EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 25523/94
George MURDOCH
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. 16-36) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-28). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 29-36). . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 37-53) . . . . . . . . . . . . . . . . . . . . .8
A. Complaints declared admissible
(para. 37). . . . . . . . . . . . . . . . . . . . .8
B. Points at issue
(para. 38). . . . . . . . . . . . . . . . . . . . .8
C. As regards Article 6 para. 3 (c) of the Convention
(paras. 39-46). . . . . . . . . . . . . . . . . . .8
CONCLUSION
(para. 47). . . . . . . . . . . . . . . . . . . . .9
D. As regards Article 6 para. 3 (b) of the Convention
(paras. 48-50). . . . . . . . . . . . . . . . . . 10
CONCLUSION
(para. 51). . . . . . . . . . . . . . . . . . . . 10
E. Recapitulation
(paras. 52-53). . . . . . . . . . . . . . . . . . 10
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 11
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 citizen of the United Kingdom, born in 1951
and resident in Kirriemuir in Scotland. He was represented before the
Commission by Mr. J. Justice, a solicitor practising in Kirriemuir.
3. The application is directed against the United Kingdom. The
respondent Government were represented by Ms. Susan Dickson, Agent,
Foreign and Commonwealth Office.
4. The case concerns the refusal of legal aid for the applicant's
criminal appeal and the refusal to adjourn the hearing on the
applicant's appeal. The applicant invokes Article 6 para. 3 (b) and (c)
of the Convention.
B. The proceedings
5. The application was introduced on 21 October 1993 and registered
on 3 November 1994.
6. On 6 September 1995 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 its admissibility and
merits.
7. The Government's observations were submitted on 20 November 1995.
The applicant replied on 19 January 1996. On 5 December 1995 the
Commission (First Chamber) granted the applicant legal aid for the
presentation of his case.
8. On 12 April 1996 the Commission declared admissible the
applicant's complaints concerning the refusal of legal aid for his
appeal and the refusal to adjourn the hearing of 30 April 1993 on his
appeal. It declared inadmissible the remainder of the application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 18 April 1996 and they were invited to submit such
further information or observations on the merits as they wished. The
Government submitted observations on 28 June 1996, to which the
applicant did not reply.
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
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 10 August 1991 the applicant was arrested in connection with
drug-related offences. On 28 September 1992 he applicant appeared
before the High Court of Justiciary in Perth to be tried on four
charges relating to the possession and supply of a controlled drug,
namely cannabis resin, under the Misuse of Drugs Act 1971. He was
represented by Senior and Junior Counsel, having been granted legal aid
from the Scottish Legal Aid Board ("S.L.A.B."). In the course of the
trial, which lasted until 2 October 1992, the court heard, among
others, two police officers who from behind some bushes had observed
the applicant visit a clearing in a wood where cannabis had been
buried.
17. In a judgment pronounced on 2 October 1992, the court found the
applicant guilty of having been involved in the supply of cannabis,
contrary to section 4 par. 3 (b) of the Misuse of Drugs Act 1971, and
not guilty of two other charges. The court considered the fourth charge
not proven. It sentenced the applicant to two years imprisonment.
18. On 8 October 1992 the applicant's then solicitors gave to the
High Court of Justiciary notice of the applicant's intention to appeal
against his conviction and sentence. On 16 October 1992, however, the
applicant abandoned his appeal against sentence.
19. On 28 October 1992 the applicant's then solicitors lodged with
the High Court the note of the applicant's appeal against conviction
on the grounds, first, that the trial judge had misdirected the jury
on the law of corroboration and, secondly, that before giving evidence
one of the prosecution witnesses, police officer F, had discussed his
testimony with H, a private investigator acting for the applicant who
had been cited as a witness for the defence. On 30 October 1992 the
applicant was conditionally released pending the outcome of his appeal.
20. On 6 November 1992 the applicant applied to the S.L.A.B. for a
further grant of legal aid to cover legal representation for his
appeal. On 3 December 1992 the solicitors who had until then been
representing the applicant informed the S.L.A.B. that they could no
longer act for him, because of a conflict of interest. On
8 December the S.L.A.B. was informed that another firm of solicitors
had taken up the applicant's case.
21. On 22 February 1993 the applicant's new solicitors advised him
not to instruct new counsel for his appeal because his was "the type
of case in which it (was) virtually impossible to fully comprehend the
whole evidence and the various nuances arising from it without having
been involved throughout." They also requested a written opinion from
one of the two counsel who had represented the applicant before the
first instance court on the prospects of success of the applicant's
appeal. A hearing fixed for 4 March 1993 before the High Court of
Justiciary was adjourned at the applicant's request.
22. In an opinion delivered on 14 April 1993, the applicant's former
counsel considered that the applicant's appeal did not have any
prospects of success. By letter dated 15 April 1993, the applicant's
solicitors informed him that, given the negative opinion delivered by
counsel, it was inevitable that legal aid would be refused.
Considering, moreover, that, even if he were to find private funding,
it would be impossible for the applicant to persuade another lawyer to
argue his case, they advised him either to abandon the appeal or to
represent himself. The applicant claims to have received this letter
on 19 April 1993.
23. On 18 April 1993 the applicant applied for a second adjournment.
On 23 April 1993 he was informed that his request would be examined by
the court in the course of the hearing of 30 April 1993. On the same
day the S.L.A.B. refused the applicant's application for legal aid and
orally informed the applicant's solicitors.
24. On 26 April 1993 the applicant wrote to the police asking them
to provide him with a copy of a recording of an interview taken by a
police officer from a person immediately after the applicant's arrest,
in which the police officer in question allegedly affirmed that
2 1/2 kilos of cannabis had been discovered in the course of the
operation which led to the applicant's arrest. On the same date the
applicant also contacted the Royal Scottish Forestry Society with a
view to finding an expert on woods.
25. On 27 April 1993 the applicant's solicitors informed him of the
decision of the S.L.A.B. By letter of 28 April 1993 the S.L.A.B.
formally informed the applicant's solicitors that his application for
legal aid had been refused, because "the Board 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."
26. On 30 April 1993 the High Court of Justiciary held a hearing on
the applicant's appeal. The applicant, who represented himself,
informed the court that he did not pursue his first ground of appeal
that there was a misdirection on the law of corroboration. He also
applied for an adjournment, so as to be able to prepare the remaining
ground of appeal, and for the court's permission to lodge
three additional grounds. The applicant wished to argue the following:
first, due to certain changes made by the jury in the charge of which
he had been convicted, the quality, character and strength of the
evidence as a whole was insufficient and his conviction had been, as
a result, perverse and unreasonable; secondly, in his summing-up to the
jury the trial judge had not given fair weight to the special defence
of incrimination the applicant had lodged; thirdly, his counsel had
erred in not informing the trial judge about the conversation between
F and H.
27. Considering that the applicant had had ample time to obtain the
information he needed to prepare his appeal, the court rejected his
request for an adjournment. It also considered that the additional
grounds of appeal were plainly without substance. The principal
evidence on which the prosecution had relied related to the part of the
charge of which the applicant had been found guilty. The judge had
reminded the jury of the applicant's special defence of incrimination
and explained their significance. As regards the third additional
ground, the court considered that, if there was a miscarriage of
justice, this would lie in the fact that the conversation had taken
place and in the effect of that conversation on the evidence. This
ground, however, already existed in the applicant's note of appeal.
28. The court further held that, even assuming that the applicant's
version of facts regarding the conversation between F and H had been
true, the conversation could not have had any material effect on the
decision of the jury to convict the applicant. The incident had not
influenced the defence in their decision not to use the evidence
discussed between F and H. This consisted of a video recording of the
undergrowth by the clearing in the wood where the cannabis had been
found, which had been made by H one year after the applicant's arrest.
The applicant's lawyers had considered that showing the video to the
jury might be prejudicial to the applicant's defence. There was no
indication that F's evidence had been tainted by what had occurred.
Furthermore, the point that the applicant wished to establish on the
basis of the video, namely that by reason of the undergrowth the police
officers could not have a proper view of the clearing, would not
undermine the prosecution's case. Finally, the court considered that
the applicant should not be given permission to call expert evidence
which the defence had had the opportunity to call at the trial hearing,
but chose not to. In the light of all the above, the court considered
that there had been no miscarriage of justice. It rejected the
applicant's appeal.
B. Relevant domestic law
1. Criminal Appeals - Solemn proceedings
29. 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.
30. 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).
31. 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.
32. 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
33. 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.
34. 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.
35. 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).
36. 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. Complaints declared admissible
37. The Commission has declared admissible the applicant's complaint
that he was not granted legal aid for his criminal appeal in breach of
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention. It also declared
admissible his complaint that he did not have adequate time and
facilities for the preparation of his defence in accordance with
Article 6 para. 3 (b) (Art. 6-3-b) of the Convention, as a result of
the appeal court's refusal to adjourn the hearing of 30 April 1993 on
his appeal.
B. Points at issue
38. The issues to be determined by the Commission are
- whether there has been a violation of Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention and
- whether there has been a violation of Article 6 para. 3 (b)
(Art. 6-3-b) of the Convention.
C. As regards Article 6 para. 3 (c) (Art. 6-3-c) of the Convention
39. 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; ..."
40. The applicant submits that the refusal of legal aid for his
criminal appeal meant that he had to represent himself at the appeal
hearing, prevented the proper presentation of his appeal before the
appeal court and thereby led to his appeal hearing being unfair. The
Government has no observations on this complaint in light of the Court
judgments in the Boner and Maxwell cases (Eur. Court H.R., Boner and
Maxwell v. the United Kingdom judgments of 28 October 1994, Series A
nos. 300-B and 300-C).
41. 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.
42. 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.
43. 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.
44. 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.
45. It is further noted that the matter before the appeal court was
the applicant's conviction for having been involved in the supply of
cannabis, contrary to section 4 par. 3 (b) of the Misuse of Drugs Act
1971, following which he was sentenced to two 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.
46. 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) (Art. 6-3-c) of the Convention.
CONCLUSION
47. 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.
D. As regards Article 6 para. 3 (b) (Art. 6-3-b) of the Convention
48. Article 6 para. 3 (b) (Art. 6-3-b) of the Convention reads as
follows:
"3. Everyone charged with a criminal offence has the following
minimum rights: ...
b. to have adequate time and facilities for the
preparation of his defence".
49. The applicant submits that, as a result of the High Court's
refusal to adjourn the hearing of 30 April 1993, he was left with
inadequate time for the preparation of his defence. The Government
submit that, after the applicant's application for leave to lodge
additional grounds of appeal had been refused, it was not necessary to
adjourn the hearing. The applicant was able to address the court on the
single remaining ground of appeal in considerable detail. There is
nothing to suggest that something was missing from his argument which,
if it had been put before the appeal court, might have led to a
different result.
50. The Commission considers that, in the light of its conclusion
that there has been a violation of Article 6 para. 3 (c) (Art. 6-3-c),
no separate issue arises under Article 6 para. 3 (b) (Art. 6-3-b) of
the Convention.
CONCLUSION
51. The Commission concludes, unanimously, that in the present case
no separate issue arises under Article 6 para. 3 (b) (Art. 6-3-b) of
the Convention.
E. Recapitulation
52. 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 (see para. 47).
53. The Commission concludes, unanimously, that in the present case
no separate issue arises under Article 6 para. 3 (b) (Art. 6-3-b) of
the Convention (see para. 51).
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy