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. 24487/94                           Steven John Given                                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. 16-30) . . . . . . . . . . . . . . . . . . . . . . 3        A.    The particular circumstances of the case           (paras. 16-23). . . . . . . . . . . . . . . . . . . . 3        B.    Relevant domestic law and practice           (paras.   24-30) . . . . . . . . . . . . . . . . . . . 4   III. OPINION OF THE COMMISSION      (paras. 31-41) . . . . . . . . . . . . . . . . . . . . . . 6        A.    Complaint declared admissible           (para. 31). . . . . . . . . . . . . . . . . . . . . . 6        B.    Point at issue           (para. 32). . . . . . . . . . . . . . . . . . . . . . 6        C.    As regards Article 6 para. 3(c) of the Convention           (paras. 33-40). . . . . . . . . . . . . . . . . . . . 6             CONCLUSION           (para. 41). . . . . . . . . . . . . . . . . . . . . . 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 1970 and is currently serving a prison sentence in Edinburgh. He was represented before the Commission by John McLaughlin, a solicitor practising in Perth, Scotland.   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 and the applicant invokes Article 6 para. 3(c) of the Convention in this respect.   B.    The proceedings   5.    The application was introduced on 28 December 1993 and registered on 28 June 1994.   6.    On 6 April 1995 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 10 August 1995 after one extension of the time-limit fixed for this purpose. The applicant's observations in reply were received on 2 October 1995. The Government submitted further observations on 22 November 1995. On 5 December 1995 the Commission granted the applicant legal aid for the representation of his case.   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 received.   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.   Having been tried on indictment before a judge and jury, the applicant (together with a co-accused) was found guilty on 18 May 1993 by the High Court of Justiciary in Scotland of attempted murder and breach of the peace. The trial judge had available to him a note of the applicant's previous convictions indicating four previous convictions for assault and one for theft, none of which convictions resulted in a custodial sentence. The trial judge also had a social enquiry report on the applicant's personal circumstances available to him. The applicant was sentenced to six years imprisonment for attempted murder and to three months imprisonment for breaching the peace, the sentences to run concurrently from the date of sentencing. The applicant was legally represented at his trial.   17.   Counsel's opinion dated 2 May 1993 indicated that there was no realistic prospect of a successful appeal. On 28 May 1993 the applicant lodged an intimation of intention to appeal against both conviction and sentence. The applicant applied to the Scottish Legal Aid Board ("S.L.A.B.") for legal aid for his appeal but this was refused on the grounds that the applicant had not satisfied the S.L.A.B. that he had substantial grounds for making the appeal.   18.   On 6 August 1993 the applicant lodged a minute of abandonment of his appeal against conviction and indicated his intention to proceed with his appeal against sentence. On 13 August 1993 he also lodged an application for an extension of time for appealing in relation to sentence only and the High Court granted that extension on 16 August 1993.   19.   On 17 August 1993 the applicant's solicitors lodged a note of appeal against sentence only, which note detailed the grounds of the applicant's appeal. Those grounds referred to the relatively minor nature of the applicant's previous convictions and to the facts that the applicant had been recovering from an injury at the time of the incident, that the trial judge had failed to differentiate between the actions of the applicant and his co-accused, that the evidence clearly showed that the victim was behaving in an aggressive and quarrelsome manner and that the evidence clearly showed that the assault was in no way premeditated.   20.   The trial judge prepared, pursuant to section 236A of the Criminal Procedure (Scotland) Act 1975, a report giving his opinion on the grounds of appeal and pointed out that on the evidence it was not possible to distinguish between the applicant and his co-accused as regards the parts they had played in the offence itself and disagreed that the evidence indicated that the applicant took a much more restricted part in the assault than his co-accused.   21.   The trial judge also noted that, though the applicant had a relatively minor record of previous offences, four out of five of these convictions were for assault. The trial judge went on to state that the records of the two defendants were not markedly different and that, while the victim had made a nuisance of himself, the trial judge felt justified in describing the offence as "a brutal and highly destructive attack of a cowardly character on a seriously drunk man". Finally, the trial judge indicated that he agreed that there was no indication that the assault concerned was premeditated or that any weapon of any sort was used.   22.   The applicant represented himself at his appeal. The High Court, in a three page judgment dated 5 November 1993, dismissed the appeal, referring to the points of appeal which the applicant set out in his note of appeal, to the applicant's submission before the High Court and to the opinion of the trial judge.   23.   The High Court stated that, in determining the appeal, regard was had to the fact that it was the trial judge who heard the evidence, that the charge was one which the jury accepted as attempted murder and that it was on that charge that the jury decided to convict the applicant. It was noted that a charge of attempted murder is a very serious charge and that the injuries which were described in the trial judge's report fully justified a conviction for that offence. The High Court concluded that the sentence which the trial judge imposed could not reasonably be said to be excessive, having regard to the part which the applicant played in the incident, the degree and severity of the injuries and the nature of the charge of which he was convicted.   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 against conviction and/or sentence granted by statute (section 228 of the Criminal Procedure (Scotland) Act 1975 - "the 1975 Act"). No leave to appeal is therefore required.   25.   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. 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 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.   26.   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.   2.    Legal Aid for Criminal Appeals   27.   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.   28.   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 prepared by counsel as to the appeal's prospects of success.   29.   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 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).   30.   The Criminal Justice 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   31.   The Commission has declared admissible the applicant's complaint about the refusal of legal aid for his criminal appeal.   B.    Point at issue   32.   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   33.   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; ..."   34.   The applicant submits that the refusal of legal aid prevented the proper presentation of his appeal (particularly in relation to certain complex grounds of appeal such as the extent of his involvement in the assault) and thereby led to his appeal hearing being 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 nos. 300-B and 300-C).   35.   The Commission recalls the above-mentioned Boner and Maxwell cases. Mr Boner had been convicted on charges of assault, armed robbery and of wilful damage together with 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.   36.   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.   37.   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.   38.   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 similar reasons as in those cases, that it is not in dispute that the applicant lacked sufficient means to pay for legal assistance for his appeal and that the applicant was unrepresented for his appeal hearing.   39.   It is further noted that the matter before the appeal court, being an appeal against sentence, was the applicant's two concurrent sentences of six years imprisonment for attempted murder and three months imprisonment for breaching the peace and the Commission considers that the issue at stake was of importance for the applicant. The Commission accepts that the fact that the applicant was appealing against sentence only may have rendered his grounds of appeal less complex. It is also noted that the applicant's solicitor drafted the grounds of appeal. However, it is also recalled that the Court in Mr. Boner's application found that, although Mr. Boner's grounds of appeal were not complex and although he understood the grounds of appeal which had been drafted by his legal representative, those grounds required a certain legal skill and expertise to present to the appeal court. Equally, the Commission considers that the grounds of appeal in the present case also required a certain legal skill and expertise to present to the appeal court.   40.   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   41.   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