THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34547/97 by Alexander KASPERS against the United Kingdom

The European Court of Human Rights (Third Section)] , sitting on 21 November 2000 as a Chamber composed of

Mr J.-P. Costa , President ,

Mr W. Fuhrmann ,

Mr L. Loucaides ,

Sir Nicolas Bratza ,

Mrs H.S. Greve ,

Mr K. Traja ,

Mr M. Ugrekhelidze , judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 28 September 1995 and registered on 17 January 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

The applicant is a Dutch national, born in 1958, and currently detained in HM Prison Swaleside , Kent. He is represented before the Court by Ms. A. R öttgering , a lawyer practising in Amsterdam. The respondent Government are represented by their agent, Mr C.A. Whomersley of the Foreign and Commonwealth Office.

A. The circumstances of the case

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

On 26 February 1992 the applicant was placed under surveillance by British Customs and Excise officers after he was seen having a business meeting with two British citizens, “J” and “O”, both of whom had been under investigation since June 1991.

The applicant was arrested on 27 July 1992. On 28 July 1992 he was charged with conspiracy to import cannabis, cannabis resin and cocaine and with the importation of cocaine contrary to Section 170(2) of the Customs and Excise Management Act 1979. On 26 October 1992 the charge against the applicant relating to the alleged conspiracy to import cannabis and cannabis resin was withdrawn.

The applicant’s trial at the Inner London Crown Court commenced on 19 July 1993. The prosecution claimed that between November 1990 and July 1992 he had conspired with J. to import large quantities of cocaine into the United Kingdom. On 27 July 1992 he had smuggled in eight kilograms of cocaine, worth GBP 1.13 million, hidden in satellite receiver boxes in his car. One of the bags had the applicant’s fingerprints on it. It was claimed that he had used his company, “ Eurosales ”, as a cover.

The applicant gave evidence at trial. He admitted bringing the cocaine into the United Kingdom, but claimed not to have known that the satellite box contained drugs, believing instead that he was smuggling jewellery. He stated that he had had previous dealings with J. and O. in connection with valuable watches and had put them in touch with his supplier. They had asked him to bring over a consignment of jewellery on his next business trip of 27 July 1992.

J. pleaded guilty to charges of conspiracy to evade the restrictions on the importation of both cannabis and cocaine. Four other co-defendants, O., K., M. and D., pleaded guilty to conspiracy to evade the restrictions on the importation of cannabis.

Prior to the trial, the prosecution made an ex parte application to the trial judge in accordance with the Court of Appeal’s guidelines in R. v. Davis, Johnson and Rowe (see below). The judge ruled there was no obligation on the prosecution to make further disclosure and indicated that he would review his decision during the course of the trial. The defence was notified that an application would be made, but was not informed of the category of material which the prosecution sought to withhold on grounds of public interest immunity.

At various points during the trial the judge prohibited questioning on certain issues, including whether or not Customs and Excise had relied on an informer and details relating to the manner in which surveillance of the applicant had been carried out. On 23 July 1993 the judge stopped defence counsel from asking any questions about undisclosed sensitive material. When defence counsel asked how he would know if his questions were straying into sensitive areas, he was referred to a list of questions produced four days prior to the trial.

In his summing-up the judge told the jury that there were some areas of investigation which he had not allowed to be opened up through disclosure or cross-examination. Defence counsel told the jury that there was a risk that the restrictions on questioning could result in a miscarriage of justice.

On 11 September 1993 the applicant was convicted of conspiracy to contravene Section 170(2)(b) of the Customs and Excise Management Act 1979 in relation to the importation of a Class A controlled drug. On 21 October 1993 he was sentenced to eighteen years’ imprisonment. A confiscation order in the sum of GBP 36,707 was also imposed under the Drug Trafficking Offences Act 1986 with a consecutive sentence of eighteen months’ imprisonment in default of payment.

On 22 May 1995 the Court of Appeal refused leave to appeal against conviction and sentence, commenting:

“Before the hearing we had the advantage of looking at the material which was put before the trial judge.  Each member of this court has read it. We have no doubt, having read it and being fully apprised of the issues in the case and the basis upon which the defence sought to have further material disclosed, that the trial judge was correct in his ruling. [The applicant’s] counsel frankly and properly indicated to this court that since he did not know what the material was and since he knew that we had seen it, he could not develop the grounds upon which he had relied beyond reasserting them and inviting us to take a different view from that taken by the trial judge.              Not only do we consider that the trial judge was correct in his decision, but we consider that he followed the correct procedure to the letter in everything he did in relation to the ex parte application and the decisions arising from it.”

