SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 31825/96
by Robert DOUBTFIRE
against the United Kingdom
The European Court of Human Rights (Second Section), sitting on 23 April 2002 as a Chamber composed of
MrJ.-P. Costa, President,
MrA.B. Baka,
SirNicolas Bratza,
MrGaukur Jörundsson,
MrL. Loucaides,
MrK. Jungwiert,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 27 October 1994,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Robert Doubtfire, is a United Kingdom national, who was born in 1961. He was represented before the Court by Ms Cunneen, a solicitor of Liberty, an organisation based in London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 May 1993 the applicant was arrested in a depot after he had unloaded a tanker lorry in which ecstasy tablets and amphetamine sulphate had been imported into the United Kingdom.
In January 1994 the applicant appeared before the Maidstone Crown Court to be tried on charges of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of drugs. The applicant accepted that he had unloaded the lorry. However, it was the applicant’s case that he had no knowledge of the nature of the consignment and that he had been set up by someone called “W.S.” as a “cut-out”, i.e. a person put in place by someone in charge of an illegal operation to insulate himself from detection and arrest. As it transpired from the record of all the calls made from the applicant’s mobile telephone, the applicant, while unloading the lorry and at other critical times, had repeatedly called W.S.’s telephone number.
During the trial the prosecution made an ex parte application to the trial judge to withhold evidence. The judge looked at the material and endorsed the prosecution’s view that the material was covered by public interest immunity. The defence were not told the category of the material which was the subject of the application and did not have the opportunity of making representations to the judge.
On 2 February 1994, the applicant’s counsel made ex parte submissions to the judge concerning the relevance of material relating to W.S. to the defence’s case. However, the judge did not accede to the defence’s request for the disclosure of the material which had been withheld, nor to the disclosure of the category of the material, and further declined to make a ruling in open court as to why the applicant was not entitled to material relating to W.S. All the judge could tell the defence was that in cross-examination he would not allow them to ask questions relating to investigations concerning W.S.
On 16 February 1994 the applicant was found guilty and given two sentences of 25 and 12 years’ imprisonment to run concurrently. The applicant appealed relying, inter alia, on the non-disclosure of material concerning W.S. The applicant also submitted that the prosecution might have also withheld evidence concerning another witness, “H”.
A single judge gave the applicant leave to appeal against sentence and referred to the Court of Appeal his application for leave to appeal against conviction.
Two days before examining the applicant’s appeal, the Court of Appeal examined ex parte all the material that was before the trial judge. It decided not to order any further disclosure.
The Court of Appeal’s first judgment was delivered on 30 November 1995. It found that the applicant had been able to run his defence as he wished and had, in particular, been able to put before the jury the fact that W.S. had a criminal record and that the prosecution had suspicions about him. This, together with the applicant’s own testimony, had enabled the jury to assess the extent, if any, of W.S.’s involvement in the case. For these reasons, the Court of Appeal rejected the applicant’s ground of appeal concerning disclosure. The court did not find any merit in the applicant’s other grounds of appeal and upheld his conviction. However, it reduced the first concurrent sentence from 25 to 20 years’ imprisonment.
On 6 July 2000 the Criminal Cases Review Commission (“CCRC”) referred the applicant’s case back to the Court of Appeal on the ground that:
“As a result of the [CCRC’s] enquires, the CCRC has concluded that there was a failure by the prosecution in respect of its disclosure obligations in the context of submissions made by the [prosecution] to the trial judge in the context of submissions made by the [prosecution] to the trial judge in the course of ex parte hearings. The [CCRC] considers that this failure was material to [the applicant’s] defence and to his mitigation. ...”
The precise nature of the failure of disclosure was expanded upon in a confidential annex to the CCRC’s report.
On 19 December 2000 the Court of Appeal quashed the applicant’s conviction on both counts and quashed the order for prosecution costs. The court examined the confidential annex to the CCRC’s report in private. It held that:
“... the [applicant’s] trial was materially unfair in the way the [CCRC] describes. That is sufficient for our conclusion that this appeal should be allowed and the conviction quashed.”
The Court of Appeal continued:
“We have considered whether it is right that the Court should elaborate on that conclusion by giving detailed reasons, by reference to the confidential material which has been put before the Court, to explain why we have reached that conclusion. We are persuaded that the balance of competing public interest in this case falls on the side of not making the material public, and not making public the detailed reason’s for the [CCRC’s] conclusion.
We have found that particular point a difficult one, and we have sought ... whether there is a halfway house in this case. We have, with some regret, reached the conclusion that there is not, and in reaching that conclusion we are acutely aware of the clear fact that justice is required to be conducted openly and in public, and that exceptions to this should only occur in cases in which there is indeed an overriding public interest which so requires it.”
As a result of the Court of Appeal’s judgment, the applicant may now apply for compensation for his conviction and imprisonment under section 133 of the Criminal Justice Act 1988.
COMPLAINTS
In his application the applicant complained under Article 6 §§ 1 and 3(b) and (d) of the Convention about the non-disclosure to the defence of evidence which was acknowledged to be relevant and material, and the unfairness of the ex parte disclosure procedure in the Crown Court and Court of Appeal.
THE LAW
The applicant claimed that, despite the fact that his conviction had been quashed, he could still claim to be a victim under Article 34 of the Convention of a violation of his rights under Article 6.
Article 34 states:
“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ...”
The applicant argued that the Court of Appeal failed, in its judgment of 19 December 2000, to give adequate reasons for quashing the conviction, and, in particular, that he had never been informed of the nature and contents of the undisclosed evidence.
The Government submitted that the applicant could no longer claim to be a victim of any violation of Article 6.
The Court notes that the applicant’s conviction was quashed on 19 December 2000, on the grounds that the proceedings had been unfair because of the lack of full disclosure by the prosecution. It is now open to the applicant to apply for compensation in respect of his conviction and imprisonment. In these circumstances, the applicant can no longer claim to be a victim of the alleged violation of Article 6 of the Convention (see, among many examples, Saukaitis v. Lithuania (dec.), no. 41774/98, 14 November 2000, unpublished).
For these reasons, the Court unanimously
Declares the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy