AS TO THE ADMISSIBILITY OF
Application No. 29335/95
by Donna Elouise CANNON
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 October 1995
by Donna Elouise CANNON against the United Kingdom and registered on
21 November 1995 under file No. 29335/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the information submitted by the respondent
Government on 27 September 1996 and the applicant's comments of
17 October 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1968 and residing in
Farnham, Surrey. Before the Commission, she is represented by
Mr. J. Wadham, a lawyer with Liberty, London.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant ran an escort agency, 'Saints and Sinners'. The
agency charged a fee for introducing male clients to female escorts,
who then provided sexual services in return for money.
In March 1993, the applicant was charged with, inter alia,
blackmail of a customer of the agency (Mr. L). The trial took place
between 13 and 17 December 1993 before a judge and jury.
In advance of the trial, on 2 December 1993, the prosecution made
an ex parte application to the judge to obtain a ruling that certain
information concerning the two principal prosecution witnesses need not
be disclosed to the defence on the grounds of public interest immunity,
in particular the fact that they were police informants. The
prosecution could not withhold relevant evidence without applying to
the court for a ruling on whether it was appropriate to do so in all
circumstances of the case. No other ex parte application was made.
The defence were unaware of the nature of the ex parte
application or of the grounds for it until the applicant had been
convicted; they were only notified on 1 December 1993 that an ex parte
application would be made. Subsequently, the defence became aware that
the application concerned matters fundamental to the credibility and
motives of the two principal prosecution witnesses.
Mr. L., the first prosecution witness, gave evidence that on
26 February 1993 he rang the 'Saints and Sinners' agency and arranged
with the applicant for a girl to come round. He claimed that Ms. B.
arrived, negotiated for the price and was paid by cheque. After sexual
intercourse with him and his friend, she left. According to Mr. L.,
the following morning, the applicant telephoned him complaining that
he had failed to pay the £30 agency fee. She made several further
calls which he tape recorded. She was threatening to allege to the
police that he had raped her and she told him that she had arranged for
a witness, Ms. W., another prostitute at 'Saints and Sinners', to
confirm that she was manning the telephone at the agency on the night
of 26 February and had sent the applicant to his house.
Ms. W., the second prosecution witness, gave evidence that in
February 1993 the applicant telephoned her and said that Ms. B. had
been sent to Mr. L. who had behaved in a threatening manner towards
her. She maintained that the applicant asked her to tell the police
that she had been on telephone duty at the agency on the night of
26 February and had sent the applicant to Mr. L.'s home, and that the
applicant also told her she was intending to allege that Mr. L. had
raped her. She stated that she refused to be involved and the
applicant became angry with her.
Ms. W. also said that when she had first met Mr. L. she was quite
intimidated by him and mentioned this to the applicant, who overreacted
and notified the police. Ms. W. was under the impression that the
applicant did not like Mr. L. When she was cross-examined, Ms. W.
maintained that the allegations about simulated rape and drugs, which
she had made against Mr. L. in December 1992, were lies. She made them
only because the applicant had told her to and she obeyed because she
was dependent on the applicant for her job. She was not frightened of
Mr. L. and did not think the police believed the allegations.
The applicant did not give evidence at the trial. The defence
case was that no allegation of rape was made in order to blackmail
Mr. L., but that if such an allegation was made it was because the
agency girls, including the applicant, were in fear of Mr. L. and
wished to frighten him off. If true, this would not amount to the
offence of blackmail. In any event, it was contended that the
applicant had reasonable grounds for making the demand of the £30
agency fee because she was owed the money and she genuinely believed
that the device she had adopted for obtaining the money was justified.
On 17 December 1993 the Winchester Crown Court convicted the
applicant of an offence of blackmail. On 25 March 1994 she was
sentenced to perform 100 hours community service.
Following the applicant's conviction, the defence became aware
of an article that appeared in a national magazine in December 1993
which alleged that in 1987 Mr. L. had played a major role in an
international drug trafficking conspiracy. From Mr. L.'s interview it
appeared that he had escaped prosecution for his part in the offence
by assisting the authorities and giving evidence against his co-
accused.
The defence also became aware that the prosecution had known, at
the time of the blackmail trial, that Mr. L. had previously been
involved in a large scale drug importation which he said was connected
to the Mafia and the IRA, and that he had been given immunity from
prosecution, and had been provided with a new identity, in return for
giving evidence to the prosecution against his accomplices. The
prosecution had been also aware that Ms. W. had acted as a police
informant throughout the relevant period.
