THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 37400/97
by Paul Hugh EGAN
against the United Kingdom
The European Court of Human Rights (Third Section), sitting on 7 March 2000 as a Chamber composed of
MrJ.-P. Costa, President,
SirNicolas Bratza,
MrL. Loucaides,
MrP. Kūris,
MrW. Fuhrmann,
MrsH.S. Greve,
MrK. Traja, judges,
andMrsS. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 1 July 1997 and registered on 19 August 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a British citizen born in 1961 and resident in Strathkelvin.
He is represented before the Court by Matthew Brown, solicitors practising in Irvine, Scotland.
A.Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 February 1995, a complaint was issued by the Procurator Fiscal for Glasgow charging the applicant with two contraventions of section 5(3)(c) and section 5(5) of the Data Protection Act 1984 and two breaches of the peace in that he conducted himself in a disorderly manner persistently staring at five young girls.
On 24 February 1995 the applicant pleaded not guilty at a pleading diet at Glasgow Sheriff Court. He was represented by Messrs D. H. & Co, solicitors.
The trial took place at Glasgow Sheriff Court on 11 to 12 July 1995, 2 August 1995 and 10 October 1995. The applicant was represented at the trial by Mr G., Advocate, engaged by the applicant’s solicitors.
On 10 October 1995 the applicant was convicted in Glasgow Sheriff Court on all four charges, sentence being deferred for social inquiry and community service reports. On 20 May 1996, the applicant appeared before the Sheriff for sentence. He was now represented by Mr M. of L. & Co., Solicitors. The Sheriff fined the applicant £100 on each of the breaches of the peace and merely admonished the applicant on the statutory charges. The applicant, who claimed that his representation at the trial was so defective that he was not effectively represented, changed his representatives to appeal to the High Court of Justiciary against conviction and sentence.
On 24 May 1996 the applicant’s solicitor applied for an extension of the time in which to apply for a stated case to the High Court of Justiciary.
On 4 June 1996 the High Court of Justiciary granted the applicant an extension in time to apply for a stated case. On 7 June 1996, the application was submitted by the applicant's solicitor, appealing against both conviction and sentence.
In his application for the stated case, the applicant claimed that he suffered a miscarriage of justice under the Criminal Procedure (Scotland) Act 1995, section 175(2)(d) and section 175(5), in that he was denied a fair trial as a result of defective representation at the trial. He made several allegations against his defence counsel, inter alia, that he had not presented the defence, had acted contrary to his instructions, has failed to challenge Crown evidence properly in cross-examination and had pressured him into not giving evidence.
On 26 July 1996 a hearing took place before the Sheriff to agree the draft stated case. On 30 July 1996 the stated case, signed by the Sheriff, was sent to the parties to the appeal.
On 3 September 1996 the applicant was granted leave to appeal by a judge of the High Court of Justiciary. This decision was notified to the applicant’s solicitor on 6 September 1996.
On 17 December 1996 the applicant’s case was put down to appear on the appeal roll of 28 January 1997 and the applicant’s solicitor advised accordingly.
The applicant's solicitor contacted the applicant on 6 January 1997, informing him that the appeal hearing was fixed for 28 January 1997. On 24 January 1997 the applicant’s solicitor informed him that a consultation with counsel had been fixed for 27 January 1997. This consultation lasted twenty minutes. The applicant states that counsel informed him that she would ask for an adjournment as the views of the previous legal representatives had not yet been sought.
During the appeal hearing on 28 January 1997, the High Court upheld the appeal made by the applicant against the convictions under the Data Protection Act 1984. As regards the applicant's appeal against his convictions for breaches of the peace, counsel for the applicant sought an adjournment of the appeal on the basis that she had only very recently been instructed to represent the applicant and that she had advised him that certain information and various statements had to be obtained in the light of the requirements laid down by the court in Anderson v. HM Advocate (1996 J.C. 29, SCCR 114). This would have involved an affidavit from the applicant and any supporting witness setting out the full details of allegations and a response to complaints from the original agent (solicitor) and counsel. According to the High Court judgment, counsel stated that no necessary steps had been taken and that she could not offer the court an explanation as to why none of the investigation or preparation had been done.
