AS TO THE ADMISSIBILITY OF
Application No. 16212/90
by R.
against the United Kingdom
The European Commission of Human Rights (First Chamber)
sitting in private on 17 April 1991, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
H. DANELIUS
Sir Basil HALL
MM. C.L. ROZAKIS
L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
B. MARXER
Mr. M. de SALVIA, Secretary to the First 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 3 April 1989
by R. against the United Kingdom and registered
on 26 February 1990 under file No. 16212/90;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born on 7 January 1960.
He is currently detained at Shotts prison, Lanarkshire, Scotland,
serving a life prison sentence. He is represented before the
Commission by Messrs. Ian McCarry, solicitors, of Glasgow. The facts
of the case may be summarised as follows.
The applicant was charged with the following offences: 1) rape,
assault, indecent assault and robbery of a named woman between 10 June
1986 and 31 December 1986; 2) assault and indecent assault of a named
woman between 1 September 1986 and 30 November 1986; 3) assault,
indecent assault, robbery and abduction of a named woman between 10
June 1986 and 31 December 1986; 4) assault, indecent assault, rape and
robbery of a named woman between 1 January 1987 and 31 December 1987;
5) assault, indecent assault and robbery of a named woman between 1
February 1987 and 28 February 1987; 6) assault, indecent assault and
robbery of a named woman between 1 January 1987 and 31 December 1987;
7) theft of bracelet from premises between 25 and 29 April 1988; and 8)
abduction, assault, indecent assault, rape and robbery of a named
woman between 3 and 4 September 1988.
At a preliminary diet of the High Court on 7 December 1988,
the applicant, legally aided by counsel, objected to the latitude and the
lack of relevancy of the charges. The High Court ordered that charges
numbers 5 and 7 be withdrawn and that the Crown be given leave to
amend charges 1, 3, 4 and 6 to meet partially the objections of the
applicant. The Crown amended the charges. In charge 1 the period was
reduced to between 1 April 1986 and 30 September 1986. In charge 3
the period was reduced to between 1 October 1986 and 25 December 1986.
In charge 4 the period was reduced to between 1 April 1986 and 30
September 1986. In charge 6 the period was reduced to between 10
January 1987 and 17 January 1987.
On 19 December 1988 the applicant was convicted of the six
amended charges by the High Court at Airdrie. He was sentenced to
life imprisonment. The applicant states that counsel was not engaged
until two or three days before his trial.
The applicant's solicitors drafted grounds of appeal on behalf
of the applicant. The grounds of appeal against conviction were that
the applicant had been prejudiced at the trial by the latitude of the
charges against him, the bias of the judge and his misdirection of the
jury. The grounds of appeal against sentence were that it was
excessive, given the applicant's background and personal history and
that the judge did not order medical or psychiatric reports on the
applicant.
On 8 September 1989 the Scottish Legal Aid Board received an
application from the applicant seeking legal aid for an appeal against
conviction and sentence. The Board refused legal aid as it did not
consider that there were substantial grounds of appeal.
Given the applicant's means there was no possibility that he
could afford to instruct counsel privately.
On 29 September 1989 the appeal was heard. The applicant had
no legal representation. He relied on draft grounds of appeal
proposed by his solicitor. The appeal was dismissed.
COMPLAINTS
The applicant complains under Article 6 para. 3 (c) of the
Convention that he was not given means to pay for legal assistance at
the hearing of his appeal on 29 September 1989, when the interests of
justice required it.
He also complains under Article 6 of the Convention of
insufficient time his counsel was permitted for preparing the trial,
of the behaviour of his lawyer, and that his sentence was excessive.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 April 1989 and
registered on 26 February 1990.
On 2 July 1990, the Commission decided to give the United
Kingdom Government notice of the application and to invite them to
submit observations on the admissibility and merits of the
application.
The Government submitted its response on 7 December 1990 and
the applicant replied on 5 February 1991.
On 14 December 1990, the Commission decided to grant the
applicant legal aid.
On 9 April 1991 the Commission decided to transfer the case to
the First Chamber.
THE LAW
1. The applicant complains that he was refused legal aid for
his appeal against conviction and sentence contrary to the interests
of justice. He invokes Article 6 (Art. 6) of the Convention. The
Commission has examined this complaint under Article 6 para. 1 and
para. 3 (c) (Art. 6-1, 6-3-c) of the Convention, which provide, so far
as relevant, as follows:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by
law. ..."
"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 Commission notes that the Government have made no
observations as to admissibility, while reserving their position on
the merits, of this complaint.
The Commission has made a preliminary examination of the
present applicant's complaint concerning legal aid on appeal under
Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention (cf.
Eur. Court H.R., Granger judgment of 28 March 1990, Series A no.
174). It considers that it raises serious issues of fact and law
which are of such complexity that its determination should depend on a
full examination of the merits. It follows that this complaint cannot
be declared manifestly ill-founded under Article 27 para. 2 (Art.
27-2) of the Convention and must be declared admissible, no other
ground for declaring it inadmissible having been established.
2. The applicant also complains that his counsel was permitted
insufficient time for preparing the trial, of the behaviour of his
counsel and that his sentence was excessive. He alleges a violation
of Article 6 (Art. 6) of the Convention.
As to the complaint concerning the time the applicant's
counsel had for preparing the trial, the Commission notes that the
applicant had been represented by a solicitor under the legal aid
scheme from an early stage of the proceedings. The Commission recalls
that it may not consider complaints concerning individuals, including
lawyers, and finds that the applicant has not indicated that any
special issue arose in connection with his counsel which could not have
been dealt with by his solicitor at an earlier stage.
As to the allegation that the sentence was excessive, the
Commission notes that Article 6 (Art. 6) of the Convention provides
procedural guarantees rather than a review of sentencing or sentencing
policy. The Commission finds no indication in the file that the
sentence was so excessive that any other provisions of the Convention
may be at issue.
It follows that this part of the application must be declared
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES ADMISSIBLE, without prejudging the merits of the
case, the applicant's complaint relating to the lack of legal
aid on the hearing of his appeal;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M. DE SALVIA) (J.A. FROWEIN)
Full & Egal Universal Law Academy