Information Note on the Court’s case-law 54
June 2003
Dowsett v. the United Kingdom - 39482/98
Judgment 24.6.2003 [Section II]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Adversarial trial
Non-disclosure of material by prosecution: violation
Facts: The applicant was convicted of murder in 1989. He was subsequently informed that the prosecuting authorities had withheld a large amount of undisclosed material, some of which he believed would have supported his defence. Some of the material was disclosed prior to the hearing of the applicant’s appeal but other material was withheld, partly on the ground of “public interest immunity”. The Court of Appeal dismissed the applicant’s appeal, finding that there had been no miscarriage of justice.
Law: Article 6 § 1 – This provision requires that the prosecution authorities disclose to the defence all material evidence in their possession. The entitlement to disclosure of relevant evidence is not absolute, as there may be competing interests to be weighed against the rights of the accused. However, only such measures restricting the rights of the defence as are strictly necessary are permissible and any difficulties caused to the defence must be sufficiently counter-balanced by the procedures followed by the judicial authorities. A procedure whereby the prosecution assesses the importance of material and decides, without notifying the judge, to withhold it on grounds of public interest, cannot comply with Article 6. In the present case, the procedure whereby the Court of Appeal assessed, with the assistance of defence counsel, the nature and significance of the material disclosed after the trial was sufficient to satisfy the requirements of fairness in that respect. However, the Court of Appeal did not review the undisclosed material, and while the applicant could have asked the Court of Appeal to do so, the Court had in any event considered in the case of Rowe and Davis (ECHR 2000-II) that the review procedure was not sufficient to remedy the unfairness caused by the absence of scrutiny of undisclosed material by the trial judge. In these circumstances, an application to the Court of Appeal could not be regarded as an adequate safeguard. In conclusion, the Court reiterated the importance of material relevant to the defence being placed before the trial judge for a ruling on disclosure.
Conclusion: violation (unanimously).
Article 41 – The Court considered that the finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage. It made an award in respect of costs and expenses.
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This summary by the Registry does not bind the Court.
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