FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 54109/00
by Eric Albert CHADWICK
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 18 November 2003 as a Chamber composed of
MrsV. Strážnická, President,
SirNicolas Bratza,
MrM. Fischbach,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and,MrsF. Elens-Passos Deputy Section Registrar,[Note1]
Having regard to the above application lodged on 18 November 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant as well as to the parties’ responses to questions raised by the Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Eric Albert Chadwick, is a United Kingdom[Note2] national, who was born in 1942 and lives in Surrey, England. He is represented before the Court by Salhan and Co., a firm of solicitors practising in Birmingham, England. The respondent Government are represented by their Agent, Mr D. Walton, Foreign and Commonwealth Office, London.
A. The circumstances of the case
1. The charges against the applicant
The facts, as submitted by the parties, may be summarised as follows.
On 9 December 1994 the applicant was arrested on suspicion of being involved in a conspiracy to manufacture a controlled drug (amphetamine sulphate). He co-operated with the police during interview, answering the questions put to him.
The applicant told the police during interview that he had been working with a co-conspirator, Liam Walsh, on the production of a drug and had been aware that Walsh was a police informant. The applicant admitted that, at Walsh’s instigation, he had procured some of the ingredients (BMK) for the production of the drug. However, his intention all along had been to persuade others to become involved in the project and that he had acted with Walsh’s knowledge and, as he believed, with the knowledge and approval of the police operating in the framework of a broader police entrapment operation aimed at netting, amongst others, Ian Pollock.
The applicant, along with Walsh and Pollock and another co-defendant, David Wilson, was tried before a jury at Birmingham Crown Court from 26 February 1996 to 28 March 1996. The charge against the applicant related to the production of a controlled drug contrary to section 1(1) of the Criminal Law Act 1977.
2. The prosecution’s application for Public Interest Immunity
The applicant’s and his co-accused’s lawyers were notified before the start of the trial that the prosecution would be making an ex parte Public Interest Immunity (“PII”) application. No indication was given of the categories of materials to be incorporated in the application. However, the applicant acknowledges that his lawyers were informed in the case summary received from the prosecution that “one matter” which would be raised with the judge would be the position in respect of Walsh’s full “profile”.
The defence lawyers were subsequently informed that the PII hearing had been fixed for 16 February 1996 before His Honour Judge Taylor. At that hearing, the judge ruled in favour of the prosecution. However, he stated that a schedule of information given by Walsh had to be served on Walsh’s lawyers and that consideration ought to be given to disclosure to the applicant and the other co-accused. The prosecution sent a schedule of Walsh’s activities as an informant to Walsh’s lawyers with a request that they comment on why the schedule should not be disclosed to the lawyers of the other co-accused. Walsh’s lawyers objected to disclosure to his co-accused.
According to the applicant, his lawyers were aware that the trial judge granted PII in respect of at least “one matter” between 26 February and 4 March 1996, but cannot confirm whether a PII order was sought or made in respect of other materials.
The schedule was produced at the trial by Walsh’s lawyers, without objection from any party. According to the Government, the bulk of the source documentation from which the schedule was prepared was disclosed during the trial, some of it in edited form with the approval of the trial judge.
There was a further ex parte hearing during the course of the trial, following an application for disclosure by Walsh’s counsel. The prosecution declined to state the category of material raised during the hearing. The judge approved the prosecution’s PII claim for the material in question.
3. The case for the prosecution
The essence of the prosecution’s case was that the applicant had been intimately involved in the preparation of false documents for the purchase on behalf of the L&W Distribution Company (“L&W”) of a range of chemicals used in the manufacture of amphetamine sulphate including BMK. The documents had been prepared with the knowledge of Walsh, who was a police informant and, at the relevant time, in Sudbury prison along with the applicant and Pollock. L&W was not a legitimate trading company, and had no legitimate need of BMK. An order was placed with Hammond Chemicals through a third party, J., acting on behalf of a company called Trans Global International. Hammond Chemicals was suspicious of the order and informed the police, which authorised a controlled release of the BMK. The applicant, who was on home leave from Sudbury prison, received delivery of a quantity of BMK at Walsh’s home, Walsh being in Sudbury prison at the time. Around this time, the applicant had also bought a quantity of glucose and other chemicals. The applicant split up the chemicals he had obtained, keeping some and storing others with his sister. He had never himself spoken to the police about his involvement in what he claimed was an entrapment operation with the intention of claiming a reward. The prosecution stressed that Walsh had been repeatedly told by the police not to get involved in the manufacture of drugs. Two police officers were called to confirm that Walsh was acting on his own initiative and without any encouragement from the police.
