AS TO THE ADMISSIBILITY OF
Application No. 13098/87
by James WITTER
against the United Kingdom
The European Commission of Human Rights sitting in private on
6 May 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, 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 12 June 1987
by James WITTER against the United Kingdom and registered on 20 July
1987 under file No. 13098/87;
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 a British citizen born in 1948 and resident
in Birmingham. He is represented by John Carroll, a solicitor
practising in Glasgow. The facts as submitted by the applicant may
be summarised as follows.
The applicant was charged with reckless conduct and two
instances of breach of the peace on 9 October 1985. On 2 May 1986 in
Airdrie Sheriff Court the applicant pleaded not guilty to the charge
of reckless conduct, which was accepted by the Court, and pleaded
guilty to both charges of breach of the peace. Following the
applicant's statements in mitigation, the Court fined the applicant
£100.
On 11 June 1986, the applicant received a letter from the
Procurator Fiscal's office, informing him that he had been accused of
attempting to defeat the ends of justice and that a warrant had been
issued for his arrest. He was invited to answer the warrant in court
on 24 June 1986. After attending the Court, the applicant was
judicially examined before a Sheriff on 25 June 1986. The charge on
the Petition against him alleged that the applicant had stated falsely
in mitigation of the charges of breach of the peace that he had paid
over £100 to the occupiers of the house in compensation for the damage
he had caused to the property during the incident for which he was
charged with breaching the peace and that this had influenced the
Sheriff to reduce the penalty and so defeat the ends of justice. The
applicant stated in answer to the Procurator Fiscal that although he
had not given money to the occupiers expressly for the damage alleged,
he had made payments over £100 on their behalf in respect of various
of their liabilities, e.g. phone bills, food bills and social
security. The applicant was then liberated on bail.
Subsequently on 7 December 1986, the applicant was arrested
and taken to Airdrie police office, where he was visited by a
solicitor. An application for legal aid was completed the same day.
The applicant appeared in the Sheriff Court on 8 December 1986 and his
solicitor made a preliminary objection on the grounds that the charge
was insufficiently specified. A diet of debate was fixed for
19 January 1987 and the applicant released on bail. Though the
proceedings had been commenced on petition, they were subsequently
reduced to summary procedure.
On 19 January 1987, the Sheriff Court heard the debate on the
preliminary objection but dismissed it. The applicant entered a plea
of not guilty and the trial was fixed for 22 May 1987. The applicant's
legal aid application was submitted by letter dated 22 January 1987
but on a date unknown between 22 January 1988 and 10 February 1987,
legal aid was refused on the ground that it was not in the interests
of justice.
On 22 May 1987, the applicant appeared in court unrepresented
but applied for an adjournment in order to put his legal advisers in
funds and thereby secure legal representation. The adjournment was
refused but due to lack of court time, a new trial date was fixed for
6 July 1987. By this date, the applicant had raised sufficient funds
to cover cost of work from 1 April 1987.
After the trial, where he was represented, the applicant was
convicted. The sentence was deferred for 3 weeks to enable the Court
to obtain a Social Enquiry Report and the applicant was remanded in
custody.
The applicant appealed against the refusal of bail and applied
to the Scottish Legal Aid Board for emergency legal aid for this
purpose. The appeal was heard on 14 July 1987 in the High Court, the
applicant's solicitor presenting the case. Following the hearing the
applicant was released on bail. The Scottish Legal Aid Board refused
legal aid by letter dated 23 July 1987.
The applicant was subsequently given a non-custodial
sentence of one year's probation. He applied for legal aid to pursue
an appeal against his conviction. He was informed by letter dated 24
November 1987 from the Scottish Legal Aid Board that the application
was refused. By letter dated 31 December 1987, the Board stated as
reason for the refusal that he had failed to show that he had
substantial grounds for appeal. The applicant's solicitors are unable
to act further for the applicant and the applicant will be required to
represent his appeal in person.
COMPLAINTS
The applicant complains that he has been denied legal aid for
his trial, in respect of his appeal against refusal of bail and in
respect of his appeal against conviction.
The applicant submits that at his trial he faced a grave
charge and prosecution by a qualified lawyer from the Procurator
Fiscal's office. The witnesses included a Sheriff, a Procurator
Fiscal Depute and a sheriff clerk and it was essential that his
defence be conducted by a qualified lawyer. He therefore submits that
legal aid was required in the interests of justice. He also contends
that in preparation of his defence an accused is entitled to take
precognitions of prosecution and defence witnesses but that without
legal aid he was unable to meet the cost of enquiry into the
prosecution case and thereby properly to prepare his defence.
The applicant submits that the effect of his conviction is
that he is now unemployable in the line of work for which he is
trained. The refusal of legal aid for his appeal means that he will
now have to conduct his appeal in person. He complains also of the
refusal of legal aid for appeal against refusal of bail, although his
grounds were obviously justified since the appeal was granted
immediately.
The applicant invokes Article 6 para. 3 (b) and (c) of the
Convention.
THE LAW
1. The applicant complains of being refused legal aid for his
trial, in respect of his appeal against refusal of bail and in respect
of his appeal against conviction.
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention provides:
"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;
..."
a) The applicant complains that he was refused legal aid for his
trial on charges of attempting to defeat the ends of justice. The
Commission notes that legal aid was refused on the ground that it was
not required in the interests of justice. Nevertheless, at the time
of his trial, the applicant had sufficient funds to pay for his legal
representation. Moreover, at the trial, the applicant was present
himself and represented by his solicitor. Consequently, since the
applicant did in fact have sufficient means to pay for legal
assistance, it follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
b) The applicant also complains of being refused legal aid to
appeal against refusal of bail.
According to the case-law of the Convention organs proceedings
as to whether a detained person should be released on bail do not
relate to the determination of that person's "civil rights" or
"obligations" nor of any "criminal charge" against him, and
consequently Article 6 para. 1 (Art. 6-1) of the Convention is not
applicable to such proceedings (see e.g. No. 6541/74, Dec. 18.12.74,
D.R. 1 p. 82). The Commission considers that Article 6 para. 3 (c)
(Art. 6-3-c) is also not applicable to such proceedings.
The Commission recalls that the proceedings before the High
Court only concerned a review of the order of detention on remand and
did not concern any appeal against conviction. Consequently, the High
Court did not determine a charge of a criminal offence within the
meaning of Article 6 para. 3 (Art. 6-3) of the Convention. It
therefore follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
c) The applicant further complains of a refusal of legal aid on
appeal against conviction.
The Commission recalls that the interests of justice cannot be
taken to require an automatic grant of legal aid whenever a convicted
person, with no objective likelihood of success, wishes to appeal
after having received a fair trial at first instance in accordance
with Article 6 (Art. 6) of the Convention (see e.g. Eur. Court H.R.,
Monnell and Morris judgment of 2 March 1987, Series A no. 115, p. 25,
para. 67).
The Commission notes that the applicant was represented at his
trial and that the applicant's application for legal aid was refused
on 31 December 1987 on the basis that he had failed to show that he
had substantial grounds of appeal.
On an examination of the facts as submitted by the applicant,
the Commission therefore finds no evidence that the decision refusing
legal aid was contrary to Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains that as a result of the
refusal of legal aid for the preparation of his trial he was unable
properly to prepare his defence. He invokes Article 6 para. 3 (b)
(Art. 6-3-b) of the Convention which guarantees the right to adequate
time and facilities for the preparation of his defence to everyone
charged with a criminal offence.
The Commission recalls that the applicant had sufficient means
to pay for legal representation at his trial on 6 July 1987 and to
cover work done on his behalf from 1 April 1987. The Commission finds
no indication that the applicant did not have adequate facilities for
the preparation of his defence.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)