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

A. WEITZEL, J.-C. SOYER, H. DANELIUS, Mrs J. LIDDY, MM B. MARXER, I. CABRAL BARRETO, G. RESS, A. PERENIČ and Mrs M. HION

In the present circumstances, we do not see any reason not to assume that the prosecution followed the procedure laid down in the relevant domestic case-law, namely in R. v. Ward and R. v. Davis, Johnson and Rowe: it asked the trial judge to approve non-disclosure of the material on the grounds of public interest immunity and he sanctioned the withholding of the material.  A question arises, however, whether the trial judge, having been only orally informed of the contents of the withheld material, could assess the facts which the material revealed and, therefore, properly weigh the competing interests of public interest immunity and fairness to the defence claiming disclosure.

We consider that in order to satisfy the requirements of a fair trial and the rights of the accused, the trial judge must be sure that, before ruling on non-disclosure, he has sufficient knowledge of the contents of the material in order to perform the necessary balancing exercise, and that non-disclosure of the material would not result in miscarriage of justice.  In the present case, where the source of information and the existence of a potential informer was involved, the trial judge knew the contents of the withheld material and was aware of the nature of the applicant's case, including how important was any information of the potential informer to him, and, therefore, could be in principle in a position to conduct the balancing exercise.  However, he did not safeguard to the fullest extent the interests of the accused by examining the material personally.  Moreover, in a situation where he 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 , Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1869, para. 144), the trial judge's role cannot be regarded as constituting a sufficient safeguard.

When the second ex parte application was lodged (in connection with the witness statement of C.) the trial judge, having read the unedited version of the witness statement and having known the applicant's position in the case, considered the importance of the relevant material to the issues of interest to the defence and performed the necessary balancing exercise.  Furthermore, he knew the category of the part of the withheld material, which the defence did not know.  Having also known the nature of the risk of damage 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 any potential damage.  In addition, performing his duty to monitor the position as the trial progressed, the trial judge had the possibility to consider disclosure of the withheld material as issues emerged during the trial which might have affected the balance.  However, we consider that these positive circumstances cannot bridge over the fact that the trial judge was again in a situation where he 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 acting in this particular issue.

Furthermore, we are not convinced that this situation was cured by the Court of Appeal which, upon the applicant's grounds of appeal, merely approved the procedure applied by the trial judge in the ex parte hearings, without mentioning whether it did view or examine the material in question.

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 rulings 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 , 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).

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 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 motions could be heard in camera and the judge's rulings thereon were 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 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.