Information Note on the Court’s case-law No. 98
June 2007
Botmeh and Alami v. the United Kingdom - 15187/03
Judgment 7.6.2007 [Section IV]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Partial disclosure on appeal in criminal proceedings of evidence in respect of which a public-interest immunity certificate had been issued: no violation
Facts: The applicants, who were alleged to be members of a Palestinian group, were convicted of conspiracy in connection with car bombings on Israeli and Jewish targets in London. They were sentenced to 20 years' imprisonment and recommended for deportation. They appealed against conviction and sentence. Some months after the conclusion of the trial, they learnt from the press that the intelligence services had failed to disclose to the police information in their possession which the applicants considered might have assisted their defence. They sought disclosure but the Home Secretary signed a public-interest immunity certificate in respect of the information. The Court of Appeal then heard inter partes submissions on the procedure to be followed to decide the disclosure issue. It decided to view the material exparte before ruling on the claim for public-interest immunity. Having done so, it ordered a summary of the undisclosed evidence to be released to the applicants and their representatives, but declined to order any further disclosure. It subsequently held that there was no reason to regard the applicants' convictions as unsafe. In explaining its approach to disclosure, it said that it was satisfied, inter alia, that prosecuting counsel had had access to everything they wanted to see, had examined all relevant and potentially material matter and had continued to keep the need for disclosure under review; the trial judge had been correct to rule as he did on the disclosure issue; no one had attempted to conceal any relevant or potentially material matter; public interest immunity had been rightly claimed, because it affected national security at the highest level and would, if disclosed, present a clear and immediate threat to life; and that, apart from the information that had since been disclosed in the summary, there was nothing of significance before it which had not been before the trial judge. The applicants were refused leave to appeal to the House of Lords.
Law: Following the disclosure hearing and well in advance of the resumed appeal hearing the Court of Appeal had disclosed to the applicants a summary of the information that had been withheld and an explanation for the non-disclosure. The Court of Appeal had observed that, save for the material which had been given to the applicants in summary form, there was nothing of significance before it which had not been before the trial judge and that no injustice had been done to the applicants, since the matter added nothing of significance and no attempt had been made by the defence at trial to exploit similar material which had been disclosed. Given the extent of that disclosure, the fact that the Court of Appeal had been able to consider its impact on the safety of the applicants' conviction and that the undisclosed material had been found to add nothing of significance to what had already been disclosed at trial, the Court considered that the failure to place the undisclosed material before the trial judge was, in the particular circumstances of the case, remedied by the subsequent procedure before the Court of Appeal.
Conclusion: no violation (unanimously).
See also, for examples of cases in which full disclosure at the appeal hearing was held to have remedied the withholding of evidence at trial: Edwards v. the United Kingdom, judgment of 25 November 1992, Series A no. 247-B; Jasper v. the United Kingdom [GC], no. 27052/95 – Information Note no. 15; Fitt v. the United Kingdom [GC], no. 29777/96 – Information Note no. 15; and I.J.L., G.M.R. and A.K.P. v. the United Kingdom,nos. 29522/95, 30056/96 and 30574/96 – Information Note no. 22. For cases in which the breach was not remedied on appeal, see Rowe and Davis v. the United Kingdom, no. 28901/95– Information Note no. 15; Atlan v. the United Kingdom, no. 36533/97, 19 June 2001 – Information Note no. 31; and Dowsett v. the United Kingdom, no. 39482/98, ECHR 2003-VII – Information Note no. 54.
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This summary by the Registry does not bind the Court.
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