The European Commission of Human Rights sitting in private on 3 March
1986 the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
Mr. H. C. KRÜGER Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (Art. 25);
Having regard to the application introduced on 1 September 1984 by
N.V. against the United Kingdom and registered on 25 March
1985 under file N° 11465/85;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen, currently detained at HM Prison,
Wakefield. He is represented before the Commission by Mr. M. J.
Staines, solicitor, of Dublin.
In August 1984 the applicant's lawyer made several attempts to obtain
permission from the United Kingdom prison authorities to visit his
client at Brixton Prison, where the applicant was then held on remand
pending committal for various firearms charges. The lawyer was told
that he would have to apply not more than seven days before the
intended visit, but that no problems were expected. The week before
he wished to visit, the lawyer telephoned the Solicitors' Office at
the prison, and was told to give not more than five days' notice but
that, again, no difficulties were foreseen. The lawyer duly
telephoned two days later and was told that he would not be allowed to
visit as the applicant already had an English lawyer under the United
Kingdom legal aid scheme, and there was therefore a danger of
"touting". The lawyer protested that he would not, in any event, be
entitled to represent the applicant before the United Kingdom courts,
and he arranged for a letter to be delivered to the prison from the
English lawyer confirming that she did not object to a visit from the
Irish lawyer. On that basis, the prison authorities said that they
would re-consider the matter. The following day (three working days
before the proposed visit), the lawyer was told that there was no
objection to the professional visit and the lawyer bought an airline
ticket and arranged accommodation in London.
The next day the lawyer was told that he would not be allowed to visit
his client. He could make a "social" visit, but that would take two
to three weeks to organise, and would therefore fall after the
committal proceedings against the applicant, which were due to take
place the following week.
The lawyer did not, therefore, visit the applicant and he complained
inter alia to the Law Society and to the Home Office. It is apparent
that the applicant was able to communicate by letter with his Irish
lawyer, and the applicant did, indeed, change solicitors under the
United Kingdom legal aid scheme before the committal proceedings.
On 6 August 1985 the Irish lawyer received an apology from the Home
Office and was told that he could visit his client on a professional
basis in prison. The lawyer has, in fact, since visited the applicant
in Wakefield Prison on such a "legal" visit, although the applicant
had by then been convicted.
COMPLAINTS
The applicant alleges a violation of Art. 6, para. 3, sub-para. c of
the Convention (Art. 6-3-c) in that his Irish lawyer was not able to
visit him before committal to discuss the nature and quality of his
legal aid representation under the United Kingdom legal aid scheme.
THE LAW
The applicant complains of an alleged violation of Art. 6, para. 3,
sub-para. c of the Convention (Art. 6-3-c) in that his Irish lawyer
was not afforded full lawyers' facilities for visiting him in
connection with his legal aid representation on charges pending before
the United Kingdom criminal courts.
Art. 6, para. 3, sub-para. c (Art. 6-3-c), so far as relevant,
provides 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 ...
It is a necessary limitation on the right contained in Art. 6, para.
3, sub-para. c (Art. 6-3-c) that the lawyer chosen to defend the
applicant must be capable of appearing before the domestic courts, as
otherwise the assistance is of no effect. The Commission considers
that Art. 6, para. 3, sub-para. c (Art. 6-3-c) does not give
defendants a right to be defended before domestic criminal courts by a
foreign-qualified lawyer where domestic law does not provide for such
representation. In the United Kingdom at present, a lawyer not
qualified in the United Kingdom as a solicitor or barrister as the
case may be is not entitled to represent a client before the ordinary
criminal courts.
In the absence of any possibility for the applicant's Irish lawyer to
represent the applicant before the United Kingdom courts, the
Commission considers that the applicant's claim that his rights under
Art. 6, para. 3, sub-para. c (Art. 6-3-c) had been violated must be
regarded as manifestly ill-founded within the meaning of Art. 27,
para. 2 of the Convention (Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)