DRAFT

AS TO THE ADMISSIBILITY OF

Application No. 11932/86

by G.

against the United Kingdom

        The European Commission of Human Rights sitting in private on

9 May 1988, the following members being present:

                MM.  C.A. NØRGAARD, President

                     S. TRECHSEL

                     F. ERMACORA

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                M.   C.L. ROZAKIS

                Mrs.  J. LIDDY

                Mr.  J. RAYMOND, Deputy Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 5 December 1985

by G. against the United Kingdom and registered on 13 January 1986

under file No. 11932/86;

        Having regard to:

    -   the first report provided for in Rule 40 of the Rules of

        Procedure of the Commission;

    -   the observations submitted by the respondent Government on

        30 March 1987 and the observations in reply submitted by

        the applicant on 29 April 1987;

    -   the second report provided for in Rule 40 of the Rules of

        Procedure of the Commission;

    -   the submissions made by the parties at the hearing on

        9 May 1988;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a British citizen born in 1960 and detained

in H.M. Prison, Barlinnie, Glasgow, Scotland.  He is represented

before the Commission by John Carroll, solicitor, Glasgow.  The facts

of the case as submitted by the parties may be summarised as follows.

        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, however, 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.

        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 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, that he

had untruthfully denied making two detailed statements, 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 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 that.

        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 may have on the administration of justice.  Therefore the

indictment against the applicant and his co-accused was 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, 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.

        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 it did 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 the solicitors 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

solicitors 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.

        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 the 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 or 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.

        The applicant's appeal was heard by the High Court of

Justiciary, consisting of three judges, on 27 September 1985, when 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 Procurator Fiscal's Office.  The applicant was unrepresented

because 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.

        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 in

fact 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 was instructed by his

solicitors to read out a speech which 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.

        The applicant's appeal against conviction 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.

        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 trial judge's

directions to the jury at the applicant's trial, 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.

COMPLAINTS

        The applicant complains that he was refused free legal aid for

his appeal, contrary to the interests of justice.  He submits that the

appeal raised important matters concerning civil liberties and complex

matters of law.  It is unsatisfactory for a man "to act as an advocate

in his own cause" since he lacks the necessary detachment and often

the necessary training and experience.  The importance of the

proceedings is indicated by the Crown's separate application for an

Opinion on the law 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 Procurator Fiscal's Office, represented

the prosecution at the appeal.  While the applicant was 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.  The applicant alleges that the

proceedings were tainted by a blatant inequality of arms.

        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, 6 paras. 1 and 3

(c), 8 and 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 5 December 1985 and

registered on 13 January 1986.

        After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on

1 December 1986.  It decided that notice of the aplication should be

given to the respondent Government, pursuant to Rule 42 para. 2 (b) of

its Rules of Procedure, and that the parties should be invited to

submit 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 fixed 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.

        The Commission resumed its examination of the admissibility

of the application on 9 December 1987 and decided, pursuant to Rule

42(3)(b) of its Rules of Procedure, to invite the parties to make

further oral submissions 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 1986, the parties were

represented as follows:

        For the Government

        Mr.  Michael Wood, Agent

        Mr.  Peter Fraser, Q.C., Solicitor General for Scotland

        Mr.  Alan Rodger, Q.C.

        Mrs.  Margaret Macdonald, Adviser (Scottish Office)

        Mr.  William Howat, Adviser (Scottish Office)

        Mr.  Graham Buchanan, Adviser (Crown Office)

        For the Applicant

        Mr.  John Carroll, Solicitor

SUBMISSIONS OF THE PARTIES

        The Government

    1.  The facts

        The Government submit that the applicant had full legal aid

for his trial and advice as to the prospects of success of an appeal.

Counsel advised against 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 argument.  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.

        The Government also contend that the separate proceedings

instituted by the Lord Advocate on the points of law arising out of

the trial judge's legal directions were not relevant to the appeal

lodged by the applicant.  On the applicant's appeal, the appeal court

was not required to take the Lord Advocate's reference into account or

decide it at that stage.

