EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 29777/96

Barry Fitt

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. 17-49)              3

A. The particular circumstances of the case

(paras. 17-32)              3

B. Relevant domestic law

(paras. 33-49)              8

III. OPINION OF THE COMMISSION

(paras. 50-96)              13

A. Complaint declared admissible

(para. 50) 13

B. Points at issue

(para. 51) 13

C. As regards Article 6 para. 1 of the Convention

in conjunction with Article 6 paras. 3(b) and

3(d) of the Convention

(paras. 52-88)              13

CONCLUSION

(para. 89) 22

D. As regards Article 6 para. 2 of the Convention

(paras. 90-93)              22

CONCLUSION

(para. 94) 22

E. Recapitulation

(paras. 95-96)              22

DISSENTING OPINION OF MM J.-C. GEUS, M.P. PELLONPÄÄ,

E. BUSUTTIL, A. WEITZEL, J.-C. SOYER, H. DANELIUS,

Mrs J. LIDDY, MM B. MARXER, I. CABRAL BARRETO,

G. RESS, A. PERENIÄŒ and Mrs M. HION              23

APPENDIX : DECISION OF THE COMMISSION AS TO THE                                                 ADMISSIBILITY OF THE APPLICATION                                                                  25

I. INTRODUCTION

A. The application

2. The applicant is a British citizen, born in 1933.  He is currently detained at HM Prison Whitemoor .  He was represented before the Commission by Mr R. Tilbrook , a solicitor practising in Essex , and 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 M. 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 and the use of an informer's statement.  The applicant invokes Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 30 November 1995 and registered on 10 January 1996.

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 14 February 1997.  The applicant replied on 5 April 1997.  On 15 April 1997 the Commission granted the applicant legal aid for the representation of his case.

8. On 9 September 1997 the case was transferred from the First Chamber to the Plenary by decision of the latter.

9. On 15 September 1997 the Commission declared the application admissible.

10. The text of the Commission's decision on admissibility was sent to the parties on 25 September 1997 and they were invited to submit further observations on the merits.  The Government submitted observations on 22 December 1997.  The applicant submitted observations on 27 November 1997 and complemented them on 24 August 1998.

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 as an Appendix.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. At the time of the introduction of the application, the applicant was serving his prison sentence for conspiracy to rob, possession of a firearm and possession of a prohibited weapon.  The background to his conviction is as follows.  According to the Crown's case the applicant, together with C., S. and another, planned to carry out an armed robbery of a Royal Mail van as it was due to leave the Sorting Office at Snadgate Close in Romford .  C. and S. had worked for the post office and were familiar with the procedures necessary to send packages of great value through the post.  Using up-to-date technology the conspirators posted a letter containing a tracking device.  The letter was to appear, in due course, amongst other packages of a similar kind in a mail van the conspirators proposed to rob.  Unknown to them, the police were fully informed as to the robbery that had been planned.

18. On 26 August 1993, the date of the robbery, the police were keeping the area and conspirators under observation.

19. At 8.40pm an Orion (driven by C.) parked in Crow Lane, with its lights on, near the Post Office depot. S.'s Sierra arrived in Crow Lane.  The applicant emerged from S.'s Sierra, dressed entirely in black. He made his way inside the cemetery carrying a jacket over his arm.  C. in the Orion then followed the Sierra, only to return to Sandgate Close, where he parked the Orion with the headlights on.

20. At 8.46pm the applicant was seen lying down by the railings, inside the cemetery at a spot which was directly opposite Sandgate Close and had a gap in the railings.  Only the "moon" of his face was showing due to the hood of the jacket being secured firmly around his head. At 8.49pm the applicant was disturbed by a local resident passing by, who stopped and spoke to him.  He was also spotted by a passing Post Office employee. The police officers observed the incident.

21. At about 8.50pm the applicant ran further back into the cemetery constantly stopping to face the depot and gesticulating in a manner consistent with trying to attract the attention of C. in the Orion which was parked opposite.  Having disappeared between the bushes for about a minute, he re-appeared, now without his jacket, and ran further into the cemetery where he was confronted by armed officers.  C. was arrested in a motorcar near the mail van.  In the car there was a walkie-talkie, a balaclava and some gloves.

22. Behind a bush, where the applicant had been observed crouching at one stage, was found a light- coloured jacket with fibres on it matching those from the applicant's jumper. In the pocket of the jacket were a pair of handcuffs, a sock containing four shotgun cartridges, and a canister of CS gas. Partially buried near the jacket was a balaclava helmet. A short time later a police officer discovered a pair of gloves and a sawn-off shotgun buried nearby.  All the items were shown to the applicant whilst still at the scene.  He denied all knowledge of them.

23. S. was stopped after a high-speed car chase.  In his car there was another walkie-talkie, through which connection could be made with that found in C.'s car.  Yet another car was found abandoned nearby.  It was the Crown's case that that car was driven by a fourth conspirator.  In it was found a device capable of monitoring a police radio.

24. It was the applicant's case that he had agreed with C. to bury some items which he understood had been used in connection with a theft of motor vehicles.  These items had come from a man called D.W., from whom C. was buying a car.  The items had been handed to the applicant by D.W. in two bundles, wrapped in a brown coat, on the evening of 26 August 1993.  The applicant said that C. had asked him to bury the bundles at a particular spot in the cemetery.  This he had proceeded to do on that evening.  After he had buried the items, he put the knife he used for digging the holes and the brown coat into a bag, which he then threw away.  He denied all knowledge of the proposed robbery, of the light- coloured jacket, handcuffs, CS canister, shotgun and cartridges.  He claimed that he had been set up by D.W. to make it appear that he was going to participate in an armed robbery.

25. On 23 March 1994 the prosecution successfully applied ex parte to the trial judge for an order that they not be required to disclose certain material to the defence , save to the extent that the defence were told that the material related to sources of information. The contents of the material in question were orally conveyed to the trial judge by prosecuting counsel.  Having later heard submissions from the defence that if any of this information touched upon the applicant's defence that he had been set up by D.W., it ought to be disclosed, on 23 March 1994 the trial judge refused to order disclosure.  He considered inter alia :

"... I ... adopted the principle that if something did or might help further the defence then I would order disclosure.  I had not ordered disclosure.  I have not found it necessary or right to adjourn proceedings, ex parte , in order for them to be inter partes ..."

26. On 18 April 1994 the trial against the applicant, S. and C. started. On 19 April 1994 C. pleaded guilty and the jury were discharged.  On 20 April 1994 the trial of the applicant and S. started before a new jury.

27. On 25 April 1994 the Crown made a further ex parte application to the trial judge.  This application, and the inter partes application which immediately followed, related to a witness statement given to the prosecution by C. after his guilty plea.  The defence were aware that the ex parte application was to be made.  Prosecution counsel described, at the inter partes hearing, the category of information the subject of the ex parte application:

"... the application was two-fold. One part of the ...  application ... concerned a renewal of the original ex parte application, namely concerning the source of the information.  The second limb upon which approval was sought is such that even to deal with the area upon which it was argued that it ought not to be disclosed would, in fact, reveal what the area was and that particular concern was expressly covered in the case of Davis, Johnson and Rowe which was [held] to be one of the exceptions where one does not even state the category in case it result in revealing that which ... ought to be protected."

28. The judge read the entirety of the unedited witness statement and ruled:

"What has happened here is the defendant, [C.], pleaded guilty. The matter was adjourned so that the prosecution could take a statement from him.  It is now known that he has made a statement, but he is not to be called as a witness.  ... [T]he prosecution, has asked me to examine matters ex parte and I am satisfied that that was a correct application that it was right that I should hear matters ex parte .  As I indicated, had I changed my view during the hearing, I would have adjourned and heard the matter inter partes .

It is plain to everyone, including each defendant that the statement of [C.] must, first of all, have dealt with preparation of the conspiracy to which he has pleaded guilty and the events of the day upon which he was arrested.  The reason the prosecution say they should not serve that part of [C.]'s statement is sources of information in the headline and my decision has been that the prosecution attitude is correct.

The second part of [C.]'s statement, as is now plain to the defence , deals with preparation for defence and there are two main matters, one I will call, 'Boot', 'Boot and Bug', and the other I will call 'Bin-liner'.  With regard to that the prosecution say that we should not serve that part of the statement, 'Boot and Bug' and 'Bin-liner', but they do disclose a summary of the information which has now been given to the defence ; paragraphs 1 to 6 are 'Boot and Bug', paragraph 7 is 'Bin-liner'.

The prosecution have invited me to consider whether their proposal, the action which they have now carried out, is consistent with the Attorney General's Guidelines and in my view it is.  [ Defence counsel] accurately points out that giving a precise rather than the whole or the edited part of a statement, or part of the statement with further edited things or omissions, does not in fact follow any one or other of the various examples given in Guideline 13, but Guideline 13 is only giving examples.  In my view the prosecution have been fair and correct in giving the information which they have which, of course, they may use during the case.  When it comes to the defence , it is open to them to use it and putting each defendant on guard that this they know and this they may use.  It is further my view that in no way is either defendant prejudiced by the prosecution following this procedure which, as I have said, in respect of each limb ... is the correct procedure."

29. On 13 May 1994 the trial judge in his summing-up to the jury said:

"That there was information from at least one person in this case is accepted and must be the situation, must it not, otherwise why would the police be going to all this trouble watching? Every rule has its exceptions and the law provides  if a defendant in his trial is hindered in putting forward his defence by not knowing, first of all, whether or not there was an informer or, if he knows that, not knowing the identity of an informer, an application can be made to the judge and the judge has to be told the identity of the informer, or informers and he may order the prosecution to  reveal that if a defendant is prejudiced in his defence .

...

Well, it will be plain to you that in a case like this where there has been at least one informer, the role of the informer has got to be examined with care and circumspection by you the jury in this trial.  If the rules are observed not only by the police but also by the informer, or informers the informer should not be told not [sic] to initiate crime or to promote it but, if crime is going on, he may be invited to string along with the plan and have a foot in both camps.

Of course an informer may overstep the mark, for example, and what is suggested here is that [D.W.] organised really a façade of conspiracy to rob possibly in order to take revenge on [C.] who was messing about with his girl, or for whatever reason (perhaps a reward it is suggested) and you must consider it:  has [D.W.] so organised matters that [C.] would be arrested in incriminating circumstances and has [the applicant] been drawn into that web, [S.] possibly also being drawn into that web?"

31. Following the conviction, the applicant's counsel drafted two grounds of appeal against the conviction and sentence in which the first one concerned the rulings by the trial judge and the second one related to the witness statement made by C. to the prosecution.  It was submitted in particular that:

"... In his sentencing remarks the judge specifically referred to the existence of a 'participating informant' who was instrumental in both the appellant and [C.] being arrested; this was the first that the defence had heard of the existence of such an informant.

In the submission of the appellant, the interests of justice required that the undisclosed material which had been specifically withheld from the defence , and apparently relating to a participating informant, should have been made available to the defence .  The defence was materially disadvantaged in presenting its case to the jury by its inability to establish even the existence, let alone the role, of this informant.  Without this evidence the defence case of 'set-up' rested upon a mere assertion which may well have been regarded by the jury as quite incredible and absurd. ...

... In the submissions of the defence , the actual text of the witness [ C.'s ] statement, or such part or parts of it as were not covered by recognised public interest immunity or protection, ought to have been disclosed to them.  If this was not practicable then a further statement should have been obtained which omitted the objectionable material.  The course in fact adopted of giving a 'Summary' was a naked device to prevent the proper disclosure of admittedly relevant material, and was specifically designed to thereby advantage the Crown and to disadvantage the defence ."

32. On 6 June 1995 the Court of Appeal upheld the applicant's conviction.  The Court considered:

"... During the course of the proceedings the prosecution successfully applied ex parte to the judge for an order that they not be required to disclose certain material to the defence , save to the extent that the defence were told that the material related to sources of information.  Having later heard submissions from the defence that if any of the material in question touched upon the applicant's defence that he had been set up to by [D.W.], it ought to be disclosed, on 23 March 1994 the judge refused to order any disclosure of the materials.

These rulings by the judge are the subject of the first ground of appeal ... It is said that the interests of justice required that the undisclosed material should have been disclosed to the defence .  We can see no reason to disagree with the judge's ruling.  He made it clear that if any of the material 'did or might help the defence ' he would order disclosure.  He obviously considered the matter carefully before giving his ruling.  There is no substance in this ground of appeal.

The second ground of appeal relates to a witness statement made by [C.] as a witness for the Crown.  On 25 April 1994 the Crown applied ex parte to the judge to approve the non-disclosure of [C.]'s witness statement and to approve the alternative course proposed by the Crown, which was to provide a summary of the witness statement.  The judge granted the application and approved the proposed course.  Again, we see no reason to disagree with the judge's decision in this matter. ...

Additionally, on 13 May 1995, the applicant wrote to the Registrar requesting a hearing so as to obtain 'numerous interviews and statements' by ... [C.]. This is the application for disclosure which has been referred to the full court by the Registrar and to which we were referred earlier. Many of these statements concern apparent confessions to crime made by fellow prisoners. Others relate to information about crimes [C.] claims to have witnessed or heard about whilst he was at liberty.  We have considered the application and the documents.  We are not persuaded that there is any proper basis for ordering such disclosure. Accordingly, this renewed application for leave to appeal against conviction is refused."

B. Relevant domestic law

34. In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common-law duty to disclose to the defence certain evidence of potential assistance to it ((1982) 74 Cr.App.R . 302 ("the Guidelines")).  The Guidelines attempted to codify the rules of disclosure and to define the prosecution's power to withhold "unused material".  Under paragraph 1, "unused material" was defined as:

"( i ) All witness statements and documents which are not included in the committal bundle served on the defence ; (ii) the statements of any witnesses who are to be called to give evidence at the committal and (if not in the bundle) any documents referred to therein; (iii) the unedited version(s) of any edited statements or composite statement included in the committal bundles."

35. Under paragraph 2, any item falling within this definition was to be made available to the defence if "... it has some bearing on the offence(s) charged and the surrounding circumstances of the case".

36. The duty to disclose was subject to a discretionary power for  prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6.  One of these categories (6(v)) was "sensitive" material which, because of its sensitivity, it would not be in the public interest to disclose.  In paragraph 6(v), it was defined as follows:

"... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier - e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife."

37. According to paragraph 8, "in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence ".  The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution.

38. Since 1992, the Guidelines have been superseded by the common law, notably by the decisions of the Court of Appeal in R. v. Ward [1993] 1 WLR 619; R. v. Trevor Douglas K. (1993) 97 Cr.App.R . 342; R. v. Davis, Johnson and Rowe [1993] 1 WLR 613; R. v. Keane [1994] 1 WLR 747; R. v. Winston Brown ((1995) 1 Cr.App.R . 191); R. v. Turner [1995] 1 WLR 264.

39. In R. v. Ward, decided in June 1992, the Court of Appeal dealt with the question of what duties the prosecution have to disclose evidence to the defence .  The Court of Appeal laid down the proper procedure to be followed when the prosecution claims that certain material is the subject of public interest immunity.  It stressed that the court and not the prosecution, was the judge of where the proper balance lay in a particular case.  In dealing with the question whether the prosecution was obliged to give notice to the defence where it wished to withhold documents on grounds of public interest immunity, the Court of Appeal stated:

"... [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."

40. In R. v. Trevor Douglas K., decided in November 1992, the Court of Appeal held that in performing the balancing exercise referred to in Ward, the court must view the material itself:

"In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity.  When public interest immunity is claimed for a document, it is for the court to rule whether the claim should be upheld or not.  To do that involves a balancing exercise.  The exercise can only be performed by the judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind.  Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure."

41. The Court of Appeal also established that where an accused appeals to the Court of Appeal on the grounds that material has been wrongly withheld, the Court of Appeal will itself view the material ex parte .

42. In January 1993, in R. v. Davis, Johnson and Rowe, the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wishes to claim public interest immunity.  The Court of Appeal outlined three different procedures to be adopted.  The first procedure which must generally be followed was for the prosecution to give notice to the defence that they are applying for a ruling by the court and indicate to the defence at least the category of the material which they hold.  The defence then have the opportunity to make representations to the court.  Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court is to be made but the category of the material need not be disclosed and the application should be ex parte .  The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application is to be made would "let the cat out of the bag".  Then the prosecution should apply to the court ex parte without notice to the defence .

"(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 [defense counsel's] formulation ... will apply.  (3) Where, however, to disclose even the category of the material in question would in effect be to reveal that which the Crown contends should not in the public interest be revealed, a different procedure will apply.  The Crown should still notify the defence that an application to the court is to be made, but the category of the material need not be specified and the application will be ex parte .  If the court, on hearing the application, considers that the normal procedure under (2) above ought to have been followed, it will so order.  If not, it will rule on the ex parte application.  (4) It may be that, in a highly exceptional case, to reveal even the fact that an ex parte application is to be made, could "let the cat out of the bag" so as to stultify the application. Such a case would be rare indeed, but we accept the prosecution's contention that it could occur.  In that event, the prosecution should apply to the court, ex parte , without notice to the defence .  Again, if the court, on hearing the application, considered that at least notice of the application should have been given to the defence or even that the normal inter partes procedure should have been adopted, it will so order."

47. 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.

48. In June 1994, in R. v. Winston Brown, the Court of Appeal reviewed the operation of the Guidelines.  It stated:

"The Attorney General's objective was no doubt to improve the existing practice of disclosure by the Crown.  That was a laudable objective.  But the Attorney General was not trying to make law and it was certainly beyond his power to do so ...  The Guidelines are merely a set of instructions to Crown Prosecution Service lawyers and prosecuting counsel ...  Judged simply as a set of instructions to prosecutors, the Guidelines would be unobjectionable if they exactly matched the contours of the common law duty of non-disclosure ...  But if the Guidelines, judged by the standards of today, reduce the commons 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 discloseable materials, and on any asserted legal ground to withhold production of relevant material ... For present purposes the point of supreme importance is that there is no hint in the Guidelines of the primacy of the Court in deciding on issues of disclosure ... Secondly, the guidelines are not an exhaustive statement of the Crown's common law duty of disclosure: R. v. Ward at 25 and 681D.  To that extent too the Guidelines are out of date. Thirdly, the Guidelines were drafted before major developments in the field of public interest immunity.  [I]n paragraph 6 the Guidelines are cast in the form of a prosecutor's discretion ...  Much of what is listed as 'sensitive material' is no doubt covered by public interest immunity.  But not everything so listed is covered by public interest immunity ..."

49. In October 1994 in the case of R. v. Turner, the Court of Appeal returned to the balancing exercise stating inter alia :

"Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants' names and roles, alleging that those details are essential to the defence . Defences that the accused has been set up, and allegations of duress, which used at once time to be rare, have multiplied.  We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care.  They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence , are justified.  If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure.  Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will.  Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime.  Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence , present or potential, as to make disclosure necessary ...

