CONCURRING OPINION OF JUDGE LEMMENS

1. I voted with my colleagues that there has been no violation of Article 6 of the Convention.

To my regret, however, I find it difficult to follow the reasoning adopted by the majority. In the first place, in my opinion the majority fail to address the applicant ’ s core complaint. Secondly, they transpose principles related to statements by anonymous or absent witnesses to a situation of undisclosed material where such principles are in my opinion not applicable.

Notwithstanding the fact that I would apply different principles to a different complaint, I come to the same conclusion.

The complaint: not about the admissibility of belief evidence or the non-disclosure of underlying material, but about the role of the trial court with respect to the privileged material

2. The applicant explicitly stated that he did not object to the admissibility of the belief evidence (written observations of 17 July 2012, § 1). Nor did he object to the non-disclosure as such of the privileged material submitted by the Superintendent to the Special Criminal Court (SCC).

What he objected to was “the unfairness which is inherent in the fact that the court of trial, which in this case was the trier of fact, reviewed the material upon which the belief was based, formed a view as to its reliability and convicted the (applicant) on the basis of it while denying the (applicant) any meaningful way of challenging that evidence” (written observations, § 2; emphasis added). He concluded his submissions in the following words: “The applicant does argue that the procedure adopted in his case was unfair because a trial court which had to determine the question of guilt or innocence had knowledge of material which it concluded was reliable evidence persuasive of guilt but which the applicant was unable to challenge in any meaningful way” (written observations, § 24; emphasis added).

In sum, the applicant argued that the SCC, as a trial court sitting without a jury, acted in an unfair way by reviewing undisclosed material, not with the purpose of merely deciding whether or not this material had to be disclosed, but with the purpose of assessing its reliability and adequacy as a basis for the Superintendent ’ s belief, which in turn was part of the evidence of the applicant ’ s guilt. In other words, the applicant ’ s complaint was based on the fact that the same trial court reviewed the material underlying the Superintendent ’ s belief and decided on the applicant ’ s guilt or innocence.

3. While the majority correctly quote the applicant ’ s complaint, especially in paragraph 66 of the judgment, it seems to me that they do not focus their reasoning on the dual role of the trial court. They examine whether there were reasons for upholding the Superintendent ’ s claim of privilege (paragraphs 80-81), even though the applicant did not challenge that claim. They go on to examine whether the Superintendent ’ s belief evidence was the sole or decisive basis for the applicant ’ s conviction (paragraphs 82-87). Finally, they examine whether there were adequate “counterbalancing” factors and safeguards in place (paragraphs 88-92), but without discussing the very fact that the trial court examined the material relied on by the Superintendent and subsequently decided on the applicant ’ s guilt.

With all due respect, it seems to me that the majority thus fail to give an answer to the specific complaint made by the applicant.

The relevant case law: not Al-Khawaja and Tahery , but Rowe and Davis and Edwards and Lewis

4. The majority further hold that they must be guided by the general principles articulated by the Court in Al-Khawaja and Tahery v. the United Kingdom [GC] (nos. 26766/05 and 22228/06, ECHR 2011) (paragraphs 78-79). That case concerns the impossibility to cross-examine an absent witness. It provides for a three-prong test (as is recalled in paragraph 76 of the present judgment): (i) was it necessary to admit the statement by the absent witness?; (ii) if so, was the evidence given by the witness the sole or decisive evidence for the accused ’ s conviction?; (iii) if so, where there sufficient counterbalancing factors?

It is true that the Superintendent could not be cross-examined about the material underlying his belief that the applicant was a member of the IRA, but this does not turn the present case into a case about an absent (or anonymous) witness. I would like to add that neither is this case about a prosecution witness who refuses to answer questions of the defence (compare Pichugin v. Russia , no. 38623/03, 23 October 2012).

5. This case is about the role of the trial court with respect to undisclosed documents.

The relevant principles are, in my opinion, those that can be found in Rowe and Davis v. the United Kingdom [GC] (no. 28901/95, ECHR 2000-II) and Edwards and Lewis v. the United Kingdom [GC] (nos. 39647/98 and 40461/98, ECHR 2004-X). These cases concern the admissibility of undisclosed material in criminal proceedings and the procedure for dealing with such material. In recent cases concerning the non-disclosure of evidence the Court has continued to refer to those principles, not seeking to replace them with the Al-Khawaja and Tahery principles (see, for example, Leas v. Estonia , no. 59577/08 , 6 March 2012; O ’ Farrell and Others v. the United Kingdom (dec.), no. 31777/05, 5 February 2013; and Twomey and Others v. the United Kingdom (dec.), nos. 67318/09 and 22226/12, 28 May 2013). The approach adopted by the majority in the present case is unprecedented.

6. Rowe and Davis sets the general principles for cases like the present one. These principles were also stated in two other judgments handed down on the same day: Jasper v. the United Kingdom [GC] (no. 27052/95, § 53, 16 February 2000), and Fitt v. the United Kingdom [GC] (no. 29777/96, § 46, ECHR 2000-II). They are quoted in paragraph 74 of the present judgment.

These same principles were reaffirmed in Edwards and Lewis (Chamber judgment of 22 July 2003, § 54, quoted in the Grand Chamber judgment, § 46). While Rowe and Davis , Jasper and Fitt all concerned cases in which undisclosed material submitted by the prosecution had been reviewed by the trial judge but not put to the jury which had to decide on the guilt or innocence of the accused, Edwards and Lewis concerned two cases in which undisclosed material had been reviewed by the trial court, while that same court also had to decide on all issues of fact and on the guilt or innocence of the accused. The Court found that the material reviewed ex parte by the trial judge in order to determine whether there had been entrapment by the police concerned an issue that was “of determinative importance to the (accused ’ s) trials” (Chamber judgment, § 57, quoted in the Grand Chamber judgment, § 46). Moreover, since the trial judge had seen prosecution evidence which could have been relevant to the defence submissions on entrapment, while the defence was not informed of the content of the undisclosed material, the Court did not consider “that the procedure employed to determine the issues of disclosure of evidence and entrapment complied with the requirements to provide adversarial proceedings and equality of arms or incorporated adequate safeguards to protect the interests of the accused” (Chamber judgment, §§ 58-59, quoted in the Grand Chamber judgment, § 46).

On the basis of the Rowe and Davis and Edwards and Lewis judgments, it seems to me that the Court would have to answer two questions in the present case: (i) did the trial court, in reviewing the material underlying the Superintendent ’ s belief, see material which was, or could have been, “of determinative importance” for the applicant ’ s trial ( Edwards and Lewis )?; (ii) if so, did the decision-making procedure comply, as far as possible, with the requirement to provide adversarial proceedings [1] and did it incorporate adequate safeguards to protect the interests of the accused ( Rowe and Davis and Edwards and Lewis )?

Application of the Rowe and Davis and Edwards and Lewis principles to the present case

7. In what follows, I will try to give an answer to the complaint, as I interpret it, on the basis of the principles set forth in Rowe and Davis , and further developed in Edwards and Lewis .

8. As to the question whether the undisclosed material was “of determinative importance” for the applicant ’ s trial, I would like to emphasise that “determinative” does not mean “decisive”. In my opinion, it is sufficient that the undisclosed material was or could have been “relevant” for the trial court ’ s assessment of the guilt or innocence of the accused.

There cannot be any doubt that this was indeed the case. The material related to the Superintendent ’ s belief that the applicant was a member of the IRA, and this belief formed the first strand of the evidence tendered by the prosecution.

The majority attach importance to the fact that the Superintendent ’ s belief was not the “sole or decisive” evidence relied on by the SCC (paragraphs 82-87). I believe that this assessment is correct, but in my opinion it is not a relevant issue. Even if the Superintendent ’ s belief had been the sole or decisive basis for the applicant ’ s conviction, this fact alone would in my opinion not necessarily have led to the conclusion that the applicant ’ s trial was unfair.

Indeed, it remains to be seen whether the decision-making procedure complied, as far as possible, with the requirement to provide adversarial proceedings and whether it incorporated adequate safeguards to protect the interests of the applicant.

9. It appears to me that the procedure in the applicant ’ s case allowed, as far as possible, for adversarial proceedings.

In the first place, the SCC decided that it would not base a conviction of the applicant solely on the Superintendent ’ s belief, unless it was satisfied that there was evidence which supported or corroborated it. The applicant was able to comment on each of the other strands of evidence presented by the prosecution.

Moreover, “while the scope of cross-examination (of the Superintendent) was restricted by the trial court ’ s ruling, the possibility to cross-examine the witness on his evidence was not entirely eliminated” (see paragraph 92 of the judgment, with further developments).

10. With respect to the protection of the applicant ’ s interests during the proceedings, I note that the Irish Human Rights Commission (IHRC) in its submissions as a third party was very critical of the decision-making procedure before the SCC. Commenting on the role of the SCC, the IHRC stated: “As noted, the SCC sits without a jury, and so the judges charged with determining the guilt or innocence of the accused hear all the evidence irrespective of whether part of it is later ruled inadmissible... This is in stark contrast to a jury trial where the jury, which ultimately decides matters of guilt or innocence, does not hear evidence deemed to be inadmissible, so their deliberations are not tainted by evidence that should never have been before the court in the first place. It is this safeguard in normal procedure that is such a significant lacuna in the safeguards before the SCC” (written comments of 9 May 2012, paragraph 21). Further in its submissions, the IHRC pointed to the fact that the absence of a jury in the proceedings before the SCC constituted a “structural deficit ..., which should be the overall responsibility of the State” (paragraph 41).

11. I have sympathy for the point of view of the IHRC, but in the end I believe that, notwithstanding the restrictions to the rights of the defence, the procedure in the applicant ’ s case, taken as a whole, incorporated a number of safeguards which sufficiently protected his interests. I would attach particular weight to three aspects of the proceedings. They are also mentioned, albeit with other accents, in paragraph 88 of the judgment.

In the first place, the SCC was well aware of the difficulties the system created for the defence. For that reason, it made two things clear after having reviewed whether the information upon which the Superintendent based his opinion was “adequate and reliable”. It stated “that there was nothing in any of the files which, in the view of the court, would assist the defence in proving the innocence of their clients”, thus deciding that the “innocence at stake” exception was not applicable. It further stated that in weighing and considering the belief evidence of the Superintendent, it “specifically excluded consideration of any information to which the court had become privy as a result of perusing the files relating to the two accused which had been produced by the ... Superintendent”. As the Court of Criminal Appeal (CCA) found in its first judgment, the latter statement indicated that the material examined by the SCC “was (not) influential on that court in making its judgment, let alone inspiring anything determinative of the guilt of (the applicant and his co-accused)”.

It is true that it was the trial court itself that made the reassuring statements. The applicant could not meaningfully contest either of them. However, as for the first statement, it would in any event have been for the court deciding on the merits to assess whether or not there was something in the file that could have gone in the direction of an acquittal, and the accused would have had to accept that assessment, subject to appeal of course. As for the second statement, it is understandable that a convicted person may have doubts as to whether a court was able to disregard material it had seen before. However, as the CCA stated in its first judgment, banishing matters from their minds is something experienced judges do “meticulously and without difficulty every day”. Our Court also accepts that experienced judges perfectly understand how to deal with undisclosed material that cannot serve as a basis for a conviction ( Twomey , cited above, § 38).

Finally, it is important to note that the applicant could have invited the CCA, which was not the trial court, “to ascertain whether (in the process of reviewing the material submitted by the Superintendent) the trial judges had misdirected themselves in respect of the documents or the material contained therein” (second judgment of the CCA). The applicant did not seek such an “independent” review. This failure is an element that considerably weakens the strength of his argument.

12. For the reasons set out above, I would conclude that, despite the examination of some undisclosed, potentially damaging material by the SCC, the applicant has not been deprived of a fair trial.

[1] I would make no reference to the requirement of equality of arms. The material submitted by the Superintendent to the SCC was disclosed neither to the defence nor to the prosecution (see paragraph 18 of the judgment). No issue of equality of arms therefore seems to arise.