AS TO THE ADMISSIBILITY OF
Application No. 22112/93
by John WOTHERSPOON
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the 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 8 February 1993
by John WOTHERSPOON against the United Kingdom and registered on
23 June 1993 under file No. 22112/93;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
13 October 1995 and the observations in reply submitted by the
applicant on 14 February 1996;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
The applicant is a British citizen born in 1964 and is currently
serving a sentence of imprisonment in HM Prison Shotts. The applicant
is represented before the Commission by Mr. Thompson, a solicitor
practising in Dunfermline.
The applicant was charged on indictment with murder and received
legal aid from the Scottish Legal Aid Board ("S.L.A.B.") for the
preparation of his defence and for his representation at trial. The
trial took place on 17-19 December 1990 and the applicant was
represented by a solicitor and by counsel. On 19 December 1990 the jury
found the applicant guilty, by a majority decision, and the trial judge
sentenced the applicant to life imprisonment.
On 31 December 1990 the applicant's then solicitors lodged an
intimation of intention to appeal in the High Court. On
9 September 1991 the applicant himself lodged the notice of appeal. The
grounds of appeal contained in that notice claimed that the evidence
given by the only Crown eye witness (who was fifteen years old at the
time of the incident for which the applicant was convicted) was
incorrect (alleging that it was not possible that the witness had seen
what he said he had), that there was insufficient corroboration of
prosecution evidence, that certain other evidence attempted to confirm
an impossibility in relation to a bloodstain and that the applicant had
never been in possession of witness statements made to the police or
of precognitions. In those grounds the applicant also challenged the
pathologist's evidence given at trial and indicated an intention to
introduce certain video evidence.
In or around April 1991 the applicant changed solicitors. The
legal aid granted to the applicant at trial covered the legal advice
to the applicant in connection with his appeal but not his
representation at the appeal hearing and therefore the applicant
submitted an application for further legal aid on 4 October 1991.
On 12 and 13 December 1991 both senior and junior counsel for the
applicant gave written opinions that there were no grounds for appeal
but left open the possibility that certain video evidence might provide
such grounds. On 20 December 1991 the S.L.A.B. refused to grant legal
aid on the ground that it did not consider that the applicant had
substantial grounds for making the appeal or that it was reasonable in
the circumstances that legal aid be made available. It was noted that
senior and junior counsel's opinions had been considered.
When the applicant appeared in the High Court on
20 December 1991, he obtained an adjournment in order to apply for a
review of the refusal of legal aid. The applicant's solicitor did not
subsequently request the S.L.A.B. to review its decision because senior
counsel had further advised that the video evidence was of no use to
the applicant's case - rather it strengthened the version of events
given by the Crown eye witness whose evidence the applicant wished to
challenge.
The applicant, however, obtained another adjournment on
19 March 1992 to allow him have his solicitors (who had been instructed
by the applicant since March 1992) to obtain certain witness
statements. On 27 March 1992 the applicant's solicitors obtained an
acceptance from the legal advice and assistance scheme which allowed
an initial expenditure of £80 and subsequently obtained an extension
in the sum of £300. This was to be enable the applicant's solicitors
to establish whether fresh evidence was available.
A letter dated 12 June 1992 from private investigators to the
applicant's solicitors enclosed a statement of the applicant's aunt
indicating, inter alia, that she had met the mother of the Crown eye
witness and that the mother had said on two occasions to the
applicant's aunt that her son had not seen anything. The private
investigator's letter also recalled their unsuccessful attempts to
locate the Crown eye witness.
On the 2 August 1992 the applicant's solicitors requested the
Prosecutor Fiscal's office for a copy of the Crown's eye witness
statement and stated that they were advised that the matter had been
raised at the last appeal hearing and that the hearing had been
adjourned for that purpose. The Prosecutor Fiscal responded that it was
not appropriate to furnish a copy of that statement. Those solicitors
subsequently confirmed that no useful evidence was found as a result
of all of their enquiries.
On 24 September 1992, the High Court refused a further
adjournment and proceeded to hear the applicant's appeal which he
presented in person. The applicant also presented to the High Court a
written statement outlining the basis on which he felt a miscarriage
of justice had occurred and challenging, in particular, the veracity
of the evidence of the Crown eye witness.
In its judgment dated 24 September 1992, the High Court having
heard the applicant and dealt with, inter alia, the grounds of appeal
in the notice of appeal, concluded that the applicant had failed to
demonstrate that there had been any miscarriage of justice in his case
and dismissed his appeal. As regards the Crown eye witness, the High
Court noted that that witness had been cross-examined carefully and at
length, that photographs of the locus were before the jury and that the
speech of the applicant's counsel to the jury was largely an attempt
to persuade the jury that that eye witness' evidence was not reliable.
It was noted that it was for the jury to assess that witness' evidence
and that it must be assumed that they accepted that evidence.
On 27 September 1992, the applicant was accused by a prison
officer of smuggling contraband out of the prison during a prison visit
with the applicant's brother and friend. The following day the
applicant appeared before the prison Governor who considered that the
applicant had been in breach of prison regulations. The applicant was
placed on closed visits and a weeks prison pay was forfeited. The
closed visits continued for the following four and a half months.
On 1 December 1992 the applicant petitioned the nobil officium
of the High Court in relation to his conviction but by letter dated 10
December 1992 the applicant was informed that his appeal had been
refused.
Relevant domestic law and practice
Criminal Appeals - Solemn proceedings : 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.
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). 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 in support of the appeal.
It is also open to the judges at that 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 copy same to the
judges to read for themselves.
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 court may dismiss the appeal and affirm the verdict of the
trial court. In addition, the trial court verdict can be set aside
either by the appeal court quashing the conviction, substituting an
amended verdict of guilty or by authorising a new prosecution (section
254 of the 1975 Act). The nobil officium of the High Court constitutes
the ultimate residual power of the High Court to bring proceedings
under review.
Legal Aid for Criminal Appeals : 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 (by a lawyer and by
counsel previously involved in the case) 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.
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.
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 Court 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).
The Criminal Justice (Scotland) Act 1995 ("the 1995 Act") : The 1995
Act, which applies to appeals from convictions handed down on or after
26 September 1995, 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.
Access to Crown statements and precognition of Crown witnesses : While
there is no obligation on the Crown to provide a list of prosecution
witnesses to the defence, as a matter of practice the Prosecutor Fiscal
provides a list of Crown witnesses on request on the basis that the
defence will reciprocate by providing a list of their witnesses. Also
as a matter of practice, defence solicitors can have a discussion with
the Prosecutor Fiscal as to the nature of the Crown evidence in order
that the defence may arrange, for example, the precognitions they find
necessary or consider an appropriate plea. There is no entitlement to
obtain copies of the Crown witness statements.
The defence may request precognition of Crown witnesses (ie. the
witnesses may be requested to submit to questioning by the defence
prior to the trial). There is no obligation on the Crown witness to
give precognition although there is some authority for the view that
it is part of that person's civic duty to do so. If a witness is
reluctant, the defence can apply for precognition on oath. While there
is some authority for the view that precognition on oath should only
be allowed in exceptional circumstances, it has been held that the
object of the statutory provision is to place the defence on equal
terms with the Crown in the preparation of the case (Brady v. Lochart
1985 SCCR 349).
COMPLAINTS
The applicant complains that his trial was unfair because he has
been denied access to the original witness statements and to
precognition of two Crown witnesses (an eye witness and a policeman)
contrary to Article 6 para. 3 (b) and (d) of the Convention.
The applicant also complains that his appeal hearing was unfair
due to the refusal of legal aid for his appeal and that he was obliged
to present his own appeal though incapable of doing so and he invokes
Article 6 para. 3 (c) of the Convention.
The applicant further complains of being penalised on the basis
of an unfounded accusation of smuggling materials out of prison. He
invokes Article 3, 7 and 8 of the Convention in this regard.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 February 1993 and was
registered on 23 June 1993.
On 1 December 1993 the Commission decided to communicate the
application to the respondent Government and to request them to submit
observations on the admissibility and merits of the applicant's
complaint under Article 6 para. 3(c) of the Convention.
On 8 March 1994 the Commission decided to adjourn consideration
of the admissibility of the application pending the outcome of similar
cases before the Court.
Once those judgments were delivered the Government's observations
were received on 13 October 1995. The applicant's observations were
received on 14 February 1996.
THE LAW
1. The applicant complains that he was denied access to the original
witness statements and precognition of two Crown witnesses (the only
eye witness and a policeman) contrary to Article 6 para. 3 (b) and (d)
(Art. 6-3-b, 6-3-d) of the Convention and in this respect he submits
that if he knew what the eye witness was going to say he could have had
expert evidence to contradict that evidence ready for the trial. He
also submits that if he had been granted legal aid for his appeal he
could have pursued this point more profitably on appeal by obtaining
relevant witness evidence prior to his appeal.
Article 6 (Art. 6) of the Convention, insofar as relevant, 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; ...
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on
his behalf under the same conditions as witnesses against
him; ..."
As regards his submission about a denial of access to witness
statements or to precognition of those witnesses, the Commission finds
that the applicant has submitted no evidence to demonstrate that, prior
to or during his trial (during which time the applicant was legally
represented), any application was made for a list of the names of
prosecution witnesses, that any request was made for an indication from
the Prosector Fiscal as to the nature of the Crown evidence or that any
such information, if requested, was refused. In addition, there is no
evidence that the applicant attempted to take precognition of any Crown
witness prior to his trial as he was entitled to do or to take
precognition on oath for which he could have applied in the case of a
reluctant witness.
