AS TO THE ADMISSIBILITY OF
Application No. 16732/90
by W.K.
against the United Kingdom
The European Commission of Human Rights sitting in private on
11 January 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 April 1990 by
W.K. against the United Kingdom and registered on 18 June 1990 under
file No. 16732/90;
Having regard to
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
11 September 1992 and the observations submitted by the applicant
on 13 September 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1964 and currently
serving a prison sentence in Peterhead prison.
The facts as submitted by the parties may be summarised as
follows.
The applicant was tried before the High Court of Justiciary
between 10 and 16 March 1989 on 13 charges of mobbing and rioting
arising out of disturbances in Perth prison. He had been granted legal
aid and was represented by solicitor and counsel.
The applicant was found guilty. In convicting the applicant, the
jury deleted the words "acting of common purpose" from the charge. He
was sentenced on 16 March 1989 to 7 years' imprisonment, to be served
consecutively with the term of 13 years' imprisonment which he was
already serving.
The applicant's solicitor and counsel advised the applicant to
appeal, considering an important and complex principle of law arose
concerning the definition of mobbing and rioting as a result of the
jury's deletion. An application was made for legal aid, submitted with
a note by the applicant's solicitor and senior counsel supporting the
appeal.
The Scottish Legal Aid Board refused legal aid on 1 November
1989. A renewed application was refused on 9 November 1989.
As a result, the applicant presented his appeal in person before
the High Court. On 10 November 1989, the High Court, sitting as an
appeal court, dismissed the appeal, but reduced the sentence to 5
years' imprisonment.
Following the applicant's petition, the Secretary of State
decided to exercise his power under Section 263 (1) of the Criminal
Procedure (Scotland) Act 1975 and referred the case to the High Court
for a fresh appeal to be considered.
The applicant was granted legal aid on 15 March 1991 and was
represented by counsel at the hearing which took place on 1 November
1991.
The applicant's grounds of appeal included:
a) the question of law as to whether an accused person charged
with mobbing only and not with any crime committed in an individual
capacity can be convicted if the mob of which he is said to have been
a part is held by the jury to have had no common purpose;
b) that there was insufficient evidence to convict the applicant
as an individual (as opposed to member of a mob) of the relevant sub-
heads of the charges.
The High Court found that there was substance in the first ground
and adjourned for a further report from the trial judge on whether
there was sufficient evidence as affected the question of whether the
applicant was guilty of any of the crimes as an individual.
The High Court resumed the appeal at a hearing on 6 March 1992
at which the applicant was represented. It rejected the appeal.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 April 1990 and registered
on 18 June 1990.
On 1 October 1990, the Commission decided to communicate the
application to the respondent Government and to ask for written
observations on the admissibility and merits of the application.
The Government's observations were submitted on 11 September 1992
and the applicant's observations were submitted on 13 September 1992.
THE LAW
The applicant complains that he was refused legal aid for
representation at his appeal against conviction and sentence. He
invokes Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the
Convention which provide, as relevant:
6(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."
6(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 recalls that on 1 and 9 November 1989 the
applicant was refused legal aid for his appeal despite support by
senior counsel and solicitor. As a result, he represented himself at
the hearing of his appeal on 10 November 1989.
On 15 March 1991, the applicant was however granted legal aid for
representation at a second full appeal, his case having been referred
to the High Court by the Secretary of State under Section 263(1) of the
Criminal Procedure (Scotland) Act 1975. He was represented by counsel
at the hearings which took place on 1 November 1991 and 6 March 1992.
In these circumstances, the Commission finds that the applicant
can no longer be said to be a victim of any violation of Article 6
para. 1 read in conjunction with Article 6 para. 3 (Art. 6-1+6-3) of
the Convention.
It follows that the application must be rejected as manifestly-
ill founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (C.A. NØRGAARD)
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