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)
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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.