FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40461/98
by Michael LEWIS
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 10 September 2002 as a Chamber composed of
MrM. Pellonpää, President,
SirNicolas Bratza,
MrA. Pastor Ridruejo,
MrsE. Palm,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 16 May 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the parties’ oral submissions at the hearing on 10 September 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Michael Lewis, is a United Kingdom national, who was born in 1953 and lives in Tonbridge. He was represented before the Court by Mr P. Maynard, a lawyer practising in Tonbridge. At the oral hearing on 10 September 2002 the applicant was represented by Mr B. Emmerson QC, and Mr J. Hall, counsel, assisted by Mr P. Maynard and Mr D. Clarke, advisers. The respondent Government were represented by Mr H. Llewellyn, Agent, Foreign and Commonwealth Office, London, Mr D. Perry, counsel, Ms S. Cookson and Ms M. Cumberland, advisers.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Prior to the events in question, the applicant was of good character. He had been employed as accounts director in a firm which had gone into liquidation a year earlier, and at the time of his arrest in July 1995 he was unemployed and in considerable debt.
The applicant’s version of events, which he maintained from the time of his first interview with the police, was that he had been introduced to a man named “Terry” by an acquaintance, Colin Phelps, since Terry appeared interested in purchasing from the applicant some bankrupt stock. At a meeting in July 1995 Terry had started talking about counterfeit currency and had pressed the applicant to obtain some as part of the transaction. Although the applicant had never hitherto been involved with counterfeit currency, he did have a contact, “John”, who was able to supply forged bank notes.
Terry went on to introduce the applicant to two men called “Jag” and “Jazz”. At a third meeting on 14 July 1995, Jag turned up with “Chris”, who was subsequently revealed to be an undercover police officer, and an order for a large amount of currency was placed. It appears from the transcript of covert tape recordings made during this meeting that, while the applicant was not unwilling to become involved, he was actively encouraged to do so by Jag and Chris, who pressurised him to a certain degree to supply more notes of a higher denomination than had at first been agreed. On 25 July 1995 the applicant met Chris and another undercover officer, “Ian”, in a public house car park. He showed them some counterfeit notes, and was immediately arrested by uniformed officers. More counterfeit notes were found when his house was searched.
The applicant maintained that he had been entrapped by undercover police officers and participating informers into committing the offences. On 11 November 1996 he applied to the Crown Court judge for an order that the indictment should be stayed on the grounds that, as a result of the covert activities of undercover police officers and/or participating informers, (a) it was not possible for him to have a fair trial and (b) the moral integrity of the criminal proceedings had been impugned. He also requested the judge to order the prosecution to provide more information and documents, including information relating to the question whether Colin Phelps, “Terry” or “Tel”, “Jazz” or “Jag” were participating informers or undercover police officers.
Prior to making his ruling on the defence application, the judge heard, ex parte, an application by the prosecution to avoid disclosing certain material evidence on grounds of public interest immunity. The judge refused to grant a stay or to order further disclosure, indicating that most of the information sought was subject to public interest immunity. He also ruled that, while it was clear that “Chris” was coaxing the applicant, there was no evidence of pressure being applied.
A second submission was then made on the applicant’s behalf to exclude the evidence of undercover police officers under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). However, before evidence was called from the officers in question, “Chris” and “Ian”, the defence counsel sought guidance from the judge as to the areas of cross examination which would or would not be allowed, given that certain issues relating to the investigation were covered by public interest immunity. It became apparent that most of the areas of cross examination necessary to develop the submission were not to be allowed. Accordingly, the submission was withdrawn and the applicant entered guilty pleas to the indictment on 12 November 1996.
On 20 November 1996 he was sentenced to a total of four and a half years’ imprisonment.
On 28 November 1996 counsel advised that the applicant had no prospects of success in appealing against conviction, since he would have to demonstrate that the convictions were unsafe before an appeal could succeed. This would be impossible given that, on his own account, he had been motivated by money to enter into the deal to sell counterfeit currency. Counsel also expressed the view that:
“Had there been anything within the [public interest immunity] material which could have assisted the Defendant in developing his case to exclude the evidence under s.78 PACE I am confident the Judge would have released it. In those circumstances, I advise that there are no grounds of appeal against conviction.”
B.Relevant domestic law and practice
1.Entrapment under English law
The fact that the defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under English law (R. v. Sang [1980] Appeal Cases p. 402, House of Lords judgment). The judge does, however, have a discretion to order a stay of a prosecution where it appears that entrapment has occurred, as the House of Lords affirmed in R. v. Looseley; Attorney General’s Reference (No. 3 of 2000) ([2001] UKHL 53), a judgment which followed and approved the case-law as it stood at the time of the applicant’s trial, including the judgment of the House of Lords in R. v. Latif [1996] vol. 1 Weekly Law reports p. 104). In Looseley Lord Nicholls of Birkenhead explained, (§ 1):
“My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment ... is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen”.
In addition, the court has a discretion, under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”), to exclude evidence obtained by an undercover police officer where, inter alia, the defendant would not have committed the offence without the police incitement (R. v. Smurthwaite; R. v. Gill (1994) vol. 98 Criminal Appeal Reports p. 437, judgment of the Court of Appeal; and Looseley, cited above). Of the two remedies, the grant of a stay, rather than the exclusion of evidence, is the more appropriate remedy because a prosecution founded on entrapment is an abuse of the court’s process and should not have been brought in the first place.
In Looseley, their Lordships agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or “state created crime”. In each case it was for the judge, having regard to all the circumstances, to decide whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into dispute. Factors to be taken into account included the nature of the offence, the reason for the particular police operation, the possibility of using other methods of detection and the nature and extent of police participation in the crime; the greater the inducement held out by the police, and the more forceful and persistent the police overtures, the more readily might a court conclude that the police had overstepped the boundary, since their conduct might well have brought about the commission of a crime by a person who would normally avoid crime of that kind. The police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing, and the police operation should be properly supervised. The defendant’s criminal record was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that he or she had been engaged in the criminal activity in question prior to the involvement of the police (per Lord Nicholls, §§ 26-29; Lord Hoffmann, §§ 50-71).
2.Disclosure of evidence by the prosecution
At common law, the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged. This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence.
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 evidence of potential assistance to it ((1982) 74 Criminal Appeal Reports, p. 302 (“the Guidelines”)). According to the Guidelines, 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, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” 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.”
In R. v. Ward ([1993] vol. 1 Weekly Law Reports p. 619) the Court of Appeal stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity. It explained that “... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed”.
In R. v. Davis, Johnson and Rowe ([1993] vol. 1 Weekly Law Reports p. 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence would 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 was 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 was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence.
The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that 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”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the 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 who heard any disclosure application also to conduct the trial.
The leading case on disclosure at the time of the applicant’s trial was the judgment of the Court of Appeal in R. v. Keane ([1994] vol. 1 Weekly Law Reports p. 746). The Lord Chief Justice, giving the judgment of the court, held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity. “Material” evidence was defined as evidence which could be seen, “on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)”.
Once the judge was seized of the material, he or she had to perform the balancing exercise between the public interest in non-disclosure and the importance of the documents to the issues of interest, or likely to be of interest, to the accused. If the disputed material might prove the defendant’s innocence or avoid a miscarriage of justice, the balance came down firmly in favour of disclosing it. Where, on the other hand, the material in question would not be of assistance to the accused, but would in fact assist the prosecution, the balance was likely to be in favour of non-disclosure.
In the case of R. v. Turner ([1995] vol. 1 Weekly Law Reports p. 264), 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 one 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 ...”
By the time of the applicant’s trial the requirements of disclosure had been set out in a statutory scheme. Under the Criminal Procedure and Investigations Act 1996 (“the 1996 Act”), which came into effect in England and Wales immediately upon gaining Royal Assent on 4 July 1996, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor’s view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused’s defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court.
3.The right to appeal against conviction following a guilty plea
Under section 2(1) of the Criminal Appeal Act 1968 as amended by the Criminal Law Act 1977, unless the Court of Appeal was satisfied that there had been no miscarriage of justice, it was required to allow an appeal against conviction (a) if the verdict of the jury was “unsafe or unsatisfactory”; or (b) if “the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law”; or (c) if there was “a material irregularity in the course of the trial”. As from 1 January 1996, section 2(1) of the Criminal Appeal Act 1995 substituted a new, single test: the appeal should be allowed only if the appeal court considered the conviction to be “unsafe”.
In its judgment of 19 December 1997, R. v. Chalkley and another ([1998] Queen’s Bench Reports p. 848), the Court of Appeal decided that it had the power to allow an appeal following the appellant’s plea of guilty at trial only where an erroneous ruling by the trial judge on a point of law, together with the facts admitted by the accused, made acquittal legally impossible. At the hearing before the Court of Human Rights in the present case, the applicant’s counsel submitted that an example falling within this first category, where an appeal following a guilty plea would be possible, would be a case where the defendant admitted committing or omitting certain activities and the trial judge wrongly ruled that this behaviour was sufficient to constitute a criminal offence. In Chalkley the Court of Appeal held, in contrast, that where the defendant pleaded guilty following an erroneous ruling of law relating to the admissibility of certain prosecution evidence, so that it was not impossible for him to maintain his innocence as a matter of law or fact even though the ruling made the case against him factually overwhelming, the plea of guilty could normally be taken as an admission of guilt and the conviction could therefore be regarded as “safe”.
On 18 February 1999, in an unreported judgment, R. v. Rajcoomar and another, the Court of Appeal decided that incorrect rulings on the admission of police evidence under section 78 of PACE and on abuse of process in a case of alleged entrapment fell within the second category identified by the court in Chalkley, so that the appellant’s plea of guilty precluded the possibility of appeal. The court held as follows:
“[Counsel for the appellant] said that in the present case it was accepted in effect that the applicant had no defence to the charge. It was accepted that entrapment was not a defence in law, but the point made was that but for the conduct of the undercover officers no offence would have occurred. It was submitted that the effect of the judge’s ruling on abuse of process, a ruling that meant that the trial was to proceed, was to give the applicant no option but to plead guilty. He had no realistic option of going to trial.
We do not accept that those submissions avail the applicant. The present case was not one of an allegedly incorrect ruling on admitted facts leaving the accused with no legal escape from a verdict of guilty on those facts. None of the rulings challenged, whether in respect of abuse of process or disclosure or adjournment, rendered an acquittal legally impossible. This was a case where, in our judgment, Rajcoomar was influenced to change his plea because he recognised that, as a result of a ruling to admit certain evidence against him and that the trial should continue, his case on the facts was hopeless. There was no question of mistake or lack of intent with regard to the plea. The circumstances were such that his change of plea to guilty was a clear acknowledgement of the truth of the facts constituting the offence charged.”
On 1 October 1998 the Human Rights Act 1998 came into force in England and Wales, incorporating the Convention into English law. In November 2000 the Court of Appeal held in R. v. Togher, Doran and Parsons ([2001] vol. 1 Criminal Appeal Reports p. 457) that it was necessary to reassess the test set out in Chalkley in the light of the requirements of Article 6 of the Convention, and that an appeal against conviction could be allowed after a plea of guilty if the proceedings constituted an abuse of process such that it would be inconsistent with the due administration of justice to allow the guilty plea to stand.
4.“Special Counsel”
Following the judgments of the Court in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996-V) and Tinnelly v. the United Kingdom (10 July 1998, Reports 1998-IV), the United Kingdom has introduced legislation making provision for the appointment of a “special counsel” in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”), and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his or her legal representatives, the Attorney General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. The relevant rules giving effect to the 1997 and 1998 Acts are set out in the Court’s judgment in Jasper v. the United Kingdom ([GC], no. 27052/92, § 36, ECHR 2000).
In December 1999 the Government commissioned a comprehensive review of the criminal justice system, under the chairmanship of a senior Court of Appeal judge, Sir Robin Auld. The report, published in September 2001 after extensive consultation and entitled “The Review of the Criminal Courts in England and Wales” (“the Auld Report”), recommended, inter alia, the introduction of a “special counsel” scheme in cases where the prosecution wished to seek, ex parte, non-disclosure on grounds of public interest immunity. The recommendation was explained in the Report as follows (footnotes omitted):
“193. The scheme [developed by the common law since R v. Ward and reflected in the 1996 Act: see above] is an improvement on what went before and has been generally welcomed on that account. But there is widespread concern in the legal professions about lack of representation of the defendant’s interest in the [ex parte] forms of application, and anecdotal and reported instances of resultant unfairness to the defence. ... A suggestion, argued on behalf of applicants in Strasbourg and widely supported in the Review, is that the exclusion of the defendant from the procedure should be counterbalanced by the introduction of a ‘special independent counsel’. He would represent the interest of the defendant at first instance and, where necessary, on appeal on a number of issues: first, as to the relevance of the undisclosed material if and to the extent that it has not already been resolved in favour of disclosure but for a public interest immunity claim; second, on the strength of the claim to public interest immunity; third, on how helpful the material might be to the defence; and fourth, generally to safeguard against the risk of judicial error or bias.
194. In my view, there is much to be said for such a proposal, regardless of the vulnerability or otherwise of the present procedures to Article 6. Tim Owen QC, in a paper prepared for the Review, has argued powerfully in favour of it. It would restore some adversarial testing of the issues presently absent in the determination of these often critical and finely balanced applications. It should not be generally necessary for special counsel to be present throughout the trial. Mostly the matter should be capable of resolution by the court before trial and, if any question about it arises during trial, he could be asked to return. If, because of the great number of public interest immunity issues now being taken in the courts, the instruction of special counsel for each would be costly, it simply indicates, as Owen has commented, the scale of the problem and is not an argument against securing a fair solution.
195. The role would be similar to that of an amicus curiae brought in to give independent assistance to a court, albeit mostly on appeal. In rape cases, where an unrepresented defendant seeks to cross-examine a complainant, the court must inform him that he may not do so, and should he refuse to instruct counsel, the court will appoint and instruct one. After the decisions of the European Court of Human Rights in Chahal and Tinnelly, the Government introduced such a procedure in immigration cases involving national security. Although such cases are extremely rare, it is sufficient that the principle of a ‘third’ or ‘special’ counsel being instructed on behalf of a defendant has been conceded in a number of areas.
196. The introduction of a system of special independent counsel could, as Owen has also noted, in part fill a lacuna in the law as to public interest immunity hearings in the absence of a defendant appellant in the Court of Appeal, to which the 1996 Act and supporting Rules do not apply. Where there has been a breach of Article 6 because a trial judge did not conduct a public interest immunity hearing due to the emergence of the material only after conviction, the European Court of Human Rights has held that the breach cannot be cured by a hearing before the Court of Appeal in the absence of the appellant. The Court’s reasons for so holding were that the appeals court is confined to examining the effect of non-disclosure on the trial ex post facto and could possibly be unconsciously influenced by the jury’s verdict into underestimating the significance of the undisclosed material.
197. However, even the introduction of special counsel to such hearings would not solve the root problem to which I have referred of police failure, whether out of incompetence or dishonesty, to indicate to the prosecutor the existence of critical information. Unless, as I have recommended, the police significantly improve their performance in that basic exercise, there will be no solid foundation for whatever following safeguards are introduced into the system.
I recommend the introduction of a scheme for instruction by the court of special independent counsel to represent the interests of the defendant in those cases at first instance and on appeal where the court now considers prosecution applications in the absence of the defence in respect of the non-disclosure of sensitive material.”
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that the incitement of the offence by agents provocateurs, the non-disclosure of evidence and the failure to identify or call as witnesses the other participants in the offence deprived him of a fair trial.
THE LAW
The applicant complained that he had been deprived of a fair trial contrary to Article 6 § 1 of the Convention, which provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Government asked the Court to declare the application inadmissible for non-exhaustion of domestic remedies, since the applicant had failed to appeal against conviction. They submitted that, despite the applicant’s guilty plea, it would have been open to him to bring an appeal, and that the Court of Appeal would have quashed the conviction if it considered that the trial judge had been wrong to reject the argument on abuse of process. At the hearing before the Court, counsel for the Government expressed the view that the applicant’s case did not fall within the second category of cases identified in Chalkley, where the Court of Appeal said no appeal would lie following a guilty plea (see above). In their written observations, the Government pointed out that, in any event, the approach of the Court of Appeal in Chalkley had not been followed, and that in Togher, Doran and Parsons (see above) the Court of Appeal had held that any unfairness at trial might lead to a conviction following a plea of guilty being quashed.
In any event, the Government contended that the applicant had been given a fair trial. They submitted that the principle set out in the Court’s Teixeira de Castro v. Portugal judgment of 9 June 1998 (Reports 1998-IV) had been respected, in that there was no material to suggest that the applicant had been incited or procured by police officers or others on their behalf to commit an offence which he would not otherwise have committed. This was the conclusion reached by the trial judge, who had considered the public interest immunity material and ruled that, since there was nothing in it that would assist the defence, it should not be disclosed.
The Government further contended that the ex parte procedure followed by the domestic courts afforded adequate safeguards to the defence, and that the applicant’s case was indistinguishable from Jasper v. the United Kingdom (cited above), where the Court found no violation of Article 6 § 1. In particular, the Government emphasised that the trial judge, who was under a duty to order disclosure if the material in question had assisted the defence case, examined the evidence having heard the submissions of defence counsel and with knowledge of the defence case on entrapment.
The applicant denied that it would have been possible for him to bring an appeal having entered a plea of guilty. He contended that his case fell into the second limb of the Chalkley test and was indistinguishable for these purposes from Rajcoomar (see above).
The applicant submitted that it was impossible for him to establish, on the available evidence, whether or not the involvement of agents provocateurs in the offence he committed rendered the proceedings against him unfair. Evidence on this point had been withheld from the defence on grounds of public interest immunity.
He considered that the domestic proceedings were fundamentally unfair because the trial judge, who had to decide the question of fact whether the accused had been the victim of entrapment and abuse of process, also had to review the material for which the prosecution claimed public interest immunity, in the absence of any representative of the defendant and without any adversarial process. The present case could be distinguished from the above-mentioned Jasper judgment, because in a case such as Jasper where no issue of entrapment arose, the separation of function between judge and jury ensured that neither side could rely on the undisclosed evidence and therefore that equality of arms was maintained. The tribunal of fact saw nothing which the accused and his lawyers were not permitted to see, and the judge was under a duty to order disclosure if the material in question was likely to assist the defence case (see R. v. Keane, above). In a case such as the present, there would be no duty to order disclosure of evidence which might be positively damaging to the accused’s allegations of entrapment. The defence had the burden of proving entrapment and the judge, having seen the undisclosed material, had to decide whether there had been an abuse of process, but the defence remained ignorant of the nature or content of the evidence placed before the judge and was unable to challenge it.
The applicant pointed out that the Auld Report (see above) constituted recognition by a respected member of the senior judiciary, following wide consultation, that the present ex parte system was unfair and that the practical obstacles to the introduction of a “special counsel” to ensure some adversarial testing of the issues could reasonably be overcome.
The Court observes, in the first place, that, following the trial judge’s rulings against him on the questions of disclosure of evidence and abuse of process, the applicant pleaded guilty and did not appeal against his conviction. The Government claim that the applicant has, therefore, failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention.
The Court recalls that it falls to the Government claiming non-exhaustion to satisfy it that at the relevant time there was a remedy available to the applicant, which was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, § 68).
It notes that the applicant was advised by his counsel that there were no grounds of appeal, because the judge would have ordered disclosure of any material which could have assisted the defence (see above). Counsel did not, however, advise that in the circumstances it would not be possible, as a matter of English law, to appeal following a plea of guilty. However, in December 1997, a year after the applicant’s conviction, the Court of Appeal decided in the Chalkley case that an appeal would lie following a plea of guilty only where an incorrect ruling left the accused with no legal escape from a conviction. In February 1999 the Court of Appeal held in Rajcoomar, applying the Chalkley test, that a ruling on abuse of process on the ground of alleged entrapment did not fall within the category of an incorrect ruling which left no escape of guilty.
The Court can see no ground on which the applicant’s case could be distinguished from Rajcoomar. It is unable to accept that, had the applicant appealed against his conviction in November 1996, the Court of Appeal would have come to any other conclusion than that reached in Chalkey, one year later. The Government refer to the decision of the Court of Appeal of November 2000 in R. v. Togher, Doran and Parsons as indicating a departure from the approach taken in Chalkley and as confirming that any unfairness at trial may lead to the quashing of a conviction on appeal, even where the defendant has pleaded guilty. However, the Court notes that the Togher case was decided several years after the trial in the applicant’s case and after the coming into force of the Human Rights Act 1998, the provisions of which formed an important element in the reasoning of the Court of Appeal in that case. It follows that the Government have failed to establish that, at the time of his conviction, there was a remedy under English law which offered a reasonable prospect of success in providing redress in respect of the applicant’s complaints.
The Court further considers that the application raises complex issues of law and fact under Article 6 of the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Michael O’BoyleMatti Pellonpää
RegistrarPresident
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