Information Note on the Court’s case-law No. 55
July 2003
Edwards and Lewis v. the United Kingdom - 39647/98 and 40461/98
Judgment 22.7.2003 [Section IV]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Non-disclosure by prosecution, on ground of public interest, of material potentially relevant to defence of entrapment: violation
[This case was referred to the Grand Chamber on 3 December 2003]
Facts: The first applicant was convicted of drugs offences after being arrested in the company of an undercover police officer. As the applicant was the only person charged with an offence, he suspects that the other participants were also undercover officers or informers acting on police instructions. Prior to his trial, the prosecution gave notice to the defence that an ex parte application had been made to withhold evidence. The judge, who considered the material in the absence of the defence, concluded that it would not assist the defence and that there were genuine public interest grounds for withholding it. This ruling was confirmed by the trial judge after hearing submissions on behalf of the defence. The trial judge also refused a request to exclude the evidence of the undercover officer on the ground that the applicant had been entrapped into committing the offence. The applicant’s appeal against his conviction was refused by the Court of Appeal, which examined the undisclosed material.
The second applicant, who was convicted of supplying counterfeit banknotes, also claimed that he had been entrapped by undercover police officers or informers. The judge, having heard an ex parte application by the prosecution to withhold evidence on grounds of public interest immunity, refused to order disclosure. He also refused to exclude the evidence of police undercover agents. As a result, the applicant pleaded guilty.
Law: Article 6 § 1 – The requirements of a fair trial preclude the use of evidence obtained as a result of police incitement. While in English law entrapment does not constitute a substantive defence, it places the judge under a duty either to stay the proceedings as an abuse of process or to exclude any evidence obtained by entrapment. It was not possible for the Court to determine whether there had been entrapment, contrary to Article 6, in the present cases, since the relevant information had not been disclosed. It was therefore essential for the Court to examine the procedure whereby the plea of entrapment was determined in each case, to ensure that the rights of the defence had been adequately protected. Article 6 requires, in addition to respect for adversarial proceedings and equality of arms, that the prosecution disclose to the defence all material evidence. That entitlement is not absolute, but only such measures restricting the rights of the defence as are strictly necessary are permissible. Moreover, any difficulties caused to the defence must be sufficiently counterbalanced by the procedures followed, which must, as far as possible, comply with the requirements of adversarial proceedings and equality of arms and incorporate adequate safeguards. In the case of Jasper (judgment of 16 February 2000), the Court had considered that it was sufficient to comply with Article 6 that the trial judge, with full knowledge of the issues in the trial, had carried out the balancing exercise between the public interest and the rights of the defence. However, it was material that the withheld evidence had not formed part of the prosecution case and had never been put to the jury. In the present case, in contrast, the undisclosed evidence related or may have related to an issue of fact decided by the trial judge. The applications to exclude evidence on the basis of entrapment were of determinative importance, since their success would have led to the prosecutions being discontinued, and the undisclosed evidence may have related to facts connected with these applications. The non-disclosure made it impossible for the defence to argue the case for entrapment in full. Moreover, the judges who rejected the submissions on entrapment had already seen prosecution evidence which may have been relevant to that issue. In these circumstances, the procedure followed did not comply with the requirements of adversarial proceedings and equality of arms and did not incorporate adequate safeguards to protect the interests of the accused.
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 awards in respect of costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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