CEDH · CASELAW;REPORTS;ENG — 8 septembre 1992

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                               SECOND CHAMBER                          Application No. 15861/89                                     M.                                   against                             the UNITED KINGDOM                          REPORT OF THE COMMISSION                        (adopted on 8 September 1992)                              TABLE OF CONTENTS                                                                    Page   INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1   PART I:    STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . 2   PART II:   SOLUTION REACHED. . . . . . . . . . . . . . . . . . . . . 4                                INTRODUCTION   1.     This Report relates to the application introduced under Article 25 of the European Convention on Human Rights by M. against the United Kingdom on 22 August 1989.   It was registered on 4 December 1989 under file No. 15861/89.         The applicant was represented before the Commission by Drummond Miller W. S., solicitors, of Edinburgh.   The respondent Government were represented by their Agent, Mrs. Audrey Glover of the Foreign and Commonwealth Office.   2.     On 9 December 1991 the European Commission of Human Rights declared the application partially admissible insofar as it concerned the applicant's complaint under Article 6 para. 3 (c) of the Convention that he was refused legal aid for his appeal against conviction and rejected his remaining complaints under Article 6.   It then proceeded to carry out its task under Article 28 para. 1 of the Convention which provides as follows:         "In the event of the Commission accepting a petition       referred to it:              a.   it shall, with a view to ascertaining the facts,            undertake together with the representatives of the            parties an examination of the petition and, if need            be, an investigation, for the effective conduct of            which the States concerned shall furnish all necessary            facilities, after an exchange of views with the            Commission;              b.   it shall at the same time place itself at the            disposal of the parties concerned with a view to            securing a friendly settlement of the matter on the            basis of respect for Human Rights as defined in this            Convention."   3.     The Commission (Second Chamber) found that the parties had reached a friendly settlement of the case and on 8 September 1992 adopted this Report which, in accordance with Article 28 para. 2 of the Convention, is confined to a brief statement of the facts and of the solution reached.   4.     The following members were present when the Report was adopted:                    MM.   S. TRECHSEL, President                       G. JÖRUNDSSON                       A. WEITZEL                       J.-C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                  Mrs. G.H. THUNE                  MM.   F. MARTINEZ                       L. LOUCAIDES                       J.-C. GEUS                                   PART I                           STATEMENT OF THE FACTS   5.     The applicant is a British citizen born in 1948 and is currently serving a prison sentence in H.M. Prison Saughton, Edinburgh.   The facts as submitted by the parties may be summarised as follows.   6.     The applicant, his son and elder brother were charged with a number of offences relating inter alia to assaults inflicting grave injuries with a sword and knife in an incident in a public house.   The applicant pleaded guilty to two charges of attempted murder and on 27 July 1988 was sentenced to two terms of imprisonment of eight years to run concurrently.   While it appears that legal aid for Senior Counsel was not granted by the Scottish Legal Aid Board since it considered that the case did not present such features as would justify employment of such counsel, the applicant was in fact represented by Senior Counsel at trial, Mr. I. Hamilton Q.C. In his letter of 11 February 1990 to the Scottish Legal Aid Board, the applicant stated:         "I was allowed a Junior Q.C. for my defence, but my solicitor       said this would not do for the High Court and got a Q.C.       for the same money as the Junior."   7.     The charges against his son were dropped at the beginning of the trial, although his brother, who pleaded not guilty, was found guilty of 3 charges and also sentenced to two terms of imprisonment of eight years, to run concurrently.   8.     The applicant appealed against sentence on the ground that it was excessive in view of his previous good record, his personal circumstances and the circumstances of the offence.   The Note of Appeal was prepared by his solicitors.   His brother appealed against the conviction and sentence.   9.     The applicant had applied for legal aid for his appeal, but legal aid had been refused by the Legal Aid Board on 28 November 1988, on the ground that it did not consider that he had substantial grounds for making the appeal or that it was reasonable in the particular circumstances of the case that legal aid should be made available to him.   The Board noted that this appeal had not been supported by a counsel's opinion.   10.    The appeal was heard by the High Court of Justiciary.   While the Advocate Depute was present for the Crown, as in all appeals, he played no part in the appeal and was not requested by the court to assist it in any way. The applicant was present and submitted a written statement to the Court and made oral submissions concerning his past good record.   11.    The High Court gave its judgment on 5 May 1989 and dismissed the applicant's appeal.   The Court found that the sentence was not excessive since the applicant had taken the principal part in the assault and had been the person who inflicted the injuries with a sword.   His brother's appeal was also dismissed.   12.    The applicant complained to the Commission under Article 6 para. 3 (c) of the Convention that he did not receive legal aid for his appeal though the interests of justice required it.   He also complained under Article 6 of the Convention of the conduct of the Procurator Fiscal and his legal representatives, of being unable to obtain the examination of witnesses and of a failure properly to serve the indictment.                                   PART II                              SOLUTION REACHED   13.    Following its decision on the admissibility of the application, the Commission placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 para. 1 (b) of the Convention and invited the parties to submit any proposals they wished to make.   14.    In accordance with the usual practice, the Secretary, acting on the Commission's instructions, contacted the parties to explore the possibilities of reaching a friendly settlement.   15.    Between March 1991 and July 1992 there were negotiations between the parties concerning a friendly settlement of the case in light of the Practice Note which had been circulated to the appeal courts concerning legal aid:                               "PRACTICE NOTE                 TO ALL APPEAL COURT CHAIRMEN AND CLERKS         In any appeal where legal aid has been refused and the       court considers that, prima facie, an appellant may have       substantial grounds for taking the appeal and it is in the       interests of justice that the appellant should have legal       representation in arguing these grounds, the court shall       forthwith adjourn the hearing and make a recommendation       that the decision to refuse legal aid should be reviewed.         4 December 1990                            LORD JUSTICE GENERAL"   16.    By letter dated 2 July 1992, the Government offered to make an ex gratia payment to the applicant of £1 200 as to damages and to pay the costs which the applicant has actually and necessarily incurred and which were reasonable as to quantum.   By letter dated 31 July 1992, the applicant accepted this offer.   17.    At its session on 8 September 1992 the Commission found that the parties had reached agreement regarding the terms of a settlement.   It further considered, having regard to Article 28 para. 1 (b) of the Convention, that the friendly settlement of the case had been secured on the basis of respect for Human Rights as defined in the Convention.   18.    For these reasons, the Commission adopted the present Report.   Secretary to the Second Chamber        President of the Second Chamber             (K. ROGGE)                             (S. TRECHSEL)