AS TO THE ADMISSIBILITY OF

                      Application No. 29777/96

                      by Barry FITT

                      against the United Kingdom

     The European Commission of Human Rights sitting in private on

15 September 1997, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

           Mrs.  M. HION

           MM.   R. NICOLINI

                 A. ARABADJIEV

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

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 30 November 1995

by Barry FITT against the United Kingdom and registered on

10 January 1996 under file No. 29777/96;

     Having regard to :

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

     the Commission;

-    the observations submitted by the respondent Government on

     14 February 1997 and the observations in reply submitted by the

     applicant on 5 April 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen born in 1950 and currently

detained in HM Prison Whitemoor.  Before the Commission, he is

represented by Mr. Robin Tilbrook, a solicitor practising in Essex.

A.   Particular circumstances of the case

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

summarised 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 Sandgate 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.

     On 26 August 1993, the date of the robbery, the police were

keeping the area and conspirators under observation.

     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.

     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.

     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.

     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.

     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.

     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.

     In the course of proceedings 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.

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 have not ordered disclosure.  I have not

     found it necessary or right to adjourn proceedings, ex

     parte, in order for them to be inter partes ..."

     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.

     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

which was the subject of the ex parte application:

     "... the application was two-fold. One part ... 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."

     The judge ruled:

     "... [prosecution counsel] has asked me to examine matters

     ex parte and I am satisfied that that was a correct

     application ... 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 the 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."

     On 16 May 1994 the Central Criminal Court convicted the applicant

of conspiracy to rob, possession of a firearm and possession of a

prohibited weapon.  On 20 May 1994 the applicant was sentenced to 11

years' imprisonment.

     Following the conviction, the applicant's counsel drafted two

grounds of appeal against the conviction and sentence in which the

first one concerned the ruling 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 their 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."

     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 and practice

     In December 1981 the Attorney-General issued Guidelines, which

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

duty to disclose to the defence certain evidence of potential

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

Guidelines attempted to codify the rules of disclosure and to define

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

paragraph 1, "unused material" was defined as:

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

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

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

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

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

     statements or composite statement included in the committal

     bundles."

     Under paragraph 2, any item falling within this definition was

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

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

     The duty to disclose was subject to a discretionary power for

prosecuting counsel to withhold relevant evidence if it fell within one

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

(6(iv)) was "sensitive" material which was defined as follows:

     "... (a) it deals with matters of national security; or it is by,

     or discloses the identity of, a member of the Security Services

     who would be of no further use to those services once his

     identity became known; (b) it is by, or discloses the identity

     of an informant and there are reasons for fearing that the

     disclosure of his identity would put him or his family in danger;

     (c) it is by, or discloses the identity of a witness who might

     be in danger of assault or intimidation if his identity became

     known; (d) it contains details which, if they became known, might

     facilitate the commission of other offences or alert someone not

     in custody that he is a suspect; or it discloses some unusual

     form of surveillance or method of detecting crime; (e) it is

     supplied only on condition that the contents will not be

     disclosed, at least until a subpoena has been served upon the

     supplier - e.g. a bank official; (f) it relates to other offences

     by, or serious allegations against, someone who is not an

     accused, or discloses previous convictions or other matters

     prejudicial to him; (g) it contains details of private delicacy

     to the maker and/or might create risk of domestic strife."

     According to paragraph 8, "in deciding whether or not statements

containing sensitive material should be disclosed, a balance should be

struck between the degree of sensitivity and the extent to which the

information might assist the defence".  The decision as to whether or

not the balance in a particular case required disclosure of sensitive

material was one for the prosecution.

