The Committee of Ministers, under the terms of Article 54 (art. 54) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),
Having regard to the judgment of the European Court of Human Rights in the Maxwell case delivered on 28 October 1994 and transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application
(No. 18949/91) against the United Kingdom, lodged with the European Commission of Human Rights on 25 March 1991 under Article 25
(art. 25) of the Convention by Mr Peter Maxwell, a British national, and that the Commission declared admissible the complaint concerning the refusal of legal aid for representation at the hearing of the applicant's appeal against his criminal conviction;
Recalling that the case was brought before the Court by the Commission on 12 July 1993 and by the Government of the United Kingdom on 3 August 1993;
Whereas in its judgment of 28 October 1994 the Court unanimously:
- held that there had been a violation of paragraph 3.c of Article 6 (art. 6-3-c) of the Convention;
- dismissed the claim for just satisfaction;
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 (art. 54) of the Convention;
Having invited the Government of the United Kingdom to inform it of the measures which had been taken in consequence of the judgment of 28 October 1994, having regard to the United Kingdom's obligation under Article 53 (art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee of Ministers, the Government of the United Kingdom gave the Committee information about the measures taken in consequence of the judgment, which information appears in the appendix to this Resolution;
Declares, after having taken note of the information supplied by the Government of the United Kingdom, that it has exercised its functions under Article 54 (art. 54) of the Convention in this case.
Appendix to Resolution DH (96) 156
Information provided by the Government of the United Kingdom
during the examination of the Maxwell case
by the Committee of Ministers
1.The previous Scottish system of appeals in criminal cases and of legal aid for such appeals has been replaced by a new system introduced by the Criminal Justice (Scotland) Act 1995 ("the 1995 Act"). The new system applies to any appeal by a person convicted on or after 26 September 1995.
2.Under the previous system, a person, who had been convicted in Scotland, had an unrestricted right to appeal against his conviction and/or sentence under section 228 (1) or section 442 (1) of the Criminal Procedure (Scotland) Act 1975 ("the 1975 Act") on any ground which he alleged constituted a miscarriage of justice, without seeking any leave to appeal.
However, even if he was eligible on financial grounds to obtain legal aid, he was only entitled to receive legal aid for the purpose of obtaining legal representation at the oral hearing of his appeal if the Scottish Legal Aid Board ("SLAB") was satisfied that he had substantial grounds for making the appeal and that it was reasonable in the particular circumstances of the case that legal aid should be made available to him.
In the Maxwell case, the SLAB was not so satisfied although
Mr Maxwell's counsel had advised that legal aid should be granted because of the lengthy sentence imposed notwithstanding that his appeal had no prospects of success. However, the European Court of Human Rights held, in the circumstances of that case, that it was in the "interests of justice", as this term was to be understood under Article 6, paragraph 3.c (art. 6-3-c) of the Convention, that Mr Maxwell should have obtained legal aid to enable him to present his appeal effectively.
3.Under the new system, a person, who is convicted on or after 26 September 1995 and who wishes to appeal against his conviction or sentence under section 228 (1) of the 1975 Act, requires to seek leave to appeal. The decision upon whether or not to grant leave to appeal is taken, without an oral hearing, by a single judge of the High Court or, on appeal, by the High Court. Leave to appeal is only granted if the appellant submits arguable grounds of appeal. When leave is granted, the appeal proceeds to an oral hearing (section 42 of the 1995 Act which inserts a new section 230A in the 1975 Act).
4.Under the new system, in the ordinary case of an appeal under section 228 (1) or section 442 (1) of the 1975 Act, where an appellant applies for legal aid in connection with his application for leave of appeal or, if leave to appeal is granted, any subsequent appeal proceedings, the SLAB will grant the appellant legal aid if they are satisfied simply that the appellant is financially eligible. No other test requires to be fulfilled (section 25(2)(a) and (b) of the Legal Aid (Scotland) Act 1986 ("the 1986 Act"), as amended by section 65(3)(b) and (5) of the 1995 Act). In other words, there is no longer any provision requiring the SLAB to be satisfied that the appellant has "substantial grounds" for his appeal, as under the previous system.
5.In the case of any other criminal appeal (such as an appeal by way of bill of suspension under section 453A of the 1975 Act) or a petition to the nobile officium of the High Court, an application for legal aid will be granted by the SLAB if they are satisfied that the appellant is financially eligible and that, in all circumstances of the case, it is in "the interests of justice", that the appellant should receive legal aid (section 25(2)(c) and (6) of the 1986 Act, as amended by section 65(3)(c) of the 1995 Act). The government is of the opinion that in defining "the interests of justice" in this context the Scottish courts will not fail to give due consideration to the relevant case-law of the European Court under Article 6, paragraph 3.c (art. 6-3-c), of the Convention.
6.The provisions of the 1975 Act and the 1995 Act have been consolidated into the Criminal Procedure (Scotland) Act 1995 ("the Consolidation Act") which came into force on 1 April 1996. The provisions of section 228 (1), 230A, 442 (1) and 453A of the 1975 Act will then become sections 106 (1), 107, 175 (2) and 191 of the Consolidation Act, respectively.
7.In view of these measures, the Government of the United Kingdom considers that the violation found in the present case will not re-occur and that it has fulfilled its obligations under Article 53 (art. 53) of the Convention.
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