Communicated on 22 September 2014
FOURTH SECTION
Application no. 35752/13
Manochehr BAHMANZADEH
against the United Kingdom
lodged on 24 May 2013
STATEMENT OF FACTS
The applicant, Mr Manochehr Bahmanzadeh, is an Iranian national, who was born in 1956 and lives in London. He is represented before the Court by Ms J. Hickman of Hickman & Rose, a firm of solicitors based in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The police investigation
The applicant held the lease of premises housing a nightclub called the Dance Academy and was co-manager of the club.
In December 2005 he was made aware of police concerns about high levels of drug usage at the club. He met with the licensing officer in December 2005 and in January and February 2006 and offered assurances that he took the problem very seriously and would introduce a “zero tolerance” approach to drugs on the premises.
In January 2006 an undercover police operation commenced into drug use at the Dance Academy. Over the course of the operation, twenty-four undercover police officers attended the club and a number of them purchased ecstasy there from several drug dealers.
A police raid on the nightclub took place on 7 May 2006. Around 450 ecstasy pills were recovered.
On 6 August 2006 the applicant and his co-manager were charged with permitting premises to be used for the supply of ecstasy between 1 December 2005 and 8 May 2006.
2. The first set of criminal proceedings
(a) Proceedings before the Crown Court
The applicant’s trial commenced at the Crown Court on 19 May 2008.
The prosecution case was that the applicant had failed to take reasonable steps to address the drugs problem in the club. They relied on evidence covering the indictment period, namely:
- the detail and nature of the contact with police concerning the drugs problem by way of meetings and letters;
- the prevalence of drug dealing witnessed by members of staff and by the undercover officers, who successfully purchased drugs;
- the volume of drugs found during the search in May 2006;
- oral evidence from former members of staff that in the period following January 2006 the management could have done more to address the drugs problem to which they had been alerted in warning staff as to their responsibilities;
- data recording the number of ambulances attending the premises; and
- oral evidence to the effect that the management of the club had informed door staff that they should cut back on the number of searches.
The oral evidence from the undercover police officers was given anonymously and they were screened from the public, the defendants and defence counsel.
The club’s former head of security, G.G., who had worked at the club in 2004, gave evidence of the applicant’s tolerance of drug dealing and his obstructive approach when he, G.G., had tried to eject and report on those caught dealing drugs at the club. He described a specific incident in which he had caught two men dealing drugs. He said he had searched the first man and found three tablets. He had been about to evict the first man from the club but was told by the co-manager to let the man stay. G.G. had handed the second man, who had had twenty ecstasy tablets in his possession, to the police. He claimed that he had subsequently been told off by the applicant, who had complained that his friends had had their night disrupted. G.G. also told the jury that he was a former Royal Marine.
G.G. was vigorously cross-examined by the applicant’s trial counsel. It was put to him that he had been sacked by the applicant for stealing money and drugs from a drug dealer, rather than arresting him. G.G. denied this. It was further put to him that his dismissal had also been informed by the fact that he had been present at a drugs murder nearby some weeks before. G.G. replied that he had merely been a witness to the murder and was assisting police in that capacity.
The applicant gave evidence in his own defence. He said that he was strongly opposed to drug use and supply. He and his staff had sought to enforce a policy of zero tolerance in relation to drug supply. He had responded positively to police warnings from December 2005 by replacing his CCTV system and changing his security company. It was impossible to keep drugs out of the club, but he had taken all reasonable steps to prevent the supply of drugs.
In his summing up to the jury, the trial judge reminded the jury that G.G. had worked at the Dance Academy in late 2004 for approximately six months and so was not there during the period covered by the indictment. He summarised G.G.’s evidence as follows:
“[G.G.], who had been the head doorman before the period of the indictment in 2004, said this: ‘There was never an enthusiasm to stop drugs going into the club.’ On a Saturday night there would be on average about 800 people in the club of which ... he said ‘about 50 per cent would be intoxicated on drugs’...”
On 2 July 2008 the applicant was convicted by a jury and on 21 July 2008 he was sentenced to nine years’ imprisonment. In his sentencing remarks, the judge commented that there had been “large-scale, blatant supply of and use of ecstasy” in the club, of which the applicant had been well aware and to which, at the very least, he had turned a blind eye in order to maximise the profits and reputation of the club. He referred, inter alia, to the evidence of the undercover police officers, of G.G., of the club’s head doorman in 2005, of other doormen at the club and of a customer.
(b) Proceedings before the Court of Appeal
The applicant appealed against his conviction and sentence, challenging the special measures permitted at trial to screen the undercover police officers when they had given evidence. The appeal was dismissed by the Court of Appeal on 17 December 2008. The court observed:
“81. ... Having examined the evidence, ... we have no doubt that ... there was ample evidence, outside the evidence emanating from the undercover police officers, from which it would have been open to the jury to conclude that there was substantial dealing in drugs at the club and that no real or, alternatively, no adequate steps had been taken by management to prevent or discourage the sale of drugs. At best occasional token efforts were made, but in essence a blind eye was turned towards the problem.”
