AS TO THE ADMISSIBILITY
Application No. 11711/85
by Willilam McDERMITT
against the United Kingdom
The European Commission of Human Rights sitting in private on
15 May 1987, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
G. TENEKIDES
B. KIERNAN
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. H.C. KRÜGER, 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 26 June 1985 by
William McDERMITT against the United Kingdom and registered on
19 August 1985 under file No. 11711/85;
Having regard:
- to reports provided for in Rule 40 of the Rules of
Procedure of the Commission;
- the Commission's decision of 13 December 1985 to bring the
application to the notice of the respondent Government and
invite them to submit written observations on its
admissibility and merits;
- i -
- the observations submitted by the respondent Government on
2 April 1986 and the observations in reply submitted by the
applicant on 19 May 1986;
- the supplementary information submitted by the applicant on
29 April 1987 and by the respondent Government on 12 May 1987;
- the letter of the respondent Government dated 13 May 1987
informing the Commission of their offer of settlement to
the applicant;
- the letter of the applicant's solicitor dated 13 May 1987
stating that they no longer wish the application to proceed.
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1947 and is
resident in Glasgow. He is represented by Mr. John Carroll, a
solicitor. The facts, as submitted by the parties, may be
summarised as follows.
The applicant was arrested on 21 July 1984 for breach of the
peace and spent 17 days in prison on remand before being released on
bail. He was served with a summary criminal complaint on charges of
breach of the peace and obstruction of police officers, contrary to
Section 41 (1)(a) of the Police (Scotland) Act 1967. Both offences are
punishable by imprisonment, nine months maximum in the case of the
obstruction charge.
The applicant appeared for trial before a stipendiary
magistrate on 17 May 1985. The prosecution was represented by a
qualified lawyer, all criminal prosecutions in Scotland being carried
out by officers from the Procurator Fiscal's office. A late
application for legal aid was immediately presented before the
commencement of proceedings by the applicant's solicitors. The
magistrate accepted the applicant's statement of means. However,
without investigating the defence to the charges, the magistrate
refused the application on the ground that it was not in the interests
of justice. The applicant alleges that on enquiry, the magistrate
explained that it was not in the interests of justice to give legal
aid for the offences of breach of the peace or resisting arrest.
The solicitor representing the applicant continued to act for
him at the applicant's request, thereby rendering the applicant liable
to an account. The solicitor cross-examined the prosecution
witnesses, who included the applicant's wife, on behalf of the
applicant. Following the submission made for the defence, the
applicant was acquitted on the more serious charge of obstruction.
The applicant was found guilty of a breach of the peace and fined
£50, to be paid in instalments.
The applicant did not appeal against the magistrate's refusal
of legal aid, no appeal being available under the Act of Adjournal
(Rules for Legal Aid in Criminal Proceedings) 1964, Rule 9:
"The decision of a Court on an application for legal aid or
under section 8 (2) hereof shall be final:
Provided that it shall be open to a person at any time to
make a further application for the consideration of the
Court on the ground that there has been a material change in
his financial circumstances or that he has additional facts
affecting his eligibility for legal aid to bring to the
notice of the Court."
COMPLAINTS
The applicant complains that the refusal of legal aid was
contrary to the interests of justice. He submits that the charges
were of a serious nature, carrying the risk of a prison term. The
prosecutor regarded the charges as of sufficient seriousness to merit
trial before a stipendiary magistrate and the prosecution was carried
out by a qualified lawyer who was an officer of the Crown.
The circumstances of the case therefore required that the
applicant receive free legal assistance. The judge however appeared
to make his decision to refuse legal aid on policy grounds, without
considering the interests of justice.
The applicant therefore invokes Article 6 para. 3 (c) of the
Convention.
The applicant also invokes Article 6 para. 3 (b) and (d) of
the Convention submitting that to refuse legal aid denies an applicant
facilities for his defence and prevents examination of witnesses on
the same terms as the prosecution.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 June 1985 and registered
on 19 August 1985.
On 13 December 1985 the Commission decided to bring the
application to the notice of the respondent Government in respect of
the applicant's complaint under Article 6 para. 3 (c) of the
Convention and to invite them to submit written observations on its
admissibility and merits pursuant to Rule 42 para. 2 (b) of the Rules
of Procedure.
The Government's observations were submitted on 2 April 1986
and the reply thereto submitted by the applicant on 19 May 1986.
The Commission decided on 3 December 1986 to invite the
parties to a hearing on the admissibility and merits of the
application and the date for the hearing was set for 13 May 1987.
The hearing did not in fact take place.
Supplementary information concerning the application was
submitted on 29 April 1987 by the applicant and on 12 May 1987 by the
respondent Government.
The information from the Government included a signed
precognition from the magistrate dated 7 May 1987, in which the
magistrate concludes that, on reconsideration of the matter, when
rejecting the applicant's application for legal aid, he temporarily
overlooked the existence of the statutory charge. The Government also
submitted an affidavit sworn by the magistrate on 8 May 1987 which
stated inter alia that he had taken the view that where a minor charge
under the Police (Scotland) Act 1967 relating to struggling with
police officers is included in a complaint with a charge of the breach
of the peace, the struggle with police officers charge should be
incorporated in the breach of the peace charge.
On 13 May 1987, the respondent Government accepted that "from
the information recently obtained from the magistrate it now appears
to the Government that the legal aid application made by the applicant
on 17 May 1985 may in all the circumstances of the case not have been
appropriately dealt with by him".
On the same day, the respondent Government submitted the
following letter:
"I have the honour to refer to our discussions this morning
and to inform you that the Government are prepared
1) to make an ex gratia payment to the applicant of
£300, and
2) to pay the applicant's reasonable legal costs in
respect of the proceedings before the Commission."
By letter dated 13 May 1987 the applicant's solicitor
submitted the following:
"I hereby accept the terms of settlement specified in
the letter of 13 May 1987 from the Agent of the
Government of the United Kingdom and accordingly withdraw
the above application."
FINDING OF THE COMMISSION
Having regard to the information submitted by the parties on
13 May 1987, the Commission notes that the applicant has withdrawn his
application. The Commission finds that there are no reasons of a
general character affecting the observance of the Convention which
necessitate a further examination of the case.
For these reasons, the Commission
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)