Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> MAXWELL v. THE UNITED KINGDOM - 18949/91 [1994] ECHR 38 (28 October 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/38.html
Cite as: [1994] ECHR 38, (1995) 19 EHRR 97, 19 EHRR 97
[New search] [Contents list] [Help]
In the case of Maxwell v. the United Kingdom*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A**, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Macdonald,
Mr J. De Meyer,
Mrs E. Palm,
Mr J.M. Morenilla,
Mr F. Bigi,
Sir John Freeland,
Mr A.B. Baka,
Mr J. Makarczyk,
and also of Mr H. Petzold, Acting Registrar,
Having deliberated in private on 21 April and
21 September 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 31/1993/426/505. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court on 12 July 1993 by the
European Commission of Human Rights ("the Commission") and on
3 August 1993 by the Government of the United Kingdom of Great Britain
and Northern Ireland ("the Government"), within the three-month period
laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of
the Convention. It originated in an application (no. 18949/91) against
the United Kingdom lodged with the Commission under Article 25
(art. 25) on 25 March 1991 by a British citizen, Mr Peter Maxwell.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the United Kingdom
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the Government's application referred to Article 48
(art. 48). The object of the request and the application was to obtain
a decision as to whether the facts of the case disclosed a breach by
the respondent State of its obligations under Article 6 para. 3 (c)
(art. 6-3-c).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant indicated in a
letter postmarked 22 July 1993 that he did not wish to take part in the
proceedings. On 17 November 1993 he submitted a claim for just
satisfaction (Rule 50 para. 1, read together with paragraph (k) of
Rule 1).
3. On 23 August 1993, the President of the Court decided that in
the interests of the proper administration of justice this case and the
case of Boner v. the United Kingdom (no. 30/1993/425/504) should be
heard by the same Chamber (Rule 21 para. 6).
The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 25 August 1993, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr R. Macdonald, Mr J. De Meyer, Mrs E. Palm,
Mr J.M. Morenilla, Mr F. Bigi, Mr A.B. Baka and Mr J. Makarczyk
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government and
the Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on 10 January 1994.
On 15 April 1994 the Secretary to the Commission informed the Registrar
that the Delegate would not submit written observations in reply.
5. Notwithstanding his stated intention not to participate in the
proceedings (see paragraph 2 above), on 23 February 1994 the applicant,
having obtained the President's leave, lodged written observations in
reply to the Government's memorial.
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
18 April 1994. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr I. Christie, Foreign and Commonwealth Office, Agent,
Lord Rodger of Earlsferry, QC, Lord Advocate,
Mr R. Reed, Counsel,
Mr I. Jamieson,
Mr A. Dickson, Advisers;
(b) for the Commission
Mr L. Loucaides, Delegate.
The Court heard addresses by Mr Loucaides and Lord Rodger as
well as replies to its questions.
AS TO THE FACTS
I. Circumstances of the case
7. The applicant, Mr Peter Maxwell, is a British citizen born in
1944. He lives in Perth, Scotland.
On 14 or 15 February 1990 two masked men broke into a private
house, situated in Stevenston, Scotland. They assaulted the occupant
causing him severe injury and permanent disfigurement.
On 19 February 1990 Mr Maxwell was arrested together with
another man. They were indicted on a charge of assault. They were
both held in custody until trial started on 28 May 1990 in the High
Court of Justiciary at Kilmarnock, Scotland.
8. On 29 May 1990 the jury found the applicant guilty of the
charge. Taking account of his bad criminal record, the judge sentenced
him to five years' imprisonment.
Legal aid had been made available to the applicant for the
preparation of his defence and for his representation by counsel at the
trial.
9. After conviction, Mr Maxwell instructed a new firm of
solicitors, who then asked counsel who had represented him at the trial
to advise on the prospects of an appeal. Having received counsel's
advice, the solicitors informed the applicant that they could not
identify any basis for an appeal and accordingly could not act for him.
Their advice to the applicant was in accordance with proper
professional practice (see paragraph 20 below).
The applicant then sought to instruct another firm of
solicitors but they were also unwilling to act for him.
10. On 31 July 1990, notwithstanding the advice which had been
given to him, the applicant lodged with the court a note of appeal
setting out grounds which he formulated himself.
The grounds of appeal can be summarised as follows:
(a) the applicant had not been able to substantiate his
contention that a crucial witness was giving false evidence against him
because to do so would have involved revealing to the jury a previous
conviction;
(b) a number of witnesses had not been called by the Crown or
by the Defence;
(c) crucial evidence had been entirely fabricated;
(d) the verdict of the jury was not supported by the evidence;
(e) his legal advisers had disregarded instructions which he
had given them and had not defended him in accordance with his
instructions;
(f) there had been insufficient evidence to establish that the
assault had resulted in the victim's permanent disfigurement.
11. The applicant subsequently instructed another firm of
solicitors and obtained an adjournment of the hearing of his appeal.
However, shortly before the adjourned hearing, those solicitors
informed the applicant that they could no longer act for him in his
appeal and that they were unable to find any counsel who was willing
to present the appeal. Such refusal by counsel was in accordance with
the relevant rule of professional practice (see paragraph 20 below).
The applicant was granted a further adjournment of the hearing
of his appeal.
12. Mr Maxwell instructed yet another firm of solicitors. On
17 December 1990 they lodged an application for legal aid to pay for
representation at the hearing of the appeal with the Scottish Legal Aid
Board ("the Board"). At the Board's request, they sought the advice
of a new counsel on the prospects of success of the appeal.
In an opinion dated 10 January 1991 in which he considered the
grounds of appeal formulated by the applicant, counsel concluded that
there was "no ground of appeal against conviction and no prospects of
appealing successfully against sentence". Mr Maxwell's solicitors
submitted to the Board that their client should nonetheless be granted
legal aid in view of the lengthy sentence which he had received.
13. On 25 January 1991, the Board informed Mr Maxwell that his
application had been refused as the Board was not satisfied, as it was
required to be under the relevant legislation (see paragraph 23 below),
that there were substantial grounds for making an appeal and that it
was reasonable that legal aid should be made available. His solicitors
advised him that he should abandon his appeal but he chose not to
accept their advice.
Following the refusal of legal aid, the solicitors declined to
continue to act for the applicant. A further adjournment of the
hearing was then granted. The applicant decided to proceed with his
appeal personally.
14. On 21 March 1991, the applicant addressed the High Court of
Justiciary on his grounds of appeal. The Crown was represented by
counsel but there is no indication that he intervened at the hearing.
Presiding over the three-judge bench was the Lord Justice Clerk, one
of the two most senior judges in Scotland.
On the same date the court dismissed the appeal. In his
judgment the Lord Justice Clerk noted that detailed grounds of appeal
had been put forward and that the applicant had addressed the court at
some length upon those grounds. The judgment gave full consideration
to each of the grounds of appeal, but was satisfied that they had no
substance and that there had been no miscarriage of justice.
II. Relevant domestic law and practice
A. Appeals in criminal proceedings
15. The following details relate solely to the "solemn procedure",
under which trial proceeds upon an indictment before a judge sitting
with a jury.
16. A person convicted of a criminal charge in Scotland 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 required.
17. In an appeal, the appellant may ask the court to review any
alleged miscarriage of justice in the proceedings in which he was
convicted (section 228(2) of the 1975 Act). What is a miscarriage of
justice is not defined by statute, but the term covers such matters as
misdirections by the trial judge or wrong decisions on the
admissibility of evidence, as well as breaches of natural justice. In
any appeal, the nature of the alleged miscarriage of justice must be
specified in the grounds of appeal contained in a written note of
appeal, lodged within eight weeks of the date when sentence was 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 note of appeal unless,
exceptionally and on cause shown, he obtains the leave of the court to
do so (section 233(3) of the 1975 Act).
18. An appeal is heard by a bench of not less than three judges.
At the hearing of the appeal the appellant or his counsel, if he is
represented, makes submissions to the court in support of the grounds
of appeal. Appellants who do not have legal representation are not
required to make an oral presentation: they are allowed, however, to
read any material that they may have prepared or collected.
The Crown is always represented by counsel at the hearing of
criminal appeals. Their duty 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 or not favourable to the prosecution.
19. In disposing of an appeal against conviction the court may
dismiss it and affirm the verdict of the trial court; set aside the
verdict of the trial court either by quashing the conviction or by
substituting an amended verdict of guilty; or set aside the verdict of
the trial court and authorise a new prosecution (section 254 of the
1975 Act).
B. Representation of appellants by counsel
20. Counsel in Scotland are vested with the public office of
advocate, which imposes a number of duties upon them, among which is
the duty not to accept instructions to act in circumstances where, in
their professional opinion, a case is manifestly unfounded, even if the
client is able to pay for such representation.
The basis of this rule of professional conduct is that counsel
cannot properly occupy the time of the court in advancing arguments
which he knows to be without foundation.
C. Legal aid for criminal appeals
21. The administration of legal aid in Scotland is the
responsibility of the Scottish Legal Aid Board, an independent body
whose members are appointed by the Secretary of State for Scotland from
among counsel, solicitors and other persons with experience of the
courts.
22. Legal aid which has been made available for a trial on
indictment extends, in the case of conviction, to include consideration
and advice by a solicitor on the question of appeal. An opinion on the
prospect of the appeal can also be obtained from the counsel who acted
at the trial.
Under special provisions legal aid is also available to enable
the solicitor to prepare and lodge the statutory intimation of
intention to appeal and, where appropriate, arrange for the opinion of
counsel to be obtained as to the prospects of the appeal, and for the
drafting and lodging of a note of appeal setting out the grounds of
appeal.
23. To extend the legal aid beyond this point a further application
by the solicitor to the Legal Aid Board is required. This should
include confirmation that the applicant's solicitor is willing to act
in the appeal as well as a statement of the arguments in support of the
grounds of appeal and a note of the solicitor's reasons for believing
that the grounds of appeal are substantial and that legal aid should
be made available.
The application will be granted if the Board is satisfied that
the applicant is financially eligible, that "he has substantial grounds
for making the appeal and it is reasonable in the particular
circumstances of the case that legal aid should be made available to
him" (Legal Aid (Scotland) Act 1986, section 25(2)).
24. The Board takes its decisions on the basis of the documents
before it, which normally include copies of the Note of Appeal, the
trial judge's charge to the jury and the trial judge's report on the
case. The views expressed by the applicant's solicitor and counsel
will also be taken into account.
25. Although the legislation does not provide for a formal review,
the Board will, as a matter of practice, when requested to do so,
reconsider an application which has been refused. Such reconsideration
involves the application being referred to an external reporter, who
was not involved in the Board's earlier decision and who reports to the
Board on the merits of the application. Otherwise, Board decisions are
subject to ordinary judicial review.
26. If the appellant proceeds with his appeal without legal aid and
the court considers that, prima facie, he may have substantial grounds
for taking the appeal and it is in the interests of justice that he
should have legal representation in arguing these grounds, then the
court must immediately adjourn the hearing and make a recommendation
that the Board's decision be reviewed.
27. The practice of the court in this regard was formalised
following the judgment of the European Court of Human Rights in Granger
v. the United Kingdom of 28 March 1990 (Series A no. 174) by a
Practice Note to this effect issued on 4 December 1990 by the Lord
Justice General to all Appeal Court Chairmen and Clerks:
"In any appeal where legal aid has been refused and the court
considers that prima facie an appellant may have substantial
grounds for taking the appeal and it is in the interests of
justice that the appellant should have legal representation in
arguing his grounds, the court shall forthwith adjourn the
hearing and make a recommendation that the decision to refuse
legal aid should be reviewed."
28. Where such a recommendation is made, legal aid is automatically
granted. To this end, the Manual of Procedure of the Scottish Legal
Aid Board provides in paragraph 6.12 that:
"In these circumstances the Board will receive a letter from
the High Court of Justiciary giving the details of the case
where they are recommending a re-consideration of the decision
to refuse. If we are asked to re-consider a decision in these
circumstances, then the application should be granted
automatically. The case need not be seen by a reporter or
Board solicitor, but ought to be referred to the Assistant
Manager for the appropriate action."
PROCEEDINGS BEFORE THE COMMISSION
29. Mr Maxwell lodged his application (no. 18949/91) with the
Commission on 25 March 1991. He relied on Article 6 paras. 1 and 3 (c)
(art. 6-1, art. 6-3-c) of the Convention, alleging that he had been
refused legal aid. He also complained of the conduct of his defence
by his legal representatives and of a number of other matters arising
out of his trial. The applicant made further submissions under
Article 13 (art. 13).
30. On 2 April 1992, the Commission found all the complaints
inadmissible with the exception of the first one which was declared
admissible on 9 December 1992. In its report of 4 May 1993
(Article 31) (art. 31), it concluded, by seventeen votes to two, that
there had been a violation of Article 6 para. 3 (c) (art. 6-3-c).
The full text of the Commission's opinion and of the dissenting
opinion contained in the report is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar. For practical reasons this annex will appear
only with the printed version of the judgment (volume 300-C of Series
A of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
31. At the hearing on 18 April 1993, the Government requested the
Court to hold that there had been no violation of the applicant's
rights under Article 6 (art. 6).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 3 (c) (art. 6-3-c) OF THE
CONVENTION
32. The applicant who had been sentenced to five years'
imprisonment complained that he had been refused legal aid for his
appeal against conviction in breach of 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;
... "
This contention was accepted by the Commission but disputed by
the Government.
33. Sub-paragraph (c) of Article 6 para. 3 (art. 6-3-c) attaches
two conditions to an accused's right to receive legal aid. The first,
"lack of sufficient means to pay for legal assistance", is not in
dispute in the present case. The only issue before the Court is
therefore whether the "interests of justice" required that the
applicant be granted such assistance free.
34. In this connection, the Court reiterates that the manner in
which paragraph 3 (c) of Article 6 (art. 6-3-c) is to be applied in
relation to appellate or cassation courts depends upon the special
features of the proceedings involved; account must be taken of the
entirety of the proceedings conducted in the domestic legal order and
of the role of the appellate or cassation court therein (see, inter
alia, the Monnell and Morris v. the United Kingdom judgment of
2 March 1987, Series A no. 115, p. 22, para. 56).
35. The Scottish system of criminal appeals grants all persons a
right to appeal. No special leave is required (see paragraph 16
above). The High Court of Justiciary, in its appellate function, has
wide powers to dispose of appeals (see paragraph 19 above). The
procedure is not limited to specific grounds; any alleged miscarriage
of justice may be challenged (see paragraph 17 above). Moreover, the
proceedings always involve an oral hearing at which the Crown is
represented (see paragraph 18 above).
However, not all appellants who qualify on financial grounds
obtain legal assistance. An independent body (the Scottish Legal Aid
Board) decides on the basis of a file whether an applicant has
substantial grounds for taking an appeal and whether it is in the
interests of justice that he should have legal representation
(see paragraphs 21-26 above).
36. According to the Commission the interests of justice required
that Mr Maxwell be granted legal assistance for the hearing of his
appeal on 21 March 1991 before the High Court of Justiciary. It
referred to the Granger case previously cited, where the Court had
found a violation, and concluded that there were substantial
similarities between Granger and the present case.
37. The Government sought to distinguish the two cases. In their
contention, the appeal court in Granger, after hearing the appellant's
submissions, considered that there was a point of substance which
required further examination. Counsel for the Crown was required to
present a long and elaborate argument, which the appellant could
neither understand nor respond to. None of these features is to be
found in the present case.
The Government further noted that the applicant was not obliged
to address the court at the oral hearing and that counsel for the Crown
does not appear to have made submissions before it.
In addition, Mr Maxwell could not, in any event, have found
counsel willing to represent him, in view of the rules of professional
ethics which impose a duty on counsel not to act for an appellant where
they are satisfied that he had no proper basis for bringing an appeal
(see paragraph 20 above).
Furthermore, as a consequence of the Granger judgment, a
safeguard had been introduced. The Practice Note by the Lord Justice
General, dated 4 December 1990, taken in conjunction with the practice
of the Scottish Legal Aid Board (see paragraphs 27 and 28 above),
ensures that, in any appeal where legal aid has been refused, such aid
is automatically granted where the court has reached the conclusion
that, prima facie, an appellant may have substantial grounds for taking
the appeal and that it is in the interests of justice that he should
have legal representation in arguing these grounds. Accordingly, under
the new system, as soon as it becomes clear that an unrepresented
appellant has a point which appears to be of substance, the appeal
court must adjourn the appeal to enable the appellant to obtain
representation and legal aid will in fact be granted. The effect is
thus that there can be no repetition of the unfairness which was found
to have occurred in the Granger case.
38. The Court notes that, as the Government pointed out, there are
indeed differences between the two cases. In addition, the
introduction of a new practice more favourable to the unrepresented
appellant is undoubtedly a positive development.
The legal issues in this case may not have been particularly
complex. Nevertheless, that Mr Maxwell had himself formulated the
grounds for his appeal (see paragraph 10 above) and that counsel was
not prepared to represent him (see paragraph 37 above) does not alter
the fact that without the services of a legal practitioner he was
unable competently to address the court on these legal issues and thus
to defend himself effectively (see, mutatis mutandis, the Pakelli v.
Germany judgment of 25 April 1983, Series A no. 64, p. 18, para. 38).
Moreover, the appeal court, as stated, had wide powers to
dispose of his appeal and its decision was final. Of even greater
relevance, however, the applicant had been sentenced to five years'
imprisonment. For Mr Maxwell therefore the issue at stake was an
extremely important one.
39. The Government maintained that a finding of a violation in this
case might have as its consequence the ending of the automatic right
of appeal thereby effectively diminishing the rights of the accused.
40. It is not the Court's function to indicate the measures to be
taken by national authorities to ensure that their appeals system
satisfies the requirements of Article 6 (art. 6). Its task is solely
to determine whether the system chosen by them in this connection leads
to results which, in the cases which come before it, are consistent
with the requirements of Article 6 (art. 6) (see, inter alia, the
Quaranta v. Switzerland judgment of 24 May 1991, Series A no. 205,
p. 15, para. 30).
The situation in a case such as the present, involving a heavy
penalty, where an appellant is left to present his own defence
unassisted before the highest instance of appeal, is not in conformity
with the requirements of Article 6 (art. 6).
41. 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 Court considers
that the interests of justice required that the applicant be granted
legal aid for representation at the hearing of his appeal.
In conclusion, there has been a violation of paragraph 3 (c)
of Article 6 (art. 6-3-c).
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
42. Article 50 (art. 50) of the Convention provides as follows:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
Under this provision Mr Maxwell sought compensation for alleged
damage in an amount to be fixed by the Court but in excess of £10,000.
In the applicant's submission, such sum should serve as compensation
for three years and four months spent in prison as a result of an
unfair trial. No claim for costs was filed.
43. The Court agrees with the Government that any non-pecuniary
damage caused is sufficiently compensated by a finding that there had
been a breach of Article 6 (art. 6). As far as any alleged pecuniary
damage is concerned, the Court notes that it cannot speculate as to the
outcome of the appeal had legal aid been granted. It therefore rejects
the claim in its entirety.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of paragraph 3 (c) of
Article 6 (art. 6-3-c) of the Convention;
2. Dismisses the claim for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 28 October 1994.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Acting Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the concurring
opinions of Mr De Meyer and Sir John Freeland are annexed to this
judgment.
Initialled: R. R.
Initialled: H. P.
CONCURRING OPINION OF JUDGE DE MEYER
My reasoning in Boner v. the United Kingdom (judgment of
28 October 1994, Series A no. 300-B) also applies to the present case.
CONCURRING OPINION OF SIR JOHN FREELAND
1. I have voted with the other members of the Court for the
finding that there has been a violation of paragraph 3 (c) of Article 6
(art. 6-3-c), but the reasoning which has led me to this conclusion has
in certain respects differed from theirs.
2. On the one hand, the material before the Court has to my mind
gone far to demonstrate that the possibility of Mr Maxwell's having in
fact suffered any substantive injustice by virtue of his lack of legal
representation at the hearing of his appeal is extremely remote. It
was accepted by all the solicitors and counsel who were instructed on
his behalf at the time that his appeal had no likelihood of success;
and the Scottish Legal Aid Board had refused his application for legal
aid for the appeal because it was not satisfied that there were
substantial grounds for making the appeal. He nevertheless exercised
the unfettered right of appeal to which every person convicted of a
criminal charge in Scotland is entitled. The appellate court judges
would have been provided, well in advance of the hearing, with the
appellant's written grounds of appeal, to which no answers were
submitted by the prosecution, and with the other papers in the case.
They would have known in advance that the appellant was to be
unrepresented. In their prior consideration of the matter and at the
hearing itself they would have taken particular care to determine
whether any of the grounds advanced by him, however inexpertly argued,
might raise a point of substance. In accordance with long tradition,
they would have been at pains to ensure that he, as an appellant in
person, was treated with courtesy and consideration and was not placed
in a humiliating or distressing position as a result of his lack of
legal expertise. Counsel for the Crown, who apparently took no active
part in the hearing, would have been under a duty to draw to the
court's attention any substantial arguments of which he was aware that
might weigh in the appellant's favour. Lastly, if at any stage the
court had concluded that Mr Maxwell might have had substantial grounds
for taking the appeal, then, in conformity with the practice introduced
in the wake of the Granger (1) case, it would have immediately
adjourned the hearing and legal assistance would have been provided.
_______________
(1) Granger v. the United Kingdom judgment of 28 March 1990,
Series A no. 174.
_______________
3. On the other hand, even if, as I believe, no substantive
injustice has been established, that does not dispose of the question
whether, in the words of sub-paragraph 3 (c) of Article 6 (art. 6-3-c),
"the interests of justice" required that Mr Maxwell should be given
free legal assistance for the hearing of his appeal. Justice should
not only be done, it should also be seen to be done. The appeal raised
various issues of some complexity and Mr Maxwell's conviction had led
to the imposition of a sentence of five years' imprisonment. As
regards the view taken by Mr Maxwell's solicitors and counsel and by
the Legal Aid Board of the prospects of success of an appeal, lawyers
may of course disagree; and it was clear from the pleadings of the
Government themselves that there have been cases in which legal aid has
been refused yet counsel has subsequently appeared for an appellant and
won his appeal. More importantly, the Crown was represented at the
hearing of the appeal (as it is in all comparable cases) by counsel who
was present and able to advance a legal argument if called upon by the
court to do so. Admittedly he was not called upon; but that might be
simply because the absence of legal assistance left Mr Maxwell unable
to persuade the court that he had an argument which required a
response. Given that there was a legal issue to be addressed on
Mr Maxwell's appeal and that, having regard to the severity of his
sentence, so much was at stake for him, I am satisfied that his lack
of legal representation for the hearing, when counsel for the Crown was
present, produced at least the appearance of injustice.
4. I have therefore, on balance, concluded that the "interests of
justice" should have been regarded as requiring the grant to him of
free legal assistance for the hearing of his appeal and that failure
to grant such assistance amounted, in the circumstances, to a violation
of Article 6 para. 3 (c) (art. 6-3-c).