The Court of Appeal also concluded that the judge had been correct to withhold information regarding the manner in which surveillance had been carried out, noting that the work of Customs and Excise would be hampered if such information were made known.

B. Relevant domestic law

At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence.

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”.

According to the Guidelines, 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, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” 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, although any doubt should be resolved in favour of disclosure. If either before or during the trial it became apparent that a duty to disclose had arisen, but that disclosure would not be in the public interest because of the sensitivity of the material, the prosecution would have to be abandoned.

Since 1992 the Guidelines have been superseded by the common law, notably by a number of decisions of the Court of Appeal. In R. v. Ward ([1993] Weekly Law Reports p. 619) the Court of Appeal dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity. It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case, because:

“... [When] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings. Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned.”

The Court of Appeal described the balancing exercise to be performed by the judge as follows:

“... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed”.

In R. v. Davis, Johnson and Rowe ([1993] Weekly Law Reports p. 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence then had 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 was 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 was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence.

COMPLAINTS

The applicant claims that the ex parte procedure before the judge, the non-disclosure of material evidence and the judge’s decision to prevent cross-examination on sensitive topics regarding the investigation deprived him of a fair trial in breach of Article 6 §§ 1 and 3 (b) of the Convention.

THE LAW

The applicant complains of violations of Article 6 §§ 1 and 3 (b), which state, as relevant:

“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing …

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; …”

The Government submitted that the procedure followed by the trial judge was indistinguishable from that employed in the cases of Jasper v. the United Kingdom and Fitt v. the United Kingdom (judgments of 16 February 2000), which the Court had found to be compatible with Article 6.

The applicant contended that his case should be distinguished, because he was not able to play any role in the non-disclosure procedure. Unlike the defendant in the Jaspers case, for example, he was not given the opportunity to make submissions to the trial judge concerning the nature of his defence and the need for disclosure, and he was not given any information about the nature of the withheld evidence. Moreover, the presentation of his defence to the jury was further hampered by the judge’s refusal to allow his counsel to cross-examine some of the prosecution witnesses on sensitive issues.

The Court recalls that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set out in paragraph 1 (see the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, § 33). In the circumstances of the case it finds it unnecessary to examine the applicant’s allegations separately from the standpoint of paragraph 3 (b) and (d), since they amount to a complaint that the applicant did not receive a fair trial. It will therefore confine its examination to the question whether the proceedings in their entirety were fair.

The Court recalls that the entitlement of a person charged with a criminal offence to disclosure of relevant evidence, which forms part of the right to a fair trial under Article 6 § 1, is not an absolute right. In any criminal proceedings there may be competing interests, such as national security, the need to protect witnesses at risk of reprisals or to keep secret police methods of investigation of crime, which must be weighed against the rights of the accused (see, for example, the Doorson v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, § 70). In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1 (see the Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports 1997-III, § 58). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see the above-mentioned Doorson judgment, § 72, and the above-mentioned Van Mechelen and Others judgment, § 54).

In its above-mentioned Jasper and Fitt judgments, the Court held that the procedure whereby the trial judge decided whether or not evidence should be disclosed, having examined the material in the course of an ex parte application by the prosecution, afforded sufficient guarantees to the defendant as to comply with Article 6 § 1.

A similar ex parte procedure was followed during the applicant’s trial at first instance: the trial judge, having examined the evidence, ruled that disclosure was not necessary and indicated that he would keep his decision under review during the course of the trial. It is true that in addition to authorising the non-disclosure, the trial judge prohibited questioning on certain issues, including whether an informer had been used and the manner in which surveillance had been carried out. However, again to protect important competing interests, it may sometimes be necessary in a criminal trial to prevent information from being disclosed orally. Since it was the trial judge, with his knowledge of the issues and conduct of the trial and his ability to weigh the interests of the accused against the public interest, who decided to place these restrictions on defence counsel, the Court is satisfied that the applicant enjoyed a fair trial in accordance with Article 6 § 1.

It follows that the applicant’s complaints are manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

S. Dollé J.-P. Costa Registrar President