CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 mai 1988

.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 } .s23A41E03 { width:36pt; display:inline-block }  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)