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. 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).

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).

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).

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.

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;

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

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.

The applicant received legal aid for the preparation of his defence and for his representation by counsel at the trial.

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.

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.

On 17 April 1990 the applicant, through his solicitor, lodged an intimation of intention to appeal against conviction.

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.

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.

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.

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.

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.

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.