CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1997

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 28891/95                       by John McATEER                       against the United Kingdom         The European Commission of Human Rights (First Chamber) sitting in private on 2 July 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 27 November 1994 by John McATEER against the United Kingdom and registered on 6 October 1995 under file No. 28891/95;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       17 February 1997 and the observations in reply submitted by the       applicant on 9 April 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a British citizen born in 1965 and is currently serving a sentence of imprisonment in Dungavel prison, Scotland.   he is represented before the Commission by Mr. Derick Williamson, a solicitor practising in Glasgow.         The facts as submitted by the parties may be summarised as follows.   Particular circumstances of the case         On 14 July 1994 the applicant was convicted by the High Court in Scotland of the offence of attempted extortion and of a contravention of the Bail Etc. (Scotland) Act 1980, the matters to which the first conviction referred having taken place while the applicant was on bail. The applicant was sentenced to two consecutive periods of imprisonment of six years and three months. He was legally aided and represented at the hearing.         The applicant appealed against conviction and sentence for attempted extortion, arguing that there was insufficient corroborated evidence to support his conviction and that his sentence was excessive.         The applicant applied to the Scottish Legal Aid Board ("S.L.A.B.") for legal aid for his appeal, submitting with his application a note from his counsel. The note from counsel stated that the appeal against conviction, which alleged that there was insufficient corroboration, was an appeal which had "merit". The note further stated that counsel considered six years imprisonment to be excessive, and that the appeal against sentence had good prospects of success.   However no reasons were given to substantiate these views. By a letter dated 26 October 1994, S.L.A.B. informed the applicant's solicitors that legal aid had been refused on the basis that there were no substantial grounds for the appeal and that it was not reasonable, in the particular circumstances of the case, that legal aid should be made available. The applicant requested S.L.A.B. to reconsider its decision. His solicitors were notified, by letter dated 20 January 1995, that the application for legal aid had been reconsidered, but that the decision remained the same.         On 18 January 1995, prior to the refusal of S.L.A.B. to alter their decision to refuse legal aid, there had been an appeal hearing before the High Court of Justiciary sitting as a Court of Appeal ("the High Court"). The applicant had no legal aid and claims that he was not represented at all during his appeal. However it appears from the documents and is submitted by the Government that the applicant was indeed represented by counsel on 18 January 1995.   At this hearing an application was made to the Court to allow the applicant to lodge additional grounds of appeal.   These additional grounds concerned an alleged misdirection of the jury regarding the combination of charges for which the applicant could be found guilty, a failure to warn the jury to treat with caution the evidence of a witness who had a poor command of English and a misdirection of the jury concerning the requirement of majority verdict for an acquittal.   The High Court allowed the applicant to lodge these additional grounds and the appeal hearing was continued over to a future date for further submissions and a further report from the trial judge.   The applicant's solicitors wrote to S.L.A.B. informing them that the appeal hearing on 18 January had been continued and asking them to reconsider the application for legal aid for the continued appeal.   S.L.A.B replied on 24 February 1995 seeking further information about why the appeal had been continued.   The applicant's solicitors supplied this information on 11 May 1995, enclosing the additional grounds of appeal and the trial judge's report. On 15 May 1995 S.L.A.B. reconsidered their decision and granted the applicant legal aid.         However   prior to the granting of legal aid, the continued appeal had been heard on 9 May 1995 by the High Court. The applicant represented himself at this hearing. The High Court rejected the applicant's initial ground of appeal relating to the sufficiency of corroboration and also rejected the additional grounds raised at the previous hearing.   Finally, the High Court rejected the applicant's appeal against sentence, stating that the sentence imposed was reasonable in light of the applicant's "formidable" list   of previous convictions.   Relevant domestic law and practice   Criminal Appeals - Solemn proceedings         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.         In an appeal, the appellant may ask the court to review an alleged miscarriage of justice in the proceeding 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).   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).         Pursuant to section 236A of the 1975 Act the trial judge must as soon as is reasonably practicable after receiving a copy of the notice of appeal, provide a report in writing giving his opinion on the case generally and on the grounds contained in the notice of appeal.         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 open to the judges at that 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 copy the same to the judges to read for themselves.         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 court may dismiss the appeal and affirm the verdict of the trial court.   In addition, the trial court verdict can be set aside either by the appeal court quashing the conviction, substituting an amended verdict of guilty or by authorising a new prosecution (section 254 of the 1975 Act).   Legal Aid for Criminal Appeals         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 normally extends to include consideration and advice by a lawyer and by counsel previously involved in the case 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.         To extend legal aid beyond this point a further application to S.L.A.B. is required.   This application will be granted on the fulfilling of 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 S.L.A.B will take into account, inter alia, any opinion completed by counsel as to the appeal's prospects of success.         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, then the court can adjourn the hearing and recommend that 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 English Court of Human Rights in the Granger application (Eur. Court HR, 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).   The Criminal Justice (Scotland) Act 1995 ("the 1995 Act")         The 1995 Act, which applies to appeals from convictions handed down on or after 26 September 1995, 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 the 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.   COMPLAINT         The applicant complains under Article 6 para. 3(c) of the Convention that he was refused legal aid for his appeal.   The applicant was obliged to represent himself and he states that he was unable to engage in legal argument or properly present his appeal.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 27 November 1994 and registered on 6 October 1995.         On 16 October 1996 the Commission decided to communicate the application to the respondent Government.         The Government's written observations were submitted on 17 February 1997, after an extension of the time-limit fixed for that purpose.   The applicant replied on 9 April 1997.   THE LAW         The applicant complains that his appeal hearing was unfair because due to a refusal of legal aid for his appeal he was obliged to appear unrepresented and he was unable to engage in legal argument or properly present his appeal.   He invokes Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, which 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;         The Government argue that in respect of the appeal hearing of 18 January 1995, although the applicant was refused legal aid, he was in fact represented by counsel and thus there was no breach of his rights under Article 6 (3)(c) (Art. 6-3-c) in respect of that hearing. With regard to the continued appeal hearing on 9 May 1995 the Government state that the applicant's solicitors failed to provide S.L.A.B. with requested information or inform them of the date of the hearing until 11 May 1995. The Government state that had S.L.A.B. been informed of the date for the continued hearing and been provided with the additional information, it is probable that legal aid would have ben granted for the hearing (S.L.A.B. did grant legal aid to the applicant on 15 May 1995, after the continued appeal hearing had taken place).   The Government submit that the applicant did not obtain legal aid for the continued appeal due to the failure of the applicant's solicitors to provide S.L.A.B. with certain information or inform them promptly of the date of the hearing.   The Government thus consider that the fault lies with the applicant's solicitors and that the Government's responsibility is not engaged.         The Government also submit that, as the system of legal aid for criminal appeals in Scotland as been changed pursuant to the decisions of the European Court of Human Rights in the Boner and Maxwell cases, that no useful purpose would be served by the continuation of this application, which should accordingly be struck out of the list.       The Commission recalls that pursuant to Article 30 (Art. 30) of the Convention it may strike a petition out of its list of cases where the matter has been resolved, or where it is no longer justified to continue the examination of the merits. In the present case the criminal proceedings concerning the applicant ended prior to the new legislation and legal aid scheme coming into force, and the new scheme has not assisted the applicant in any way.   Accordingly the matter has not been resolved and the Commission finds no other reason which would justify striking the petition out of the list of cases.         The Commission considers that the application raises issues of fact and law which are of such complexity that their determination should depend on an examination of the merits.   The application cannot therefore be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber