EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 18949/91
Peter Maxwell
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 4 May 1993)
TABLE OF CONTENTS
page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . .1-2
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . .1-2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-37) . . . . . . . . . . . . . . . . . . . .3-5
A. Particular circumstances of the case
(paras. 17-23). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law and practice
(paras. 24-37). . . . . . . . . . . . . . . . . .3-5
III. OPINION OF THE COMMISSION
(paras. 38-48) . . . . . . . . . . . . . . . . . . . .6-7
A. Complaint declared admissible
(para. 38). . . . . . . . . . . . . . . . . . . . .6
B. Point at issue
(para. 39). . . . . . . . . . . . . . . . . . . . .6
C. Article 6 para. 3(c) of the Convention
(paras. 40-47). . . . . . . . . . . . . . . . . .6-7
CONCLUSION
(para. 48) . . . . . . . . . . . . . . . . . . . . . . .7
DISSENTING OPINION OF MR. HENRY G. SCHERMERS
and SIR BASIL HALL. . . . . . . . . . . . . . . . . . . . .8-9
APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . 10
APPENDIX II PARTIAL DECISION ON THE ADMISSIBILITY. . .11-14
APPENDIX III FINAL DECISION ON THE ADMISSIBILITY. . . .15-19
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 1944 and currently
serving a sentence of imprisonment in HM Prison Perth.
3. The application is directed against the United Kingdom. The
respondent Government are represented by their Agent,
Mrs. Audrey Glover of the Foreign and Commonwealth Office.
4. The case concerns the applicant's complaints under
Article 6 para. 3(c) of the Convention that he was refused legal aid
for the presentation of his appeal against conviction.
B. The proceedings
5. The application was introduced on 25 March 1991 and registered
on 15 October 1991.
6. On 2 April 1992, the Commission (First Chamber) decided to invite
the Government to submit written observations on the admissibility and
merits of the complaints under Article 6 para. 3(c) of the Convention.
The remainder of the application was declared inadmissible.
7. The Government submitted their written observations on
1 July 1992. The applicant submitted his observations on
14 August 1992.
8. On 2 December 1992, the Commission transferred the case to
Plenary from the First Chamber.
9. On 9 December 1992, the Commission declared the application
admissible insofar as it raised issues under Article 6 para. 3(c) of
the Convention. The parties were then invited to submit any additional
observations on the merits of the application.
10. On 9 February 1993, the Government submitted observations on the
merits and on 25 February 1993, the applicant submitted further
material.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. Consultations with the parties took place
between 22 October 1991 and 1 September 1992. In the light of the
parties' reactions, the Commission now finds that there is no basis on
which a friendly settlement can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M. NOWICKI
13. The text of the Report was adopted by the Commission on
4 May 1993 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
14. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. A schedule setting out the history of the proceedings before the
Commission is attached hereto as APPENDIX I and the Commission's
decisions on the admissibility of the application as APPENDIX II and
APPENDIX III.
16. 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. Particular circumstances of the case
17. On 28 May 1990, the applicant, along with a co-accused, stood
trial on an indictment of breaking into a house and assaulting the
occupant to his severe injury. On 29 May 1990, he was convicted and
sentenced to 5 years' imprisonment. The applicant, who had been
granted free legal aid, was represented at trial by a solicitor and
counsel.
18. On 17 December 1990, the applicant's solicitors applied to the
Scottish Legal Aid Board for legal aid for representation at his appeal
against conviction. In a note dated 10 January 1991, counsel advised
that the applicant had no grounds of appeal against conviction.
The applicant's solicitors submitted to the Legal Aid Board that the
applicant should nonetheless be given legal aid in view of the lengthy
sentence which he had received.
19. On 23 January 1991, the Scottish Legal Aid Board rejected the
applicant's application for legal aid for an appeal against conviction.
It did so because it did not consider that there were substantial
grounds for such an appeal.
20. The applicant prepared and submitted his own grounds of appeal
against conviction.
21. On 21 March 1991, the applicant addressed the High Court of
Justiciary in its appellate function on his grounds of appeal.
22. The grounds of appeal were, inter alia, as follows:
1. He could not substantiate his contention that a crucial
witness was giving false evidence against him because to do so
would have involved revealing to the jury a previous conviction.
2. A number of witnesses were not called by the Crown or
Defence.
3. Crucial evidence was fabricated.
4. The verdict of the jury was not supported by the evidence.
5. His legal advisers disregarded instructions which he gave
them and did not defend him in accordance with his instructions.
23. On the same date the Court refused the applicant's appeal against
conviction. It found that none of the grounds of appeal supported the
suggestion that there was any miscarriage of justice in the case.
B. Relevant domestic law and practice
Appeals against conviction by persons convicted on indictment
24. Pursuant to section 228 of the Criminal Procedure (Scotland) Act
1975 every person convicted of a criminal charge on indictment in
Scotland has a right of appeal to the High Court of Justiciary against
conviction or sentence or both.
25. In an appeal, the appellant may bring under review by the Court
any alleged miscarriage of justice in the proceedings.
26. An appeal is heard by a bench of not less than three judges. At
the hearing of the appeal the appellant or his counsel if he is
represented makes submissions to the Court in support of the grounds
of appeal. The Court is then addressed by counsel for the Crown.
27. In disposing of an appeal against conviction the High Court may
affirm the verdict of the trial court; set aside the verdict of the
trial court by either quashing the conviction or by substituting an
amended verdict of guilty; or set aside the verdict of the trial court
and authorise a new prosecution (section 254 of the Criminal Procedure
(Scotland) Act 1975).
Availability of legal aid for criminal appeals
28. Legal aid is available for appeal against conviction or sentence
where the applicant qualifies on financial grounds and where "he has
substantial grounds for making the appeal and it is reasonable in the
particular circumstances of the case that legal aid should be made
available to him" (Legal Aid (Scotland) Act 1986 section 25(2)).
29. The administration of legal aid in Scotland, including decisions
as to the granting of legal aid for criminal appeals, is the
responsibility of the Scottish Legal Aid Board, an independent body
established on 1 April 1987 whose members are appointed by the
Secretary of State for Scotland.
30. Legal aid which has been made available for a trial on indictment
extends, where the accused person is convicted, to include
consideration and advice by a solicitor on the question of the appeal.
A Note by Counsel on the prospects of an appeal can be obtained under
this grant of legal aid, where Counsel has been previously involved on
the appellant's behalf in the proceedings.
31. To obtain legal aid to proceed with an appeal, a further
application to the Scottish Legal Aid Board is required. The solicitor
preparing the Note of Appeal will, where appropriate, arrange to obtain
the opinion of Counsel as to the prospects of the appeal, and will
lodge this with the application for legal aid.
32. Applications for legal aid for criminal appeals are determined
by the Board, which includes at least 2 practising members of the
Faculty of Advocates, at least 2 members of the Law Society of Scotland
and at least one other person having experience of the procedure and
practice of the courts.
33. The Board normally reaches a decision as to whether there are
substantial grounds on the basis of the documents before them, which
normally include copies of a Note of Appeal and the Judge's charge to
the jury. The views expressed by the applicant's solicitor and Counsel
will also be taken into account in the Board's consideration.
34. Although the legislation does not provide for a formal review,
the Board will as a matter of practice, when requested to do so,
reconsider an application which has been refused. Such consideration
involves reference by the Board to an external reporter who was not
involved in the initial decision to refuse the application and who
reports to the Board on the merits of the application.
35. In a solemn criminal appeal where legal aid has been refused, if
the Appeal Court considers that, prima facie, an appellant may have
substantial grounds for taking the appeal and it is in the interests
of justice that the appellant should have legal representation in
arguing these grounds, the Court ex proprio motu may adjourn the
hearing and make a recommendation that the Board's decision to refuse
legal aid should be reviewed.
36. The practice of the Court in this regard was formalised by a
Practice Note to this effect issued on 4 December 1990 by the Lord
Justice General, to all Appeal Court Chairmen and Clerks:
"In any appeal where legal aid has been refused and the court
considers that, prima facie, an appellant may have substantial
grounds for taking the appeal and it is in the interests of
justice that the appellant should have legal representation in
arguing these grounds, the court shall forthwith adjourn the
hearing and make a recommendation that the decision to refuse
legal aid should be reviewed."
37. The Scottish Legal Aid Board has decided that where a
recommendation is made by the Court in criminal appeal cases that a
decision to refuse legal aid should be reviewed, they will grant legal
aid. The Manual of Procedure of the Scottish Legal Aid Board provides
in para. 6.12:
"In any criminal appeal where legal aid has been refused, and the
Appeal Court considers that the appellant may have substantial
grounds for taking the appeal, and it is in the interests of
justice that the appellant should have legal representation in
arguing those grounds, the Appeal Court can adjourn the hearing
and recommend that the Board re-considers the decision to refuse
legal aid.
In these circumstances, the Board will receive a letter from the
High Court of Justiciary giving the details of the case where
they are recommending a re-consideration of the decision to
refuse. If we are asked to re-consider a decision in these
circumstances, then the application should be granted
automatically. The case need not be seen by a reporter or Board
solicitor, but ought to be referred to the Assistant Manager for
the appropriate action."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
38. The Commission has declared admissible the applicant's complaint
that he was refused legal aid for the presentation of his appeal
against conviction.
B. Point at issue
39. The issue to be determined is whether there has been a violation
of Article 6 para. 3(c) (Art. 6-3-c) of the Convention.
C. Article 6 para. 3(c) (Art. 6-3-c) of the Convention
40. Article 6 para. 3(c) (Art. 6-3-c) provides that:
"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".
41. The applicant submits that the refusal of legal aid for his
appeal against conviction is in violation of the above provision. He
states that very serious matters were at stake in his appeal and that
the interests of justice required that he receive legal representation.
42. The Government submit that Article 6 para. 3(c) (Art. 6-3-c) does
not bestow a right to receive legal aid where an appeal has "no
objective likelihood of success" and refer to the Monnell and Morris
case (Eur. Court, H.R. Monnell and Morris judgment of 2 March 1987,
Series A no. 115, p. 25, para. 67). In this case, the Government recall
that the applicant's counsel advised that the applicant had no ground
of appeal against conviction and, in their submission, there was
nothing complex in the case either factually or legally which indicated
that the interests of justice required legal representation. The
Government also lay emphasis on the fact that there is an automatic
right of appeal in Scotland without the requirement of obtaining leave
to appeal.
43. The Commission recalls that Article 6 para. 3 (Art. 6-3) contains
an enumeration of specific rights of the defence. They exemplify the
notion of fair trial in respect of typical procedural situations which
arise in criminal cases, but their intrinsic aim is always to ensure,
or contribute to ensuring, the fairness of the criminal proceedings as
a whole. The guarantees enshrined in Article 6 para. 3 (Art. 6-3) must
accordingly be interpreted in the light of the function which they have
in the overall context of the proceedings (cf. Can v. Austria, Comm.
Report 12.7.84, para. 48, Eur. Court H.R., Series A no. 96, p. 15). The
manner in which the guarantees apply in relation to appellate or
cassation courts may also be influenced by the special features of
those proceedings including the nature of the procedure and the powers
of the appellate body concerned (Monnell and Morris judgment loc. cit.,
p. 22, para. 56).
44. 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
applicant be granted legal aid before the High Court.
45. When determining whether "the interests of justice" required
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., Granger judgment of
28 March 1990, Series A no. 174, pp. 18-19, paras. 47-48 and Comm.
Report 12.12.88, loc.cit. pp. 24-25, paras. 50-52).
46. In the present case, the Commission notes that several of the
features present in the Granger case are absent. In particular in the
Granger case the appeal concerned acknowledged "difficult" legal
distinctions of some complexity and during the proceedings the Court
adjourned in order to obtain a transcript of evidence so as to be able
to examine the matter more thoroughly. Nonetheless the applicant was
appealing in this case against a conviction for which he had received
a sentence of five years' imprisonment. There is consequently no
question as to the importance of what was at stake in the appeal.
47. The Commission recalls that the High Court has wide powers as to
the disposing of appeals and that the procedure is not limited but
allows any alleged miscarriage of justice to be challenged. The
proceedings involve an oral hearing at which the Crown is represented.
The Commission notes that the Scottish system affords an automatic
right of appeal in all cases. However where appeals are provided for,
the guarantees of Article 6 para. 3(c) (Art. 6-3-c) cannot be evaded
on the ground of the other incidental benefits of the system. The
effectiveness of the contribution, by an unaided applicant, to appeal
hearings at which the prosecution is represented by counsel, and
consequently the fairness of those proceedings, must be seriously in
doubt. Consequently, having regard in the present case to the nature
of the proceedings and the length of sentence at stake, the Commission
finds that the interests of justice required the provision of legal
assistance.
CONCLUSION
48. The Commission concludes, by 17 votes to 2, that there has been
a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
DISSENTING OPINION OF MR. HENRY G. SCHERMERS AND SIR BASIL HALL
We do not share the view of the majority of the Commission that
there has been a violation of Article 6 para. 3(c) in this case.
"The manner of application of Article 6 to proceedings before
courts of appeal depends on the special features of the proceedings
involved; account must be taken of the entirety of the proceedings in
the domestic legal order and of the role of the appellate Court
therein." (Jan-Ake Andersson v. Sweden judgment of 29.10.91, Series A
no. 212 B, p. 43, para. 22.)
This principle applies not only in relation to para. 1 of that
Article but also in relation to para. 3(c) which states a specific
aspect of the basic entitlement to a fair hearing conferred by para. 1
(Granger judgment of 28.3.90, Series A no. 174, p. 17, paras. 43 and
44.)
Under the Scottish system everyone convicted of a crime at first
instance has a right to appeal to the High Court of Justiciary. An
appeal will however only succeed if a miscarriage of justice is
established. The function of the Court is then to examine whether
there is ground for finding that there has been a miscarriage of
justice and not to re-hear the case. The Court examines whether at
first instance there has been an error of law or a procedural error.
The appellant is required to state the grounds in his notice of appeal
and may not, in general, found his appeal on a ground not stated in the
notice (see Granger judgment loc.cit., pp. 12 and 13, paras. 26 and
27).
Like Mr. Granger the applicant was sentenced to five years
imprisonment. In other respects his case was very different from that
of Mr. Granger. Unlike Mr. Granger he understood the grounds of his
appeal - indeed he formulated them himself. There was no difficult
legal issue such as the issue over 'precognitions' in the Granger case.
The applicant was advised by his Counsel that there was no ground
for an appeal against his conviction. The Legal Aid Board, too,
concluded that there was no substantial ground for an appeal.
Notwithstanding the advice which the applicant had received he pressed
on with his appeal with no objective likelihood of success. In these
circumstances we do not consider that the interests of justice required
that he should have been given legal aid at the appeal stage (see the
Monnell and Morris judgment of 2.3.87, Series A No. 115, p. 25,
para. 67).
The majority of the Commission place weight on the fact that the
prosecutor was legally represented while the applicant was not. If the
prosecutor is to be present on an appeal (what he obviously must be -
to assist the court if necessary) he can only be present through the
presence of a counsel. If the prosecutor has played an active part in
arguing that the appeal should have been dismissed, question of
equality of arms might have arisen. There is no indication that that
was so in this case, which distinguishes the case from Granger where
the Solicitor-General addressed the court at length (Granger judgment
of 20 March 1990, Series A no. 174, p. 11 para. 18 and p. 18 para. 47.
Furthermore there is an obvious difficulty in counsel putting forward
an argument on a point which he believes to be without foundation, so
that the purpose served by representation in the circumstances is not
obvious.
Accordingly there was, in our opinion, no breach of
Article 6 para. 3(c) in this case either taken alone or as an element
in the right to a fair hearing conferred by Article 6 para. 1.
Appendix I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
25.03.91 Introduction of the application
15.10.91 Registration of the application
Examination of admissibility
02.04.92 Commission's decision to invite the parties to submit
observations on the admissibility and merits of the
complaint under Article 6(3)(c).
Commission's decision to declare the other complaints
inadmissible
01.07.92 Government's observations
14.08.92 Applicant's observations
02.12.92 Transfer of the case from the First Chamber to the
Plenary
09.12.92 Commission's decision to declare the remainder of the
application admissible.
Examination of the merits
09.12.92 Commission's deliberations on the merits
09.02.93 Government's observations
25.02.93 Applicant's observations
03.04.93 Commission's consideration of the state of proceedings
04.05.93 Commission's deliberations on the merits, final votes
and adoption of the Report
Full & Egal Universal Law Academy