AS TO THE ADMISSIBILITY OF
Application No. 13488/88
by Frank LANG
against the United Kingdom
The European Commission of Human Rights sitting in private on
8 September 1988, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy 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 23 September
1987 by Frank LANG against the United Kingdom and registered on
6 January 1988 under file No. 13488/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1965 and resident
in Glasgow. He is represented by Mr. John Carroll, a solicitor
practising in Glasgow. The facts as submitted by the applicant may be
summarised as follows.
The applicant was tried at Kilmarnock Sheriff Court on a charge
of stealing £1,800. The applicant, who had been granted legal aid,
was represented by a solicitor. The applicant was found guilty on
10 December 1986 and sentenced to six months imprisonment. The
applicant appealed by way of case stated on grounds, inter alia, that
the Sheriff erred in finding sufficient evidence for there to be a
case to answer, that the Sheriff held second best evidence to be
admissible and to be preferred to best evidence and that the Sheriff
erred as to the facts of the case, in particular as to the evidence of
a police witness and a video tape.
The applicant was granted an interim appeal certificate for
the purpose of legal aid and certain preliminary work was carried
out. However, his application for a full certificate which was
supported by his solicitor's written opinion that the grounds of
appeal were substantial was refused by a letter dated 11 May 1987.
Following the refusal of legal aid, the applicant's solicitor sought
further advice from counsel, who, however, in opinions dated June and
5 September 1987, concluded that the appeal had no prospects of
success. Without funds, the applicant was obliged to plead his own
case before the High Court, his solicitors having provided him with
notes and relevant documents.
The applicant's appeal was upheld by the court on 22 September
1987 and his conviction was quashed. The reasons given by the court
were stated briefly as follows:
"In this appeal at the instance of Frank Lang in view of the
concessions made by the Advocate Depute and the attitude
which he has very properly taken up, we find it unnecessary
to answer the three questions in the case and we shall simply
quash the conviction."
Following a request for information concerning this decision
dated 4 March 1988, the Government stated that information had been
received by the Crown Authorities and defence which suggested that one
of the police officers was mistaken in his identification of the
applicant from the video recording. This information was not fully
canvassed at the trial and was not put to the police officer in
cross-examination. On full consideration of the matter before the
appeal court, it was apparent that there was at least a risk that part
of the identification evidence was unsound. Accordingly, it was
conceded by the Crown that the conviction should be quashed.
By a letter dated 13 May 1988, in reply to the Government's
statement, the applicant's solicitor submitted that during the trial
one of the police officers had pointed to a person on the video film
as being the applicant, but who was in fact a bank employee. The
applicant's solicitor states that it would have been professional
negligence on the part of the solicitor defending the applicant to
have pointed this out to the police officer or to suggest that he
should point to his client instead. The matter was obvious to the
defence and was simply left as it was to demonstrate the unreliability
of the identification.
As a result of the work carried out by his solicitors on his
behalf in respect of preparing his appeal, the applicant is now liable
to an account of £397,54, which he is unable to pay without grave
financial hardship.
COMPLAINTS
The applicant complains that he was denied his basic human
rights in that though he had insufficient funds to meet the cost of
legal representation, he was denied free legal assistance. Although
his appeal was successful, he is unable to secure costs from the
courts and accordingly is liable to an account in respect of the legal
assistance, which was given.
The applicant invokes Article 6 para. 1 and Article 6 para. 3
(c) of the Convention.
THE LAW
The applicant complains that he was denied free legal
assistance for his appeal contrary to Article 6 para. 3 (c) (Art.
6-3-c) of the Convention, which provides as follows:
"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 recalls that the evaluation of the requirements
of justice under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention
lies in the first place with the domestic authorities. The Commission
notes the applicant was granted legal aid for his trial and an interim
certificate for the purposes of his appeal. An application for full
legal aid was submitted to the Scottish Legal Aid Board, supported by
his solicitor's opinion but was refused by letter dated 11 May 1987.
There is no indication that in refusing legal aid, the Scottish Legal
Aid Board acted on arbitrary grounds. The Commission recalls that
counsel instructed by the applicant's solicitor was of the opinion
that the appeal stood no prospects of success. The Commission further
notes that the subsequent quashing of the conviction was the result of
a concession of the Advocate Depute as to the possible unsoundness of
part of the identification evidence and that the Court of Appeal
considered it unnecessary to go on to deal with the applicant's three
points of appeal.
In these circumstances, the Commission concludes that it has
not been shown in the present case that the interests of justice within
the meaning of Article 6 para. 3 (c) (Art. 6-3-c) required a grant of
free legal assistance to the applicant for the appeal proceedings. It
follows that this application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)