The High Court refused to adjourn the appeal stating that it must have been obvious for many months to the applicant and his present advisers that steps had to be taken in order to prepare the appeal to be advanced on the chosen grounds. It noted that the signed stated case was dispatched to the parties on 30 July 1996, that leave to appeal against conviction was granted on 3 September 1996 and intimation thereof was sent to the applicant's solicitor on 6 September 1996. It was therefore entirely unacceptable for the applicant to come forward at this late stage and, without explanation as to why none of the preparations required by the Anderson precedent had been done other than to instruct counsel on the eve of the appeal and seek a postponement of the appeal hearing in order to allow the necessary steps to be taken. It commented that while postponements had to be granted when adequate cause was shown and the failure to act timeously was explained, no explanation had been made in this case.
Moreover, the High Court stressed that it was important to avoid any unnecessary delay in the proceedings given that the events giving rise to the charge occurred in September and October 1994, and the principal Crown witnesses were then young girls in their early teens. It noted that there had already been a delay in that the time had been extended to allow an application for a stated case to be lodged some eight months late after the conclusion of the applicant's trial. Further, had the appeal been successful, the court would have had to grant authority to bring a new prosecution and the trial resulting from the new prosecution would have been unlikely to take place before the lapse of two years since the commencement of the original trial in July 1995. The High Court concluded that it would sanction no further delay and dismissed the application.
In her note of 17 March 1997, the applicant’s counsel recalled that the court had refused an adjournment as there had been no affidavit from the applicant detailing the failures alleged and no statements or approach had been made to his previous representatives. She had informed the court that she had not consulted with the applicant and solicitor until the day before the appeal and the fault for the late consultation rested with her due to her court commitments. She could not offer any explanation for the absence of affidavits from the applicant and his relatives but informed the court that she had instructed that these be prepared. Once they had been obtained, the applicant’s solicitor or the Clerk could have proceeded to contact the prior agents for their response.
In her further note of 25 June 1998, the applicant’s counsel stated that no affidavits had been prepared when she met the applicant and his solicitor, Mr M, the day before the appeal hearing. She had therefore advised that she would have to seek an adjournment. She did not recall if any explanation had been given to her for the failure to produce the information other than seeking the opinion of counsel as to how to proceed with the appeal.
In his letter of 11 August 1998, Mr M., the applicant’s solicitor at the appeal, stated that as soon as he had been notified of the date of the appeal he had instructed his Edinburgh agents to instruct counsel and sought a consultation. At the consultation he was told by counsel that further information was required and that she would seek an adjournment. She indicated to him and the applicant that they would not be required to attend the appeal hearing. He took the view that it was the role of the Clerk of the Court to seek the response of the applicant’s previous representatives and that there had been no explanation from the High Court as to the failure of the Clerk of the Court to do so in the applicant’s case.
The applicant received legal aid for his representation at trial and on appeal.
B.Relevant domestic law and practice
Defective representation as a ground of appeal
In the case of Anderson v. HM Advocate 1996 SCCR 114, decided on 1 December 1995, the High Court of Justiciary decided that, in certain circumstances, the conduct of the defence by the accused’s counsel or his solicitor could be a ground of appeal. The conduct must have been such as to have resulted in a miscarriage of justice in that it deprived the accused of his right to a fair trial by not presenting his defence to the court. The accused might have been deprived of the opportunity to present his defence because his counsel or solicitor acted contrary to his instructions for example.
The court noted that in such cases questions of fact might arise as to the nature and conduct of the defence and the court might require to hear evidence. Before it exercised this power, it had first to be satisfied that the complaint was of a kind likely to satisfy the test for a miscarriage of justice. It set out the preparation which it expected to be undertaken:
“difficult questions of professional practice may arise where allegations of this kind are made against counsel or a solicitor. It is essential therefore that those against whom the allegations are made are given a fair opportunity to respond in writing to these allegations before the court hears the appeal. The advocate or solicitor may, if he feels able to do so, provide a statement to the solicitor acting for the appellant to assist him and counsel in the drafting of the grounds of appeal. But he is under no obligation to provide any such statement. He may, if he prefers to do this, wait until the appeal is lodged and then lodge his statement with the Clerk of Justiciary. In all cases where a complaint is made against counsel or the solicitor who represented an appellant at his trial for which leave to appeal has been granted, the Clerk of Justiciary will advise counsel or solicitor of this fact, and will provide him with a copy of the ground of appeal so that he may respond to the allegations if he has not already done so. Once again we emphasise that he is under no obligation to respond at this stage to the allegation. But the court is likely to find it helpful to know whether the complaint is disputed and, if so, on what grounds, before it reaches a decision as to whether an inquiry into the facts will be necessary to decide the appeal.”