    2.  Relevant domestic law and practice

        Appeals against conviction or sentence by persons

        convicted on indictment

        A person convicted on indictment may appeal to the High Court

of Justiciary against his conviction or sentence or both.  There is no

requirement to obtain leave to appeal, with the result that

unmeritorious appeals will often come before the High Court.  Appeals

are heard by a bench of not less than three judges.  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.  By such an appeal, the appellant may

bring under review any alleged miscarriage of justice in the

proceedings.  The court is not, however, obliged to allow an appeal in

every case in which it holds that there has been a miscarriage of

justice, and an appeal will not be allowed where the court determines,

in its discretion, that the miscarriage of justice is not such as to

warrant quashing the conviction.  What is or is not a miscarriage of

justice is not defined by statute, but the term includes such matters

as misdirections by the judge presiding at the trial or wrong

decisions on the admissibility of evidence, as well as breaches of

natural justice.  In an ordinary case the court will either refuse the

appeal and affirm the verdict of the jury, or allow the appeal, set

aside that verdict and quash the conviction.

        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.  The Government

submit that the procedure does not envisage any debate between the

appellant and the Crown or any need for the appellant to respond to

arguments raised by the Crown; the address to the court by the Crown

is by its nature a response to the arguments of the appellant and will

not raise any new matter.

        Lord Advocate's references

        Under Section 263A(1) of the Criminal Procedure (Scotland) Act

1975, 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 only the second occasion on which 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.

        Availability of legal aid for criminal appeals

        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, however, that Act was repealed and

replaced by the Legal Aid (Scotland) Act 1986.  In consequence of

that, decisions as to the granting of legal aid for criminal appeals

as from 1 April are taken by the Scottish Legal Aid Board, an

independent body whose members are appointed by the Secretary of State

for Scotland.  The following paragraphs describe the law as it stood

at the time relevant to the facts of the present application:

        Legal aid which has been made available for a trial on

indictment extends, where the accused person is convicted, to include

consideration and advice by the solicitor who acted for him on the

question of appeal.  In particular, the solicitor will prepare and

lodge the statutory intimation of intention to appeal or note of

appeal and will, 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 desired to

proceed with an appeal and legal aid is sought, the solicitor will

also complete and submit the necessary application.

        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

substantial experience of court practice.  Section 1(7)(b) of the 1967

Act required that a person should not be given legal aid in connection

with proceedings by way of appeal against conviction or sentence

unless it appeared to the Committee that he had substantial grounds

for taking those proceedings, and that it was reasonable that he

should receive legal aid in the particular circumstances of the case.

It was extremely unusual for the Committee to decide that it was not

reasonable to grant legal aid to a person who appeared to have

substantial grounds for taking an appeal.  The Committee normally

reached their decision on the basis of the documents before them,

which normally 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 and of

the Committee members' own knowledge and experience.

        The decision of the Committee on the merits of an application

for criminal legal aid for an appeal is declared by the Legal Aid

(Scotland) (Criminal Proceedings) Scheme 1975 to be final, but if it

was thought that their decision to refuse legal aid was wrong in law,

failed to apply the statutory provisions, or the rules of natural

justice, or was completely unreasonable, it would have been possible

to challenge that decision by means of an application for judicial

review before the Court of Session.  Such an application, if

successful, would have led to the Committee being required to

reconsider the application.

    3.  Admissibility and merits

        Exhaustion of domestic remedies

        The Government submit that the applicant has not exhausted

domestic remedies, in compliance with Article 26 of the Convention

because he did not seek judicial review of the decision of the Legal

Aid Committee.  They refer to the cases of Christie v.  Reynolds (1988

SLT 68) and Gary MacLachlan Petitioner (1987 SCCR 195) as indicating

the possibility of a remedy.  They also submit that the applicant

failed to re-apply to the Committee for legal aid when the case was

adjourned by the High Court on 27 September 1985.

        Article 6 of the Convention

        The Government refer to the case of Monnell and Morris (Eur.

