CONCURRING OPINION OF JUDGE SIR NICOLAS BRATZA JOINED BY JUDGE COSTA

I fully share the conclusion and reasoning of the Chamber that there has been a violation of Article 6 § 1 of the Convention in the present case. I only wish to add a few supplementary remarks because of the importance of the issues raised by the case and, more particularly, the question whether the appeal proceedings were adequate to remedy the lack of fairness at first instance.

As is noted in the judgment, the facts of the case bear a strong resemblance to those examined by the Grand Chamber in Rowe and Davis v. the United Kingdom ([GC], no. 28901/95, ECHR 2000-II), in which documents had similarly been withheld by the prosecution at trial on the grounds of public interest immunity , without notification to the trial judge. At the commencement of the appeal in that case, the prosecuting c ounsel had notified the defence that certain materials had been withheld, without however revealing the nature of the material s in question. On two separate occasions, the Court of Appeal had reviewed the undisclosed evidence and, following ex parte hearings with the benefit of submissions from the Crown but in the absence of the defence, had ruled in favour of non-disclosure.

For the reasons set out in paragraph 65 of th at judgment (quoted in paragraph 48 of the present judgment), the Grand Chamber held that such a procedure was insufficient to remedy the unfairness caused at the trial by the absence of any scrutiny of the withheld information by the trial judge. The Court emphasised that, unlike the trial judge who saw the witnesses give their testimony and who was fully versed in all the evidence and issues in the case, the judges in the Court of Appeal were dependent for their understanding of the relevance of the undisclosed material on the transcript of the Crown Court hearing and on the account of the issues given to them by the prosecution in the ex parte hearings.

The Court went on in the following paragraph of the same judgment to distinguish Edwards v. the United Kingdom (judgment of 16 December 1992, Series A no. 247-B) on the grounds that at the appeal stage in that case the defence had received most of the information which had been missing at trial and the Court of Appeal was able to consider the impact of the new material on the safety of the conviction in the light of detailed and informed argument from the defence.

In the present case, following the review of the prosecution ’ s duty of disclosure, full disclosure was made before the hearing of the applicant ’ s appeal of two categories of documents , but other documents continued to be withheld from disclosure. As appears from the judgment, these documents were listed in a schedule. In respect of some of the items in the schedule, the reason for non-disclosure was stated to be “legal and professional privilege” and, in respect of other items, “public interest immunity”; in respect of certain other items in the schedule (including document no. 580) no reason was given for the non-disclosure of the document.

In contrast to what occurred in Rowe and Davis , the prosecution made no application to the Court of Appeal to rule on the question whether the material listed in the schedule had been legitimately withheld. Equally, however, as pointed out by the Government, the defence did not apply to the Court of Appeal to review the material, the consequence of which application might have been either that the prosecution consented to further disclosure or that further disclosure was ordered by the Court of Appeal itself.

The central question is whether this omission on the part of the defence to use a procedure which offered the possibility of obtaining the release of the documents serves to distinguish th is case from Rowe and Davis . In my view, it does not. It seems to me that where material is withheld from the defence on grounds of public interest immunity the burden must in principle lie on the prosecution to place it before the c ourt for a ruling on whether it is properly withheld. The onus cannot rest on the defendant to take steps to compel disclosure. This is more particularly so where, as in the present case, the existence of the material is not made known to the defence until the appeal proceedings. In such a case the deficiencies at first instance are only capable of being cured if the material in question is disclosed to the defence by the prosecution in advance of the hearing of the appeal or if the material is placed before the Court of Appeal for a ruling on its disclosure in proceedings in which the procedural rights of the defendant are fully protected.