EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 27052/95
Eric Jasper
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 20 October 1998)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-16)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-11)1
C.The present Report
(paras. 12-16) 2
II.ESTABLISHMENT OF THE FACTS
(paras. 17-51) 3
A.The particular circumstances of the case
(paras. 17-32) 3
B.Relevant domestic law
(paras. 33-51) 8
III.OPINION OF THE COMMISSION
(paras. 52-83) 14
A.Complaints declared admissible
(para. 52)14
B.Point at issue
(para. 53)14
C.As regards Article 6 of the Convention
(paras. 54-82) 14
CONCLUSION
(para. 83)21
DISSENTING OPINION OF MM J.-C. GEUS, M.P PELLONPÄÄ,
A. WEITZEL, H. DANELIUS, C.L. ROZAKIS, Mrs J. LIDDY,
MM B. MARXER, I. CABRAL BARRETO, G. RESS, A. PERENIC
and Mrs M. HION22
APPENDIX:DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION 24
I.INTRODUCTION
1.The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.
A.The application
2.The applicant is a British citizen, born in 1933. He is currently detained at HM Prison Maidstone. He was represented before the Commission by Mr J. Wadham, a lawyer practising in London.
3.The application is directed against the United Kingdom. The respondent Government were represented by Mr Martin Eaton, as Agent, from the Foreign and Commonwealth Office, London.
4.The case concerns the non-disclosure of relevant evidence and the ex parte procedure for determining public interest immunity. The case raises issues under Article 6 of the Convention.
B.The proceedings
5.The application was introduced on 26 September 1994 and registered on 20 April 1995.
6.On 26 June 1996 the Commission [First Chamber] decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.
7.The Government's observations were submitted on 8 November 1996, after an extension of the time-limit fixed for this purpose. The applicant replied on 7 February 1997 also after an extension of the time-limit. On 21 January 1997, the Commission granted the applicant legal aid for the representation of his case.
8.On 9 September 1997 the case was transferred from the First Chamber to the Plenary by decision of the latter.
9.On 15 September 1997 the Commission declared the application admissible.
10.The text of the Commission's decision on admissibility was sent to the parties on 25 September 1997 and they were invited to submit such further information or observations on the merits as they wished. Neither party availed itself of this possibility.
11.After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.
C.The present Report
12.The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:
MMS. TRECHSEL, President
J.-C. GEUS
M.P. PELLONPÄÄ
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
MrsG.H. THUNE
MMF. MARTINEZ
C.L. ROZAKIS
MrsJ. LIDDY
MML. LOUCAIDES
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
D. ŠVÁBY
G. RESS
A. PERENI
C. BÎRSAN
P. LORENZEN
E. BIELINAS
E.A. ALKEMA
M. VILA AMIGÓ
MrsM. HION
MMR. NICOLINI
A. ARABADJIEV
13.The text of this Report was adopted on 20 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.
14.The purpose of the Report, pursuant to Article 31 of the Convention, is:
(i)to establish the facts, and
(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.
15.The Commission's decision on the admissibility of the application is annexed hereto as an Appendix.
16.The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.
II.ESTABLISHMENT OF THE FACTS
A.The particular circumstances of the case
17.At the time of the introduction of the application, the applicant was serving his prison sentence for being knowingly concerned in the fraudulent evasion of the prohibitions on importation of cannabis. The background to his conviction was as follows. On 1 July 1993 a Dutch lorry imported a consignment of frozen meat from Zeebrugge to Dover. The consignment was delivered by the lorry driver to West Kent Cold Storage at Dunton Green. On that morning, the applicant collected one of his vehicles, a lorry with a trailer, at a lorry park at Beckton which was under observation of Customs and Excise officers. He then drove to West Kent Cold Storage where the consignment of frozen meat was loaded on to the lorry. The Customs and Excise officers followed the applicant. After that he continued to a warehouse in Leyton. When he was leaving the warehouse he was arrested and accused of concealing within the meat approximately three metric tonnes of cannabis resin. Though the meat was frozen meat the warehouse was not refrigerated. The refrigeration facility for the trailer was not in operation.
18.A search of the applicant's home revealed substantial monetary outlay. A substantial sum of money in cash was found in a safety deposit box together with two passports bearing the applicant's photographs, the first in his true name, and the second one in the name of Eric Siggins. Also found in the box were two documents dated 30 June 1993.
19.The applicant did not give evidence at his trial. The defence case was that he had no knowledge of the cannabis hidden in the consignment and was acting as an innocent haulier of the goods. He pleaded he was attempting to establish a haulage business and had bought vehicles, and hired the lock-up garage with this purpose in mind. Documents found in the applicant's possession at the time of his arrest indicated that he had received telephone instructions on the evening of 30 June 1993. These were recorded. The record indicated that delivery instructions would be found with the load. The applicant states that Customs and Excise officers denied the involvement of an informant and gave evidence that when they followed him they were unaware of his destination.
20.On 14 January 1994 the prosecution made an ex parte application to the trial judge to withhold material in its possession on the grounds of public interest immunity. The defence were notified that an application was to be made, but were not informed of the category of material which the prosecution sought to withhold. The trial judge read the material on the ex parte application. He decided, having considered how important the material might be to the defence, that it should not be disclosed. The defence did not have any opportunity to make representations and were not informed of the outcome of the hearing.
21.On 18 January 1994, immediately before the beginning of the trial, the defence served a formal written request asking the prosecution to indicate whether, apart from the evidence which had been the subject of the ex parte hearing on 14 January 1994, there was other relevant evidence which the prosecution had not disclosed. The request was in the following terms:
"9.The Crown are formally asked to indicate (a) in general whether there is unused material in connection with this case, apart from the subject-matter of the ex parte application to the Court on Friday 14 January 1994 ... which has not been disclosed and (b) in particular:
(i)whether any listening device or telephone intercept was used, and whether there exists any resulting recording, note, memorandum, or other record;
(ii)whether there exists any note, memorandum or other record of any interview with, or statement by any witness or potential witness in this case that has not already been disclosed;
(iii)whether there exists any evidence ... of any observations on the lorry ... or on the premises of West Kent Cold Storage, and if not, whether any such observations were in fact carried out;
(iv)whether there were any other observations carried out in connection with this enquiry that have not been disclosed;
(v)whether any enquiries were made to trace the vehicles and/or drivers used for the first two Davidson & Sons collections from West Kent Cold Store, and if so, with what result;
(vi)whether HM Customs and Excise acted in this enquiry on any 'information received' and if so, whether there exists any log, memorandum, or other record of any such information."
22.Prosecution counsel provided the answer to questions 9(iii) and (vi), informing the defence that there had been no such observations and no "information received" from an informant. However, he declined to answer the remainder of the questions, and declined to place any further material before the trial judge for a ruling on non-disclosure, whether on an inter partes or an ex parte basis. So far as telephone interceptions were concerned, prosecution counsel contended that it was not incumbent upon him to seek the trial judge's ruling before deciding to withhold such evidence on the grounds of public interest immunity.
23.Defence counsel then applied to the trial judge for an order that the prosecution answer the other questions. That application was heard on 24 January 1994 and the prosecution counsel answered as follows:
"I see now, although I had not seen earlier, that sub paragraphs (ii), (iv) and (v) which I had earlier refused to answer, are subject to the caveat in the main body of paragraph 9. In other words, the question that I am asked is not whether there does exist -- looking at sub paragraph (ii) -- any note memorandum; whether there does exist any other observation; or whether there does exist any enquire in paragraph 5 to trace vehicles and drivers. I am not being asked whether those things exist, I am asked whether they exist, apart from the subject matter of the ex parte application. ...
There are two categories of material. The first ... is covered by the case of R. v. Ward and subsequently of R. v. Davis and is also ... the subject ... of the Attorney General's guidelines. There is another category of material which is covered by the Interception of Communications Act and which quite plainly falls to be treated differently in law. ...
I have refused and still refuse to answer the questions set out in ... paragraph 9 because I contend that I am not required to reveal to any person whether there has been any interception of communications under the Act. If I answer the question at 9(a) or 9(b), I shall be answering that question which I am not required to answer. ... I am confident I have done what is required of me in respect of it. ...
I take the view that were there to be any matter falling under the Interception of Communications Act it should not be the subject of any ex parte application, even if there were not."
24.That position was upheld by the trial judge who, in his ruling of 24 January 1994, stated inter alia:
"I cannot invite [prosecution counsel], ... to go behind the stand that he is taking, at this stage, where he takes the view that even an ex parte application is unnecessary, which is the way he looks at it ... I think we have taken the matter as far as we can in that particular aspect. One is bound, because I have no power [to order] otherwise, to accept the situation as the prosecutor tells it to be."
25.On 31 January 1994 the Southwark Crown Court convicted the applicant of being knowingly concerned in the fraudulent evasion of the prohibition on importation of three tonnes of cannabis resin into the United Kingdom. On 21 March 1994 the applicant was sentenced to ten years' imprisonment.
26.The applicant appealed to the Court of Appeal. His arguments were summarised as follows:
"It was clear that not all unused material had been disclosed ... In open court it was stated on behalf of the defendant that the unused material was of potential importance to his defence that he had no knowledge that drugs were to be or were concealed in the load he carried, and that he had received his instructions for the collection by telephone, in the course of his business as a haulier, very shortly before 1 July 1993 ... Any information therefore that might have led to his being able to confirm either the source or content of those instructions, as well as to trace those who had involved him in a smuggling enterprise was of obvious importance.
The Crown had declined to answer the question whether any potentially relevant material, apart from the subject-matter of the ex parte application, had not been disclosed, on the grounds that to do so would reveal whether or not there had been a telephone intercept. It was plain from the course of the argument that the ex parte application had not dealt with any telephone intercept, since the Crown argued that this was the province solely of the prosecutor, and not that of the judge, a proposition based on R. v. Preston ...
In these circumstances the defence were entitled to know at least the category of material with which that application did not deal ... Furthermore, the Crown should have been called upon to justify, ex parte if necessary the stance taken in relation to the other unused material ...
Since there must have been a reason for watching the defendant, which was explained neither by the evidence adduced, nor by that served but excluded by agreement, and since it was said that there was no informant involved in the case, there is a strong likelihood that disclosable information, bearing directly upon the defendant's case, was in the possession of the prosecution."
27.Prior to the hearing of the appeal, defence counsel applied to the Court of Appeal for an order that the transcript of the ex parte hearing on 14 January 1994 be disclosed to the defence to enable them to argue the non-disclosure as a ground of appeal. This application was heard on 13 February 1995. Defence counsel outlined the applicant's case that the instructions for the collection of the load had been received by telephone very shortly before 1 July 1993 and continued:
"... and so any information that might be in the Crown's possession that might directly or indirectly lead to supporting that proposition, including the absence, if there had been, of other relevant observations of any prior contact with those instructing him, would be a matter that should be disclosed."
28.The Court of Appeal read the transcript of the ex parte application made to the trial judge. It had access to the material which was the subject of the ex parte hearing on 14 January 1994. As appears from the transcript of the 13 February 1995 application, the Court had to establish the issue to which any unused material had to be relevant in order to be disclosable at all:
"Otton LJ: ... the unused material which was not disclosed has to be relevant, or likely to be relevant, to the defence. The defence here was that he did not know that he had cannabis in the lorry?
[Defence counsel]: Yes, that was the sole issue before the jury - did he know."
29.The Court of Appeal then ruled as follows:
"The application is made, correctly, on the ground that if the matters which emerged during the ex parte hearing are relevant, or likely to have been relevant, to the defence of Mr Jasper, he should be permitted to have sight of the ruling and the transcript of the proceedings which took place on that occasion. We have read the record and it seems ... that the learned judge ... knew precisely the scope of the application and listened with the greatest possible care to the matters which were placed before him. He tested those matters, and he came to the conclusion that the ruling which he made was appropriate in all the circumstances. It is abundantly clear from the transcript that he throughout was very careful to ensure and to explore whether the material was relevant, or likely to be relevant to the defence which had been indicated to him. In these circumstances, it is impossible for this court to say that the learned judge erred in principle in adopting the course that he did, or that the prosecution erred in principle and we see no ground to set aside the order that the learned judge made on that occasion."
30.The Court of Appeal declined to order the disclosure.
31.On 28 March 1995 the Court of Appeal dismissed the applicant's appeal. The first ground of appeal, i.e. non-disclosure of relevant evidence was dismissed in the following terms:
"The first [ground of appeal], ..., related to matters to which the label 'unused material' is commonly given in these courts. It concerned the natural and proper desire of those instructed on behalf of the appellant to make sure, in so far as they could, that no documents or leads of any other sort existed which the Crown ought, as a matter of duty, to disclose to the defence if there was a real or a possible or more than a fanciful chance that disclosure of those documents or those leads might assist the defence ...
The Crown did, before the trial, disclose certain matters to the defence. It was necessary for the Crown to obtain a ruling from the trial judge as to whether any other matters which were laid before him were matters that ought, within the rules of conduct to which we have adverted, to be disclosed to the defence. The trial judge gave certain rulings. The defence submitted that they were entitled to a transcript of that which had transpired at that hearing, at which of course they were not present (the hearing was ex parte), and it was that transcript which was the subject matter of the hearing, to which reference was made earlier, which took place on 13th February 1995. This Court refused the application by the defence that they be supplied with a copy of the transcript. ... There is no suggestion, nor any ground for a suggestion, that the Crown were in any way in dereliction of their duty of good faith in making disclosure of anything that ought properly to be disclosed."
32.The Court then considered:
"This was a case of enormous strength so far as the prosecution were concerned. The appellant had been caught red handed with a huge amount of cannabis resin. He was exercising a proprietorial form of control over the packages. He was unloading them and opening them up. By opening them he was allowing what were ostensibly their sole contents to defreeze, with a risk (to put it no higher) of their becoming valueless. He was not the consignee of the meat. [He] neither called nor gave evidence. That, of course, was his right, as the jury were ... directed, but it had the result that the jury were without any explanation whatsoever as to what, on his case, he was about. It is difficult, if not impossible, to see what other inference than that he was indeed guilty of the offence charged any reasonable jury could have reached. We dismiss this appeal."
