EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 25648/94
Timothy Robson
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. 16-34) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-27). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law and practice
(paras. 28-34). . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 35-46) . . . . . . . . . . . . . . . . . . . . .7
A. Complaint declared admissible
(para. 35). . . . . . . . . . . . . . . . . . . . .7
B. Point at issue
(para. 36). . . . . . . . . . . . . . . . . . . . .7
C. As regards Article 6 para. 3(c) of the Convention
(paras. 37-45). . . . . . . . . . . . . . . . . . .7
CONCLUSION
(para. 46). . . . . . . . . . . . . . . . . . . . .8
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . .9
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 1962 and resides in
Argyll, Scotland.
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 and the applicant invokes Article 6
para. 3(c) of the Convention in this respect.
B. The proceedings
5. The application was introduced on 27 June 1994 and registered on
14 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 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 22 November 1995
and those of the applicant were received on 13 February 1996.
8. On 15 May 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 17 May 1996 and they were invited to submit such
further information or observations on the merits as they wished. No
further observations were received.
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. The applicant, along with two others, was charged on indictment
with eight offences under the Misuse of Drugs Act 1971 ("the 1971 Act")
and with two charges of reset. The applicant received legal aid from
the Scottish Legal Aid Board ("S.L.A.B.") for the preparation of his
defence and for legal representation at his trial.
17. The applicant was represented at his trial in the High Court in
Scotland by a solicitor and by counsel. During the trial the
prosecution relied on certain statements made by the applicant during
his questioning by police. The defence argued, in the presence of the
jury, that certain of those statements were obtained through, inter
alia, assaults, intimidation and deprivation. The prosecution disputed
this and submitted that the statements had been fairly obtained. In his
summing up to the jury, the trial judge directed the jury that before
they could accept any such statements they must be satisfied of three
matters: that the statements were in fact made, that any such
statements were accurately recorded and that they were freely made and
obtained. The trial judge then outlined the principles by which the
jury should be guided in deciding whether statements were fairly
obtained which involved balancing the public interest that crimes
should be investigated and those who commit them brought to justice
with the principle that the accused must be fairly dealt with. The jury
were directed that if they felt that the statements were unfairly
obtained then they should be excluded from the jury's consideration.
18. On 5 April 1993 the jury found the applicant guilty on four of
the charges under the 1971 Act and on one of the charges of reset. The
judge sentenced the applicant to five terms of imprisonment to run
concurrently - two sentences of 5 years, one sentence of 2 years, one
sentence of 6 months and one sentence of 4 months. On the same day a
forfeiture order was made in relation to the applicant's mother's car
which the applicant had been using and in which certain quantities of
drugs had been found.
19. On 8 April 1993 the applicant lodged an intimation of his
intention to appeal together with a note of appeal against conviction
and sentence. The grounds of appeal, outlined in the note of appeal,
challenged the severity of the sentence and noted that the applicant
wished to apply for an appeal against sentence or "possibly" for a
retrial on the charges of which he had been found guilty.
20. On 4 May 1993 the transcript of the trial judge's summing up to
the jury was filed. On 20 August 1993 the report of the trial judge on
the trial was also filed pursuant to section 236A of the Criminal
Procedure (Scotland) Act 1974. In that report, the trial judge
described the evidence against the applicant, the reasons for the
sentences given, including his consideration of mitigation offered on
the applicant's behalf and, as regards the applicant's request for a
retrial, stated that "during the trial no objections were made to the
admission of any evidence".
21. While the legal aid the applicant received for his trial would
have covered legal advice in connection with his appeal including
obtaining the opinion of counsel as to the appeal's chances of success,
it did not cover legal representation for the appeal hearing and, for
this, the applicant made a further application for legal aid on
6 May 1993.
22. On 25 November 1993 the applicant's solicitors wrote to the
S.L.A.B. requesting the granting of legal aid, advising that counsel
had advised orally that the applicant's appeal was not stateable and
notifying the S.L.A.B. that the date of the forthcoming appeal was
3 December 1993. On the same day the applicant's solicitor wrote to the
applicant indicating that counsel did not consider that he had any
ground of appeal whatsoever and that it was likely that he would have
to represent himself at the hearing of his appeal.
23. On 3 December 1993 the S.L.A.B. refused to grant legal aid on the
basis that the S.L.A.B. did not consider that the applicant had shown
substantial grounds for making the appeal and that it was not
reasonable, in the circumstances of the case, that legal aid should be
made available to the applicant. The S.L.A.B. indicated that, while
they did not receive a written opinion from counsel in connection with
the prospects of an appeal, the applicant's solicitor had informed the
S.L.A.B. of counsel's oral opinion.
24. When the appeal came on for hearing, on 3 December 1993, the High
Court granted the applicant's solicitors and counsel leave to withdraw
from acting for the applicant. An adjournment of the appeal hearing was
also granted to a later date on the basis that on that date the
applicant would be in a position to represent himself. The High Court
also suggested that, if the applicant wished to continue his appeal,
he should lodge amended grounds of appeal.
25. Pursuant to complaints made by the applicant against the police
who had interviewed him, the applicant was informed by letter dated
13 December 1993 that the Regional Prosecutor Fiscal did not intend
initiating proceedings against any of the police officers concerned.
26. On 6 January 1994, when the appeal again came on for hearing, the
applicant obtained an adjournment for a month so that he could apply
again for legal aid. On 3 February 1994 the case was again adjourned
as the court had insufficient time to consider the appeal. The
applicant had no success in obtaining legal aid and on the 2 March 1994
he presented his appeal in person. The applicant indicated that he had
abandoned his appeal against conviction but that he wished to maintain
his appeal against sentence. Having heard the applicant and considered
the documents and information before it, the High Court refused the
applicant's appeal.
27. On 1 December 1995 the applicant was released from prison.
B. Relevant domestic law and practice
1. Criminal Appeals - Solemn proceedings
28. 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 against
conviction and/or sentence granted by statute (section 228 of the
Criminal Procedure (Scotland) Act 1975 - "the 1975 Act"). No leave to
appeal is therefore required.
29. 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. 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.
30. 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 the
conviction and may affirm, vary or quash the sentence.
2. Legal Aid for Criminal Appeals
31. 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.
32. 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.
33. 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 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).
34. 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
35. The Commission has declared admissible the applicant's complaint
about the refusal of legal aid for his criminal appeal.
B. Point at issue
36. 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
37. 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; ..."
38. The applicant submits that the refusal of legal aid meant that
he felt he had to drop his appeal against conviction, prevented the
proper presentation of his appeal against sentence and thereby led to
his appeal hearing being 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).
39. 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.
40. 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
representatives, 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.
41. 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.
42. 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.
43. It is further noted that the matter before the appeal court,
being an appeal against sentence only, was the applicant's five
concurrent terms of imprisonment - two sentences of 5 years, one
sentence of 2 years, one sentence of 6 months and one sentence of
4 months and the Commission considers that the issue at stake was
extremely important for the applicant.
44. The Commission accepts that the fact that the applicant appealed
against sentence only may have rendered his grounds of appeal less
complex. It is also noted that the applicant drafted his grounds of
appeal himself. However, it is recalled that the Court in Mr. Maxwell's
application found that, although Mr. Maxwell's grounds of appeal were
not complex and he drafted those grounds himself, the interests of
justice required that he be represented because he was unable to
competently address the appeal court on such legal issues without the
services of a legal practitioner. Equally, the Commission considers
that the grounds of appeal in the present case also required a certain
legal skill and expertise to present to the Appeal Court. The
Commission does not consider, in such circumstances, that it necessary
to consider whether the refusal of legal aid for the appeal was the
reason the applicant did not appeal against conviction.
45. 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
46. 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