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. 25648/94                           Timothy Robson                               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. 16-34) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-27). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and practice           (paras. 28-34). . . . . . . . . . . . . . . . . . .4   III. OPINION OF THE COMMISSION      (paras. 35-46) . . . . . . . . . . . . . . . . . . . . .7        A.    Complaint declared admissible           (para. 35). . . . . . . . . . . . . . . . . . . . .7        B.    Point at issue           (para. 36). . . . . . . . . . . . . . . . . . . . .7        C.    As regards Article 6 para. 3(c) of the Convention           (paras. 37-45). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 46). . . . . . . . . . . . . . . . . . . . .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 1962 and resides in Argyll, 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 27 June 1994 and registered on 14 November 1994.   6.    On 6 September 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 22 November 1995 and those of the applicant were received on 13 February 1996.   8.    On 15 May 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 17 May 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.   The applicant, along with two others, was charged on indictment with eight offences under the Misuse of Drugs Act 1971 ("the 1971 Act") and with two charges of reset. The applicant received legal aid from the Scottish Legal Aid Board ("S.L.A.B.") for the preparation of his defence and for legal representation at his trial.   17.   The applicant was represented at his trial in the High Court in Scotland by a solicitor and by counsel. During the trial the prosecution relied on certain statements made by the applicant during his questioning by police. The defence argued, in the presence of the jury, that certain of those statements were obtained through, inter alia, assaults, intimidation and deprivation. The prosecution disputed this and submitted that the statements had been fairly obtained. In his summing up to the jury, the trial judge directed the jury that before they could accept any such statements they must be satisfied of three matters: that the statements were in fact made, that any such statements were accurately recorded and that they were freely made and obtained. The trial judge then outlined the principles by which the jury should be guided in deciding whether statements were fairly obtained which involved balancing the public interest that crimes should be investigated and those who commit them brought to justice with the principle that the accused must be fairly dealt with. The jury were directed that if they felt that the statements were unfairly obtained then they should be excluded from the jury's consideration.   18.   On 5 April 1993 the jury found the applicant guilty on four of the charges under the 1971 Act and on one of the charges of reset. The judge sentenced the applicant to five terms of imprisonment to run concurrently - two sentences of 5 years, one sentence of 2 years, one sentence of 6 months and one sentence of 4 months. On the same day a forfeiture order was made in relation to the applicant's mother's car which the applicant had been using and in which certain quantities of drugs had been found.   19.   On 8 April 1993 the applicant lodged an intimation of his intention to appeal together with a note of appeal against conviction and sentence. The grounds of appeal, outlined in the note of appeal, challenged the severity of the sentence and noted that the applicant wished to apply for an appeal against sentence or "possibly" for a retrial on the charges of which he had been found guilty.   20.   On 4 May 1993 the transcript of the trial judge's summing up to the jury was filed. On 20 August 1993 the report of the trial judge on the trial was also filed pursuant to section 236A of the Criminal Procedure (Scotland) Act 1974. In that report, the trial judge described the evidence against the applicant, the reasons for the sentences given, including his consideration of mitigation offered on the applicant's behalf and, as regards the applicant's request for a retrial, stated that "during the trial no objections were made to the admission of any evidence".   21.   While the legal aid the applicant received for his trial would have covered legal advice in connection with his appeal including obtaining the opinion of counsel as to the appeal's chances of success, it did not cover legal representation for the appeal hearing and, for this, the applicant made a further application for legal aid on 6 May 1993.   22.   On 25 November 1993 the applicant's solicitors wrote to the S.L.A.B. requesting the granting of legal aid, advising that counsel had advised orally that the applicant's appeal was not stateable and notifying the S.L.A.B. that the date of the forthcoming appeal was 3 December 1993. On the same day the applicant's solicitor wrote to the applicant indicating that counsel did not consider that he had any ground of appeal whatsoever and that it was likely that he would have to represent himself at the hearing of his appeal.   23.   On 3 December 1993 the S.L.A.B. refused to grant legal aid on the basis that the S.L.A.B. did not consider that the applicant had shown substantial grounds for making the appeal and that it was not reasonable, in the circumstances of the case, that legal aid should be made available to the applicant. The S.L.A.B. indicated that, while they did not receive a written opinion from counsel in connection with the prospects of an appeal, the applicant's solicitor had informed the S.L.A.B. of counsel's oral opinion.   24.   When the appeal came on for hearing, on 3 December 1993, the High Court granted the applicant's solicitors and counsel leave to withdraw from acting for the applicant. An adjournment of the appeal hearing was also granted to a later date on the basis that on that date the applicant would be in a position to represent himself. The High Court also suggested that, if the applicant wished to continue his appeal, he should lodge amended grounds of appeal.   25.   Pursuant to complaints made by the applicant against the police who had interviewed him, the applicant was informed by letter dated 13 December 1993 that the Regional Prosecutor Fiscal did not intend initiating proceedings against any of the police officers concerned.   26.   On 6 January 1994, when the appeal again came on for hearing, the applicant obtained an adjournment for a month so that he could apply again for legal aid. On 3 February 1994 the case was again adjourned as the court had insufficient time to consider the appeal. The applicant had no success in obtaining legal aid and on the 2 March 1994 he presented his appeal in person. The applicant indicated that he had abandoned his appeal against conviction but that he wished to maintain his appeal against sentence. Having heard the applicant and considered the documents and information before it, the High Court refused the applicant's appeal.   27.   On 1 December 1995 the applicant was released from prison.   B.    Relevant domestic law and practice   1.    Criminal Appeals - Solemn proceedings   28.   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.   29.   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 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.   30.   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 the conviction and may affirm, vary or quash the sentence.   2.    Legal Aid for Criminal Appeals   31.   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.   32.   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.   33.   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).   34.   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   35.   The Commission has declared admissible the applicant's complaint about the refusal of legal aid for his criminal appeal.   B.    Point at issue   36.   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   37.   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; ..."   38.   The applicant submits that the refusal of legal aid meant that he felt he had to drop his appeal against conviction, prevented the proper presentation of his appeal against sentence 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 no. 300-B and 300-C).   39.   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.   40.   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 representatives, 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.   41.   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.   42.   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.   43.   It is further noted that the matter before the appeal court, being an appeal against sentence only, was the applicant's five concurrent terms of imprisonment - two sentences of 5 years, one sentence of 2 years, one sentence of 6 months and one sentence of 4 months and the Commission considers that the issue at stake was extremely important for the applicant.   44.   The Commission accepts that the fact that the applicant appealed against sentence only may have rendered his grounds of appeal less complex. It is also noted that the applicant drafted his grounds of appeal himself. However, it is recalled that the Court in Mr. Maxwell's application found that, although Mr. Maxwell's grounds of appeal were not complex and he drafted those grounds himself, the interests of justice required that he be represented because he was unable to competently address the appeal court on such legal issues without the services of a legal practitioner. 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. The Commission does not consider, in such circumstances, that it necessary to consider whether the refusal of legal aid for the appeal was the reason the applicant did not appeal against conviction.   45.   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   46.   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