Furthermore and as noted by the High Court on appeal, the Crown
eye witness was cross examined at length and in detail by counsel for
the applicant at the trial and the applicant's counsel's speech to the
jury at the end of the trial concentrated on the credibility of this
witness' evidence. The applicant would have had the same possibilities
in relation to the police witness. Furthermore, the applicant's
representatives, in their submissions to the Commission, accept that
precognition, either voluntarily or on oath if the witness was
reluctant, was an option open to the applicant prior to the trial and
that the Crown eye witness' statement to the police would not
necessarily have been of any great evidential value in view of that
witness' cross examination at trial.
Finally, the Commission does not find any evidence to demonstrate
that the lawyers, for whom the applicant received legal aid, did not
provide effective assistance within the meaning of the Artico judgment
(Eur. Court H.R., Artico judgment of 13 May 1980, Series A no. 37, p.
18, para. 36).
In such circumstances, the Commission considers this complaint
manifestly ill-founded pursuant to Article 27 para. 2 (Art. 27-2) of
the Convention.
The Commission considers that the applicant's submission, as to
the refusal of legal aid for his appeal, which is made in the context
of this complaint under Article 6 para. 3 (b) and (d)
(Art. 6-3-b, 6-3-d), is a matter which should be considered below
within the context of the applicant's complaint under Article 6 para.
3 (c) (Art. 6-3-c) of the Convention.
2. The applicant also complains that his appeal hearing was unfair
due to the refusal of legal aid for his appeal and he invokes Article
6 para. 3 (c) (Art. 6-3-c) of the Convention which, insofar as
relevant, 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; ..."
The Government argue that it is no longer justified to continue
the examination of this complaint given the changes made by the 1995
Act to the criminal appeals and criminal legal aid systems in Scotland.
However, the Commission notes that the provisions of the 1995 Act
relate to appeals from convictions handed down on or after
26 September 1995 and clearly do not benefit the applicant in any way
as regards his complaint under Article 6 para. 3 (c) (Art. 6-3-c) of
the Convention, his legal aid application and appeal having been
determined pursuant to the 1975 Act (mutatis mutandis, Eur. Court H.R.,
Axen judgment of 8 December 1983, Series A no. 72, p. 11, para. 24).
As regards the substance of the complaint under Article 6 para.
3 (c) (Art. 6-3-c) of the Convention, the applicant submits that the
refusal of legal aid prevented the proper presentation of his appeal
and thereby led to his appeal hearing being unfair. The Government has
no observations on the substance of this complaint in light of the
Court judgments in the Boner and Maxwell cases (Eur. Court H.R., Boner
and Maxwell judgments of 28 October 1994, Series A nos. 300-B and
300-C).
The Commission considers that this complaint of the applicant
raises issues of fact and law which are of such complexity that their
determination should depend on an examination of the merits. This
complaint cannot therefore be regarded as being manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
No other ground for declaring it inadmissible has been established.
3. The applicant further complains of being penalised on the basis
of an unfounded accusation of smuggling materials out of prison during
a prison visit. He invokes Articles 3, 7 and 8 (Art. 3, 7, 8) of the
Convention in this regard.
As to whether the applicant has exhausted domestic remedies as
required by Article 26 (Art. 26) of the Convention, the Commission
recalls that if there exists a mere doubt as to the chances of success
or as to the effectiveness of a domestic remedy, Article 26 of the
Convention requires that that remedy must be tried (No. 13669/88, Dec.
7.3.90, D.R. 65, p. 245 and No. 10148/82, Dec. 14.3.85, D.R. 42, p.
98). In addition, the Commission recalls that exhausting the applicable
complaints procedures involving, inter alia, the Home Office, in
relation to a complaint about the imposition of solitary confinement
on a prisoner, constitutes compliance with the requirements of Article
26 (Art. 26) of the Convention (No. 7630/76, Dec. 6.12.79, D.R. 19, p.
113).
The Commission recalls that the applicant did not pursue the
matter (either the finding of guilt or his punishment) further with the
prison authorities or with the Home Office. The Commission also notes
that the applicant claims that the prison video recordings of the
relevant visit would support his case because those recordings confirm
that the applicant did not smuggle anything to his visitors during the
visit. In addition, the applicant accepts that he would have been
entitled to petition the Secretary of State in relation to the closed
visits but that he decided against doing so since other prisoners have
similarly petitioned but to no avail. Furthermore the Commission
considers that there exist no reasons in the present case for the
applicant to be absolved from exhausting any such remedies.
In the circumstances, the Commission considers that the applicant
has not exhausted domestic remedies as required by Article 26 (Art. 26)
of the Convention and the complaint must be declared inadmissible
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE without prejudging the merits the applicant's
complaint about the refusal of legal aid for his appeal;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M. F. BUQUICCHIO) (C. L. ROZAKIS)
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