According to the applicant, he had intended to give evidence at the trial in line with what he had told the police during the interview. A proof of evidence had been prepared in this connection for use at the trial. Evidence of what was said at the police interview was adduced in open court by the prosecution.
4. The applicant’s application for a hearing on the voire dire
On 11 March 1996, two men visited the applicant at his home and threatened him and his family with severe physical violence and told him that if he said anything in court about Pollock, “he had better make sure he had good fire insurance”. The applicant contacted his solicitor who recalled that the applicant “sounded very frightened and upset”. The solicitor relayed the information the following morning to the applicant’s barrister.
After the close of the prosecution case and before the applicant was due to give evidence, the trial judge, pursuant to section 35 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), informed the applicant of the consequences of his not giving evidence. The applicant was warned:
“You have heard the evidence against you. Now is the time for you to make your defence. You may gave evidence on oath and be cross-examined like any other witness. If you do not give evidence or, having been sworn, without good cause refuse to answer questions, the jury may draw such inferences as appear proper. That means that they may hold it against you. You may also call any witness or witnesses whom you have arranged to attend court. Afterwards you may also, if you wish, address the jury by arguing your case from the dock. But you cannot at that stage give evidence. Do you now intend to give evidence?”
The applicant chose not to give evidence on account of his fear of the consequences for himself and his family. He did not opt to go into the witness box and decline to answer questions about Pollock since, according to the applicant, he did not know at that stage of the proceedings whether the trial judge would accept his plea that he was in fear of Pollock.
Walsh did not testify at the trial. Pollock and Wilson gave evidence. Pollock was cross-examined by the applicant’s counsel on the basis that Pollock was intimately and actively involved in the manufacture of drugs, had presented himself to the applicant as a “soldier” for major drug dealers including a certain “Frank”, had sent another “soldier” to give the applicant money to finance the operation and had received from the applicant 2.5 litres of BMK at a specific location. According to the applicant, most of the cross-examination of Pollock was conducted by the prosecution.
At a stage when the cases for all the defendants had been concluded and before the summing up, the applicant’s counsel applied to the trial judge for a voire dire with a view to laying an evidential basis to persuade the judge not to direct the jury to draw an adverse inference from the applicant’s silence in court. The application was made on the basis of the threats which the applicant had received, threats which, the applicant’s counsel argued, could be confirmed by hearing the applicant’s solicitor on the voire dire.
The application was opposed on the ground that the correct course of action would be for the applicant to go into the witness box and, whenever a question was asked which he did not wish to answer through fear, to decline to answer it and give the reason. It was also opposed on the basis that it would be unfair for the applicant’s counsel to be permitted to cross-examine Pollock in a manner designed to incriminate him and for the applicant then to be able to avoid inferences on the basis of a fear of the consequences of giving evidence to the same effect.
According to the applicant, prosecution counsel in effect summarised for the judge the nature of the applicant’s fears and his defence barrister was only able to correct the version given by prosecution in the briefest of terms.
The judge refused the application, although he was prepared to accept that the applicant was afraid. After the ruling had been given, counsel for the prosecution stated in the presence of all concerned:
“I take it from [the] ruling that you have agreed ... that it would not be right to call [the applicant] on a voire dire, and if [counsel for the applicant] wishes to establish a reason he can only do so by calling his client to give evidence in front of the jury, he then being cross-examined in the way I had indicated.”
The judge replied that that was implicit in what he had said. Counsel for the prosecution stated that that was his understanding, but it was as well for the matter to be plain.
The applicant’s counsel did not make an application to allow the applicant to give evidence and to decline to answer questions in respect of Pollock.
The judge put the applicant’s case to the jury as it appeared from the transcripts of the police interviews. According to the applicant, since neither he nor Walsh testified at the trial there was no evidence before the jury that the applicant had acted at Walsh’s instigation or that the applicant believed that Walsh was a police informant or that the police had approved of the applicant’s actions in the light of the wider entrapment plan.
5. The judge’s direction to the jury on the issue of the applicant’s silence
The trial judge directed the jury in accordance with the relevant practice guidelines at the time on the circumstances in which it may draw an adverse inference from the applicant’s silence in court. The trial judge stated:
“Now, what then are you permitted to consider about ... the failure to give evidence? Now, when a defendant does not give evidence, that is his right. The right to silence, as it is sometimes called, has not been removed. A defendant is entitled, as indeed have [the applicant and Walsh] made it perfectly clear they are entitled not to give evidence. But the law provides now that you may draw such inferences as appear proper from their failure to do so. But before you draw such inferences you have first to be satisfied that there is a prima facie case against them. So the first thing that you must do is to consider whether there is what we call a prima facie case without taking into account the failure to give evidence. You must be satisfied that the prosecution have established that there is a case to answer before drawing any inference from silence.
Now, if you do draw such an inference and you are satisfied that there is a case to answer, then you may ... , but you don’t have to, you make take into account the failure to give evidence.
Now what proper inferences can you draw from the [applicant’s] decision not to give evidence? If you conclude that there is a case for him to answer then you may think that [the applicant] would have gone into the witness box to give you an explanation, or give an answer to the case against him. If the only sensible explanation for his decision not to give evidence is that he has no case to answer - or he has no answer, I should say, to the case against him, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence. ... It is open to you, it is open to you to hold against [the applicant] his failure to give evidence but only, only if the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or that none could have stood up to cross-examination.
Now, in [the applicant’s] case, [his counsel] has made a suggestion to you as to why he hasn’t gone into the witness box and his answer is because he, [the applicant], has said it all in his interviews; nothing more to say. Well, you must consider whether that is a good enough explanation because I have already told you that which is said by a defence, a defendant, in interview, in a statement which is not made on oath, not repeated on oath, therefore not subject to cross-examination .... . You may wonder, therefore, whether that is a good explanation. It is a matter for you. (...).
(...) Inference from failure to give evidence cannot of its own prove guilt. Again, I am sorry to repeat this but it is very important to this case because it is the nub of it or the crux of it, namely that it is what the defendants had in their minds which matters, and it is therefore for the prosecution to disprove the explanation which they have given. (...).”
6. The applicant’s conviction and appeal
On 28 March 1996 the applicant was found guilty as charged and sentenced to nine years’ imprisonment. Walsh and Pollock were also convicted, each receiving sentences of nine and seven years respectively. The jury were unable to agree a verdict in relation to Wilson. Wilson was later convicted following a new trial.
The applicant appealed against his conviction and sentence to the Court of Appeal with the leave of the Single Judge. He contended before the Court of Appeal that the trial judge should have heard evidence on the voire dire since he had been informed by counsel that the applicant was afraid to give evidence.
7. The applications for disclosure and PII during the appeal proceedings
During the course of the proceedings on appeal, the applicant and Walsh applied for disclosure of certain specific and identified documents, in particular the schedule of Walsh’s activities as a police informant. The Government point out that the applicant’s application as framed did not appear to have been an application for all material in possession of the police or the prosecution in relation to Walsh’s history as an informant.
The Court of Appeal ruled on 20 November 1997 that the applicant and Walsh were entitled to full disclosure in relation to Walsh’s history as an informant, “save that the Maltese Falcon Intelligence Log dated 27 September 1993 be disclosed in edited form.” The latter document was included in the original PII application to the trial judge and was covered by PII immunity in its entirety. However, the prosecution indicated that it was prepared to disclose the content of this document in an edited format. The Court of Appeal approved this proposal. The prosecution also disclosed a further eight extracts from pocketbook entries of police officers. This information had already been served on the defence in the form of intelligence/information reports at the original trial, with the approval of the judge.
The applicant cannot confirm whether any or all of the materials at issue were the subject of the trial judge’s order. The applicant does confirm that the documents listed in the Court of Appeal’s order were disclosed to his lawyers, but did not extend to the further material which the applicant sought. It is the applicant’s understanding that a further disclosure order was made by the Court of Appeal in relation to documents sought by Walsh, and specified as extending to the applicant, but that no documents were disclosed to the applicant.
The issues relating to Walsh’s activities as an informant were again raised by the applicant in applications dated 28 April 1998 and 18 May 1998 to amend and supplement the applicant’s original grounds of appeal. The original schedule of informing was appended to the application of 28 April 1998. The application dated 18 May 1998 stated that full disclosure had not yet been given in accordance with the Court of Appeal’s order of 20 November 1997. The application further noted that the prosecution had claimed PII at the trial and that “it is believed that [the Court of Appeal] will be asked by the Prosecution to consider that much of this evidence requested by [the applicant] in this case should not be disclosed.” The applicant invited the Court of Appeal to reconsider the material that the trial judge had decided should not be the subject of disclosure, and to ask itself whether the judge had exercised his discretion properly in relation to disclosure of material which might have assisted the defence, in particular in relation to a schedule of informing concerning Walsh used at the trial. The application of 18 May 1998 also invited the Court of Appeal to have regard to whether or not the requirements of Article 6 of the Convention had been complied with in his case as regards the issues of the judge’s failure to hear evidence on the voire dire and non-disclosure of evidence.
On 18 May 1998 the prosecution gave written notice to the accused’s lawyers that the Crown intended to make an ex parte application on notice to the Court of Appeal. The letter stated that the Crown were not able to disclose the category or categories into which the documentation would fall. The Government point out that the application for PII in the Court of Appeal was identical to that made to the trial judge save that the Maltese Falcon Intelligence Log was disclosed during the appeal proceedings, albeit in edited form.
On 21 May 1998 the Court of Appeal, following an ex parte hearing, granted the Crown’s application in full, including the editing of the Maltese Falcon Intelligence Log and the editing of various passages from the supporting source documentation. The order of the Court of Appeal dated 21 May 1998 contained the following statement: “PII properly claimed in relation to disclosure”.
The applicant states that his lawyers only became aware that the prosecution had made an ex parte application when they arrived outside the courtroom at 10 a.m. on 21 May for a 10.30 hearing and were informed that they could not go into the court because a PII hearing was being conducted in respect of their case. The applicant does not know which documents were covered by the Court of Appeal’s ruling of 21 May 1998.
8. The outcome of the appeal
The Court of Appeal refused the applicant leave to amend his grounds of appeal in order to raise arguments based on Article 6 of the Convention.
On 22 May 1998 the Court of Appeal, following a hearing, dismissed the applicant’s appeal against conviction and sentence.
In delivering the judgment of the Court of Appeal, Lord Justice Rose expressed the view that no evidence called on behalf of the applicant on the voire dire could have been of any possible assistance to the defence and might, had the applicant’s account of intimidation been subjected to cross-examination, been of positive disadvantage to the defence. He considered that the trial judge was under no obligation to hear evidence on the voire dire regarding the applicant’s fear of reprisal. Lord Justice Rose then stated:
“At the close of the prosecution case, it is common ground that the judge had, in accordance with section 35(2), satisfied himself, in the presence of the jury, that the accused knew that he could give evidence, and, if he chose not to give evidence, or, having been sworn, refused to answer particular questions, without good cause, it would be permissible for inferences adverse to his case to be drawn. The warning of risk was heard by [the applicant], as well as by the members of the jury. That warning having been given, [the applicant] (advised by leading counsel) indicated that he would not be giving evidence.
In our judgment, the fact that at a subsequent stage the judge gave a ruling entirely in accordance with what was to be anticipated, by virtue of the risk to which he had expressly drawn [the applicant’s] attention, does not change the position adversely to the interests of the defendant. The reality is that [the applicant] knew, from the time of the judge’s warning at the close of the prosecution case, of the risk that a direction would be given permitting adverse inferences to be drawn, and in the light of that knowledge and of the advice which he was given, he decided to take his chance and not give evidence. In our judgment, the subsequent ruling cannot be regarded as having in any way impinged on the safety of his conviction.”
As to the applicant’s further contention that he was not advised that he could give evidence and not answer particular questions, Lord Justice Rose referred to what the trial judge had said in relation to section 35(2) of the 1994 Act.
On 25 May 1999 the Court of Appeal refused the applicant leave to appeal to the House of Lords.
B. Relevant domestic law and practice
The interpretation given by the domestic courts to section 35 of the Criminal Justice and Public Order Act 1994 as well as the specimen direction applicable at the relevant time are described in the Court’s Condron v. the United Kingdom judgment (no. 35718/97, ECHR 2000-V) and Beckles v. the United Kingdom judgment (no. 44652/98, 10 November 2002) .
Domestic law and practice at the material time on the prosecution’s duty of disclosure of material to the defence and the circumstances in which such material can be withheld for reasons of public interest immunity are described in the Court’s Rowe and Davis v. the United Kingdom judgment ([GC], no. 28901/95, ECHR 2000-II).
COMPLAINTS
The applicant complains under Article 6 §§ 1 and 2 of the Convention that he was denied a fair trial on account of the trial judge’s decision not to hold a voire dire and to leave the jury with the option of drawing an adverse inference from his silence in court. He submits that, had he not been intimidated, he would have given evidence in open court in line with the explanations which he had given during police interview. His proof of evidence confirmed his intention of so doing. Being unable to relate to the jury his innocent explanations for his involvement in the crime with which he was charged, his conviction followed inevitably from the judge’s direction to the jury on his silence in court.
The applicant further complains that the trial judge’s failure to hold a voire dire meant that he was effectively precluded from testifying on his own behalf at his trial, in breach of Article 6 § 3 of the Convention.
The applicant, in addition, complains that the Court of Appeal’s decision to allow the prosecution to withhold from the defence materials concerning Walsh’s role as a police informant violated his rights under Article 6 § 1 and/or § 3 of the Convention. The applicant states that he and his legal advisers were not permitted to be present at the Court of Appeal hearing at which the prosecution successfully claimed PII for certain materials vital to his defence. He was thus unable to argue before the Court of Appeal that his interest in a fair trial should prevail over the claimed immunity, the more so since the same court had initially authorised full disclosure.
The applicant finally contends that the Court of Appeal refused leave to enable him to amend his grounds of appeal so as to raise arguments based on Article 6 of the Convention.
THE LAW
1. The applicant maintained that, as a matter of fairness, the trial judge should have heard on the voire dire his submissions concerning the fact of his intimidation with a view to a ruling that he would not direct the jury to draw adverse inferences from his silence in court. The trial judge’s refusal to do so and then to leave the jury with the option of drawing inferences from his silence gave rise to a breach of Article 6 § 1 of the Convention, taken in conjunction with Article 6 §§ 2 and 3.
These provisions stipulate, as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to 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;
(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 Government replied that the trial judge refused the application to hold a voire dire since, even if the applicant’s fears had proved on a voire dire to be well-founded, they would not have laid the basis for a direction not to draw adverse inferences from the applicant’s silence in court. The Government reasoned in this connection that it would have been open to the applicant after the ruling to give evidence while declining to answer questions relating to Pollock if put to him in open court. It was precisely that possibility which afforded the applicant protection against the fears which he asserted, and it was that same possibility which undermined his argument that his only option in the circumstances was not to testify at the trial. The Government stressed that the applicant was represented by an experienced legal team, and it was for his lawyers to advise him on how to exercise that possibility in the best interests of the defence. Moreover, the prosecution would not have opposed this course of action and, if pursued, no prejudice would have been caused to the fairness of the trial from the standpoint of Pollock. In the Government’s view, there was no need in the circumstances for the trial judge to have alerted the applicant to the possibility of giving evidence.
Without prejudice to this argument, they also asserted that the same course of action was available to the applicant at the close of the prosecution case. However, the opportunity was not taken up.
The Government further observed that the case against the applicant was a powerful one, and that common sense called for an answer. Viewed in the light of the compelling evidence against him, it could not be maintained that the applicant’s explanation to the police was a plausible one. Furthermore, the trial judge left to the jury the applicant’s case as explained during the police interview, and he did so after a submission by the applicant’s counsel that the reason why the applicant had not given evidence was because the interviews contained all he had to say.
The applicant contended in reply that it was the duty of the judge to give full consideration to the substance of his fears and to make findings of fact in this respect in the light of the applicant’s and his solicitor’s oral evidence of the validity of the applicant’s fears. In the event, the judge relied on a materially incorrect and incomplete summary presented by the prosecution counsel of the defence counsel’s application for a voire dire. The judge dismissed, hastily, the application in a ruling the brevity of which made it impossible to ascertain how he had addressed the applicant’s predicament - including with respect to the actual level of the applicant’s fear and whether the extent of his fear would provide a justification for not giving evidence.
The applicant averred that, contrary to the Government’s contention, it would have been ill-advised for him to go into the witness box and to explain to the jury in the presence of Pollock that his refusal to answer particular questions was based on his fear of reprisals. An explanation of that nature would have been tantamount to accusing Pollock of threatening behaviour, with the result that he and his family would still have been placed at risk. The applicant submitted that this view is not contradicted by the fact that his counsel had already cross-examined Pollock in a manner designed to implicate him. The threat that the applicant received was specifically in relation to the giving of evidence and not in relation to cross-examining Pollock. According to the applicant, the only alternative for him was to remain silent and run the risk of inevitable conviction if the jury were permitted to draw adverse inferences from his silence. The applicant further maintained that the judge failed to cure the error made by the applicant’s counsel as to the timing of the application for a voire dire. In his submission, the judge was required in the circumstances either to give the applicant a further opportunity to give evidence after the close of the defence case or to direct the jury not to draw adverse inferences from his silence.
The applicant stressed that he was convicted mainly on the strength of the adverse inferences drawn against him. The unfairness of the proceedings was further compounded by the judge’s repeated comments to the jury undermining the weight of the evidence that he gave during police interview.
The Court recalls that the right to silence is not an absolute right (see Condron v. United Kingdom (no. 35718/97, ECHR 2000-V, §§ 56-57). Accordingly, the fact that a trial judge leaves a jury with the option of drawing an adverse inference from an accused’s silence at his trial cannot of itself be considered incompatible with the requirements of a fair trial. This is a matter to be determined in the light of all the circumstances of the case, having regard, among other things, to the situations where inferences may be legitimately drawn and to the weight which the jury is invited to attach both to the fact of silence and to the accused’s explanation, if any, for his decision not to go into the witness box (ibid.).
The terms of the trial judge’s direction to the jury on these matters are thus of crucial importance to the assessment of the Article 6 fairness issue.
The Court observes that the trial judge never adverted in his summing up to the jury that the applicant was frightened to testify. It was thus never put to the jury that it should consider the plausibility of the applicant’s explanation for his silence and only draw an adverse inference if it concluded that, notwithstanding that explanation, the applicant’s silence could only sensibly be attributed to his having no answer or none that would stand up to cross-examination.
That being said, it is the applicant’s main contention that the trial judge should have simply directed the jury to disregard the applicant’s silence in its assessment of the evidence, without elaborating on the reasons therefor. The Court can accept that there may be situations where this may be the appropriate course of action. However, it cannot agree with the applicant’s argument that, by depriving him of the opportunity to explain fully the nature of his fears on the voire dire, the trial judge effectively prejudiced the outcome of his trial. It would make three points in this connection.
Firstly, it has not been disputed that the trial judge was prepared to accept that the applicant harboured fears about the consequences of testifying against Pollock. In so far as the applicant maintains that the counsel for the prosecution in effect hijacked his plea to hold a voire dire and unduly influenced the judge’s decision not to hear his evidence of intimidation, the Court would reply that it was for the applicant’s lawyer to impress on the judge the importance of hearing the applicant’s evidence and to ensure that control over the presentation of his plea was not removed from his hands. In any event, there is nothing to suggest that a voire dire hearing would have altered the judge’s ruling. As already noted, the judge proceeded on the basis that there was truth in the applicant’s statement that he had been intimidated.
Secondly, account must be taken of the stage reached in the proceedings. The jury had heard the case for the prosecution. The applicant had been clearly warned of the possible implications of refusing to go into the witness box. The applicant had heard the evidence of Pollock. Pollock was cross-examined by the applicant’s counsel. Only then did the applicant seek to make his fears known to the judge with a view to obtaining a ruling that the jury should be directed not to draw any adverse inference from his silence. For the Court, the applicant should have requested a hearing on the voire dire immediately after the judge had given him the statutory warning, rather than making a belated request following the close of the defence case. There is no reason to doubt that, had a timely request been made, the trial judge would have heard the applicant’s evidence of intimidation on the voire dire. It cannot be excluded either that the judge would have agreed not to advert to the issue of adverse inferences in his summing up to the jury. It was conceded on appeal that the applicant’s lawyer had made a mistake in not requesting a voire dire hearing at the appropriate stage in the trial. In the Court’s view, fairness did not require the judge to compensate for that mistake and to accede to the applicant’s request for a voire dire late on in the proceedings. Admittedly, the judge is the ultimate guardian of the fairness of the proceedings and may be obliged to take steps to ensure that an accused is not unduly prejudiced in the conduct of his defence (Cuscani v. the United Kingdom, no. 32771/96, § 39, 24 September 2002). However, it is nonetheless the case that the conduct of the defence is essentially a matter between the defendant and his counsel (see Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, pp. 32-33, § 65; Stanford v. the United Kingdom, judgment of 23 February 1994, Series A 282-A, p. 11, § 28). In the circumstances of this case, it cannot be maintained that Article 6 required the judge to come to the applicant’s lawyer’s assistance and repair a mistake of the latter’s making.
Thirdly, the applicant retained the option of giving evidence in his defence. It was open to him to elaborate on the explanation he gave to the police and to avoid answering any questions put to him about Pollock’s involvement in the offence. It is true that this may have required the applicant to state his reasons in the presence of Pollock for not responding to such questions. However, it must be noted that the applicant was content to allow the incriminating remarks which he made about Pollock during the police interview to be left to the jury. Furthermore, and notwithstanding the threat, the applicant’s counsel cross-examined Pollock in a manner intended to incriminate Pollock. In these circumstances, the Court is not persuaded that the applicant could not have given evidence on his behalf and explained his refusal to respond questions about Pollock with reference to his fear of reprisals.
In the event, the sole explanation given for the applicant’s silence at the trial was that he had said everything he wanted to say at the police interview. The judge formulated his direction to the jury with reference to that explanation and in terms which cannot be said to have disrespected the exercise by the applicant of his right to silence.
The applicant also invokes Article 6 §§ 2 and 3 of the Convention in support of his contention that the fairness of his trial had been prejudiced as a result of the circumstances described. For the Court, these complaints are in reality restatements of his main complaint and do not lay the basis of an arguable claim of a breach of either of the provisions relied on.
For the above reasons, it follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complained that the Court of Appeal’s decision to allow the prosecution to withhold from the defence materials concerning Walsh’s role as a police informant violated his rights under Article 6 § 1 and/or § 3 of the Convention.
The Government noted that the prosecution had made applications concerning PII to the trial judge. The invitation made by the applicant to the Court of Appeal was to review the material and, in effect, to check that the trial judge had properly exercised his discretion to uphold the claim for PII. The Court of Appeal did so, and ruled that PII had properly been claimed.
The applicant asserted that documents relating to Walsh’s status were central to his case and that corroborative evidence as to that status could only have come from the prosecution. The failure to disclose that evidence was tantamount to withholding information which, if accepted by the jury, would almost certainly have resulted in the applicant’s acquittal.
The applicant contended that, unbeknown to him and his legal team, the prosecution had applied at his trial for PII in respect of certain materials and, again without his knowledge, had made a second application for PII to the Court of Appeal. The applicant states that since he and his legal advisers were not permitted to be present at the Court of Appeal hearing at which the prosecution successfully claimed PII for certain materials vital to his defence, they were thus unable to argue that the applicant’s interest in a fair trial should prevail over the claimed immunity, the more so since the same court had initially authorised full disclosure.
The Court recalls that in its Rowe and Davis judgment ([GC], no. 28901/95, § 62 ECHR 2000-II) it held that while Article 6 § 1 requires in principle that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused, it may in some cases be necessary to withhold certain evidence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (ibid., §§ 60-61).
In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. Instead, the Court’s task is to ascertain whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (ibid., § 62).
Turning to the facts of the case, the Court observes that, unlike in the case of Rowe and Davis, the applicant’s lawyers were put on notice that the prosecution intended to make a PII application to the trial judge in respect of certain categories of materials. Whether the application should be granted was a matter to be decided on by the judge in the light of the documents covered by the application and the justification for their non-disclosure advanced by the prosecution. There is no suggestion that the prosecution, in respect of any category of document, operated outside the framework of judicial scrutiny and withheld information on the basis of its own perception of the public interest (cf. Rowe and Davis, § 63 (cited above); Atlan v. the United Kingdom, no. 36533/97, 19 September 2001, § 46)). Nor is there any confirmation in the arguments before the Court that matters other than Walsh’s history as an informant were discussed at the ex parte hearing on 16 February 1996 and were ruled unsuitable for disclosure to the defence. It would further appear that, with the exception of the Maltese Falcon Intelligence Log and the supporting source documentation, the bulk of the information relating to Walsh’s history as an informant was made available during the trial, at least in edited form. It is to be noted that the process of editing was not left to the unilateral decision of the prosecution, but was subject to the supervision and approval of the trial judge. This, together with the judge’s duty to monitor throughout the trial the fairness or otherwise of any information withheld, must be seen as providing important safeguards for the conduct of the defence.
The Court would further observe that, with a view to the preparation of his and Walsh’s appeal, the applicant obtained, following the Court of Appeal’s ruling of 20 November 1997, disclosure of “all material in relation to [Walsh’s] history as an informant. It is true that, in accordance with the ruling of 20 November 1997, the Maltese Falcon Intelligence Log and accompanying source documents were not disclosed to the applicant in their entirety. However, it is to be noted that the prosecution’s proposal to withhold from the defence certain passages from these materials was subject to the scrutiny and decision of the Court of Appeal. The Court would further add that there is nothing to suggest that, at the ex parte hearing before the Court of Appeal on 21 May 1998, the prosecution claimed PII for any category of documents which had not already been submitted to the trial judge at the time of the prosecution’s initial PII application.
In the Court’s conclusion, any restrictions on the rights of the defence caused by the non-disclosure of particular materials were adequately counterbalanced by the judicial control over the prosecution’s claims for PII at the trial and appeal stages. The applicant is critical of the fact that he was unable to contest the prosecution’s PII applications before the trial court and the Court of Appeal. However, the Court would make the following observations in this connection: firstly, the defence was at least informed beforehand of the prosecution’s intentions; secondly, and as stressed above, the final decision on the merits of the prosecution’s claims lay with independent judicial bodies, which would have ordered disclosure if they considered this would have assisted the applicant’s defence; thirdly, the applicant was able to have the trial judge’s assessment and decision reviewed by the Court of Appeal; and, fourthly, it would appear that the prosecution was at all times prepared to disclose to the defence as much information as was consistent with the need to protect other interests.
The Court would further point out that the applicant did not at any stage of the proceedings rely on the argument that he was a victim of entrapment by the police. The trial judge was never asked by the applicant’s defence team to rule that the prosecution should be discontinued for reasons of abuse of process or that evidence obtained by entrapment should be excluded (cf. Edwards and Lewis v. the United Kingdom, nos. 39647/98 and 40461/98, 22 July 2003). Since entrapment in the domestic law of the respondent State is a question to be resolved on the evidence by the judge rather than the jury, there is no need to consider in the circumstances of Mr Chadwick’s case whether the judge’s decision to uphold the prosecution’s PII application prevented him from effectively arguing before that same judge that he had been entrapped into committing an offence.
In sum, the decision-making procedure applied in the applicant’s case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms, and incorporated adequate safeguards to protect his interests. The proceedings in their entirety were fair. On that account, and as the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set out in paragraph 1 it is not necessary for the Court to examine the applicant’s allegations separately from the standpoint of paragraph 3 (see, Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, §§ 33-34).
For the above reasons, it follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant maintains that the refusal of the Court of Appeal to grant him leave to amend his grounds of appeal in order to raise Convention-based arguments gave rise to a further breach of his right to a fair trial.
The Court finds on the materials before it that there is no appearance of a breach of the fairness requirements of Article 6, including with respect to the right of access to a court. The fact that a domestic court in the exercise of its discretion refuses a late request to amend pleadings cannot of itself be considered to rise to an issue of procedural unfairness.
This complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosViera Strážnická
Deputy RegistrarPresident[Note3]
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