AS TO THE ADMISSIBILITY OF
Application No. 29777/96
by Barry FITT
against the United Kingdom
The European Commission of Human Rights sitting in private on
15 September 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 November 1995
by Barry FITT against the United Kingdom and registered on
10 January 1996 under file No. 29777/96;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
14 February 1997 and the observations in reply submitted by the
applicant on 5 April 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1950 and currently
detained in HM Prison Whitemoor. Before the Commission, he is
represented by Mr. Robin Tilbrook, a solicitor practising in Essex.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
According to the Crown's case the applicant, together with C.,
S. and another, planned to carry out an armed robbery of a Royal Mail
van as it was due to leave the Sorting Office at Sandgate Close in
Romford. C. and S. had worked for the post office and were familiar
with the procedures necessary to send packages of great value through
the post. Using up-to-date technology the conspirators posted a letter
containing a tracking device. The letter was to appear, in due course,
amongst other packages of a similar kind in a mail van the conspirators
proposed to rob. Unknown to them, the police were fully informed as
to the robbery that had been planned.
On 26 August 1993, the date of the robbery, the police were
keeping the area and conspirators under observation.
At 8.40pm an Orion (driven by C.) parked in Crow Lane, with its
lights on, near the Post Office depot. S.'s Sierra arrived in Crow
Lane. The applicant emerged from S.'s Sierra, dressed entirely in
black. He made his way inside the cemetery carrying a jacket over his
arm. C. in the Orion then followed the Sierra, only to return to
Sandgate Close, where he parked the Orion with the headlights on.
At 8.46pm the applicant was seen lying down by the railings,
inside the cemetery at a spot which was directly opposite Sandgate
Close and had a gap in the railings. Only the "moon" of his face was
showing due to the hood of the jacket being secured firmly around his
head. At 8.49pm the applicant was disturbed by a local resident passing
by, who stopped and spoke to him. He was also spotted by a passing
Post Office employee. The police officers observed the incident.
At about 8.50pm the applicant ran further back into the cemetery
constantly stopping to face the depot and gesticulating in a manner
consistent with trying to attract the attention of C. in the Orion
which was parked opposite. Having disappeared between the bushes for
about a minute, he re-appeared, now without his jacket, and ran further
into the cemetery where he was confronted by armed officers. C. was
arrested in a motorcar near the mail van. In the car there was a
walkie-talkie, a balaclava and some gloves.
Behind a bush, where the applicant had been observed crouching
at one stage, was found a light-coloured jacket with fibres on it
matching those from the applicant's jumper. In the pocket of the jacket
were a pair of handcuffs, a sock containing four shotgun cartridges,
and a canister of CS gas. Partially buried near the jacket was a
balaclava helmet. A short time later a police officer discovered a pair
of gloves and a sawn-off shotgun buried nearby. All the items were
shown to the applicant whilst still at the scene. He denied all
knowledge of them.
S. was stopped after a high-speed car chase. In his car there
was another walkie-talkie, through which connection could be made with
that found in C.'s car. Yet another car was found abandoned nearby.
It was the Crown's case that that car was driven by a fourth
conspirator. In it was found a device capable of monitoring a police
radio.
It was the applicant's case that he had agreed with C. to bury
some items which he understood had been used in connection with a theft
of motor vehicles. These items had come from a man called D.W., from
whom C. was buying a car. The items had been handed to the applicant
by D.W. in two bundles, wrapped in a brown coat, on the evening of
26 August 1993. The applicant said that C. had asked him to bury the
bundles at a particular spot in the cemetery. This he had proceeded
to do on that evening. After he had buried the items, he put the knife
he used for digging the holes and the brown coat into a bag, which he
then threw away. He denied all knowledge of the proposed robbery, of
the light-coloured jacket, handcuffs, CS canister, shotgun and
cartridges. He claimed that he had been set up by D.W. to make it
appear that he was going to participate in an armed robbery.
In the course of proceedings the prosecution successfully applied
ex parte to the trial judge for an order that they not be required to
disclose certain material to the defence, save to the extent that the
defence were told that the material related to sources of information.
Having later heard submissions from the defence that if any of this
information touched upon the applicant's defence that he had been set
up by D.W., it ought to be disclosed, on 23 March 1994 the trial judge
refused to order disclosure. He considered inter alia:
"... I ... adopted the principle that if something did or
might help further the defence then I would order
disclosure. I have not ordered disclosure. I have not
found it necessary or right to adjourn proceedings, ex
parte, in order for them to be inter partes ..."
On 18 April 1994 the trial against the applicant, S. and C.
started. On 19 April 1994 C. pleaded guilty and the jury were
discharged. On 20 April 1994 the trial of the applicant and S. started
before a new jury.
On 25 April 1994 the Crown made a further ex parte application
to the trial judge. This application, and the inter partes application
which immediately followed, related to a witness statement given to the
prosecution by C. after his guilty plea. The defence were aware that
the ex parte application was to be made. Prosecution counsel
described, at the inter partes hearing, the category of information
which was the subject of the ex parte application:
"... the application was two-fold. One part ... concerned
a renewal of the original ex parte application, namely
concerning the source of the information. The second limb
upon which approval was sought is such that even to deal
with the area upon which it was argued that it ought not to
be disclosed would, in fact, reveal what the area was and
that particular concern was expressly covered in the case
of Davis, Johnson and Rowe which was [held] to be one of
the exceptions where one does not even state the category
in case it result in revealing that which ... ought to be
protected."
The judge ruled:
"... [prosecution counsel] has asked me to examine matters
ex parte and I am satisfied that that was a correct
application ... As I indicated, had I changed my view
during the hearing, I would have adjourned and heard the
matter inter partes.
It is plain to everyone, including each defendant, that the
statement of [C.] must, first of all, have dealt with
preparation of the conspiracy to which he has pleaded
guilty and the events of the day upon which he was
arrested. The reason the prosecution say they should not
serve that part of [C.]'s statement is sources of
information in the headline and my decision has been that
the prosecution attitude is correct.
The second part of [C.]'s statement, as is now plain to the
defence, deals with preparation for defence and there are
two main matters, one I will call, 'Boot', 'Boot and Bug',
and the other I will call 'Bin-liner'. With regard to that
the prosecution say that we should not serve that part of
the statement, 'Boot and Bug' and 'Bin-liner', but they do
disclose a summary of the information which has now been
given to the defence; paragraphs 1 to 6 are 'Boot and Bug',
paragraph 7 is 'Bin-liner'.
The prosecution have invited me to consider whether their
proposal, the action which they have now carried out, is
consistent with the Attorney General's Guidelines and in my
view it is. [Defence counsel] accurately points out that
giving a precise rather than the whole or the edited part
of the statement, or part of the statement with further
edited things or omissions, does not in fact follow any one
or other of the various examples given in Guideline 13, but
Guideline 13 is only giving examples. In my view the
prosecution have been fair and correct in giving the
information which they have which, of course, they may use
during the case. When it comes to the defence, it is open
to them to use it and putting each defendant on guard that
this they know and this they may use. It is further my
view that in no way is either defendant prejudiced by the
prosecution following this procedure which, as I have said,
in respect of each limb ... is the correct procedure."
On 16 May 1994 the Central Criminal Court convicted the applicant
of conspiracy to rob, possession of a firearm and possession of a
prohibited weapon. On 20 May 1994 the applicant was sentenced to 11
years' imprisonment.
Following the conviction, the applicant's counsel drafted two
grounds of appeal against the conviction and sentence in which the
first one concerned the ruling by the trial judge and the second one
related to the witness statement made by C. to the prosecution. It was
submitted in particular that:
"... In his sentencing remarks the judge specifically
referred to the existence of a 'participating informant'
who was instrumental in both the appellant and [C.] being
arrested; this was the first that the defence had heard of
the existence of such an informant.
In the submission of the appellant, the interests of
justice required that the undisclosed material which had
been specifically withheld from the defence, and apparently
relating to a participating informant, should have been
made available to the defence. The defence was materially
disadvantaged in presenting their case to the jury by its
inability to establish even the existence, let alone the
role, of this informant. Without this evidence the defence
case of 'set-up' rested upon a mere assertion which may
well have been regarded by the jury as quite incredible and
absurd. ...
... In the submissions of the defence, the actual text of
the witness [C.'s] statement, or such part or parts of it
as were not covered by recognised public interest immunity
or protection, ought to have been disclosed to them. If
this was not practicable then a further statement should
have been obtained which omitted the objectionable
material. The course in fact adopted of giving a 'Summary'
was a naked device to prevent the proper disclosure of
admittedly relevant material, and was specifically designed
to thereby advantage the Crown and to disadvantage the
defence."
On 6 June 1995 the Court of Appeal upheld the applicant's
conviction. The Court considered:
"... During the course of the proceedings the prosecution
successfully applied ex parte to the judge for an order
that they not be required to disclose certain material to
the defence, save to the extent that the defence were told
that the material related to sources of information.
Having later heard submissions from the defence that if any
of the material in question touched upon the applicant's
defence that he had been set up to by [D.W.], it ought to
be disclosed, on 23 March 1994 the judge refused to order
any disclosure of the materials.
These rulings by the judge are the subject of the first
ground of appeal ... It is said that the interests of
justice required that the undisclosed material should have
been disclosed to the defence. We can see no reason to
disagree with the judge's ruling. He made it clear that if
any of the material 'did or might help the defence' he
would order disclosure. He obviously considered the matter
carefully before giving his ruling. There is no substance
in this ground of appeal.
The second ground of appeal relates to a witness statement
made by [C.] as a witness for the Crown. On 25 April 1994
the Crown applied ex parte to the judge to approve the non-
disclosure of [C.]'s witness statement and to approve the
alternative course proposed by the Crown, which was to
provide a summary of the witness statement. The judge
granted the application and approved the proposed course.
Again, we see no reason to disagree with the judge's
decision in this matter. ...
Additionally, on 13 May 1995, the applicant wrote to the
Registrar requesting a hearing so as to obtain 'numerous
interviews and statements' by ... [C.]. This is the
application for disclosure which has been referred to the
full court by the Registrar and to which we were referred
earlier. Many of these statements concern apparent
confessions to crime made by fellow prisoners. Others
relate to information about crimes [C.] claims to have
witnessed or heard about whilst he was at liberty. We have
considered the application and the documents. We are not
persuaded that there is any proper basis for ordering such
disclosure. Accordingly, this renewed application for leave
to appeal against conviction is refused."
B. Relevant domestic law and practice
In December 1981 the Attorney-General issued Guidelines, which
did not have the force of law, concerning exceptions to the common-law
duty to disclose to the defence certain evidence of potential
assistance to it ((1982) 74 Cr.App.R. 302 ("the Guidelines")). The
Guidelines attempted to codify the rules of disclosure and to define
the prosecution's power to withhold "unused material". Under
paragraph 1, "unused material" was defined as:
"(i) All witness statements and documents which are not included
in the committal bundle served on the defence; (ii) the
statements of any witnesses who are to be called to give evidence
at the committal and (if not in the bundle) any documents
referred to therein; (iii) the unedited version(s) of any edited
statements or composite statement included in the committal
bundles."
Under paragraph 2, any item falling within this definition was
to be made available to the defence if "... it has some bearing on the
offence(s) charged and the surrounding circumstances of the case".
The duty to disclose was subject to a discretionary power for
prosecuting counsel to withhold relevant evidence if it fell within one
of the categories set out in paragraph 6. One of these categories
(6(iv)) was "sensitive" material which was defined as follows:
"... (a) it deals with matters of national security; or it is by,
or discloses the identity of, a member of the Security Services
who would be of no further use to those services once his
identity became known; (b) it is by, or discloses the identity
of an informant and there are reasons for fearing that the
disclosure of his identity would put him or his family in danger;
(c) it is by, or discloses the identity of a witness who might
be in danger of assault or intimidation if his identity became
known; (d) it contains details which, if they became known, might
facilitate the commission of other offences or alert someone not
in custody that he is a suspect; or it discloses some unusual
form of surveillance or method of detecting crime; (e) it is
supplied only on condition that the contents will not be
disclosed, at least until a subpoena has been served upon the
supplier - e.g. a bank official; (f) it relates to other offences
by, or serious allegations against, someone who is not an
accused, or discloses previous convictions or other matters
prejudicial to him; (g) it contains details of private delicacy
to the maker and/or might create risk of domestic strife."
According to paragraph 8, "in deciding whether or not statements
containing sensitive material should be disclosed, a balance should be
struck between the degree of sensitivity and the extent to which the
information might assist the defence". The decision as to whether or
not the balance in a particular case required disclosure of sensitive
material was one for the prosecution.
Since 1992, the Guidelines have been superseded by the common
law, notably by the decisions of the Court of Appeal in R. v. Ward
([1993] 1 WLR 619); R. v. Trevor Douglas K. ((1993) 97 Cr.App.R. 342);
R. v. Davis, Johnson and Rowe ([1993] 1 WLR 613); R. v. Preston ([1993]
3 WLR 981); R. v. Keane ([1994] 1 WLR 747); R. v. Winston Brown ((1995)
1 Cr.App.R. 191) and R. v. Turner ([1995] 1 WLR 264).
In R. v. Ward, decided in June 1992, the Court of Appeal gave its
most detailed attention to the question of what duties the prosecution
have to disclose evidence to the defence. The Court of Appeal laid
down the proper procedure to be followed when the prosecution claims
that certain material is the subject of public interest immunity. It
stressed that the court and not the prosecution, was the judge of where
the proper balance lay in a particular case. In dealing with the
question whether the prosecution was obliged to give notice to the
defence where it wished to withhold documents on grounds of public
interest immunity, the Court of Appeal stated:
"... [W]hen the prosecution acted as judge in their own cause on
the issue of public interest immunity in this case they committed
a significant number of errors which affected the fairness of the
proceedings. Policy considerations therefore powerfully reinforce
the view that it would be wrong to allow the prosecution to
withhold material documents without giving any notice of that
fact to the defence. If, in a wholly exceptional case, the
prosecution are not prepared to have the issue of public interest
immunity determined by a court, the result must inevitably be
that the prosecution will have to be abandoned."
In R. v. Trevor Douglas K., decided in November 1992, the Court
of Appeal held that in performing the balancing exercise referred to
in Ward, the court must view the material itself:
"In our judgment the exclusion of the evidence without an
opportunity of testing its relevance and importance amounted to
a material irregularity. When public interest immunity is
claimed for a document, it is for the court to rule whether the
claim should be upheld or not. To do that involves a balancing
exercise. The exercise can only be performed by the judge
himself examining or viewing the evidence, so as to have the
facts of what it contains in mind. Only then can he be in a
position to balance the competing interests of public interest
immunity and fairness to the party claiming disclosure."
The Court of Appeal also established that where an accused
appeals to the Court of Appeal on the grounds that material has been
wrongly withheld, the Court of Appeal will itself view the material ex
parte. In this case the defence were at least aware of the nature of
the evidence in issue. Subsequent decisions have however authorised
a procedure whereby the Crown Court and Court of Appeal may conduct the
balancing exercise without the defence being on notice of the general
nature of the material or, in certain cases, of even the fact that such
material exists and that an application has been made to withhold it.
In January 1993, in R. v. Davis, Johnson and Rowe, the Court of
Appeal held that it was not necessary in every case for the prosecution
to give notice to the defence when it wishes to claim public interest
immunity.
Lord Taylor CJ outlined three different procedures to be adopted.
The first procedure which must generally be followed was for the
prosecution to give notice to the defence that they are applying for
a ruling by the court and indicate to the defence at least the category
of the material which they hold. The defence then have the opportunity
to make representations to the court. Secondly, however, where the
disclosure of the category of the material in question would in effect
reveal that which the prosecution contended should not be revealed, the
prosecution should still notify the defence that an application to the
court is to be made but the category of the material need not be
disclosed and the application should be ex parte. The third procedure
would apply in an exceptional case where to reveal even the fact that
an ex parte application is to be made would "let the cat out of the
bag". Then the prosecution should apply to the court ex parte without
notice to the defence.
The Court of Appeal justified its position on the ground that the
only way of avoiding ex parte applications was to say that the
prosecution must choose between following the inter partes procedure
or declining to prosecute and in rare but serious cases the prosecution
would then choose not to prosecute when it was clearly in the public
interest to do so. The Royal Commission on Criminal Justice concluded
that this decision represented a satisfactory balance between the
public interest in protecting sensitive information and the interests
of the defence.
The Court of Appeal also noted that the change of procedure had
been to give the court an important role in monitoring the views of the
prosecution as to the proper balance to be struck. Even in cases in
which the sensitivity of the information required an ex parte hearing,
the defence had "as much protection as can be given without pre-empting
the issue". The Court held:
"(1) In general, it is the duty of the prosecution to comply,
voluntarily and without more, with the requirements in para. 2
of the Attorney-General's guidelines. (2) If the prosecution wish
to rely on public interest immunity or sensitivity to justify
non-disclosure, then, whenever possible, which will be in most
cases, (a),(b) and (c) of the [defense counsel]'s formulation ...
will apply. (3) Where, however, to disclose even the category
of the material in question would in effect be to reveal that
which the Crown contends should not in the public interest be
revealed, a different procedure will apply. The Crown should
still notify the defence that an application to the court is to
be made, but the category of the material need not be specified
and the application will be ex parte. If the court, on hearing
the application, considers that the normal procedure under (2)
above ought to have been followed, it will so order. If not, it
will rule on the ex parte application. (4) It may be that, in
a highly exceptional case, to reveal even the fact that an ex
parte application is to be made, could "let the cat out of the
bag" so as to stultify the application. Such a case would be
rare indeed, but we accept the prosecution's contention that it
could occur. In that event, the prosecution should apply to the
court, ex parte, without notice to the defence. Again, if the
court, on hearing the application, considered that at least
notice of the application should have been given to the defence
or even that the normal inter partes procedure should have been
adopted, it will so order."
Finally, the Court of Appeal noted that it was for the court to
continue to monitor the position as the trial progressed. Issues might
emerge during trial which affected the balance and required disclosure
"in the interests of securing fairness to the defendant". For this
reason it was important for the same judge or constitution of the court
which hears the application also to conduct the trial.
In November 1993 the House of Lords had decided R. v. Preston
which concerned the right of the defence to have access to material
obtained by a telephone tap authorised under the Interception of
Communications Act 1985 ["the 1985 Act"] (see also No. 24193/94, Dec.
2.7.97).
Section 2 empowers the Secretary of State to authorise the
interception of, inter alia, telephone calls. The purposes for which
the power may be exercised are circumscribed by the statute and are
confined by Section 2(2)(b) to the purpose of preventing or detecting
serious crime. Section 6 contains provisions for limiting dissemination
of intercepted material and for its destruction as soon as its
retention is no longer necessary. Lastly, Section 9(1)(b) provides,
inter alia, that no evidence shall be adduced, and no question in
cross-examination shall be asked, by any party in any proceedings
before a court or tribunal which tends to suggest that a warrant has
been or is to be issued authorising interception of communication.
The House of Lords considered these provisions in R. v. Preston.
It was held that the purpose of 'preventing' serious crime in Section
2(2)(b) does not extend to the prosecution of such crime. It was not
the purpose of this Act that intercepted material should be used in
evidence. Indeed, the Secretary of State was under a duty to destroy
the intercepted material as soon as the object for which it was
collected was achieved, which will usually happen long before a
criminal trial has taken place. Accordingly, the House of Lords
regarded the 1985 Act as making an exception to the general rule that
the prosecution must disclose all unused material to the defence. Lord
Mustill made observations on the duties of the prosecution in this
regard. He reiterated that disclosure by the prosecution turns not on
admissibility but on materiality. The prosecution is therefore duty
bound to disclose material even if it would be inadmissible. Further,
material must not be withheld from prosecuting counsel on the ground
that it is inadmissible in evidence, for he could not perform his
broader duties to see justice done without knowing all the material
that there is to know.
In March 1994, the Court of Appeal gave judgment in R. v. Keane
which concerned a non-disclosure of the details of an informant by the
prosecution to the defence. This judgment highlighted two points. The
first concerns a matter of principle. The Court of Appeal held that
in every case in which the prosecution objects to the disclosure of
relevant material on grounds of public interest immunity, the judge
must balance the public interest in non-disclosure against the
importance to the defence of the materials in question. Moreover, if
the judge concludes that the material in question might prove the
defendant's innocence or avoid miscarriage of justice, he is duty bound
to order disclosure. The second point concerns the procedure to be
followed in determining a claim for immunity. The Court decided
thata judge may not sanction the withholding of evidence in a criminal
case without inspecting the evidence in private and satisfying himself
that its suppression would not result in miscarriage of justice.
In June 1994, in R. v. Winston Brown, the Court of Appeal
reviewed the operation of the Guidelines. It stated:
"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 Ward established that it is for the court,
not prosecuting counsel, to decide on disputed questions as to
disclosable 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 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 ..."
In October 1994 the Court of Appeal decided the case of R. v.
Turner where it returned to the balancing exercise. As in R. v. Keane,
the case concerned the increasingly common situation where the
prosecution did not wish to disclose the details of an informant but
the defence claimed that these details were essential to their case.
The day before the trial, the prosecution applied ex parte to the
judge for a ruling that it was not under any duty to disclose the
details of the informant who had alerted the police, and the judge
ruled in their favour. On appeal, Lord Taylor endorsed the balancing
test which required the judge to have regard, on the one hand, to the
weight of the public interest in non-disclosure against the importance,
on the other hand, of the documents to the issues of interest to the
defence, present or potential, so far as they had been disclosed to him
or he could foresee them. But in view of the tendency for defendants
to seek disclosure of informants' names and roles, Lord Taylor alerted
judges to the need to scrutinise applications for disclosure of details
about informants with very great care and continued:
"Clearly, there is a distinction between cases in which the
circumstances raise no reasonable possibility that information
about the informant will bear upon the issues and cases where it
will. Again, there will be cases where the informant is an
informant and no more; other cases where he may have participated
in the events constituting, surrounding, or following the crime.
Even when the informant has participated, the judge will need to
consider whether his role so impinges on an issue of interest to
the defence, present or potential, as to make disclosure
necessary."
The Court of Appeal then concluded:
"It is sufficient for us to say that in this case we are
satisfied that the information concerning the informant showed
a participation in the events concerning this crime which,
coupled with the way in which the defence was raised from the
very first moment by the defendant when he said that he was being
set up, gave rise to the need for the defence to be aware of the
identity of the informant and his role in this matter. We
therefore conclude that if one applies the principle which has
been quoted from R. v. Keane to the facts of the present case,
there could only be one answer to the question as to whether the
details concerning this informer were so important to the issues
of interest to the defence, present and potential, that the
balance which the judge had to strike came down firmly in favour
of disclosure."
COMPLAINTS
The applicant submits that his trial at the Central Criminal
Court and the Court of Appeal violated Article 6 of the Convention in
the following respects:
1. The police use of informant's statement was contrary to Article 6
para. 2.
2. The non-disclosure to the defence of material relating to a
participating informant used by the police breached the applicant's
right to a fair trial in general, and, in particular, his right to
adequate facilities for the preparation of his defence guaranteed by
Article 6 para. 3(b) and his right to examine witnesses on his behalf
under the same conditions as witnesses against him under Article 6
para. 3(d) of the Convention.
3. The judge's approval in the ex parte procedure to withhold the
co-defendant's witness statement and to give to the defence a 'Summary'
instead breached again the applicant's right to a fair trial.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 November 1995 and registered
on 10 January 1996.
On 27 November 1996 the Commission decided to communicate the
application.
The Government's written observations were submitted on
14 February 1997. The applicant replied on 5 April 1997.
On 15 April 1997 the Commission granted the applicant legal aid.
THE LAW
The applicant complains about an unfair trial and inability to
prepare his defence and to effectively cross-examine prosecution
witnesses. The ex parte procedures, in which courts approved non-
disclosures of relevant evidence, namely a police informant and witness
statement, were held, on the grounds of public interest, in the absence
of the applicant and his counsel and without affording them the
opportunity to make informed representation. Thus, the applicant was
placed at a substantial disadvantage in the conduct of the proceedings
and thereby the principle of equality of arms was affected. He invokes
Article 6 (Art. 6) of the Convention, the relevant parts of which 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. ...
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;
...
d. to examine or 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 Government first submit that neither the general principle
of fairness in criminal proceedings under Article 6 para. 1 (Art. 6-1)
of the Convention nor the specific right to "adequate facilities" under
Article 6 para. 3(b) (Art. 6-3-b) of the Convention requires an
absolute right for the defence to disclosure of all relevant material.
Moreover, previous cases decided by the Convention organs do not
establish any such principle whether by analogy or otherwise and, on
the contrary, have recognised the legitimacy of non-disclosure of
confidential or sensitive material in criminal proceedings.
As to the issue of principle, the Government submit that there
are categories of material which the public interest requires either
should not be disclosed at all, or should not be disclosed without a
compelling reason. The basis on which that public interest rests is
that damage would or, at the least, might be caused by disclosure.
They claim that the concept of relevant material covers material
in a very broad spectrum. At one end of the spectrum is material which
is likely not to assist the defence at all, but rather to assist the
prosecution. In criminal cases the principle of public interest
immunity might operate to prevent use by the prosecution of such
material, even if such material incriminated the accused. At the other
end is material which would tend to establish an accused's innocence.
The Government note that if the disclosure of relevant material
is a requirement implicit in the reference to "adequate facilities" in
Article 6 (Art. 6) of the Convention or the concept of a fair trial,
the consequences are that (i) the public interest in preventing the
damage which would follow disclosure would be wholly irrelevant to the
disclosure requirements in criminal cases - no matter how obvious or
serious the risk, and that (ii) it would be impermissible in any case
to assess and take into account the true importance of the material to
a fair and proper presentation of the defence case, as opposed simply
to deciding whether it passed the low threshold of relevance.
They contend that it is necessary in this context to bear in mind
the important public interest in ensuring that, where there is
sufficient admissible evidence to support the prosecution of an
individual with at least a realistic prospect of a conviction being
obtained, the case should be allowed to proceed to trial. That public
interest is directly relevant here because the alternative to
disclosure is for a prosecution either not to be mounted or to be
abandoned. In relation to informants, (i) the authorities are likely
to be extremely reluctant to reveal the identity of an informant, both
because of the risk of physical harm to that informant and because of
the importance to the effective detection of crime of ensuring that the
sources of information do not dry up, and (ii) an accused will know
this and accordingly will have every incentive to seek disclosure of
the identity of an informant, in an attempt to ensure that he is not
prosecuted, whatever the strength of the evidence against him.
The Government argue that a decision not to mount or to abandon
a prosecution is an outcome which may be inevitable. If the public
interest in non-disclosure is irresistible in a particular case, but
it is clear that the material is important to enable the defence case
to be properly and fairly put, a prosecution could not be mounted or
continued. Fairness to the accused would be paramount. The effect of
an absolute principle based solely on relevance would, however, be to
increase those cases in which the prosecution could not be mounted or
would have to be abandoned. That increase would be accounted for by
cases in which the material in question, although passing the low
threshold of relevance, was of relatively minor importance to the
accused. If such material was of genuine and real importance to a fair
presentation of the defence case, its disclosure would, if necessary,
be ordered in any event under existing principles applied by the
courts.
The Government further submit that the domestic courts have been
astute to ensure that any non-disclosure does not compromise the
fairness of proceedings. Thus, the relevant principles applicable under
domestic law enable the court to balance the importance and weight of
the public interest in not disclosing the material in question and the
importance of that material to the fair and proper conduct of the
defence case. That balancing exercise is weighted in favour of
disclosing material in recognition of the importance of achieving the
fullest possible disclosure of relevant material. The Government claim
that these principles are sufficient to ensure and safeguard the
fairness of proceedings.
The Government recall that the criminal proceedings are to be
judged as a whole including any appellate process, as the European
Court stressed in Edwards v. the United Kingdom (judgment of
16 December 1992, Series A no. 247-B, p. 34, para. 34). In the present
case, as appears from summing-up of the trial judge the case against
the applicant was a strong one. He had, in effect, been caught red-
handed. Material was withheld following two ex parte hearings before
the trial judge. The defence had notice of both hearings. The issues
proposed to be raised by the defence were before him. The
decisionreached by the trial judge was carefully reviewed by the Court
of Appeal. Both concluded that, in summary, fairness to the applicant
did not require disclosure of any further material to the defence.
As to the question whether the procedure for determining where
a fair balance lay was in itself in violation of Article 6 (Art. 6) of
the Convention, the Government submit that the Court of Appeal
considered the nature of the procedure to be followed in R. v. Davis,
Johnson and Rowe. The central aim of the procedure laid down by the
Court of Appeal was to ensure that, so far possible, the accused and
his lawyers should be given the maximum amount of information and the
maximum opportunity to make submissions to the court. The Court of
Appeal recognised however that any hearing before, or decision of, the
court would be rendered meaningless if the nature of the procedure
prior to such decision itself had the effect of revealing the
information.
The Government also submit that the procedure outlined by the
Court of Appeal is specifically designed to achieve this central aim:
(1) The procedures described as "type 2" (notification of application
but application made ex parte and without disclosing the category of
material) and "type 3" (no notification even of fact of an application)
procedures, are to be used if, and only if, the disclosure of either
the category of information (type 2) or the very fact of an application
(type 3 - "a highly exceptional case") would have the effect of pre-
empting the outcome of the application.
(2) The decision whether or not disclosure even of this limited
information will in effect reveal that the Crown contends should not
in the public interest be revealed is itself one for the court. If it
disagrees with the Crown's view, one of the procedures involving
greater disclosure of information will be used.
For the Government, the fundamental problem with the criticisms
of the "type 2" and "type 3" procedures made by the applicant is that
he ignores the factual basis which must exist before those procedures
are followed - namely that to reveal either the category of material
or the very fact of an application would be to pre-empt the outcome and
to cause the very damage which is sought to be prevented by the
application. The majority of the applicant's criticisms go to the
limited involvement or absence of involvement of the accused and his
lawyer in such applications. If the factual basis referred to above
is found by the court to exist, that limited involvement or absence of
involvement is not merely inevitable, but necessary in order to avoid
pre-empting the outcome. A further inevitable and necessary
consequence in such cases is the fact that a detailed, public judgment
cannot be given.
The Government contend that none of the Convention organs' cases
involved a challenge to a procedure which was ex parte because that was
the only way in which to avoid pre-empting the outcome. Nor is any
such principle either inherent in Article 6 (Art. 6) of the Convention
or necessary in order to ensure the fairness of criminal proceedings.
In the Government's view, it would be strange indeed if that were to
be the case, because such a principle would require a procedure which
rendered any subsequent decision on the issue before the court
meaningless.
The Government further submit that there has been no violation
of the rights guaranteed in Article 6 para. 1 read with para. 3(d)
(Art. 6-1, 6-3-d) of the Convention. The applicant examined witnesses
against him and could have himself called any witness to give evidence
for him. C. was not called to give evidence by either the prosecution
or the defence. The fact that a summary only of the statement made by
C. was provided to the defence was, as the judge explained, based on
the sensitivity of material contained in the original statement.
Whether fairness to the defence required more, was fully reviewed by
both the trial judge and the Court of Appeal. Both concluded that the
requirement of fairness had been met.
The Government conclude that Article 6 paras. 1 and 3(b) and 3(d)
(Art. 6-1, 6-3-b, 6-3-d) of the Convention were complied with in the
present case.
The applicant first notes that the trial judge did not fairly
direct the jury as to the role of the participation of the agent
provocateur, D.W. All participation was hidden from them by awarding
him the title of "informant" and thereby allowing the police and
prosecution to hide all his actions beneath the all encompassing shroud
of public interest immunity. He says that the credibility of the
police officers was never called into question, the extent of the
falsified, planted and fabricated evidence did not become apparent or
provable until after the trial. He claims that if the jury had been
allowed to know the full participation of D.W., acting as a paid agent
provocateur for the police, his incriminating position would not have
appeared incredible and the conclusion reached would have been almost
certainly different.
The applicant also submits that he stated in evidence that he had
been set up for reward or revenge on his co-accused C. who pleaded
guilty at the trial. He claims that his co-accused C. made 88
statements and that on one occasion, the first, his evidence has been
accepted as true, and that was this case (plea of guilty). On the two
succeeding occasions he was called to give evidence he was discredited
and never called as a prosecution witness. As it was his written
evidence, or that of it that the defence were allowed to see in the
"summary", was proved to be concocted and completely factually
inaccurate. The applicant claims that he was however cross-examined
by the prosecution on matters contained in this statement he had never
had access to and absolutely no knowledge of whatsoever.
The applicant considers that the non-disclosure of the full
statement of C. and the fact that the jury did not know the whole role
of the police informant D.W. and his participation in the applicant's
case rendered the trial unfair.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and facts under
the Convention, the determination of which should depend on an
examination of the merits of the application as a whole. The
Commission concludes, therefore, that the application is not manifestly
ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention. No other grounds for declaring it inadmissible have
been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy