CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1990

.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 OF                         Application No. 17120/90                       by Graham Alexander HIGGINS and                       Kevin Michael Kennedy HIGGINS                       against the United Kingdom             The European Commission of Human Rights sitting in private on 3 December 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                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 9 July 1990 by Graham Alexander HIGGINS and Kevin Michael Kennedy HIGGINS against the United Kingdom and registered on 5 September 1990 under file No. 17120/90;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicants, who are brothers, are British citizens born in 1960 and 1967 respectively and resident in Glasgow.   They are represented by John Carroll, a solicitor practising in Glasgow.   The facts as submitted by the applicants may be summarised as follows.           The applicants were charged inter alia with assault to severe injury and assault by presenting a knife.   They were granted legal aid and represented by a solicitor in their trial in the Sheriff Court.           During the trial, one of the prosecution witnesses revealed the presence of other persons near the scene of the alleged assaults. The applicants' solicitor in cross-examination sought to discover the identity of these persons but an objection to this line of questioning by the Procurator Fiscal Depute was sustained by the presiding Sheriff on the ground that the identity of these persons was not a relevant issue to the charges or to the credibility of the prosecution witnesses.           The applicants were convicted on two of the charges and on 24 November 1989 sentenced to nine months' imprisonment.           The applicants lodged Notices of Intention to Appeal and Grounds of Appeal on the basis that there were important eye witnesses whose existence had not been disclosed to the defence and that the Sheriff had erred in law in preventing the disclosure of the identity of these witnesses.   The applicants applied for legal aid which was refused on 1 February 1990 on the ground that there were no substantial grounds for the appeal.   The Legal Aid Board also stated that it saw no merit whatsoever in the appeal especially since the defence was one of alibi.           Consequently, the applicants, who were of limited education, appeared without legal representation before the High Court of Justiciary.   The first applicant read out a written statement.   The appeals of both were dismissed.   The Court stated:   "It was said by the appellants today that having regard to the exclusive powers given to the police and the procurator fiscal service to investigate crime it was the duty of the procurator fiscal to make known to the defence any information in their possession which would tend to exculpate the appellants and which the defence were not likely to discover in their own investigations.   It is quite clear that not only the grounds of appeal themselves but also the reasons which were given today for quashing the convictions were framed by the same solicitor who as I have just said, is no longer acting for the appellants.   In our opinion it is just as well because we regard this ground of appeal as wholly without foundation, not to say impertinent.   There is no obligation on the Crown to provide any list of witnesses other than those which are attached to an indictment and there is no obligation on the Crown to disclose any information in their possession which would tend to exculpate the accused.   Very often the Crown of their own free will are prepared to give that information and it appears in this case that everything was done within the power of the Crown to do so but because the Crown could not get the necessary information from the other witnesses, obviously they could not pass it on to the defence.   For that reason alone this particular ground of appeal must fail."           The Court also found that the Sheriff had not erred in sustaining an objection to the defence's cross-examination since the evidence was in the circumstances irrelevant, in particular as there was no indication that persons referred to had been at the scene of the incident.   COMPLAINTS           The applicants complain of a violation of Article 6 para. 3 (c) of the Convention in that they were denied legal assistance on appeal when they had insufficient means and when it was in the interest of justice that it be granted.           The applicants also complain of a violation of Article 6 para. 3 (d) in that they were denied the opportunity to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them.   THE LAW   1.       The applicants complain that they were denied legal aid on their appeal contrary to Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, which 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 right to free legal assistance guaranteed by Article 6 para. 3 (c) (Art. 6-3-c) is subject to two conditions; that the individual concerned does not have sufficient means to pay for legal assistance and that "the interests of justice" require it.   It is not in dispute that the first condition was satisfied in the present case.   The only issue is whether "the interests of justice" required that the applicants be granted legal aid before the High Court.           In the Monnell and Morris judgment (Eur. Court H.R., Monnell and Morris judgment of 2 March 1987, Series A no. 115, p. 25, para. 67) of the European Court stated as follows:           "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).   Each applicant, it is         to be noted, benefited from free legal assistance both at his         trial and in being advised as to whether he had any arguable         grounds of appeal ...".           When determining whether "the interests of justice" requires legal representation, the Commission must examine each case on its facts.   While the likelihood of success and the availability of legal assistance at other stages of the proceedings are significant factors to be taken into account, they are not the sole criteria.   Other factors in assessing the requirements of "the interests of justice" include the importance of what is at stake for the applicant, e.g., the severity of the sentence, the personal ability of the applicant and the nature of the proceedings, e.g. complexity or importance of the issues or procedures involved (cf.   Eur.   Court H.R., Artico judgment of 13 May 1980, Series A no. 37 and Pakelli judgment of 25 April 1983, Series A no. 64).           In the present case the Commission recalls that the applicants had been sentenced to nine months' imprisonment on assault charges after a trial in which they had been represented by counsel.   The refusal of legal aid concerned only the appeal against their conviction and the Commission notes, however, that the Legal Aid Board had found no substantial grounds for the appeal.   The Commission notes that the issue before the High Court concerned whether or not the defence counsel should have been prevented from questioning a prosecution witness as to the identity of other persons near the scene of the alleged offence.   On examination of the documents submitted by the applicants, the Commission does not consider that the appeal raised such complex or difficult issues that the interests of justice required that the applicants be granted 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.   2.       The applicants also complain that they were denied the opportunity to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them contrary to Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.           The Commission recalls that defence counsel was prevented from pursuing a line of questioning of a witness by Sheriff, on the ground that it was not relevant.   The Sheriff's ruling was upheld by the appeal court which also found the cross-examination irrelevant.   The Commission also recalls that the appeal court found that the prosecution had not been in possession of the information and could not have passed it on to the defence.   In these circumstances, the Commission finds no indication of an inequality between prosecution and defence as regards the attendance or examination of witnesses, all parties to the proceedings being subject to the rules of evidence which exclude irrelevant questioning.           This complaint is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission, by a majority           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                   President of the Commission             (H.C. KRÜGER)                                 (C.A. NØRGAARD)