DISSENTING OPINION OF JUDGE DE MEYER

It has not been disputed that, at the trial proceedings before the Sheffield Crown Court, the defence and the jury were not informed of the fact that fingerprints relating to a person other than the applicant and his co-defendant had been fo und at the scene of the robbery [1] , nor of the fact that the victim of the robbery had not recognised the applicant fr om the photographs shown to her [2] .

The failure of the police to disclose these facts to the defence and to the jury fundamentally vitiated the fairness of the trial. It was not remedied by the subsequent procedure before the Court of Appeal.

It is difficult to understand how the Court of Appeal could take it for granted that the jury would not have been influenced to act other than they did if they had had the full story [3] . There could of course be reasons to "believe" so, but there could also be reasons to believe that the jury might have taken another decision if they had known about the fingerprints and the photographs. It had moreover to be considered that, as was rightly observed by the minority of the Commission [4] , the applicant would not have been convicted if only one more member of the jury had voted in his favour.

In these circumstances the Court of Appeal ought to have ordered a retrial [5] .

For these reasons I am of the opinion that there has not been a fair trial in the present case.

[*]  The case is numbered 79/1991/331/404.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 247-B) of Series A of the Publications of the Court, but a copy of the Commission's report is available from the registry.

[1] Paragraph 11 of the judgment.

[2] Paragraph 12 of the judgment.

[3] Paragraphs 11-14 of the judgment.

[4] See the dissenting opinion of Mr Gözübüyük, Mr Weitzel, Mr Martinez and Mr Rozakis, Mrs Liddy and Mr Geus;

[5] See, on that point, the judgment of Lord Cross in Stafford v. the D.P.P., referred to at paragraph 42 of the Commission's report.