CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 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. 12322/86 by Robert BELL against the United Kingdom             The European Commission of Human Rights sitting in private on 13 October 1987, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      G. JÖRUNDSSON                      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 4 June 1986 by Robert Bell against the United Kingdom and registered on 8 August 1986 under file No. 12322/86;           Having regard to           - reports provided for in Rule 40 of the Rules of Procedure           of the Commission;           - the Commission's decision of 3 December 1986 to bring the           application to the notice of the respondent Government           and invite them to submit written observations on its           admissibility and merits;           - the observations submitted by the respondent Government on           18 March 1987 and the observations in reply submitted by           the applicant on 1 May 1987;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a British citizen born in 1936 and resident in Glasgow.   He is represented before the Commission by Mr.   John Macaulay, a solicitor.   The facts which do not appear to be in dispute between the parties may be summarised as follows.           Towards the end of July 1985, the applicant was interviewed by the police and charged with committing assault on a neighbour and breaching the peace on 19 July 1985.   The applicant appeared at the Glasgow District Court on 10 January 1986 and pleaded not guilty to both charges.   The trial was fixed for 4 March 1986.           On 14 February 1986 the applicant instructed his solicitor to apply for legal aid to defend himself against the charges.   As is the practice, the application was made through the post to the clerk of the Court and contained details of the applicant's financial position, a copy of the charges and a statement of the applicant's defence.   The applicant's income consisted of £72 per week state invalidity benefit on which he had also to support a wife and two children.   His defence to the charge was that the alleged incidents did not take place. There was a history of ill-feeling between the applicant and the neighbour who had accused him of assault and the solicitor also enclosed details of this.   The application was however rejected on 24 February 1986 as not being in the interests of justice.           On 4 March 1986 neither the complainant (the neighbour) nor her witness (the neighbour's mother) appeared in court and an adjournment was granted until 8 April 1986.   On 8 April 1986 after trial before a lay justice the applicant was found not guilty of both charges.   In fact the prosecution abandoned the case after hearing the evidence of the second witness, since the evidence of this witness was totally inconsistent with the evidence of the first.   The prosecution was conducted by the Procurator Fiscal Depute, who is a qualified solicitor.           The applicant now owes a bill of £300, incurred in connection with instructing a solicitor to defend him and which he is unable to pay.   The solicitor had appeared for him at the trial and cross-examined both witnesses.   The applicant has a record of previous convictions and could have faced a prison sentence if found guilty.     COMPLAINTS           The applicant's principal complaint is that he did not have adequate facilities for the preparation of his defence since, without legal aid, he was unable to pay for his solicitor to interview the witnesses and adequately prepare the case before the trial.   He also complains that his financial circumstances and the interests of justice required that he receive legal aid.   The applicant accordingly invokes Article 6 para. 3 (b) and (c) of the Convention.           The applicant also complains that the Magistrate who decided to reject his complaint must have decided that he was guilty already, otherwise his application for legal aid would not have been refused. He invokes Article 6 para. 2 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 4 June 1986 and registered on 8 August 1986.           The Commission first examined the question of admissibility of the application on 3 December 1986 and decided to invite the respondent Government to submit observations in writing on the admissibility and merits of the application with regard to the applicant's complaints under Article 6 para. 3 (c) of the Convention. The Government submitted their observations on 18 March 1987, to which the applicant replied on 1 May 1987, having been granted legal aid by the President of the Commission on 8 April 1987.     SUBMISSIONS OF THE PARTIES           A. The Government           (a)   The facts           The applicant's legal aid application was placed before the stipendiary magistrate on 24 February 1986.   Neither the application nor the covering letter made reference to any previous convictions of the applicant; in consequence any such convictions were not known to and could not be taken into account by the Magistrate who considered the legal aid application.   The Magistrate refused the application because he did not consider that in all the circumstances of the case it was in the interests of justice that legal aid should be available to the applicant.           (b)   Relevant domestic law and practice           The provisions of Scots law as to the availability of legal aid in relation to criminal proceedings were at the relevant time to be found in the Legal Aid (Scotland) Act 1967 and in subordinate legislation made thereunder.   The 1967 Act was repealed and re-enacted, with some changes, by the Legal Aid (Scotland) Act 1986, which came into operation on 1 April 1987.           The Legal Aid (Scotland) Act 1967 provides that legal aid is available in relation to summary proceedings where the court before which the proceedings are being taken           (a) is satisfied after consideration of the financial circumstances of the accused that the expenses of the case cannot be met without undue hardship to the accused or his dependants, and           (b) "considers that in all the circumstances of the case it is in the interests of justice that legal aid should be available to the accused".   Legal aid may also be refused if the court is satisfied that an applicant for legal aid has available rights or facilities making it unnecessary for him to obtain legal aid, or has a reasonable expectation of obtaining financial or other help from a body of which he is a member.           At the relevant time there was no statutory definition of what matters should be taken into account in determining whether it is in the interests of justice that legal aid should be available.   In relation to the District Court, however, the Secretary of State has from time to time suggested certain factors which may suggest that it is in the interests of justice that legal aid should be made available.   At present these suggested factors, which are neither definitive nor binding, are as follows:           a.   that the charge is a grave one which, if proved, is such         that the accused is at serious risk of loss of liberty or         livelihood;           b.   where the accused is unable to follow the proceedings and         state his own case because of his inadequate knowledge of         English, mental illness or other mental or physical         disability;           c.   where the nature of the defence involves expert         cross-examination of a witness for the prosecution;           d.   where legal representation is desirable in the interests         of someone other than the accused, for example in cases         involving children where it would be undesirable that the         accused himself should cross-examine witnesses.           These guidelines suggest that each court will have evolved its own approach to the criteria "for the interests of justice", but that where the charge is relatively trivial and the probable sentence, if the accused is convicted, a comparatively small fine, the decision that the accused should be defended at public expense with legal aid would not normally be justified.           Remedies where criminal legal aid is refused           The decision of a court on the merits of an application for criminal legal aid is declared by Rule 9 of the Rules for Legal Aid in Criminal Proceedings 1964 to be final; but it is open to an applicant at any time to make a further application for the consideration of the court on the ground either 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 court. Further, if in reaching its decision the court acted oppressively or if it exercised its statutory discretion so improperly as to indicate that it had not in fact reached its decision on the merits at all, it would be possible to challenge that purported decision by an application to the nobile officium (the equitable jurisdiction) of the High Court of Justiciary.   Until recently it was thought that judicial review might be available.   It was held earlier this year, however, by the Court of Session that this was not so, at least where the refusal of legal aid was by the court.   The latter decision is presently subject to appeal.           Status and powers of the District Court           The District Court has only a summary jurisdiction and deals with prosecutions which are thought not to be sufficiently serious to be dealt with by a Sheriff.   The jurisdiction of the District Court is normally exercised by one or more Justices of the Peace, who are laymen without legal qualifications, assisted by a legally qualified clerk; the maximum terms of imprisonment which may be imposed by the District Court, so constituted, is 60 days and the maximum fine £1,000.   In certain cases, however, the District Court may be constituted by a Stipendiary Magistrate, who is a full-time legally qualified judge; when so constituted, the District Court has the same summary criminal jurisdiction and powers as a Sheriff, that is in general to impose a period of imprisonment not exceeding 3 months and a fine not exceeding £2,000.           The role of the prosecutor in Scottish criminal proceedings           The prosecutor in all criminal proceedings before the Sheriff and the District Courts is a Procurator Fiscal.   Procurators Fiscal are appointed by the Lord Advocate from persons who are qualified as advocates or as Scottish solicitors and act under his direction.   When they appear as prosecutors in court, they do so for the Crown.   The interest of the Crown is to see that justice is done rather than merely to procure a conviction.   The Procurator Fiscal therefore has a duty to ensure that all material evidence is laid before the Court, whether or not such evidence is in favour of the Crown case, with the object of ensuring that only the guilty are convicted and in general that justice is done.   A Procurator Fiscal will thus lead all evidence which appears to him to be relevant including evidence which would point to acquittal as well as evidence pointing to conviction.           The Legal Aid (Scotland) Act 1986           When the Legal Aid (Scotland) Act 1986 was brought into force on 1 April 1987, responsibility for granting legal aid in relation to summary proceedings in the District Court was transferred from the court to the Scottish Legal Aid Board, an independent body established by the Act to administer legal aid and advice and assistance in Scotland.   The criteria for making legal aid available continue to be the financial circumstances of the accused and whether in all the circumstances of the case it is in the interests of justice that legal aid should be made available to him.   The Act specifies certain factors which are to be taken into account by the Board in determining whether it is in the interests of justice that criminal legal aid should be made available; the Board will also take into account any other factors which appear to it to be relevant in relation to a particular application.   The Act requires the Board to establish a procedure under which any person whose application for criminal legal aid in summary proceedings has been refused may apply to the Board for a review of his application.   It is now also possible to apply to the Court of Session for judicial review of any decision of the Board which is thought to be illegal or oppressive.           (c)   Admissibility and merits            i.   Exhaustion of domestic remedies           In the Government's submission, the applicant has failed to exhaust all domestic remedies in respect of this complaint as required by Article 26 of the Convention.   A person who has been refused legal aid has the right at any time to make a further application for the consideration of the court on the ground that he has additional facts affecting his eligibility for legal aid to bring to the notice of the court.   In his letter to the Commission dated 1 August 1986 the applicant's representative states that Mr.   Bell "had such a police record that there is every probability that he would have received a custodial sentence".   The Government would not necessarily accept that this was the case.   But in any event, as is indicated above, this matter (to which the applicant could have drawn attention in his initial application or in a subsequent application) could clearly be relevant to the Court's consideration of whether in a particular case legal aid should be made available.   If this fact was not made known to the court at the time of the original application, it would appear to be such an additional fact affecting his eligibility as would entitle him to make a further application following refusal.           Additionally, although it is agreed that, apart from the possibility of a further application, the refusal of legal aid by a court, so long as that refusal is within the law, is final, illegality or oppressiveness on the part of a judge can be challenged in the superior courts, as explained above.           ii.   Substantive issues           Before a person is entitled to be given free legal assistance under Article 6 para. 3 (c) of the Convention two conditions have to be fulfilled.   First, the applicant must not have sufficient means to pay for legal assistance.   Second, the interests of justice must require that he be given free legal assistance.   In the present case, the Government do not seek to suggest that the applicant had sufficient means.   The principal question that arises is therefore whether, in the circumstances of the case, the interests of justice required that he be given free legal assistance.   The Government submit that they did not.           In considering Mr.   Bell's application for legal aid, the court concluded that in all the circumstances of the case it was not in the interests of justice that legal aid should be available to the accused.   In the Government's submission it would not be appropriate for the Commission to seek to substitute its own judgment of this matter, long after the event, for that of the national authority concerned.   It would be consistent with the case-law under the Convention in this and other fields if the Commission were to confine its investigation to considering whether, in all the circumstances, the national court gave proper consideration to the question whether the interests of justice required free legal aid (see, for example, No. 5871/2, Dec. 30.9.74, D.R. 1 pp. 54, 55; Nos. 3104/67 and 3168/67, Decs. 5.4.68, cited in Yearbook 11 pp. 488, 490).   The Government submit that in the present case there is no indication that, in refusing legal aid, the court did not give proper consideration to the question whether the interests of justice required that it be granted.           Three aspects may be relevant to the question whether the interests of justice required that the applicant be given legal aid: (a) the degree of complexity of the case; (b) the seriousness of the case i.e. the likely outcome if the applicant were found guilty; (c) the fact that the prosecution was conducted by a legally qualified person.           It is clear from the case-law that a principal consideration is the legal and factual complexity of the case.   Thus in No. 8000/77, (Dec. 9.5.78 unpublished except as regards other aspects in D.R. 13 p. 81) the Commission stated (at p. 13 of its Decision):           "Moreover, the Commission considers that the applicant's         case was not so complex in law or fact as to require the         intervention of a lawyer in the interests of justice,         this being the only reason where legal assistance must         be granted free of charge."             In the present case, there was no suggestion that the accused suffered from any disability which would have made it difficult for him to present his own case or that any complex question of law or fact might arise.           In the Government's submission, the likely outcome of the case if the accused is found guilty is a relevant factor, at least in the sense that, where a case does not raise complex issues of law and fact, the fact that a severe sentence might be imposed could lead to the conclusion that the interests of justice required free legal assistance.   So far as the Magistrate was aware in this case the applicant had no previous convictions and would be treated as a first offender.   On the basis of the information before him, the Magistrate took the view that the probable sentence, if the accused had been convicted, would have been no more than a comparatively small fine.           The fact that the prosecution is legally represented may in certain circumstances be a relevant factor in determining whether the interests of justice require that the accused be legally represented. Thus, in its Report in the Pakelli case (Eur.   Court H.R., Series B no 53 p. 9) the Commission found that the participation of a member of the Office of the Federal Attorney in the hearing of a criminal appeal before the Federal Supreme Court could not replace, but rather required, the representation of the case for the defence by a person with legal knowledge.   However, the Pakelli case was one involving complex legal arguments and is in no way comparable with the present case.   This issue would seem to be closely connected with, and at least in the present case not distinct from, the question whether the case raises complex issues of fact or law.   In any event, the Government wish to emphasise that in the Scottish criminal justice system the prosecutor is always a qualified lawyer, however minor or straightforward the offence which is charged.   As has been explained, the prosecutor is a public official independent of the police whose duty is to see that justice is done rather than merely to procure a conviction.   The requirement that the Procurator Fiscal be a qualified lawyer ensures that persons are prosecuted, even on the most minor of charges, only after consideration has been given to the merits of the charge by a person with legal training and experience, and that the prosecution will be conducted in an impartial manner.   It is thus part of the protection given to accused persons by the criminal justice system.   The Government submit, therefore, that in determining whether, in a Scottish criminal prosecution, the interests of justice require that free legal assistance be granted, the fact that the prosecutor is a qualified lawyer cannot in itself be a sufficient, or even an important, consideration.   Any other view would apparently lead to the conclusion that Article 6 para. 3 (c) of the Convention requires in Scotland that any person without sufficient means, however minor or straightforward the charges against him and whatever the other circumstances of the case, should always be entitled to free legal assistance.   It is submitted that that cannot be a proper interpretation of Article 6 para. 3 (c).             B. The applicant           (a)   The facts           The applicant does not concede that previous convictions should have more than an incidental or passing significance in considering applications for legal aid where an accused maintains his innocence and chooses to go to trial.   The applicant in his application for legal aid presented a perfectly satisfactory defence to the charge and the application should have been considered on its merits alone.           (b)   Relevant domestic law and practice           The applicant disputes that the charges against him can be described as minor.   Also what the Government consider a comparatively small fine may be an enormously heavy fine to an accused such as the applicant whose income is the minimum state benefit.           Remedies where legal aid is refused           The applicant submits that there is no remedy by way of nobile officium in such cases and cites the decision of the High Court of Justiciary in the case of McLachlan.           The District Court           There are eight courts at the Glasgow District Court, four sitting with Stipendiary Magistrates and four with lay Magistrates. The chances of appearing before the Stipendiary Magistrate who has increased powers are 50%.           It is misleading to suggest that the Stipendiary Magistrate's powers are limited to three months' imprisonment.   In appropriate common law cases, into which category the applicant would have fallen had be appeared before a Stipendiary Magistrate, their powers are increased to six months' imprisonment.           Role of the prosecutor           It is inaccurate to suggest that in the applicant's case the prosecutor was even remotely in a position to present any of the evidence which led to the applicant's acquittal.   It is an elementary truth of criminal procedure that the roles of prosecutor and defender can never properly be performed simultaneously by one individual.           (c)   Admissibility and merits           The applicant submits that there was a complex background to this case and that every civilised system of criminal procedure recognises the undesirability of individuals conducting their own defence where cross-examination is involved.   It is submitted that, given the complex and detailed nature of the applicant's defence, the applicant could not have reasonably been expected to make any effective or useful contribution to the proceedings.   The tenor of the Government's response is that they would wish the great bulk of summary criminal cases to proceed as pleas of guilty, thereby saving the expense of free legal assistance to accused persons for trial. The applicant submits this approach is fundamentally wrong, since an accused should be under no pressure to plead guilty because he cannot finance his defence.   To agree with the Government's submissions would have the practical effect of erasing the protection given by Article 6 para. 3 (c) of the Convention.     THE LAW   1.       The applicant complains that he was refused legal aid for his defence although he had insufficient means and allegedly the interests of justice required that legal aid be granted.   The Government has contended, inter alia, that there is nothing in the present case to indicate that the Magistrate concerned did not take all relevant factors into account when deciding that the interests of justice did not require that legal aid be granted.           Article 6 para. 3 (c) (Art. 6-3-c) of the Convention provides that:           "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 does not consider it necessary to decide whether the applicant has fulfilled the exhaustion of domestic remedies rule laid down in Article 26 (Art. 26) of the Convention, because it finds the application anyway inadmissible for the following reasons:           The evaluation of the requirements of the interests of justice under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention lies in the first place with the domestic courts.   In this respect the Commission notes the guidelines issued to Justices of the Peace in Scotland concerning legal aid, which guidelines indicate the relevant factors to be taken into account in deciding whether it is in the interests of justice that legal aid should be granted. They include the consideration of whether the charge is grave and, if proved, would place the accused at serious risk of loss of liberty, whether the accused is able to follow the proceedings and state his own case and whether the nature of the defence involves expert examination of a witness for the prosecution.           The applicant alleges, however, that the Magistrate in his case ignored the interests of justice in refusing him legal aid on 24 February 1986.           The Commission does not find his allegation substantiated by the facts of the case.   There is no indication in the case-file that in refusing the applicant legal aid, on the grounds that it was not in the interests of justice, the Magistrate did not apply the aforementioned guidelines, having regard to the information available to him in the applicant's legal aid application, or that he made his decision on arbitrary grounds.   It is of particular significance that the applicant's previous convictions were not known by the Magistrate when he considered the applicant's legal aid application and that it was likely that he would have deemed the case before him to have been a somewhat trivial neighbours' dispute which would not result, in case of conviction, in more than a fine for the applicant.           In these circumstances, the Commission concludes that it has not been shown in the present case that the interests of justice, within the meaning of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, required a grant of free legal assistance to the applicant.   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.   2.       The applicant also complains that the refusal of legal aid deprived him of adequate facilities for the preparation of his defence.           Article 6 para. 3 (b) (Art. 6-3-b) of the Convention provides as follows:           "Everyone charged with a criminal offence has the following         minimum rights:           (b) to have adequate time and facilities for the preparation         of his defence".             However, the Commission finds no evidence in the present case that the applicant had inadequate facilities to prepare his defence. This finding is borne out by his acquittal.   It follows that this aspect of the case is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       Finally, the applicant complains that the refusal of legal aid by the Magistrate indicates that he presumed the applicant's guilt, contrary to Article 6 para. 2 (Art. 6-2) of the Convention, which provides as follows:           "Everyone charged with a criminal offence shall be         presumed innocent until proved guilty according to law".           However, the Commission repeats that the Magistrate rejected the applicant's application for legal aid on the grounds that it was not in the interests of justice and that the Magistrates' guidelines indicate a number of factors be taken into account in reaching such a decision.   There is nothing in the facts of the application as it has been presented to indicate that the Magistrate failed to give the matter proper consideration.   Similarly the Commission finds no evidence that the Magistrate was motivated by any presumption of the applicant's guilt.   The Commission concludes, therefore, that this complaint has not been substantiated and that the case fails to disclose any appearance of a violation of Article 6 para. 2 (Art. 6-2) of the Convention.           It follows that this part of the application is similarly 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)