Courts’ power to adjourn cases
Unless otherwise expressly provided by statute, the courts have an inherent common law power to adjourn cases where it is considered necessary in the interests of justice and conversely to refuse to do so, also in the interests of justice.
In general the courts will grant an adjournment that is requested by the defence if it is necessary to allow the defence to prepare their case (MacKellar v. Dickson (1898) 2 Adam 504 and Ferguson v. McNab (1884) 5 Couper 471). The courts are less amenable to granting an adjournment on this basis if it is apparent that the accused or his agents had sufficient time and were in a position to carry out the necessary preparation for the trial but simply failed to do so (eg. Nash v. Normand 1996 SCCR 196).
COMPLAINTS
1.The applicant complains that because of defective legal representation during his trial he was deprived of the right to defend himself, in violation of Article 6 § 3(c) of the Convention. He further complains that because of inadequate cross-examination of witnesses by his lawyer during his trial he was effectively deprived of his right to have those witnesses examined on his behalf, in violation of Article 6 § 3(d) of the Convention.
The applicant also complains of the refusal of the High Court of Justiciary to grant an adjournment of his appeal. He submits that the failure to provide the High Court with the necessary statements to support his appeal was the fault of the lawyers he instructed. He submits, under Article 6 § 3(b) of the Convention, that the refusal of the adjournment deprived him of adequate time and facilities to prepare for the appeal. The applicant also complains that the refusal of the adjournment, which would have enabled him to gather information for his defence, deprived him of the right to defend himself, contrary to Article 6 § 3(c) of the Convention. Further, since the adjournment of the appeal which would have enabled the court to review the failure of his lawyer in the matter of cross-examination of witnesses and the defective legal representation at trial, the refusal deprived him of the final opportunity to enjoy these rights conferred by Article 6.
2.Finally, the applicant complains under Article 13 of the Convention in that, by virtue of the refusal of the High Court of Justiciary to grant an adjournment of the appeal, he was refused an effective remedy, namely, the right of appeal, before a national authority.
PROCEDURE
The application was introduced on 1 July 1997 and registered on 19 August 1997.
On 22 October 1997 the European Commission of Human Rights decided to communicate the applicant’s complaints concerning Article 6 of the Convention to the respondent Government.
The Government’s written observations were submitted on 19 February 1999, after an extension of the time-limit fixed for that purpose. The applicant replied on 24 August 1999, outside the time-limit fixed for that purpose and without requesting an extension in that time-limit.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
1.The applicant complains that he did not receive effective legal representation at his trial, depriving him of the opportunity to have witnesses examined and cross-examined, and that, by refusing him an adjournment for the hearing of his appeal, the High Court denied him adequate facilities to prepare and the ability to defend himself.
The relevant provisions of the Convention provide:
Article 6
“1. 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. ...
3. Everyone charged with a criminal offence has the following minimum rights: ...
(b) to have adequate time and facilities for the preparation of his defence;
(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;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; … .”
The Government submit that they cannot be held responsible for the failure of the applicant’s representatives to prepare his appeal properly. They had adequate time to do so. The High Court received no explanation from the applicant’s counsel as to the lack of preparation and could not be regarded as being on notice that there had been any inadequacy on the part of the legal representatives. It was entitled in the circumstances to conclude that, in the absence of an attempt to show cause for an adjournment, the state of affairs was attributable to the applicant. In any event, the applicant was aware of what was being done in the appeal and took no steps to bring to the attention of the court that the lack of preparation was the fault of his legal representative. He must have known that no documents had been provided but gave no instructions to his counsel to explain this state of affairs. The High Court’s refusal of the adjournment accordingly paid due regard to the interests of justice, including the time already elapsed and the effect on the minor witnesses at any retrial.
The applicant submitted that he could not be expected to be aware of the procedural requirements of his appeal, and that he was entitled to rely on his legal representatives to do what was necessary. He had placed sufficient information at the disposal of his representatives in the stated case for the detailed allegations to be drawn up. He cannot be regarded as at fault. Furthermore, the High Court in the Anderson case had suggested that the Clerk of the Court would pass on the allegations to the previous representatives for comment. It was not surprising that the applicant’s solicitor was under a misapprehension that he was not required to take this step and did not become aware until late that no action had been taken. To the extent that his legal representatives were at fault in this and failed to fulfil the procedural requirements laid down in the case-law, the refusal of the adjournment to allow this defect to be remedied deprived him of his right to appeal.
While the applicant has expressly invoked Article 6 § 3 (b), (c) and (d) of the Convention, the Court considers it appropriate to examine his complaints under the first paragraph of Article 6, the requirements of paragraph 3 representing particular aspects of the right to a fair trial guaranteed in that provision (see, amongst other authorities, the Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 15, § 32).
The Court has accordingly examined whether the applicant has received a fair hearing.
As concerns the applicant’s complaints of ineffective legal representation at first instance, the applicant appealed on this ground to the High Court of Justiciary which, however, rejected his appeal due to the lack of preparation of the necessary supporting materials. The issue to be determined, therefore, is whether the High Court’s refusal of an adjournment to allow the preparation of these documents deprived the applicant of a fair hearing in the determination of the criminal charges against him.
The Court observes that the problem arose at the appeal hearing due to the failure of the applicant’s solicitor to prepare detailed affidavits of the alleged defects in representation at trial which was the precondition to either the Clerk of the Court or himself submitting the allegations to the applicant’s former legal representatives for comments. While counsel gave instructions for this to be done, this was too late to remedy matters for the appeal hearing, as the consultation only occurred the day before that hearing.
According to the Court’s case-law, Article 6 § 3(c) of the Convention is not merely satisfied by the assignment of defence lawyers to an accused. The representation must also be effective. This does not mean that a State can be held responsible for every shortcoming on the part of a lawyer. The conduct of the defence remains essentially a matter between the defendant and counsel. However, the competent national authorities may be required to intervene if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way (the Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168, p. 33, § 65). In Daud v. Portugal (judgment of 21 April 1998, Reports 1998-II, § 39) where the applicant’s first counsel took no steps for his defence, retiring sick twelve days before the trial and the applicant was informed of the court’s appointment of second counsel three days before the trial, the Court found that the applicant had not been given a practical and effective defence by his officially-assigned lawyers and that the courts, which must have been aware of the situation, should not have remained passive.
The Court recalls that the High Court in its judgment stated that it had been given no explanation for the lack of preparation of the necessary supporting documents. The applicant’s counsel has stated that she did explain to the High Court that the reason why she had not advised earlier as to the steps to be taken earlier was because she had only consulted with the applicant and his solicitor the day before. She did not however give any other explanation, in particular as to why the solicitor had not taken these steps himself, such as drawing up the affidavit of detailed allegations. She has stated since that she is unable to explain that. The applicant’s former solicitor regarded it as the role of the Clerk of the Court to take the initiative in these matters.
It is therefore correct, as submitted by the Government, that the High Court was not informed that the solicitor, due to his interpretation of the relevant case-law, failed to prepare the preliminary affidavit during the almost five months which elapsed after leave to appeal had been granted. This omission could have derived from a number of possible causes. The Court is not persuaded therefore that the High Court was aware, or should have been aware, that the applicant had been deprived of a practical and effective defence through any manifest incompetence of his appeal lawyers. The shortcomings in the applicant’s representation disclosed in this case do not, consequently, engage the responsibility of the authorities.
In these circumstances, the decision of the High Court to reject the applicant’s appeal on the basis of a failure to comply with procedural requirements cannot be regarded as depriving him of a fair trial. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
2.The applicant also invoked Article 13 of the Convention, which requires effective remedies for Convention breaches.
However, Article 13, as a more general guarantee, does not normally apply in cases where the more specific guarantees of Article 6 are at issue, Article 6 being the lex specialis in relation to Article 13 and absorbing its requirements. The Court finds that no separate issue arises under Article 13 of the Convention in the present case.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
S. DolléJ.-P. Costa
RegistrarPresident
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