     Since 1992, the Guidelines have been superseded by the common

law, notably by the decisions of the Court of Appeal in R. v. Ward

([1993] 1 WLR 619); R. v. Trevor Douglas K. ((1993) 97 Cr.App.R. 342);

R. v. Davis, Johnson and Rowe ([1993] 1 WLR 613); R. v. Preston ([1993]

3 WLR 981); R. v. Keane ([1994] 1 WLR 747); R. v. Winston Brown ((1995)

1 Cr.App.R. 191) and R. v. Turner ([1995] 1 WLR 264).

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

most detailed attention to the question of what duties the prosecution

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

down the proper procedure to be followed when the prosecution claims

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

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

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

question whether the prosecution was obliged to give notice to the

defence where it wished to withhold documents on grounds of public

interest immunity, the Court of Appeal stated:

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

     the issue of public interest immunity in this case they committed

     a significant number of errors which affected the fairness of the

     proceedings. Policy considerations therefore powerfully reinforce

     the view that it would be wrong to allow the prosecution to

     withhold material documents without giving any notice of that

     fact to the defence.  If, in a wholly exceptional case, the

     prosecution are not prepared to have the issue of public interest

     immunity determined by a court, the result must inevitably be

     that the prosecution will have to be abandoned."

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

of Appeal held that in performing the balancing exercise referred to

in Ward, the court must view the material itself:

     "In our judgment the exclusion of the evidence without an

     opportunity of testing its relevance and importance amounted to

     a material irregularity.  When public interest immunity is

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

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

     exercise.  The exercise can only be performed by the judge

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

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

     position to balance the competing interests of public interest

     immunity and fairness to the party claiming disclosure."

     The Court of Appeal also established that where an accused

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

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

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

the evidence in issue.  Subsequent decisions have however authorised

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

balancing exercise without the defence being on notice of the general

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

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

     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.

     Lord Taylor CJ 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.

     The Court of Appeal justified its position on the ground that the

only way of avoiding ex parte applications was to say that the

prosecution must choose between following the inter partes procedure

or declining to prosecute and in rare but serious cases the prosecution

would then choose not to prosecute when it was clearly in the public

interest to do so.  The Royal Commission on Criminal Justice concluded

that this decision represented a satisfactory balance between the

public interest in protecting sensitive information and the interests

of the defence.

     The Court of Appeal also noted that the change of procedure had

been to give the court an important role in monitoring the views of the

prosecution as to the proper balance to be struck.  Even in cases in

which the sensitivity of the information required an ex parte hearing,

the defence had "as much protection as can be given without pre-empting

the issue".  The Court held:

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

     voluntarily and without more, with the requirements in para. 2

     of the Attorney-General's guidelines. (2) If the prosecution wish

     to rely on public interest immunity or sensitivity to justify

     non-disclosure, then, whenever possible, which will be in most

     cases, (a),(b) and (c) of the [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."

     Finally, the Court of Appeal noted that it was for the court to

continue to monitor the position as the trial progressed.  Issues might

emerge during trial which affected the balance and required disclosure

"in the interests of securing fairness to the defendant".  For this

reason it was important for the same judge or constitution of the court

which hears the application also to conduct the trial.

     In November 1993 the House of Lords had decided R. v. Preston

which concerned the right of the defence to have access to material

obtained by a telephone tap authorised under the Interception of

Communications Act 1985 ["the 1985 Act"] (see also No. 24193/94, Dec.

2.7.97).

     Section 2 empowers the Secretary of State to authorise the

interception of, inter alia, telephone calls.  The purposes for which

the power may be exercised are circumscribed by the statute and are

confined by Section 2(2)(b) to the purpose of preventing or detecting

serious crime. Section 6 contains provisions for limiting dissemination

of intercepted material and for its destruction as soon as its

retention is no longer necessary.  Lastly, Section 9(1)(b) provides,

inter alia, that no evidence shall be adduced, and no question in

cross-examination shall be asked, by any party in any proceedings

before a court or tribunal which tends to suggest that a warrant has

been or is to be issued authorising interception of communication.

     The House of Lords considered these provisions in R. v. Preston.

It was held that the purpose of 'preventing' serious crime in Section

2(2)(b) does not extend to the prosecution of such crime.  It was not

the purpose of this Act that intercepted material should be used in

evidence.  Indeed, the Secretary of State was under a duty to destroy

the intercepted material as soon as the object for which it was

collected was achieved, which will usually happen long before a

criminal trial has taken place.  Accordingly, the House of Lords

regarded the 1985 Act as making an exception to the general rule that

the prosecution must disclose all unused material to the defence.  Lord

Mustill made observations on the duties of the prosecution in this

regard.  He reiterated that disclosure by the prosecution turns not on

admissibility but on materiality.  The prosecution is therefore duty

bound to disclose material even if it would be inadmissible.  Further,

material must not be withheld from prosecuting counsel on the ground

that it is inadmissible in evidence, for he could not perform his

broader duties to see justice done without knowing all the material

that there is to know.

     In March 1994, the Court of Appeal gave judgment in R. v. Keane

which concerned a non-disclosure of the details of an informant by the

prosecution to the defence.  This judgment highlighted two points.  The

first concerns a matter of principle.  The Court of Appeal held that

in every case in which the prosecution objects to the disclosure of

relevant material on grounds of public interest immunity, the judge

must balance the public interest in non-disclosure against the

importance to the defence of the materials in question. Moreover, if

the judge concludes that the material in question might prove the

defendant's innocence or avoid miscarriage of justice, he is duty bound

to order disclosure.  The second point concerns the procedure to be

followed  in determining  a claim for immunity.  The Court decided

thata judge may not sanction the withholding of evidence in a criminal

case without inspecting the evidence in private and satisfying himself

that its suppression would not result in miscarriage of justice.

     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 common law duties

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

     defendant, they must be pro tanto unlawful ...

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

     law of disclosure in a number of critically important respects.

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

     not prosecuting counsel, to decide on disputed questions as to

     disclosable materials, and on any asserted legal ground to

     withhold production of relevant material ... For present purposes

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

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

     disclosure ... Secondly, the guidelines are not an exhaustive

     statement of the Crown's common law duty of disclosure: R. v.

     Ward at 25 and 681D.  To that extent too the Guidelines are out

     of date. Thirdly, the Guidelines were drafted before major

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

     paragraph 6 the Guidelines are cast in the form of a prosecutor's

     discretion ...  Much of what is listed as 'sensitive material'

     is no doubt covered by public interest immunity. But not

     everything so listed is covered by public interest immunity ..."

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

Turner where it returned to the balancing exercise.  As in R. v. Keane,

the case concerned the increasingly common situation where the

prosecution did not wish to disclose the details of an informant but

the defence claimed that these details were essential to their case.

     The day before the trial, the prosecution applied ex parte to the

judge for a ruling that it was not under any duty to disclose the

details of the informant who had alerted the police, and the judge

ruled in their favour.  On appeal, Lord Taylor endorsed the balancing

test which required the judge to have regard, on the one hand, to the

weight of the public interest in non-disclosure against the importance,

on the other hand, of the documents to the issues of interest to the

defence, present or potential, so far as they had been disclosed to him

or he could foresee them.  But in view of the tendency for defendants

to seek disclosure of informants' names and roles, Lord Taylor alerted

judges to the need to scrutinise applications for disclosure of details

about informants with very great care and continued:

     "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."

     The Court of Appeal then concluded:

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

     satisfied that the information concerning the informant showed

     a participation in the events concerning this crime which,

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

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

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

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

     therefore conclude that if one applies the principle which has

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

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

     details concerning this informer were so important to the issues

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

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

     of disclosure."

COMPLAINTS

     The applicant submits that his trial at the Central Criminal

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

the following respects:

1.   The police use of informant's statement was contrary to Article 6

para. 2.

2.   The non-disclosure to the defence of material relating to a

participating informant used by the police breached the applicant's

right to a fair trial in general, and, in particular, his right to

adequate facilities for the preparation of his defence guaranteed by

Article 6 para. 3(b) and his right to examine witnesses on his behalf

under the same conditions as witnesses against him under Article 6

para. 3(d) of the Convention.

3.   The judge's approval in the ex parte procedure to withhold the

co-defendant's witness statement and to give to the defence a 'Summary'

instead breached again the applicant's right to a fair trial.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 30 November 1995 and registered

on 10 January 1996.

     On 27 November 1996 the Commission decided to communicate the

application.

     The Government's written 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.

THE LAW

     The applicant complains about an unfair trial and inability to

prepare his defence and to effectively cross-examine prosecution

witnesses.  The ex parte procedures, in which courts approved non-

disclosures of relevant evidence, namely a police informant and witness

statement, were held, on the grounds of public interest, in the absence

of the applicant and his counsel and without affording them the

opportunity to make informed representation.  Thus, the applicant was

placed at a substantial disadvantage in the conduct of the proceedings

and thereby the principle of equality of arms was affected.  He invokes

Article 6 (Art. 6) of the Convention, the relevant parts of which read

as follows:

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

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

     independent and impartial tribunal established by law. ...

     2.    Everyone charged with a criminal offence shall be presumed

     innocent until proved guilty according to law.

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

     ...

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

     his defence;

     ...

     d.    to examine or have examined witnesses against him and

           to obtain the attendance and examination of witnesses on

           his behalf under the same conditions as witnesses against

           him; ..."

     The Government first submit that neither the general principle

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

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

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

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

Moreover, previous cases decided by the Convention organs do not

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

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

confidential or sensitive material in criminal proceedings.

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

are categories of material which the public interest requires either

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

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

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

     They claim that the concept of relevant material covers material

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

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

prosecution. In criminal cases the principle of public interest

immunity might operate to prevent use by the prosecution of such

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

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

     The Government note that if the disclosure of relevant material

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

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

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

damage which would follow disclosure would be wholly irrelevant to the

disclosure requirements in criminal cases - no matter how obvious or

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

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

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

to deciding whether it passed the low threshold of relevance.

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

the important public interest in ensuring that, where there is

sufficient admissible evidence to support the prosecution of an

individual with at least a realistic prospect of a conviction being

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

interest is directly relevant here because the alternative to

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

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

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

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

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

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

this and accordingly will have every incentive to seek disclosure of

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

prosecuted, whatever the strength of the evidence against him.

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

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

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

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

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

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

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

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

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

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

threshold of relevance, was of relatively minor importance to the

accused.  If 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.

     The Government further submit that the domestic courts have been

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

fairness of proceedings. Thus, the relevant principles applicable under

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

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

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

defence case. That balancing exercise is weighted in favour of

disclosing material in recognition of the importance of achieving the

fullest possible disclosure of relevant material.  The Government claim

that these principles are sufficient to ensure and safeguard the

fairness of proceedings.

     The Government recall that 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 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

decisionreached 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.

     As to the question whether the procedure for determining where

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

the Convention, the Government submit that the Court of Appeal

considered 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 possible, the accused and

his lawyers should be given the maximum amount of information and the

maximum opportunity to make submissions to the court.  The Court of

Appeal recognised however that any hearing before, or decision of, the

court would be rendered meaningless if the nature of the procedure

prior to such decision itself had the effect of revealing the

information.

     The Government also submit that the procedure outlined by the

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

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

but application made ex parte and without disclosing the category of

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

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

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

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

empting the outcome of the application.

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

information will in effect reveal that the Crown contends should not

in the public interest be revealed is itself one for the court.  If it

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

greater disclosure of information will be used.

     For the Government, the fundamental problem with the criticisms

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

he ignores the factual basis which must exist before those procedures

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

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

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

application.  The majority of the applicant's criticisms go to the

limited involvement or absence of involvement of the accused and his

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

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

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

pre-empting the outcome.  A further inevitable and necessary

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

cannot be given.

     The Government contend that none of the Convention organs' cases

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

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

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

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

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

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

rendered any subsequent decision on the issue before the court

meaningless.

     The Government further submit that there has been no violation

of the rights guaranteed in Article 6 para. 1 read with para. 3(d)

(Art. 6-1, 6-3-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.

     The Government conclude that Article 6 paras. 1 and 3(b) and 3(d)

(Art. 6-1, 6-3-b, 6-3-d) of the Convention were complied with in the

present case.

     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.

     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.

     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.

     The Commission considers, in the light of the parties'

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

the Convention, the determination of which should depend on an

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

Commission concludes, therefore, that the application is not manifestly

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

the Convention.  No other grounds for declaring it inadmissible have

been established.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission