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

A. WEITZEL, H. DANELIUS, C.L. ROZAKIS, Mrs J. LIDDY, MM B. MARXER, I. CABRAL BARRETO, G. RESS, A. PERENI ï‚„ and Mrs M. HION

We consider that even though the applicant and his representatives were not aware of the category of the material sought to be withheld, the trial judge did know it and having also known the nature of the risk of damages sought in the public interest to be prevented by withholding the material, he was able to assess how serious was that risk and how serious was the potential damages.  In addition, the trial judge, performing his duty to monitor the position as the trial progressed, had the possibility to consider disclosure of withheld material as issues emerged during the trial which might have affected the balance.  However, in a situation where the trial judge heard submissions in one direction by the prosecution which were not balanced by inter partes submissions by a specially appointed counsel on behalf of the defence who acted only in the particular procedural issue (see, mutatis mutandis , Eur. Court HR, Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1869, para. 144), the trial judge cannot be regarded as constituting a sufficient safeguard.  The fact that, on appeal, the Court of Appeal read the transcript of the ex parte application made to the trial judge, and had access to the material which was the subject of the ex parte hearing does not mean, in our opinion, that the handicaps under which the defence laboured in not having access to relevant material withheld under the ex parte application were sufficiently counterbalanced by the procedure followed by the judicial authorities (see, mutatis mutandis , Eur. Court HR, Doorson v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, pp. 470-471, paras. 69-72).

We further observe that it appeared during the trial that there could have been evidence from telephone interceptions made under the Interception of Communication Act 1985 which was withheld by the prosecution without any application to the trial judge.

We note that in the present case, any telephone interception material was immune from production as part of public policy reflected in the 1985 Act.  While the Preston case (see paras. 45, 46) established that the prosecution was under a duty to disclose to the defence material information even if it would be inadmissible if put in evidence by the defence , no procedure whatsoever existed whereby, in case of doubt, the trial judge could examine the material and order its disclosure.  Accordingly, the principle that the trial judgment must view the material in order to balance the public interest in non-disclosure against the importance of the material to the defence , was not complied with.

In this part of the proceedings, as in R. v. Ward, the prosecution acted as judge in their own cause at this trial stage.  The trial judge, who could only approve the decision of the prosecution not to disclose, was in a comparable position to the judge in the Tinnelly and Others case dealing with the civil claim, where the ipse dixit of the executive prevented him from determining the merits of the claim (see, Eur. Court HR, Tinnelly and Others v. the United Kingdom judgment of 10 July 1998, Reports of Judgments and Decisions 1998, para. 77).  He could not monitor the position as the trial progressed and consider disclosure of withheld material as issues emerged during the trial which might have affected the balance.  It was established during the trial that the prosecution had no information from an informant (category (b) of the sensitive material).  However, the seven categories of sensitive material still include at least three ((e), (f) and (g) of para. 36 of the present Report) where the interests of the State in maintaining confidentiality for the purposes of encouraging information to be given to the police would prima facie rarely if ever outweigh the interests of the accused in having access to information of possible help to the defence .  The failure to indicate the existence and possible category of withheld material was a further barrier to ensuring fairness of proceedings.

In the light of all these factors, we consider that the handicaps under which the defence laboured in neither having access to the relevant material nor, by way of alternative, to an inter partes procedure whereby the trial judge's ruling on disclosure could be based on submissions respecting the defence interest as well as that of the  prosecution were insufficiently counterbalanced by the procedure followed by the judicial authorities (see, mutatis mutandis , above-mentioned Doorson v. the Netherlands judgment).

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

In the light of all the circumstances, we are of the opinion that, on balance, the criminal proceedings brought against the applicant taken as a whole cannot be considered to have been fair.  With regard to the facts that the procedural motion could be heard in camera and that the judge's ruling thereon was not delivered in public, we consider that these were a necessary consequence of the preceding considerations and, having regard to the exemptions provided for under Article 6 para. 1 of the Convention, cannot be said to infringe on the publicity of the trial as a whole.  Nonetheless, the latter, in particular, was an aggravating factor in the context of fairness.  We conclude that in the present case there has been a violation of Article 6 para. 1 of the Convention in conjunction with Article 6 paras. 3(b) and 3(d) of the Convention.