B.Relevant domestic law
33.At common law, the prosecution had a duty to disclose any earlier written or oral statement of a prosecution witness which was inconsistent with evidence given by that witness at the trial. The duty also extended to statements of any witnesses potentially favourable to the defence.
34.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."
35.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".
36.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(v)) was "sensitive" material which, because of its sensitivity, it would not be in the public interest to disclose. In paragraph 6(v), it 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."
37.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.
38.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).
39.In R. v. Ward, decided in June 1992, the Court of Appeal dealt with 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."
40.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."
41.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.
42.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. The Court of Appeal 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.
43.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 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 of Appeal 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 [defence 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."
44.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.
45.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.
46.The House of Lords 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. Thus, 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 and 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 duties to see justice done without knowing all the material that there is to know.
47.In R. v. Keane, decided in March 1994 and citing R. v. Melvin and Dingle (20 December 1993, unreported), the Court of Appeal stated that only those documents and information which were both "material" in the estimation of the prosecution and sought to be withheld should be put before the court for its decision. "Material" matter was that which could be seen on a sensible appraisal by the prosecution to be (i) relevant or possibly relevant to an issue in the case; (ii) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (iii) to hold out a real (as opposed to fanciful) prospect of providing a lead of evidence which goes to (i) and (ii). Exceptionally, in case of doubt about the materiality of the documents or evidence, the court may be asked to rule on the issue.
48.The Court of Appeal gave further guidance on the nature of evidence which was subject to a prima facie duty of disclosure, and the procedure for claiming public interest immunity. In determining whether a claim to public interest immunity should be overridden, the Court of Appeal set a high standard of probative relevance. The evidence had to be capable of proving that the accused was innocent. The Court of Appeal ruled that it was for the prosecution to determine whether the evidence was material to the defence case prior to the ex parte hearing. The prosecution is put under a duty only to place before the judge such evidence as it deems to be relevant, but nevertheless wishes to withhold.
49.In R. v. Rasheed ((1994) Times 20 May 1994), the Court of Appeal held that a failure by the prosecution to disclose the fact that a prosecution witness whose evidence is challenged has applied for or received a reward for giving information is a material irregularity which justifies overturning a conviction.
50.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 ... 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 ..."
51.In October 1994 in the case of R. v. Turner, the Court of Appeal returned to the balancing exercise stating inter alia:
"Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants' names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at once time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. 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 ...
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."
III.OPINION OF THE COMMISSION
A.Complaint declared admissible
52.The Commission has declared admissible the applicant's complaint that the non-disclosure to the defence of certain evidence on the grounds of public interest immunity made in the ex parte procedure and of telephone interceptions affected his right to a fair trial and his defence rights.
B.Point at issue
53.The point at issue is accordingly whether there has been a violation of Article 6 para. 1 of the Convention in conjunction with Article 6 paras. 3(b) and 3(d) of the Convention.
C.As regards Article 6 of the Convention
54.Article 6 of the Convention, insofar as relevant, reads 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.
...
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; ..."
55.The applicant submits that the case raises an important issue of principle concerning the limitation (if any) on the duty of disclosure implicit in Article 6, and recognised, in particular, by the European Court in the Edwards v. the United Kingdom judgment (judgment of 16 December 1992, Series A no. 247-B) and of the fairness of the ex parte procedure for determining claims to public interest immunity. He recalls that in the Edwards case all the evidence which had been withheld at trial had been fully disclosed to the applicants by the time of the Court of Appeal hearing. In that case, the applicants therefore had the opportunity to make informed representations to the Court of Appeal upon the significance of the evidence. The Court of Appeal had therefore the opportunity of assessing its impact on the convictions in the light of those submissions.
56.The applicant emphasises that in his case, however, the undisclosed material remained undisclosed throughout, and the Court of Appeal followed an unfair and secretive procedure from which the defence were excluded. Far from being remedied before the Court of Appeal, the complaints raised in his original application were simply repeated.
57.The Government first submit that neither the general principle of fairness in criminal proceedings under Article 6 para. 1 of the Convention nor the specific right to "adequate facilities" under Article 6 para. 3(b) of the Convention requires an absolute right for the defence to disclosure of all relevant material.
58.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.
59.The Government note that if the disclosure of relevant material is a requirement implicit in the reference to "adequate facilities" in Article 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.
60.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. 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 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.
61.The Government further submit that the 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. These principles are sufficient to ensure and safeguard the fairness of proceedings.
62.The Government recall that criminal proceedings are to be judged as a whole including any appellate process, as the European Court stressed in Edwards v. the United Kingdom (see above). In the present case, the material was withheld following ex parte hearing before the trial judge in application of the procedure laid down in R. v. Davis, Johnson and Rowe. The decision reached by the trial judge was then 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. The Government note that apart from any information which was withheld pursuant to the ex parte application, there was a large quantity of evidence from which an inference of the applicant's knowledge of the cannabis resin seemed the only possible inference. Moreover, the applicant did not explain his actions either to the police or in evidence in court. As to the possibility of telephone interceptions having been withheld, the Government neither confirm nor deny that there was any telephone interception. In practice, the product of any such interception will in any event have been destroyed pursuant to Section 6 of the 1985 Act. Accordingly, the principle of equality of arms was observed as neither the prosecution nor the defence could use such product.
63.As regards the fact that the decision of 14 January 1994 by the trial judge was not published, the Government note that the defence was informed of the fact that an application was to be made ex parte on an issue of disclosure, but it was not informed of the category of material sought to be withheld. It was not so informed because to have done so would have been, according to R. v. Davis, Johnson and Rowe, to pre-empt the outcome of the application. As a result of the ex parte application the court would have decided either that the material in question should be disclosed or that the material was properly to be withheld (either because it was not relevant or because, although relevant, the balance came down in favour of the public interest in non-disclosure). In the former case the material in question would then be disclosed and there would be no need to "publish the decision". In the latter case, there would be no purpose in publishing the decision if simply to state that a claim to withhold material had been upheld. To state anything further, in a case in which the nature of the material precluded informing the defence of the category of material, would be to risk the very damage which the application had been designed to prevent.
64.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 of the Convention or necessary in order to ensure the fairness of criminal proceedings. In their 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. In the present case, an ex parte application was made to the trial judge and was reviewed on appeal by the Court of Appeal. At these hearings, the courts concluded that the category of material could not be revealed without pre-empting the outcome.
65.The Commission recalls that the guarantees in paragraph 3 of Article 6 of the Convention are specific aspects of the right to a fair trial set forth in paragraph 1 (see Eur. Court HR, T. v. Italy judgment of 12 October 1992, Series A no. 245-C, p. 41, para. 25). The Commission will therefore consider the applicant's complaint in the light of the two provisions taken together.
66.In assessing whether defence rights have been secured under Article 6 of the Convention, the Commission must consider the proceedings in question as a whole, including the proceedings before the appellate court (see Eur. Court HR, Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, pp. 13-14, para. 18). Moreover, it is not the Commission's task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts, and in particular the court of first instance, to assess the evidence before them. The Commission shall only ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see Eur. Court HR, Barberà, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, para. 68; Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para. 33).
67.Nevertheless, the Commission recalls that the concept of a fair trial includes the fundamental right to adversarial procedure in criminal proceedings. That right means that each party must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other (see Eur. Court HR, Brandstetter v. Austria judgment of 28 August 1991, Series A no. 211, p. 27, paras. 66-67). The Commission has stated in its case-law concerning the rights of an accused under Article 6 para. 3(b) of the Convention that an accused must have at his disposal, for the purposes of exonerating himself or of obtaining a reduction in his sentence, all relevant elements that have been or could be collected by the competent authorities (see No. 8403/78, Comm. Report 14.12.81, D.R. 27, pp. 87-88, paras. 55-58). In the Edwards v. the United Kingdom judgment the Court considered that it is a requirement of fairness under Article 6 para. 1 of the Convention, indeed one which was recognised under English law, that the prosecution authorities disclose to the defence all material evidence for or against the accused and that the failure to do so in that case gave rise to a defect in the trial proceedings (above mentioned Edwards v. the United Kingdom judgment, p. 35, para. 36).
68.The Commission recalls that an issue concerning access to a criminal file was considered, under Article 5 para. 4 of the Convention, by the Court in Lamy v. Belgium (judgment of 30 March 1989, Series A no. 151) in which the Court stated that the appraisal of the need for a remand in custody and the subsequent assessment of guilt are too closely linked for access to documents to be refused in the former case when the law requires it in the latter case. The Court has held that the procedure to review the lawfulness of a detention must ensure equality of arms and be truly adversarial. When the prosecution is familiar with a whole file, a procedure does not afford the detained person with an opportunity of challenging appropriately the reasons relied upon to justify a remand in custody, if counsel is refused access to the file (loc. cit., p. 17, para. 29). In the light of the above, the Commission considers that the requirements of a fair trial within the meaning of Article 6 para. 1 of the Convention are more extensive than those of Article 5 para. 4 of the Convention.
69.The Commission observes that, in the present case, there was considerable evidence against the applicant as to his involvement in the offences as charged, and the applicant does not contest that he had adequate and proper opportunity to challenge this evidence during the trial. However, there was relevant material which was, at the time of the trial, withheld from the defence on the grounds of its sensitivity, pursuant to an ex parte application lodged by the prosecution to the trial judge. This material was then reviewed by the Court of Appeal which confirmed its non-disclosure on the grounds of public interest immunity. The applicant and his lawyers were informed that an application was to be made ex parte on an issue of disclosure but they were not informed of the category of the material which had been withheld or furnished with the transcript of the ex parte application.
70.Before the beginning of the trial, the applicant requested prosecution counsel to indicate whether, apart from the evidence which had been the subject of the ex parte proceedings, there was other potentially relevant material which the prosecution had not disclosed including telephone intercepts (para. 21). Prosecution counsel excluded any observations on the applicant's lorry and any information received from an informant. He declined however to provide further information on the grounds that to do so would have revealed whether or not there had been a telephone interception under the Interception of Communications Act 1985. His position was then upheld by the trial judge (para. 24).
71.The Commission notes that the ex parte procedure represents an attempt by the State to strike a balance between the competing interests of the State which claims public interest immunity and the interest of fairness to the accused whose defence might be assisted by the documents or information.
72.In the present case, it has not been specified what was the subject of the ex parte application to the trial judge and, therefore, for which of the particular reasons listed in paragraph 6(v) of the Guidelines (para. 36) the relevant sensitive material was not disclosed. Nevertheless, there were two areas of information under which the applicant knew that the material was not withheld pursuant to the ex parte application, namely the existence of informants and telephone intercepts (paras. 22 and 26). The applicant mentioned in his appeal that not all unused material had been disclosed and that the unused material was of potential importance to his defence that he had no knowledge that drugs were to be or were concealed in the load he carried and that he had received his instructions for the collection by telephone very shortly before 1 July 1993. In this respect, the Commission can accept the general principle evolving in the national case-law that some discretion must be given to the prosecution to put before the court only those documents which it considers as material, i.e. the documents considered (i) to be relevant or possibly relevant to an issue in the case, (ii) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use, (iii) to hold out a real prospect of providing a lead on evidence which goes to (i) and (ii) (R. v. Melvin and Dingle, 1993, R. v. Keane, 1994 and R. v. Winston Brown, 1994). The Commission sees no ground for assuming that these principles were not followed.
73.The Commission considers that the maintenance of public interest immunity is not, in certain circumstances, incompatible with the Convention. Insofar as national security could be involved, the Commission recalls that the Court has already recognised that the use of confidential material may be unavoidable where national security is at stake, but national authorities are not free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved (see Eur. Court HR, Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1866, para. 131). In its recent judgment of Tinnelly and Others v. the United Kingdom, concerning restrictions based on national security grounds on the applicants' rights to have a determination by a court of their civil claims that they were victims of unlawful discrimination, the Court accepted that the protection of national security is a legitimate aim which may entail limitations on the right of access to a court for the purposes of, inter alia, ensuring the confidentiality of security-vetting data. The Court concluded that the right guaranteed to an applicant under Article 6 para. 1 of the Convention to submit a dispute to a court or tribunal in order to have a determination of questions of both fact and law cannot be displaced by the ipse dixit of the executive (Eur. Court HR, Tinnelly and Others v. the United Kingdom judgment of 10 July 1998, to be published in Reports 1998, para. 77).
74.As to anonymous witnesses, the Court had occasion to state in its Doorson v. the Netherlands judgment that the use of statements made by anonymous witnesses to found a conviction is not under all circumstances incompatible with the Convention. The Court stated, however, that in such cases Article 6 para. 1 taken together with Article 6 para. 3(d) of the Convention requires that the handicaps under which the defence labours be sufficiently counterbalanced by the procedures followed by the judicial authorities (Eur. Court HR, Doorson v. the Netherlands judgment of 26 March 1996, Reports 1996-II, pp. 470-471, paras. 69-72).
75.The issue of the telephone interceptions under the Interception of Communications Act 1985 ("1985 Act") and their accessibility for a defendant in a criminal trial was considered by the Commission in the Preston v. the United Kingdom case, which was declared inadmissible (No. 24193/94, Dec. 2.7.1997, unpublished). The Commission observed that the physical products of the interception were destroyed when the applicants were arrested and that, pursuant to Section 9 of the 1985 Act, no party to the proceedings could adduce any evidence or put any question during the proceedings which could tend to suggest that an interception had taken place. The prosecution was therefore prevented from basing its case on or referring to the information gleaned from the interception material. The Commission stated that the applicants did not show how access to the intercepted material had any effect thereafter on the proceedings or in what respect that material was used to their detriment in preparing the prosecution case, other than to provide the prosecuting authorities with a starting point from which to gather admissible evidence against the applicants. The Commission concluded that the non-disclosure of the intercepted material (among other facts complained of by the applicant) did not constitute a factor of such a decisive nature as to affect the fairness of the proceedings viewed as a whole.
76.In the present case, the relevant material in question was never put before the jury whose task was to decide, on all the evidence exhibited before them, whether the applicant was guilty. The Commission must therefore examine the question whether the judicial authorities dealing with the applicant's case preserved the defence rights to a degree that satisfied the requirements of Article 6 para. 1 of the Convention.
77.The starting point for the Commission's consideration is the principle established by and evolving in the national case-law that in every case in which the prosecution objects to the disclosure of relevant material on the grounds of public interest immunity, the trial court must balance the public interest in non-disclosure against the importance of the materials in question to the defence.
78.In the present case, the trial judge heard the ex parte application and viewed the material which the prosecution sought to be withheld. There is no doubt that, applying the principles laid down in R. v. Ward (para. 39), R. v. Trevor Douglas K. (para. 40) and R. v. Davis, Johnson and Rowe (para. 42), he considered the importance of the material to the issues of interest to the defence, present and potential, and that he was able to discuss the value of the material to the defence with the prosecution. In other terms, he performed the necessary balancing exercise, examining the material and the facts which the material revealed and taking all the facts into account, then properly considering whether the importance of the material to the defence outweighed the public interest in withholding the material.
79.Even though the applicant and his representatives were not aware of the category of the material sought to be withheld, the trial judge did know it and having also known the nature of the risk of damage sought in the public interest to be prevented by withholding the material, he was able to assess how serious was that risk and how serious was the potential damage. In addition, the trial judge, performing his duty to monitor the position as the trial progressed, had the possibility to consider disclosure of withheld material as issues emerged during the trial which might have affected the balance. The Commission therefore considers that in ordinary criminal proceedings which do not give rise to major security or political issues (as in the present case), the trial judge can be regarded as constituting a sufficient safeguard where the jury decide only on the evidence opened to them. On appeal, the Court of Appeal read the transcript of the ex parte application made to the trial judge, and had access to the material which was the subject of the ex parte hearing. As the trial judge had done before, the Court of Appeal, having assessed the relevance of the material as well as the importance of its possible disclosure to the defence, endorsed the trial judge's finding as to non-disclosure. In consequence, the handicaps under which the defence laboured in not having access to relevant material which was withheld under the ex parte application were sufficiently counterbalanced by the procedure followed by the judicial authorities (see, mutatis mutandis, above-mentioned Doorson v. the Netherlands judgment, Reports 1996-II, pp. 470-471, paras. 69-72).
80.The Commission further observes that it appeared during the trial that there could have been evidence from telephone intercepts made under the Interception of Communications Act 1985 ("the 1985 Act") which was withheld by the prosecution without any application to the trial judge.
81.The Commission, with reference to the Preston case (paras. 45, 46), notes that although the prosecution cannot be required to disclose unused material obtained from an interception of a telephone communication, it was not relieved from its responsibilities laid down in the Guidelines and must have ensured that this does not result in a risk of injustice for an accused. In the present case, it was not established that there actually was any telephone interception material gathered by the prosecution under the 1985 Act. It was the applicant's supposition that such a material could exist. The Commission notes that the existence of any information concerning telephone interceptions was not revealed to the jury during the trial. In this regard, the principle of equality of arms between the prosecution and the applicant was maintained as none of them could use that material in their respective cases. It was established at the trial that the applicant had been under observation for some time prior to the day of his arrest of 1 July 1993. However, the Customs officers denied the involvement of an informant (this was confirmed by the prosecution) and gave evidence that when they followed the applicant they were unaware of his destination. The Commission considers furthermore that assuming that there were telephone calls made or received by the applicant (he submitted that he had received the instruction by telephone very shortly before 1 July 1993) he could, if he wished, call any relevant witnesses on his behalf and disclose the contents of those calls. However, no such witness appeared at the trial. Moreover, the matter concerning the unused material and telephone intercepts was lengthily discussed at the trial and the Commission does not consider that the prosecution did not comply with its duty reflected in the Preston case. The Commission finds therefore that the refusal by the prosecution to disclose any interception material did not constitute a factor of such a decisive nature as to render the proceedings viewed as a whole unfair.
82.In the light of all the circumstances, the Commission is of the opinion that the criminal proceedings brought against the applicant taken as a whole can be considered to have been fair. The Commission adds that the fact that the ruling given by the trial judge did not follow and was not pronounced in a public hearing is a necessary consequence of the preceding considerations and cannot be said to infringe on the publicity of the trial as a whole. Moreover, this procedure could be covered by certain exceptions concerning the publicity of a hearing provided for in Article 6 para. 1 of the Convention. In any event, the Commission notes that the judgment in the applicant's case itself as distinct from the procedural ruling of the trial judge was made in public.
CONCLUSION
83.The Commission concludes, by 19 votes to 11, that in the present case there has been no violation of Article 6 para. 1 of the Convention in conjunction with Article 6 paras. 3(b) and 3(d) of the Convention.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. English)
DISSENTING OPINION OF MM J.-C. GEUS, M.P PELLONPÄÄ,
A. WEITZEL, H. DANELIUS, C.L. ROZAKIS, Mrs J. LIDDY, MM B. MARXER, I. CABRAL BARRETO, G. RESS, A. PERENI and Mrs M. HION
We consider that even though the applicant and his representatives were not aware of the category of the material sought to be withheld, the trial judge did know it and having also known the nature of the risk of damages sought in the public interest to be prevented by withholding the material, he was able to assess how serious was that risk and how serious was the potential damages. In addition, the trial judge, performing his duty to monitor the position as the trial progressed, had the possibility to consider disclosure of withheld material as issues emerged during the trial which might have affected the balance. However, in a situation where the trial judge heard submissions in one direction by the prosecution which were not balanced by inter partes submissions by a specially appointed counsel on behalf of the defence who acted only in the particular procedural issue (see, mutatis mutandis, Eur. Court HR, Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1869, para. 144), the trial judge cannot be regarded as constituting a sufficient safeguard. The fact that, on appeal, the Court of Appeal read the transcript of the ex parte application made to the trial judge, and had access to the material which was the subject of the ex parte hearing does not mean, in our opinion, that the handicaps under which the defence laboured in not having access to relevant material withheld under the ex parte application were sufficiently counterbalanced by the procedure followed by the judicial authorities (see, mutatis mutandis, Eur. Court HR, Doorson v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, pp. 470-471, paras. 69-72).
We further observe that it appeared during the trial that there could have been evidence from telephone interceptions made under the Interception of Communication Act 1985 which was withheld by the prosecution without any application to the trial judge.
We note that in the present case, any telephone interception material was immune from production as part of public policy reflected in the 1985 Act. While the Preston case (see paras. 45, 46) established that the prosecution was under a duty to disclose to the defence material information even if it would be inadmissible if put in evidence by the defence, no procedure whatsoever existed whereby, in case of doubt, the trial judge could examine the material and order its disclosure. Accordingly, the principle that the trial judgment must view the material in order to balance the public interest in non-disclosure against the importance of the material to the defence, was not complied with.
In this part of the proceedings, as in R. v. Ward, the prosecution acted as judge in their own cause at this trial stage. The trial judge, who could only approve the decision of the prosecution not to disclose, was in a comparable position to the judge in the Tinnelly and Others case dealing with the civil claim, where the ipse dixit of the executive prevented him from determining the merits of the claim (see, Eur. Court HR, Tinnelly and Others v. the United Kingdom judgment of 10 July 1998, Reports of Judgments and Decisions 1998, para. 77). He could not monitor the position as the trial progressed and consider disclosure of withheld material as issues emerged during the trial which might have affected the balance. It was established during the trial that the prosecution had no information from an informant (category (b) of the sensitive material). However, the seven categories of sensitive material still include at least three ((e), (f) and (g) of para. 36 of the present Report) where the interests of the State in maintaining confidentiality for the purposes of encouraging information to be given to the police would prima facie rarely if ever outweigh the interests of the accused in having access to information of possible help to the defence. The failure to indicate the existence and possible category of withheld material was a further barrier to ensuring fairness of proceedings.
In the light of all these factors, we consider that the handicaps under which the defence laboured in neither having access to the relevant material nor, by way of alternative, to an inter partes procedure whereby the trial judge's ruling on disclosure could be based on submissions respecting the defence interest as well as that of the prosecution were insufficiently counterbalanced by the procedure followed by the judicial authorities (see, mutatis mutandis, above-mentioned Doorson v. the Netherlands judgment).
In our view, the present case falls to be distinguished from that of Edwards v. the United Kingdom: in the latter case the defence had received most of the missing information at the appeal stage. The defence failed to apply to the Court of Appeal for production of the remaining documents known to it to exist and no claim for public interest immunity was ever adjudicated upon in these proceedings (see, mutatis mutandis, Eur. Court HR, Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, p. 35, paras. 36, 38).
In the light of all the circumstances, we are of the opinion that, on balance, the criminal proceedings brought against the applicant taken as a whole cannot be considered to have been fair. With regard to the facts that the procedural motion could be heard in camera and that the judge's ruling thereon was not delivered in public, we consider that these were a necessary consequence of the preceding considerations and, having regard to the exemptions provided for under Article 6 para. 1 of the Convention, cannot be said to infringe on the publicity of the trial as a whole. Nonetheless, the latter, in particular, was an aggravating factor in the context of fairness. We conclude that in the present case there has been a violation of Article 6 para. 1 of the Convention in conjunction with Article 6 paras. 3(b) and 3(d) of the Convention.
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