European Court of Human Rights - case of Granger v. The United Kingdom (1990) (excerpts)

European Court of Human Rights - case of Granger v. The United Kingdom (1990) (excerpts)

(...)

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.