CASE OF GRANGER v. THE UNITED KINGDOM
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
C. Russo
8. A number of serious incidents between rival groups in Glasgow in the early 1980’s culminated in a fire-raising attack on industrial premises, followed by a petrol-bomb attack on an apartment resulting in the death of six members of the same family. 9. Mr Granger, who is a British citizen born in 1960 and resident in Glasgow, was interviewed by the police during their investigations; on 23 and 25 May 1984, in signed statements, he gave details of how the crimes had been committed and named the persons responsible, that is Thomas Lafferty and six others. This evidence was considered by the Crown to be important and was a major basis for the decision to prosecute those persons. Steps were taken to secure the applicant’s safety until the trial. 10. The trial of Thomas Lafferty and the six others on charges relating, inter alia, to the fire-raising and the murders took place before the High Court of Justiciary in Glasgow in September 1984. Mr Granger appeared as a principal witness for the Crown. However, once in the witness-box, he denied all knowledge of any matters relevant to the crimes. He also denied that he had given the above-mentioned statements, claiming instead that they had been made up by the police, who had pressurised him into signing them. 11. Shortly afterwards, the applicant was arrested and prosecuted on indictment in the High Court of Justiciary for perjury. He was held in custody pending and during his trial. In summary, the charges against him were that, while giving evidence at the Lafferty trial, he had untruthfully: (a) stated that marks on a plan which he had drawn had been placed there by him on the instructions of the police rather than on his own initiative; (b) denied making a detailed statement to the police on 23 May 1984 about the fire-raising; (c) denied making a detailed statement to the police on 25 May 1984 about the murders; (d) claimed to have been pressurised and assaulted by the police and forced to sign statements previously prepared by them; (e) pretended that he had told his solicitor that he had been assaulted by police officers and forced to sign a statement against his will. 12. The applicant received legal aid for the preparation of his defence by his solicitor and for representation at his trial by both senior and junior counsel. The Crown was represented by the Solicitor General for Scotland (see paragraph 29 below), since the gravity of the charges was considered to warrant the presence of a senior prosecutor and since the most senior Advocate Depute, who had appeared for the prosecution at the Lafferty trial, was to be a witness at the applicant’s trial. After a four-week trial before the High Court of Justiciary in Glasgow in February 1985, Mr Granger was found guilty of the first, second and fourth charges against him and not guilty of the fifth; the third was found not proven. He was sentenced to five years’ imprisonment. The trial judge certified, for the purposes of determining the fees payable under the legal-aid scheme, that the case had been one of exceptional length, complexity and difficulty. 13. The applicant’s solicitor subsequently lodged an intimation of intention to appeal against conviction (see paragraph 27 below). The legal aid granted for the perjury trial covered this work, as well as the solicitor’s advising on the prospects of an appeal, obtaining counsel’s opinion on the same point, having counsel frame a note of appeal setting out the grounds of appeal (ibid.), lodging the note of appeal and making an application for legal aid to pay for representation at the hearing of the appeal itself. 14. Such an application was submitted on behalf of Mr Granger, who had insufficient means to pay for legal assistance, to the Supreme Court Legal Aid Committee of the Law Society of Scotland (see paragraph 30 below) on 6 June 1985. It was accompanied by a memorandum, a copy note of appeal (with a supplementary statement of the grounds) and the judge’s summing-up to the jury at the applicant’s trial; later a copy of the indictment and a note of previous convictions were also lodged. 15. The Committee considered the material before it to be insufficient and asked the applicant’s solicitor to furnish counsel’s opinion on the prospects of the appeal. This he did on 4 July 1985. The solicitor had, in fact, already obtained such an opinion, on 14 May 1985, from the senior and junior counsel who had represented Mr Granger at his trial; the senior counsel, in particular, had considerable experience in presenting appeals before the High Court of Justiciary. The authors of the opinion concluded that they could not advise that the appeal should proceed: in their view, neither of the two possible stateable grounds of appeal was of sufficient substance as to have reasonable prospects of success and, in any event, there was no real prospect of satisfying the court that there had been a miscarriage of justice (see paragraph 26 below). The solicitor also provided the Committee with a copy of his letter of 23 May 1985 to his Edinburgh agents, indicating that he disagreed with counsel’s opinion. Although he had obtained on 5 February 1985, for the purposes of the applicant’s trial, a psychiatric report which stated that the applicant was of modest intelligence but with a poor command of English and poor comprehension of written material, he did not communicate this to the Committee. Neither did he refer, in any material he placed before it, to any intellectual or linguistic limitations of his client. 16. By decision of 11 July 1985, which was stated to be final, the Committee refused the application, since it was not satisfied that Mr Granger had substantial grounds for his appeal (see paragraph 31 below). 17. The applicant nevertheless continued to receive advice and assistance from his solicitor and decided to proceed with the appeal. The grounds were the same as those considered by counsel in the opinion of May 1985 (see paragraph 15 above). The applicant maintained that there had been a miscarriage of justice (see paragraph 26 below), in that (in summary): (a) during the cross-examination of a police officer, the trial judge had intervened with the comment - alleged to be tantamount to a premature direction in law to the jury and incorrect - that the line being followed by the defence was incompetent and irrelevant; (b) the judge had erred in admitting in evidence a statement made by the applicant on 23 May 1984, notwithstanding a defence objection that it was inadmissible as being in the nature of a precognition, that is a statement made by a potential witness at an advanced stage of an investigation outlining the evidence he is likely to give at a forthcoming trial; (c) the judge had erred in repelling a further objection to the admissibility of the same statement, namely that it was evidence of crimes not charged against the applicant and would lead to prejudice; (d) the judge had erred in directing the jury that it would not be unfair for a police officer - if he genuinely believed that his superiors intended to use the applicant only as a witness - to have told the applicant, prior to obtaining the aforesaid statement and certain sketch plans, that he would not be charged with any offence; (e) the judge had erred in rejecting a defence submission that the evidence given by the applicant at the Lafferty trial had not been "material" and accordingly could not form the basis of a charge of perjury. 18. The hearing of the appeal opened before the High Court of Justiciary, sitting in Edinburgh as an appellate court of three judges, on 27 September 1985. The Crown was again represented by the Solicitor General for Scotland, accompanied by junior counsel and a member of the staff of the Crown Office (see paragraph 29 below). Since the refusal of legal aid precluded the instruction of counsel and since solicitors do not have rights of audience in the High Court of Justiciary, Mr Granger presented his appeal himself. He read out a statement, prepared by his solicitor, which elaborated on the written grounds of appeal. The Solicitor General replied, addressing the court for about ninety minutes. 19. The principal point discussed at the hearing was whether the court could determine ground (b) of the appeal (see paragraph 17 above) without considering a transcript of the relevant parts of the evidence given at the applicant’s trial. Notwithstanding the Solicitor General’s arguments to the contrary, the court decided that it could not. It therefore ordered that a transcript be prepared and adjourned the hearing to 6 March 1986. The applicant’s solicitor subsequently assisted in the preparation of the transcript. Following this adjournment, Mr Granger did not renew, or request reconsideration of, his legal-aid application, nor did he advise the Legal Aid Committee of the court’s order. 20. At the resumed hearing the applicant had again been provided by his solicitor with a written speech, which dealt with all the grounds of appeal. Although the court pointed out that it wished to hear submissions on ground (b) only, it allowed the applicant, who was unable to comprehend the legal niceties, to read out the speech in full. 21. The High Court of Justiciary unanimously refused the appeal on all grounds. In his written judgment the Lord Justice-Clerk, who presided, gave full consideration to each of the grounds, but was satisfied that none of them had substance and that there had been no miscarriage of justice (see paragraph 26 below). He described the appellant’s submissions as "well prepared and clearly expressed". 22. Mr Granger was released from prison on 16 July 1988 after serving two-thirds of his sentence, the remainder having been remitted. 23. On 26 September 1985 - the day before the first hearing in the applicant’s appeal - the Lord Advocate referred, under section 263A of the Criminal Procedure (Scotland) Act 1975 (see paragraphs 32-33 below), for the opinion of the High Court of Justiciary two questions of law that arose from the judge’s directions to the jury, at the perjury trial, concerning the charge which had been found not proven (see paragraph 12 above). The questions were: (a) whether, in a trial for perjury where the accused was not an accused in the previous trial, it is of any relevance that a statement made by him and falsely denied under oath was allegedly obtained by means described as unfair; and (b) whether, in a trial for perjury, the "materiality" of the false evidence to the issue in the earlier trial is (i) a prerequisite to conviction and in any event (ii) a matter of fact to be left to the jury. 24. On 13 June 1986 the High Court heard submissions on the reference. Mr Granger exercised his statutory right to be represented at the hearing, the fees of senior counsel instructed for this purpose being paid by the Lord Advocate (see paragraph 32 below). In its opinion of 26 June the court held that the trial judge’s directions - which had been favourable to the applicant - had not been an accurate statement of the law. This opinion did not affect the applicant’s acquittal (see paragraph 33 below). 25. Every person convicted of a criminal charge in Scotland has an automatic right of appeal - there being no requirement of prior leave - against conviction or sentence or both. In cases, such as the applicant’s, tried on indictment, the right is conferred by section 228 of the Criminal Procedure (Scotland) Act 1975, as amended by the Criminal Justice (Scotland) Act 1980 ("the 1975 Act"). 26. In an appeal against conviction, the appellant may bring under review any alleged miscarriage of justice in the earlier proceedings. "Miscarriage of justice" is not defined by statute, but covers such matters as misdirections by the trial judge to the jury or wrong decisions on the admissibility of evidence, as well as breaches of natural justice. An appellate court which holds that there has been a miscarriage of justice retains a discretion not to allow the appeal if it determines that the miscarriage is not such as to warrant the quashing of the conviction (section 254 of the 1975 Act). 27. Anyone wishing to appeal against conviction must lodge an intimation of his intention to do so within two weeks of the final determination of the proceedings against him (section 231 of the 1975 Act). He then has six weeks in which he may file a note of appeal containing a full statement of the grounds; he may not, in general, found any aspect of his appeal on a ground not set out therein (section 233 of the 1975 Act). 28. At the hearing submissions will first be made by or on behalf of the appellant; whilst unusual, this may be done in writing (section 234 of the 1975 Act). Counsel for the Crown will then address the court. Counsel for the Crown has a duty to act with complete fairness and to assist the court by providing impartial information and, if need be, argument so that the appellant’s case can be evaluated in the best possible light. This is especially important where the appellant is not represented by counsel. Such cases are common, firstly because the unrestricted right of appeal (see paragraph 25 above) results in the filing of many appeals which are without merit and, hence, do not qualify for legal aid (see paragraph 31 below). Secondly, and irrespective of the availability of legal aid, counsel must, according to the Guide to the Professional Conduct of Advocates, refuse to act further in a criminal appeal if he has formed the opinion that there are no grounds which he is prepared to state to the court. Whether the appellant is represented or not, the court will undertake a thorough examination of the appeal and will be scrupulous in examining the points which might be favourable to him. 29. At the hearing of appeals in the High Court of Justiciary the Crown will always be represented, either by the Lord Advocate or the Solicitor General (who are the Law Officers of the Crown) or by one of the Advocate Deputes. In an appeal against conviction following a long trial, the Crown will usually be represented by the counsel who appeared for it below, on account of his familiarity with the case. As Ministers of the Crown, the Law Officers are liable to be called away from court at short notice to carry out other duties. They will therefore normally be accompanied by another counsel, but he will play no active part unless the Law Officer has to leave. Counsel for the Crown will also invariably be accompanied by the member of the Crown Office staff who prepared the day’s papers for the court; his function is entirely clerical and administrative and he will not participate in the discussion of the appeal. 30. Legal aid granted for a trial on indictment covers certain work done in contemplation of an appeal, as listed in paragraph 13 above. If it is thereafter intended to proceed with the appeal, legal aid may be sought for that purpose. Its availability was, at the relevant time, governed by the Legal Aid (Scotland) Act 1967, as amended ("the 1967 Act"). Applications therefor were then determined by the Supreme Court Legal Aid Committee of the Law Society of Scotland, whose members were independent advocates and solicitors with substantial current experience of court practice. The whole system for the administration of legal aid was reformed by the Legal Aid (Scotland) Act 1986, which repealed and replaced the 1967 Act with effect from 1 April 1987. In particular, the former functions of the Legal Aid Committee were transferred to another body. 31. Section 1(7) of the 1967 Act provided: "In criminal proceedings, a person shall not be given legal aid in connection with - (a) ... It would have been extremely unusual for the Committee to decide that it was not reasonable to grant legal aid to a person appearing to have substantial grounds for appealing. It normally determined applications on the basis of the documents before it, which would have included the note of appeal setting out the grounds and the judge’s summing-up to the jury, and in the light of the views of the counsel or solicitor who acted for the appellant at the trial. According to Article 21 of the Legal Aid (Scotland) (Criminal Proceedings) Scheme 1975, the Committee’s decision on the merits of an application for legal aid for a criminal appeal was final. 32. Under section 263A of the 1975 Act, where a person tried on indictment is acquitted on a charge, the Lord Advocate may refer a point of law which has arisen in relation to that charge to the High Court for an opinion. The person concerned may elect to appear personally or to be represented by counsel at the hearing. If he does not desire to be so represented, the court will appoint counsel to act as amicus curiae, in order to ensure that the issues are fully argued. In either case, counsel’s fees will be paid by the Lord Advocate. 33. This procedure was introduced into Scots law because previously the prosecution had, in all cases tried on indictment, no right of appeal. There was accordingly a risk that an erroneous decision by the trial judge might be treated as authoritative in later cases. The sole purpose of a reference by the Lord Advocate is to clarify the law for the future, section 263A expressly providing that the opinion of the High Court "shall not affect the acquittal" of the person concerned. Fresh proceedings on the charge in question cannot be instituted against him, even if the opinion is favourable to the prosecution.