CEDH · CASELAW;REPORTS;ENG — 16 octobre 1996

.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                            FIRST CHAMBER                      Application No. 22112/93                          John Wotherspoon                               against                         the United Kingdom                      REPORT OF THE COMMISSION                    (adopted on 16 October 1996)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-31) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 17-23). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and practice           (paras. 24-31). . . . . . . . . . . . . . . . . . .4   III. OPINION OF THE COMMISSION      (paras. 32-43) . . . . . . . . . . . . . . . . . . . . .7        A.    Complaint declared admissible           (para. 32). . . . . . . . . . . . . . . . . . . . .7        B.    Point at issue           (para. 33). . . . . . . . . . . . . . . . . . . . .7        C.    As regards Article 6 para. 3(c) of the Convention           (paras. 34-42). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 43). . . . . . . . . . . . . . . . . . . . .8   APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . .9   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 1964 and is currently serving a sentence of imprisonment at HM Prison, Shotts. He was represented before the Commission by Mr. Thompson, a solicitor practising in Dunfermline.   3.    The application is directed against the United Kingdom. The respondent Government were represented by Ms. Susan Dickson, Agent, Foreign and Commonwealth Office.   4.    The case mainly concerns the refusal of legal aid for the applicant's criminal appeal. The applicant invokes Article 6 para. 3(c) of the Convention.   B.    The proceedings   5.    The application was introduced on 8 February 1993 and registered on 23 June 1993.   6.    On 1 December 1993 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint under Article 6 para. 3(c) of the Convention.   7.    On 8 March 1994 the Commission, pursuant to a request by the Government, decided to adjourn the application pending the judgments in the Boner and Maxwell cases (Eur. Court HR, Boner and Maxwell v. the United Kingdom judgments of 28 October 1994, Series A no. 300-B and 300-C).   8.    The Government's observations were submitted on 13 October 1995. On 5 December 1995 the Commission granted the applicant legal aid for the representation of his case. The applicant's observations in reply were received on 14 February 1996 after one extension of the time-limit fixed for this purpose.   9.    On 12 April 1996 the Commission declared admissible the applicant's complaint under Article 6 para. 3(c) of the Convention. It declared inadmissible the remainder of the application.   10.   The text of the Commission's decision on admissibility was sent to the parties on 19 April 1996 and they were invited to submit such further information or observations on the merits as they wished. Further observations were not submitted by either party.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   12.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. J. LIDDY, President           MM.   M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                B. MARXER                G.B. REFFI                B. CONFORTI                N. BRATZA                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ   13.   The text of this Report was adopted on 16 October 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   15.   The Commission's decision on the admissibility of the application is annexed hereto.   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.    The particular circumstances of the case   17.   The applicant was charged on indictment with murder and received legal aid from the Scottish Legal Aid Board ("S.L.A.B.") for the preparation of his defence and for his representation at trial. The trial took place on 17-19 December 1990 and the applicant was represented by a solicitor and by counsel. On 19 December 1990 the jury found the applicant guilty, by a majority decision, and the trial judge sentenced the applicant to life imprisonment.   18.   On 31 December 1990 the applicant's then solicitors lodged an intimation of intention to appeal in the High Court. On 9 September 1991 the applicant himself lodged the note of appeal. The grounds of appeal contained in that note argued that the evidence given by the only Crown eye witness (who was fifteen years old at the time of the incident for which the applicant was convicted) was incorrect in that it was not possible that the witness had seen what he said he had seen. It was also submitted that there was insufficient corroboration of prosecution evidence, that certain other evidence attempted to confirm an impossibility in relation to a bloodstain and that the applicant had never been in possession of certain witness statements made prior to the trial. The applicant also challenged the pathologist's evidence given at trial and indicated an intention to introduce certain video evidence.   19.   In or around April 1991 the applicant changed solicitors. The legal aid granted to the applicant at trial covered the legal advice to the applicant on the question of his appeal and counsel's opinion on the prospects of the appeal but did not cover the applicant's representation at the appeal hearing. Accordingly, the applicant submitted an application for further legal aid on 4 October 1991. On 12 and 13 December 1991 both senior and junior counsel for the applicant gave written opinions that there were no grounds for appeal but left open the possibility that certain video evidence might provide such grounds. On 20 December 1991 the S.L.A.B. refused to grant legal aid for his appeal on the grounds that it did not consider that the applicant had substantial grounds for making the appeal or that it was reasonable in the circumstances that legal aid be made available. It was noted that senior and junior counsel's opinions had been considered.   20.   When the applicant appeared in the High Court on 20 December 1991, he obtained an adjournment in order to apply for a review of the refusal of legal aid. The applicant's solicitor did not subsequently request the S.L.A.B. to review its decision because senior counsel had further advised that the video evidence was of no use to the applicant's case - rather it strengthened the version of events given by the Crown eye witness whose evidence the applicant wished to challenge.   21.   The applicant obtained another adjournment of his appeal on 19 March 1992 to allow him have his then solicitors (who had been instructed by the applicant since March 1992) to obtain certain witness statements and evidence to challenge the Crown eye witness evidence. On 27 March 1992 the applicant's solicitors obtained the approval of the legal advice and assistance scheme for an initial expenditure of £80 and subsequently of an additional £300 in order to pursue those statements and that evidence. A letter dated 12 June 1992 from private investigators to the applicant's solicitors enclosed a statement of the applicant's aunt indicating, inter alia, that she had met the mother of the Crown eye witness and that the mother had said on two occasions to the applicant's aunt that her son had not seen anything. The private investigator's letter also recalled their unsuccessful attempts to locate the Crown eye witness. Those solicitors subsequently confirmed that no useful evidence was found as a result of all of their enquiries.   22.   On 24 September 1992, the High Court refused a further adjournment and proceeded to hear the applicant's appeal which he presented in person. The applicant also presented to the High Court a written statement outlining the basis on which he felt a miscarriage of justice had occurred and challenging, in particular, the veracity of the evidence of the Crown eye witness.   23.   In its judgment dated 24 September 1992, the High Court having heard the applicant and dealt with, inter alia, the grounds of appeal in the notice of appeal, concluded that the applicant had failed to demonstrate that there had been any miscarriage of justice in his case and dismissed his appeal. On 1 December 1992 the applicant lodged a written petition against conviction to the nobil officium of the High Court. There is no evidence, and the Government do not contend, that the applicant was legally represented or was granted legal aid for that petition. By letter dated 10 December 1992 the applicant was informed that his petition had been refused.   B.    Relevant domestic law and practice   1.    Criminal Appeals - Solemn proceedings   24.   In solemn proceedings in Scotland, where the trial proceeds upon an indictment before a judge sitting with a jury, a person convicted of a criminal charge has an automatic right of appeal granted by statute (section 228 of the Criminal Procedure (Scotland) Act 1975 - "the 1975 Act"). No leave to appeal is therefore required.   25.   In an appeal, the appellant may ask the court to review an alleged miscarriage of justice in the proceedings in which he was convicted (section 228(2) of the 1975 Act). A miscarriage of justice is not defined by statute but the term includes such matters as misdirections by the trial judge, wrong decisions on the admissibility of evidence and breaches of natural justice. The nature of the alleged miscarriage of justice must be specified in the grounds of appeal which must be lodged within eight weeks of the date when sentence is imposed upon the appellant (section 233(1) and (2) of the 1975 Act).   26.   An appellant may not, at the appeal hearing, found any aspect of his appeal on a ground which is not contained in the notice of appeal unless, exceptionally and on showing cause, he obtains the leave of the court to do so (section 233(3) of the 1975 Act). Section 234 of the 1975 Act provides that the appellant can opt to present his case in writing instead of orally. However, in practice appellants present their case orally. While there is no statutory provision relating to the conduct of the appeal hearing (other than defining the quorum of judges as being three), the practice is that an appellant is afforded an opportunity to make oral submissions at such a hearing in support of his appeal and it is also permitted to lodge other documents. It is also open to the judges at the hearing to ask questions or to put points to the appellant. In addition, where an appellant refers to a pre-prepared statement, the practice is for the court to ask the appellant to present that statement orally or to make copies for the judges.   27.   The Crown is always represented by counsel (the Advocate Deputy) at the hearing of criminal appeals. The duty of such counsel is to act solely in the public interest and not to seek to uphold a wrongful decision. Accordingly, they will only address the court if requested to do so or if it is necessary to bring to the attention of the court some matter relevant to the appeal, whether favourable or not to the prosecution. The appeal court may, inter alia, affirm or set aside a conviction and may affirm, vary or quash a sentence. The nobil officium of the High Court constitutes the ultimate residual power of the High Court to bring proceedings under review.   2.    Legal Aid for Criminal Appeals   28.   Responsibility for the administration of legal aid in Scotland is vested in the Scottish Legal Aid Board ("S.L.A.B.") which is an independent body whose members are appointed by the Secretary of State. Legal aid, which has been available for the trial, extends normally to include consideration and advice on the question of an appeal. Where appropriate legal aid is also available to enable a solicitor to prepare and lodge the statutory intimation of intention to appeal and for the drafting and lodging of the notice of appeal setting out the grounds of appeal.   29.   To extend legal aid beyond this point a further application to the Legal Aid Board is required. This application will be granted on fulfilling two conditions. In the first place, the appellant must be financially eligible for legal aid. Secondly, the appellant must have substantial grounds for making the appeal and it must be reasonable that legal aid should be made available in the circumstances. In deciding on these issues the S.L.A.B. will take into account, inter alia, any opinion completed by counsel as to the appeal's prospects of success.   30.   If legal aid has been refused and the appellate court is of the view that, prima facie, the appellant may have substantial grounds for taking the appeal and that it is in the interests of justice that the appellant should have assistance with the costs of legal representation to argue these grounds, that court can adjourn the hearing and recommend that the S.L.A.B. review their decision. This practice was formalised by the circulation of a Practice Note to this effect in 1990 following the judgment of the European Court of Human Rights in the Granger application (Eur. Court H. R., Granger judgment of 28 March 1990, Series A no. 174). Where such a recommendation is made, legal aid is automatically granted (paragraph 6.12 of the Manual of Procedure of the Scottish legal Aid Board).   31.   The Criminal Justice (Scotland) Act 1995 applies to appeals from convictions handed down on or after 26 September 1995. It provides that an appellant must apply for leave to appeal and such leave will be granted when the appellant shows arguable grounds for appeal. In line with that new appeals system, the 1995 Act also provides that legal aid will be granted for an appeal where the applicant is financially eligible for legal aid and where leave to appeal has been granted.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   32.   The Commission has declared admissible the applicant's complaint about the refusal of legal aid for his criminal appeal.   B.    Point at issue   33.   The only point at issue is whether the refusal of legal aid for the applicant's appeal constitutes a violation of Article 6 para. 3(c) (Art. 6-3-c) of the Convention.   C.    As regards Article 6 para. 3(c) (Art. 6-3-c) of the Convention   34.   Article 6 para. 3(c) (Art. 6-3-c) of the Convention reads as follows:        "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; ..."   35.   The applicant submits that the refusal of legal aid for his criminal appeal prevented the proper preparation of his appeal (in that he could not obtain further witness statements and evidence in order to pursue his challenge to the Crown eye witness evidence). It also meant that he had to represent himself at the appeal hearing, prevented the proper presentation of his appeal before the appeal court and thereby led to his appeal hearing being unfair. The Government has no observations on this complaint in light of the Court judgments in the Boner and Maxwell cases (Eur. Court HR, Boner and Maxwell v. the United Kingdom judgments of 28 October 1994, Series A no. 300-B and 300-C).   36.   As regards the applicant's submission as to the preparation of his case, the Commission notes that the applicant was granted an adjournment by the appeal court on 19 March 1992 and a total of £380 from the legal advice and assistance scheme to enable solicitors to pursue the witness evidence which the applicant considered relevant to his challenge to the Crown eye witness evidence. The enquiries were conducted by the applicant's then solicitors and the fact that they yielded no useful results does not demonstrate any unfairness as regards his appeal.   37.   As to his having to represent himself at the appeal hearing, the Commission recalls the above-mentioned Boner and Maxwell cases. Mr Boner had been convicted of assault and armed robbery, a charge of wilful damage and three charges relating to firearms and was sentenced to eight years imprisonment. Mr Maxwell was found guilty of assault and was sentenced to five years imprisonment. Both were refused legal aid for their appeals (for which appeals leave was not required) on the grounds that the SLAB was not satisfied that there were substantial grounds for making the appeal and that it was reasonable that legal aid be granted.   38.   The grounds of appeal of both applicants were described by the Court as not particularly complex. However, the Court found that, although Mr Boner understood the grounds of appeal drafted by his legal representative, those grounds required a certain legal skill and expertise to present to the appeal court. As regards Mr. Maxwell, the Court found that, although he may have formulated the grounds of appeal himself, he was unable to competently address the appeal court on such legal issues without the services of a legal practitioner.   39.   The Court therefore found that, given the nature of the proceedings, the wide powers of the High Court, the limited capacity of an unrepresented appellant to present a legal argument and, above all, the importance of the issue at stake in view of the severity of the sentence, the interests of justice required that those applicants be granted legal aid for representation at the hearing of their criminal appeals and that the refusal of such legal aid constituted a violation of Article 6 para. 3(c) (Art. 6-3-c) of the Convention.   40.   The Commission notes that the present applicant was subject to the same legal aid rules and criminal appeal system as applied in the Boner and Maxwell cases, that he was refused legal aid for his appeal for the same reasons outlined in those cases and that it is not in dispute that he lacked sufficient means to pay for legal assistance for his appeal. The fact that the applicant received £380 from the legal advice and assistance scheme to enable his solicitors to pursue further witness evidence for his appeal does not alter the fact that the applicant did not receive legal aid for representation at his appeal hearing.   41.   It is further noted that the matter before the appeal court was the applicant's conviction for murder following which a life sentence had been imposed. The conviction and sentence were even more serious than in the Boner and Maxwell cases and the Commission considers that the issues at stake were extremely important for the applicant. The Commission also considers that the grounds of the applicant's appeal were relatively complex and that, although he drafted the grounds of appeal himself, he was unable to competently address the appeal court on such legal issues without the services of a legal practitioner.   42.   The Commission therefore considers that the interests of justice required that the applicant be granted legal aid for representation at the hearing of his criminal appeal. Accordingly, the Commission considers that the refusal of legal aid for the applicant's representation at his appeal hearing before the High Court constitutes a violation of article 6 para. 3(c) of the Convention.        CONCLUSION   43.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 3(c) (Art. 6-3-c) of the Convention.     M.F. BUQUICCHIO                             J. LIDDY      Secretary                                President to the First Chamber                     of the First Chamber