EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 24487/94
Steven John Given
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 16 October 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-30) . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 16-23). . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law and practice
(paras. 24-30) . . . . . . . . . . . . . . . . . . . 4
III. OPINION OF THE COMMISSION
(paras. 31-41) . . . . . . . . . . . . . . . . . . . . . . 6
A. Complaint declared admissible
(para. 31). . . . . . . . . . . . . . . . . . . . . . 6
B. Point at issue
(para. 32). . . . . . . . . . . . . . . . . . . . . . 6
C. As regards Article 6 para. 3(c) of the Convention
(paras. 33-40). . . . . . . . . . . . . . . . . . . . 6
CONCLUSION
(para. 41). . . . . . . . . . . . . . . . . . . . . . 7
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . 8
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 1970 and is currently
serving a prison sentence in Edinburgh. He was represented before the
Commission by John McLaughlin, a solicitor practising in Perth,
Scotland.
3. The application is directed against the United Kingdom. The
respondent Government were represented by Susan Dickson, Agent, Foreign
and Commonwealth Office.
4. The case mainly concerns the refusal of legal aid for the
applicant's criminal appeal and the applicant invokes Article 6
para. 3(c) of the Convention in this respect.
B. The proceedings
5. The application was introduced on 28 December 1993 and registered
on 28 June 1994.
6. On 6 April 1995 the Commission (First Chamber) decided, pursuant
to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on the admissibility and merits of the
applicant's complaint under Article 6 para. 3(c) of the Convention.
7. The Government's observations were submitted on 10 August 1995
after one extension of the time-limit fixed for this purpose. The
applicant's observations in reply were received on 2 October 1995. The
Government submitted further observations on 22 November 1995. On
5 December 1995 the Commission granted the applicant legal aid for the
representation of his case.
8. On 12 April 1996 the Commission declared admissible the
applicant's complaint under Article 6 para. 3(c) of the Convention.
It declared inadmissible the remainder of the application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 19 April 1996 and they were invited to submit such
further information or observations on the merits as they wished.
No further observations were received.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission
(First Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
12. The text of this Report was adopted on 16 October 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
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. The particular circumstances of the case
16. Having been tried on indictment before a judge and jury, the
applicant (together with a co-accused) was found guilty on 18 May 1993
by the High Court of Justiciary in Scotland of attempted murder and
breach of the peace. The trial judge had available to him a note of the
applicant's previous convictions indicating four previous convictions
for assault and one for theft, none of which convictions resulted in
a custodial sentence. The trial judge also had a social enquiry report
on the applicant's personal circumstances available to him. The
applicant was sentenced to six years imprisonment for attempted murder
and to three months imprisonment for breaching the peace, the sentences
to run concurrently from the date of sentencing. The applicant was
legally represented at his trial.
17. Counsel's opinion dated 2 May 1993 indicated that there was no
realistic prospect of a successful appeal. On 28 May 1993 the applicant
lodged an intimation of intention to appeal against both conviction and
sentence. The applicant applied to the Scottish Legal Aid Board
("S.L.A.B.") for legal aid for his appeal but this was refused on the
grounds that the applicant had not satisfied the S.L.A.B. that he had
substantial grounds for making the appeal.
18. On 6 August 1993 the applicant lodged a minute of abandonment of
his appeal against conviction and indicated his intention to proceed
with his appeal against sentence. On 13 August 1993 he also lodged an
application for an extension of time for appealing in relation to
sentence only and the High Court granted that extension on
16 August 1993.
19. On 17 August 1993 the applicant's solicitors lodged a note of
appeal against sentence only, which note detailed the grounds of the
applicant's appeal. Those grounds referred to the relatively minor
nature of the applicant's previous convictions and to the facts that
the applicant had been recovering from an injury at the time of the
incident, that the trial judge had failed to differentiate between the
actions of the applicant and his co-accused, that the evidence clearly
showed that the victim was behaving in an aggressive and quarrelsome
manner and that the evidence clearly showed that the assault was in no
way premeditated.
20. The trial judge prepared, pursuant to section 236A of the
Criminal Procedure (Scotland) Act 1975, a report giving his opinion on
the grounds of appeal and pointed out that on the evidence it was not
possible to distinguish between the applicant and his co-accused as
regards the parts they had played in the offence itself and disagreed
that the evidence indicated that the applicant took a much more
restricted part in the assault than his co-accused.
21. The trial judge also noted that, though the applicant had a
relatively minor record of previous offences, four out of five of these
convictions were for assault. The trial judge went on to state that the
records of the two defendants were not markedly different and that,
while the victim had made a nuisance of himself, the trial judge felt
justified in describing the offence as "a brutal and highly destructive
attack of a cowardly character on a seriously drunk man". Finally, the
trial judge indicated that he agreed that there was no indication that
the assault concerned was premeditated or that any weapon of any sort
was used.
22. The applicant represented himself at his appeal. The High Court,
in a three page judgment dated 5 November 1993, dismissed the appeal,
referring to the points of appeal which the applicant set out in his
note of appeal, to the applicant's submission before the High Court and
to the opinion of the trial judge.
23. The High Court stated that, in determining the appeal, regard was
had to the fact that it was the trial judge who heard the evidence,
that the charge was one which the jury accepted as attempted murder and
that it was on that charge that the jury decided to convict the
applicant. It was noted that a charge of attempted murder is a very
serious charge and that the injuries which were described in the trial
judge's report fully justified a conviction for that offence. The High
Court concluded that the sentence which the trial judge imposed could
not reasonably be said to be excessive, having regard to the part which
the applicant played in the incident, the degree and severity of the
injuries and the nature of the charge of which he was convicted.
B. Relevant domestic law and practice
1. Criminal Appeals - Solemn proceedings
24. In solemn proceedings in Scotland, where the trial proceeds upon
an indictment before a judge sitting with a jury, a person convicted
of a criminal charge has an automatic right of appeal against
conviction and/or sentence granted by statute (section 228 of the
Criminal Procedure (Scotland) Act 1975 - "the 1975 Act"). No leave to
appeal is therefore required.
25. Pursuant to section 236A of the 1975 Act, the trial judge must
furnish a written report covering the case in general and the grounds
of the appeal. An appellant may not, at the appeal hearing, found any
aspect of his appeal on a ground which is not contained in the notice
of appeal unless, exceptionally and on showing cause, he obtains the
leave of the court to do so (section 233(3) of the 1975 Act).
Section 234 of the 1975 Act provides that the appellant can opt to
present his case in writing instead of orally. However, in practice
appellants present their case orally. While there is no statutory
provision relating to the conduct of the appeal hearing (other than
defining the quorum of judges as being three), the practice is that an
appellant is afforded an opportunity to make oral submissions at such
a hearing in support of his appeal and is also permitted to lodge other
documents. It is also open to the judges at the hearing to ask
questions or to put points to the appellant. In addition, where an
appellant refers to a pre-prepared statement, the practice is for the
court to ask the appellant to present that statement orally or to make
copies for the judges.
26. The Crown is always represented by counsel (the Advocate Deputy)
at the hearing of criminal appeals. The duty of such counsel is to act
solely in the public interest and not to seek to uphold a wrongful
decision. Accordingly, they will only address the court if requested
to do so or if it is necessary to bring to the attention of the court
some matter relevant to the appeal, whether favourable or not to the
prosecution. The appeal court may, inter alia, affirm or set aside a
conviction and may affirm, vary or quash a sentence.
2. Legal Aid for Criminal Appeals
27. Responsibility for the administration of legal aid in Scotland
is vested in the Scottish Legal Aid Board ("S.L.A.B.") which is an
independent body whose members are appointed by the Secretary of State.
Legal aid, which has been available for the trial, extends normally to
include consideration and advice on the question of an appeal. Where
appropriate legal aid is also available to enable a solicitor to
prepare and lodge the statutory intimation of intention to appeal and
for the drafting and lodging of the notice of appeal setting out the
grounds of appeal.
28. To extend legal aid beyond this point a further application to
the Legal Aid Board is required. This application will be granted on
fulfilling two conditions. In the first place, the appellant must be
financially eligible for legal aid. Secondly, the appellant must have
substantial grounds for making the appeal and it must be reasonable
that legal aid should be made available in the circumstances. In
deciding on these issues the S.L.A.B. will take into account, inter
alia, any opinion prepared by counsel as to the appeal's prospects of
success.
29. If legal aid has been refused and the appellate court is of the
view that, prima facie, the appellant may have substantial grounds for
taking the appeal and that it is in the interests of justice that the
appellant should have assistance with the costs of legal representation
to argue these grounds, that court can adjourn the hearing and
recommend that the S.L.A.B. review their decision. This practice was
formalised by a Practice Note to this effect in 1990 following the
judgment of the European Court of Human Rights in the Granger
application (Eur. Court H. R., Granger judgment of 28 March 1990,
Series A no. 174). Where such a recommendation is made, legal aid is
automatically granted (paragraph 6.12 of the Manual of Procedure of the
Scottish legal Aid Board).
30. The Criminal Justice Act 1995 applies to appeals from convictions
handed down on or after 26 September 1995. It provides that an
appellant must apply for leave to appeal and such leave will be granted
when the appellant shows arguable grounds for appeal. In line with that
new appeals system, the 1995 Act also provides that legal aid will be
granted for an appeal where the applicant is financially eligible for
legal aid and where leave to appeal has been granted.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
31. The Commission has declared admissible the applicant's complaint
about the refusal of legal aid for his criminal appeal.
B. Point at issue
32. The only point at issue is whether the refusal of legal aid for
the applicant's appeal constitutes a violation of Article 6 para. 3(c)
(Art. 6-3-c) of the Convention.
C. As regards Article 6 para. 3(c) (Art. 6-3-c) of the Convention
33. Article 6 para. 3(c) (Art. 6-3-c) of the Convention reads as
follows:
"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; ..."
34. The applicant submits that the refusal of legal aid prevented the
proper presentation of his appeal (particularly in relation to certain
complex grounds of appeal such as the extent of his involvement in the
assault) and thereby led to his appeal hearing being unfair. The
Government have no observations on this complaint in light of the Court
judgments in the Boner and Maxwell cases (Eur. Court HR, Boner and
Maxwell v. the United Kingdom judgments of 28 October 1994, Series A
nos. 300-B and 300-C).
35. The Commission recalls the above-mentioned Boner and Maxwell
cases. Mr Boner had been convicted on charges of assault, armed robbery
and of wilful damage together with three charges relating to firearms
and was sentenced to eight years imprisonment. Mr Maxwell was found
guilty of assault and was sentenced to five years imprisonment. Both
were refused legal aid for their appeals (for which appeals leave was
not required) on the grounds that the S.L.A.B. was not satisfied that
there were substantial grounds for making the appeal and that it was
reasonable that legal aid be granted.
36. The grounds of appeal of both applicants were described by the
Court as not particularly complex. However, the Court found that,
although Mr Boner understood the grounds of appeal drafted by his legal
representative, those grounds required a certain legal skill and
expertise to present to the appeal court. As regards Mr. Maxwell, the
Court found that, although he may have formulated the grounds of appeal
himself, he was unable to competently address the appeal court on such
legal issues without the services of a legal practitioner.
37. The Court therefore found that, given the nature of the
proceedings, the wide powers of the High Court, the limited capacity
of an unrepresented appellant to present a legal argument and, above
all, the importance of the issue at stake in view of the severity of
the sentence, the interests of justice required that those applicants
be granted legal aid for representation at the hearing of their
criminal appeals and that the refusal of such legal aid constituted a
violation of Article 6 para. 3(c) (Art. 6-3-c) of the Convention.
38. The Commission notes that the present applicant was subject to
the same legal aid rules and criminal appeal system as applied in the
Boner and Maxwell cases, that he was refused legal aid for his appeal
for similar reasons as in those cases, that it is not in dispute that
the applicant lacked sufficient means to pay for legal assistance for
his appeal and that the applicant was unrepresented for his appeal
hearing.
39. It is further noted that the matter before the appeal court,
being an appeal against sentence, was the applicant's two concurrent
sentences of six years imprisonment for attempted murder and three
months imprisonment for breaching the peace and the Commission
considers that the issue at stake was of importance for the applicant.
The Commission accepts that the fact that the applicant was appealing
against sentence only may have rendered his grounds of appeal less
complex. It is also noted that the applicant's solicitor drafted the
grounds of appeal. However, it is also recalled that the Court in
Mr. Boner's application found that, although Mr. Boner's grounds of
appeal were not complex and although he understood the grounds of
appeal which had been drafted by his legal representative, those
grounds required a certain legal skill and expertise to present to the
appeal court. Equally, the Commission considers that the grounds of
appeal in the present case also required a certain legal skill and
expertise to present to the appeal court.
40. The Commission therefore considers that the interests of justice
required that the applicant be granted legal aid for representation at
the hearing of his appeal in the High Court and that, accordingly, the
refusal of legal aid for such representation constitutes a violation
of article 6 para. 3(c) of the Convention.
CONCLUSION
41. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 3(c) (Art. 6-3-c) of the
Convention.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy