DISSENTING OPINION OF JUDGES PALM, FISCHBACH, VAJIĆ, THOMASSEN, TSATSA-NIKOLOVSKA and TRAJA

We do not agree that there has been no violation of Article 6 § 1 in this case. We accept the majority’s statement of the law as set out in paragraphs 44-46 of the judgment, but we do not accept the conclusions which the majority draw from that statement.

We note that, although the defence in this case were notified that an ex parte application was to be made by the prosecution for material to be withheld on grounds of public interest immunity, and were informed of the category of material which the prosecution sought to withhold, and, indeed, received an edited summary of the material, they were not – by definition – involved in the ex parte proceedings, and they were not informed of the detailed reasons for the judge’s subsequent decision that the material should not be disclosed. Although, after the second ex parte application on 25 April 1994, there was an inter partes hearing on the question whether a witness statement taken from C. after his guilty plea should be disclosed, the defence were required to argue their case in ignorance of the full nature of the evidence in question, never having seen it. It was purely a matter of chance whether they made any relevant points. This procedure cannot, in our view, be said to respect the principles of adversarial proceedings and equality of arms, given that the prosecuting authorities were provided with access to the judge and were able to participate in the decision-making process in the absence of any representative of the defence. The fact that the judge monitored the need for disclosure throughout the trial (see paragraph 49 of the judgment) cannot remedy the unfairness created by the defence’s absence from the ex parte proceedings. In our view, the requirements – set out in the Doorson v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, and the Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports 1997-III – that any difficulties caused to the defence by a limitation on defence rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities, are not met by the mere fact that it was a judge who decided that the evidence be withheld. In stating this, we do not suggest in any way that the judge in the present case was not independent and impartial within the meaning of Article 6 § 1 of the Convention, or that he was not fully versed in the evidence and issues in the case as mentioned in paragraph 49 of the judgment. Our concern is that, in order to be able to fulfil his functions as the judge in a fair trial, the judge should be informed by the opinions of both parties, not solely the prosecution.

The proceedings before the Court of Appeal were, in our view, inadequate to remedy these defects, since, as at first instance, there was no possibility of making informed submissions to the court on behalf of the accused. The facts of this case can therefore be distinguished from those of the Edwards judgment, where by the time of the appeal proceedings the defence had received most of the missing information 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 pertinent argument from the defence (Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, p. 35, §§ 36-37).

We accept that there may be circumstances in which material need not be disclosed to the defence, but we find that the way in which the United Kingdom courts dealt with the sensitive material in the present case was not satisfactory. It is not for the Court to prescribe specific procedures for domestic courts to follow, but we note that, in the light of two Convention cases, a “special counsel” system has been introduced in the United Kingdom where it is necessary to withhold evidence from one of the parties to litigation, and that other examples are likely to be introduced (paragraphs 30-33 of the judgment). These examples do not exactly match the circumstances of the present case, but we have no doubt that the practical problems raised by the Government (see paragraph 41 of the judgment) can be resolved.

For example, we understand that in Northern Ireland, ex parte applications on public immunity grounds are made to a judge other than the trial judge. In such a system, no problems of participation of the “special counsel” at the trial would arise and the trial judge is not put in the uncomfortable position of having to see material and then having to discount it at a later stage of the proceedings.

Again without purporting to lay down specific procedures to be applied by domestic courts, we would refer to the system in the immigration context (see Rule 7(7) of the Special Immigration Appeals Act Commission (Procedure) Rules 1998, set out at paragraph 31 of the judgment). Under these arrangements, a “special counsel” is permitted to have sight of the sensitive material, after which he or she is permitted further communication with the defence only with the leave of the court.

These examples show that legitimate concerns about confidentiality can be accommodated at the same time as according the individual a substantial measure of procedural justice.

We conclude, therefore, that the decision-making procedure in the present case did not sufficiently comply with the principles of adversarial proceedings and equality of arms, nor did it incorporate adequate safeguards to protect the interests of the accused. It follows that in our opinion there has been a violation of Article 6 § 1 of the Convention in the present case.

Dissenting opinion of Judge Zupančič

In my opinion this case is the tip of a much larger iceberg than imagined either by the majority or by other dissenters. Non-disclosure, that is, secrecy concerning some aspects of the prosecution’s case, is of course a problem in itself. However, compared to the preponderantly inquisitorial continental systems of criminal procedure in which the ex officio investigation used to be entirely secret, the partial non-disclosure in an adversarial system cannot be seen as a breach of a fundamental procedural standard. Still, for me this is not a minor technical consideration because it affects the whole philosophy of criminal procedure. I have written about that in an article entitled “The Crown and the Criminal: The Privilege against Self-Incrimination – Towards the General Principles of Criminal Procedure”, Nottingham Law Journal , vol. 5, pp. 32-119 (1996).

Here I should like to raise a preliminary issue which, to the best of my knowledge, has not been considered by the national courts. For the State to acquire the right to intrude on someone’s privacy there must be probable cause, that is, a suspicion sufficiently fortified by specific, articulable and antecedent evidence to be called reasonable. There is an indication in this case that there was some intrusion – or it would not have given rise to information which the prosecution wished not to disclose – and it is impossible to say (precisely because of the non-disclosure) whether that suspicion was sufficient to justify the previous breach of the fundamental human right to be left alone. Further, such antecedent evidence must not be tainted by violations of someone’s constitutional and human rights. If it is, it (and all evidence which would not be obtained were it not for the breach) should be subject to the exclusionary rule.

The non-disclosure of these preliminary procedures of course precludes the proper examination of the basic probable cause safeguard.

Dissenting Opinion of Judge Hedigan

I regret that I cannot agree with the majority in this case. I agree with the dissenting opinion of Judges Palm, Fischbach, Vajić, Thomassen, Tsatsa ‑ Nikolovska and Traja save only that I do not consider that, as a general rule, applications to withhold evidence need to be made to a judge other than the trial judge. In so far as their dissenting opinion might suggest this, I would disagree.

My point of departure is to be found in the judgment of the Court in the case of Van Mechelen and Others v. the Netherlands (judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, p.712, § 58), where it held: “Having regard to the place that the right to a fair administration of justice holds in a democratic society, any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can suffice then that measure should be applied.”

It follows that, if it can be shown that there is a viable alternative way of proceeding which is less restrictive of an applicant’s right to a fair trial and to proceedings adversarial in character, it should be taken. In my opinion, where the applicant can establish on a prima facie basis that such an alternative way exists, the onus shifts to the respondent to show why it cannot use or adapt such a way.

In this case, the prosecution withheld relevant information from the defence. It was submitted on behalf of the applicant that any failure to disclose relevant evidence undermined the right to a fair trial. It was, however, conceded that the right to full disclosure was not absolute, and could, in pursuit of a legitimate aim such as protection of national security or of vulnerable witnesses or sources of information, be subject to limitations.

It was agreed by the Government that any such restrictions must be counterbalanced by sufficient safeguards to protect the rights of the accused. Under present United Kingdom law this is provided for by the requirement that it is the trial judge who should decide whether the evidence in question should be disclosed.

There are three ways in which this may occur:

(a) An application by the prosecution with notice to the accused indicating at least the category of the material which they hold. The defence then have the opportunity to make representations to the court.

(b) Where disclosure of the category itself would “let the cat out of the bag” the prosecution should notify the defence that an application to the court is to be made, but the category would not be disclosed and the application would be ex parte.

(c) The third procedure is where, to reveal even the fact that an ex parte application is to be made, would be to reveal the nature of the evidence; in such cases the application should be made ex parte without notice to the defence.

The applicant argued before the Court that there was a need to introduce a counterbalancing adversarial element on the occasions when the defence would be excluded from an application. He showed that in two separate ways at present (and two others in the course of legislation) a “special counsel” procedure had been introduced by legislation in the United Kingdom. The special counsel’s function is to assist the court in circumstances where a party may not be allowed to participate for national security or other reasons. The special counsel is to represent the interests of the individual in the proceedings. The relevant legislation [1] provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”. This ensures that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. The Government argued that the present arrangements in principle and in practice adequately protected the rights of the accused. In essence, they relied on the impartiality of the judge and the honour and professional integrity of the prosecution. They also raised the significant practical difficulties involved in creating such a role as special counsel in a criminal case. The problems, the Government pleaded, involved questions as to the duties owed by special counsel to the accused, the amount of information he or she would be at liberty to pass on to the accused and the defence lawyers and the quality of instructions he or she could expect to receive from the defence. Difficulties would be most acute, they argued, where there were more than one accused and problems also would arise where there were long trials with constantly evolving disclosure issues.

The question to be decided is whether the problems raised by the Government are, in practical terms, insurmountable. To take them individually:

(a) Special counsel in a criminal case; it is to be noted that in addition to the two special-counsel procedures referred to above, the Government as pleaded in this case, have recently placed before Parliament two bills making provision for the appointment of a special counsel in other circumstances. One of these is the Youth Justice and Criminal Evidence Bill 1999 which makes provision for the appointment by the court of a special counsel in any case in which a trial judge prohibits an unrepresented defendant from cross-examining in person the complainant in a sexual-offence case. It is, therefore, contemplated by the Government that the special-counsel procedure may be used in a criminal case, albeit one somewhat different from the facts of this case. The duty owed by the special counsel to the accused is one which in general terms ought to be capable of resolution by the relevant professional bodies. Such ethical problems are the everyday work of the professional ethics committees of the same. Whilst not easy to resolve, nothing in the Government’s rather general objection suggests that the problem is insurmountable.

(b) The amount of information the special counsel would be at liberty to pass on to the accused and the defence lawyers; this is a problem I should have thought was also capable of determination. Very little would undoubtedly be the rule. I have no doubt that the defence would be more than happy to endure this restriction when balanced against the benefit of representation at the hearing on disclosure.

(c) I am not sure what is meant by the Government’s reservations regarding the quality of instructions the special counsel might receive from the defence. This is surely a matter for the defence. It is difficult to see where problems would arise although, no doubt, every case would raise its own. Again, no insurmountable ones have been identified by the Government.

(d) I agree that difficulties would be most acute where there are more than one accused. There are, however, inherent difficulties in every such case. Since there are no insurmountable problems raised already, I fail to see why this generality on its own would be enough to rule out an otherwise viable procedure. Cases where there are more than one accused invariably throw up many difficult problems for the Bar, the Bench and the relevant prosecution service.

(e) Long trials with constantly evolving disclosure issues are more an extended variation of the above. I should have thought that the same special counsel would inevitably be involved in dealing with continued or newly arising disclosure issues and I fail to see anything more than administrative inconvenience being the problem there. Administrative inconvenience can never be a ground for restricting rights guaranteed by the Convention.

For these reasons, I cannot accept that the Government have demonstrated that there are, in practical terms, insurmountable difficulties in adapting an already existing system to criminal trials such as in this case. I therefore take the view that, because there is a less restrictive measure which is available and adaptable, the Government are in violation of the applicant’s right to a fair trial under Article 6 § 1 of the Convention in failing to avail themselves of the same.

[1] 1-2. Note by the Registry . Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[1] . Note by the Registrar . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.

[1] 1. Special Immigration Appeals Commission Act 1997 and Northern Ireland Act 1998.