FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36324/03 by Peter John HAMLETT against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 7 November 2006 as a Chamber composed of:

Mr J. Casadevall , President , Sir Nicolas Bratza , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr S. Pavlovschi , Mr J. Šikuta, judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 13 November 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the observations submitted by the respondent Government and the lack of any further response from the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Peter John Hamlett, is a British national who was born in 1957 and is currently serving a prison sentence in HM Prison Long Lartin. He is represented before the Court by Mr H. Shah, a solicitor practising in London .

A. The circumstances of the case

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

On 20 April 2000 the applicant was convicted of conspiracy to rob, namely that between September 1996 and 5 September 1997 he had conspired with Lally and five other co-defendants in eleven robberies. He was sentenced to nineteen years ’ imprisonment.

The case for the Crown centred upon the evidence of Lally, named in various counts as a conspirator and a man who admitted his guilt to all but the first offence committed while he was in prison. He gave evidence against all the defendants, alleging their involvement in one or more of the offences. There was no suggestion that Lally was mistaken in his identification: the applicant was his half-brother, another his brother and others close friends or acquaintances.

Lally had a long history of offending. In July 1988 he was sentenced to ten years ’ imprisonment for two offences of robbery. He absconded while on home leave and on 28 October 1998 he was arrested with various co-conspirators as they were about to commit a robbery. Lally ’ s evidence was to the effect that while in custody he reviewed his situation and decided to admit all the offences in which he had been involved so as to make a clean break with his past. He was debriefed in intelligence interviews and made a series of statements dealing with some one hundred offences. He asked the court to take into consideration a total of 39 offences. He agreed that he was a prime mover in the robberies and attempted robberies in the counts before the jury and that generally he had carried a fire-arm. His motive in helping the police and giving evidence was that he hoped to receive a lesser sentence.

In addition to the evidence of Lally, there was evidence from various witnesses of the robberies as to the physical appearance of the robbers, a CCTV footage from which a police officer recognised one of the co-defendants H., footage from a police surveillance video in which two co-defendants were seen in a stolen car used for a robbery (K. and H.) and evidence of the frequency of phone calls between Lally and the applicant and other co-defendants corresponding to criminal activity. The applicant and three others gave evidence in their defence.

On 29 October 1999, the prosecution made a public interest immunity (PII) application in respect of a “ draft text ” (a schedule of information given by Lally to the police). The judge decided that it need not be disclosed but that he would keep his decision under review and the prosecution undertook to compare the document with what Lally had said and might say.

During the trial, after Lally had given evidence, the prosecution counsel realised that police officers were in possession of his prison file. On 30 March 2000, just before the prosecution closed its case, two letters from Lally to the prison governor, some intelligence ma terial and what was called the “ Burton Copeland ” witness statement made by Lally on 24 March 1999 were disclosed to the defence.

The defence had also made an application to the Crown for the prison file, which request was passed on to the prison authorities who declined to disclose it until relevance and particularity were made out. The Crown passed this on to the defence and the matter was not pursued further by any party. This material included an entry recording the release of Lally on 5 September 1996 (from 13.00 to 13.30 hours for a medical appointment), on which day there had been a robbery committed at 11.50 hours, and an entry by a prison officer to the effect that Lally had implicated two of the co-defendants with him in seven armed robberies and a conspiracy.

The applicant applied for leave to appeal against conviction and sentence, complaining inter alia that late disclosure of documents (see paragraph above) and the non-disclosure during trial of the prison file, a “ draft text ” (a schedule of information given by Lally to the police) and the accurate factual basis for the TIC19 (the form dated 27 April 1999 setting out Lally ’ s account of one of the robberies). He also raised a complaint about a potential conflict of interest revealed on the part of Mr Mackie of Burton Copeland Solicitors, who acted for him at an early stage of the trial and had also previously acted for Lally at a time when Lally was giving information to the police about the applicant.

On 16 May 2003 , the Court of Appeal rejected the applicant ’ s appeal. It found that the documents whose non-disclosure was the subject of complaint did not contain material which would have materially assisted the defence or significantly altered the conduct of the case.

It dismissed the contention that the correct description of the TIC19 gave sufficient material to support the point that Lally had obtained from the police a reward for giving information in respect of a robbery in which he had been involved. As regarded the draft text, which the applicant ’ s counsel argued showed a greater extent of connection between the police and Lally than previously admitted and that Lally had given false information on an earlier occasion seeking to incriminate the applicant at a trial in which the applicant was acquitted, it found that the material did not shed light on anything “ new and different ” as to Lally ’ s motivations and that the totality of topics taken from the draft which could be shown as novel or discrepant was small and even taken compendiously could not be said at its highest to advance the case for the applicant. It did not accept that in the context of the case such a self-serving document could have “ tipped the balance ” . As regarded the possibility that the defence could have cross-examined Lally as to whether he had given any useful assistance to the police at the earlier trial, this did not advance the case for the applicant.

As regarded three areas of late disclosure (the Burton Copeland witness statement, the intelligence material and the extract from the prison file), the court applied the test of whether it was likely that the material, if provided earlier, would have been the subject of cross-examination which would or might materially have affected the jury ’ s credibility of Lally. It stated:

“ The disclosed documents are potentially relevant in three ways. First as to information about the applicant ’ s alleged offending in the 1980 ’ s, second as to Lally ’ s dealings with the police in the late 1980 ’ s going to whether he were a participating informant and third as to his credit.

Mr Cosgrove [ the applicant ’ s counsel ] made a tactical decision to eschew cross-examination of Hamlett ’ s 1980 ’ s alleged offending. It could have gone only to Lally ’ s credit, and succeeded only if Lally were shown to have lied in information he had given about the applicant. Mr Cosgrove was aware of Lally ’ s informing in respect of the lollipop acquittal well before the PII hearing of 30 March... As Mr Cosgrove said... as a balancing exercise it was not a close decision. It is not hard to understand the risk that the jury might, to the detriment of the applicant, fail to distinguish acquittal from innocence, concluding that notwithstanding the verdict Lally had given accurate information. It was a classic double-edged sword the type of decision with which counsel... are regularly confronted and not one open to criticism. Mr Cosgrove had instructions not to deal with the acquittal of his lay client on the lollipop robbery and we can see why this was considered the less forensically risky of the two possibilities. We cannot see that leading counsel had his hands tied behind his back when making it... ”

It also found no support for the assertion that Lally was also informing the police in the later years of his prison sentence, only conjecture. He had been cross-examined as to whether the police had given him “ carte blanche ” to commit robberies in order to implicate others and this had been refuted. It was an untenable proposition that the police had countenanced twenty violent offences taking a quarter of a million pounds, terrorising members of the public and involving injury to security staff merely to obtain incriminating information against particular persons. Even if it were to attract credence it would not have advantaged the defendants as their defence was that none participated. Further, the evidence before the jury had included Lally ’ s statement that the police had wanted the applicant for years.

COMPLAINTS

The applicant complained under Article 6 that the principle of equality of arms was undermined by the disclosure process adopted by the prosecution at first instance and subsequently on appeal. In particular

- the prosecution failed to make full and proper disclosure relating to the supergrass Lally at the requisite time;

- material came to light after the trial e.g. the draft text and final text and the full prison file amounted to significant non-disclosure.

He also complained that the Court of Appeal gave no reasoning concerning his complaint about the conflict of interest of his solicitor.

THE LAW

On 15 February 2006 the application was communicated to the respondent Government.

On 12 May 2006 the Government ’ s observations on the admissibility and merits of the application were received and the applicant was invited to submit written observations in reply by 30 June 2006 .

As the applicant ’ s observations on the admissibility and merits had not been received by that date, nor any request for an extension of the time-limit, on 23 August 2006 , the applicant was advised that the failure to submit observations might result in the strike-out of the application. The applicant did not reply .

The Court recalls Article 37 of the Convention which, in the relevant part, reads as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application;

...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court notes that the applicant was requested to submit written observations on the admissibility and merits of the case. He subsequently received a reminder thereof. The applicant was also informed about the possible consequence of his failure to submit the observations. No response has been received to date. The Court infers therefrom that the applicant does not intend to pursue his application. Furthermore, the Court considers that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the case.

In these circumstances it considers that Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list in accordance with Article 37 § 1 (a) of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.

T.L. Early Josep Casadevall Registrar President