and also ordered the
applicant not to remove Miss B's child.
The applicant, through his solicitors, thereafter lodged a
full application for legal aid and this was duly considered by the
Scottish Legal Aid Board.
By letter dated 2 September 1987 the applicant was advised
that the application had been refused because it was unreasonable that
he should receive legal aid in the particular circumstances of the
case and that it had not been shown that there was probable cause of
action. Further explanation was sought of the Scottish Legal Aid
Board and the Board advised that, in their opinion, "there is no
probable cause that * would be unreasonable to make
legal aid available. No defence has been put forward and it is not
accepted that a defence in a civil trial would impinge on criminal
proceedings".
The applicant applied for a review of the decision and
stressed that he was profoundly deaf and incapable of speech. By
letter dated 10 November 1987, the Scottish Legal Aid Board maintained
its decision.
The criminal proceedings against the applicant, who had
pleaded not guilty, were deserted by the prosecution on 8 December
1987.
COMPLAINTS
The applicant alleges violations under Article 6 of the
Convention on the ground that he was denied access to the Court to
challenge the interdict by the refusal of legal aid when the interests
of justice required that it be granted. The applicant was in receipt
of supplementary benefit amounting to £1,240.20 per annum. The
allegations within the condescendence of the writ were of criminal
conduct on the part of the defender (applicant). He denied the
substantive elements of the condescendence. The allegations also
formed part of a criminal charge on which the applicant had appeared
in Court and had pleaded not guilty.
THE LAW
The applicant complains of being denied access to court by a
refusal of legal aid, and invokes Article 6 (Art. 6-1) of the
Convention, which, in its first sentence of paragraph 1, provides,
inter alia:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established
by law."
The Commission must first consider whether the proceedings in
respect of which the applicant was refused legal aid involved the
determination of a criminal charge against him or of any of his civil
rights or obligations. The Commission recalls that the applicant was
the defender in proceedings brought by Miss B for an Interdict and
Interim Interdict ordering the applicant not to molest her or use
violence towards her and not to remove Miss B's child. The Interim
Interdict granted to Miss B on 27 March 1988 was continued in those
terms on 10 April 1988 following a hearing at which the applicant was
present and represented. The applicant was refused legal aid for
representation either to appeal or to defend further proceedings in
the matter. The Commission finds that these proceedings do not
involve the determination of a criminal charge.
__________
* the text of the opinion as sent to the applicant
appears to omit several words
The Commission also finds that they do not involve the
determination of any of the applicant's civil rights and obligations,
since the subject-matter of the proceedings, the Interim Interdict,
forbids behaviour already prohibited by the criminal law and places no
additional restrictions upon the applicant and does not prohibit him
from doing anything which he would otherwise have had the right to do.
It therefore follows that the applicant's complaint is
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)