CEDH · CASELAW;REPORTS;ENG — 4 mai 1993

.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                      Application No. 18949/91   Peter Maxwell                               against                         the United Kingdom                      REPORT OF THE COMMISSION                       (adopted on 4 May 1993)                          TABLE OF CONTENTS                                                             page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . .1-2        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . .1-2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-37) . . . . . . . . . . . . . . . . . . . .3-5        A.    Particular circumstances of the case           (paras. 17-23). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and practice           (paras. 24-37). . . . . . . . . . . . . . . . . .3-5   III. OPINION OF THE COMMISSION      (paras. 38-48) . . . . . . . . . . . . . . . . . . . .6-7        A.    Complaint declared admissible           (para. 38). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 39). . . . . . . . . . . . . . . . . . . . .6        C.    Article 6 para. 3(c) of the Convention           (paras. 40-47). . . . . . . . . . . . . . . . . .6-7        CONCLUSION      (para. 48) . . . . . . . . . . . . . . . . . . . . . . .7   DISSENTING OPINION OF MR. HENRY G. SCHERMERS and SIR BASIL HALL. . . . . . . . . . . . . . . . . . . . .8-9   APPENDIX I      HISTORY OF THE PROCEEDINGS . . . . . . . . . 10   APPENDIX II     PARTIAL DECISION ON THE ADMISSIBILITY. . .11-14   APPENDIX III    FINAL DECISION ON THE ADMISSIBILITY. . . .15-19   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a British citizen born in 1944 and currently serving a sentence of imprisonment in HM Prison Perth.   3.    The application is directed against the United Kingdom.   The respondent Government are represented by their Agent, Mrs. Audrey Glover of the Foreign and Commonwealth Office.   4.    The case concerns the applicant's complaints under Article 6 para. 3(c) of the Convention that he was refused legal aid for the presentation of his appeal against conviction.   B.    The proceedings   5.    The application was introduced on 25 March 1991 and registered on 15 October 1991.   6.    On 2 April 1992, the Commission (First Chamber) decided to invite the Government to submit written observations on the admissibility and merits of the complaints under Article 6 para. 3(c) of the Convention. The remainder of the application was declared inadmissible.   7.    The Government submitted their written observations on 1 July 1992. The applicant submitted his observations on 14 August 1992.   8.    On 2 December 1992, the Commission transferred the case to Plenary from the First Chamber.   9.    On 9 December 1992, the Commission declared the application admissible insofar as it raised issues under Article 6 para. 3(c) of the Convention. The parties were then invited to submit any additional observations on the merits of the application.   10.   On 9 February 1993, the Government submitted observations on the merits and on 25 February 1993, the applicant submitted further material.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 22 October 1991 and 1 September 1992.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.    The present Report   12.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   C.A. NØRGAARD, President                S. TRECHSEL                E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H.G. SCHERMERS                H. DANELIUS           Mrs. G.H. THUNE           Sir   Basil HALL           MM.   F. MARTINEZ                C.L. ROZAKIS           Mrs. J. LIDDY           MM.   L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                G.B. REFFI                M. NOWICKI   13.   The text of the Report was adopted by the Commission on 4 May 1993 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is        1)   to establish the facts, and        2)   to state an opinion as to whether the facts found disclose          a breach by the State concerned of its obligations under          the Convention.   15.   A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decisions on the admissibility of the application as APPENDIX II and APPENDIX III.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    Particular circumstances of the case   17.   On 28 May 1990, the applicant, along with a co-accused, stood trial on an indictment of breaking into a house and assaulting the occupant to his severe injury.   On 29 May 1990, he was convicted and sentenced to 5 years' imprisonment.   The applicant, who had been granted free legal aid, was represented at trial by a solicitor and counsel.   18.   On 17 December 1990, the applicant's solicitors applied to the Scottish Legal Aid Board for legal aid for representation at his appeal against conviction.   In a note dated 10 January 1991, counsel advised that the applicant had no grounds of appeal against conviction. The applicant's solicitors submitted to the Legal Aid Board that the applicant should nonetheless be given legal aid in view of the lengthy sentence which he had received.   19.   