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. 23934/94                           Peter Middleton                               against                         the United Kingdom                      REPORT OF THE COMMISSION                    (adopted on 16 October 1996)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-33) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-25). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and practice           (paras. 26-33). . . . . . . . . . . . . . . . . . .4   III. OPINION OF THE COMMISSION      (paras. 34-44) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 34). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 35). . . . . . . . . . . . . . . . . . . . .6        C.    As regards Article 6 para. 3(c) of the Convention           (paras. 36-43). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 44). . . . . . . . . . . . . . . . . . . . .7   APPENDIX :      DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . .8   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 1956 and resident in Newcastle upon Tyne, England. He was initially represented before the Commission by Barry Robson, a solicitor practising in Newcastle upon Tyne, he subsequently withdrew his instructions from that solicitor and he was represented for the remainder of his application before the Commission by A.C. Baker, a solicitor practising in Newcastle, England.   3.    The application is directed against the United Kingdom. The respondent Government were represented by 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 1 January 1994 and registered on 21 April 1994.   6.    On 12 October 1994 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.    The Government's observations were submitted on 12 October 1995 pursuant to unsuccessful settlement negotiations and after one extension of the time-limit fixed for this purpose. On 24 October 1995 the Commission granted the applicant legal aid for the representation of his case. No observations were received from the applicant within the time allowed. A request by the applicant's representatives for an extension of time was made more than two months after the expiry of the time limit fixed and was, accordingly, denied.   8.    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.   9.    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. No further observations were submitted.   10.   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   11.   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   12.   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.   13.   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.   14.    The Commission's decision on the admissibility of the application is annexed hereto.   15.   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   16.   On 7 December 1992 the applicant was arrested and charged on indictment with housebreaking with intent to steal from a premises in Jedburgh, Scotland. The applicant received legal aid from the Scottish Legal Aid Board ("the S.L.A.B.") and he was represented by a solicitor for the purposes of preparing his defence prior to the trial and for representation at his trial.   17.    The trial took place between 15-17 March 1993 and the applicant was represented by his solicitor. After the judge's summing up, the jury unanimously found the applicant guilty. Having heard evidence as to the applicant's previous convictions, many of which resulted in sentences of imprisonment (ten convictions prior to 1987, a conviction for attempted burglary in 1987, a conviction in 1990 for handling stolen goods and a further conviction in 1992 for burglary), the trial judge sentenced the applicant to three years imprisonment backdated to the date of his arrest on 7 December 1992.   18.   On 25 March 1993 the applicant's solicitor lodged an intimation of intention to appeal against conviction to the High Court. On 27 April 1993 the applicant's solicitor lodged a note of appeal to the High Court. There were two grounds of appeal contained in the note of appeal. In the first place, it was argued that the evidence against the applicant was circumstantial and insufficient to link him to the crime alleged in the indictment. Secondly, it was submitted that the trial judge failed to direct the jury on the concept of "accessory after the fact" when the applicant's solicitor had raised the concept in his speech to the jury indicating that the judge would advise the jury on this matter in due course.   19.   The legal aid for the applicant's trial covered legal advice in connection with his appeal but did not cover legal representation at the appeal hearing. Accordingly, on 31 March 1993 an application was made to the S.L.A.B. for legal aid to cover the applicant's representation at the appeal hearing.   20.   On 28 May 1993 the trial judge lodged his report on the trial in the High Court pursuant to section 236A of the Criminal Procedure (Scotland) Act 1975. On 25 June 1993 the applicant's counsel prepared a written opinion to the effect that the applicant's appeal had no prospect of success.   21.   The applicant submits that he was informed by his solicitor during a consultation on 1 July 1993 that the application for legal aid for the appeal had been refused.   22.   By letter dated 15 September 1993 the applicant's solicitor informed the applicant that counsel's opinion had been forwarded to the S.L.A.B.. In a letter dated 24 September 1993 to the applicant his solicitor stated that he was waiting to hear from the S.L.A.B. as to whether the S.L.A.B. "confirm" that legal aid has been refused. On 1 October 1993 the S.L.A.B. wrote to the applicant indicating that a decision on legal aid "was still pending" and that the S.L.A.B. awaited counsel's opinion.   23.   The applicant's appeal was heard on 8 October 1993 and the applicant presented his appeal in person. His appeal was rejected, the court finding (in a five page judgment) that the trial judge's view on the evidence and his direction to the jury were correct. On the date of the appeal hearing the S.L.A.B. had neither refused nor granted the applicant further legal aid but the applicant submits that he was under the impression that legal aid had already been refused.   24.   The S.L.A.B. notified the applicant, by letter dated 21 October 1993, that his solicitor had lodged counsel's opinion with the   S.L.A.B. on 15 October 1993. Unaware that the appeal hearing had already taken place, the S.L.A.B. proceeded to consider the legal aid application and, by letter dated 3 November 1993, notified the applicant's legal representatives that the legal aid application had been refused. The S.L.A.B. refused legal aid because (as outlined in its letter to the applicant dated 25 May 1994) the S.L.A.B. was not satisfied that the applicant had substantial grounds for making the appeal nor was it reasonable, in the particular circumstances of the case, that legal aid should be made available to the applicant. The S.L.A.B. noted that the applicant's counsel did not support his appeal.   25.   The applicant was released from prison on 6 June 1994.   B.    Relevant domestic law and practice   1.    Criminal Appeals - Solemn proceedings   26.   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.   27.   Pursuant to section 236A of the 1975 Act, the trial judge must furnish a written report covering the case in general and the grounds of the appeal. 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).   28.   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.   29.   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   30.   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.   31.   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.   32.   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).   33.   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   34.   The Commission has declared admissible the applicant's complaint about the refusal of legal aid for his criminal appeal.   B.    Point at issue   35.   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   36.   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; ..."   37.   The applicant submits that the refusal of legal aid meant that he was obliged to present his own appeal, though he was incapable of doing so, and that this rendered his appeal hearing unfair. The Government have 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) apart from their acceptance that, had the opinion of applicant's counsel been submitted to the S.L.A.B. prior to the appeal hearing, it is very likely that the S.L.A.B. would have refused legal aid for the same reasons as were in fact eventually given by the S.L.A.B..   38.   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 S.L.A.B. was not satisfied that there were substantial grounds for making the appeal and that it was reasonable that legal aid be granted.   39.   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.   40.   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.   41.   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 as in those cases, that it is not in dispute that he lacked sufficient means to pay for legal assistance for his appeal and that the applicant was unrepresented for his appeal hearing. Although the decision of the S.L.A.B. was in fact taken after the applicant's appeal hearing, in light of the Government's acceptance outlined above and the eventual decision of the S.L.A.B., the Commission considers that the applicant was obliged to represent himself at his appeal hearing.   42.   It is further noted that the matter before the appeal court was the applicant's conviction for housebreaking with intent to steal following which he was sentenced to three years imprisonment. It is true that the conviction and sentence are less serious than the convictions and sentences in the Boner and Maxwell cases. However, the Commission considers that the conviction and sentence at stake were extremely important for the applicant. The Commission is also of the opinion that the grounds of the applicant's appeal were relatively complex and that, although he may have understood the grounds of appeal drafted by his legal representative, those grounds required, as in the Boner case, a certain legal skill and expertise to present to the appeal court.   43.   The Commission therefore considers that the interests of justice required that the applicant be granted legal aid for representation at the hearing of his appeal in the High Court and that, accordingly, the refusal of legal aid for such representation constitutes a violation of article 6 para. 3(c) of the Convention.        CONCLUSION   44.   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