FIRST SECTION

DECISION

Application no . 35752/13 Manochehr BAHMANZADEH against the United Kingdom

The European Court of Human Rights ( First Section ), sitting on 5 January 2016 as a Chamber composed of:

Mirjana Lazarova Trajkovska , President, Kristina Pardalos , Linos-Alexandre Sicilianos , Paul Mahoney , Aleš Pejchal , Robert Spano , Armen Harutyunyan , judges, and Andr é Wampach , Deputy Section Registrar ,

Having regard to the above application lodged on 24 May 2013 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Manochehr Bahmanzadeh , is an Iranian national, who was born in 1956 and lives in London. He was represented before the Court by Ms J. Hickman of Hickman & Rose , a firm of solicitors based in London . The respondent Government were represented by their Agent, Ms A. McLeod, of the Foreign and Commonwealth Office.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties , may be summarised as follows.

1. The police investigation

3. The applicant held the lease of premises housing a nightclub called the Dance Academy and was co-manager of the club. In December 2005 he was made aware of police concerns about high levels of drug usage at the club. He met with the licensing officer in December 2005 and in January and February 2006 and offered assurances that he took the problem very seriously and would introduce a “zero tolerance” approach to drugs on the premises.

4. In January 2006 an undercover police operation commenced into drug use at the Dance Academy. Over the course of the operation, twenty-four undercover police officers attended the club and a number of them purchased ecstasy there from several drug dealers. A police raid on the nightclub took place on 7 May 2006. Around 450 ecstasy pills were recovered.

5. On 6 August 2006 the applicant and his co-manager were charged with permitting premises to be used for the supply of ecstasy between 1 December 2005 and 8 May 2006.

2. The first set of criminal proceedings

(a) Proceedings before the Crown Court

6. The applicant ’ s trial commenced at the Crown Court on 19 May 2008.

7. The prosecution case was that the applicant had failed to take reasonable steps to address the drugs problem in the club. They relied on evidence covering the indictment period, namely:

- t he detail and nature of the contact with police concerning the drugs problem by way of meetings and letters ;

- t he prevalence of drug dealing witnessed by members of staff and by the undercover officers, who successfully purchased drugs ;

- t he volume of drugs fo und during the search in May 2006;

- oral evidence from f ormer members of staff that in the period following January 2006 the management could have done more to address the drugs problem to which they had been alerted in warning sta ff as to their responsibilities;

- d ata recording the number of am bulances attending the premises; and

- oral evidence to the effect that the management of the club had informed door staff that they should cut back on the number of searches.

8. The oral evidence from the undercover police officers was given anonymously and they were screened from the public, the defendants and defence counsel.

9. The club ’ s former head of security, G.G., who had worked at the club in 2004, gave evidence of the applicant ’ s tolerance of drug dealing and his obstructive approach when he, G.G., had tried to eject and report on those caught dealing drugs at the club. He also told the jury that he was a former Royal Marine. G.G. was cross-examined by the applicant ’ s trial counsel. It was put to him that he had been sacked by the applicant for stealing money and drugs from a drug dealer, rather than arresting him. G.G. denied this. It was further put to him that his dismissal had also been informed by the fact that he had been present at a drugs murder nearby some weeks before. G.G. replied that he had merely been a witness to the murder and was assisting police in that capacity.

10. The applicant gave evidence in his own defence. He said that he was strongly opposed to drug use and supply. He and his staff had sought to enforce a policy of zero tolerance in relation to drug supply. He had responded positively to police warnings from December 2005 by replacing his CCTV system and changing his security company. It was impossible to keep drugs out of the club, but he had taken all reasonable steps to prevent the supply of drugs.

11. In his summing up to the jury, the trial judge reminded the jury that G.G. had worked at the Dance Academy in late 2004 for approximately six months and so was not there during the period covered by the indictment.

12. On 2 July 2008 the applicant was convicted by a jury and on 21 July 2008 he was sentenced to nine years ’ imprisonment. In his sentencing remarks, the judge commented that there had been “large-scale, blatant supply of and use of ecstasy” in the club, of which the applicant had been well aware and to which, at the very least, he had turned a blind eye in order to maximise the profits and reputation of the club. He referred, inter alia , to the evidence of the undercover police officers, of G.G., of the club ’ s head doorman in 2005, of other doormen at the club and of a customer.

(b) Proceedings before the Court of Appeal

13. The applicant appealed against his conviction and sentence, challenging the special measures permitted at trial to screen the undercover police officers when they had given evidence. The appeal was dismissed by the Court of Appeal on 17 December 2008. The court said it had no doubt that there was ample evidence, outside the evidence emanating from the undercover police officers, from which it would have been open to the jury to conclude that there was substantial dealing in drugs at the club and that no adequate steps had been taken by management to prevent or discourage the sale of drugs.

3. The report of the Criminal Cases Review Commission

14. On 25 January 2012 the Criminal Cases Review Commission (“CCRC”) referred the applicant ’ s conviction and sentence to the Court of Appeal. The statement of reasons set out a single reason for the referral, namely information giving rise to the “real possibility” – this being the criterion stated in the relevant legislation (see paragraph 31 below) – that the Court of Appeal would find the trial evidence of “an important prosecution witness”, namely G.G., no longer capable of belief.

15. The report detailed new evidence not disclosed at trial that G.G. had been working as a doorman in another club in February 2004 and had offered to sell drugs to off-duty police officers. He had told the officers that he was earning five thousand pounds a week from selling drugs. The CCRC considered that this would “severely damage” the credibility of the witness. It was also revealed that G.G. had lied on oath by claiming that he was a former Royal Marine. The statement continued:

“23. In the course of its enquiries the Commission has located a further record which appears to be of relevance regarding [G.G.]. The record, which is sensitive, is considered further in a Confidential Annex ( ‘ Annex C ’ ) that will be provided to the Court of Appeal and the Crown Prosecution Service. For reasons associated with the principle of Public Interest Immunity, the Confidential Annex will not be provided to Mr Bahmanzadeh or his representatives. Whilst this course of action is contrary to the general practice of providing an applicant with full reasons for any decision made, the Commission considers that it is inappropriate in this case to pre-empt any decisions on disclosure that may be made by the Crown Prosecution Service or the Court of Appeal.”

16. By letter dated 13 March 2012 the CCRC informed the applicant that further sensitive information had been disclosed to the Court of Appeal and to the prosecution. Again, f or Public Interest Immunity (“PII”) reasons, a decision had been taken not to disclose the information to the applicant or his representatives . He was invited to make an application to the court or the prosecution for disclosure.

4. The proceedings before the Court of Appeal

(a) Preliminary issue concerning disclosure

17 . On 16 April 2012 the applicant submitted provisional grounds of appeal to the Court of Appeal. His first ground claimed that his conviction was unsafe “by reason of fresh evidence concerning [G.G.]”. The grounds referred to the need for a “detailed disclosure exercise” in the light of the CCRC report including, in particular, disclosure of Annex C to that report. Appended to the grounds was a schedule of disclosure requests. The defence invited the court to conduct a thorough PII exercise and order disclosure of the file and such further material as might be relevant. He also invited the court “to review the PII exercise conducted by the trial judge between 22 nd and 29 th February 2008”. Finally, the defence asked that the prosecution disclose all material concerning G.G. ’ s role in the drugs murder in respect of which he had been cross-examined at trial and invited the court to review any relevant PII material.

18. On 10 July, 14 August and 15 August 2012 further disclosure took place. A police statement of July 2012 confirmed that in February 2004 G.G. had claimed to off-duty police officers that he made five thousand pounds a month selling drugs. A letter of July 2012 contained antecedents for G.G. Material related to G.G. ’ s arrest and questioning in September 2004 about the drugs murder was also disclosed. A witness statement by the police officer who had given evidence at trial confirmed that he had “commissioned a review of all material held by the police” concerning G.G. and it had not uncovered anything which assisted the defence or undermined the prosecution.

19. Meanwhile, on 14 August 2012, the prosecution indicated that it intended to make a PII application and make ex parte submissions. Part of the PII application, it said, would relate to Annex C to the CCRC ’ s statement of reasons. The prosecution invited the applicant to provide further particulars of the case to inform the court and the prosecution in their assessment of the potential value to the defence case of the retained material.

20 . On 29 October 2012, in response to the prosecution invitation, the applicant submitted a note on PII and disclosure for consideration at the PII hearing. He contended that much of the material now disclosed by the prosecution should unquestionably have been disclosed at trial, since it would have undermined the prosecution cases and assisted the defence. He argued in particular that Annex C should plainly be disclosed, since it was prima facie capable of assisting the defence or undermining the prosecution given that it had led the CCRC to refer the case back to the Court of Appeal. He also requested permission to address the court prior to the PII hearing and invited the court to consider whether the interests of justice required the appointment of special counsel to represent the applicant ’ s interests at the PII hearing. He advanced two principal arguments: first, that G.G. had provided crucial evidence against him and that the fresh evidence – and any material not yet disclosed on account of PII – would have undermined his credibility; and second, that the judge ’ s directions to the jury had been inadequate. The note explained:

“There may be no breach of Article 6(1) in circumstances where material not in the possession of the prosecution at trial was first considered by the Court of Appeal in an ex parte hearing. It is important that the Court be able to consider the impact of the new material of the safety of the Applicant ’ s conviction with the assistance of detailed argument from the Appellant ’ s counsel. Article 6 will not be violated if the undisclosed material is found to add nothing of significance to what has been disclosed at trial ... ”

21. On 13 November 2012 the ex parte PII hearing took place in the Court of Appeal to consider whether material referred to by the CCRC should be disclosed to the defence. Special counsel was not appointed to represent the applicant ’ s interests at the hearing. The applicant was subsequently informed that, save for very limited disclosure, no further disclosure had been ordered. The court issued a direction requiring the applicant ’ s representatives to confirm that “complete and unambiguous disclosure” by the prosecution had taken place or, if it had not, to thus inform the court.

22. On 18 November 2012, in a note on disclosure, the applicant ’ s representatives informed the court that they were not able to provide the confirmation sought. They expressed concern that a review of material held by the police had been conducted by unknown persons on the instructions of an officer who had given evidence against the applicant at trial. They commented on the prosecution ’ s failure to supply any schedules of unused material or to provide any clear indication of how the process of disclosure had been conducted, explaining that it left them with “a deep sense of unease as to the adequacy and efficiency of the process ...”. They concluded that it was, in their view, for the prosecution to confirm that their disclosure obligations had been met.

23. In response, on 20 November 2012 the prosecution informed the applicant that the “vast preponderance” of the material in Annex C had been disclosed in the context of the further disclosure which had taken place in July and August 2012. They confirmed that prosecuting counsel had personally reviewed the material placed before the Court of Appeal at the PII hearing. They concluded that they were satisfied that they had complied with their disclosure obligations.

24. Further disclosure took place on 22 November 2012.

(b) The appeal hearing

25. In his skeleton argument dated 23 November 2012, the applicant set out detailed argument concerning his first ground of appeal. He introduced his submissions as follows:

“The issue is whether the fresh evidence, if available at trial, might reasonably have affected the jury ’ s decision to convict the Appellant ... It plainly would have.”

26. He complained that his inability properly to challenge G.G. and his account at trial because of the lack of disclosure meant that there was a real risk that the applicant ’ s credibility had been unfairly damaged at trial. Lack of disclosure in relation to G.G. had, he claimed, “potentially devastating consequences”.

27. On 29 November 2012 the appeal against conviction was dismissed. Regarding the PII application, the court noted that it had upheld the prosecution ’ s PII claim on 13 November 2012, being of the view that the material sought to be withheld would not assist the applicant and that n othing h ad happened to suggest a different view. It summarised his grounds of appeal as follows:

“( i ) [G.G.] was an important prosecution witness against the appellant at trial. Had the fresh evidence relating to him been available, it would have undermined his credibility and assisted the defence.

(ii) Inadequate directions and insufficient guid ance were given to the jury ... ”

28. Concerning the impact of the fresh evidence on the evidence given by G.G. at trial, the court noted that the indictment period began in December 2005 and that G.G. had worked as head doorman in 2004. It remarked that the jury had been reminded by the trial judge during his summing-up that G.G. was not at the club during the period covered by the indictment. The Court observed that the critical question for the jury was whether they were sure that from December 2005, the applicant had encouraged, allowed or failed to take reasonable steps to prevent drug use at t he premises. O n this question , it said, G.G. could give no direct evidence what ever. It referred to the applicant ’ s argument that with the disclosed material the whole balance of the case changed, since he would have been in a much stronger position to undermine the prosecution case and advance his own. However, it considered that, while the judge had clearly paid attention to what G.G. said, the latter ’ s evidence was “ by no means ” at the heart of the case. It underlined again that G.G. ’ s evidence related to a period fifteen months or more before the indictment period and that n o amount of cross-examination of G.G. to expose him as a drug dealer was capable of offering any refutation of the objective evidence of the test purchase officers and other evidence of what was happening in the club at the time . The court concluded:

“37. ... The real issue here was what the appellant did or did not do after the warnings given to him at the beginning of the indictment period. As regards that, the evidence of open and blatant supplies of ecstasy at the club, effectively under the noses of the staff, seems to us entirely compelling. We are wholly unpersuaded by the submission urged upon us yesterday that the [undercover officers ’ ] evidence did not plainly implicate the appellant. His absence over periods of time when drugs were being openly and blatantly supplied has to be viewed against what the Crown was required to prove, namely that the appellant failed to take reasonable steps to prevent drug use at the premises. He knew full well that drugs were being frequently supplied on the premises, to put it at its lowest. ”

29. The appeal against sentence was successful on the basis that new sentencing guidelines had entered into force since the applicant ’ s first appeal and ought to be taken into account. The sentence was reduced to seven and a half years. The court explicitly stated that the fresh evidence in respect of G.G. played no part in the reduction of sentence.

5. Advice on appeal to the Supreme Court

30. The applicant was informed by senior counsel that the appeal turned on disclosure and the determination that the conviction was safe was a factual determination. No matter of law of general public importance, amenable to certification for a further appeal to the Supreme Court, arose. Counsel therefore concluded that no further avenue of appeal existed.

B. Relevant domestic law and practice

1. Referral to the Court of Appeal by the CCRC

31 . Where a person has been convicted on indictment, section 9(1) of the Criminal Appeal Act 1995 gives the CCRC the power to refer at any time the conviction to the Court of Appeal. By section 9(2), any such reference is to be treated for all purposes as an appeal by the person concerned against conviction. Section 13 sets the conditions for making references. It provides:

“(1) A reference of a conviction ... shall not be made ... unless–

(a) the Commission consider that there is a real possibility that the conviction ... would not be upheld were the reference to be made,

(b) the Commission so consider–

( i ) in the case of a conviction ... because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against ... , and

(c) an appeal against the conviction ... has been determined or leave to appeal against it has been refused.”

32. Section 17 of the Act allows the CCRC to require a body which has possession or control of material which may assist it in the exercise of it functions to produce the material or allow the CCRC access to it.

2. Duty to disclose

33. Under the Criminal Procedure and Investigations Act (“CIPA”) 1996 , the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor ’ s view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused ’ s defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court.

3. Special Counsel

34. Following the judgments of th is Court i n Chahal v. the United Kingdom , 15 November 1996, Reports of Judgments and Decisions 1996 ‑ V , and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom , 10 July 1998, Reports 1998 ‑ IV , the United Kingdom introduced legislation making prov ision for the appointment of a special counsel in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his legal representatives, the Attorney ‑ General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. The relevant rules giving effect to the 1997 and 1998 Acts are set out in the Court ’ s judgment in Jasper v. the United Kingdom ([GC], no. 27052/95, § 36, 16 February 2000).

35. In R. v. H. ; R. v. C. [2004] UKHL 3, decided on 5 February 2004, the Judicial Committee of the House of Lords held, inter alia :

“The years since the ... enactment of the CIPA have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who cannot (either personally or through his legal representative), for security reasons, be fully informed of all the material relied on against him. The procedure is to appoint a person, usually called a ‘ special advocate ’ , who may not disclose to the subject of the proceedings the secret material disclosed to him, and is not in the ordinary sense professionally responsible to that party but who, subject to those constraints, is charged to represent that party ’ s interests ...

There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII matters, a defendant in an ordinary criminal trial ... But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant ’ s right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. ...”

4. Appeals in criminal cases

36 . Section 2(1) of the Criminal Appeal Act 1968 provides that the Court of Appeal:

“(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss such an appeal in any other case.”

37. Pursuant to section 33(1) of the 1968 Act, a defendant has the right to appeal t o the Supreme Court against a decision of the Court of Appeal (Criminal Division) . Section 33(2) clarifies that the leave of the Court of Appeal or the Supreme Court is required and that leave will not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the Supreme Court (as the case may be) that the point is one which ought to be considered by the latter court .

5. The Human Rights Act 1998

38 . The Human Rights Act 1998 (“the 1998 Act”) incorporates the Convention into United Kingdom law. Under section 7(1) of the Act, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention right or rights concer ned in any legal proceedings .

COMPLAINT

39. The applicant complained under Article 6 § 3 (d) that he was denied a fair trial because material which might have undermined the prosecution or assisted his defence, identified by the CCRC in its report, was not disclosed to him. He complained in particular that:

( i ) although the Court of Appeal considered the PII material on an ex parte basis, it had not been seen by the trial judge; and

(ii) special counsel should have been appointed to represent his interests during the PII hearing.

THE LAW

40. Article 35 § 1 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”

A. The parties ’ submissions

41. The Government argued, first, that the applicant did not advance before the Court of Appeal in 2012, even in substance, the argument under Article 6 which he makes before this Court. The argument that the PII material should have been seen or considered by the trial judge was not advanced in the domestic proceedings in any form. Indeed, it was clear from the applicant ’ s grounds of appeal of April 2012 (see paragraph 17 above) that far from arguing that a PII hearing conducted by the Court of Appeal would not be fair or that the matter should be considered by the trial judge, the applicant was positively inviting the Court of Appeal to conduct a PII hearing. Further, in his October 2012 note on PII and disclosure (see paragraph 20 above) the applicant submitted that it was appropriate for the Court of Appeal to consider undisclosed material ex parte where it had not been shown to the trial judge. This was contrary to the position now advanced.

42. Similarly, although the applicant had submitted before the Court of Appeal in 2012 that the test for appointment of special counsel was “likely met”, the case now advanced that such appointment was “essential” was not put before the domestic courts. At the final hearing on 29 November 2012 no further argument was pursued regarding the PII material, nor was any unfairness said to arise out of the procedure adopted in relation to it. In particular, no argument was advanced in relation to Article 6.

43. Second, the Government contended that the applicant was obliged, pursuant to Article 35 § 1 of the Convention, to seek certification of a question of law of general public importance as a prerequisite to an appeal to the Supreme Court. The arguments advanced by the applicant amounted, in the Government ’ s view, to a challenge to the existing case-law of the House of Lords on human rights grounds. Negative counsel ’ s advice was not necessarily conclusive on the question of domestic remedies. This second matter had to be viewed as part of his failure to raise the issues which he now sought to advance before the domestic courts at all. This failure means that there is no reasoned decision of the domestic courts addressing the arguments now advanced by the applicant and the Court has been denied the essential assistance of any such reasoned assessment of the basis on which the domestic court protected the interests of the accused.

44. The applicant disputed the Government ’ s claim that the arguments which he now pursued were not raised in substance before the Court of Appeal. The request for special counsel was clear and the Government ’ s objections were based on a semantic interpretation of the specific words used. Having raised the need for special counsel before the PII hearing and been refused the right to special counsel, there was no basis upon which to reopen the issue at the substantive hearing.

45. As to the Government ’ s argument concerning his failure to seek certification of a point of appeal, the applicant reiterated that there was no available avenue of appeal over and above the Court of Appeal since there was no “general point of law of public importance” upon which to seek certification. The violation of Article 6 in his case arose as a result of the manner in which the appeal was handled.

B. The Court ’ s assessment

46 . It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, take on the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV; Gough v. the United Kingdom , no. 49327/11 , § 137, 28 October 2014 ; and and Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 other cases , §§ 69-70, 25 March 2014 ). However, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and that it must therefore be applied with some degree of flexibility and without excessive formalism (see Akdivar , cited above, § 69; Gough , cited above § 140 ; and Vučković and Others , cited above , § 76 ).

47 . As stipulated in its Akdivar judgment (cited above, §§ 66-67), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see also Gough , cited above § 138 ; and Vučković and Others , cited above , § 71 ).

48 . As the Court also held in Akdivar (cited above, § 68), in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him from the requirement (see also Gough , cited above § 139 ; and Vučković and Others , cited above , § 77 ).

51. Against this backdrop, the question arises whether the applicant ought to have sought certification of a point of law of general public importance and thereafter pursue d his case to the Supreme Court.

52. While it is true that the question whether a particular conviction is “safe” – the test for upholding a conviction under English law (see paragraph 36 above) – can be characterised as a “factual” question, underlying that is often a larger legal question concerning the fairness of the proceedings which might well be suitable for rehearing in the Supreme Court. It is sufficient to consider the recent case-law of this Court to find relevant examples. Thus in Hanif and Khan v. the United Kingdom , nos. 52999/08 and 61779/08 , §§ 43-54 , 20 December 2011 , the legal issue for the Court ’ s consideration was whether the presence of policemen on a jury was fair, a matter which had been considered by the Supreme Court ’ s predecessor, the House of Lords, in R v. Abdroikof and Others [2007] UKHL 37. The question whether the denial of access to a lawyer during police interrogation rendered criminal proceedings unfair was addressed by the Supreme Court in Cadder v. HM Advocate [2010] UKSC 43, discussed in this Court ’ s decision in Lang and Hastie v. the United Kingdom ( dec. ) , nos. 19/11 and 36395/11 , §§ 15-17, 22 May 2012. In Horncastle and Others v. the United Kingdom , no. 4184/10 , 16 December 2014, the applicants complained under Article 6 about the admission of the evidence of an absent witness (hearsay) evidence after their appeal had been dismissed by the Supreme Court in R. v. Horncastle and O thers [2009] UKSC 14.

53. Before this Court, the applicant has argued that Article 6 § 3 (d) required that PII material be examined by the trial judge and that special counsel be appointed to represent his interests during the PII hearing before the Court of Appeal. There is no doubt that the questions raised by the present application concern a point of law under Article 6 of the Convention. The applicant has failed to provide any explanation why he did not frame his complaint in these terms before the domestic courts, invoking his Article 6 rights as he was entitled to do under the Human Rights Act 1998 (see paragraph 38 above). Counsel ’ s assertion that the determination whether the conviction was safe was a factual determination fails to recognise the larger legal question, subsequently identified by the applicant and his legal advisors for the purposes of the application to this Court, which underlies that issue and which was potentially suitable at an earlier stage for examination by the Supreme Court. It cannot be said, on the basis of counsel ’ s advice, that it was “settled legal opinion” that an appeal to the Supreme Court was not capable of providing redress for the applicant ’ s complaint.

54. The rule of exhaustion of domestic remedies in Article 35 § 1 reflects the subsidiary role of the Convention mechanism. The Supreme Court, as the most senior court in most matters in the United Kingdom, holds a position of some responsibility in ensuring the application of the Convention in the respondent State. It would be incongruous and would undermine the principle of subsidiarity for this Court to interpret Article 35 § 1 in such a way as to render the Supreme Court legally irrelevant to the functioning of the Convention system.

55. In the circumstances, t he Court is satisfied that the Government have demonstrated that the possibility for the applicant to seek certification of a point of law of general public importance in order to pursue an appeal to the Supreme Court was a remedy that was effective and available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redr ess in respect of his complaint and offered reasonable prospects of success . The applicant has failed to establish that th e remed y was inadequate and ineffective in the particular circumstances of his case or that there existed special circumstances absolving him from the requirement to pursue it.

56. T he Court therefore finds that the applicant has failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention and concludes that the application must be dismissed pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 28 January 2016 .

Andr é Wampach Mirjana Lazarova Trajkovska Deputy Registrar President