On 23 January 1991, the Scottish Legal Aid Board rejected the applicant's application for legal aid for an appeal against conviction. It did so because it did not consider that there were substantial grounds for such an appeal.   20.   The applicant prepared and submitted his own grounds of appeal against conviction.   21.   On 21 March 1991, the applicant addressed the High Court of Justiciary in its appellate function on his grounds of appeal.   22.   The grounds of appeal were, inter alia, as follows:        1.    He could not substantiate his contention that a crucial      witness was giving false evidence against him because to do so      would have involved revealing to the jury a previous conviction.        2.    A number of witnesses were not called by the Crown or      Defence.        3.    Crucial evidence was fabricated.        4.    The verdict of the jury was not supported by the evidence.        5.    His legal advisers disregarded instructions which he gave      them and did not defend him in accordance with his instructions.   23.   On the same date the Court refused the applicant's appeal against conviction.   It found that none of the grounds of appeal supported the suggestion that there was any miscarriage of justice in the case.   B.    Relevant domestic law and practice   Appeals against conviction by persons convicted on indictment   24.   Pursuant to section 228 of the Criminal Procedure (Scotland) Act 1975 every person convicted of a criminal charge on indictment in Scotland has a right of appeal to the High Court of Justiciary against conviction or sentence or both.   25.   In an appeal, the appellant may bring under review by the Court any alleged miscarriage of justice in the proceedings.   26.   An appeal is heard by a bench of not less than three judges. At the hearing of the appeal the appellant or his counsel if he is represented makes submissions to the Court in support of the grounds of appeal. The Court is then addressed by counsel for the Crown.   27.   In disposing of an appeal against conviction the High Court may affirm the verdict of the trial court; set aside the verdict of the trial court by either quashing the conviction or by substituting an amended verdict of guilty; or set aside the verdict of the trial court and authorise a new prosecution (section 254 of the Criminal Procedure (Scotland) Act 1975).   Availability of legal aid for criminal appeals   28.   Legal aid is available for appeal against conviction or sentence where the applicant qualifies on financial grounds and where "he has substantial grounds for making the appeal and it is reasonable in the particular circumstances of the case that legal aid should be made available to him" (Legal Aid (Scotland) Act 1986 section 25(2)).   29.   The administration of legal aid in Scotland, including decisions as to the granting of legal aid for criminal appeals, is the responsibility of the Scottish Legal Aid Board, an independent body established on 1 April 1987 whose members are appointed by the Secretary of State for Scotland.   30.   Legal aid which has been made available for a trial on indictment extends, where the accused person is convicted, to include consideration and advice by a solicitor on the question of the appeal. A Note by Counsel on the prospects of an appeal can be obtained under this grant of legal aid, where Counsel has been previously involved on the appellant's behalf in the proceedings.   31.   To obtain legal aid to proceed with an appeal, a further application to the Scottish Legal Aid Board is required. The solicitor preparing the Note of Appeal will, where appropriate, arrange to obtain the opinion of Counsel as to the prospects of the appeal, and will lodge this with the application for legal aid.   32.   Applications for legal aid for criminal appeals are determined by the Board, which includes at least 2 practising members of the Faculty of Advocates, at least 2 members of the Law Society of Scotland and at least one other person having experience of the procedure and practice of the courts.   33.   The Board normally reaches a decision as to whether there are substantial grounds on the basis of the documents before them, which normally include copies of a Note of Appeal and the Judge's charge to the jury.   The views expressed by the applicant's solicitor and Counsel will also be taken into account in the Board's consideration.   34.   Although the legislation does not provide for a formal review, the Board will as a matter of practice, when requested to do so, reconsider an application which has been refused.   Such consideration involves reference by the Board to an external reporter who was not involved in the initial decision to refuse the application and who reports to the Board on the merits of the application.   35.   In a solemn criminal appeal where legal aid has been refused, if the Appeal 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 ex proprio motu may adjourn the hearing and make a recommendation that the Board's decision to refuse legal aid should be reviewed.   36.   The practice of the Court in this regard was formalised by a Practice Note to this effect issued on 4 December 1990 by the Lord Justice General, 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."   37.   