AS TO THE ADMISSIBILITY
Application No. 12322/86
by Robert BELL
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 October 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
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 4 June 1986
by Robert Bell against the United Kingdom and registered on 8 August
1986 under file No. 12322/86;
Having regard to
- reports provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Commission's decision of 3 December 1986 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
18 March 1987 and the observations in reply submitted by
the applicant on 1 May 1987;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1936 and resident
in Glasgow. He is represented before the Commission by Mr. John
Macaulay, a solicitor. The facts which do not appear to be in dispute
between the parties may be summarised as follows.
Towards the end of July 1985, the applicant was interviewed by
the police and charged with committing assault on a neighbour and
breaching the peace on 19 July 1985. The applicant appeared at the
Glasgow District Court on 10 January 1986 and pleaded not guilty to
both charges. The trial was fixed for 4 March 1986.
On 14 February 1986 the applicant instructed his solicitor to
apply for legal aid to defend himself against the charges. As is the
practice, the application was made through the post to the clerk of
the Court and contained details of the applicant's financial position,
a copy of the charges and a statement of the applicant's defence. The
applicant's income consisted of £72 per week state invalidity benefit
on which he had also to support a wife and two children. His defence
to the charge was that the alleged incidents did not take place.
There was a history of ill-feeling between the applicant and the
neighbour who had accused him of assault and the solicitor also
enclosed details of this. The application was however rejected on
24 February 1986 as not being in the interests of justice.
On 4 March 1986 neither the complainant (the neighbour) nor
her witness (the neighbour's mother) appeared in court and an
adjournment was granted until 8 April 1986. On 8 April 1986 after
trial before a lay justice the applicant was found not guilty of both
charges. In fact the prosecution abandoned the case after hearing the
evidence of the second witness, since the evidence of this witness was
totally inconsistent with the evidence of the first. The prosecution
was conducted by the Procurator Fiscal Depute, who is a qualified
solicitor.
The applicant now owes a bill of £300, incurred in connection
with instructing a solicitor to defend him and which he is unable to
pay. The solicitor had appeared for him at the trial and
cross-examined both witnesses. The applicant has a record of previous
convictions and could have faced a prison sentence if found guilty.
COMPLAINTS
The applicant's principal complaint is that he did not have
adequate facilities for the preparation of his defence since, without
legal aid, he was unable to pay for his solicitor to interview the
witnesses and adequately prepare the case before the trial. He also
complains that his financial circumstances and the interests of
justice required that he receive legal aid. The applicant accordingly
invokes Article 6 para. 3 (b) and (c) of the Convention.
The applicant also complains that the Magistrate who decided
to reject his complaint must have decided that he was guilty already,
otherwise his application for legal aid would not have been refused.
He invokes Article 6 para. 2 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 June 1986 and registered
on 8 August 1986.
The Commission first examined the question of admissibility of
the application on 3 December 1986 and decided to invite the
respondent Government to submit observations in writing on the
admissibility and merits of the application with regard to the
applicant's complaints under Article 6 para. 3 (c) of the Convention.
The Government submitted their observations on 18 March 1987, to which
the applicant replied on 1 May 1987, having been granted legal aid by
the President of the Commission on 8 April 1987.
SUBMISSIONS OF THE PARTIES
A. The Government
(a) The facts
The applicant's legal aid application was placed before the
stipendiary magistrate on 24 February 1986. Neither the application
nor the covering letter made reference to any previous convictions of
the applicant; in consequence any such convictions were not known to
and could not be taken into account by the Magistrate who considered
the legal aid application. The Magistrate refused the application
because he did not consider that in all the circumstances of the case
it was in the interests of justice that legal aid should be available
to the applicant.
(b) Relevant domestic law and practice
The provisions of Scots law as to the availability of legal
aid in relation to criminal proceedings were at the relevant time to
be found in the Legal Aid (Scotland) Act 1967 and in subordinate
legislation made thereunder. The 1967 Act was repealed and
re-enacted, with some changes, by the Legal Aid (Scotland) Act 1986,
which came into operation on 1 April 1987.
