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