CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 mai 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                               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)