CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY   Application No. 11711/85 by Willilam McDERMITT against the United Kingdom           The European Commission of Human Rights sitting in private on 15 May 1987, the following members being present:                       MM. C.A. NØRGAARD, President                         G. SPERDUTI                         G. TENEKIDES                         B. KIERNAN                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr.   F. MARTINEZ                      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 26 June 1985 by William McDERMITT against the United Kingdom and registered on 19 August 1985 under file No. 11711/85;           Having regard:      -     to reports provided for in Rule 40 of the Rules of         Procedure of the Commission;      -     the Commission's decision of 13 December 1985 to bring the         application to the notice of the respondent Government and         invite them to submit written observations on its         admissibility and merits;     - i -          -     the observations submitted by the respondent Government on         2 April 1986 and the observations in reply submitted by the         applicant on 19 May 1986;      -     the supplementary information submitted by the applicant on         29 April 1987 and by the respondent Government on 12 May 1987;      -     the letter of the respondent Government dated 13 May 1987         informing the Commission of their offer of settlement to         the applicant;      -     the letter of the applicant's solicitor dated 13 May 1987         stating that they no longer wish the application to proceed.           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a British citizen born in 1947 and is resident in Glasgow.   He is represented by Mr.   John Carroll, a solicitor.   The facts, as submitted by the parties, may be summarised as follows.           The applicant was arrested on 21 July 1984 for breach of the peace and spent 17 days in prison on remand before being released on bail.   He was served with a summary criminal complaint on charges of breach of the peace and obstruction of police officers, contrary to Section 41 (1)(a) of the Police (Scotland) Act 1967.   Both offences are punishable by imprisonment, nine months maximum in the case of the obstruction charge.           The applicant appeared for trial before a stipendiary magistrate on 17 May 1985.   The prosecution was represented by a qualified lawyer, all criminal prosecutions in Scotland being carried out by officers from the Procurator Fiscal's office.   A late application for legal aid was immediately presented before the commencement of proceedings by the applicant's solicitors.   The magistrate accepted the applicant's statement of means.   However, without investigating the defence to the charges, the magistrate refused the application on the ground that it was not in the interests of justice.   The applicant alleges that on enquiry, the magistrate explained that it was not in the interests of justice to give legal aid for the offences of breach of the peace or resisting arrest.           The solicitor representing the applicant continued to act for him at the applicant's request, thereby rendering the applicant liable to an account.   The solicitor cross-examined the prosecution witnesses, who included the applicant's wife, on behalf of the applicant.   Following the submission made for the defence, the applicant was acquitted on the more serious charge of obstruction. The applicant was found guilty of a breach of the peace and fined £50, to be paid in instalments.           The applicant did not appeal against the magistrate's refusal of legal aid, no appeal being available under the Act of Adjournal (Rules for Legal Aid in Criminal Proceedings) 1964, Rule 9:           "The decision of a Court on an application for legal aid or         under section 8 (2) hereof shall be final:           Provided that it shall be open to a person at any time to         make a further application for the consideration of the         Court on the ground that there has been a material change in         his financial circumstances or that he has additional facts         affecting his eligibility for legal aid to bring to the         notice of the Court."   COMPLAINTS           The applicant complains that the refusal of legal aid was contrary to the interests of justice.   He submits that the charges were of a serious nature, carrying the risk of a prison term.   The prosecutor regarded the charges as of sufficient seriousness to merit trial before a stipendiary magistrate and the prosecution was carried out by a qualified lawyer who was an officer of the Crown.           The circumstances of the case therefore required that the applicant receive free legal assistance.   The judge however appeared to make his decision to refuse legal aid on policy grounds, without considering the interests of justice.           The applicant therefore invokes Article 6 para. 3 (c) of the Convention.           The applicant also invokes Article 6 para. 3 (b) and (d) of the Convention submitting that to refuse legal aid denies an applicant facilities for his defence and prevents examination of witnesses on the same terms as the prosecution.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 26 June 1985 and registered on 19 August 1985.           On 13 December 1985 the Commission decided to bring the application to the notice of the respondent Government in respect of the applicant's complaint under Article 6 para. 3 (c) of the Convention and to invite them to submit written observations on its admissibility and merits pursuant to Rule 42 para. 2 (b) of the Rules of Procedure.           The Government's observations were submitted on 2 April 1986 and the reply thereto submitted by the applicant on 19 May 1986.           The Commission decided on 3 December 1986 to invite the parties to a hearing on the admissibility and merits of the application and the date for the hearing was set for 13 May 1987. The hearing did not in fact take place.           Supplementary information concerning the application was submitted on 29 April 1987 by the applicant and on 12 May 1987 by the respondent Government.           The information from the Government included a signed precognition from the magistrate dated 7 May 1987, in which the magistrate concludes that, on reconsideration of the matter, when rejecting the applicant's application for legal aid, he temporarily overlooked the existence of the statutory charge.   The Government also submitted an affidavit sworn by the magistrate on 8 May 1987 which stated inter alia that he had taken the view that where a minor charge under the Police (Scotland) Act 1967 relating to struggling with police officers is included in a complaint with a charge of the breach of the peace, the struggle with police officers charge should be incorporated in the breach of the peace charge.           On 13 May 1987, the respondent Government accepted that "from the information recently obtained from the magistrate it now appears to the Government that the legal aid application made by the applicant on 17 May 1985 may in all the circumstances of the case not have been appropriately dealt with by him".           On the same day, the respondent Government submitted the following letter:           "I have the honour to refer to our discussions this morning         and to inform you that the Government are prepared           1)   to make an ex gratia payment to the applicant of             £300, and           2)   to pay the applicant's reasonable legal costs in             respect of the proceedings before the Commission."             By letter dated 13 May 1987 the applicant's solicitor submitted the following:           "I hereby accept the terms of settlement specified in         the letter of 13 May 1987 from the Agent of the         Government of the United Kingdom and accordingly withdraw         the above application."   FINDING OF THE COMMISSION           Having regard to the information submitted by the parties on 13 May 1987, the Commission notes that the applicant has withdrawn his application.   The Commission finds that there are no reasons of a general character affecting the observance of the Convention which necessitate a further examination of the case.           For these reasons, the Commission           DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.       Secretary to the Commission             President of the Commission                   (H.C. KRÜGER)                          (C.A. NØRGAARD)