Application No. 11932/86
Joseph GRANGER
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 12 December 1988)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-13) 1
A. The application (paras. 2-4) 1
B. The proceedings (paras. 5-9) 1
C. The present Report (paras. 10-13) 2
II. ESTABLISHMENT OF THE FACTS (paras. 14-30) 4
A. Particular circumstances of the case 4
(paras. 14-22)
B. Relevant domestic law (paras. 23-30) 6
a) Appeals against conviction or sentence by 6
persons convicted on indictment
(paras. 23-25)
b) Lord Advocate's references (para. 26) 7
c) Legal aid for criminal appeals 7
(paras. 27-30)
III. SUBMISSIONS OF THE PARTIES (paras. 31-41) 9
A. The applicant (paras. 31-35) 9
a) Article 6 paras. 1 and 3 (c) of the 9
Convention (paras. 31-34)
b) Other complaints (para. 35) 9
B. The Government (paras. 36-41) 10
IV. OPINION OF THE COMMISSION (paras. 42-67) 11
A. Points at issue (para. 42) 11
B. Article 6 para. 3 (c) of the Convention 11
(paras. 43-53)
C. Article 6 para. 1 of the Convention 13
(paras. 54-56)
D. Article 5 of the Convention 13
(paras. 57-59)
E. Article 8 of the Convention 14
(paras. 60-62)
F. Article 13 of the Convention (paras. 63-66) 14
G. Recapitulation (para. 67) 15
APPENDIX I History of the proceedings 16
APPENDIX II Decision on the admissibility 17
of the application
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is Joseph Granger, a British citizen born in
1960 and resident in Glasgow. The applicant is represented before the
Commission by Mr. John Carroll, a solicitor practising in Glasgow.
3. The Government are represented by their Agent, Mr. Michael
Wood of the Foreign and Commonwealth Office, London.
4. The case relates to the refusal of legal aid to the applicant
to pay for legal representation at his appeal against his conviction
for perjury. The applicant consequently presented his appeal in
person, while the Solicitor General of Scotland, accompanied by junior
counsel and at least one member of the Crown Office, appeared on behalf
of the prosecution. The application raises issues under Article 6
paras. 1 and 3 (c) of the Convention.
B. The proceedings
5. The application was introduced on 5 December 1985 and
registered on 13 January 1986.
On 1 December 1986 the Commission decided, pursuant to Rule 42
para. 2 (b) of its Rules of Procedure, that notice of the application
should be given to the respondent Government and that they should be
invited to present before 6 April 1987 their written observations on
the admissibility and merits of the applicant's complaint that he was
refused free legal aid for his appeal and the issues which might arise
from that refusal under Article 6 paras. 1 and 3 (c) of the Convention.
The Government sent their written observations on 30 March
1987, after an extension of the time-limit for their submission
had been granted by the President of the Commission. The applicant's
representative submitted the applicant's written observations in reply
on 29 April 1987.
On 9 December 1987 the Commission decided, pursuant to Rule 42
para. 3 (b) of its Rules of Procedure, to invite the parties to make
further oral submissions at a hearing on the admissibility and merits
of the applicant's complaints under Article 6 paras. 1 and 3 (c) of
the Convention.
At the hearing, which was held on 9 May 1988, the applicant
was represented by Mr. John Carroll. The Government were represented
by their Agent, Mr. Michael Wood, Mr. Peter Fraser Q.C., Solicitor
General for Scotland, and Mr. Alan Rodger Q.C., with Mrs. Margaret
MacDonald (Scottish Office), Mr. William Howat (Scottish Office) and
Mr. Graham Buchanan (Crown Office) as advisers.
6. On 9 May 1988 the Commission declared the application
admissible. The parties were then invited to submit any additional
observations on the merits of the application.
7. On 2 June 1988, the applicant was granted legal aid under the
Addendum to the Commission's Rules of Procedure.
8. On 8 October 1988, the Commission considered the state of
proceedings of the case. On 12 December 1988, the Commission
deliberated on the merits of the application and took the final votes
in the case.
9. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reactions, the Commission now
finds that there is no basis on which a friendly settlement can be
effected.
C. The present Report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
M. C.L. ROZAKIS
Mrs. J. LIDDY
The text of the Report was adopted by the Commission on
12 December 1988 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
11. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under the
Convention.
12. A schedule setting out the history of the proceedings before
the Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
13. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
14. The applicant was a principal witness for the Crown in the
prosecution of Thomas Lafferty and six others before the High Court of
Justiciary at Glasgow in September 1984. The charges against Lafferty
and the other accused were serious and included, inter alia, a
charge for the murder of six persons, members of the same family.
Before the trial, the applicant had signed statements for the police
as to his knowledge of and involvement in certain of the incidents
which gave rise to the prosecution. His evidence was considered by
the Crown to be important, and steps were taken to ensure his safety
until the trial. The applicant claims that he was unlawfully induced
by the police to sign false statements and at the trial he denied all
knowledge of the matters contained in them.
15. The applicant was arrested and prosecuted on indictment in the
High Court of Justiciary for perjury in relation to the evidence which
he had given at the Lafferty trial. Another witness was similarly
charged. The charges against the applicant were five in number, a
charge that, while giving evidence at the trial, he had untruthfully
stated that marks on a sketch plan which he had drawn had been placed
there by him on the instructions of the police rather than on his own
initiative, two charges that he had untruthfully denied making two
detailed statements, a charge that he had untruthfully claimed that he
had been pressurised and assaulted by the police and forced to sign
statements previously prepared by police officers, and a charge that
he pretended that he had told his lawyer that he had been assaulted by
police officers and forced to sign a statement against his will when
he had not in fact told his lawyer so.
16. The applicant received legal aid for the preparation of his
defence by his solicitor and for representation at his trial by both
senior and junior counsel. The prosecution authorities considered the
case important by reason of the effect which offences of the type
charged might have on the administration of justice. The indictment
against the applicant and his co-accused was therefore prosecuted by
the Solicitor General for Scotland, who is one of the two Law Officers
for Scotland. After a four week trial before the High Court at Glasgow,
in February 1985, the applicant was convicted of three out of the five
charges against him. He was acquitted of one of the charges relating
to the false denial of making a statement and of the charge relating
to what he had told his lawyer. The applicant was sentenced to five
years' imprisonment and his co-accused was convicted and sentenced to
four years in a Young Offenders Institution.
17. Following the applicant's conviction, his solicitor lodged on
his behalf an intimation of intention to appeal against the conviction.
The legal aid which had been made available for the applicant's trial
covered this work, as well as the solicitor's advising the applicant
as to the prospects of an appeal being successful, obtaining the
opinion of counsel, framing and lodging the grounds of appeal and
applying for legal aid for the appeal. The application for legal aid
in relation to the appeal was lodged with the Supreme Court Legal Aid
Committee of the Law Society of Scotland on 6 June 1985. With the
application was lodged a memorandum, a copy note of appeal, a copy
note of grounds of appeal and the charge given to the jury at the
trial by the judge; later a copy of the indictment and a note of
previous convictions were also lodged. Thereafter the Committee asked
his solicitor to submit a note by counsel acting for the applicant as
to the prospects of success of an appeal. Counsel advised against an
appeal, but the solicitor disagreed and supported the appeal
application. The trial judge had certified the case as one of
exceptional length, difficulty and complexity. Moreover a
psychiatrist had found the applicant to be of modest intelligence, but
with a poor command of English and poor comprehension of written
material. Finally, on 11 July 1985, after consideration of all the
material before them, the Committee decided that the application
should be refused on the grounds that it did not appear to the
Committee that the applicant had substantial grounds for taking appeal
proceedings.
18. The applicant appealed against conviction on 5 grounds:
1) that during cross-examination of a police-officer, the judge
intervened with the comment that the line being taken by the defence
was incompetent and irrelevant;
2) that the judge erred in admitting in evidence a statement of
23 May 1984 which the defence submitted was in the nature of a
precognition;
3) that the judge also erred in repelling the objection to the
admissibility of the statement of 23 May 1984 on the ground that the
statement was evidence of crimes not charged and would lead to
prejudice;
4) that the judge erred in directing the jury that it would not
be unfair for a police officer to have told the applicant prior to
obtaining the statement of 23 May 1984 and certain sketch plans that
he would not be charged with any offence if he genuinely believed
those in authority over him intended to use the applicant only as a
witness;
5) that the judge erred in rejecting the submission by the
defence that the evidence given by the applicant at the Lafferty trial
was not material and could not form the basis of a charge of perjury.
19. The applicant's appeal was heard by the High Court of
Justiciary, consisting of three judges, on 27 September 1985. The
Crown was again represented by the Solicitor General, accompanied by
junior counsel who had also attended the trial and at least one member
of the Crown Office. The applicant was unrepresented since solicitors
have no right of audience before the appeal court, but the applicant
was entitled to speak for himself. To this end, his solicitors
prepared a written speech for him which he was advised to follow
strictly in view of his linguistic and comprehension difficulties. He
read it out to the court. The speech elaborated on the submissions
put forward in the written grounds of appeal. The prosecution then
put forward their arguments that the grounds of appeal were unfounded
and addressed the court for at least 90 minutes.
20. A principal point discussed at that hearing was whether the
court could determine one particular ground of appeal (the second)
without considering the notes of the evidence of the trial relevant to
that ground. The Solicitor General sought to persuade the court that
they could deal with the second ground of appeal without examination
of the notes of evidence, but the court decided that it could not do so.
It adjourned the hearing of the appeal to 6 March 1986
and ordered that the relevant evidence be extracted from the shorthand
notes taken at the trial. Again, the applicant had been provided by
his solicitors with a speech. It dealt not only with the second
ground of appeal but with the other grounds. The court pointed out to
the applicant that the appeal had been continued only for the purpose
of seeing the notes of evidence relevant to the applicant's second
ground of appeal and, accordingly, wished to hear submissions on that
ground of appeal alone. The applicant, however, was not able to
comprehend the legal niceties of the appeal, so the court allowed him
to read out his speech in full, although informing him that only the
second ground of appeal would be taken into consideration.
21. The applicant's appeal against conviction heard on 6 June 1986
was refused on all grounds. In his Opinion the Lord Justice Clerk,
who presided, considered each of the five grounds of appeal, but was
satisfied that none of them had substance and that there had been no
miscarriage of justice.
22. In the meantime, on 26 September 1985, the Lord Advocate
presented a separate petition, under Section 263A of the Criminal
Procedure (Scotland) Act 1975, seeking the opinion of the High Court
of Justiciary on two points of law which arose from the judge's
directions to the jury at the applicant's trial concerning the charge
on which the applicant was acquitted, namely whether in a trial for
perjury it is of any relevance that a statement made by him and
falsely denied under oath was allegedly obtained by unfair means and
whether in a trial for perjury the materiality of the false evidence
to the issue in the earlier trial is a prerequisite to conviction and
a matter of fact to be left to the jury. On 13 June 1986 the Court,
presided over by the Lord Justice-General, heard submissions on the
reference. The applicant received legal aid for these proceedings and
was represented by senior counsel. The opinion of the Court, which
was for the purpose of clarifying the law for the future and which had
no effect on the applicant's conviction, was that these particular
directions given by the trial judge had not been an accurate statement
of the law.
B. Relevant domestic law
a) Appeals against conviction or sentence by persons
convicted on indictment
23. Any person convicted on indictment may appeal to the High
Court against conviction and/or sentence (Section 228(1) of the
Criminal Justice (Scotland) Act 1975 - hereafter the "1975 Act").
There is no requirement of leave to appeal. Pursuant to Section
228(2) of the 1975 Act, a person may bring under review of the High
Court any alleged miscarriage of justice in the proceedings in which
he was convicted. The court is however not obliged to allow an appeal
in every case in which it holds that there has been a miscarriage of
justice. An appeal will not be allowed when the court determines, in
its discretion, that the miscarriage of justice is not such as to
warrant the quashing of the conviction.
24. A person who wishes to appeal must lodge written intimation of
intention to appeal within two weeks of the final determination of the
proceedings against him. Thereafter, in the case of an appeal against
conviction, within six weeks of lodging that intimation, he may lodge
a written note of appeal containing a full statement of the grounds on
which he appeals. It is not in general competent for an appellant to
found any aspect of his appeal on a ground which is not contained in
the note of appeal which has been lodged by him (Sections 231 and 233
of the 1975 Act).
25. The procedure at an appeal hearing is that the appellant makes
submissions to the court in support of the grounds of appeal (and the
legislation entitles him to make the submissions in writing rather
than orally if he prefers, although in practice this is unusual) and
that the court is thereafter addressed by the Crown.
b) Lord Advocate's references
26. Under Section 263A(1) of the 1975 Act, where a person tried on
indictment is acquitted of a charge the Lord Advocate may refer a
point of law which has arisen in relation to that charge to the High
Court for their opinion. The person concerned and the solicitor who
acted for him at his trial receive intimation of the reference and the
date of its hearing; the person may elect to appear personally or to
be represented by counsel at the hearing. If he does not desire to be
so represented, the High Court (in order that there may be a
contradictor) appoints counsel to act at the hearing as amicus curiae.
The costs of representation or of the appointment of counsel as amicus
curiae are paid by the Lord Advocate. The purpose of a reference
under Section 263A is to clarify the law for the future and the
opinion of the Court has no effect on the acquittal of the person at
whose trial the point arose. The reference arising out of the
applicant's case is the second time the Lord Advocate has referred a
point of law to the High Court for their opinion. Such a reference is
heard by three judges of the High Court.
c) Legal aid for criminal appeals
27. The availability of legal aid for a criminal appeal was
governed by the provisions of the Legal Aid (Scotland) Act 1967 at the
material time. From 1 April 1987, that Act was repealed and replaced
by the Legal Aid (Scotland) Act 1986. The following paragraphs
describe the law as it stood at the time relevant to the facts of the
present application:
28. Legal aid, which has been made available for a trial on
indictment, extends, where the accused person is convicted, to include
advice by the solicitor who acted for him on the question of appeal.
The solicitor may prepare and lodge the statutory intimation of
intention to appeal or note of appeal and, where appropriate, arrange
for the opinion of counsel as to the prospects of the appeal to be
obtained and for grounds of appeal to be framed and lodged. Where it
is thereafter intended to proceed with an appeal, legal aid may be
sought, the solicitor completing and submitting the necessary
application.
29. Applications for legal aid for criminal appeals were
determined by the Supreme Court Legal Aid Committee of the Law Society
of Scotland, whose members were advocates and solicitors with
experience of court practice. Section 1(7)(b) of the 1967 Act
provided that a person should not be given legal aid in connection
with proceedings by way of appeal against conviction or sentence
"... unless it appears to the Committee that he has substantial
grounds for taking those proceedings, and that it is reasonable that
he should receive legal aid in the particular circumstances of the
case". The Committee would normally have reached their decision on
the basis of the documents before them, which would have included
copies of the note of appeal, and the note of grounds of appeal and
the judge's charge to the jury, and in the light of the views
expressed by the applicant's solicitor and counsel.
30. The decision of the Committee on the merits of an application
for criminal legal aid for an appeal was declared by the Legal Aid
(Scotland) (Criminal Proceedings) Scheme 1975 to be final.
III. SUBMISSIONS OF THE PARTIES
A. The applicant
a) Article 6 paras. 1 and 3 (c) of the Convention
31. The applicant complains of the refusal of legal aid for his
appeal. He submits that the appeal raised important matters
concerning civil liberties and involved complex matters of law. The
importance of the proceedings was indicated by the Crown's separate
application for an Attorney General's reference concerning the charge
which was found not proven and the fact that the Solicitor General,
accompanied by junior counsel and at least one member of the Crown
Office, represented the prosecution at the appeal. While the applicant
had been provided with a written speech to read, the applicant argues
that this was of limited assistance, since he was unable to understand
or respond to the arguments raised by the Crown during the proceedings
in regard to previous case-law or other matters.
32. The applicant submits that the case of Monnell and Morris
(Eur. Court H.R., Monnell and Morris judgment of 2 March 1987, Series
A no. 115) can be clearly distinguished on the facts from the present
case. In that case, there was a written procedure and neither the
prosecution nor the defence were called to make oral submissions
before the appeal court. The applicant contends that the appeal was
one of substance. At the trial, the trial judge had certified the
case as one of exceptional length, difficulty and complexity and the
appeal court required a transcript of part of the trial in order to
deal with one of the grounds of appeal. Further, the prosecution's
responses to the applicant's appeal lasted 90 minutes. Not only
counsel's opinion, but also the legal argument at the trial and the
Lord Advocate's reference, demonstrate the difficult legal questions
involved, which concerned, inter alia, the concepts of materiality and
fairness.
33. It also cannot be said that the present application is similar
to the aforementioned Monnell and Morris case, since the applicant's
appeal in this case could not have been assessed as having "no
objective likelihood of success".
34. The applicant accordingly submits that both the principle of
equality of arms and interests of justice required that the applicant
be represented at his appeal.
b) Other complaints
35. The applicant also complains that a false promise of immunity
from prosecution was given to procure evidence from him. When, as a
witness in the Lafferty trial, he contradicted the statements made by
him and complained of police conduct and the way they obtained his
signature to statements, he was promptly arrested and detained pending
trial for perjury. Evidence (i.e. the statements allegedly made to
the police under improper inducement) obtained in such a fashion
should not form the basis of a prosecution for perjury and the
applicant submits such a prosecution could not be said to be just or
fair. He also complains that he had no way of securing any remedy for
these complaints.
The applicant accordingly invokes Articles 5, 8 and 13 of the
Convention in this context.
B. The Government
36. The Government refer to the Monnell and Morris judgment (loc.
cit., pp. 21-22, 25, paras. 53, 56 and 67), in particular the
proposition that Article 6 para. 3 (c) does not guarantee an automatic
right to free legal aid in every case and that it is often sufficient
in the interests of justice that the accused receives extensive legal
aid at his trial together with advice, after conviction, as to any
arguable grounds of appeal.
37. In the present case, as in that of Monnell and Morris,
although the applicant had insufficient means to appeal, the interests
of justice did not require legal aid for representation on appeal,
given the expertise of the Legal Aid Committee in assessing such cases
and the opinion of the applicant's counsel against any appeal.
Counsel's opinion was borne out by the High Court's dismissal of the
appeal.
38. The Government emphasise that the applicant had full legal aid
for his trial and advice as to the prospects of success of an appeal.
The applicant was given every opportunity by the appeal court to put
forward his grounds of appeal even to the extent of allowing him to
read out lengthy prepared speeches, parts of which were not relevant
to the points upon which the court wished to hear arguments. However,
as the applicant was unrepresented, he was afforded a broad latitude
by the court as regards his submissions. The presence of the
Solicitor General only occurred because he had represented the Crown
at the trial and was familiar with the case. Junior counsel also
attended in case the Solicitor General was called out of court in
relation to his other duties.
39. The Government contend that this application is the same as
Monnell and Morris in that the appeal had "no objective likelihood of
success" and hence the interests of justice did not require the grant
of free legal aid for the oral stage of the proceedings (Monnell and
Morris judgment loc. cit., p. 25, para. 67). The Government conclude
that there has been no violation of Article 6 para. 3 (c) of the
Convention.
40. The Government submit that no separate issue arises in the
present case under Article 6 para. 1 of the Convention, the equality
of arms principle not adding anything to the lex specialis of
Article 6 para. 3 (c) (Pakelli v. Federal Republic of Germany, Comm.
Report 12.12.81, para. 93, Eur. Court H.R., Series B no. 53, p. 29).
41. Although the prosecution was represented by the Solicitor
General and junior counsel in this case and the applicant
unrepresented, the interests of justice cannot be taken to require
legal representation for the appellant just because the prosecution is
represented by a legally qualified person. The prosecutor is
invariably represented in the Scottish system. Of itself this cannot
amount to a violation of Article 6 para. 1, the equality of arms
principle being only one aspect of the notion of fairness under
Article 6 para. 1.
IV. OPINION OF THE COMMISSION
A. Points at issue
42. The principal issues to be determined are:
- whether there has been a violation of Article 6 para. 3 (c)
(Art.6-3-c) of the Convention as a result of the refusal of legal aid to the
applicant for legal representation at his appeal;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention;
- whether there has been a violation of Article 5 (Art. 5) of the
Convention;
- whether there has been a violation of Article 8 (Art. 8) of the
Convention;
- whether there has been a violation of Article 13 (Art. 13) of the
Convention.
B. Article 6 para. 3 (c) (Art. 6-3-c) of the Convention
43. The applicant complains of a violation of Article 6 paras. 1 and 3 (c)
(Art. 6-1, 6-3-c) as a result of the refusal of legal aid for his appeal. He
submits that in the circumstances of his case the interests of justice required
that legal aid be granted and that the presence of the Solicitor General, with
junior counsel and at least one member of the Crown Office to present the case
for the prosecution, offended the principle of equality of arms. The
Government submit that the application is the same as Morris and Monnell in
that the appeal had no objective likelihood of success and hence the interests
of justice did not require the grant of legal aid (cf. Eur. Court H.R.,
Monnell and Morris judgment of 2 March 1987, Series A no. 115, p. 25, para.
67). They submit that there has been no violation of Article 6 para. 3 (c)
(Art. 6-3-c) and that no separate issue arises under Article 6 para. 1
(Art. 6-1).
44. The Commission has first considered the case under Article 6
para. 3 (c) (Art. 6-3-c) of the Convention which provides:
"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;"
45. It is not disputed that Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention applied to the proceedings before the High Court whereby it
determined the applicant's appeal against conviction. The Commission
finds that, in accordance with established case-law (cf. Monnell and
Morris judgment, loc. cit., p. 21, para. 54 and references therein),
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention was applicable to those
proceedings.
46. Paragraph 3 of Article 6 (Art. 6-3) contains an enumeration of specific
rights of the defence. They exemplify the notion of fair trial in
respect of typical procedural situations which arise in criminal
cases, but their intrinsic aim is always to ensure, or contribute to
ensuring, the fairness of the criminal proceedings as a whole. The
guarantees enshrined in Article 6 para. 3 (Art. 6-3) must accordingly be
interpreted in the light of the function which they have in the
overall context of the proceedings (cf. Can v. Austria, Comm. Rep.
12.7.84, para. 48, Eur. Court H.R., Series A no. 96, p. 15).
47. The right to free legal assistance guaranteed by Article 6
para. 3 (c) (Art. 6-3-c) is subject to two conditions; that the individual
concerned does not have sufficient means to pay for legal assistance
and that "the interests of justice" require it. It is not in dispute
that the first condition was satisfied in the present case. The only
issue is whether "the interests of justice" required that the
applicant be granted legal aid before the High Court.
48. In the Monnell and Morris judgment (loc. cit., p. 25, para.
67) the European Court stated as follows:
"The interests of justice cannot ... be taken to require
an automatic grant of legal aid whenever a convicted
person, with no objective likelihood of success, wishes to
appeal after having received a fair trial at first instance
in accordance with Article 6 (Art. 6). Each applicant, it is to be
noted, benefitted from free legal assistance both at his
trial and in being advised as to whether he had any arguable
grounds of appeal ...".
49. The Government argue that the present case is similar to that
of Monnell and Morris (loc. cit.). The Commission however finds the
cases clearly distinguishable, in particular since in Monnell and
Morris the proceedings concerned applications for leave to appeal
dealt with by written procedure in which the prosecution played no
part, whereas in the present case the proceedings took the form of a
full oral appeal hearing before the High Court at which the
prosecution was present in some strength.
50. When determining whether "the interests of justice" required
legal representation, the Commission must examine each case on its
facts. While the likelihood of success and the availability of
legal assistance at other stages of the proceedings are significant
factors to be taken into account, they are not the sole criteria.
Other factors in assessing the requirements of "the interests of
justice" include the importance of what is at stake for the applicant,
e.g. the severity of the sentence; the personal ability of the
applicant and the nature of the proceedings e.g. complexity or
importance of the issues or procedures involved (cf. Eur. Court H.R.,
Artico judgment of 13 May 1980, Series A no. 37 and Pakelli judgment
of 25 April 1983, Series A no. 64).
51. In the present case, while the Commission recalls that the
applicant's appeal was in fact dismissed and counsel had advised
against an appeal, it also appears that the case was considered to be
of considerable importance in the area of the administration of
justice and to raise serious issues in regard to the law of perjury.
The Commission recalls in this respect the fact that the Solicitor
General appeared for the Crown at the trial and on appeal and the Lord
Advocate's reference arising out of aspects of the trial judge's
direction to the jury. Further, the Commission recalls that the trial
judge had certified the case as one of exceptional length, difficulty
and complexity and that the applicant's solicitor had disagreed with
counsel's unfavourable opinion. The Commission has also had regard to
the limited abilities of the applicant and to the severity of the
sentence imposed on conviction, namely, five years' imprisonment.
52. The Commission finds therefore that the appeal could not be
said to be frivolous or without substance but that it raised legal
issues, which the applicant could not be expected either to comprehend
or to present to the court. The situation which in fact developed in
the course of the two hearings in his appeal was that the applicant,
who stood alone, had in apparent opposition to him the Solicitor
General and counsel, supported by a representative of the Crown
Office. He read two speeches which were unintelligible to him, as in
all probability was the long speech of the prosecution in reply. The
technical discussion which followed would also have been beyond his
comprehension. Consequently, the Commission finds that the interests
of justice required that the applicant be granted free legal aid for
representation at his appeal.
Conclusion
53. The Commission concludes, unanimously, that there has been
a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
C. Article 6 para. 1 (Art. 6-1) of the Convention
54. Article 6 para. 1 (Art. 6-1) first sentence of the Convention provides:
"In the determination ... of any criminal charge against
him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law."
55. Since Article 6 para. 3 (c) (Art. 6-3-c) provides a specific guarantee,
which at the same time reflects the general principle of fairness provided for
in Article 6 para. 1 (Art. 6-1), the Commission finds it unnecessary to decide
whether the facts of the situation also disclose a violation of Article 6 para.
1 (Art. 6-1) (cf. Eur. Court H.R., Pakelli judgment of 25.4.83, Series A no.
64, p. 18, para. 42).
56. Conclusion
The Commission concludes, by 11 votes to 1, that no separate
issue arises under Article 6 para. 1 (Art. 6-1) of the Convention.
D. Article 5 (Art. 5) of the Convention
57. The applicant also complains that he was given a false promise
of immunity from prosecution by the police to induce him to give
evidence. He complains that when he contradicted the statements made
by him, he was arrested and tried for perjury. He contends that
evidence obtained improperly should not form the basis of a
prosecution for perjury. The applicant invokes Article 5 (Art. 5) of the
Convention, which provides that everyone has the right to liberty and
security of person and that no one should be deprived of his liberty
save in accordance with a procedure prescribed by law and in the cases
expressly set out in sub-paragraphs (a)-(f) of Article 5 para. 1 (Art. 5-1-a,
5-1-f) .
58. The Commission finds no indication however that the applicant
was not lawfully detained after conviction by a competent court within the
meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention or that his
arrest prior to trial was not lawful or effected for one or more of the
purposes set out in Article 5 para. 1 (c) (Art. 5-1-c)of the Convention.
Conclusion
59. The Commission concludes, unanimously, that there has been
no violation of Article 5 (Art. 5) of the Convention.
E. Article 8 of the Convention
60. The applicant has also, with regard to the facts set out in
para. 57, invoked Article 8 of the Convention which guarantees to
everyone the right to respect for his private life and family life,
his home and his correspondence.
61. The Commission finds that the applicant has not shown that any
of the facts complained of constituted an interference with his rights
under Article 8 (Art. 8) of the Convention.
Conclusion
62. The Commission concludes, unanimously, that there has been
no violation of Article 8 (Art. 8) of the Convention.
F. Article 13 (Art. 13) of the Convention
63. The applicant finally complains of the absence of an effective
remedy in respect of his complaints. He invokes Article 13 (Art. 13) of the
Convention which provides as follows:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
64. Insofar as the applicant complains of the absence of a remedy
for his complaints under Articles 5 and 8 (Art. 5, 8) of the Convention, the
Commission recalls that Article 13 (Art. 13) does not require a remedy under
domestic law in respect of any alleged violation of the Convention.
It only applies if the individual can be said to have an "arguable
claim" of a violation of the Convention (Eur. Court H.R., Boyle and
Rice judgment of 27 April 1988, Series A No. 131, para. 52). The
Commission notes that it has found no indication that the applicant
was deprived of his liberty contrary to Article 5 (Art. 5) of the Convention
and that it has also found no indication of an interference with the
applicant's rights under Article 8 (Art. 8) of the Convention. In these
circumstances, the Commission considers that the applicant cannot be said to
have an "arguable claim" of a violation of Articles 5 or 8 (Art. 5, 8) of the
Convention. Consequently, the Commission finds that Article 13 (Art. 13) of
the Convention does not require an effective remedy in respect of these
complaints.
65. Insofar as the applicant complains of the absence of a remedy
in respect of his complaints under Article 6 (Art. 6), the Commission recalls
that Article 13 (Art. 13), as a more general guarantee, is not applicable in
cases where the more specific guarantees of Article 6 (Art. 6) apply, Article 6
(Art. 6) being the lex specialis in relation to Article 13. Its requirements
are less strict and accordingly absorbed by Article 6 (Art. 6). The Commission
here refers to the constant case-law of the Convention organs (e.g. Eur. Court
H.R., Silver and Others judgment of 25 March 1983, Series A no. 61, p. 41 para.
110; W v. the United Kingdom, Comm. Report 15.10.85, paras. 130-132 and Eur.
Court H.R. judgment of 8 July 1987, Series A no. 121-A, pp. 36 and 37, paras.
85-86; Pudas v. Sweden, Comm. Report 4.12.85, para. 59 and Eur. Court H.R.
judgment of 27 October 1987, Series A no. 125, p. 17 para. 43). No separate
issue therefore arises in this respect.
Conclusion
66. The Commission concludes, unanimously, that there has been no
violation of Article 13 (Art. 13) of the Convention in respect of the
applicant's complaints under Articles 5 and 8 (Art. 5, 8) of the Convention and
that no separate issue arises under Article 13 (Art. 13) of the Convention in
respect of the applicant's complaints under Article 6 (Art. 6) of the
Convention.
G. Recapitulation
67. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention (para. 53);
- The Commission concludes, by 11 votes to 1, that no separate
issue arises under Article 6 para. 1 (Art. 6-1) of the Convention (para. 56);
- The Commission concludes, unanimously, that there has been no
violation of Article 5 (Art. 5) of the Convention (para. 59);
- The Commission concludes, unanimously, that there has been no
violation of Article 8 (Art. 8) of the Convention (para. 61);
- The Commission concludes, unanimously, that there has been no
violation of Article 13 (Art. 13) of the Convention in respect of the
applicant's complaints under Articles 5 and 8 (Art. 5, 8) of the Convention and
that no separate issue arises under Article 13 (Art. 13) of the Convention in
respect of the applicant's complaints under Article 6 (Art. 6) of the
Convention (para. 66).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Appendix I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
5.12.85 Introduction of the application
13.01.86 Registration of the application
Examination of admissibility
01.12.86 Commission's deliberations and
decision to invite the Government
to submit observations in writing
30.03.87 Government's observations
29.04.87 Applicant's reply
09.12.87 Commission's further deliberations
and decision to invite the parties
to a hearing
09.05.88 Hearing on admissibility and merits
The parties were represented as
follows:
Government:
Mr. Michael Wood
Mr. Peter Fraser Q.C., Solicitor
General for Scotland
Mr. Alan Rodger Q.C.
Mrs. Margaret MacDonald (Scottish
Office)
Mr. William Howat (Scottish Office)
Mr. Graham Buchanan (Crown Office),
as advisers.
Applicant:
Mr. John Carroll
09.05.88 Commission's deliberations and
decision to declare the application
admissible
Examination of the merits
09.05.88 Deliberations on the merits
08.10.88 Consideration of state of proceedings
12.12.88 Commission's deliberations on the
merits, final votes and adoption
of the Report
Appendix II