It is sufficient for us to say that in this case we are satisfied that the information concerning the informant showed a participation in the events concerning this crime which, coupled with the way in which the defence was raised from the very first moment by the defendant when he said that he was being set up, gave rise to the need for the defence to be aware of the identity of the informant and his role in this matter.  We, therefore, conclude that if one applies the principle which has been quoted from R. v. Keane ... to the facts of the present case, there could only be one answer to the question as to whether the details concerning this informer were so important to the issues of interest to the defence , present and potential, that the balance which the judge had to strike came down firmly in favour of disclosure."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

B. Points at issue

51. Accordingly, the points at issue are:

- 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;

- whether there has been a violation of Article 6 para. 2 of the Convention.

C. As regards Article 6 para. 1 of the Convention in conjunction with Article 6 paras. 3(b) and 3(d) of the Convention

52. 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; ..."

53. The applicant first notes that the trial judge did not fairly direct the jury as to the role of the participation of the agent provocateur D.W.  All participation was hidden from them by awarding him the title of "informant" and thereby allowing the police and prosecution  to hide all his actions beneath the all encompassing shroud of public interest immunity.  He says that the credibility of the police officers was never called into question, the extent of the falsified, planted and fabricated evidence did not become apparent or provable until after the trial.  He claims that if the jury had been allowed to know the full participation of D.W., acting as a paid agent provocateur for the police, his incriminating position would not have appeared incredible and the conclusion reached would have been almost certainly different.

54. The applicant also submits that he stated in evidence that he had been set up for reward or revenge on his co-accused C. who pleaded guilty at the trial.  He claims that his co-accused C. made 88 statements and that on one occasion, the first, his evidence, has been accepted as true, and that was this case (plea of guilty).  On the two succeeding occasions he was called to give evidence he was discredited and never called as a prosecution witness.  As it was his written evidence, or that of it that the defence were allowed to see in the "summary", was proved to be concocted and completely factually inaccurate.  The applicant claims that he was however cross-examined by the prosecution on matters contained in this statement he had never had access to and absolutely no knowledge of whatsoever.

55. The applicant considers that the non-disclosure of the full statement of C. and the fact that the jury did not know the whole role of the police informant D.W. and his participation in the applicant's case rendered the trial unfair.

56. In his further observations, the applicant, with reference to the case of R. v. Keane , submits that the material which had been withheld from the defence was relevant material.  Some of this material concerned sources of information.  It was his case that he had been set up by D.W.  Any of the sources of information related to D.W. was therefore obviously of relevance and assistance to the applicant.  The trial judge made it plain, in his summing-up, that there had been at least one informer.  He introduced D.W. in a manner indicating not only that he may have been an informer but a participatory informer.  The implication that one such source might have been D.W. and that his role did not stop at giving information, but amounted to active participation in a conspiracy, was very relevant to the applicant as it supported his case that D.W. had been involved in the events which the prosecution alleged evidenced the existence of a conspiracy and was, therefore, in a position to set him up to make it look as though he was involved in a conspiracy of which he had no knowledge.

57. As to the second ex parte application relating to material connected with the preparation of the conspiracy to rob the post office and with the events of the day which ended with [C.]'s and the applicant's arrest, the applicant submits that regarding the trial judge's ruling of 25 April 1994, it is clear that the material was relevant to the defence .

58. The applicant, with reference to the case of R. v. Trevor Douglas K., submits that there is a breach of Article 6 of the Convention if the prosecution rather than the court determines that documents should be withheld on public interest immunity.  He stresses that where, as in his case, the court is required to carry out the function of determining whether disclosure should be withheld in the public interest on the basis of a prosecution summary of the material which it is sought to withhold, there is no guarantee that the court will be presented with a fair summary as opposed to one which is so weighted as to predetermine the outcome.  In other words, by presenting a summary rather than producing the actual material, the prosecution leaves the judge no real discretion with the result that it is the prosecution and not the judge which actually determines that the material will be withheld.

59. The applicant further submits that the defects at the trial were not remedied by the Court of Appeal.  He says that the material withheld as a result of the first ex parte hearing was neither disclosed to him nor seen by the Court of Appeal.  From the transcript of the appeal judgment it appears that the court did not view the relevant evidence itself, nor was it aware that the trial judge himself did not view it.  In connection with the second ex parte application relating to the statement of the co-defendant C., the Court of Appeal, unlike the trial judge (who, according to the Government, read the entirety of the unedited witness statement personally - para. 70 below), did not read the material.  The Court of Appeal did not, therefore, have an opportunity to remedy any error the trial judge may have committed in deciding that the public interest favoured non-disclosure of parts of C.'s statement.

60. The Government first submit that neither the general principle of fairness in criminal proceedings under Article 6 para. 1 of the Convention nor the specific right to "adequate facilities" under Article 6 para. 3(b) of the Convention requires an absolute right for the defence to disclose 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.

61. 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.

62. The Government note that if 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.

63. 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.

64. The Government argue that a decision not to mount or to abandon a prosecution is an outcome which may be inevitable.  If the public interest in non-disclosure is irresistible in a particular case, but it is clear that the material is important to enable the defence case to be properly and fairly put, a prosecution could not be mounted or continued.  Fairness to the accused would be paramount.  The effect of an absolute principle based solely on relevance would, however, be to increase those cases in which the prosecution could not be mounted or would have to be abandoned.  That increase would be accounted for by cases in which the material in question, although passing the low threshold of relevance, was of relatively minor importance to the accused.  If such material was of genuine and real importance to a fair presentation of the defence case, its disclosure would, if necessary, be ordered in any event under existing principles applied by the courts.

65. 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.

66. The Government recall that the criminal proceedings are to be judged as a whole including any appellate process, as the European Court stressed in Edwards v. the United Kingdom (judgment of 16 December 1992, Series A no. 247-B, p. 34, para. 34).  In the present case, as appears from the summing-up of the trial judge the case against the applicant was a strong one.  He had, in effect, been caught red-handed.  Material was withheld following two ex parte hearings before the trial judge.  The defence had notice of both hearings.  The issues proposed to be raised by the defence were before him.  The decision reached by the trial judge was carefully reviewed by the Court of Appeal.  Both concluded that, in summary, fairness to the applicant did not require disclosure of any further material to the defence .

67. As to the question whether the procedure for determining where a fair balance lay was itself in violation of Article 6 of the Convention, the Government submit that the Court of Appeal considered the nature of the procedure to be followed in R. v. Davis, Johnson and Rowe.  The central aim of the procedure laid down by the Court of Appeal was to ensure that, so far 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.

68. 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 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.

69. They further submit that there has been no violation of the rights guaranteed in Article 6 para. 1 read with para. 3(d) of the Convention.  The applicant examined witnesses against him and could have himself called any witness to give evidence for him. C. was not called to give evidence by either the prosecution or the defence .  The fact that a summary only of the statement made by C. was provided to the defence was, as the judge explained, based on the sensitivity of material contained in the original statement.  Whether fairness to the defence required more, was fully reviewed by both the trial judge and the Court of Appeal. Both concluded that the requirement of fairness had been met.

70. In their further observations, the Government submit that in connection with the first ex parte application, the contents of the material which the prosecution sought to withhold were orally conveyed to the judge by prosecuting counsel.  They note in this regard that according to R. v. Trevor Douglas K., the judge should have sufficient knowledge of the contents of undisclosed material to make an informed decision.  The Government recall that the judge in that case was told nothing of the content of the video in question, even in broad terms.  When the defence argued on appeal that there were various ways in which the content could have touched on the integrity of the complainant's evidence at the trial, the Court of Appeal held that the judge should not have ruled against disclosure of the evidence "without an opportunity of testing its relevance and importance ...  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".  The Government state that there is no distinction for this purpose between the judge being made accurately and fully aware of the information by being told it, or by personal examination, and conclude that in the present case the judge was given on 23 March 1994 a full and accurate statement of the information.

71. The Government further note that in relation to the second ex parte application, the judge read the entirety of the unedited witness statement personally.

72. The Commission recalls that the guarantees in paragraph 3 of Article 6 of the Convention are specific aspects of the right to a fair trial set forth in paragraph 1 (see Eur. Court HR, T. v. Italy judgment of 12 October 1992, Series A no. 245-C, p. 41, para. 25).  The Commission will therefore consider the applicant's complaint in the light of the two provisions taken together.

73. 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 both the prosecution and the defence evidence.  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).

74. 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 (judgment of 16 December 1992, Series A no. 247-B, p. 35, para. 36).

75. 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.

76. The Commission observes that in the present case there was considerable evidence against the applicant as to his involvement in the offences as charged, and the applicant does not contest that he had adequate and proper opportunity to challenge this evidence during the trial.  However, there was relevant material which was, at the time of the trial, withheld from the defence on the grounds of its sensitivity, pursuant to two ex parte applications lodged by the prosecution.  The withholding of the material was then confirmed by the Court of Appeal on the grounds of public interest immunity.  The applicant and his

lawyers were informed that the ex parte applications were made on an issue of disclosure and that the material which had been withheld related to sources of information.  Moreover, there was other material which was withheld from the defence pursuant to the second ex parte application, but its category was not disclosed to the defence on the ground that it would undermine the very purpose of seeking an order for non-disclosure.  The defence was given a summary of the content of the document from which the material was taken out.

77. 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.

78. 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' right 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).

79. 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. 172, para. 57).

80. In the present case, the relevant material in question was never put before the jury whose task was to decide, on all the evidence exhibited before them, whether the applicant was guilty.  The Commission must therefore examine the question whether the judicial authorities dealing with the applicant's case preserved the defence rights to a degree that satisfied the requirements of Article 6 para. 1 of the Convention.

81. 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 .

82. In the present case, the trial judge did not see the relevant material which the prosecution sought to withhold pursuant to the first ex parte application heard on 23 March 1994; rather he was orally informed by the prosecution of its contents.  The applicant was aware that the withheld material concerned the source of information, but was not told what source of information.  Having presumed that the source might have been D.W. by whom he claimed to have been set up, the applicant made his comments to the trial judge who then refused disclosure of the material.

83. In these circumstances, the Commission does not see any reason not to assume that the prosecution followed the procedure laid down in the relevant domestic case-law, namely in R. v. Ward (para. 38) and R. v. Davis, Johnson and Rowe (paras. 42-44): it asked the trial judge to approve non-disclosure of the material on the grounds of public interest immunity and he sanctioned the withholding of the material.  A question arises, however, whether the trial judge, having been only orally informed of the contents of the withheld material, could assess the facts which the material revealed and, therefore, properly weigh the competing interests of public interest immunity and fairness to the defence claiming disclosure.

84. The Commission considers that, in principle, the fact that the trial judge is orally informed of the contents of the withheld material does not a priori mean that the information he receives is wrong or incomplete.  In order to satisfy the requirements of a fair trial and the rights of the accused, the trial judge must be sure that, before ruling on non-disclosure, he has sufficient knowledge of the contents of the material in order to perform the necessary balancing exercise, and that non-disclosure of the material would not result in miscarriage of justice.  The Commission considers that in the present case, where the source of information and the existence of a potential informer was involved, the trial judge, having known the contents of the withheld material and the nature of the applicant's case, including the importance of any information about the potential informer to him, was in a position to consider the importance of the material to the issues of present and potential interest to the defence .

85. The Commission notes that the trial judge had an opportunity to reconsider the matter of sources of information when the second ex parte application was lodged on 25 April 1994 in connection with the witness statement given by C. after his guilty plea.  The Commission

is satisfied that the trial judge, who read the unedited version of the

witness statement and knew the applicant's position in the case, considered the importance of the relevant material to the issues of interest to the defence and performed the necessary balancing exercise, examining the materials.  Taking all the facts into account, he properly considered whether the importance of the material to the defence outweighed the public interest in withholding the material.  The Commission further considers that even though the applicant was not aware of the category of the part of the relevant material which was also withheld, the trial judge did know it and having further known the nature of the risk of damage sought in the public interest to be prevented by withholding the material, he was able to assess how serious was that risk and how serious was any potential damage.  Moreover, the defence was notified of the summary of the witness statement and could prepare its case on this basis.  The Commission adds that the trial judge, performing his duty to monitor the position as the trial progressed, had the possibility to consider disclosure of the withheld material as issues emerged during the trial which might have affected the balance.

86. The Commission further observes that in the course of the trial and after having heard both the ex parte applications, the trial judge revealed to the jury the existence of "at least one informer" and invited them to examine this fact with care and circumspection (para. 29).  The jury had, therefore, an opportunity to consider the case also on this basis and to evaluate the role of that informer vis-à-vis the applicant, taking into account his submission that he had been set up by D.W. who could play, in fact, the role of this informer.

87. The Commission finally notes that it does not appear from the judgment on appeal whether the Court of Appeal did view the material in question.  However, the Commission does not see any reason to criticise the conclusion of the Court of Appeal which, examining the applicant's grounds of appeal and the procedure taken by the trial judge in this matter, endorsed the latter's rulings of non-disclosure. In consequence, the Commission considers that the handicaps under which the defence laboured in not having access to relevant material which was withheld under the ex parte application were sufficiently counterbalanced by the procedure followed by the judicial authorities (see above-mentioned Doorson v. the Netherlands judgment of 26 March 1996, Reports 1996-II, pp. 470-471, paras. 69-72).

88. In the light of all the circumstances, the Commission is of the opinion that the criminal proceedings brought against the applicant taken as a whole can be considered to have been fair.  The Commission adds that the fact that the rulings given by the trial judge did not follow and were not pronounced in a public hearing is a necessary consequence of the preceding considerations and cannot be said to infringe on the publicity of the trial as a whole.  Moreover, this procedure could be covered by certain exceptions concerning the publicity of a hearing provided for in Article 6 para. 1 of the Convention.  In any event, the Commission notes that the judgment in the applicant's case itself as distinct from the procedural rulings of the trial judge was made in public.

CONCLUSION

89. The Commission concludes, by 18 votes to 12, that in the present case there has been no violation of Article 6 para. 1 of the Convention in conjunction with Article 6 paras. 3(b) and 3(d) of the Convention.

D. As regards Article 6 para. 2 of the Convention

90. Article 6 para. 2 of the Convention reads as follows:

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

91. The applicant claims that the police use of the informant's statement was contrary to Article 6 para. 2 of the Convention

93. The Commission recalls that it has found no violation of Article 6 para. 1 in conjunction with Article 3(b) and 3(d) of the Convention and notes that the rights of defence were exercised in a sufficiently adversarial procedure.  The Commission considers in particular that the use of informer information by the police or in the course of a trial does not amount in substance to a determination of the accused's guilt without his having previously been proved guilty in accordance with the domestic law.

CONCLUSION

94. The Commission concludes, unanimously, that in the present case there has been no violation of Article 6 para. 2 of the Convention.

E. Recapitulation

95. The Commission concludes, by 18 votes to 12, that there has been  no violation of Article 6 para. 1 of the Convention in conjunction with Article 6 paras. 3(b) and 3(d) of the Convention (see above, para. 89).

96. The Commission concludes, unanimously, that there has been no violation of Article 6 para. 2 of the Convention (see above, para. 94).

        M. de SALVIA                        S. TRECHSEL

         Secretary                           President

      to the Commission                   of the Commission

(Or. English)

DISSENTING OPINION OF MM J.-C. GEUS, M.P. PELLONPÄÄ, E. BUSUTTIL,

A. WEITZEL, J.-C. SOYER, H. DANELIUS, Mrs J. LIDDY, MM B. MARXER, I. CABRAL BARRETO, G. RESS, A. PERENIČ and Mrs M. HION

In the present circumstances, we do not see any reason not to assume that the prosecution followed the procedure laid down in the relevant domestic case-law, namely in R. v. Ward and R. v. Davis, Johnson and Rowe: it asked the trial judge to approve non-disclosure of the material on the grounds of public interest immunity and he sanctioned the withholding of the material.  A question arises, however, whether the trial judge, having been only orally informed of the contents of the withheld material, could assess the facts which the material revealed and, therefore, properly weigh the competing interests of public interest immunity and fairness to the defence claiming disclosure.

We consider that in order to satisfy the requirements of a fair trial and the rights of the accused, the trial judge must be sure that, before ruling on non-disclosure, he has sufficient knowledge of the contents of the material in order to perform the necessary balancing exercise, and that non-disclosure of the material would not result in miscarriage of justice.  In the present case, where the source of information and the existence of a potential informer was involved, the trial judge knew the contents of the withheld material and was aware of the nature of the applicant's case, including how important was any information of the potential informer to him, and, therefore, could be in principle in a position to conduct the balancing exercise.  However, he did not safeguard to the fullest extent the interests of the accused by examining the material personally.  Moreover, in a situation where he heard submissions in one direction by the prosecution which were not balanced by inter partes submissions by a specially appointed counsel on behalf of the defence who acted only in the particular procedural issue (see mutatis mutandis , Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1869, para. 144), the trial judge's role cannot be regarded as constituting a sufficient safeguard.

When the second ex parte application was lodged (in connection with the witness statement of C.) the trial judge, having read the unedited version of the witness statement and having known the applicant's position in the case, considered the importance of the relevant material to the issues of interest to the defence and performed the necessary balancing exercise.  Furthermore, he knew the category of the part of the withheld material, which the defence did not know.  Having also known the nature of the risk of damage sought in the public interest to be prevented by withholding the material, he was able to assess how serious was that risk and how serious was any potential damage.  In addition, performing his duty to monitor the position as the trial progressed, the trial judge had the possibility to consider disclosure of the withheld material as issues emerged during the trial which might have affected the balance.  However, we consider that these positive circumstances cannot bridge over the fact that the trial judge was again in a situation where he heard submissions in one direction by the prosecution which were not balanced by inter partes submissions by a specially appointed counsel on behalf of the defence acting in this particular issue.

Furthermore, we are not convinced that this situation was cured by the Court of Appeal which, upon the applicant's grounds of appeal, merely approved the procedure applied by the trial judge in the ex parte hearings, without mentioning whether it did view or examine the material in question.

In the light of all these factors, we consider that the handicaps under which the defence laboured in neither having access to the relevant material nor, by way of alternative, to an inter partes procedure whereby the trial judge's rulings on disclosure could be based on submissions respecting the defence interest as well as that of the prosecution, were insufficiently counterbalanced by the procedure followed by the judicial authorities (see, mutatis mutandis , Eur. Court HR, Doorson v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, pp. 470-471, paras. 69-72).

In our view, the present case falls to be distinguished from that of Edwards v. the United Kingdom: in the latter case the defence had received most of the missing information at the appeal stage.  The defence failed to apply to the Court of Appeal for production of the remaining documents known to it to exist and no claim for public interest immunity was ever adjudicated upon in these proceedings (see Eur. Court HR, Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, p. 35, paras. 36, 38).

In the light of all the circumstances, we are of the opinion that, on balance, the criminal proceedings brought against the applicant taken as a whole cannot be considered to have been fair.  With regard to the facts that the procedural motions could be heard in camera and the judge's rulings thereon were not delivered in public, we consider that these were a necessary consequence of the preceding considerations and, having regard to the exemptions provided for under Article 6 para. 1 of the Convention, cannot be said to infringe on the publicity of the trial as a whole.  Nonetheless, the latter, in particular, was an aggravating factor in the context of fairness.  We conclude that 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.