AS TO THE ADMISSIBILITY OF
Application No. 28891/95
by John McATEER
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the 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 27 November 1994
by John McATEER against the United Kingdom and registered on 6 October
1995 under file No. 28891/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
17 February 1997 and the observations in reply submitted by the
applicant on 9 April 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1965 and is currently
serving a sentence of imprisonment in Dungavel prison, Scotland. he
is represented before the Commission by Mr. Derick Williamson, a
solicitor practising in Glasgow.
The facts as submitted by the parties may be summarised as
follows.
Particular circumstances of the case
On 14 July 1994 the applicant was convicted by the High Court in
Scotland of the offence of attempted extortion and of a contravention
of the Bail Etc. (Scotland) Act 1980, the matters to which the first
conviction referred having taken place while the applicant was on bail.
The applicant was sentenced to two consecutive periods of imprisonment
of six years and three months. He was legally aided and represented at
the hearing.
The applicant appealed against conviction and sentence for
attempted extortion, arguing that there was insufficient corroborated
evidence to support his conviction and that his sentence was excessive.
The applicant applied to the Scottish Legal Aid Board
("S.L.A.B.") for legal aid for his appeal, submitting with his
application a note from his counsel. The note from counsel stated that
the appeal against conviction, which alleged that there was
insufficient corroboration, was an appeal which had "merit". The note
further stated that counsel considered six years imprisonment to be
excessive, and that the appeal against sentence had good prospects of
success. However no reasons were given to substantiate these views.
By a letter dated 26 October 1994, S.L.A.B. informed the applicant's
solicitors that legal aid had been refused on the basis that there were
no substantial grounds for the appeal and that it was not reasonable,
in the particular circumstances of the case, that legal aid should be
made available. The applicant requested S.L.A.B. to reconsider its
decision. His solicitors were notified, by letter dated 20 January
1995, that the application for legal aid had been reconsidered, but
that the decision remained the same.
On 18 January 1995, prior to the refusal of S.L.A.B. to alter
their decision to refuse legal aid, there had been an appeal hearing
before the High Court of Justiciary sitting as a Court of Appeal ("the
High Court"). The applicant had no legal aid and claims that he was not
represented at all during his appeal. However it appears from the
documents and is submitted by the Government that the applicant was
indeed represented by counsel on 18 January 1995. At this hearing an
application was made to the Court to allow the applicant to lodge
additional grounds of appeal. These additional grounds concerned an
alleged misdirection of the jury regarding the combination of charges
for which the applicant could be found guilty, a failure to warn the
jury to treat with caution the evidence of a witness who had a poor
command of English and a misdirection of the jury concerning the
requirement of majority verdict for an acquittal. The High Court
allowed the applicant to lodge these additional grounds and the appeal
hearing was continued over to a future date for further submissions and
a further report from the trial judge. The applicant's solicitors
wrote to S.L.A.B. informing them that the appeal hearing on 18 January
had been continued and asking them to reconsider the application for
legal aid for the continued appeal. S.L.A.B replied on 24 February
1995 seeking further information about why the appeal had been
continued. The applicant's solicitors supplied this information on
11 May 1995, enclosing the additional grounds of appeal and the trial
judge's report. On 15 May 1995 S.L.A.B. reconsidered their decision and
granted the applicant legal aid.
However prior to the granting of legal aid, the continued appeal
had been heard on 9 May 1995 by the High Court. The applicant
represented himself at this hearing. The High Court rejected the
applicant's initial ground of appeal relating to the sufficiency of
corroboration and also rejected the additional grounds raised at the
previous hearing. Finally, the High Court rejected the applicant's
appeal against sentence, stating that the sentence imposed was
reasonable in light of the applicant's "formidable" list of previous
convictions.
Relevant domestic law and practice
Criminal Appeals - Solemn proceedings
In solemn proceedings in Scotland, where the trial proceeds upon
an indictment before a judge sitting with a jury, a person convicted
of a criminal charge has an automatic right of appeal granted by
statute (section 228 of the Criminal Procedure (Scotland) Act 1975 -
"the 1975 Act"). No leave to appeal is therefore required.
In an appeal, the appellant may ask the court to review an
alleged miscarriage of justice in the proceeding in which he was
convicted (section 228(2) of the 1975 Act). A miscarriage of justice
is not defined by statute but the term includes such matters as
misdirections by the trial judge, wrong decisions on the admissibility
of evidence and breaches of natural justice. The nature of the alleged
miscarriage of justice must be specified in the grounds of appeal which
must be lodged within eight weeks of the date when sentence is imposed
upon the appellant (section 233(1) and (2) of the 1975 Act). An
appellant may not, at the appeal hearing, found any aspect of his
appeal on a ground which is not contained in the notice of appeal
unless, exceptionally and on showing cause, he obtains the leave of the
court to do so (section 233(3) of the 1975 Act).
Pursuant to section 236A of the 1975 Act the trial judge must as
soon as is reasonably practicable after receiving a copy of the notice
of appeal, provide a report in writing giving his opinion on the case
generally and on the grounds contained in the notice of appeal.
Section 234 of the 1975 Act provides that the appellant can opt
to present his case in writing instead of orally. However in practice
appellants present their case orally.
While there is no statutory provision relating to the conduct of
the appeal hearing (other than defining the quorum of judges as being
three), the practice is that an appellant is afforded an opportunity
to make oral submissions at such a hearing in support of his appeal and
it is also open to the judges at that hearing to ask questions, or to
put points to, the appellant. In addition, where an appellant refers
to a pre-prepared statement, the practice is for the court to ask the
appellant to present that statement orally or to copy the same to the
judges to read for themselves.
The Crown is always represented by counsel (the Advocate Deputy)
at the hearing of criminal appeals. The duty of such counsel is to act
solely in the public interest and not to seek to uphold a wrongful
decision. Accordingly, they will only address the court if requested
to do so or if it is necessary to bring to the attention of the court
some matter relevant to the appeal, whether favourable or not to the
prosecution.
The court may dismiss the appeal and affirm the verdict of the
trial court. In addition, the trial court verdict can be set aside
either by the appeal court quashing the conviction, substituting an
amended verdict of guilty or by authorising a new prosecution
(section 254 of the 1975 Act).
Legal Aid for Criminal Appeals
Responsibility for the administration of legal aid in Scotland
is vested in the Scottish Legal Aid Board ("S.L.A.B.") which is an
independent body whose members are appointed by the Secretary of State.
Legal aid, which has been available for the trial normally extends to
include consideration and advice by a lawyer and by counsel previously
involved in the case on the question of an appeal. Where appropriate,
legal aid is also available to enable a solicitor to prepare and lodge
the statutory intimation of intention to appeal and for the drafting
and lodging of the notice of appeal setting out the grounds of appeal.
To extend legal aid beyond this point a further application to
S.L.A.B. is required. This application will be granted on the
fulfilling of two conditions. In the first place, the appellant must
be financially eligible for legal aid. Secondly, the appellant must
have substantial grounds for making the appeal and it must be
reasonable that legal aid should be made available in the
circumstances. In deciding on these issues S.L.A.B will take into
account, inter alia, any opinion completed by counsel as to the
appeal's prospects of success.
If legal aid has been refused and the appellate court is of the
view that, prima facie, the appellant may have substantial grounds for
taking the appeal and that it is in the interests of justice that the
appellant should have assistance with the costs of legal representation
to argue these grounds, then the court can adjourn the hearing and
recommend that S.L.A.B. review their decision. This practice was
formalised by the circulation of a Practice Note to this effect in 1990
following the judgment of the English Court of Human Rights in the
Granger application (Eur. Court HR, Granger judgment of 28 March 1990,
Series A no. 174). Where such a recommendation is made, legal aid is
automatically granted (paragraph 6.12 of the Manual of Procedure of the
Scottish legal Aid Board).
The Criminal Justice (Scotland) Act 1995 ("the 1995 Act")
The 1995 Act, which applies to appeals from convictions handed
down on or after 26 September 1995, provides that an appellant must
apply for leave to appeal and such leave will be granted when the
appellant shows arguable grounds for appeal. In line with the new
appeals system, the 1995 Act also provides that legal aid will be
granted for an appeal where the applicant is financially eligible for
legal aid and where leave to appeal has been granted.
COMPLAINT
The applicant complains under Article 6 para. 3(c) of the
Convention that he was refused legal aid for his appeal. The applicant
was obliged to represent himself and he states that he was unable to
engage in legal argument or properly present his appeal.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 November 1994 and registered
on 6 October 1995.
On 16 October 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
17 February 1997, after an extension of the time-limit fixed for that
purpose. The applicant replied on 9 April 1997.
THE LAW
The applicant complains that his appeal hearing was unfair
because due to a refusal of legal aid for his appeal he was obliged to
appear unrepresented and he was unable to engage in legal argument or
properly present his appeal. He invokes Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention, which reads as follows:
"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 argue that in respect of the appeal hearing of
18 January 1995, although the applicant was refused legal aid, he was
in fact represented by counsel and thus there was no breach of his
rights under Article 6 (3)(c) (Art. 6-3-c) in respect of that hearing.
With regard to the continued appeal hearing on 9 May 1995 the
Government state that the applicant's solicitors failed to provide
S.L.A.B. with requested information or inform them of the date of the
hearing until 11 May 1995. The Government state that had S.L.A.B. been
informed of the date for the continued hearing and been provided with
the additional information, it is probable that legal aid would have
ben granted for the hearing (S.L.A.B. did grant legal aid to the
applicant on 15 May 1995, after the continued appeal hearing had taken
place). The Government submit that the applicant did not obtain legal
aid for the continued appeal due to the failure of the applicant's
solicitors to provide S.L.A.B. with certain information or inform them
promptly of the date of the hearing. The Government thus consider that
the fault lies with the applicant's solicitors and that the
Government's responsibility is not engaged.
The Government also submit that, as the system of legal aid for
criminal appeals in Scotland as been changed pursuant to the decisions
of the European Court of Human Rights in the Boner and Maxwell cases,
that no useful purpose would be served by the continuation of this
application, which should accordingly be struck out of the list.
The Commission recalls that pursuant to Article 30 (Art. 30) of
the Convention it may strike a petition out of its list of cases where
the matter has been resolved, or where it is no longer justified to
continue the examination of the merits. In the present case the
criminal proceedings concerning the applicant ended prior to the new
legislation and legal aid scheme coming into force, and the new scheme
has not assisted the applicant in any way. Accordingly the matter has
not been resolved and the Commission finds no other reason which would
justify striking the petition out of the list of cases.
The Commission considers that the application raises issues of
fact and law which are of such complexity that their determination
should depend on an examination of the merits. The application cannot
therefore be regarded as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other
ground for declaring it inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy