EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 28901/95

Raphael Rowe and Michael Davis

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. 17-52)              3

A. The particular circumstances of the case

(paras. 17-37)              3

B. Relevant domestic law

(paras. 38-47)              8

C. Subsequent development in the domestic law

(paras. 48-52)              10

III. OPINION OF THE COMMISSION

(paras. 53-83)              13

A. Complaint declared admissible

(para. 53) 13

B. Point at issue

(para. 54) 13

C. As regards Article 6 of the Convention

(paras. 55-82)              13

CONCLUSION

(para. 83) 20

APPENDIX : DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION                                                                               21

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 applicants are two British citizens, born in 1968 and 1966 respectively.  They are currently detained in HM Prison Maidstone .  They were 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, in an ex parte procedure, on the grounds of public interest immunity.  The case raises issues under Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 20 December 1993 and registered on 9 October 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 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 for the representation of their 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 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:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. 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. The Commission's decision on the admissibility of the application is attached 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 applicants were serving their prison sentence for murder and other offences.  The background to their convictions was 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."

18. 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.

19. 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.

20. 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.

21. 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.

22. 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 they had returned to No. 25 at about 12.30 a.m. together with two other persons.   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 to No. 25 was confirmed by other witnesses.

23.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.

24. 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."

25. 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.

26. 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.

27. 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 .

28. 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 .

29. 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 .

30. 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.

31. 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."

32. 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.

33. 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 the first applicant.  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.

34. On 29 July 1993 the Court of Appeal upheld the applicants' conviction concluding that there was no basis to say that there was even a lurking doubt about the safety of the applicants' convictions.

35. By letter of 27 November 1994 the first applicant's solicitor, with reference to R. v. Rasheed , which was decided after the appeal in the present case (see below, para. 48), asked the Crown Prosecution Service for disclosure of any reward claim made prior to the trial by any witness and, in particular, by any one of the six people whom the judge described as an accomplice.

36. On 22 November 1995 the Crown Prosecution Service replied:

"Regarding the question raised in paragraph (1) of your letter of 27th October 1994, you will know that the topic of rewards was raised by Mr Mansfield QC at the outset of the appeal in this matter.  This resulted in an ex parte application which was heard in camera.  This application was upheld and referred to by Watkins LJ in his final judgment in these terms: 'We upheld the claim and refused to order disclosure of any kind for reasons we gave on 22nd June and which are recorded'."

37. As at 1 May 1997 the applicants' cases were being reviewed by the Criminal Cases Review Commission whose role is to investigate possible miscarriages of justice.

B. Relevant domestic law

38. 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 .

39. 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."

40. 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".

41. The duty to disclose was subject to a discretionary power for the prosecution 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(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."

42. 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.

43. Between 1992 and the applicants' conviction, 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).

44. In R. v. Ward, decided in June 1992, the Court of Appeal dealt with the question of what duties the prosecution has to disclose evidence to the defence .  It laid down the proper procedure to be followed when the prosecution claims that certain material is the subject of public interest immunity.  The Court of Appeal 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."

45. 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."

46. 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 .

47. 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

48. In R. v. Keane ([1994] 1 WLR 747), 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 on 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.

49. 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.

50. 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.

51. 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 ..."

52. 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 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 ...

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

53. The Commission has declared admissible the applicants' complaint that the non-disclosure to the defence of certain evidence on the grounds of public interest immunity made in the ex parte procedure breached their right to a fair trial and their defence rights.

B. Point at issue

54. Te 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

55. 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; ..."

56. The applicants first submit that there were 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 was plainly material it ought to have been disclosed in order to meet the requirements of a fair trial.  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.

57. As regards the non-disclosure at trial, the applicants argue that there has been a clear prima facie breach of Article 6 of the Convention: a procedure whereby prosecution decide to withhold material without reference to the court or any independent arbiter cannot, in their view, satisfy the requirements of fairness under Article 6 of the Convention.  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 (Eur. Court HR, judgment of 16 December 1992, Series A no. 247-B, p. 34, para. 34) 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, acting as a tribunal of fact, was obliged to ask whether there existed a "lurking doubt" as to the safety of the conviction.  In the light of this, the fact that the prosecution had drawn 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.

58. The applicants contend that the unfairness of this procedure is apparent if the undisclosed evidence included material damaging to the defence .  Where the court 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 the Edwards v. the United Kingdom judgment (see above) where the European 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 of the Convention on the facts of this case, whether the undisclosed evidence advanced the case for the prosecution or that 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.

59. 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 paragraph 3(b) of this Article requires an absolute right for the defence to disclosure of all relevant material.  Moreover, previous cases decided by the Convention organs have recognised the legitimacy of non-disclosure of confidential or sensitive material in criminal proceedings.

60. 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.

61. 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.

62. 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.

63. 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.

64. 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.

65. 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 Court of Appeal considered the disclosure issue on three occasions.  On each such occasion, it 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.  At the substantive appeal, defence counsel 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).  The Court of Appeal fulfilled the criteria which defence counsel had submitted should be applied to such cases and rejected the application.  In its judgment, the Court of Appeal considered the nature of the procedure to be followed.  The central aim of the procedure laid down by that court 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.  It 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 ..."

66. The Government submit that the applicants were not impeded from fairly and properly presenting their case by any non-disclosure.  They were able, through their counsel, to mount an 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.

67. 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, 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.

68. 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 applicants' complaint in the light of the two provisions taken together.

69. 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).

70. 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).

71. 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.

72. The Commission observes that in the present case, there was considerable evidence against the applicants as to their involvement in the offences as charged, and the applicants do not contest that they could put forward all their arguments concerning this evidence during the trial.  However, there was relevant material which was, at the time of the trial, withheld from the defence by the prosecution on the grounds of its sensitivity, without reference to the trial judge.  This material was then reviewed by the Court of Appeal, upon the ex parte application filed by the prosecution, which confirmed its non-disclosure on the grounds of public interest immunity.  The applicants and their lawyers were informed of the ex parte application, but they were unaware even of the category of the material which had been withheld.  Nevertheless, one of the areas of information which the applicants have contended may have been withheld was the existence of informants and their claim for financial reward, an element which, if known to the jury, could have affected their assessment of the credibility of prosecution witnesses.

73. 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.

74. In the present case it has not been specified what was the subject of the ex parte proceedings before the Court of Appeal and, therefore, for which of the particular reasons listed in paragraph 6(v) of the Guidelines (para. 41) the relevant sensitive material was not disclosed.

75. Whatever the category or categories of the material and the reason or reasons for non-disclosure, they were protected by public interest immunity the maintenance of which 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 case (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, including for the purposes of 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 (judgment of 10 July 1998, to be published in Reports 1998, para. 77).

76. 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 (judgment of 26 March 1996, Reports 1996-II, pp. 470-471, paras. 69-72).  In the Lüdi v. Switzerland judgment and the Van Mechelen and Others v. the Netherlands judgment the Court recognised in principle that, provided that the rights of the defence are respected, it may be legitimate for the police authorities to wish to preserve the anonymity of an agent deployed in undercover activities, for his own or his family's protection and so as not to impair his usefulness for future operations (judgment of 15 June 1992, Series A no. 238, p. 21, para. 49; judgment of 23 April 1997, Reports 1997-III, p. 712, para. 57).

77. 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 applicants were guilty.  The Commission must  therefore examine  the question  whether the  judicial

authorities dealing with the applicants' case preserved the defence rights to a degree that satisfied the requirements of Article 6 para. 1 of the Convention.

78. 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 (see relevant domestic law and subsequent development in the domestic law).

79. In the present case, the Commission observes that the trial judge did not see the relevant material as it was withheld by the prosecution which had a discretion, at the time of the trial, not to make disclosure without any reference to the trial judge.  Only the Court of Appeal considered the material and conducted the balancing exercise, concluding that the material should not be disclosed to the defence .  The Commission notes, however, that the only task of the Court of Appeal was to assess whether there was a lurking doubt within a context where considerable weight was to be attached to the jury's assessment of credibility.  It is true that the Court of Appeal had the benefit of transcripts of the hearings before the trial judge. However, the Commission considers that the review of the material by the Court of Appeal could not cure the absence of examination of the material by the trial judge.  The trial judge is in the best position to perform the necessary balancing exercise, namely to examine or view the material and the facts which the material reveals and then to properly weigh the competing interests of public interest immunity and fairness to the defence claiming disclosure.  Moreover, at no stage did any court dealing with the applicants' case have the inter partes benefit of submissions by a specially appointed counsel on behalf of the defence , who acted only in the particular procedural issue and not for the defence as a whole (see, mutatis mutandis , above-mentioned Chahal v. the United Kingdom judgment, p. 1869, para. 144).

80. As in R. v. Ward the prosecution acted as judge in their own cause at trial stage.  The trial judge was in a comparable position to the judge in the above-mentioned 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 (para. 75).  There was no possibility for the trial judge to monitor the position as the trial progressed and to consider disclosure of withheld material as issues emerged during trial which might have affected the balance (para. 32).  Moreover, the seven categories of sensitive material include at least three ((e), (f) and (g) of para. 41) where the interests of the State in maintaining confidentiality for the purposes of encouraging information to be given to 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 even the category of withheld material was a further barrier to ensuring fairness of proceedings.  In consequence, the handicaps under which the defence laboured in not having access to relevant material were insufficiently counterbalanced by the procedure followed by the judicial authorities (see above-mentioned Doorson v. Netherlands judgment, Reports 1996-II, pp. 470-471, paras. 69-72).

81. In the Commission's 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 above-mentioned Edwards v. the United Kingdom judgment, p. 35, paras. 36, 38).

82. In these circumstances, the Commission is of the opinion that, on balance, the proceedings against the applicants taken as a whole cannot be considered to be fair.   With regard to the facts that the procedural motion could be heard in camera and that the Court of Appeal's ruling was not delivered in public, the Commission considers 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.

CONCLUSION

83. The Commission concludes, unanimously, 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.

        M. de SALVIA                       S. TRECHSEL

         Secretary                          President

      to the Commission                  of the Commission