DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I did not join the majority in voting that there had not been a breach, as in my opinion there was an undeniable violation of Article 6 (art. 6) of the European Convention on Human Rights.

Firstly, because the Court of Appeal prejudged what the jury ’ s decision would have been if they had had to decide and, secondly, because the essential question raised by the Edwards case was that of the principle of public interest immunity, which in English law allows the prosecution, in the public interest, not to disclose or communicate to the defence all the documents in its possession and to "reserve" some of them. Such non-disclosure took place in the Crown Court. The European Court made no express statement of its views on this point and its silence might be understood as approval of this principle, which is not the case. The Court had regard primarily to the failure by the defence to rely on this ground of appeal.

To be sure, it is understandable that the plea of "defence secrets" or "state secrets" should be invoked at the stage of duly authorised telephone taps (see the European Court ’ s judgments in the Klass, Malone, Huvig and Kruslin cases). But once there are criminal proceedings and an indictment, the whole of the evidence, favourable or unfavourable to the defendant, must be communicated to the defence in order to be the subject of adversarial argument in accordance with Article 6 (art. 6) of the Convention. It is conceivable that a hearing may be held in camera so as to protect defence secrets or state secrets. In the Edwards case such a secret was not even involved; it was simply a question of documents and items of criminal evidence in an ordinary case to the effect that Miss Sizer had not recognised the applicant and that the police had neglected to investigate the fingerprints.

In his memorial the applicant made the following pertinent observations:

"At present the law of England and Wales permits the use in evidence of uncorroborated and disputed confession statements provided that the trial judge gives a suitably worded warning to the jury in relation to the confession. A conviction can be founded on such a confession. The law in relation to this matter is presently under review by a Royal Commission.

Even if the jury did not accept such a submission, the fact of Miss Sizer ’ s failure to identify the applicant could itself have raised a reasonable doubt as to the identification of the applicant as the offender and accordingly a reasonable doubt as to his guilt.

The applicant asks the Court to note that the jury convicted him by a majority of ten to two, which indicates that two of the jurors entertained reasonable doubts as to the applicant ’ s guilt. Under domestic law, the applicant could not have been convicted if three or more jurors had entertained such doubt. It would have required only one more juror to entertain reasonable doubt in order for the applicant to be acquitted. The evidence which was withheld from the applicant and the jury might have produced such doubt in the mind of one more juror.

The fact that Miss Sizer had not identified the applicant was material obtained by the prosecution but not used by it in its presentation of the case. As such, it should have been disclosed to the applicant under the Attorney General ’ s Guidelines and applying the principles of domestic law stated in R. v. Bryant and Dickson [1946] 31 Criminal Appeal Reports 146 and R. v. Clarke [1930] 22 Criminal Appeal Reports 58.

The fact that Miss Sizer had failed to identify the applicant, which fact was known to the police before the trial, was unfairly, and in breach of paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d), withheld from the applicant.

...

In English criminal proceedings, the prosecution is required to disclose information of the kind referred to above to the defence. It cannot be denied that such information was not disclosed to the applicant in this case. The United Kingdom has failed to put forward any explanation or justification for this failure to adhere to principles of domestic law which ought, if adhered to, to secure compliance with Article 6 (art. 6)."

The concealment of exonerating evidence and in other cases the fabrication of evidence have plagued police investigations (remember the Birmingham Six and the Ward case).

This shows the importance of the assessment of such a situation in criminal proceedings, and the reservations called for by the decision of the Court of Appeal.

As the defence submitted, the essential point was the credibility of the police officers. Before this Court it argued as follows:

"In those circumstances, it was vital for Mr Edwards to know that, when shown a photograph of the various persons including himself (Mr Edwards), Miss Sizer had failed to pick out Mr Edwards as the offender ...

... If I may leave the trial at this stage and move to the Court of Appeal procedure, the applicant accepts the well- established principle in the case-law of this Court that in considering the fairness of trial procedure under Article 6 (art. 6), the criminal proceedings taken as a whole must be examined. It is also, however, clear that Article 6 (art. 6) requires a tribunal to carry out a fair and public hearing. In this case no one tribunal considered the case fully and with reference to all of the available material.

The submission of Mr Edwards is that the end result of the procedure, taking the trial and the appeal as one sequence of procedure, was a fragmentary procedure. Neither the individual elements of that procedure nor the procedure as a whole can be described as full and fair.

Mr Edwards had two incomplete hearings before two separate courts. The trial hearing was an incomplete hearing in that evidence available to the prosecution was not made available to Mr Edwards. The Court of Appeal was similarly an incomplete hearing. Mr Edwards disagrees with the submission of the United Kingdom that all relevant material was before the Court of Appeal. Mr Edwards reminds the Court that the police conduct of the case against him was investigated by Detective Superintendent Robert Carmichael of the Humberside police force. That investigation followed upon complaints made by Mr Edwards himself about the conduct of the police.

Superintendent Carmichael concluded his report in December 1985. The Carmichael report was submitted to the Police Complaints Authority which in turn submitted the report to the Director of Public Prosecutions. The submission of the report led to the referral of the case to the Court of Appeal by the Secretary of State for Home Affairs."

The Carmichael report should not have been protected by any immunity, and should have been disclosed.

With respect to the failure by the defence to raise this ground of appeal in the Court of Appeal, this argument does not seem to me to be relevant. Such concealment is comparable to a ground of nullity for reasons of public policy in the continental system. Grounds of nullity can and must be raised by the court itself ex officio, even if the defence does not rely on them. In fact, one cannot leave to a possibly inexperienced defence alone the burden of ensuring respect for the fundamental procedural rule which prohibits the concealment of documents or evidence. In the continental system such a fault on the part of the police may lead to criminal proceedings for malfeasance in public office. Cases where evidence has been hidden from the trial court have left bitter memories in the history of justice.

It seems clear to me that the Court of Appeal should have raised this ground of nullity of the proceedings of its own motion and remitted the case to a jury without prejudging what that jury ’ s decision would have been, especially as the original jury had reached its decision by ten votes to two and one vote more would have meant an acquittal.

Under the European Convention an old doctrine such as that of "public interest" must be revised in accordance with Article 6 (art. 6).

The European Court has on numerous occasions stated that it is essential that proceedings are "adversarial" and the favourable and unfavourable evidence is subjected to adversarial examination (see inter alia the Kostovski, Cardot and Delta judgments). This means that the prosecution must communicate the evidence to the defence. For this reason I find that there was a violation of Article 6 (art. 6) in the present case.