Court H.R., judgment of 2 March 1987, Series A no. 115, 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.

11932/86

        (a) Article 6 para. 3 (c) of the Convention

        Article 6 para. 3 (c) is designed to ensure the effective

protection of the rights of the defence (Eur.  Court H.R., Pakelli

judgment of 25 April 1983, Series A no. 64, para. 31), and is a

constituent element of the right to a fair trial (Monnell and Morris

judgment loc. cit., p. 21, para. 53).

        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,

extensive legal aid having been granted up to that point.  Counsel's

opinion was borne out by the High Court's dismissal of the appeal.

        The appeal proceedings did not take the form of a debate and

the presence of the Solicitor General for Scotland was by reason of

his detailed knowledge of the case, having represented the Crown at

the trial.

        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).

        (b) Article 6 para. 1 of the Convention

        The Government submit that no separate issue arises in the

present case under this aspect 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).

        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.

    4.  Conclusion

        The Government request the Commission to declare the

application inadmissible, either for failure to exhaust domestic

remedies or as being manifestly ill-founded.

        The applicant

    1.  The facts

        Prosecutions for perjury of witnesses are not uncommon, but

they are frequently prosecuted as summary complaints or on indictment

before a Sheriff and jury (thus lower sentencing powers).  In a recent

case of this type the prosecution was conducted by the Home Advocate

Depute who is junior to the Solicitor General for Scotland.  While

accepting that the prosecutor has discretion in respect of the forum

before which such prosecutions are taken and of the personnel

instructed to conduct the prosecution, the applicant cannot see

consistency or justification for the statement that his case was so

important that it required the Solicitor General to prosecute it.

        At the hearing of the appeal the Solicitor General was

assisted throughout by junior counsel, who had also assisted at the

trial.  The applicant could not, and did not, enter into any

discussion on whether the court could determine the particular

grounds of appeal.  Until the second hearing on 6 March 1986 it was

believed that most, if not all points of appeal, remained for

consideration.  At the first hearing, the prosecution took not less

than 90 minutes in argument against the Grounds of Appeal and the

Court found it necessary to adjourn to have the transcript of the

evidence of various witnesses before continuing further.

        The applicant submits that the Government's distinction

between the Lord Advocate's reference and the applicant's appeal is

"legal fiction".  The points raised in the former were inextricably

linked to the latter.  Furthermore the former raised the same

questions as were raised in two of the applicant's grounds of appeal

and the need felt by the Lord Advocate to clarify the law in this area

demonstrates the legal complexity of the case and the untenability of

the suggestion that the applicant's appeal had no objective prospect

of success.

    2.  Relevant domestic law and practice

        Under Scots law the appeal courts have a discretion in

determining what amounts to a miscarriage of justice and whether, if

established, the quashing of a conviction is warranted, depending on

the circumstances of each case.  The applicant submits that it is the

role of the appellant or his legal representative, through advocacy,

to persuade a court that a miscarriage of justice has occurred,

necessitating the quashing of the conviction.

        The applicant contends that the Government's description of

the appeal procedure is over-simplistic.  The applicant could have

dealt with his appeal in writing, but that would have deprived him of

the opportunity to hear and challenge the prosecution submissions.

Appeal hearings often take the form of a debate in which the judge

will be involved if matters of law arise.  The prosecution attacks the

appellant's grounds of appeal, rather than responding to them, and

attempts to persuade the court to follow a particular course.  It is

in essence true advocacy.

        As regards the Lord Advocate's reference in order to clarify

the law, the applicant reaffirms that the law relevant to his case was

in real need of clarification.

        The applicant challenges the Government's approach to legal

aid in criminal appeals.  The proper test should be whether the

grounds of appeal are substantial, not whether, on counsel's opinion,

an appeal has good prospects of success.  Substantial grounds of

appeal may fail if the advocacy is deficient.  The solicitor in the

present case substantially disagreed with counsel about the applicant's

appeal, and the former's opinion was borne out by the four days of

legal argument before the trial court, raising issues which were to

form the basis of the applicant's appeal.

        As regards appealing against a refusal of legal aid, the

applicant points out that he would have needed legal aid for a

judicial review application.  This legal aid would have been

determined by the same body which had refused him legal aid for the

criminal appeal.  Before granting such legal aid the Legal Aid

Committee would be in the absurd position of having to find good

grounds for the judicial review application and, thereby, conclude

that their refusal of legal aid for the appeal was wrong.  The

Committee would be a judge in its own cause.  Furthermore, recent

case-law demonstrates the inefficacy of such a remedy (Christie v.

Reynolds 1988 SLT 68 and Gary McLachlan 1987 SCCR 195).  The applicant

relied in this respect on the Opinion of Lord Morison in the Reynolds

case, which concerned an application for judicial review of a refusal

of legal aid in the District Court.  Lord Morison stated:

        "Accordingly I hold as a matter of principle and on the basis

        of the authorities which I have mentioned that the supervisory

        jurisdiction of the Court of Session has not been competently

        invoked in the present case, and that the petition is

        incompetent.  Had I considered the petition to be competent

        I would have held the present averments made in support of

        the petitioner's only plea-in-law to be irrelevant.  The

        petitioner seeks to annul the respondent's refusal to grant

        him legal aid on the basis that the respondent failed to

        take account of certain relevant matters, and that no

        magistrate properly directing himself on the relevant law

        and acting reasonably would have made the decision that he

        did.  It is apparent that these contentions are, as the

        case is now pled, based on inference derived from the fact

        that the application was refused despite the existence of

        the considerations founded on.  But it is not suggested

        that these considerations were the only ones which the

        respondent was entitled to consider or did consider.  It is

        impossible to infer from the petitioner's averments that the

        respondent's determination as to the interests of justice was

        not one which he was entitled to reach on the view that other

        considerations outweighed those founded on.  I recognise the

        difficulty presented to an applicant of ever being able to

        challenge a decision which is final and in which there is

        apparently no requirement to state reasons, but it may be

        noted that section 24 of the Legal Aid (Scotland) Act 1986

        will alter the position in this respect."

        As regards the Government's contention that the applicant

could have re-applied for legal aid, it is submitted that nothing had

occurred which would have induced the Committee to change its

decision.

    3.  Admissibility and merits

        On exhaustion of remedies the applicant refers to the

observations immediately above.

11932/86

        The applicant submits that the case of Monnell and Morris

(Eur.  Court H.R. 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.

Scots procedure is different.  As a matter of fairness the applicant

should have been legally represented to hear and argue against the

prosecution "response" to his grounds of appeal.  At the trial, the

trial judge had certified the case as one of exceptional length,

difficulty and complexity.  Such was the importance of the case that

the Lord Advocate saw fit to make a reference.  The appeal court

required a transcript of part of the trial in order to deal with one

of the grounds of appeal.  It was therefore clearly in the interests

of justice that the applicant receive free legal assistance for his

appeal.

        Whatever the practices were of the Legal Aid Committee (unknown

to the applicant) the fact remains that the appeal was substantial,

taking several hours.  Not only counsel's opinion, but also the legal

argument at the trial and the Lord Advocate's reference, demonstrate

the difficult legal questions concerning, inter alia, the concepts of

materiality and fairness.  Whilst the prosecution has notice of the

appellant's grounds of appeal, the appellant has no notice of the

prosecution's "response".  In this case the prosecution's response

lasted 90 minutes and the applicant's chances of success on appeal may

have been improved if he had been represented.  The dismissal of the

appeal does not necessarily mean that the grounds of appeal stood no

such chance.

        The Solicitor General was present at the appeal, accompanied

as junior counsel by an Advocate Depute.  It is understood that

Advocates Depute are selected from the most able members of the

Faculty of Advocates.  Had the applicant's grounds of appeal been

insubstantial they could have been dealt with easily by junior counsel

alone.

        It cannot be said, therefore, that the present application is

like the aforementioned Monnell and Morris case, because the

applicant's appeal could not have been assessed as having "no

objective likelihood of success".

        The principle of equality of arms required the applicant's

representation on appeal, particularly given the extent of judicial

discretion in following or departing from judicial precedents.

    4.  Conclusion

        The applicant requests the Commission to find a breach of the

Convention in his case.

THE LAW

        The applicant complains that he was refused legal aid for his

appeal against conviction contrary to the interests of justice and

that there was a blatant inequality of arms due to the presence of the

Solicitor General, junior counsel and at least one member of the

Procurator Fiscal's Office for the prosecution.  He also complains

that he was given a false promise of immunity to procure evidence from

him and that when he contradicted the statements obtained in this way,

he was unfairly prosecuted for perjury.  He invokes Articles 5, 8 and

13 (Art. 5, 8 and 13) of the Convention and in particular Article 6

paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention, the relevant

parts of which provide:

        "1.  In the determination of his civil rights and

        obligations or 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...

        ...

        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 respondent Government have contended that the applicant

has not exhausted domestic remedies in respect of his complaints under

these provisions, since he did not apply for judicial review of the

refusal of legal aid and he did not re-apply to the Legal Aid

Committee when his appeal was adjourned.  The applicant submits that

recent case-law establishes that judicial review is not an effective

remedy in this area and that nothing occurred pending the applicant's

appeal which would have led the Committee to change its decision.

        The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies which relate

to the breaches of the Convention alleged and at the same time can

provide effective and sufficient redress.  An applicant does not need

to exercise remedies which, although theoretically of a nature to

constitute a remedy, do not in reality offer any chance of redressing

the alleged breach (cf.  Application No. 9248/81, Dec. 10.10.83, D.R.

34, p. 78).

        It is furthermore established that the burden of proving the

existence of the available and sufficient domestic remedies lies upon

the State invoking the rule (cf.  Eur.  Court H.R., Deweer judgment of

27 February 1980, Series A no. 35, p. 15, para. 26, Application No.

9013/80, Dec. 11.12.82, D.R. 30 p. 96, p. 102).

        The Commission notes that the decision of the Legal Aid

Committee refusing legal aid to the applicant is deemed to be final by

the Legal Aid (Scotland) (Criminal Proceedings) Scheme 1975.  The

Commission further recalls that in the Christie v.  Reynolds case,

referred to by the parties (see above at pages 8 and 11) the Court of

Session held it was not competent to deal with the application for

judicial review of a refusal to grant legal aid and commented

generally on the difficulty of an applicant ever being able to

challenge a decision which is final and for which there is apparently

no requirement to state reasons.  The Commission finds that there is

no indication that the applicant would have had any possibility of

successfully challenging the refusal of the Legal Aid Committee by way

of judicial review against this background.

        As regards the respondent Government's contention that the

applicant failed to re-apply to the Committee, the Commission

considers that the possibility of requesting an authority to

reconsider a decision taken by it will not generally constitute an

effective remedy for the purposes of Article 26 (Art. 26) of the

Convention (cf. Application No. 7729/76, Dec. 17.12.76, D.R. 7 p. 164)

and that there is no indication in the present case that such a

re-application to the Legal Aid Committee would have done so.  The

Commission is accordingly unable to accept that the application should

be declared inadmissible for non-exhaustion of domestic remedies.

        The Commission has made a preliminary examination of the

parties' observations on the merits of the complaints under Article 6

paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention.  It considers

that these complaints raise difficult issues of fact and law which are

of such complexity that their determination should depend upon a full

examination of the merits.  The Commission also finds that the

applicant's other complaints concerning Articles 5, 8 and 13 (Art. 5,

8 and 13) of the Convention arise from the same factual basis.  It

follows that the application cannot be declared manifestly ill-founded

and must be declared admissible, no other ground for declaring it

admissible having been established.

        For these reasons, the Commission

        DECLARES THE APPLICATION ADMISSIBLE, without prejudging

        the merits of the case.

Deputy Secretary to the Commission       President of the Commission

            (J. RAYMOND)                        (C.A. NØRGAARD)