AS TO THE ADMISSIBILITY OF
Application No. 18123/91
by W.W.
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 October 1992, the following members being present:
MM. S. TRECHSEL, President
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
MM. L. LOUCAIDES
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second 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 23 October 1990
by W.W. against the United Kingdom and registered on 24 April 1991
under file No. 18123/91;
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
15 July 1992 and the observations in reply submitted by the
applicant on 24 August 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1968. He is
currently serving a sentence of imprisonment at Shotts Prison,
Lanarkshire. He is represented by Anthony Mahon, a solicitor practising
in Glasgow.
The facts as submitted by the parties may be summarised as
follows.
The applicant and his brother stood trial at Glasgow High Court
for attempted murder and various other offences on 22 February 1989.
The counsel instructed by the applicant's solicitor had to
withdraw on the eve of the trial. The applicant met his replacement for
the first time on the morning before the trial began. He requested that
counsel move for an adjournment to ensure adequate preparation of the
case. Counsel however did not make any application for an adjournment
when the proceedings commenced.
The applicant was identified in court as one of the victim's
assailants by three eye-witnesses. One of these eye-witnesses had been
accompanying the victim on 6 November 1988, the day of the attack.
This eye-witness had pointed out the applicant at an identification
parade which was held on 11 November 1988. The applicant had legal
representation when he took part in the identification parade .
The applicant was convicted of attempted murder on 24 February
1989. He was sentenced to 10 years' imprisonment for the offence.
The applicant applied to the Scottish Legal Aid Board for legal
aid for the purpose of appealing against his conviction and sentence.
His application was refused on 7 September 1989 on the basis that the
appeal appeared to be without merit. The applicant proceeded to
conduct his own appeal.
On 13 October 1990 the High Court of Justiciary adjourned the
hearing of the applicant's appeal so that the applicant could provide
and investigate evidence on the question of perjury of an essential
Crown witness.
On 25 October 1989 solicitors acting on the applicant's behalf
submitted a fresh application for legal aid. This application was
refused on 1 November 1989 since it did not point to substantial
grounds of appeal. This view was taken in light of the fact that the
aforesaid solicitors did not provide any evidence to indicate that
perjury had in fact been committed.
The applicant presented his appeal on 14 June 1990. He requested
another adjournment in order to request legal aid again. However his
request was refused by the Court. The applicant addressed the Court for
1 1/2 hours and made numerous submissions in support of lengthy grounds
of appeal.
It appears from the transcript of the appeal court's judgment
that the applicant's grounds of appeal against conviction included
complaints concerning the conduct of the defence by his counsel, that
the trial judge had misdirected the jury on a number of occasions, that
the police had failed to conduct properly an identification parade in
which the applicant appeared, that the jury's verdict was inconsistent
and that the conviction rested solely on eye-witness evidence.
The Court dismissed the applicant's appeal against conviction and
sentence and, in the process of so doing, stated that the applicant had
"wholly failed to satisfy it that there was any miscarriage of
justice". As regarded his complaints about his counsel, the Court found
no substance in the criticisms made and referred to the note of the
trial judge which described the defence as "excellent".
COMPLAINTS
The applicant complains that he did not have adequate time and
facilities for the preparation of his defence contrary to Article 6
para. 3 (b) of the Convention in that he only met the replacement
defence counsel on the morning of the opening day of the trial and that
counsel failed to request an adjournment to ensure the adequate
preparation of the case.
The applicant complains that his rights under Article 6 para. 3
(d) of the Convention were violated in that counsel appearing on his
behalf failed to call certain witnesses and to lead in evidence certain
productions.
The applicant also contends that his rights under Article 6 para.
3 (c) of the Convention were violated by virtue of the fact that he was
denied legal aid for the purposes of appealing against his conviction
and sentence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 October 1990 and registered
on 24 April 1991.
On 2 April 1992, 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 15 July 1992
after one extension in the time-limit and the applicant's observations
in reply were submitted on 24 August 1992.
THE LAW
1. The applicant complains that he was refused legal aid for his
appeal. He invokes Articles 6 para. 3 (c) (Art. 6-3-c) in this respect.
Article 6 para. 3 (c) (Art. 6-3-c) provides :
"(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 have made no observations as regards the
admissibility of this part of the application.
The Commission has made a preliminary examination of the merits
of the complaint under Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention. It considers that this complaint raises serious issues of
fact and law which can only be resolved by an examination of the
merits. The complaint cannot therefore be declared manifestly ill-
founded under Article 27 para. 2 (Art. 27-2) of the Convention, but
must be declared admissible, no other ground of inadmissibility having
been established.
2. The applicant complains also that his counsel was not properly
prepared and failed to apply for an adjournment and to call certain
witnesses and evidence.
However, under Article 25 para. 1 (Art. 25-1) of the Convention,
the Commission may only receive an application from a person, non-
governmental organisation or group of individuals where the applicant
alleges a violation by one of the Contracting Parties of the rights and
freedoms set out in the Convention and where that Party has recognised
this competence of the Commission. The Commmission may not, therefore,
receive applications directed against private individuals. In this
respect the Commission refers to its established case-law ( see e.g.
No. 172/56, Dec. 20.12.57, Yearbook 1 pp. 211, 215; No. 852/60, Dec.
19.9.61, Yearbook 4 pp. 346, 352; No. 3925/69, Collection 32 pp. 56,
58; No. 4072/69, Dec. 3.2.70, Yearbook 13 pp. 708, 716; No. 9022/80,
Dec. 13.7.83, D.R. 33 pp. 21, 36).
The Commission recalls that the applicant complains in effect of
the alleged conduct of his counsel. The Commission has examined the
question of whether this conduct could entail the responsibility of the
respondent Government. The Commission finds that the matters complained
of relate in substance to the manner in which the applicant's counsel
decided to conduct the defence - in particular, his decision as to
whether an adjournment was necessary and as to which witnesses or
productions would be of use to the defence. The Commission finds no
indication from the facts as submitted that the applicant's solicitor
failed properly to instruct the replacement counsel. It further notes
that the matter was brought to the attention of the appeal court which
found the criticisms of counsel to be unfounded. In these
circumstances, the Commission finds no ground on which the
responsibility of the respondent State could arise.
It follows that this part of the application is manifestly ill-
founded with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES ADMISSIBLE, without prejudging the merits of the case, the
applicant's complaint under Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy