PROCEDURE

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).

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).

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).

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.

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.

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:

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;

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

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.

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.

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.

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.

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.

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.

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.

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.