The Legal Aid (Scotland) Act 1967 provides that legal aid is
available in relation to summary proceedings where the court before
which the proceedings are being taken
(a) is satisfied after consideration of the financial
circumstances of the accused that the expenses of the case cannot be
met without undue hardship to the accused or his dependants, and
(b) "considers that in all the circumstances of the case it is
in the interests of justice that legal aid should be available to the
accused". Legal aid may also be refused if the court is satisfied
that an applicant for legal aid has available rights or facilities
making it unnecessary for him to obtain legal aid, or has a reasonable
expectation of obtaining financial or other help from a body of which
he is a member.
At the relevant time there was no statutory definition of what
matters should be taken into account in determining whether it is in
the interests of justice that legal aid should be available. In
relation to the District Court, however, the Secretary of State has
from time to time suggested certain factors which may suggest that it
is in the interests of justice that legal aid should be made
available. At present these suggested factors, which are neither
definitive nor binding, are as follows:
a. that the charge is a grave one which, if proved, is such
that the accused is at serious risk of loss of liberty or
livelihood;
b. where the accused is unable to follow the proceedings and
state his own case because of his inadequate knowledge of
English, mental illness or other mental or physical
disability;
c. where the nature of the defence involves expert
cross-examination of a witness for the prosecution;
d. where legal representation is desirable in the interests
of someone other than the accused, for example in cases
involving children where it would be undesirable that the
accused himself should cross-examine witnesses.
These guidelines suggest that each court will have evolved its
own approach to the criteria "for the interests of justice", but that
where the charge is relatively trivial and the probable sentence, if
the accused is convicted, a comparatively small fine, the decision
that the accused should be defended at public expense with legal aid
would not normally be justified.
Remedies where criminal legal aid is refused
The decision of a court on the merits of an application for
criminal legal aid is declared by Rule 9 of the Rules for Legal Aid in
Criminal Proceedings 1964 to be final; but it is open to an applicant
at any time to make a further application for the consideration of the
court on the ground either that there has been a material change in
his financial circumstances or that he has additional facts affecting
his eligibility for legal aid to bring to the notice of court.
Further, if in reaching its decision the court acted oppressively or
if it exercised its statutory discretion so improperly as to indicate
that it had not in fact reached its decision on the merits at all, it
would be possible to challenge that purported decision by an
application to the nobile officium (the equitable jurisdiction) of
the High Court of Justiciary. Until recently it was thought that
judicial review might be available. It was held earlier this year,
however, by the Court of Session that this was not so, at least where
the refusal of legal aid was by the court. The latter decision is
presently subject to appeal.
Status and powers of the District Court
The District Court has only a summary jurisdiction and deals
with prosecutions which are thought not to be sufficiently serious to
be dealt with by a Sheriff. The jurisdiction of the District Court is
normally exercised by one or more Justices of the Peace, who are
laymen without legal qualifications, assisted by a legally qualified
clerk; the maximum terms of imprisonment which may be imposed by the
District Court, so constituted, is 60 days and the maximum fine
£1,000. In certain cases, however, the District Court may be
constituted by a Stipendiary Magistrate, who is a full-time legally
qualified judge; when so constituted, the District Court has the same
summary criminal jurisdiction and powers as a Sheriff, that is in
general to impose a period of imprisonment not exceeding 3 months and
a fine not exceeding £2,000.
The role of the prosecutor in Scottish criminal proceedings
The prosecutor in all criminal proceedings before the Sheriff
and the District Courts is a Procurator Fiscal. Procurators Fiscal
are appointed by the Lord Advocate from persons who are qualified as
advocates or as Scottish solicitors and act under his direction. When
they appear as prosecutors in court, they do so for the Crown. The
interest of the Crown is to see that justice is done rather than
merely to procure a conviction. The Procurator Fiscal therefore has a
duty to ensure that all material evidence is laid before the Court,
whether or not such evidence is in favour of the Crown case, with the
object of ensuring that only the guilty are convicted and in general
that justice is done. A Procurator Fiscal will thus lead all evidence
which appears to him to be relevant including evidence which would
point to acquittal as well as evidence pointing to conviction.
The Legal Aid (Scotland) Act 1986
When the Legal Aid (Scotland) Act 1986 was brought into force
on 1 April 1987, responsibility for granting legal aid in relation to
summary proceedings in the District Court was transferred from the
court to the Scottish Legal Aid Board, an independent body established
by the Act to administer legal aid and advice and assistance in
Scotland. The criteria for making legal aid available continue to be
the financial circumstances of the accused and whether in all the
circumstances of the case it is in the interests of justice that legal
aid should be made available to him. The Act specifies certain factors
which are to be taken into account by the Board in determining whether
it is in the interests of justice that criminal legal aid should be
made available; the Board will also take into account any other
factors which appear to it to be relevant in relation to a particular
application. The Act requires the Board to establish a procedure
under which any person whose application for criminal legal aid in
summary proceedings has been refused may apply to the Board for a
review of his application. It is now also possible to apply to the
Court of Session for judicial review of any decision of the Board
which is thought to be illegal or oppressive.
(c) Admissibility and merits
i. Exhaustion of domestic remedies
In the Government's submission, the applicant has failed to
exhaust all domestic remedies in respect of this complaint as required
by Article 26 of the Convention. A person who has been refused legal
aid has the right at any time to make a further application for the
consideration of the court on the ground that he has additional facts
affecting his eligibility for legal aid to bring to the notice of the
court. In his letter to the Commission dated 1 August 1986 the
applicant's representative states that Mr. Bell "had such a police
record that there is every probability that he would have received a
custodial sentence". The Government would not necessarily accept that
this was the case. But in any event, as is indicated above, this
matter (to which the applicant could have drawn attention in his
initial application or in a subsequent application) could clearly be
relevant to the Court's consideration of whether in a particular case
legal aid should be made available. If this fact was not made known
to the court at the time of the original application, it would appear
to be such an additional fact affecting his eligibility as would
entitle him to make a further application following refusal.
Additionally, although it is agreed that, apart from the
possibility of a further application, the refusal of legal aid by a
court, so long as that refusal is within the law, is final, illegality
or oppressiveness on the part of a judge can be challenged in the
superior courts, as explained above.
ii. Substantive issues
Before a person is entitled to be given free legal assistance
under Article 6 para. 3 (c) of the Convention two conditions have to
be fulfilled. First, the applicant must not have sufficient means to
pay for legal assistance. Second, the interests of justice must
require that he be given free legal assistance. In the present case,
the Government do not seek to suggest that the applicant had
sufficient means. The principal question that arises is therefore
whether, in the circumstances of the case, the interests of justice
required that he be given free legal assistance. The Government
submit that they did not.
In considering Mr. Bell's application for legal aid, the court
concluded that in all the circumstances of the case it was not in the
interests of justice that legal aid should be available to the
accused. In the Government's submission it would not be appropriate
for the Commission to seek to substitute its own judgment of this
matter, long after the event, for that of the national authority
concerned. It would be consistent with the case-law under the
Convention in this and other fields if the Commission were to confine
its investigation to considering whether, in all the circumstances,
the national court gave proper consideration to the question whether
the interests of justice required free legal aid (see, for example,
No. 5871/2, Dec. 30.9.74, D.R. 1 pp. 54, 55; Nos. 3104/67 and
3168/67, Decs. 5.4.68, cited in Yearbook 11 pp. 488, 490). The
Government submit that in the present case there is no indication
that, in refusing legal aid, the court did not give proper
consideration to the question whether the interests of justice
required that it be granted.
Three aspects may be relevant to the question whether the
interests of justice required that the applicant be given legal aid:
(a) the degree of complexity of the case; (b) the seriousness of the
case i.e. the likely outcome if the applicant were found guilty;
(c) the fact that the prosecution was conducted by a legally
qualified person.
It is clear from the case-law that a principal consideration
is the legal and factual complexity of the case. Thus in No. 8000/77,
(Dec. 9.5.78 unpublished except as regards other aspects in D.R. 13
p. 81) the Commission stated (at p. 13 of its Decision):
"Moreover, the Commission considers that the applicant's
case was not so complex in law or fact as to require the
intervention of a lawyer in the interests of justice,
this being the only reason where legal assistance must
be granted free of charge."
In the present case, there was no suggestion that the accused
suffered from any disability which would have made it difficult for
him to present his own case or that any complex question of law or
fact might arise.
In the Government's submission, the likely outcome of the
case if the accused is found guilty is a relevant factor, at least in
the sense that, where a case does not raise complex issues of law and
fact, the fact that a severe sentence might be imposed could lead to
the conclusion that the interests of justice required free legal
assistance. So far as the Magistrate was aware in this case the
applicant had no previous convictions and would be treated as a first
offender. On the basis of the information before him, the Magistrate
took the view that the probable sentence, if the accused had been
convicted, would have been no more than a comparatively small fine.
The fact that the prosecution is legally represented may in
certain circumstances be a relevant factor in determining whether the
interests of justice require that the accused be legally represented.
Thus, in its Report in the Pakelli case (Eur. Court H.R., Series B
no 53 p. 9) the Commission found that the participation of a member of
the Office of the Federal Attorney in the hearing of a criminal appeal
before the Federal Supreme Court could not replace, but rather
required, the representation of the case for the defence by a person
with legal knowledge. However, the Pakelli case was one involving
complex legal arguments and is in no way comparable with the present
case. This issue would seem to be closely connected with, and at
least in the present case not distinct from, the question whether the
case raises complex issues of fact or law. In any event, the
Government wish to emphasise that in the Scottish criminal justice
system the prosecutor is always a qualified lawyer, however minor or
straightforward the offence which is charged. As has been explained,
the prosecutor is a public official independent of the police whose
duty is to see that justice is done rather than merely to procure a
conviction. The requirement that the Procurator Fiscal be a qualified
lawyer ensures that persons are prosecuted, even on the most minor of
charges, only after consideration has been given to the merits of the
charge by a person with legal training and experience, and that the
prosecution will be conducted in an impartial manner. It is thus part
of the protection given to accused persons by the criminal justice
system. The Government submit, therefore, that in determining
whether, in a Scottish criminal prosecution, the interests of justice
require that free legal assistance be granted, the fact that the
prosecutor is a qualified lawyer cannot in itself be a sufficient, or
even an important, consideration. Any other view would apparently
lead to the conclusion that Article 6 para. 3 (c) of the Convention
requires in Scotland that any person without sufficient means, however
minor or straightforward the charges against him and whatever the
other circumstances of the case, should always be entitled to free
legal assistance. It is submitted that that cannot be a proper
interpretation of Article 6 para. 3 (c).
B. The applicant
(a) The facts
The applicant does not concede that previous convictions
should have more than an incidental or passing significance in
considering applications for legal aid where an accused maintains
his innocence and chooses to go to trial. The applicant in his
application for legal aid presented a perfectly satisfactory defence
to the charge and the application should have been considered on its
merits alone.
(b) Relevant domestic law and practice
The applicant disputes that the charges against him can be
described as minor. Also what the Government consider a comparatively
small fine may be an enormously heavy fine to an accused such as the
applicant whose income is the minimum state benefit.
Remedies where legal aid is refused
The applicant submits that there is no remedy by way of
nobile officium in such cases and cites the decision of the High
Court of Justiciary in the case of McLachlan.
The District Court
There are eight courts at the Glasgow District Court, four
sitting with Stipendiary Magistrates and four with lay Magistrates.
The chances of appearing before the Stipendiary Magistrate who has
increased powers are 50%.
It is misleading to suggest that the Stipendiary Magistrate's
powers are limited to three months' imprisonment. In appropriate
common law cases, into which category the applicant would have fallen
had be appeared before a Stipendiary Magistrate, their powers are
increased to six months' imprisonment.
Role of the prosecutor
It is inaccurate to suggest that in the applicant's case the
prosecutor was even remotely in a position to present any of the
evidence which led to the applicant's acquittal. It is an elementary
truth of criminal procedure that the roles of prosecutor and defender
can never properly be performed simultaneously by one individual.
(c) Admissibility and merits
The applicant submits that there was a complex background to
this case and that every civilised system of criminal procedure
recognises the undesirability of individuals conducting their own
defence where cross-examination is involved. It is submitted that,
given the complex and detailed nature of the applicant's defence, the
applicant could not have reasonably been expected to make any
effective or useful contribution to the proceedings. The tenor of the
Government's response is that they would wish the great bulk of
summary criminal cases to proceed as pleas of guilty, thereby saving
the expense of free legal assistance to accused persons for trial.
The applicant submits this approach is fundamentally wrong, since an
accused should be under no pressure to plead guilty because he cannot
finance his defence. To agree with the Government's submissions would
have the practical effect of erasing the protection given by Article 6
para. 3 (c) of the Convention.
THE LAW
1. The applicant complains that he was refused legal aid for his
defence although he had insufficient means and allegedly the interests
of justice required that legal aid be granted. The Government has
contended, inter alia, that there is nothing in the present case to
indicate that the Magistrate concerned did not take all relevant
factors into account when deciding that the interests of justice did
not require that legal aid be granted.
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention provides that:
"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".
The Commission does not consider it necessary to decide
whether the applicant has fulfilled the exhaustion of domestic
remedies rule laid down in Article 26 (Art. 26) of the Convention, because it
finds the application anyway inadmissible for the following reasons:
The evaluation of the requirements of the interests of justice under
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention lies in the first place
with the domestic courts. In this respect the Commission notes the guidelines
issued to Justices of the Peace in Scotland concerning legal aid, which
guidelines indicate the relevant factors to be taken into account in deciding
whether it is in the interests of justice that legal aid should be granted.
They include the consideration of whether the charge is grave and, if proved,
would place the accused at serious risk of loss of liberty, whether the accused
is able to follow the proceedings and state his own case and whether the nature
of the defence involves expert examination of a witness for the prosecution.
The applicant alleges, however, that the Magistrate in his
case ignored the interests of justice in refusing him legal aid on
24 February 1986.
The Commission does not find his allegation substantiated by
the facts of the case. There is no indication in the case-file that
in refusing the applicant legal aid, on the grounds that it was not in
the interests of justice, the Magistrate did not apply the
aforementioned guidelines, having regard to the information available
to him in the applicant's legal aid application, or that he made his
decision on arbitrary grounds. It is of particular significance that
the applicant's previous convictions were not known by the Magistrate
when he considered the applicant's legal aid application and that it
was likely that he would have deemed the case before him to have been
a somewhat trivial neighbours' dispute which would not result, in case
of conviction, in more than a fine for the applicant.
In these circumstances, the Commission concludes that it has
not been shown in the present case that the interests of justice,
within the meaning of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention,
required a grant of free legal assistance to the applicant. It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains that the refusal of legal aid
deprived him of adequate facilities for the preparation of his
defence.
Article 6 para. 3 (b) (Art. 6-3-b) of the Convention provides as
follows:
"Everyone charged with a criminal offence has the following
minimum rights:
(b) to have adequate time and facilities for the preparation
of his defence".
However, the Commission finds no evidence in the present case
that the applicant had inadequate facilities to prepare his defence.
This finding is borne out by his acquittal. It follows that this
aspect of the case is also manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
3. Finally, the applicant complains that the refusal of legal aid
by the Magistrate indicates that he presumed the applicant's guilt,
contrary to Article 6 para. 2 (Art. 6-2) of the Convention, which provides as
follows:
"Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law".
However, the Commission repeats that the Magistrate rejected
the applicant's application for legal aid on the grounds that it was
not in the interests of justice and that the Magistrates' guidelines
indicate a number of factors be taken into account in reaching such a
decision. There is nothing in the facts of the application as it has
been presented to indicate that the Magistrate failed to give the
matter proper consideration. Similarly the Commission finds no
evidence that the Magistrate was motivated by any presumption of the
applicant's guilt. The Commission concludes, therefore, that this
complaint has not been substantiated and that the case fails to
disclose any appearance of a violation of Article 6 para. 2 (Art. 6-2) of the
Convention.
It follows that this part of the application is similarly manifestly
ill-founded 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)