AS TO THE ADMISSIBILITY OF
Application No. 17120/90
by Graham Alexander HIGGINS and
Kevin Michael Kennedy HIGGINS
against the United Kingdom
The European Commission of Human Rights sitting in private
on 3 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 9 July 1990
by Graham Alexander HIGGINS and Kevin Michael Kennedy HIGGINS against
the United Kingdom and registered on 5 September 1990 under file
No. 17120/90;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, who are brothers, are British citizens born in
1960 and 1967 respectively and resident in Glasgow. They are
represented by John Carroll, a solicitor practising in Glasgow. The
facts as submitted by the applicants may be summarised as follows.
The applicants were charged inter alia with assault to severe
injury and assault by presenting a knife. They were granted legal aid
and represented by a solicitor in their trial in the Sheriff Court.
During the trial, one of the prosecution witnesses revealed
the presence of other persons near the scene of the alleged assaults.
The applicants' solicitor in cross-examination sought to discover the
identity of these persons but an objection to this line of questioning
by the Procurator Fiscal Depute was sustained by the presiding Sheriff
on the ground that the identity of these persons was not a relevant
issue to the charges or to the credibility of the prosecution witnesses.
The applicants were convicted on two of the charges and on
24 November 1989 sentenced to nine months' imprisonment.
The applicants lodged Notices of Intention to Appeal and
Grounds of Appeal on the basis that there were important eye witnesses
whose existence had not been disclosed to the defence and that the
Sheriff had erred in law in preventing the disclosure of the identity
of these witnesses. The applicants applied for legal aid which was
refused on 1 February 1990 on the ground that there were no
substantial grounds for the appeal. The Legal Aid Board also stated
that it saw no merit whatsoever in the appeal especially since the
defence was one of alibi.
Consequently, the applicants, who were of limited education,
appeared without legal representation before the High Court of
Justiciary. The first applicant read out a written statement. The
appeals of both were dismissed. The Court stated:
"It was said by the appellants today that having regard to
the exclusive powers given to the police and the procurator
fiscal service to investigate crime it was the duty of the
procurator fiscal to make known to the defence any
information in their possession which would tend to
exculpate the appellants and which the defence were not
likely to discover in their own investigations. It is quite
clear that not only the grounds of appeal themselves but
also the reasons which were given today for quashing the
convictions were framed by the same solicitor who as I have
just said, is no longer acting for the appellants. In our
opinion it is just as well because we regard this ground of
appeal as wholly without foundation, not to say
impertinent. There is no obligation on the Crown to provide
any list of witnesses other than those which are attached to
an indictment and there is no obligation on the Crown to
disclose any information in their possession which would
tend to exculpate the accused. Very often the Crown of
their own free will are prepared to give that information
and it appears in this case that everything was done within
the power of the Crown to do so but because the Crown could
not get the necessary information from the other witnesses,
obviously they could not pass it on to the defence. For
that reason alone this particular ground of appeal must
fail."
The Court also found that the Sheriff had not erred in
sustaining an objection to the defence's cross-examination since the
evidence was in the circumstances irrelevant, in particular as there
was no indication that persons referred to had been at the scene of
the incident.
COMPLAINTS
The applicants complain of a violation of Article 6 para. 3 (c)
of the Convention in that they were denied legal assistance on appeal
when they had insufficient means and when it was in the interest of
justice that it be granted.
The applicants also complain of a violation of Article 6
para. 3 (d) in that they were denied the opportunity to obtain the
attendance and examination of witnesses on their behalf under the same
conditions as witnesses against them.
THE LAW
1. The applicants complain that they were denied legal aid on
their appeal contrary to Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention, which provides:
"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;..."
The right to free legal assistance guaranteed by Article 6
para. 3 (c) (Art. 6-3-c) is subject to two conditions; that the individual
concerned does not have sufficient means to pay for legal assistance
and that "the interests of justice" require it. It is not in dispute
that the first condition was satisfied in the present case. The only
issue is whether "the interests of justice" required that the
applicants be granted legal aid before the High Court.
In the Monnell and Morris judgment (Eur. Court H.R., Monnell
and Morris judgment of 2 March 1987, Series A no. 115, p. 25, para.
67) of the European Court stated as follows:
"The interests of justice cannot ... be taken to require
an automatic grant of legal aid whenever a convicted
person, with no objective likelihood of success, wishes to
appeal after having received a fair trial at first instance
in accordance with Article 6 (Art. 6). Each applicant, it is
to be noted, benefited from free legal assistance both at his
trial and in being advised as to whether he had any arguable
grounds of appeal ...".
When determining whether "the interests of justice" requires
legal representation, the Commission must examine each case on its
facts. While the likelihood of success and the availability of legal
assistance at other stages of the proceedings are significant factors
to be taken into account, they are not the sole criteria. Other
factors in assessing the requirements of "the interests of justice"
include the importance of what is at stake for the applicant, e.g.,
the severity of the sentence, the personal ability of the applicant
and the nature of the proceedings, e.g. complexity or importance of
the issues or procedures involved (cf. Eur. Court H.R., Artico
judgment of 13 May 1980, Series A no. 37 and Pakelli judgment of
25 April 1983, Series A no. 64).
In the present case the Commission recalls that the applicants
had been sentenced to nine months' imprisonment on assault charges
after a trial in which they had been represented by counsel. The
refusal of legal aid concerned only the appeal against their
conviction and the Commission notes, however, that the Legal Aid Board
had found no substantial grounds for the appeal. The Commission notes
that the issue before the High Court concerned whether or not the
defence counsel should have been prevented from questioning a
prosecution witness as to the identity of other persons near the scene
of the alleged offence. On examination of the documents submitted by
the applicants, the Commission does not consider that the appeal
raised such complex or difficult issues that the interests of justice
required that the applicants be granted legal assistance.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants also complain that they were denied the
opportunity to obtain the attendance and examination of witnesses on
their behalf under the same conditions as witnesses against them
contrary to Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
The Commission recalls that defence counsel was prevented from
pursuing a line of questioning of a witness by Sheriff, on the ground
that it was not relevant. The Sheriff's ruling was upheld by the
appeal court which also found the cross-examination irrelevant. The
Commission also recalls that the appeal court found that the
prosecution had not been in possession of the information and could
not have passed it on to the defence. In these circumstances, the
Commission finds no indication of an inequality between prosecution
and defence as regards the attendance or examination of witnesses, all
parties to the proceedings being subject to the rules of evidence
which exclude irrelevant questioning.
This complaint is therefore manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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