EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 23934/94
Peter Middleton
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 16 October 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-33) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-25). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law and practice
(paras. 26-33). . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 34-44) . . . . . . . . . . . . . . . . . . . . .6
A. Complaint declared admissible
(para. 34). . . . . . . . . . . . . . . . . . . . .6
B. Point at issue
(para. 35). . . . . . . . . . . . . . . . . . . . .6
C. As regards Article 6 para. 3(c) of the Convention
(paras. 36-43). . . . . . . . . . . . . . . . . . .6
CONCLUSION
(para. 44). . . . . . . . . . . . . . . . . . . . .7
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . .8
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 1956 and resident in
Newcastle upon Tyne, England. He was initially represented before the
Commission by Barry Robson, a solicitor practising in Newcastle upon
Tyne, he subsequently withdrew his instructions from that solicitor and
he was represented for the remainder of his application before the
Commission by A.C. Baker, a solicitor practising in Newcastle, England.
3. The application is directed against the United Kingdom. The
respondent Government were represented by Susan Dickson, Agent, Foreign
and Commonwealth Office.
4. The case mainly concerns the refusal of legal aid for the
applicant's criminal appeal. The applicant invokes Article 6 para. 3(c)
of the Convention.
B. The proceedings
5. The application was introduced on 1 January 1994 and registered
on 21 April 1994.
6. On 12 October 1994 the Commission (First Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on the admissibility and
merits of the applicant's complaint under Article 6 para. 3(c) of the
Convention.
7. The Government's observations were submitted on 12 October 1995
pursuant to unsuccessful settlement negotiations and after one
extension of the time-limit fixed for this purpose. On 24 October 1995
the Commission granted the applicant legal aid for the representation
of his case. No observations were received from the applicant within
the time allowed. A request by the applicant's representatives for an
extension of time was made more than two months after the expiry of the
time limit fixed and was, accordingly, denied.
8. On 12 April 1996 the Commission declared admissible the
applicant's complaint under Article 6 para. 3(c) of the Convention.
It declared inadmissible the remainder of the application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 19 April 1996 and they were invited to submit such
further information or observations on the merits as they wished. No
further observations were submitted.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
12. The text of this Report was adopted on 16 October 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the
application is annexed hereto.
15. 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. The particular circumstances of the case
16. On 7 December 1992 the applicant was arrested and charged on
indictment with housebreaking with intent to steal from a premises in
Jedburgh, Scotland. The applicant received legal aid from the Scottish
Legal Aid Board ("the S.L.A.B.") and he was represented by a solicitor
for the purposes of preparing his defence prior to the trial and for
representation at his trial.
17. The trial took place between 15-17 March 1993 and the applicant
was represented by his solicitor. After the judge's summing up, the
jury unanimously found the applicant guilty. Having heard evidence as
to the applicant's previous convictions, many of which resulted in
sentences of imprisonment (ten convictions prior to 1987, a conviction
for attempted burglary in 1987, a conviction in 1990 for handling
stolen goods and a further conviction in 1992 for burglary), the trial
judge sentenced the applicant to three years imprisonment backdated to
the date of his arrest on 7 December 1992.
18. On 25 March 1993 the applicant's solicitor lodged an intimation
of intention to appeal against conviction to the High Court. On
27 April 1993 the applicant's solicitor lodged a note of appeal to the
High Court. There were two grounds of appeal contained in the note of
appeal. In the first place, it was argued that the evidence against the
applicant was circumstantial and insufficient to link him to the crime
alleged in the indictment. Secondly, it was submitted that the trial
judge failed to direct the jury on the concept of "accessory after the
fact" when the applicant's solicitor had raised the concept in his
speech to the jury indicating that the judge would advise the jury on
this matter in due course.
19. The legal aid for the applicant's trial covered legal advice in
connection with his appeal but did not cover legal representation at
the appeal hearing. Accordingly, on 31 March 1993 an application was
made to the S.L.A.B. for legal aid to cover the applicant's
representation at the appeal hearing.
20. On 28 May 1993 the trial judge lodged his report on the trial in
the High Court pursuant to section 236A of the Criminal Procedure
(Scotland) Act 1975. On 25 June 1993 the applicant's counsel prepared
a written opinion to the effect that the applicant's appeal had no
prospect of success.
21. The applicant submits that he was informed by his solicitor
during a consultation on 1 July 1993 that the application for legal aid
for the appeal had been refused.
22. By letter dated 15 September 1993 the applicant's solicitor
informed the applicant that counsel's opinion had been forwarded to the
S.L.A.B.. In a letter dated 24 September 1993 to the applicant his
solicitor stated that he was waiting to hear from the S.L.A.B. as to
whether the S.L.A.B. "confirm" that legal aid has been refused. On
1 October 1993 the S.L.A.B. wrote to the applicant indicating that a
decision on legal aid "was still pending" and that the S.L.A.B. awaited
counsel's opinion.
23. The applicant's appeal was heard on 8 October 1993 and the
applicant presented his appeal in person. His appeal was rejected, the
court finding (in a five page judgment) that the trial judge's view on
the evidence and his direction to the jury were correct. On the date
of the appeal hearing the S.L.A.B. had neither refused nor granted the
applicant further legal aid but the applicant submits that he was under
the impression that legal aid had already been refused.
24. The S.L.A.B. notified the applicant, by letter dated
21 October 1993, that his solicitor had lodged counsel's opinion with
the S.L.A.B. on 15 October 1993. Unaware that the appeal hearing had
already taken place, the S.L.A.B. proceeded to consider the legal aid
application and, by letter dated 3 November 1993, notified the
applicant's legal representatives that the legal aid application had
been refused. The S.L.A.B. refused legal aid because (as outlined in
its letter to the applicant dated 25 May 1994) the S.L.A.B. was not
satisfied that the applicant had substantial grounds for making the
appeal nor was it reasonable, in the particular circumstances of the
case, that legal aid should be made available to the applicant. The
S.L.A.B. noted that the applicant's counsel did not support his appeal.
25. The applicant was released from prison on 6 June 1994.
B. Relevant domestic law and practice
1. Criminal Appeals - Solemn proceedings
26. 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.
27. Pursuant to section 236A of the 1975 Act, the trial judge must
furnish a written report covering the case in general and the grounds
of the appeal. In an appeal, the appellant may ask the court to review
an alleged miscarriage of justice in the proceedings 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).
28. 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). 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 permitted to lodge other documents. It is
also open to the judges at the 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 make copies for the
judges.
29. 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 appeal court may, inter alia, affirm or set aside a
conviction and may affirm, vary or quash a sentence. The nobil officium
of the High Court constitutes the ultimate residual power of the High
Court to bring proceedings under review.
2. Legal Aid for Criminal Appeals
30. 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, extends normally to
include consideration and advice 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.
31. To extend legal aid beyond this point a further application to
the Legal Aid Board is required. This application will be granted on
fulfilling 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 the S.L.A.B. will take into account, inter
alia, any opinion completed by counsel as to the appeal's prospects of
success.
32. 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, that court can adjourn the hearing and
recommend that the 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 European Court of Human Rights in the
Granger application (Eur. Court H. R., 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).
33. The Criminal Justice (Scotland) Act 1995 applies to appeals from
convictions handed down on or after 26 September 1995. It 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 that 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.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
34. The Commission has declared admissible the applicant's complaint
about the refusal of legal aid for his criminal appeal.
B. Point at issue
35. The only point at issue is whether the refusal of legal aid for
the applicant's appeal constitutes a violation of Article 6 para. 3(c)
(Art. 6-3-c) of the Convention.
C. As regards Article 6 para. 3(c) (Art. 6-3-c) of the Convention
36. Article 6 para. 3(c) (Art. 6-3-c) of the Convention 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; ..."
37. The applicant submits that the refusal of legal aid meant that
he was obliged to present his own appeal, though he was incapable of
doing so, and that this rendered his appeal hearing unfair. The
Government have no observations on this complaint in light of the Court
judgments in the Boner and Maxwell cases (Eur. Court HR, Boner and
Maxwell v. the United Kingdom judgments of 28 October 1994, Series A
no. 300-B and 300-C) apart from their acceptance that, had the opinion
of applicant's counsel been submitted to the S.L.A.B. prior to the
appeal hearing, it is very likely that the S.L.A.B. would have refused
legal aid for the same reasons as were in fact eventually given by the
S.L.A.B..
38. The Commission recalls the above-mentioned Boner and Maxwell
cases. Mr Boner had been convicted of assault and armed robbery, a
charge of wilful damage and three charges relating to firearms and was
sentenced to eight years imprisonment. Mr Maxwell was found guilty of
assault and was sentenced to five years imprisonment. Both were refused
legal aid for their appeals (for which appeals leave was not required)
on the grounds that the S.L.A.B. was not satisfied that there were
substantial grounds for making the appeal and that it was reasonable
that legal aid be granted.
39. The grounds of appeal of both applicants were described by the
Court as not particularly complex. However, the Court found that,
although Mr Boner understood the grounds of appeal drafted by his legal
representative, those grounds required a certain legal skill and
expertise to present to the appeal court. As regards Mr. Maxwell, the
Court found that, although he may have formulated the grounds of appeal
himself, he was unable to competently address the appeal court on such
legal issues without the services of a legal practitioner.
40. The Court therefore found that, given the nature of the
proceedings, the wide powers of the High Court, the limited capacity
of an unrepresented appellant to present a legal argument and, above
all, the importance of the issue at stake in view of the severity of
the sentence, the interests of justice required that those applicants
be granted legal aid for representation at the hearing of their
criminal appeals and that the refusal of such legal aid constituted a
violation of Article 6 para. 3(c) (Art. 6-3-c) of the Convention.
41. The Commission notes that the present applicant was subject to
the same legal aid rules and criminal appeal system as applied in the
Boner and Maxwell cases, that he was refused legal aid for his appeal
for the same reasons as in those cases, that it is not in dispute that
he lacked sufficient means to pay for legal assistance for his appeal
and that the applicant was unrepresented for his appeal hearing.
Although the decision of the S.L.A.B. was in fact taken after the
applicant's appeal hearing, in light of the Government's acceptance
outlined above and the eventual decision of the S.L.A.B., the
Commission considers that the applicant was obliged to represent
himself at his appeal hearing.
42. It is further noted that the matter before the appeal court was
the applicant's conviction for housebreaking with intent to steal
following which he was sentenced to three years imprisonment. It is
true that the conviction and sentence are less serious than the
convictions and sentences in the Boner and Maxwell cases. However, the
Commission considers that the conviction and sentence at stake were
extremely important for the applicant. The Commission is also of the
opinion that the grounds of the applicant's appeal were relatively
complex and that, although he may have understood the grounds of appeal
drafted by his legal representative, those grounds required, as in the
Boner case, a certain legal skill and expertise to present to the
appeal court.
43. The Commission therefore considers that the interests of justice
required that the applicant be granted legal aid for representation at
the hearing of his appeal in the High Court and that, accordingly, the
refusal of legal aid for such representation constitutes a violation
of article 6 para. 3(c) of the Convention.
CONCLUSION
44. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 3(c) (Art. 6-3-c) of the
Convention.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy