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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GRANGER v. THE UNITED KINGDOM - 11932/86 [1990] ECHR 6 (28 March 1990)
URL: http://www.bailii.org/eu/cases/ECHR/1990/6.html
Cite as: [1990] ECHR 6, (1990) 12 EHRR 469
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In the Granger case*,
_______________
* Note by the Registrar: The case is numbered 2/1989/162/218. 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.
_______________
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 the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Sir Vincent Evans,
Mr C. Russo,
Mr J. De Meyer,
Mr S.K. Martens,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 October 1989 and 19 February 1990,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court on 27 February 1989 by the
Government of the United Kingdom of Great Britain and Northern Ireland
("the Government") and on 16 March 1989 by the European Commission of
Human Rights ("the Commission"), within the three-month period laid
down in Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 11932/86) against
the United Kingdom lodged with the Commission under Article 25
(art. 25) by Mr Joseph Granger, a British citizen, on 5 December 1985.
The Government's application referred to Article 48 (art. 48) and the
Commission's request to Articles 44 and 48 (art. 44, art. 48) and
the declaration whereby the United Kingdom recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46). The object of the
application and of the request was to obtain a decision as to whether
or not the facts of the case disclosed a breach by the respondent
State of its obligations under Article 6 § 3 (c) (art. 6-3-c)
of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Sir Vincent Evans, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 § 3 (b)). On 30 March 1989 the
President drew by lot, in the presence of the Registrar, the names of
the other five members, namely Mr F. Matscher, Mr R. Macdonald,
Mr C. Russo, Mr J. De Meyer and Mr S.K. Martens (Article 43 in fine
of the Convention and Rule 21 § 4) (art. 43). Subsequently,
Mr L.-E. Pettiti, substitute judge, replaced Mr Macdonald, who was
unable to attend (Rules 22 § 1 and 24 § 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5) and, through the Registrar, consulted the Agent of the
Government, the Delegate of the Commission and the representative of
the applicant on the need for a written procedure (Rule 37 § 1). In
accordance with the order made in consequence, the registry received,
on 23 June 1989, the Government's memorial.
By letter of 28 August 1989, the Secretary to the Commission informed
the Registrar that the Delegate would submit his observations at the
hearing.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 30 August 1989
that the oral proceedings should open on 23 October 1989 (Rule 38).
6. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
(a) for the Government
Mr M. Wood, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
Mr A. Rodger, Q.C.,
Solicitor General for Scotland,
Mr R. Reed, Advocate, Counsel;
(b) for the Commission
Sir Basil Hall, Delegate;
(c) for the applicant
Mr J. Carroll, Solicitor.
The Court heard addresses by Mr Rodger for the Government, by
Sir Basil Hall for the Commission and by Mr Carroll for the applicant,
as well as replies to questions put by the Court and by two of its members
individually.
7. The registry received a document from the Commission
on 12 October 1989 and a number of documents from the Government at
the hearing. On 30 October the applicant filed supplementary
particulars of the claims under Article 50 (art. 50) of the Convention
which he had lodged on 11 October; the observations of the Government
and of the Commission on those claims and further comments by the
applicant thereon were received at the registry on 5, 14
and 28 December, respectively.
AS TO THE FACTS
I. The particular circumstances of the case
A. The Lafferty trial
8. A number of serious incidents between rival groups in Glasgow
in the early 1980's culminated in a fire-raising attack on industrial
premises, followed by a petrol-bomb attack on an apartment resulting
in the death of six members of the same family.
9. Mr Granger, who is a British citizen born in 1960 and resident
in Glasgow, was interviewed by the police during their investigations;
on 23 and 25 May 1984, in signed statements, he gave details of how
the crimes had been committed and named the persons responsible, that
is Thomas Lafferty and six others. This evidence was considered by
the Crown to be important and was a major basis for the decision to
prosecute those persons. Steps were taken to secure the applicant's
safety until the trial.
10. The trial of Thomas Lafferty and the six others on charges
relating, inter alia, to the fire-raising and the murders took place
before the High Court of Justiciary in Glasgow in September 1984.
Mr Granger appeared as a principal witness for the Crown. However,
once in the witness-box, he denied all knowledge of any matters
relevant to the crimes. He also denied that he had given the
above-mentioned statements, claiming instead that they had been made
up by the police, who had pressurised him into signing them.
B. The applicant's trial for perjury
11. Shortly afterwards, the applicant was arrested and prosecuted
on indictment in the High Court of Justiciary for perjury. He was
held in custody pending and during his trial. In summary, the charges
against him were that, while giving evidence at the Lafferty trial, he
had untruthfully:
(a) stated that marks on a plan which he had drawn had been placed
there by him on the instructions of the police rather than on his own
initiative;
(b) denied making a detailed statement to the police on 23 May 1984
about the fire-raising;
(c) denied making a detailed statement to the police on 25 May 1984
about the murders;
(d) claimed to have been pressurised and assaulted by the police and
forced to sign statements previously prepared by them;
(e) pretended that he had told his solicitor that he had been
assaulted by police officers and forced to sign a statement against
his will.
12. 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 Crown was represented by the Solicitor General for Scotland (see
paragraph 29 below), since the gravity of the charges was considered
to warrant the presence of a senior prosecutor and since the most
senior Advocate Depute, who had appeared for the prosecution at the
Lafferty trial, was to be a witness at the applicant's trial.
After a four-week trial before the High Court of Justiciary in Glasgow
in February 1985, Mr Granger was found guilty of the first, second and
fourth charges against him and not guilty of the fifth; the third was
found not proven. He was sentenced to five years' imprisonment.
The trial judge certified, for the purposes of determining the fees
payable under the legal-aid scheme, that the case had been one of
exceptional length, complexity and difficulty.
C. The applicant's appeal against conviction
13. The applicant's solicitor subsequently lodged an intimation of
intention to appeal against conviction (see paragraph 27 below). The
legal aid granted for the perjury trial covered this work, as well as
the solicitor's advising on the prospects of an appeal, obtaining
counsel's opinion on the same point, having counsel frame a note of
appeal setting out the grounds of appeal (ibid.), lodging the note of
appeal and making an application for legal aid to pay for
representation at the hearing of the appeal itself.
14. Such an application was submitted on behalf of Mr Granger, who
had insufficient means to pay for legal assistance, to the Supreme
Court Legal Aid Committee of the Law Society of Scotland (see
paragraph 30 below) on 6 June 1985. It was accompanied by a
memorandum, a copy note of appeal (with a supplementary statement of
the grounds) and the judge's summing-up to the jury at the applicant's
trial; later a copy of the indictment and a note of previous
convictions were also lodged.
15. The Committee considered the material before it to be
insufficient and asked the applicant's solicitor to furnish counsel's
opinion on the prospects of the appeal. This he did on 4 July 1985.
The solicitor had, in fact, already obtained such an opinion,
on 14 May 1985, from the senior and junior counsel who had represented
Mr Granger at his trial; the senior counsel, in particular, had
considerable experience in presenting appeals before the High Court of
Justiciary. The authors of the opinion concluded that they could not
advise that the appeal should proceed: in their view, neither of the
two possible stateable grounds of appeal was of sufficient substance
as to have reasonable prospects of success and, in any event, there
was no real prospect of satisfying the court that there had been a
miscarriage of justice (see paragraph 26 below).
The solicitor also provided the Committee with a copy of his letter of
23 May 1985 to his Edinburgh agents, indicating that he disagreed with
counsel's opinion. Although he had obtained on 5 February 1985, for
the purposes of the applicant's trial, a psychiatric report which
stated that the applicant was of modest intelligence but with a poor
command of English and poor comprehension of written material, he did
not communicate this to the Committee. Neither did he refer, in any
material he placed before it, to any intellectual or linguistic
limitations of his client.
16. By decision of 11 July 1985, which was stated to be final, the
Committee refused the application, since it was not satisfied that
Mr Granger had substantial grounds for his appeal (see paragraph 31
below).
17. The applicant nevertheless continued to receive advice and
assistance from his solicitor and decided to proceed with the appeal.
The grounds were the same as those considered by counsel in the
opinion of May 1985 (see paragraph 15 above). The applicant
maintained that there had been a miscarriage of justice (see
paragraph 26 below), in that (in summary):
(a) during the cross-examination of a police officer, the trial judge
had intervened with the comment - alleged to be tantamount to a
premature direction in law to the jury and incorrect - that the line
being followed by the defence was incompetent and irrelevant;
(b) the judge had erred in admitting in evidence a statement made by
the applicant on 23 May 1984, notwithstanding a defence objection that
it was inadmissible as being in the nature of a precognition, that is
a statement made by a potential witness at an advanced stage of an
investigation outlining the evidence he is likely to give at a
forthcoming trial;
(c) the judge had erred in repelling a further objection to the
admissibility of the same statement, namely that it was evidence of
crimes not charged against the applicant and would lead to prejudice;
(d) the judge had erred in directing the jury that it would not be
unfair for a police officer - if he genuinely believed that his
superiors intended to use the applicant only as a witness - to have
told the applicant, prior to obtaining the aforesaid statement and
certain sketch plans, that he would not be charged with any offence;
(e) the judge had erred in rejecting a defence submission that the
evidence given by the applicant at the Lafferty trial had not been
"material" and accordingly could not form the basis of a charge of
perjury.
18. The hearing of the appeal opened before the High Court of
Justiciary, sitting in Edinburgh as an appellate court of three
judges, on 27 September 1985. The Crown was again represented by the
Solicitor General for Scotland, accompanied by junior counsel and a
member of the staff of the Crown Office (see paragraph 29 below).
Since the refusal of legal aid precluded the instruction of counsel
and since solicitors do not have rights of audience in the High Court
of Justiciary, Mr Granger presented his appeal himself. He read out a
statement, prepared by his solicitor, which elaborated on the written
grounds of appeal. The Solicitor General replied, addressing the
court for about ninety minutes.
19. The principal point discussed at the hearing was whether the
court could determine ground (b) of the appeal (see paragraph 17
above) without considering a transcript of the relevant parts of the
evidence given at the applicant's trial. Notwithstanding the
Solicitor General's arguments to the contrary, the court decided that
it could not. It therefore ordered that a transcript be prepared and
adjourned the hearing to 6 March 1986. The applicant's solicitor
subsequently assisted in the preparation of the transcript.
Following this adjournment, Mr Granger did not renew, or request
reconsideration of, his legal-aid application, nor did he advise the
Legal Aid Committee of the court's order.
20. At the resumed hearing the applicant had again been provided
by his solicitor with a written speech, which dealt with all the
grounds of appeal. Although the court pointed out that it wished to
hear submissions on ground (b) only, it allowed the applicant, who was
unable to comprehend the legal niceties, to read out the speech in
full.
21. The High Court of Justiciary unanimously refused the appeal on
all grounds. In his written judgment the Lord Justice-Clerk, who
presided, gave full consideration to each of the grounds, but was
satisfied that none of them had substance and that there had been no
miscarriage of justice (see paragraph 26 below). He described the
appellant's submissions as "well prepared and clearly expressed".
22. Mr Granger was released from prison on 16 July 1988 after
serving two-thirds of his sentence, the remainder having been
remitted.
D. The Lord Advocate's reference
23. On 26 September 1985 - the day before the first hearing in the
applicant's appeal - the Lord Advocate referred, under section 263A of
the Criminal Procedure (Scotland) Act 1975 (see paragraphs 32-33
below), for the opinion of the High Court of Justiciary two questions
of law that arose from the judge's directions to the jury, at the
perjury trial, concerning the charge which had been found not proven
(see paragraph 12 above). The questions were:
(a) whether, in a trial for perjury where the accused was not an
accused in the previous trial, it is of any relevance that a statement
made by him and falsely denied under oath was allegedly obtained by
means described as unfair; and
(b) whether, in a trial for perjury, the "materiality" of the false
evidence to the issue in the earlier trial is (i) a prerequisite to
conviction and in any event (ii) a matter of fact to be left to the
jury.
24. On 13 June 1986 the High Court heard submissions on the
reference. Mr Granger exercised his statutory right to be represented
at the hearing, the fees of senior counsel instructed for this purpose
being paid by the Lord Advocate (see paragraph 32 below). In its
opinion of 26 June the court held that the trial judge's directions
- which had been favourable to the applicant - had not been an accurate
statement of the law. This opinion did not affect the applicant's
acquittal (see paragraph 33 below).
II. Relevant domestic law and practice
A. Appeals against conviction and/or sentence by persons convicted on
indictment
25. Every person convicted of a criminal charge in Scotland has an
automatic right of appeal - there being no requirement of prior
leave - against conviction or sentence or both. In cases, such as the
applicant's, tried on indictment, the right is conferred by
section 228 of the Criminal Procedure (Scotland) Act 1975, as amended
by the Criminal Justice (Scotland) Act 1980 ("the 1975 Act").
26. In an appeal against conviction, the appellant may bring under
review any alleged miscarriage of justice in the earlier proceedings.
"Miscarriage of justice" is not defined by statute, but covers such
matters as misdirections by the trial judge to the jury or wrong
decisions on the admissibility of evidence, as well as breaches of
natural justice.
An appellate court which holds that there has been a miscarriage of
justice retains a discretion not to allow the appeal if it determines
that the miscarriage is not such as to warrant the quashing of the
conviction (section 254 of the 1975 Act).
27. Anyone wishing to appeal against conviction must lodge an
intimation of his intention to do so within two weeks of the final
determination of the proceedings against him (section 231 of the
1975 Act). He then has six weeks in which he may file a note of appeal
containing a full statement of the grounds; he may not, in general,
found any aspect of his appeal on a ground not set out therein
(section 233 of the 1975 Act).
28. At the hearing submissions will first be made by or on behalf
of the appellant; whilst unusual, this may be done in writing
(section 234 of the 1975 Act). Counsel for the Crown will then
address the court.
Counsel for the Crown has a duty to act with complete fairness and to
assist the court by providing impartial information and, if need be,
argument so that the appellant's case can be evaluated in the best
possible light. This is especially important where the appellant is
not represented by counsel. Such cases are common, firstly because
the unrestricted right of appeal (see paragraph 25 above) results in
the filing of many appeals which are without merit and, hence, do not
qualify for legal aid (see paragraph 31 below). Secondly, and
irrespective of the availability of legal aid, counsel must, according
to the Guide to the Professional Conduct of Advocates, refuse to act
further in a criminal appeal if he has formed the opinion that there
are no grounds which he is prepared to state to the court.
Whether the appellant is represented or not, the court will undertake
a thorough examination of the appeal and will be scrupulous in
examining the points which might be favourable to him.
29. At the hearing of appeals in the High Court of Justiciary the
Crown will always be represented, either by the Lord Advocate or the
Solicitor General (who are the Law Officers of the Crown) or by one of
the Advocate Deputes. In an appeal against conviction following a
long trial, the Crown will usually be represented by the counsel who
appeared for it below, on account of his familiarity with the case.
As Ministers of the Crown, the Law Officers are liable to be called
away from court at short notice to carry out other duties. They will
therefore normally be accompanied by another counsel, but he will play
no active part unless the Law Officer has to leave. Counsel for the
Crown will also invariably be accompanied by the member of the Crown
Office staff who prepared the day's papers for the court; his function
is entirely clerical and administrative and he will not participate in
the discussion of the appeal.
B. Legal aid for criminal appeals
30. Legal aid granted for a trial on indictment covers certain
work done in contemplation of an appeal, as listed in paragraph 13
above. If it is thereafter intended to proceed with the appeal, legal
aid may be sought for that purpose. Its availability was, at the
relevant time, governed by the Legal Aid (Scotland) Act 1967, as
amended ("the 1967 Act"). Applications therefor were then determined
by the Supreme Court Legal Aid Committee of the Law Society of
Scotland, whose members were independent advocates and solicitors with
substantial current experience of court practice.
The whole system for the administration of legal aid was reformed by
the Legal Aid (Scotland) Act 1986, which repealed and replaced the
1967 Act with effect from 1 April 1987. In particular, the former
functions of the Legal Aid Committee were transferred to another body.
31. Section 1(7) of the 1967 Act provided:
"In criminal proceedings, a person shall not be given legal aid in
connection with -
(a) ...
(b) proceedings by way of appeal against conviction or sentence ...
unless it appears 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."
It would have been extremely unusual for the Committee to decide that
it was not reasonable to grant legal aid to a person appearing to have
substantial grounds for appealing. It normally determined
applications on the basis of the documents before it, which would have
included the note of appeal setting out the grounds and the judge's
summing-up to the jury, and in the light of the views of the counsel
or solicitor who acted for the appellant at the trial.
According to Article 21 of the Legal Aid (Scotland) (Criminal
Proceedings) Scheme 1975, the Committee's decision on the merits of an
application for legal aid for a criminal appeal was final.
C. Lord Advocate's references
32. Under section 263A of the 1975 Act, where a person tried on
indictment is acquitted on a charge, the Lord Advocate may refer a
point of law which has arisen in relation to that charge to the High
Court for an opinion. The person concerned may elect to appear
personally or to be represented by counsel at the hearing. If he does
not desire to be so represented, the court will appoint counsel to act
as amicus curiae, in order to ensure that the issues are fully argued.
In either case, counsel's fees will be paid by the Lord Advocate.
33. This procedure was introduced into Scots law because
previously the prosecution had, in all cases tried on indictment, no
right of appeal. There was accordingly a risk that an erroneous
decision by the trial judge might be treated as authoritative in later
cases.
The sole purpose of a reference by the Lord Advocate is to clarify the
law for the future, section 263A expressly providing that the opinion
of the High Court "shall not affect the acquittal" of the person
concerned. Fresh proceedings on the charge in question cannot be
instituted against him, even if the opinion is favourable to the
prosecution.
PROCEEDINGS BEFORE THE COMMISSION
34. In his application (no. 11932/86) lodged with the Commission
on 5 December 1985, Mr Granger complained notably of the fact that he
was refused free legal aid for his appeal. He invoked Articles 5, 8
and 13 (art. 5, art. 8, art. 13) and, in particular, 6 §§ 1
and 3 (c) (art. 6-1, art. 6-3-c) of the Convention.
35. The Commission declared the application admissible
on 9 May 1988.
In its report of 12 December 1988 (drawn up in accordance with
Article 31) (art. 31), the Commission expressed the opinion:
(a) unanimously, that there had been a violation of Article 6 § 3 (c)
(art. 6-3-c);
(b) by eleven votes to one, that no separate issue arose under
Article 6 § 1 (art. 6-1);
(c) unanimously, that there had been no violation of Article 5
(art. 5) or Article 8 (art. 8);
(d) unanimously, that there had been no violation of Article 13
(art. 13) in respect of the applicant's complaints under Articles 5
and 8 (art. 5, art. 8) and that no separate issue arose under
Article 13 (art. 13) in respect of the applicant's complaints under
Article 6 (art. 6).
The full text of the Commission's opinion 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 174 of Series A of the Publications of the Court), but a
copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS MADE TO THE COURT
36. At the hearing on 23 October 1989, the applicant moved the
Court "to approve [his] complaints and find in his favour, award just
satisfaction in respect of the complaints and award expenses against
the Government". He stated, however, that he felt "bound to accept
the decision of the Commission" on Articles 5, 8 and 13 (art. 5,
art. 8, art. 13).
The Government, for their part, requested the Court to declare:
"(a) that the applicant has not exhausted domestic remedies in
respect of his complaint under Article 6 (art. 6) of the
Convention or, in the alternative, that there has been no violation of
Article 6 (art. 6); and
(b) ... that there has been no violation of Articles 5, 8 or 13
(art. 5, art. 8, art. 13) of the Convention."
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
37. In their memorial the Government pleaded that Mr Granger had
not exhausted all domestic remedies, by reason of (a) his failure to
re-apply to the Legal Aid Committee, together with (b) "his failure to
raise [the points which he now seeks to adduce before the Convention
organs] in his first application to the Committee".
The applicant and the Commission disagreed.
38. As regards ground (b) in support of their plea of
non-exhaustion, the Government explained at the hearing before the
Court that the "points" referred to were the psychiatric report on the
applicant and his limited intellectual and linguistic abilities (see
paragraph 15 above). They acknowledged, however, that before the
Commission they had not expressly linked these points to the issue of
non-exhaustion.
In the Court's view, there was nothing to prevent the Government from
doing so. Consequently they are, according to the established
case-law, estopped from pleading non-exhaustion on this ground (see,
for example, the Artico judgment of 13 May 1980, Series A no. 37,
p. 13, § 27, and the Bricmont judgment of 7 July 1989, Series A
no. 158, p. 27, § 73).
39. As regards ground (a), which had been raised before the
Commission, the Government maintained that, after the High Court of
Justiciary had called for a transcript of the evidence and adjourned
its hearing of Mr Granger's appeal on 27 September 1985 (see
paragraph 19 above), it would have been open to him to renew his
legal-aid application or request the Legal Aid Committee to reconsider
it.
In this connection, the Government stated that, although the
Committee was not required by law to reconsider applications it had
refused, its practice - which was well established and widely known at
the time - was to do so where a material change of circumstances had
occurred or where relevant new information was placed before it. As
evidence of this they referred to the cases of Larkin v. Her
Majesty's Advocate and Williamson v. Her Majesty's Advocate
(1988 Scottish Criminal Case Reports 30 and 56), in which legal aid had
been granted, after the appeal court had called for a transcript of the
evidence given at first instance, to appellants who initially had not
been legally aided.
40. The Court observes that the two cases cited date from 1988,
that is some years after the applicant's appeal, by which time the
previous system for the administration of legal aid had been reformed
(see paragraphs 14 and 30 above). The Government have adduced no
evidence of the practice of the Legal Aid Committee itself as regards
the reconsideration of applications, the existence whereof was, in
fact, questioned by Mr Granger. The Government have, therefore, not
furnished the necessary proof of the availability of a remedy that the
applicant should have exhausted (see, as the most recent authority,
the Brozicek judgment of 19 December 1989, Series A no. 167,
p. 16, § 32).
41. In sum, the preliminary objection is subject to estoppel as to
part and without foundation as to the remainder.
II. ALLEGED VIOLATION OF ARTICLE 6 (art. 6)
42. Mr Granger complained of the refusal to grant him legal aid
for his appeal and of the inequality of arms he attributed thereto.
He alleged violations of paragraphs 1 and 3 (c) of Article 6
(art. 6-1, art. 6-3-c) of the Convention, which read:
"1. In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
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;
..."
The Government contested these allegations. The Commission expressed
the opinion that there had been a violation of paragraph 3 (c)
(art. 6-3-c) and that no separate issue arose under paragraph 1
(art. 6-1).
43. Since the guarantees in paragraph 3 of Article 6 (art. 6-3) are
specific aspects of the right to a fair trial in criminal proceedings
stated in paragraph 1 (art. 6-1) (see, for example, the Kostovski
judgment of 20 November 1989, Series A no. 166, p. 19, § 39), the
Court considers it appropriate to examine the applicant's complaints
from the angle of paragraphs 3 (c) and 1 (art. 6-3-c, art. 6-1)
taken together.
44. As regards paragraph 3 (c) (art. 6-3-c), it was common ground
that Mr Granger did not have "sufficient means to pay for legal
assistance"; the sole issue under this paragraph is therefore whether
"the interests of justice" required that he be given such assistance
free.
In this connection, the Court recalls that the manner in which
paragraph 1, as well as paragraph 3 (c), of Article 6 (art. 6-1,
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 judgment
of 2 March 1987, Series A no. 115, p. 22, § 56).
45. The Government maintained that the Commission's conclusion was
not justified by the various factors on which it had relied. In their
view, the interests of justice, the evaluation whereof lay in the
first place with the domestic authorities, did not require a grant of
legal aid for the appeal, which they described as being "wholly
without substance" and having "no reasonable prospects of success".
They pointed out that Mr Granger had had full legal aid for his trial,
extending to the obtaining of counsel's opinion on the prospects of an
appeal, which opinion had been negative (see paragraphs 13 and 15
above); that the Legal Aid Committee, an independent and expert body,
had not been satisfied that there were substantial grounds for the
appeal (see paragraph 16 above); that the applicant had been able to
present argument at the appeal hearings (see paragraphs 18 and 20
above); and that the case had to be seen in the context of the
Scottish system in which an active role was played by the appeal court
and an impartial role was expected of the Crown and where the
automatic right of appeal resulted in the filing of many appeals which
were without merit (see paragraphs 25 and 28 above).
46. The Government's description of the appeal as "wholly without
substance" is more categorically negative than the opinion expressed
on this subject by the applicant's counsel and the Legal Aid Committee
(see paragraphs 15-16 above). However, it is not the Court's task to
go further into this matter, notably by formulating its own view as to
whether the Committee was correct in concluding, on 11 July 1985, that
it was not satisfied that there were substantial grounds for
appealing. The question whether the interests of justice required a
grant of legal aid must be determined in the light of the case as a
whole. In that respect not only the situation obtaining at the time
the decision on the application for legal aid was handed down but also
that obtaining at the time the appeal was heard are material.
47. Mr Granger had been convicted on indictment of perjury and
sentenced to five years' imprisonment. There can thus be no question
as to the importance of what was at stake in the appeal.
Before the High Court of Justiciary, the Solicitor General, on account
of his familiarity with the case, appeared for the Crown and addressed
the judges at length (see paragraphs 12, 18 and 29 above). On the
other hand, the applicant, as was not contested, was not in a position
fully to comprehend the pre-prepared speeches he read out (see
paragraphs 18 and 20 above) or the opposing arguments submitted to the
court. It is also clear that, had the occasion arisen, he would not
have been able to make an effective reply to those arguments or to
questions from the bench.
The foregoing factors are of particular weight in the present case in
view of the complexity of one of the issues involved. Whilst the High
Court of Justiciary apparently had little trouble in disposing of four
of Mr Granger's grounds of appeal, the same did not apply to the
remaining one. After hearing argument, it decided that this ground
- which turned on what the Solicitor General himself described at the
European Court's hearing as the "difficult" distinction between
"precognitions" and other statements (see paragraph 17(b) above) -
deserved more detailed consideration. It adjourned its hearing and
called for a transcript of the evidence given at the applicant's
trial, so as to be able to examine the matter more thoroughly (see
paragraph 19 above). It thus became clear that this ground of appeal
raised an issue of complexity and importance.
In this situation some means should have been available to the
competent authorities, including the High Court of Justiciary in
exercise of its overall responsibility for ensuring the fair conduct
of the appeal proceedings, to have the refusal of legal aid
reconsidered. According to the scheme in operation at the relevant
time, however, the Legal Aid Committee's decision of 11 July 1985 was
stated to be final (see paragraphs 16 and 31 above). The Government,
it is true, maintained that as a matter of practice the decision could
have been reviewed after the High Court had called for a transcript of
the evidence and adjourned its hearing of the appeal (see
paragraphs 39-40 above). In fact no such review took place. It would
appear to the Court that in all the circumstances of the case it would
have been in the interests of justice for free legal assistance to be
given to the applicant at least at that stage for the ensuing
proceedings. Such a course - which would have been in line with what
occurred in the later cases of Larkin and Williamson (see paragraph 39
above) - would in the first place have served the interests of justice
and fairness by enabling the applicant to make an effective
contribution to the proceedings (see, mutatis mutandis, the Pakelli
judgment of 25 April 1983, Series A no. 64, p. 18, § 38).
Furthermore, the High Court of Justiciary would then have had the
benefit of hearing - just as it does before giving an opinion on a
reference by the Lord Advocate (see paragraph 32 above) - expert legal
argument from both sides on a complex issue.
48. The Court thus concludes that there has been a violation of
paragraph 3 (c), taken together with paragraph 1, of Article 6
(art. 6-3-c, art. 6-1).
III. ALLEGED VIOLATIONS OF ARTICLES 5, 8 AND 13 (art. 5, art. 8,
art. 13)
49. Before the Commission, Mr Granger also alleged violations of
Articles 5, 8 and 13 (art. 5, art. 8, art. 13) of the Convention
(see paragraph 34 above). However, these claims were not pursued
before the Court (see paragraph 36 above) and it sees no need to
examine them of its own motion.
IV. APPLICATION OF ARTICLE 50 (art. 50)
50. Article 50 (art. 50) of the Convention provides:
"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."
Mr Granger sought under this provision compensation for damage,
together with reimbursement of his costs and expenses referable to the
proceedings before the Convention institutions.
A. Damage
51. Whilst accepting that it was impossible to be certain as to
the outcome of the appeal had legal aid been granted, Mr Granger
maintained that it could not be said that there was no objective
prospect of success. He claimed that he was entitled to compensation
in the region of £10,000 for damage suffered as a result of his
imprisonment and the stress of the whole circumstances of the case, in
the shape of denial of the opportunity of securing remunerative
employment and disruption of his private life.
52. The Court cannot speculate as to what the outcome of
Mr Granger's appeal would have been if he had been legally aided. As
the Government pointed out, even in that event the grounds of appeal
which would have been argued would have been the same (see
paragraph 27 above); it cannot therefore be assumed that the result
would have been more favourable to the applicant. The Court thus
agrees with the Government that no causal link has been established
between the violation of Article 6 (art. 6) and the alleged pecuniary
damage.
As regards non-pecuniary damage, it is true, as the Government
emphasised, that although Mr Granger was not legally aided, he was
assisted by his solicitor throughout the appeal proceedings (see
paragraphs 17-18 and 20 above). All the same, he must have been left
with a certain sensation of isolation and confusion, especially on
learning that he would have to face a second hearing devoted to a
complex issue which he could not fully comprehend. The Court
considers that he should be awarded under this head the sum of £1,000.
B. Costs and expenses
53. Mr Granger claimed no compensation in respect of domestic
legal costs; on this point his solicitor explained to the Court that
he did not feel that he would have expected his client to pay for work
done in connection with his appeal.
54. For lawyer's fees and disbursements referable to the
proceedings in Strasbourg the applicant sought reimbursement of the
sum of £11,290.73, inclusive of value added tax; this figure did not
include travel and subsistence expenses paid by the Council of Europe
by way of legal aid.
The Government did not contest that the applicant had incurred
liability to pay sums additional to those covered by the aforesaid
legal aid and they indicated their willingness to reimburse costs as
assessed by the Court on the usual basis. They did, however, make a
series of observations on the claim and submitted that an appropriate
assessment would be £4,092.13, inclusive of value added tax; this
figure should be further reduced if and to the extent that no
violation were found in respect of certain of the applicant's
allegations.
55. The Court has examined the claim in the light of the criteria
emerging from its case-law and of the observations presented by the
Government and the Delegate of the Commission. In doing so, it has
noted the following points.
(a) The applicant's solicitor compiled his account by reference to
the Scottish scales for conveyancing and general business. Like the
Delegate, the Court is not persuaded by the Government's submission
that the appropriate basis of calculation would be the criminal legal
aid fees payable in Scotland. In any event, it is not bound in this
context by domestic scales or standards (see, for example, the Eckle
judgment of 21 June 1983, Series A no. 65, p. 15, § 35).
(b) The Court shares the Government's doubts as to the quantum and
relevance of certain items in the solicitor's account.
(c) It is true that the complaints of violation of Articles 5, 8 and
13 (art. 5, art. 8, art. 13) of the Convention, contained in the
application to the Commission, have not been upheld. However, the
applicant's allegations in this respect were not pursued before the
Court (see paragraph 49 above); moreover, during the proceedings
before the Commission, they were, according to the Delegate, the
subject neither of written observations nor of oral argument at the
hearing. The bulk of the work done by the applicant's solicitor thus
related to Article 6 §§ 1 and 3 (c) (art. 6-1, art. 6-3-c), so that
it would not, in the Court's view, be appropriate to make a
significant reduction in respect of the unsuccessful complaints.
56. Taking into account the above factors and also the legal aid
payments made by the Council of Europe in respect of his solicitor's fees
and making an assessment on an equitable basis, the Court considers that
Mr Granger is entitled to be reimbursed, for legal fees and expenses, the
sum of £7,000, inclusive of value added tax.
FOR THESE REASONS, THE COURT
1. Dismisses unanimously the Government's objection of
non-exhaustion of domestic remedies;
2. Holds unanimously that there has been a violation of
paragraph 3 (c), taken together with paragraph 1, of Article 6
(art. 6-3-c, art. 6-1) of the Convention;
3. Holds unanimously that it is not necessary to examine the case
under Articles 5, 8 and 13 (art. 5, art. 8, art. 13);
4. Holds by four votes to three that the United Kingdom is to pay
to the applicant £1,000 (one thousand pounds) for non-pecuniary
damage;
5. Holds unanimously that the United Kingdom is to pay to the
applicant £7,000 (seven thousands pounds), inclusive of value added
tax, for legal costs and expenses;
6. Dismisses unanimously 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 March 1990.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar