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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> BONER v. THE UNITED KINGDOM - 18711/91 [1994] ECHR 36 (28 October 1994) URL: http://www.bailii.org/eu/cases/ECHR/1994/36.html Cite as: [1994] ECHR 36, (1995) 19 EHRR 246, 19 EHRR 246

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In the case of Boner 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 30/1993/425/504. 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. 18711/91) against

the United Kingdom lodged with the Commission under Article 25

(art. 25) on 4 April 1991 by a British citizen, Mr Anthony Boner.

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 stated that he

wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30).

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 Maxwell v. the United Kingdom (no. 31/1993/426/505) 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,

the applicant's lawyer 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

applicant's memorial on 31 December 1993 and the Government's memorial

on 10 January 1994. On 5 April 1994 the Government submitted their

written reply to the applicant's claims for just satisfaction under

Article 50 (art. 50) of the Convention. On 15 April 1994 the Secretary

to the Commission informed the Registrar that the Delegate would not

submit written observations in reply.

5. 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;

(c) for the applicant

Ms R. Rae, QC, Counsel,

Ms A.M. Chisholm, Solicitor.

The Court heard addresses by Mr Loucaides, Lord Rodger and

Ms Rae as well as replies to its questions.

AS TO THE FACTS

I. Circumstances of the case

6. The applicant, Mr Anthony Boner, is a British citizen born in

1960. He lives in Glasgow, Scotland.

On 14 December 1989 three masked men, armed with a shotgun and

a knife, carried out a robbery at a post office in Glen Village,

Falkirk, Scotland, in the course of which they assaulted three

post-office employees. They also caused damage to a motor car.

Following investigations, Mr Boner and two other men were

arrested and remanded in custody. The applicant was indicted on a

charge of assault and armed robbery, a charge of wilful damage and

three charges relating to firearms. Between 29 March and 10 April 1990

he stood trial in the High Court of Justiciary sitting in Edinburgh.

7. The applicant received legal aid for the preparation of his

defence and for his representation by counsel at the trial.

8. During the trial a prosecution witness, Mrs G., entered the

courtroom prior to giving evidence and spoke to one of the applicant's

co-accused, against whom charges had been dropped. When Mrs G. was

called to give evidence, the applicant's counsel objected on the basis

of her earlier presence in court. The trial judge adjourned the case

and instructed prosecuting counsel to make further inquiries into the

matter so that it could be determined whether Mrs G.'s attendance was

due to any negligence or failure on the part of the Crown. Prosecuting

counsel informed the judge that inquiries had revealed no fault on the

part of anyone for whom the Crown bore responsibility. This was not

disputed by the applicant's counsel, who, moreover, was unable to give

any indication as to how Mrs G.'s evidence could be affected by her

earlier presence in court. The trial judge accordingly took the view

that no injustice would be done by Mrs G.'s examination. Finding that

the relevant legal conditions were satisfied (see paragraph 17 below),

he therefore exercised his discretion and permitted her to give

evidence. Subsequently, counsel for the applicant had the opportunity

to cross-examine Mrs G. on the matter of her attendance in court.

In her evidence, Mrs G. stated that the applicant had been at

her home the evening before the robbery and had spoken of robbing the

post office. The following morning he had left the house and returned

later with a bag, in a state of nervousness. Other evidence against

the applicant included the fact that a shotgun and various items stolen

from the post office were found on the applicant's premises. In

addition, a different witness identified Mr Boner as being one of the

robbers and Mrs G.'s statement was supported by her 9-year-old

daughter.

9. The jury found the applicant guilty on all the charges. Taking

account of his numerous previous convictions, the judge sentenced him

to eight years' imprisonment.

10. On 17 April 1990 the applicant, through his solicitor, lodged

an intimation of intention to appeal against conviction.

11. Mr Boner instructed new solicitors, who asked a different

counsel to advise on the prospects of an appeal and to draft a note of

appeal.

In his opinion dated 10 June 1990 counsel stated his view that

the only possible ground of appeal related to the "admissibility of the

evidence of Mrs G." and to the question "that the trial judge erred in

exercising discretion in allowing her to be present". However, he

conceded that he had not been provided with sufficient information to

be able properly to base an opinion or to frame grounds of appeal.

Notwithstanding this acknowledgement he did draft a note of appeal

which contained six grounds, the first two of which concerned the trial

judge's decision to admit the witness. This note of appeal was filed

by the applicant's solicitors on 13 June 1990.

12. Up to this point all the work had been covered by the legal aid

granted for the trial. An application to extend legal aid to the

appeal proceedings had been submitted in May 1990. On 25 July 1990 the

Scottish Legal Aid Board ("the Board") asked the applicant to provide

an opinion from counsel on the prospects of success. The earlier

opinion dated 10 June 1990 was accordingly forwarded to the Board,

together with a supplementary opinion from the same counsel dated

6 September 1990. In this latter opinion counsel reiterated the view

that the appeal rested on the question whether Mrs G.'s evidence was

admissible. However, he again stated that he had not been provided

with sufficient material on which to assess the merits of the appeal.

"I regret meantime I am unable to answer the fundamental question in

this case", he concluded.

13. On 27 September 1990 the applicant's solicitors informed the

Board by telephone that counsel had finally decided that he could not

support the application for legal aid or the appeal; that they were of

the same view; and that, consequently, they could no longer act for the

applicant. The terms of that telephone call were confirmed in a letter

dated 2 November 1990 from the solicitors to the Board.

14. On 14 November 1990 the Scottish Legal Aid Board notified

Mr Boner's solicitors that his application for legal aid had been

refused as the Board was not satisfied, as it was required to be under

the relevant legislation (see paragraph 26 below), that he had

substantial grounds for taking an appeal and that it was reasonable

that he should receive legal aid. In a letter of 11 December 1990 to

the applicant the Board added that it could not see any merit in the

appeal. Despite the advice of his solicitors and counsel, Mr Boner

decided to proceed with the appeal.

15. The applicant, who had no legal knowledge and had no assistance

with his submissions, presented his own case on 24 January 1991 before

the High Court of Justiciary, sitting in Edinburgh and acting as an

appellate court. The Crown was represented by counsel. There is no

indication in the record that the court required counsel for the Crown

to address it.

16. The appeal court considered the first two grounds of appeal

relating to Mrs G. and held that these were ill-founded and that the

trial judge had approached the matter properly. As the applicant did

not address the court on the remaining grounds of appeal, these were

not considered by the court. It did however examine other points

raised by the applicant, but reached "the clear conclusion that there

was no miscarriage of justice in the case". The appeal against

conviction was unanimously dismissed.

II. Relevant domestic law and practice

A. Presence of witness in court

17. Under Scots law, a witness who has been present in court

without the court's permission and without consent from the opposite

party may still be allowed to give evidence provided that "it appears

to the court that the presence of the witness was not the result of

culpable negligence or criminal intent, and that the witness had not

been unduly instructed or influenced by what took place during his

presence, or that injustice will not be done by his examination"

(section 140 of the Criminal Procedure (Scotland) Act 1975 -

"the 1975 Act").

B. Appeals in criminal proceedings

18. The following details relate solely to the "solemn procedure",

under which trial proceeds upon an indictment before a judge sitting

with a jury.

19. A person convicted of a criminal charge in Scotland has an

automatic right of appeal granted by statute (section 228 of the

1975 Act). No leave to appeal is required.

20. 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).

21. 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.

22. 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).

C. Representation of appellants by counsel

23. 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.

D. Legal aid for criminal appeals

24. 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.

25. 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.

26. To extend 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)).

27. 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.

28. 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.

29. 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, the court

must immediately adjourn the hearing and make a recommendation that the

Board's decision be reviewed.

30. 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."

31. 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

32. Mr Boner applied to the Commission on 4 April 1991. He relied

on Article 6 para. 3 (c) (art. 6-3-c) of the Convention, complaining

that he had been refused legal aid.

33. The Commission declared the application (no. 18711/91)

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-B 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

34. At the hearing on 18 April 1993, the applicant invited the

Court

"to find and declare that there has been a violation of the

applicant's rights in terms of Article 6 para. 3 (c)

(art. 6-3-c), and that in the circumstances just satisfaction

should be awarded in terms of Article 50 (art. 50) at such a

sum as the Court deems appropriate".

The Government, for their part, 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

35. The applicant who had been sentenced to eight 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.

36. 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.

37. 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).

38. The Scottish system of criminal appeals grants all persons a

right to appeal. No special leave is required (see paragraph 19

above). The High Court of Justiciary, in its appellate function, has

wide powers to dispose of appeals (see paragraph 22 above). The

procedure is not limited to specific grounds; any alleged miscarriage

of justice may be challenged (see paragraph 20 above). Moreover, the

proceedings always involve an oral hearing at which the Crown is

represented (see paragraph 21 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 24-29 above).

39. According to the applicant and the Commission, the interests

of justice required that Mr Boner be granted legal assistance for the

hearing of his appeal on 24 January 1991 before the High Court of

Justiciary. They 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.

40. 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 Boner 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 23 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 30 and 31 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.

41. 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 issue in this case may not have been particularly

complex. Nevertheless, to attack in appeal proceedings a judge's

exercise of discretion in the course of a trial (see paragraph 8 above)

requires a certain legal skill and experience. That Mr Boner was able

to understand the grounds for his appeal and that counsel was not

prepared to represent him (see paragraph 40 above) does not alter the

fact that without the services of a legal practitioner he was unable

competently to address the court on this legal issue 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 eight years'

imprisonment. For Mr Boner therefore the issue at stake was an

extremely important one.

42. 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.

43. 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).

44. 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

45. 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 Boner sought compensation for alleged

non-pecuniary damage in an amount to be fixed by the Court. In the

applicant's submission, such compensation should serve as "a solatium

for the injury to his feelings and state of mind" resulting from the

refusal of legal aid.

46. The Court agrees with the Government that the non-pecuniary

damage thus caused is sufficiently compensated by a finding that there

had been a breach of Article 6 (art. 6).

47. Mr Boner also claimed reimbursement of the costs and expenses

entailed by the proceedings before the Convention institutions, which

he quantified at £10,955.22.

The Government objected to the method used to calculate the

solicitors' estimated account of expenses and stated that they would

accept a total of £7,500.28 (value-added tax included). The

applicant's representative explained at the hearing that she had been

instructed not to insist on this aspect of the claim.

48. The Court grants the last sum proposed, less 16,275.79 French

francs already paid by way of legal aid.

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. Holds as regards the claim for non-pecuniary damage that the

present judgment constitutes, in itself, sufficient just

satisfaction for the purposes of Article 50 (art. 50) of the

Convention;

3. Holds that the respondent State is to pay to the applicant,

within three months, £7,500.28 (seven thousand five hundred

pounds sterling and twenty-eight pence) less FRF 16,275.79

(sixteen thousand two hundred and seventy-five French francs

and seventy-nine centimes) to be converted into pounds

sterling in accordance with the exchange rate applicable on

the date of delivery of the present judgment, in respect of

legal costs and expenses;

4. Rejects the remainder of 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

The "interests of justice" normally require that a person

"charged with a criminal offence" be assisted by a lawyer.

Without such assistance very few people are able "to present"

their "case in an adequate manner" (1) and "to make an effective

contribution to the proceedings" (2).

_______________

(1) Quaranta v. Switzerland judgment of 24 May 1991, Series A no. 205,

p. 18, para. 36.

(2) Granger v. the United Kingdom judgment of 28 March 1990, Series A

no. 174, p. 19, para. 47.

_______________

This is so at each stage of them, and even more so in the

higher instances.

It has to be observed thereby that legal assistance is needed,

not only in so far as it is "useful ... to the examination of the legal

questions" (3) in a narrow sense, but also since it is proper to ensure

that the facts be ascertained, understood and appraised in a legally

relevant manner.

_______________

(3) Pakelli v. Germany judgment of 25 April 1993, Series A no. 64,

p. 18, para. 38.

_______________

The burden of proving that the interests of justice require

legal assistance must not be laid upon the accused person. In order

legitimately to dispense with such assistance, if the person concerned

has not knowingly and willingly waived it, it has to be clearly and

convincingly established that they do not require it in the instance

concerned.

There were no valid reasons for such an exception in the

circumstances of 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 Boner'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. His

solicitors and counsel had, in accordance with their rules of

professional conduct, declined to continue to act for him because they

had come to the view that the grounds of appeal could not be supported;

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 Boner might have had substantial grounds

for taking the appeal, then, in conformity with the practice introduced

in the wake of the Granger case, it would have immediately adjourned

the hearing and legal assistance would have been provided.

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 Boner should be given free

legal assistance for the hearing of his appeal. As we were reminded

in argument, justice should not only be done, it should also be seen

to be done. The appeal raised a legal issue concerning the exercise

of the trial judge's discretion and Mr Boner's conviction had led to

the imposition of a sentence of eight years' imprisonment. As regards

the view taken by Mr Boner'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 Boner 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 Boner'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).