The Scottish Legal Aid Board has decided that where a recommendation is made by the Court in criminal appeal cases that a decision to refuse legal aid should be reviewed, they will grant legal aid. The Manual of Procedure of the Scottish Legal Aid Board provides in para. 6.12:        "In any criminal appeal where legal aid has been refused, and the      Appeal Court considers that the 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 those grounds, the Appeal Court can adjourn the hearing      and recommend that the Board re-considers the decision to refuse      legal aid.        In these circumstances, the Board will receive a letter from the      High Court of Justiciary giving the details of the case where      they are recommending a re-consideration of the decision to      refuse.   If we are asked to re-consider a decision in these      circumstances, then the application should be granted      automatically.   The case need not be seen by a reporter or Board      solicitor, but ought to be referred to the Assistant Manager for      the appropriate action."   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   38.   The Commission has declared admissible the applicant's complaint that he was refused legal aid for the presentation of his appeal against conviction.   B.    Point at issue   39.   The issue to be determined is whether there has been a violation of Article 6 para. 3(c) (Art. 6-3-c) of the Convention.   C.    Article 6 para. 3(c) (Art. 6-3-c) of the Convention   40.   Article 6 para. 3(c) (Art. 6-3-c) provides that:        "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".   41.   The applicant submits that the refusal of legal aid for his appeal against conviction is in violation of the above provision. He states that very serious matters were at stake in his appeal and that the interests of justice required that he receive legal representation.   42.   The Government submit that Article 6 para. 3(c) (Art. 6-3-c) does not bestow a right to receive legal aid where an appeal has "no objective likelihood of success" and refer to the Monnell and Morris case (Eur. Court, H.R. Monnell and Morris judgment of 2 March 1987, Series A no. 115, p. 25, para. 67). In this case, the Government recall that the applicant's counsel advised that the applicant had no ground of appeal against conviction and, in their submission, there was nothing complex in the case either factually or legally which indicated that the interests of justice required legal representation. The Government also lay emphasis on the fact that there is an automatic right of appeal in Scotland without the requirement of obtaining leave to appeal.   43.   The Commission recalls that Article 6 para. 3 (Art. 6-3) contains an enumeration of specific rights of the defence.   They exemplify the notion of fair trial in respect of typical procedural situations which arise in criminal cases, but their intrinsic aim is always to ensure, or contribute to ensuring, the fairness of the criminal proceedings as a whole.   The guarantees enshrined in Article 6 para. 3 (Art. 6-3) must accordingly be interpreted in the light of the function which they have in the overall context of the proceedings (cf. Can v. Austria, Comm. Report 12.7.84, para. 48, Eur. Court H.R., Series A no. 96, p. 15). The manner in which the guarantees apply in relation to appellate or cassation courts may also be influenced by the special features of those proceedings including the nature of the procedure and the powers of the appellate body concerned (Monnell and Morris judgment loc. cit., p. 22, para. 56).   44.   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 applicant be granted legal aid before the High Court.   45.   When determining whether "the interests of justice" required 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., Granger judgment of 28 March 1990, Series A no. 174, pp. 18-19, paras. 47-48 and Comm. Report 12.12.88, loc.cit. pp. 24-25, paras. 50-52).   46.   In the present case, the Commission notes that several of the features present in the Granger case are absent.   In particular in the Granger case the appeal concerned acknowledged "difficult" legal distinctions of some complexity and during the proceedings the Court adjourned in order to obtain a transcript of evidence so as to be able to examine the matter more thoroughly.   Nonetheless the applicant was appealing in this case against a conviction for which he had received a sentence of five years' imprisonment.   There is consequently no question as to the importance of what was at stake in the appeal.   47.   The Commission recalls that the High Court has wide powers as to the disposing of appeals and that the procedure is not limited but allows any alleged miscarriage of justice to be challenged. The proceedings involve an oral hearing at which the Crown is represented. The Commission notes that the Scottish system affords an automatic right of appeal in all cases. However where appeals are provided for, the guarantees of Article 6 para. 3(c) (Art. 6-3-c) cannot be evaded on the ground of the other incidental benefits of the system. The effectiveness of the contribution, by an unaided applicant, to appeal hearings at which the prosecution is represented by counsel, and consequently the fairness of those proceedings, must be seriously in doubt.   Consequently, having regard in the present case to the nature of the proceedings and the length of sentence at stake, the Commission finds that the interests of justice required the provision of legal assistance.        CONCLUSION   48.   The Commission concludes, by 17 votes to 2, that there has been a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.   Secretary to the Commission         President of the Commission        (H.C. KRÜGER)                        (C.A. NØRGAARD)                                                    (Or. English)   DISSENTING OPINION OF MR. HENRY G. SCHERMERS AND SIR BASIL HALL        We do not share the view of the majority of the Commission that there has been a violation of Article 6 para. 3(c) in this case.        "The manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate Court therein." (Jan-Ake Andersson v. Sweden judgment of 29.10.91, Series A no. 212 B, p. 43, para. 22.)        This principle applies not only in relation to para. 1 of that Article but also in relation to para. 3(c) which states a specific aspect of the basic entitlement to a fair hearing conferred by para. 1 (Granger judgment of 28.3.90, Series A no. 174, p. 17, paras. 43 and 44.)        Under the Scottish system everyone convicted of a crime at first instance has a right to appeal to the High Court of Justiciary.   An appeal will however only succeed if a miscarriage of justice is established.   The function of the Court is then to examine whether there is ground for finding that there has been a miscarriage of justice and not to re-hear the case.   The Court examines whether at first instance there has been an error of law or a procedural error. The appellant is required to state the grounds in his notice of appeal and may not, in general, found his appeal on a ground not stated in the notice (see Granger judgment loc.cit., pp. 12 and 13, paras. 26 and 27).        Like Mr. Granger the applicant was sentenced to five years imprisonment.   In other respects his case was very different from that of Mr. Granger.   Unlike Mr. Granger he understood the grounds of his appeal - indeed he formulated them himself.   There was no difficult legal issue such as the issue over 'precognitions' in the Granger case.        The applicant was advised by his Counsel that there was no ground for an appeal against his conviction.   The Legal Aid Board, too, concluded that there was no substantial ground for an appeal. Notwithstanding the advice which the applicant had received he pressed on with his appeal with no objective likelihood of success.   In these circumstances we do not consider that the interests of justice required that he should have been given legal aid at the appeal stage (see the Monnell and Morris judgment of 2.3.87, Series A No. 115, p. 25, para. 67).        The majority of the Commission place weight on the fact that the prosecutor was legally represented while the applicant was not.   If the prosecutor is to be present on an appeal (what he obviously must be - to assist the court if necessary) he can only be present through the presence of a counsel.   If the prosecutor has played an active part in arguing that the appeal should have been dismissed, question of equality of arms might have arisen.   There is no indication that that was so in this case, which distinguishes the case from Granger where the Solicitor-General addressed the court at length (Granger judgment of 20 March 1990, Series A no. 174, p. 11 para. 18 and p. 18 para. 47. Furthermore there is an obvious difficulty in counsel putting forward an argument on a point which he believes to be without foundation, so that the purpose served by representation in the circumstances is not obvious.        Accordingly there was, in our opinion, no breach of Article 6 para. 3(c) in this case either taken alone or as an element in the right to a fair hearing conferred by Article 6 para. 1.                             Appendix I                     HISTORY OF THE PROCEEDINGS   Date                           Item ________________________________________________________________   25.03.91        Introduction of the application   15.10.91        Registration of the application   Examination of admissibility   02.04.92        Commission's decision to invite the parties to submit                observations on the admissibility and merits of the                complaint under Article 6(3)(c).                Commission's decision to declare the other complaints                inadmissible   01.07.92        Government's observations   14.08.92        Applicant's observations   02.12.92        Transfer of the case from the First Chamber to the                Plenary   09.12.92        Commission's decision to declare the remainder of the                application admissible.   Examination of the merits   09.12.92        Commission's deliberations on the merits   09.02.93        Government's observations   25.02.93        Applicant's observations   03.04.93        Commission's consideration of the state of proceedings   04.05.93        Commission's deliberations on the merits, final votes                and adoption of the Report