AS TO THE ADMISSIBILITY OF
Application No. 15861/89
by P.M.
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 December 1991 , the following members being present:
MM.J. A. FROWEIN, President
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
H. DANELIUS
SirBasil HALL
MM.C.L. ROZAKIS
MM.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 22 August 1989 by
P.M. against the United Kingdom and registered on 4 December 1989 under
file No. 15861/89 ;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government
on 14 March 1991 and the observations in reply submitted
by the applicant on 26 April 1991;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1948 and is currently
serving a prison sentence in H.M. Prison Saughton, Edinburgh. The
facts as submitted by the parties may be summarised as follows.
The applicant, his son and elder brother were charged with a
number of offences relating inter alia to assaults inflicting grave
injuries with a sword and knife in an incident in a public house. The
applicant pleaded guilty to two charges of attempted murder and on 27
July 1988 was sentenced to two terms of imprisonment of eight years to
run concurrently. While it appears that legal aid for Senior Counsel
was not granted by the Scottish Legal Aid Board since it considered
that the case did not present such features as would justify employment
of such counsel, the applicant was in fact represented by Senior
Counsel at trial, Mr. I. Hamilton Q.C. In his letter of 11 February
1990 to the Scottish Legal Aid Board, the applicant stated:
"I was allowed a Junior Q.C. for my defence, but my solicitor
said this would not do for the High Court and got a Q.C.
for the same money as the Junior."
The charges against his son were dropped at the beginning of the
trial, although his brother, who pleaded not guilty, was found guilty
of 3 charges and also sentenced to two terms of imprisonment of eight
years, to run concurrently.
The applicant appealed against sentence on the ground that it was
excessive in view of his previous good record, his personal
circumstances and the circumstances of the offence. The Note of Appeal
was prepared by his solicitors. His brother appealed against the
conviction and sentence.
The applicant had applied for legal aid for his appeal, but legal
aid had been refused by the Legal Aid Board on 28 November 1988, on the
ground that it did not consider that he had substantial grounds for
making the appeal or that it was reasonable in the particular
circumstances of the case that legal aid should be made available to
him. The Board noted that this appeal had not been supported by a
counsel's opinion.
The appeal was heard by the High Court of Justiciary. While the
Advocate Depute was present for the Crown, as in all appeals, he played
no part in the appeal and was not requested by the court to assist it
in any way. The applicant was present and submitted a written statement
to the Court and made oral submissions concerning his past good record.
The High Court gave its judgment on 5 May 1989 and dismissed the
applicant's appeal. The Court found that the sentence was not
excessive since the applicant had taken the principal part in the
assault and had been the person who inflicted the injuries with a
sword. His brother's appeal was also dismissed.
COMPLAINTS
The applicant complains of pressure allegedly put on him by the
Procurator Fiscal who offered to withdraw charges against his son,
brother and himself. He complains of the conduct of his defence by his
solicitor and counsel and of being unable to obtain the examination of
witnesses. The applicant also complains that the indictment was not
served within the required seven days. He further complains of being
refused legal aid on appeal contrary to Article 6 para. 3 (c) of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 August 1989 and registered
on 4 December 1989.
On 7 November 1990, the Commission decided to communicate the
application to the respondent Government for written observations on
the admissibility and merits of the application.
The Government's observations were submitted on 4 March 1991
after one extension in the time-limit and the applicant's observations
in reply were submitted on 26 April 1991.
On 2 September 1991, the Commission decided to refer the
application to the First Chamber.
THE LAW
1. Article 6 para. 3 (c) (Art. 6-3-c) of the Convention
The applicant has complained that he was refused legal aid for
representation of his appeal. He invokes 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 Government have submitted that the applicant has failed to
exhaust domestic rmedies in respect of his complaint of a refusal of
legal aid for his appeal since he did not re-submit his legal aid
application to the Legal Aid Board for it to review its decision.
The Commission recalls that Article 26 (Art. 26) of the
Convention only requires the exhaustion of such remedies which relate
to the breaches of the Convention alleged and at the same time can
provide effective and sufficient redress. An applicant does not need
to exercise remedies which, although theoretically of a nature to
constitute a remedy, do not in reality offer any chance of redressing
the alleged breach (cf. Application No. 9248/81, Dec. 10.10.83, D.R.
34 p. 78). The burden of proving the existence of the available and
sufficient domestic remedies lies upon the State invoking the rule (cf.
Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no. 35,
p. 15, para. 26; Application No. 9013/80, Dec. 11.12.82, D.R. 30 p.
96 at p. 102).
As regards the respondent Government's contention that the
applicant failed to re-apply to the Legal Aid Board, the Commission
considers that the possibility of requesting an authority to reconsider
a decision taken by it will not generally constitute an effective
remedy for the purposes of Article 26 (Art. 26) of the Convention (cf.
Application No. 7729/76, Dec. 17.12.76, D.R. 7 p. 164) and that there
is no indication in the present case that such a re-application to the
Legal Aid Board would have done so. In particular, the Commission
notes that there had been no material change of circumstances or
relevant new information to submit. The Commission is accordingly
unable to accept that the application should be declared inadmissible
for non-exhaustion of domestic remedies.
The Commission has made a preliminary examination of the parties'
observations on the merits of the complaint under Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention. It considers that this complaint raises
complex issues of fact and law which can only be resolved by an
examination of the merits. The complaint cannot therefore be declared
manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the
Convention, but must be declared admissible, no other grounds for
inadmissibility having been established.
2. Remaining complaints
The applicant has also complained of a number of matters
concerning his trial, in particular, the conduct of the Procurator
Fiscal and of his solicitor and counsel, of being unable to obtain the
examination of witnesses and of a failure properly to serve the
indictment.
The Commission finds that these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention.
It follows that they are 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 ADMISSIBLE the applicant's complaint
under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M. de SALVIA) (J. A. FROWEIN)
Full & Egal Universal Law Academy