Dismissing the appeal, it commented
“87. ... Although taken cumulatively, these [undercover police officer] witnesses provided the jury with a graphic illustration of what was happening at the club, once the jury had decided that both appellants were involved in the management or control of the club (which did not depend in the slightest on the anonymous witnesses), the issue was the extent to which each of them knew of drug supplying and what, if anything, each did, or did not do, about it. This evidence may well have enabled the jury more easily to infer that the appellants were more involved in what was happening than they were prepared to admit. In reality neither appellant ... [was] prejudiced by the fact that a number of these witnesses gave evidence anonymously, and behind screens, shielded from the sight of the appellants. They were enabled properly and fully to test the evidence of the anonymous witnesses to strengthen their own cases or to undermine the case for the prosecution.”
3. The report of the Criminal Cases Review Commission
On 25 January 2012 the Criminal Cases Review Commission (“CCRC”) referred the applicant’s conviction and sentence to the Court of Appeal. The statement of reasons set out a single reason for the referral, namely information giving rise to the real possibility that the Court of Appeal would find the trial evidence of “an important prosecution witness”, namely G.G., no longer capable of belief.
The report detailed new evidence not disclosed at trial that G.G. had been working as a doorman in another club in February 2004 and had offered to sell drugs to off-duty police officers. He had told the officers that he was earning five thousand pounds a week from selling drugs. The CCRC considered that this would “severely damage” the credibility of the witness. It was also revealed that G.G. had lied on oath by claiming that he was a former Royal Marine. The statement continued:
“23. In the course of its enquiries the Commission has located a further record which appears to be of relevance regarding [G.G.]. The record, which is sensitive, is considered further in a Confidential Annex (‘Annex C’) that will be provided to the Court of Appeal and the Crown Prosecution Service. For reasons associated with the principle of Public Interest Immunity, the Confidential Annex will not be provided to Mr Bahmanzadeh or his representatives. Whilst this course of action is contrary to the general practice of providing an applicant with full reasons for any decision made, the Commission considers that it is inappropriate in this case to pre-empt any decisions on disclosure that may be made by the Crown Prosecution Service or the Court of Appeal.”
By letter dated 13 March 2012 the CCRC informed the applicant that further sensitive information had been disclosed to the Court of Appeal and to the prosecution. Again, for Public Interest Immunity (“PII”) reasons, a decision had been taken not to disclose the information to the applicant or his representatives. He was invited to make an application to the court or the prosecution for disclosure.
4. The proceedings before the Court of Appeal
(a) Preliminary issue concerning disclosure
On 16 April 2012 the applicant submitted provisional grounds of appeal to the Court of Appeal. His first ground claimed that his conviction was unsafe “by reason of fresh evidence concerning [G.G.]”. The grounds referred to the need for a “detailed disclosure exercise” in the light of the CCRC report including, in particular, disclosure of Annex C to that report. Appended to the grounds was a schedule of disclosure requests. The defence asked the court to conduct a thorough PII exercise and order disclosure of the file and such further material as might be relevant. He also invited the court “to review the PII exercise conducted by the trial judge between 22nd and 29th February 2008”. Finally, the defence asked that the prosecution disclose all material concerning G.G.’s role in the drugs murder in respect of which he had been cross-examined at trial and invited the court to review any relevant PII material.
On 10 July, 14 August and 15 August 2012 further disclosure took place. A police statement of July 2012 confirmed that in February 2004 G.G. had claimed to off-duty police officers that he made five thousand pounds a month selling drugs. A letter of July 2012 contained antecedents for G.G. Material related to G.G.’s arrest and questioning in September 2004 about the drugs murder was also disclosed. A witness statement by the police officer who had given evidence at trial confirmed that he had “commissioned a review of all material held by the police” concerning G.G. and it had not uncovered anything which assisted the defence or undermined the prosecution.
Meanwhile, on 14 August 2012, the prosecution indicated that it intended to make a PII application and make ex parte submissions. Part of the PII application, it said, would relate to Annex C to the CCRC’s statement of reasons. The prosecution invited the applicant to provide further particulars of the case to inform the court and the prosecution in their assessment of the potential value to the defence case of the retained material.
On 29 October 2012, in response to the prosecution invitation, the applicant submitted a note on PII and disclosure for consideration at the PII hearing. He contended that much of the material now disclosed by the prosecution should unquestionably have been disclosed at trial, since it would have undermined the prosecution cases and assisted the defence. He argued in particular that Annex C should plainly be disclosed, since it was prima facie capable of assisting the defence or undermining the prosecution given that it had led the CCRC to refer the case back to the Court of Appeal. He also requested permission to address the court prior to the PII hearing and invited the court to consider whether the interests of justice required the appointment of special counsel to represent the applicant’s interests at the PII hearing. He advanced two principal arguments: first, that G.G. had provided crucial evidence again him and tha
