AS TO THE ADMISSIBILITY OF
Application No. 14778/89
by John HIGGINS
against the United Kingdom
The European Commission of Human Rights (First Chamber)
sitting in private on 17 April 1991, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
H. DANELIUS
Sir Basil HALL
MM. C.L. ROZAKIS
L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
B. MARXER
Mr. M. de SALVIA, Secretary to the First Chamber
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 January 1989
by John HIGGINS against the United Kingdom and registered
on 15 March 1989 under file No. 14778/89;
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 applicant is a British citizen, born in 1946 and resident
in Edinburgh. He is represented by Messrs. John Carroll & Company
practising in Glasgow. The facts of the application may be summarised
as follows.
On 29 October 1986, the applicant was convicted of three
charges of contravening the Misuse of Drugs Act 1971:
1) that in the period 24 March 1986 to 4 May 1986 he had been
concerned in the supply of cannabis resin at the cottage of which he
was the tenant;
2) that he had been in possession of cannabis resin on 4 May 1986
at his cottage;
3) that he had been in possession of cannabis resin at the
cottage on that day with intent to supply it to another.
On 12 November 1986, he was sentenced to two years'
imprisonment by the Edinburgh High Court.
The applicant appealed. In an opinion dated 27 April 1988,
counsel advised that an appeal against conviction would be likely to
succeed since the applicant had been convicted of three charges based
on identical facts ("triple jeopardy"). Since however the applicant's
sentence had expired in September 1987, he advised from a practical
point of view that there was little point of proceeding and such an
appeal did not merit the employment of counsel.
On 21 May 1988, the Legal Aid Board refused the applicant
legal aid for his appeal.
The applicant's solicitor had informed the Legal Aid Board
that the applicant had already appeared before the High Court of
Justiciary, which had adjourned the appeal so that the applicant could
try to secure legal representation and that the quashing of the
conviction was of relevance since, meanwhile, the applicant had been
sentenced to five years' imprisonment by Lord Brand who, in determining
the sentence, took into account the earlier conviction but for which
he stated he would have been disposed to be lenient. Quashing the
earlier conviction might therefore have supported an appeal against
the sentence of five years in respect of the subsequent charge.
The Legal Aid Board reviewed its decision but informed the
applicant's solicitor by letter dated 14 June 1988 that it maintained
its decision.
The High Court had adjourned appeal hearing on five
occasions (30 April 1987, 19 June 1987, 6 November 1987, 19 February
1988 and 30 June 1988) in response to the applicant's applications.
On 12 November 1988, the High Court of Justiciary heard the
applicant's appeal. The applicant presented his appeal in person
and the Advocate Depute appeared for the Crown. The applicant had
two main grounds of appeal, namely, that there was not sufficient
evidence indicating that he had control of the cannabis resin and that
in relation to the first and third counts the Sheriff had rehearsed to
the jury precisely the same evidence and that accordingly he had
wrongly been found guilty of more than one offence arising out of the
same facts. The High Court of Justiciary dismissed the applicant's
appeal. It found that there was sufficient evidence, based on the
applicant's behaviour, indicating that he had control of the cannabis.
It also found that while the second ground of appeal had a certain
initial attraction, it was legitimate for the jury to look at one
piece of evidence (a large sum of money found at the scene) in
relation to the two charges, since it had a different significance
to each charge, i.e. the presence of the money threw light on the
character of the applicant's possession of the cannabis and the sheer
size of the amount threw a significant light on the applicant's past
conduct.
COMPLAINTS
The applicant complains of the refusal of legal aid for
representation at his appeal on 12 November 1988. He submits that his
appeal had good prospects of success but that, without legal aid, he
was unable properly to present his case. He complains that the trial
did not respect the principle of equality of arms since the Advocate
Depute presented the case for the prosecution. He invokes Article 6
of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 January 1989 and
registered on 15 March 1989. On 4 December 1989, the Commission
decided to adjourn the case pending the judgment of the European Court
of Human Rights in the Granger case. The Court delivered judgment in
that case on 28 March 1990 (Eur. Court H.R., Granger judgment, Series
A No. 174).
On 17 May 1990, the Commission decided to give the United
Kingdom Government notice of the application and to invite them to
submit observations on the admissibility and merits of the
application.
The Government submitted its response on 9 November 1990 and
the applicant replied on 23 November 1990.
On 14 December 1990, the Commission decided to grant the
applicant legal aid.
On 9 April 1991 the Commission decided to transfer the case to
the First Chamber.
THE LAW
The applicant complains that he was refused legal aid for his
appeal against conviction contrary to the interests of justice. He
invokes Article 6 (Art. 6) of the Convention which provides, inter alia:
"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:
...
(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 notes that the Government have made no
observations as to admissibility, while reserving their position on
the merits.
The Commission has made a preliminary examination of the
present applicant's complaints under Article 6 paras. 1 and 3 (c)
(Art. 6-1, 6-3-c) of the Convention (cf. Eur. Court H.R., Granger
judgment of 28 march 1990, Series A No. 174). It considers that they
raise serious issues of fact and law which are of such complexity that
their determination should depend on a full examination of the merits.
It follows that the application cannot be declared manifestly
ill-founded and must be declared admissible, no other ground for
declaring it inadmissible having been established.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the First Chamber President of the First Chamber
(M. DE SALVIA) (J.A. FROWEIN)
Full & Egal Universal Law Academy