In her appeal the applicant argued that in view of the fact that
the credibility of Mr. L. and her fear of him were central issues in
the case, there was an overriding interest in favour of disclosure of
relevant material in order to secure a fair trial. She also claimed
that Mr. L. had forfeited any claim which he might have had to
preserving his anonymity by giving interviews to national newspapers
at the time of the original drugs trial.
On 30 January 1995 the hearing of the appeal took place. The
Court of Appeal dismissed the applicant's appeal in the following
terms:
"The basis of this appeal ... was that the learned judge
ought not to have accepted the prosecution submission that
they need not disclose the material relating to Mr. [L.]
and Ms. [W.] being informants ... [defence counsel]
submitted that [by giving interviews to national
newspapers] Mr. [L.] had himself chosen to go public about
the role he played as an informant and as a prosecution
witness in the drug running case. Although, therefore, he
had been an informant and would normally be entitled to
some protection in that role, he had forfeited the
protection by putting his role into the public domain.
The information contained in those press cuttings was not
before the trial judge in the present case because, we are
told ... those directly involved in this case were not
aware of the newspaper articles or the way which Mr. [L.]
had publicised his activities ... The argument, therefore,
is that the prosecution ought to have informed themselves
better and had the information; that it should have been
put before the judge; that if the judge had had that
information, he would have taken a different view about the
prosecution's application for public interest immunity to
attach to the informant role of Mr. [L.]. ...
It may be that the prosecution in the present case did have
sufficient information to put them on inquiry to
investigate further the part Mr. [L.] had played in the
earlier proceedings. However that may be, the material
before the trial judge did not, in our judgment, require
him to order disclosure. We have examined the material
which was before the judge and we take the view that doing
the balancing act required by the cases, he had to consider
whether the relevance for the defence case of the
information which was before him in the prosecution file
was such as to outweigh the normal and well-established
principle that details concerning informants ought not to
be disclosed.
We have to consider the position which is now revealed well
after the trial. We are in possession of material which
was not available to the trial judge and was not in the
possession of the prosecution at that time. [The defence]
submitted that our ruling should be that had the learned
judge had the information that we have, his decision on
disclosure would have been in favour of the defence. We
must therefore look at the issues which the learned judge
had to consider.
As already pointed out, the defence contention was that the
[applicant] acted as she did because she was in fear of
Mr. [L.]. There was a good deal of information to show
that [he] may well have been a man who inspired some degree
of fear: his previous record; his changed name without
explanation; his weapons in the house; his minders; all of
those may have been matters which would create fear. Would
it have made any difference to add, further, that he had
been involved as a witness for the Crown (who presumably
had been believed because there were convictions in the
earlier case) in the drug running case in 1987? In our
judgment, looking at the matter purely as a balancing act
in regard to disclosure of information about the informant,
the judge's decision would not have been any different. We
do not consider that the additional weight that the
information about the earlier trial would have added to the
existing information which the defence had would have
justified departure from the general rule to protect the
identity of informants. Although Mr. [L.] had put his
activities in the public domain in 1987 he did so under the
name which he then bore, [McN.]. After that, he changed
his name for the express purpose of protecting himself
because he was in fear. ...
[Mr. L.], as already pointed out, was discredited in many
respects already by reason of material which was available
to the defence and which was put before the jury. Even if
he had been further cross-examined, we do not think there
would have been any proper basis for the jury to regard his
evidence as the more incredible by reason of that
additional information. ...
Bearing all these matters in mind, we do not feel that the
verdict of the jury was unsafe or unsatisfactory. The
contention that the defence's inability to put the complete
previous character and record of [Mr. L.] to him could only
sound on appeal on the basis that, had that been able to be
done, a different verdict might have resulted. For the
reasons we have given we do not think that it could. We
believe that the jury would have convicted in the same way.
Accordingly this appeal must be dismissed."
B. Relevant domestic law and practice
In 1995 in R. v. Winston Brown (1995, 1 Cr. App. R. 191) the
Court of Appeal reviewed the operation of Guidelines issued in 1981 by
the Attorney General to prosecution counsel concerning exceptions to
the common-law duty to disclose to the defence certain evidence of
potential assistance to it (cf. Eur. Court H.R., the Edwards judgment
of 16 December 1992, Series A no. 247-B). The Court of Appeal stated
that:
"The Guidelines were issued in 1981. The Attorney
General's objective was no doubt to improve the existing
practice of disclosure by the Crown. That was a laudable
objective. But the Attorney General was not trying to make
law and it was certainly beyond his power to do so ... The
Guidelines are merely a set of instructions to Crown
Prosecution Service lawyers and prosecuting counsel ...
Judged simply as a set of instructions to prosecutors, the
Guidelines would be unobjectionable if they exactly matched
the contours of the common law duty of non-disclosure ...
But if the Guidelines, judged by the standards of today,
reduce the common law duties of the Crown and thus abridge
the common law rights of a defendant, they must be pro
tanto unlawful ...
[T]oday, the Guidelines do not conform to the requirements
of the law of disclosure in a number of critically
important respects.
First, the judgment in R. v. Ward [1993, 96 Cr. App. R. 96]
established that it is for the court, not prosecuting
counsel, to decide on disputed questions as to discloseable
materials, and on any asserted legal ground to withhold
production of relevant material ... For present purposes
the point of supreme importance is that there is no hint in
the Guidelines of the primacy of the Court in deciding on
issues of disclosure ...
Secondly, the guidelines are not an exhaustive statement of
the Crown's common law duty of disclosure: R. v. Ward
(supra) at 25 and 681D. To that extent too the Guidelines
are out of date.
Thirdly, the Guidelines were drafted before major
developments in the field of public interest immunity.
[I]n paragraph 6 the Guidelines are cast in the form of a
prosecutor's discretion ... Much of what is listed as
'sensitive material' is no doubt covered by public interest
immunity. But not everything so listed is covered by
public interest immunity ..."
COMPLAINTS
The applicant submits that her trial at the Central Criminal
Court and the Court of Appeal, taken together, violated Article 6
para. 1 in conjunction with Article 6 para. 3(b) and (d) of the
Convention in the following respects:
1. The non-disclosure to the defence of relevant information
violated the applicant's right to a fair trial and, in particular, her
right to adequate facilities for the preparation of her defence
guaranteed by paragraph 3 (b). Although the charge against the
applicant depended substantially on the credit of two prosecution
witnesses, the trial judge authorised the prosecution to withhold the
fact that both witnesses were police informants, and that one had been
granted immunity from prosecution for a major drugs importation with
connections to organised crime. Consequently, the applicant was
placed at a substantial disadvantage in the conduct of the proceedings
- in particular at the oral examination of witnesses according to
paragraph 3 (d) - and became victim of a violation of the principle of
equality of arms.
2. The ex parte procedure, whereby the courts approved the non-
disclosure of information at hearings held in the absence of her and/or
her counsel, and without affording them the opportunity to make
informed representations, violated the applicant's right to a fair and
public hearing guaranteed by paragraph 1. Moreover, judgment on the
issue of disclosure was delivered in secret and remained confidential.
3. The defects were not remedied by the hearing before the Court of
Appeal. It cannot reasonably be said that evidence as central to the
case as that which was withheld in the applicant's case, could not have
affected the jury's verdict. The Court of Appeal's conclusions must
therefore be regarded as unfair and arbitrary.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 October 1995 and registered
on 21 November 1995.
On 8 July 1996 the member of the Commission appointed as
Rapporteur requested pursuant to Rule 47 para. 2 (b) of the
Commission's Rules of Procedure the Government of the United Kingdom
to submit further information before the Commission decides on the
admissibility of the case.
The Government's written information was submitted on
27 September 1996. The applicant's written comments in reply were
submitted on 17 October 1996.
THE LAW
The applicant complains under Article 6 paras. 1, 3 (b) and 3 (d)
(Art. 6-1, 6-3-b, 6-3-d) of the Convention about an unfair trial and
an inability to prepare her defence and effectively to cross-examine
prosecution witnesses. The ex parte procedure, in which the courts
approved the non-disclosure of relevant evidence on the grounds of
public interest immunity, was held in the absence of the applicant and
her counsel and without affording them the opportunity to make informed
representations. Thus, the applicant claims that she was placed at a
substantial disadvantage in the conduct of proceedings and thereby the
principle of equality of arms was affected.
Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention,
insofar as relevant, read as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
(b) to have adequate time and facilities for the preparation of
his defence;
...
(d) to examine witnesses of have examined witnesses against him
and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him. ..."
The Commission recalls that the guarantees contained in
paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific
aspects of the general concept of fair trial set forth in paragraph 1
of this Article. In the circumstances of the present case, it finds
it unnecessary to consider the relevance of paragraphs 3 (b) and 3 (d)
to the case since the applicant's allegations, in any event, amount to
a complaint that the proceedings have been unfair (cf. Eur. Court HR,
the Edwards v. the United Kingdom judgment of 16 December 1992, Series
A no. 247-B, p. 34, para. 33).
In assessing whether defence rights have been secured under
Article 6 (Art. 6) of the Convention, the Commission must consider the
proceedings in question as a whole, including the proceedings before
the appellate court (cf. Eur. Court HR, the Helmers v. Sweden judgment
of 29 October 1991, Series A no. 212, p. 15, para. 31; the Imbrioscia
v. Switzerland judgment of 24 November 1993, Series A no. 275, pp. 13-
14, para. 38). Moreover, it is not within the province of the
Commission to substitute its own assessment of the facts for that of
the domestic courts and, as a general rule, it is for these courts to
assess the evidence before them. The Commission's task is to ascertain
whether the proceedings in their entirety, including the way in which
evidence was taken, were fair (cf. Eur. Court HR, the Vidal v. Belgium
judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para. 33).
Nevertheless, the Commission recalls its case-law concerning the
rights of an accused under Article 6 para. 3(b) (Art. 6-3-b) of the
Convention in the Jespers case to the extent that an accused must have
at his disposal, for the purposes of exonerating himself or of
obtaining a reduction in his sentence, all relevant elements that have
been or could be collected by the competent authorities (cf. No.
8403/78, Comm. Report 14.12.81, D.R. 27 pp. 87-88 paras. 55-58).
In the Edwards v. the United Kingdom case the Court considered
that it is a requirement of fairness under Article 6 para. 1
(Art. 6-1) of the Convention, indeed one which is recognised under
English law, that the prosecution authorities disclose to the defence
all material evidence for or against the accused and that the failure
to do so in that case gave rise to a defect in the trial proceedings.
The applicant in the Edwards case could have applied to the Court of
Appeal for the production of the material evidence but did not do so.
The Court further considered that it was no answer to the failure to
make such an application that the Crown might have resisted by claiming
pulic interest immunity since such a claim would have been for the
Court to determine (the above-mentioned Edwards judgment, p. 35, para.
36).
As regards the facts of the present case, the Commission notes
that there was considerable evidence against the applicant as to her
involvement in the offence as charged apart from any information which
was not disclosed. In fact, her conviction was mainly based on the
evidence of the two principal prosecution witnesses, i.e. Mr. L. and
Ms. W., who were present at the trial. The applicant, who was
represented by counsel, had full opportunity to examine or have
examined these witnesses and to contest their evidence at her trial.
However, in advance of the trial, the trial judge in the ex parte
procedure approved the non-disclosure of certain information concerning
these prosecution witnesses on the grounds of public interest immunity,
in particular the fact that they were police informants.
Following her conviction, the applicant became aware that the ex
parte application concerned matters relating to the credibility and
motives of these prosecution witnesses. She also became aware of an
article which had appeared in a national magazine in December 1993
which alleged that in 1987 Mr. L. played a major role in an
international drug trafficking conspiracy. The applicant also apprised
that the prosecution had known, at the time of the blackmail trial,
that Mr. L. had previously been involved in a large scale drug
importation which he said was connected to the Mafia and the IRA, he
had been given immunity from prosecution and had been provided with a
new identity and that Ms. W. had acted as a police informant throughout
the relevant period.
The Commission notes that the information which was withheld from
the applicant was before the trial judge who balanced the relevance for
the defence case of the information against the reasons militating
against disclosure. That information was also before the Court of
Appeal which took the same view. The new information ascertained
subsequently was extensively considered by the Court of Appeal, whose
task was to examine whether the applicant's conviction was unsafe or
unsatisfactory as a result of the non-disclosure of the information
that the prosecution witnesses were police informants. The applicant
had an adequate opportunity to try to persuade the Court of Appeal as
to the significance of that information.
In the light of all the evidence, the Court of Appeal, which had
in its possession material which was not available to the trial judge
and which was not in the possession of the prosecution at that time,
dismissed the appeal concluding that: "The contention that the
defence's inability to put the complete previous character and record
of [Mr. L.] to him could only sound on appeal on the basis that, had
that been able to be done, a different verdict might have resulted.
For the reasons we have given we do not think that it could. We
believe that the jury would have convicted in the same way."
The Commission notes that the Court of Appeal's decision to
dismiss the applicant's appeal was based upon a thorough evaluation of
the weight to be given to the information which had been withheld.
There is no evidence in the present case that the Court of Appeal's
decision was in any way unfair or arbitrary.
With regard to the absence of publicity of the decision of
2 December 1993 that certain information need not to disclosed to the
defence, the Commission notes that the defence were aware of the
intention to make application to the court for such an order. Its
existence could be deduced from the fact that no further material was
disclosed thereafter. Its existence was made public in the Court of
Appeal's judgment of 30 January 1995.
In these circumstances, taking the proceedings as a whole, the
Commission considers that the applicant was not denied a fair hearing
in the proceedings against her and that the requirement in Article 6
para. 1 (Art. 6-1) of the Convention that judgment shall be pronounced
publicly has been observed.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy