ROWE AND DAVIS v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 28901/95

                      by Raphael ROWE and Michael DAVIS

                      against the United Kingdom

     The European Commission of Human Rights sitting in private on

15 September 1997, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

           Mrs.  M. HION

           MM.   R. NICOLINI

                 A. ARABADJIEV

           Mr.   H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 20 December 1993

by Raphael ROWE and Michael DAVIS against the United Kingdom and

registered on 9 October 1995 under file No. 28901/95;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     8 November 1996 and the observations in reply submitted by the

     applicant on 7 February 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicants are two British citizens born in 1968 and 1966

respectively.  They are currently detained in HM Prison Maidstone.

Before the Commission, they are represented by Mr. J. Wadham, a lawyer

practising in London.

A.   The particular circumstances of the case

     The facts of the case, as submitted by the parties, may be

summarised as follows.

     During the night of 15 December 1988 a homosexual was murdered,

and three very serious robberies were committed in Surrey by three

masked men.  The applicants and a third man were soon suspected of

being involved in these offences.  They were arrested on 19 December

1988 in their flats in a house at 25 Lawrie Road ("No. 25").

     The trial judge observed in his summing-up the following:

     "I turn now to the arrest and interviews of Rowe.  He too

     was arrested on the morning of the 19th December.  He too

     was interviewed by the police. He was interviewed on the

     19th December and the 20th December.  As in the case of

     Davis, the answers that Rowe gave in the interviews are of

     a piece with his evidence to you. There is no inconsistency

     between them and there is no value, therefore, in my

     rehearsing even in summary form what he told the police in

     interview because it is what he told you."

     No victim was able to identify the attackers.  The prosecution

case depended, principally, on the testimony of four accessories.

Three of them, Jobbins, Duncan and Griffin ("the Jobbins group") lived

at the same address as the applicants.  The fourth, Kate Williamson,

was a former girlfriend of the first applicant.

     A subsequent search of No. 25 revealed some of the stolen

property.  The applicants' case was that some of the items had been

planted, either by one of the Jobbins group or by the police.  However,

the bulk of items was discovered at No. 71 Adelaide Road, the home of

the girlfriend of Jobbins.  Five stolen vehicles used by the attackers

were found near the places of the murder and robberies.  Some of them

were burnt down.

     At the trial, the applicants gave evidence, during the course of

which, in addition to strenuously denying complicity in the offences,

they told the jury that it was quite impossible for them to have been

involved in the light of their activities on the night in question

which they explained in some detail.  They contended that "if anyone

from No. 25 was responsible for the offences, they were Jobbins, Duncan

and Griffin".  The applicants also submitted that the Jobbins group had

given a deliberately false account to the police, and in evidence at

the trial, in order to implicate the applicants, and thereby to

exonerate themselves.

     The prosecution introduced evidence of Jobbins, Duncan, Griffin

and Kate Williamson.

     In summary, the Jobbins group's evidence for the prosecution was

that they admitted having jointly stolen, on 10 December 1988, one of

the vehicles and having supplied it for use in the robberies.  They

admitted having supplied at least one of the masks.  They also admitted

having driven two of the vehicles to 71 Adelaide Road, where Griffin

unloaded the property whilst Jobbins and Duncan went to buy petrol.

They destroyed the vehicles afterwards.

     Kate Williamson gave evidence that the applicants had been in her

company on the night of 15 December 1988 from 8.30 p.m.  She said that

she had returned with the applicants and two other persons to No. 25

at about 12.30 a.m.  After returning to the house she and the first

applicant had sexual intercourse and then he left between 1.30 and 2.30

a.m. The timing of the return was confirmed by two other witnesses.

     The defence case was that the applicants had not left No. 25 that

night, and that Kate Williamson was lying either out of jealousy, or

through pressure, or for a reward.  She wrote a letter to the first

applicant in which she apologised to him for having lied about him to

the police.  When cross-examined about this she said she had written

the letter under pressure from another of the applicant's girlfriends,

though this was denied in evidence by the woman in question. Later at

the trial, she retracted her account of how the first applicant had

shown her two gold rings (items stolen in the robberies), saying that

she had lied in order to make it appear that he had dishonestly

received them, rather than having been involved in the robberies.

     It appeared from the trial judge's summing-up that the suggestion

was put by defence counsel to each of Jobbins, Duncan and Griffin that

a deal had been done with the authorities pursuant to which they would

not, or might not, be charged with their involvement in the offences

in return for giving evidence.  It also appeared that it had been

suggested that at least Jobbins' and Griffin's evidence might have been

influenced by the prospect of reward money being offered for help to

the police.  The jury was reminded of these matters by the trial judge

at the outset of his summing-up:

     "... It was put to [Jobbins] that a deal had been done and

     he denied that.  He denied that any deal had been done in

     which, in exchange for the help he was about to give or was

     giving, he would not be prosecuted.  He also denied having

     been influenced by any prospect of reward apparently being

     offered for help in the conviction of [the homosexual]'s

     murderer.  It appears that such a reward was at least known

     of because both Jobbins and I think Griffin also tacitly

     accepted that they were aware of some such offer.

     ... [Duncan] told you that when he was first interviewed he

     was very frightened that he might be prosecuted, yet he,

     like Jobbins, has not been charged with anything.  He

     indicated in evidence that he had been told that he would

     not be charged.

     ... Griffin too was a strong candidate for prosecution, you

     may think, for certain charges arising out of the events in

     the same way as were Jobbins and Duncan.  He too has not

     been charged with anything.  He said that he had been given

     to understand that if he gave evidence for the prosecution

     in this matter it would be easier for him."

     On 26 February 1990 the Central Criminal Court convicted the

applicants and their codefendant of murder, assault occasioning

grievous bodily harm and three counts of robbery.  They were sentenced

to concurrent terms of life, 15 years and 12 years imprisonment.

     Following their conviction, the applicants and their co-defendant

appealed to the Court of Appeal.  The applicants' sole ground of appeal

was that the conviction as a whole was unsafe or unsatisfactory because

of the weaknesses and inconsistencies in the evidence.

     The defence were made aware on appeal that a substantial sum of

reward money had been paid, but the prosecution declined to inform the

defence whether any member of the Jobbins group or Kate Williamson had

been paid or had claimed the reward. Moreover, neither Kate Williamson

nor the Jobbins group were prosecuted for their admitted part in the

offences.  The applicants submit that from events which occurred during

the appeal hearings it was apparent that the details of the arrangement

between these witnesses and the police were withheld from the defence.

     The applicants also made a complaint to the Police Complaints

Authority concerning their conviction.  The Police Complaints Authority

conducted an inquiry and prepared a report, but the findings of the

report were not disclosed to the defence.

     On 20 October 1992, at the first hearing before the Court of

Appeal, counsel for the prosecution handed a document to the Court

which was not shown to defence counsel. He sought the Court of Appeal's

ruling as to a matter of disclosure.  He informed the Court that the

matter was sensitive to a degree which would have required the Court

to hear him either ex parte or, if inter partes only, on an undertaking

by defence counsel not to disclose what took place to their solicitors

or clients.  Both defence counsel then indicated that they could not

conscientiously give such an undertaking and withdrew from the hearing.

The application then proceeded ex parte. Having considered the material

in question, and having itself conducted the balancing exercise, the

Court of Appeal reached the conclusion that the material should not

have been disclosed to the defence.

     On 14 and 15 January 1993 the issue of disclosure was re-

canvassed before a differently constituted Court of Appeal at the

second hearing (although Lord Taylor CJ participated in both hearings).

The reason was that defence counsel had reconsidered their position and

had concluded that they had been incorrect in withdrawing voluntarily

as they had done at the first hearing.  It was argued by the defence

that (i) defence counsel should have been permitted to hear the

application by the Crown without giving an undertaking, (ii) counsel

for the Crown should, at the least, have been obliged to disclose the

category of material in question so that defence counsel could then

have made submissions as to whether or not disclosure of material in

that category should be ordered.

     The Court of Appeal, in its judgment ((1993) 97 Cr.App.R. 110)

("the disclosure judgment"), set out a series of procedural guidelines

in cases involving claims that material should not be disclosed on

grounds of public interest.  The Court of Appeal stated inter alia:

     "It is common ground that the procedure when the

     prosecution are in possession of material they believe

     should not be disclosed to the defence has been  changed by

     the decision of this court in Ward (1993) 96 Cr.App.R. 1.

     Previously, the decision whether to disclose or not was

     made by the prosecution in accordance with the Attorney-

     General's guidelines ... In Ward this court held that,

     where the prosecution wishes to claim public interest

     immunity justifying non-disclosure, it is for the court,

     not the prosecution, to decide whether disclosure must be

     made ...

     ... in argument the question arose whether, if in a

     criminal case the prosecution wished to claim public

     interest immunity for documents helpful to the defence, the

     prosecution is in law obliged to give notice to the defence

     of the asserted right to withhold the documents so that, if

     necessary, the court can be asked to rule on the legitimacy

     of the prosecution's asserted claim.  [Defence counsel]'s

     position was simple and readily comprehensible.  He

     submitted that there was such a duty and that it admitted

     of no qualification or exception.  Moreover, he contended

     that it would be incompatible with a defendant's absolute

     right to a fair trial to allow the prosecution, who occupy

     an adversarial position in criminal proceedings, to be

     judge in their own cause on the asserted claim to immunity.

     Unfortunately, and despite repeated questions by the court,

     the Crown's position on this vital issue remained opaque to

     the end.

     We are fully persuaded by [defence counsel]'s reasoning on

     this point.  It seems to us that he was right to remind us

     that when 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 ...

     Relying on Ward, [counsel for the applicants] submits that

     in all cases where the prosecution contend public interest

     immunity or sensitivity justifies non-disclosure:

     (a)   they must give notice to the defence that they are

           applying for a ruling by the court;

     (b)   they must indicate to the defence at least the

           category of the material they hold; and

     (c)   the defence must have the opportunity to make

           representations to the court.

     In other words, he contends for an inter partes hearing in

     all cases with disclosure of at least the category of the

     material ...

     [Prosecution counsel] accepts that in the majority of cases

     these requirements should be met. The problem arises where,

     exceptionally, the sensitivity of the material is such that

     to reveal the category, or, still more exceptionally, the

     very fact that an application is being made to the court,

     will defeat the public interest in non-disclosure.  In our

     judgment, the proper approach is as follows:

     (1)   In general, it is the duty of the prosecution to

     comply, voluntarily and without more, with the requirements

     in para. 2 of the Attorney-General's guidelines.

     (2)   If the prosecution wish to rely on public interest

     immunity or sensitivity to justify non-disclosure, then,

     whenever possible, which will be in most cases, (a),(b) and

     (c) of the [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.

     In reaching these conclusions, we recognise that open

     justice requires maximum disclosure and whenever possible

     the opportunity for the defence to make representations on

     the basis of fullest information.  However, in regard to

     public interest immunity in criminal cases, it is implicit

     that the defence cannot have the fullest information

     without pre-empting the outcome of the application.  Before

     Ward, the defence would have been totally unaware that,

     within the prosecution authority, the question of whether

     to disclose sensitive material or not was being resolved.

     The effect of Ward is to give the court the role of

     monitoring the views of the prosecution as to what material

     should or should not be disclosed and it is for the court

     to decide.  Thus, the procedure described as unsatisfactory

     in Ward, of the prosecution being judge in their own cause,

     has been superseded by requiring the application to the

     court.  This clearly gives greater protection to the

     defence than existed hitherto - indeed as much protection

     as can be given without pre-empting the issue.  Although

     ideally one would wish the defence to have notice of all

     such applications, and to have sufficient information to

     make at least some representations, we recognise that, in

     a small minority of cases, the public interest prevents

     that being possible."

     Finally, the Court 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, if possible, for the same judge or constitution of the

court which hears the application also to conduct the trial.

     On 22 June 1993, at the outset of the hearing of the substantive

appeal before a differently constituted Court of Appeal, defence

counsel invited the Court to order the Crown to disclose the name of

any person or persons to whom any reward money had been paid for

information given to the police concerning the applicants, and sought

access to the Police Complaints Authority report concerning a complaint

by Rowe.  The Court was shown documents relevant to the request for

disclosure.  These were not shown to defence counsel.  However, defence

counsel did make submissions as to the factors alleged to support the

need for disclosure of the material and as to the balancing exercise.

Having considered those submissions and having examined relevant

documents, the Court refused to order disclosure.

     On 29 July 1993 the Court of Appeal upheld the applicants'

conviction concluding that:

     "... on the whole of the material we have reviewed, there

     is no basis for saying that there is even a lurking doubt

     about the safety of the convictions of Rowe and Davis ..."

B.   Relevant domestic law and practice

     In December 1981 the Attorney-General issued Guidelines, which

did not have the force of law, concerning exceptions to the common-law

duty to disclose to the defence certain evidence of potential

assistance to it ((1982) 74 Cr.App.R. 302 ("the Guidelines")).  The

Guidelines attempted to codify the rules of disclosure and to define

the prosecution's power to withhold "unused material".  Under

paragraph 1, "unused material" was defined as:

     "(i) All witness statements and documents which are not included

     in the committal bundle served on the defence; (ii) the

     statements of any witnesses who are to be called to give evidence

     at the committal and (if not in the bundle) any documents

     referred to therein; (iii) the unedited version(s) of any edited

     statements or composite statement included in the committal

     bundles."

     Under paragraph 2, any item falling within this definition was

to be made available to the defence if "... it has some bearing on the

offence(s) charged and the surrounding circumstances of the case".

     The duty to disclose was subject to a discretionary power for

prosecuting counsel to withhold relevant evidence if it fell within one

of the categories set out in paragraph 6. One of these categories was

"sensitive" material which, because of its sensitivity, it would not

be in the public interest to disclose. In paragraph 6(iv), 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."

     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.  Accordingly, at the date of the

applicants' trial, relevant evidence which was also sensitive could

have been withheld without an application to the trial judge.

     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) and R. v. Trevor Douglas K. ((1993) 97 Cr.App.R.

342).

     In R. v. Ward, decided in June 1992, the Court of Appeal gave its

most detailed attention to the question of what duties the prosecution

have to disclose evidence to the defence.  The Court of Appeal laid

down the proper procedure to be followed when the prosecution claims

that certain material is the subject of public interest immunity. It

stressed that the court, and not the prosecution, was the judge of

where the proper balance lay in a particular case.  In dealing with the

question whether the prosecution was obliged to give notice to the

defence where it wished to withhold documents on grounds of public

interest immunity, the Court of Appeal stated:

     "... [W]hen the prosecution acted as judge in their own cause on

     the issue of public interest immunity in this case they committed

     a significant number of errors which affected the fairness of the

     proceedings.  Policy considerations therefore powerfully

     reinforce the view that it would be wrong to allow the

     prosecution to withhold material documents without giving any

     notice of that fact to the defence.  If, in a wholly exceptional

     case, the prosecution are not prepared to have the issue of

     public interest immunity determined by a court, the result must

     inevitably be that the prosecution will have to be abandoned."

     In R. v. Trevor Douglas K., decided in November 1992, the Court

of Appeal held that in performing the balancing exercise referred to

in Ward, the court must view the material itself:

     "In our judgment the exclusion of the evidence without an

     opportunity of testing its relevance and importance amounted to

     a material irregularity.  When public interest immunity is

     claimed for a document, it is for the court to rule whether the

     claim should be upheld or not.  To do that involves a balancing

     exercise.  The exercise can only be performed by the judge

     himself  examining  or viewing  the  evidence, so as  to have the

           facts of what it contains in mind.  Only then can he be in

           a position to balance the competing interests of public

           interest immunity and fairness to the party claiming

           disclosure."

     The Court of Appeal also established that where an accused

appeals to the Court of Appeal on the grounds that material has been

wrongly withheld, the Court of Appeal will itself view the material ex

parte.  In this case the defence were at least aware of the nature of

the evidence in issue.  Subsequent decisions have however authorised

a procedure whereby the Crown Court and Court of Appeal may conduct the

balancing exercise without the defence being on notice of the general

nature of the material or, in certain cases, of even the fact that such

material exists and that an application has been made to withhold it.

     On 15 January 1993 the Court of Appeal gave the disclosure

judgment in R. v. Davis, Johnson and Rowe (see above).

C.   Subsequent development in the domestic law

     In R. v. Keane ([1994] 1 WLR 747), decided in March 1994, the

Court of Appeal set out a test of materiality.  The test was discussed

in the context of what should be disclosed by the prosecution to the

court when it claimed that certain material should not be disclosed on

grounds of public interest immunity or other sensitivity.

     In R. v. Rasheed ((1994) Times 20 May 1994), the Court of Appeal

has 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.

     In June 1994, in R. v. Winston Brown ((1995) 1 Cr.App.R.191), the

Court of Appeal reviewed the operation of the Guidelines.  It stated:

     "The Attorney General's objective was no doubt to improve the

     existing practice of disclosure by the Crown.  That was a

     laudable objective.  But the Attorney General was not trying to

     make law and it was certainly beyond his power to do so ...  The

     Guidelines are merely a set of instructions to Crown Prosecution

     Service lawyers and prosecuting counsel ...

     Judged simply as a set of instructions to prosecutors, the

     Guidelines would be unobjectionable if they exactly matched the

     contours of the common law duty of non-disclosure ...  But if the

     Guidelines, judged by the standards of today, reduce the common

     law duties of the Crown and thus abridge the common law rights

     of a defendant, they must be pro tanto unlawful ...

     [T]oday, the Guidelines do not conform to the requirements of the

     law of disclosure in a number of critically important respects.

     First, the judgment in Ward established that it is for the court,

     not prosecuting counsel, to decide on disputed questions as to

     disclosable materials, and on any asserted legal ground to

     withhold production of relevant material ... For present purposes

     the point of supreme importance is that there is no hint in the

     Guidelines of the primacy of the Court in deciding on issues of

     disclosure ...

     Secondly, the guidelines are not an exhaustive statement of the

     Crown's common law duty of disclosure: R. v. Ward (supra) at 25

     and 681D.  To that extent too the Guidelines are out of date.

     Thirdly, the Guidelines were drafted before major developments

     in the field of public interest immunity.  [I]n paragraph 6 the

     Guidelines are cast in the form of a prosecutor's discretion ...

     Much of what is listed as 'sensitive material' is no doubt

     covered by public interest immunity.  But not everything so

     listed is covered by public interest immunity ..."

     In October 1994 the Court of Appeal decided the case of R. v.

Turner ([1995] 1 WLR 264).  As in R. v. Keane, the case concerned the

increasingly common situation where the prosecution did not wish to

disclose the details of an informant but the defence claimed that these

details were essential to its case.  Lord Taylor CJ stressed that ex

parte application should not be made except on the application of the

Crown and that it was essential that a verbatim record be kept of such

applications.  His Lordship then proceeded to endorse the balancing

test laid down in R. v. Keane which required the judge to have regard,

on the one hand, to the weight of the public interest in non-disclosure

against the importance, on the other hand, of the documents to the

issues of interest to the defence, present or potential, so far as they

had been disclosed to him or he could foresee them.

     The Court of Appeal concluded:

     "It is sufficient for us to say that in this case we are

     satisfied that the information concerning the informant showed

     a participation in the events concerning this crime which,

     coupled with the way in which the defence was raised from the

     very first moment by the defendant when he said that he was being

     set up, gave rise to the need for the defence to be aware of the

     identity of the informant and his role in this matter.  We

     therefore conclude that if one applies the principle which has

     been quoted from R. v. Keane to the facts of the present case,

     there could only be one answer to the question as to whether the

     details concerning this informer were so important to the issues

     of interest to the defence, present and potential, that the

     balance which the judge had to strike came down firmly in favour

     of disclosure."

COMPLAINTS

     The applicants submit that their trial at the Central Criminal

Court and the Court of Appeal violated Article 6 of the Convention in

the following respects:

1.   The non-disclosure to the defence of evidence which was

acknowledged to be relevant and material violated the applicants' right

to a fair trial in general, and, particularly, their right to adequate

facilities for the preparation of their defence guaranteed by paragraph

3(b).  Thus, they were placed at a substantial disadvantage in the

conduct of the proceedings - in particular at the oral examination of

witnesses according to paragraph 3(d) - and became victims of a

violation of the principle of equality of arms.

2.   The ex parte procedure, whereby the Court of Appeal gave rulings

approving the non-disclosure of evidence at hearings held in the

absence of the applicants or their counsel, and without affording them

the opportunity to make informed representations, and whereby the

prosecution or the trial court may have secretly decided to withhold

evidence violated the applicants' right to a fair and public hearing

guaranteed by paragraph 1.

3.   The defects were not remedied by the hearing before the Court of

Appeal since neither the applicants nor their counsel had the

opportunity to see the undisclosed material at the appeal hearing, and,

in consequence, were unable to make informed representations about the

impact of the material on the safety of the conviction.  Further, the

violation was compounded by the fact that the Court of Appeal itself

reviewed the undisclosed evidence in the context of proceedings where

it acted as a tribunal of fact.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 20 December 1993 and registered

on 9 October 1995.

     On 26 June 1996 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on

8 November 1996, after an extension of the time-limit fixed for that

purpose.  The applicants replied on 7 February 1997 also after an

extension of the time-limit.

     On 21 January 1997 the Commission granted the applicants legal

aid.

     On 23 May 1997 the Government presented further comments on

certain points in the applicants' observations.

THE LAW

     The applicants complain that their trial was unfair, that they

were prevented from preparing their defence and from cross-examining

prosecution witnesses.  The ex parte procedure, in which the Court of

Appeal approved the non-disclosure of relevant evidence on the grounds

of public interest immunity, was held in the absence of the applicants

and their counsel and without affording them the opportunity to make

informed representations.  Accordingly, the applicants argue that they

were placed at a substantial disadvantage in the conduct of the

proceedings which affected the principle of equality of arms.  In

addition, they argue that the prosecution also had in its possession

information relating to the names of the person or persons to whom any

reward money had been paid for information given to the police

concerning the applicants, and relating to the Police Complaints

Authority report on the case.  They invoke Article 6 paras. 1, 3(b) and

3(d) (Art. 6-1, 6-3-b, 6-3-d) of the Convention which, insofar as

relevant, read as follows:

     "1.   In the determination ... of any criminal charge against

     him, everyone is entitled to a fair and public hearing ... by an

     independent and impartial tribunal established by law. ...

     ...

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

     ...

     b.    to have adequate time and facilities for the preparation of

     his defence;

     ...

     d.    to examine or have examined witnesses against him and to

     obtain the attendance and examination of witnesses on his behalf

     under the same conditions as witnesses against him; ..."

     The Government first submit that neither the general principle

of fairness in criminal proceedings under Article 6 para. 1 (Art. 6-1)

of the Convention nor the specific right to "adequate facilities" under

Article 6 para. 3(b) (Art. 6-3-b) of the Convention requires an

absolute right for the defence to disclosure of all relevant material.

Moreover, previous cases decided by the Convention organs do not

establish any such principle whether by analogy or otherwise and, on

the contrary, have recognised the legitimacy of non-disclosure of

confidential or sensitive material in criminal proceedings.

     As to the issue of principle, the Government submit that there

are categories of material which the public interest requires either

should not be disclosed at all, or should not be disclosed without a

compelling reason.  The basis on which that public interest rests is

that damage would or, at the least, might be caused by disclosure.

     They claim that the concept of relevant material covers material

in a very broad spectrum.  At one end of the spectrum is material which

is likely not to assist the defence at all, but rather to assist the

prosecution. In criminal cases the principle of public interest

immunity might operate to prevent use by the prosecution of such

material, even if such material incriminated the accused.  At the other

end is material which would tend to establish an accused's innocence.

     The Government note that if the disclosure of relevant material

is a requirement implicit in the reference to "adequate facilities" in

Article 6 (Art. 6) of the Convention or the concept of a fair trial,

the consequences are that (i) the public interest in preventing the

damage which would follow disclosure would be wholly irrelevant to the

disclosure requirements in criminal cases - no matter how obvious or

serious the risk, and that (ii) it would be impermissible in any case

to assess and take into account the true importance of the material to

a fair and proper presentation of the defence case, as opposed simply

to deciding whether it passed the low threshold of relevance.

     They contend that it is necessary in this context to bear in mind

the important public interest in ensuring that, where there is

sufficient admissible evidence to support the prosecution of an

individual with at least a realistic prospect of a conviction being

obtained, the case should be allowed to proceed to trial.  That public

interest is directly relevant here because the alternative to

disclosure is for a prosecution either not to be mounted or to be

abandoned.  In relation to informants, (i) the authorities are likely

to be extremely reluctant to reveal the identity of an informant, both

because of the risk of physical harm to that informant, and because of

the importance to the effective detection of crime of ensuring that the

sources of information do not dry up, and (ii) an accused will know

this and accordingly will have every incentive to seek disclosure of

the identity of an informant, in an attempt to ensure that he is not

prosecuted, whatever the strength of the evidence against him.

     The Government argue that a decision not to mount or to abandon

a prosecution is an outcome which may be inevitable.  If the public

interest in non-disclosure is irresistible in a particular case, but

it is clear that the material is important to enable the defence case

to be properly and fairly put, a prosecution could not be mounted or

continued.  Fairness to the accused would be paramount.  The effect of

an absolute principle based solely on relevance would, however, be to

increase those cases in which the prosecution could not be mounted or

would have to be abandoned.  That increase would be accounted for by

cases in which the material in question, although passing the low

threshold of relevance, was of relatively minor importance to the

accused. If the 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.

     The Government further submit that the domestic courts have been

astute to ensure that any non-disclosure does not compromise the

fairness of proceedings. Thus, the relevant principles applicable under

domestic law enable the court to balance the importance and weight of

the public interest in not disclosing the material in question and the

importance of that material to the fair and proper conduct of the

defence case. That balancing exercise is weighted in favour of

disclosing material in recognition of the importance of achieving the

fullest possible disclosure of relevant material.  The Government claim

that these principles are sufficient to ensure and safeguard the

fairness of proceedings.

     The Government recall that criminal proceedings are to be judged

as a whole including any appellate process, as the European Court

stressed in Edwards v. the United Kingdom (judgment of

16 December 1992, Series A no. 247-B, p. 34, para. 34).  In the present

case, the Court of Appeal considered the disclosure issue on three

occasions.  On each such occasion, the Court of Appeal carefully

considered the issues which arose at trial and any impact which non-

disclosure might have had on the fairness of the proceedings, and

decided that the balance clearly came down in favour of non-disclosure.

The conclusion in this respect reached by counsel for the Crown prior

to the trial was endorsed.

     In fact, the applicants were not impeded from fairly and properly

presenting their case by any non-disclosure.  They were able, through

their counsel, to mount a sustained attack on the prosecution case and,

in particular, on the credibility of the main prosecution witnesses,

Jobbins, Duncan, Griffin and Kate Williamson.  The issues which arose

and that attack on credibility were placed squarely before the jury by

the trial judge in his detailed and careful summing-up.  The totality

of the evidence was then thoroughly reviewed, and further evidence was

heard at the applicants' behest, by the Court of Appeal.

     Both applicants gave evidence. Their defence despite the

complexity of some of the other issues was a simple one.  It was that

neither had left No. 25 on the night of the murder and the robberies.

If the jury, having heard their version given on oath in the witness

box, had had a reasonable doubt about their guilt they would have been

acquitted.  It is clear from the fact of conviction that the jury

concluded that they had lied in the witness box and that their version

of events was false.

     As to the question whether the procedure for determining where

a fair balance lay was in itself in violation of Article 6 (Art. 6) of

the Convention, the Government submit that the Court of Appeal

considered in the disclosure judgment the nature of the procedure to

be followed.  It is evident from that judgment that the central aim of

the procedure laid down by the Court of Appeal was to ensure that, so

far as possible, the accused and his lawyers should be given the

maximum amount of information and the maximum opportunity to make

submissions to the court.  The Court of Appeal recognised however that

any hearing before, or decision of, the court would be rendered

meaningless if the nature of the procedure prior to such decision

itself had the effect of revealing the information.  The Court of

Appeal noted that "... in regard to public interest immunity in

criminal cases, it is implicit that the defence cannot have the fullest

information without pre-empting the outcome of the application ...".

     The Government also submit that the procedure outlined by the

Court of Appeal is specifically designed to achieve this central aim:

(1)  The procedures described as "type 2" (notification of application

but application made ex parte and without disclosing the category of

material) and "type 3" (no notification even of fact of an application)

procedures, are to be used if, and only if, the disclosure of either

the category of information (type 2) or the very fact of an application

(type 3 - "a highly exceptional case") would have the effect of pre-

empting the outcome of the application.

(2)  The decision whether or not disclosure even of this limited

information will in effect reveal that which the Crown contends should

not in the public interest be revealed is itself one for the court.

If it disagrees with the Crown's view, one of the procedures involving

greater disclosure of information will be used.

     For the Government, the fundamental problem with the criticisms

of the "type 2" and "type 3" procedures made by the applicants is that

they ignore the factual basis which must exist before those procedures

are followed - namely that to reveal either the category of material

or the very fact of an application would be to pre-empt the outcome and

to cause the very damage which is sought to be prevented by the

application.  The majority of the applicants' criticisms go to the

limited involvement or absence of involvement of the accused and his

lawyer in such applications.  If the factual basis referred to above

is found by the court to exist, that limited involvement or absence of

involvement is not merely inevitable, but necessary in order to avoid

pre-empting the outcome.  A further inevitable and necessary

consequence in such cases is the fact that a detailed, public judgment

cannot be given.

     The Government contend that none of the Convention organs' cases

involved a challenge to a procedure which was ex parte because that was

the only way in which to avoid pre-empting the outcome. Nor is any such

principle either inherent in Article 6 (Art. 6) of the Convention or

necessary in order to ensure the fairness of criminal proceedings.  In

the Government's view, it would be strange indeed if that were to be

the case, because such a principle would require a procedure which

rendered any subsequent decision on the issue before the court

meaningless.

     In the present case, no ex parte application was made to the

trial judge.  Such an application was made to the Court of Appeal at

the first and second hearings.  At these hearings, the Court concluded

that the category of material could not be revealed without pre-empting

the outcome.  These were accordingly "type 2" procedures.  The

Government claim that the criticism by the applicants that "the judge

is obliged to speculate on the possible issues which the defence may

seek to raise is not well-founded (i) as a general criticism because

of the  continuing duty on  the court to monitor the balancing

exercisein the light of the issues raised and (ii) on the present facts

because the Court of Appeal had the benefit of being able to review all

the issues which had in fact been raised by the defence at trial.

     Finally, the Government point out that the Court of Appeal

reviewed the relevant material on both occasions.  Moreover, at the

first hearing the Court, having considered the balancing exercise,

"entirely endorsed" the decision, which had been reached prior to the

trial by prosecuting counsel, that disclosure should not be made.  At

the second hearing, having considered the matter again, the Court

declined to depart from its earlier ruling.  At the substantive appeal,

defence counsel himself applied for disclosure of specified categories

of material. He was accordingly able to advance submissions as to the

appropriate and fair balance to be struck.  He did not have sight of

any material in the categories applied for (that would have been to

pre-empt the outcome).  However, this application followed a "type 1"

procedure.  It fulfilled the criteria which defence counsel had

submitted should be applied to such cases.  In the event, the

application was rejected by the Court of Appeal.

     The Government conclude that the procedures for dealing with

applications raising the issue whether or not particular material

should be disclosed in fairness to the defence are not in violation

with Article 6 (Art. 6) of the Convention.

     The applicants first submit that there are strong indications

that a reward payment was claimed by or made to one of the key

prosecution witnesses, and that this information was withheld from the

defence.  Since such evidence is plainly material it ought to have been

disclosed in order to meet the requirements of a fair trial.  Moreover,

they argue that in the absence of a fair procedure and a reasoned

judgment on the issue of disclosure, it is impossible to know whether

the full facts were put before the Court of Appeal, or whether the

Court of Appeal misapplied domestic law in its approach to disclosure.

     The applicants further maintain that the Government do not

specifically address the other areas of non-disclosure, namely the

granting of an immunity from prosecution for the Jobbins group and Kate

Williamson, the existence of other relevant evidence and the non-

disclosure of the Police Complaints Authority Report.

     As regards the non-disclosure at trial, the applicants argue that

there has been a clear prima facie breach of Article 6 (Art. 6) of the

Convention: a procedure whereby prosecution counsel takes the decision

to withhold material without reference to the court or any independent

arbiter cannot, in their view, satisfy the requirements of fairness

under Article 6 (Art. 6).

     As far as the proceedings before the Court of Appeal are

concerned, the applicants underline that by contrast to the Edwards v.

the United Kingdom case (see above) in the present case the undisclosed

material remained undisclosed throughout, and the Court of Appeal

followed an unfair and secretive procedure from which the defence were

excluded.  Moreover, there is an independent ground of challenge which

arises from inter-relation between the ex parte public interest

immunity rulings and the functions which the Court of Appeal discharged

in the substantive appeal.  The Court of Appeal was acting as a

tribunal of fact.  It was obliged to ask itself the subjective question

- whether there existed a "lurking doubt" as to the safety of the

conviction.  In  the light  of this, the  fact that the prosecution

haddrawn the attention of the court, during ex parte hearings, to

evidence which the applicants had no opportunity to see or consider

amounts to a fundamental breach of the principle of equality of arms.

     The applicants contend that the unfairness of this procedure is

apparent if the undisclosed evidence included material damaging to the

defence.  Where the tribunal viewing the material is then required to

assess the whole of the evidence in its capacity as a tribunal of fact,

fairness requires that the accused should have the right to comment

upon the evidence against him.  This was recognised in Edwards v. the

United Kingdom judgment where the Court stressed that the duty of

disclosure applied to all material evidence for or against the accused.

     The applicants therefore submit that there has been a breach of

Article 6 (Art. 6) of the Convention on the facts of this case, whether

the undisclosed evidence advanced the case for the prosecution or the

case for the defence.  If the evidence was damaging to the accused,

then, in view of the fact that the Court of Appeal had seen the

material, the defence ought to have had an opportunity to answer it.

If the evidence was favourable to the accused, then the defence ought

to have been able to rely upon it.

     The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and facts under

the Convention, the determination of which should depend on an

examination of the merits of the application as a whole.  The

Commission concludes, therefore, that the application is not manifestly

ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.  No other grounds for declaring it inadmissible have

been established.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits

of the case.

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

 

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