Jasper v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 27052/95

by Eric JASPER

against the United Kingdom

The European Commission of Human Rights sitting in private on

15 September 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 September 1994

by Eric JASPER against the United Kingdom and registered on

20 April 1995 under file No. 27052/95;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

8 November 1996 and the observations in reply submitted by the

applicant on 7 February 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1933 and currently

detained in HM Prison Maidstone. Before the Commission, he is

represented by Mr. J. Wadham, a lawyer practising in London.

A. The particular circumstances of the case

The facts of the case, as submitted by the parties, may be

summarised as follows.

On 1 July 1993 a Dutch lorry imported a consignment of frozen

meat from Zeebrugge to Dover. After customs controls the lorry was

taken over by the applicant at a lorry park at Beckton. The applicant

then drove to West Kent Cold Storage at Dunton Green and later on to

a warehouse in Leyton. When he was leaving the warehouse he was

arrested and accused of concealing within the meat approximately three

metric tonnes of cannabis resin. Though the meat was frozen meat the

warehouse was not refrigerated. The refrigeration facility for the

trailer was not in operation.

A search of the applicant's home revealed substantial monetary

outlay. A substantial sum of money in cash (some £24,100) was found in

a safety deposit box together with two passports bearing the

applicant's photographs, the first in his true name, and the second one

in the name of Eric Siggins. Also found in the box were two documents

dated 30 June 1993.

The applicant did not give evidence at his trial. The defence

case was that he had no knowledge of the cannabis hidden in the

consignment and was acting as an innocent haulier of the goods. He

pleaded he was attempting to establish a haulage business and had

bought vehicles, and hired the lock-up garage with this purpose in

mind. Documents found in the applicant's possession at the time of his

arrest indicated that he had received telephone instructions on the

evening of 30 June 1993. These were recorded. The record indicated

that delivery instructions would be found with the load.

On 14 January 1994 the prosecution made an ex parte application

to the trial judge to withhold material in its possession on the

grounds of public interest immunity. The defence were notified that

an application was to be made, but were not informed of the category

of material which the prosecution sought to withhold The trial judge

read the material on the ex parte application. He decided, having

considered how important the material might be to the defence, that it

should not be disclosed. The defence did not have any opportunity to

make representations and were not informed of the outcome of the

hearing.

On 18 January 1994, immediately before the beginning of the

trial, the defence served a formal written request asking the

prosecution to indicate whether, apart from the evidence which had been

the subject of the ex parte hearing on the 14 January 1994, there was

other relevant evidence which the prosecution had not disclosed. The

request was in the following terms:

"9. The Crown are formally asked to indicate (a) in

general whether there is unused material in connection with

this case, apart from the subject-matter of the ex parte

application to the Court on Friday 14 January 1994 ...

which has not been disclosed and (b) in particular:

(i) whether any listening device or telephone intercept

was used, and whether there exists any resulting

recording, note, memorandum, or other record;

(ii) whether there exists any note, memorandum or other

record of any interview with, or statement by any

witness or potential witness in this case that has not

already been disclosed;

(iii) whether there exists any evidence ... of any

observations on the lorry ... or on the premises of

West Kent Cold Storage, and if not, whether any such

observations were in fact carried out;

(iv) whether there were any other observations carried out

in connection with this enquiry that have not been

disclosed;

(v) whether any enquiries were made to trace the vehicles

and/or drivers used for the first two Davidson & Sons

collections from West Kent Cold Store, and if so, with

what result;

(vi) whether HM Customs and Excise acted in this enquiry on

any 'information received' and if so, whether there

exists any log, memorandum, or other record of any

such information."

Prosecution counsel provided the answer to questions 9 (iii) and

(vi), informing the defence that there had been no such observations

and no 'information received' from an informant. However, he declined

to answer the remainder of the questions, and declined to place any

further material before the trial judge for a ruling on non-disclosure,

whether on an inter partes or an ex parte basis. So far as telephone

interceptions were concerned, prosecution counsel contended that it was

not incumbent upon him to seek the trial judge's ruling before deciding

to withhold such evidence on the grounds of public interest immunity.

Defence counsel then applied to the trial judge for an order that

the prosecution answer the other questions. That application was heard

on 24 January 1994 and the prosecution counsel answered as follows:

"I see now, although I had not seen earlier, that sub

paragraphs (ii), (iv) and (v) which I had earlier refused

to answer, are subject to the caveat in the main body of

paragraph 9. In other words, the question that I am asked

is not whether there does exist -- looking at sub paragraph

(ii) -- any note memorandum; whether there does exist any

other observation; or whether there does exist any enquire

in paragraph 5 to trace vehicles and drivers. I am not

being asked whether those things exist, I am asked whether

they exist, apart from the subject matter of the ex parte

application. ...

There are two categories of material. The first ... is

covered by the case of R. v. Ward and subsequently of R. v.

Davis and is also ... the subject ... of the Attorney

General's guidelines. There is another category of material

which is covered by the Interception of Communications Act

and which quite plainly falls to be treated differently in

law. ...

I have refused and still refuse to answer the questions set

out in ... paragraph 9 because I contend that I am not

required to reveal to any person whether there has been any

interception of communications under the Act. If I answer

the question at 9(a) or 9 (b), I shall be answering that

question which I am not required to answer. ... I am

confident I have done what is required of me in respect of

it. ...

I take the view that were there to be any matter falling

under the Interception of Communications Act it should not

be the subject of any ex parte application, even if there

were not."

That position was upheld by the trial judge who, in his ruling

of 24 January 1994, stated inter alia:

"I cannot invite [prosecution counsel], ... to go behind

the stand that he is taking, at this stage, where he takes

the view that even an ex parte application is unnecessary,

which is the way he looks at it ... I think we have taken

the matter as far as we can in that particular aspect. One

is bound, because I have no power [to order] otherwise, to

accept the situation as the prosecutor tells it to be."

On 31 January 1994 the Southwark Crown Court convicted the

applicant of being knowingly concerned in the fraudulent evasion of the

prohibition on importation of three tonnes of cannabis resin into the

United Kingdom. On 21 March 1994 the applicant was sentenced to ten

years' imprisonment.

The applicant appealed to the Court of Appeal. His arguments

were summarised in the Court of Appeal as follows:

"It was clear that not all unused material had been

disclosed ... In open court it was stated on behalf of the

defendant that the unused material was of potential

importance to his defence that he had no knowledge that

drugs were to be or were concealed in the load he carried,

and that he had received his instructions for the

collection by telephone, in the course of his business as

a haulier, very shortly before 1 July 1993 ... Any

information therefore that might have led to his being able

to confirm either the source or content of those

instructions, as well as to trace those who had involved

him in a smuggling enterprise was of obvious importance.

The Crown had declined to answer the question whether any

potentially relevant material, apart from the subject-

matter of the ex parte application, had not been disclosed,

on the grounds that to do so would reveal whether or not

there had been a telephone intercept. It was plain from the

course of the argument that the ex parte application had

not dealt with any telephone intercept, since the Crown

argued that this was the province solely of the prosecutor,

and not that of the judge, a proposition based on R. v.

Preston ...

In these circumstances the defence were entitled to know at

least the category of material with which that application

did not deal ... Furthermore, the Crown should have been

called upon to justify, ex parte if necessary the stance

taken in relation to the other unused material ...

Since there must have been a reason for watching the

defendant, which was explained neither by the evidence

adduced, nor by that served but excluded by agreement, and

since it was said that there was no informant involved in

the case, there is a strong likelihood that disclosable

information, bearing directly upon the defendant's case,

was in the possession of the prosecution."

Prior to the hearing of the appeal defence counsel applied to the

Court of Appeal for an order that the transcript of the ex parte

hearing on 14 January 1994 be disclosed to the defence to enable them

to argue the non-disclosure as a ground of appeal. This application was

heard on 13 February 1995. Defence counsel outlined the applicant's

case that the instructions for the collection of the load had been

received by telephone very shortly before 31 July 1993 and continued:

"... and so any information that might be in the Crown's

possession that might directly or indirectly lead to

supporting that proposition, including the absence, if

there had been, of other relevant observations of any prior

contact with those instructing him, would be a matter that

should be disclosed."

The Court read the transcript of the ex parte application made

to the trial judge. It had access to the material which was the

subject of the ex parte hearing on 14 January 1994. As appears from

the transcript of the 13 February 1995 application, the Court had to

establish the issue to which any unused material had to be relevant in

order to be disclosable at all:

"Otton LJ: ... the unused material which was not disclosed

has to be relevant, or likely to be relevant, to the

defence. The defence here was that he did not know that he

had cannabis in the lorry?

[Defence counsel]: Yes, that was the sole issue before the

jury - did he know."

The Court of Appeal then ruled as follows:

"The application is made, correctly, on the ground that if

the matters which emerged during the ex parte hearing are

relevant, or likely to have been relevant, to the defence

of Mr. Jasper, he should be permitted to have sight of the

ruling and the transcript of the proceedings which took

place on that occasion. We have read the record and it

seems ... that the learned judge ... knew precisely the

scope of the application and listened with the greatest

possible care to the matters which were placed before him.

He tested those matters, and he came to the conclusion that

the ruling which he made was appropriate in all the

circumstances. It is abundantly clear from the transcript

that he throughout was very careful to ensure and to

explore whether the material was relevant, or likely to be

relevant to the defence which had been indicated to him. In

these circumstances, it is impossible for this court to say

that the learned judge erred in principle in adopting the

course that he did, or that the prosecution erred in

principle and we see no ground to set aside the order that

the learned judge made on that occasion."

The Court of Appeal declined to order the disclosure.

On 28 March 1995 the Court of Appeal dismissed the applicant's

appeal. The first ground of appeal, i.e. non-disclosure of relevant

evidence was dismissed in the following terms:

"The first [ground of appeal], taking them in the order in

which they are set out in the grounds of appeal, related to

matters to which the label 'unused material' is commonly

given in these courts. It concerned the natural and proper

desire of those instructed on behalf of the appellant to

make sure, in so far as they could, that no documents or

leads of any other sort existed which the Crown ought, as

a matter of duty, to disclose to the defence if there was

a real or a possible or more than a fanciful chance that

disclosure of those documents or those leads might assist

the defence ...

The Crown did, before the trial, disclose certain matters

to the defence. It was necessary for the Crown to obtain

a ruling from the trial judge as to whether any other

matters which were laid before him were matters that ought,

within the rules of conduct to which we have adverted, to

be disclosed to the defence. The trial judge gave certain

rulings. The defence submitted that they were entitled to

a transcript of that which had transpired at that hearing,

at which of course they were not present (the hearing was

ex parte), and it was that transcript which was the subject

matter of the hearing, to which reference was made earlier,

which took place on 13th February 1995. This Court refused

the application by the defence that they be supplied with

a copy of the transcript. That, in the judgment of this

Court, must be an end of the matter. There is no

suggestion, nor any ground for a suggestion, that the Crown

were in any way in dereliction of their duty of good faith

in making disclosure of anything that ought properly to be

disclosed."

The Court then considered:

"This was a case of enormous strength so far as the

prosecution were concerned. The appellant had been caught

red handed with a huge amount of cannabis resin. He was

exercising a proprietorial form of control over the

packages. He was unloading them and opening them up. By

opening them he was allowing what were ostensibly their

sole contents to defreeze, with a risk (to put it no

higher) of their becoming valueless. He was not the

consignee of the meat. The appellant neither called nor

gave evidence. That, of course, was his right, as the jury

were perfectly properly directed, but it had the result

that the jury were without any explanation whatsoever as

to what, on his case, he was about. It is difficult, if

not impossible, to see what other inference than that he

was indeed guilty of the offence charged any reasonable

jury could have reached. We dismiss this appeal."

B. Relevant domestic law and practice

In December 1981 the Attorney-General issued Guidelines, which

did not have the force of law, concerning exceptions to the common-law

duty to disclose to the defence certain evidence of potential

assistance to it ((1982) 74 Cr.App.R. 302 ("the Guidelines")). The

Guidelines attempted to codify the rules of disclosure and to define

the prosecution's power to withhold "unused material". Under

paragraph 1, "unused material" was defined as:

"(i) All witness statements and documents which are not included

in the committal bundle served on the defence; (ii) the

statements of any witnesses who are to be called to give evidence

at the committal and (if not in the bundle) any documents

referred to therein; (iii) the unedited version(s) of any edited

statements or composite statement included in the committal

bundles."

Under paragraph 2, any item falling within this definition was

to be made available to the defence if "... it has some bearing on the

offence(s) charged and the surrounding circumstances of the case".

The duty to disclose was subject to a discretionary power for

prosecuting counsel to withhold relevant evidence if it fell within one

of the categories set out in paragraph 6. One of these categories

(6(iv)) was "sensitive" material which was defined as follows:

"... (a) it deals with matters of national security; or it is by,

or discloses the identity of, a member of the Security Services

who would be of no further use to those services once his

identity became known; (b) it is by, or discloses the identity

of an informant and there are reasons for fearing that the

disclosure of his identity would put him or his family in danger;

(c) it is by, or discloses the identity of a witness who might

be in danger of assault or intimidation if his identity became

known; (d) it contains details which, if they became known, might

facilitate the commission of other offences or alert someone not

in custody that he is a suspect; or it discloses some unusual

form of surveillance or method of detecting crime; (e) it is

supplied only on condition that the contents will not be

disclosed, at least until a subpoena has been served upon the

supplier - e.g. a bank official; (f) it relates to other offences

by, or serious allegations against, someone who is not an

accused, or discloses previous convictions or other matters

prejudicial to him; (g) it contains details of private delicacy

to the maker and/or might create risk of domestic strife."

According to paragraph 8, "in deciding whether or not statements

containing sensitive material should be disclosed, a balance should be

struck between the degree of sensitivity and the extent to which the

information might assist the defence". The decision as to whether or

not the balance in a particular case required disclosure of sensitive

material was one for the prosecution.

Since 1992, the Guidelines have been superseded by the common

law, notably by the decisions of the Court of Appeal in R. v. Ward

([1993] 1 WLR 619); R. v. Trevor Douglas K. ((1993) 97 Cr.App.R. 342);

R. v. Davis, Johnson and Rowe ([1993] 1 WLR 613); R. v. Preston ([1993]

3 WLR 981); R. v. Keane ([1994] 1 WLR 747); R. v. Winston Brown ((1995)

1 Cr.App.R. 191) and R. v. Turner ([1995] 1 WLR 264).

In R. v. Ward, decided in June 1992, the Court of Appeal gave its

most detailed attention to the question of what duties the prosecution

have to disclose evidence to the defence. The Court of Appeal laid

down the proper procedure to be followed when the prosecution claims

that certain material is the subject of public interest immunity. It

stressed that the court and not the prosecution, was the judge of where

the proper balance lay in a particular case. In dealing with the

question whether the prosecution was obliged to give notice to the

defence where it wished to withhold documents on grounds of public

interest immunity, the Court of Appeal stated:

"... [W]hen the prosecution acted as judge in their own cause on

the issue of public interest immunity in this case they committed

a significant number of errors which affected the fairness of the

proceedings. Policy considerations therefore powerfully reinforce

the view that it would be wrong to allow the prosecution to

withhold material documents without giving any notice of that

fact to the defence. If, in a wholly exceptional case, the

prosecution are not prepared to have the issue of public interest

immunity determined by a court, the result must inevitably be

that the prosecution will have to be abandoned."

In R. v. Trevor Douglas K., decided in November 1992, the Court

of Appeal held that in performing the balancing exercise referred to

in Ward, the court must view the material itself:

"In our judgment the exclusion of the evidence without an

opportunity of testing its relevance and importance amounted to

a material irregularity. When public interest immunity is

claimed for a document, it is for the court to rule whether the

claim should be upheld or not. To do that involves a balancing

exercise. The exercise can only be performed by the judge

himself examining or viewing the evidence, so as to have the

facts of what it contains in mind. Only then can he be in a

position to balance the competing interests of public interest

immunity and fairness to the party claiming disclosure."

The Court of Appeal also established that where an accused

appeals to the Court of Appeal on the grounds that material has been

wrongly withheld, the Court of Appeal will itself view the material ex

parte. In this case the defence were at least aware of the nature of

the evidence in issue. Subsequent decisions have however authorised

a procedure whereby the Crown Court and Court of Appeal may conduct the

balancing exercise without the defence being on notice of the general

nature of the material or, in certain cases, of even the fact that such

material exists and that an application has been made to withhold it.

In January 1993, in R. v. Davis, Johnson and Rowe, the Court of

Appeal held that it was not necessary in every case for the prosecution

to give notice to the defence when it wishes to claim public interest

immunity.

Lord Taylor CJ outlined three different procedures to be adopted.

The first procedure which must generally be followed was for the

prosecution to give notice to the defence that they are applying for

a ruling by the court and indicate to the defence at least the category

of the material which they hold. The defence then have the opportunity

to make representations to the court. Secondly, however, where the

disclosure of the category of the material in question would in effect

reveal that which the prosecution contended should not be revealed, the

prosecution should still notify the defence that an application to the

court is to be made but the category of the material need not be

disclosed and the application should be ex parte. The third procedure

would apply in an exceptional case where to reveal even the fact that

an ex parte application is to be made would "let the cat out of the

bag'. Then the prosecution should apply to the court ex parte without

notice to the defence.

The Court justified its position on the ground that the only way

of avoiding ex parte applications was to say that the prosecution must

choose between following the inter partes procedure or declining to

prosecute and in rare but serious cases the prosecution would then

choose not to prosecute when it was clearly in the public interest to

do so. The Royal Commission on Criminal Justice concluded that this

decision represented a satisfactory balance between the public interest

in protecting sensitive information and the interests of the defence.

The Court of Appeal also noted that the change of procedure had

been to give the court an important role in monitoring the views of the

prosecution as to the proper balance to be struck. Even in cases in

which the sensitivity of the information required an ex parte hearing,

the defence had "as much protection as can be given without pre-empting

the issue". The Court of Appeal held:

"(1) In general, it is the duty of the prosecution to comply,

voluntarily and without more, with the requirements in para. 2

of the Attorney-General's guidelines. (2) If the prosecution wish

to rely on public interest immunity or sensitivity to justify

non-disclosure, then, whenever possible, which will be in most

cases, (a),(b) and (c) of [defence counsel's] formulation ...

will apply. (3) Where, however, to disclose even the category

of the material in question would in effect be to reveal that

which the Crown contends should not in the public interest be

revealed, a different procedure will apply. The Crown should

still notify the defence that an application to the court is to

be made, but the category of the material need not be specified

and the application will be ex parte. If the court, on hearing

the application, considers that the normal procedure under (2)

above ought to have been followed, it will so order. If not, it

will rule on the ex parte application. (4) It may be that, in

a highly exceptional case, to reveal even the fact that an ex

parte application is to be made, could "let the cat out of the

bag" so as to stultify the application. Such a case would be

rare indeed, but we accept the prosecution's contention that it

could occur. In that event, the prosecution should apply to the

court, ex parte, without notice to the defence. Again, if the

court, on hearing the application, considered that at least

notice of the application should have been given to the defence

or even that the normal inter partes procedure should have been

adopted, it will so order."

Finally, the Court of Appeal noted that it was for the court to

continue to monitor the position as the trial progressed. Issues might

emerge during trial which affected the balance and required disclosure

"in the interests of securing fairness to the defendant". For this

reason it was important for the same judge or constitution of the court

which hears the application also to conduct the trial.

In November 1993 the House of Lords had decided R. v. Preston

which concerned the right of the defence to have access to material

obtained by a telephone tap authorised under the Interception of

Communications Act 1985 ["the 1985 Act"] (see also No. 24193/94, Dec.

2.7.97).

Section 2 empowers the Secretary of State to authorise the

interception of, inter alia, telephone calls. The purposes for which

the power may be exercised are circumscribed by the statute and are

confined by Section 2 (2)(b) to the purpose of preventing or detecting

serious crime. Section 6 contains provisions for limiting dissemination

of intercepted material and for its destruction as soon as its

retention is no longer necessary. Lastly, Section 9 (1)(b) provides,

inter alia, that no evidence shall be adduced, and no question in

cross-examination shall be asked, by any party in any proceedings

before a court or tribunal which tends to suggest that a warrant has

been or is to be issued authorising interception of communication.

The House of Lords held that the purpose of 'preventing' serious

crime in Section 2 (2)(b) does not extend to the prosecution of such

crime. It was not the purpose of this Act that intercepted material

should be used in evidence. Indeed, the Secretary of State was under

a duty to destroy the intercepted material as soon as the object for

which it was collected was achieved, which will usually happen long

before a criminal trial has taken place. Accordingly, the House of

Lords regarded the 1985 Act as making an exception to the general rule

that the prosecution must disclose all unused material to the defence.

Lord Mustill made observations on the duties of the prosecution in this

regard. He reiterated that disclosure by the prosecution turns not on

admissibility but on materiality. The prosecution is therefore duty

bound to disclose material even if it would be inadmissible. Further,

material must not be withheld from prosecuting counsel on the ground

that it is inadmissible in evidence, for he could not perform his

broader duties to see justice done without knowing all the material

that there is to know.

In March 1994, the Court of Appeal gave judgment in R. v. Keane

which concerned a non-disclosure of the details of an informant by the

prosecution to the defence. This judgment highlighted two points. The

first concerns a matter of principle. The Court of Appeal held that in

every case in which the prosecution objects to the disclosure of

relevant material on grounds of public interest immunity, the judge

must balance the public interest in non-disclosure against the

importance to the defence of the materials in question. Moreover, if

the judge concludes that the material in question might prove the

defendant's innocence or avoid miscarriage of justice, he is duty bound

to order disclosure. The second point concerns the procedure to be

followed in determining a claim for immunity. It has been determined

that a judge may not sanction the withholding of evidence in a criminal

case without inspecting the evidence in private and satisfying himself

that its suppression would not result in miscarriage of justice.

In June 1994, in R. v. Winston Brown, the Court of Appeal

reviewed the operation of the Guidelines. It stated:

"The Attorney General's objective was ... to improve the existing

practice of disclosure by the Crown. ... But the Attorney General

was not trying to make law and it was certainly beyond his power

to do so ... The Guidelines are merely a set of instructions to

Crown Prosecution Service lawyers and prosecuting counsel ...

Judged simply as a set of instructions to prosecutors, the

Guidelines would be unobjectionable if they exactly matched the

contours of the common law duty of non-disclosure ... But if the

Guidelines, judged by the standards of today, reduce the common

law duties of the Crown and thus abridge the common law rights

of a defendant, they must be pro tanto unlawful ...

[T]oday, the Guidelines do not conform to the requirements of the

law of disclosure in a number of critically important respects.

First, the judgment in Ward established that it is for the court,

not prosecuting counsel, to decide on disputed questions as to

disclosable materials, and on any asserted legal ground to

withhold production of relevant material ... For present purposes

the point of supreme importance is that there is no hint in the

Guidelines of the primacy of the Court in deciding on issues of

disclosure ... Secondly, the guidelines are not an exhaustive

statement of the Crown's common law duty of disclosure: R. v.

Ward at 25 and 681D. To that extent too the Guidelines are out

of date. Thirdly, the Guidelines were drafted before major

developments in the field of public interest immunity. [I]n

paragraph 6 the Guidelines are cast in the form of a prosecutor's

discretion ... Much of what is listed as 'sensitive material'

is no doubt covered by public interest immunity. But not

everything so listed is covered by public interest immunity ..."

In October 1994 the Court of Appeal decided the case of R. v.

Turner where it returned to the balancing exercise. As in R. v. Keane,

the case concerned the increasingly common situation where the

prosecution did not wish to disclose the details of an informant but

the defence claimed that these details were essential to its case.

The day before the trial the prosecution applied ex parte to the

judge for a ruling that it was not under any duty to disclose the

details of the informant who had alerted the police, and the judge

ruled in its favour. On appeal, Lord Taylor endorsed the balancing

test which required the judge to have regard, on the one hand, to the

weight of the public interest in non-disclosure against the importance,

on the other hand, of the documents to the issues of interest to the

defence, present or potential, so far as they had been disclosed to him

or he could foresee them. But in view of the tendency for defendants

to seek disclosure of informants' names and roles, Lord Taylor alerted

judges to the need to scrutinise applications for disclosure of details

about informants with very great care and continued:

"Clearly, there is a distinction between cases in which the

circumstances raise no reasonable possibility that information

about the informant will bear upon the issues and cases where it

will. Again, there will be cases where the informant is an

informant and no more; other cases where he may have participated

in the events constituting, surrounding, or following the crime.

Even when the informant has participated, the judge will need to

consider whether his role so impinges on an issue of interest to

the defence, present or potential, as to make disclosure

necessary."

The Court of Appeal then concluded:

"It is sufficient for us to say that in this case we are

satisfied that the information concerning the informant showed

a participation in the events concerning this crime which,

coupled with the way in which the defence was raised from the

very first moment by the defendant when he said that he was being

set up, gave rise to the need for the defence to be aware of the

identity of the informant and his role in this matter. We

therefore conclude that if one applies the principle which has

been quoted from R. v. Keane to the facts of the present case,

there could only be one answer to the question as to whether the

details concerning this informant were so important to the issues

of interest to the defence, present and potential, that the

balance which the judge had to strike came down firmly in favour

of disclosure."

COMPLAINTS

The applicant submits that his trial at the Crown Court and the

Court of Appeal violated Article 6 of the Convention in the following

respects:

1 The non-disclosure to the defence of evidence which was

acknowledged to be relevant and material, violated the applicant's

right to adequate facilities for the preparation of his defence

guaranteed by paragraph 3(b) and, consequently, placed him at a

substantial disadvantage in the conduct of proceedings - in particular

in the oral examination of witnesses according to paragraph 3(d) - and

thereby violated the principle of equality of arms.

2 The ex parte procedure, whereby the Crown Court and the Court of

Appeal gave rulings approving the non-disclosure of evidence at

hearings held in the absence of the applicant or his counsel, and

without affording them the opportunity to make informed representations

or providing a transcript of the hearing, violated the applicant's

right to a fair and public hearing guaranteed by paragraph 1.

3 The defects were not remedied by the hearing before the Court of

Appeal since neither the applicant nor his counsel had the opportunity

to see the undisclosed material at the appeal hearing, and, in

consequence, were unable to make informed representations about the

impact of the material on the safety of the conviction.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 September 1994 and

registered on 20 April 1995.

On 26 June 1996 the Commission decided to communicate the

application.

The Government's written observations were submitted on

8 November 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 7 February 1997, also after an

extension of the time-limit.

On 21 January 1997 the Commission granted the applicant legal

aid.

THE LAW

The applicant complains about an unfair trial and an inability

to prepare his defence or effectively to cross-examine prosecution

witnesses. The ex parte procedure, in which the courts approved the

non-disclosure of relevant evidence on the grounds of public interest,

was held in the absence of the applicant and his counsel and without

affording them the opportunity to make informed representations. The

applicant was, therefore, at a substantial disadvantage in the conduct

of proceedings and thereby the principle of equality of arms was

affected. In addition, the applicant argues that the prosecution also

had in its possession information relating to the content of telephone

intercepts which was withheld by the prosecution and which was never

placed before the trial judge under the ex parte procedure. He invokes

Article 6 (Art. 6) of the Convention, the relevant parts of which read

as follows:

"1. In the determination ... of any criminal charge against

him, everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law. ...

...

3 Everyone charged with a criminal offence has the following

minimum rights:

...

b. to have adequate time and facilities for the preparation of

his defence;

...

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him; ..."

The Government first submit that neither the general principle

of fairness in criminal proceedings under Article 6 para. 1 (Art. 6-1)

of the Convention nor the specific right to "adequate facilities" under

Article 6 para. 3(b) (Art. 6-3-b) of the Convention requires an

absolute right for the defence to disclosure of all relevant material.

Moreover, previous cases decided by the Convention organs do not

establish any such principle whether by analogy or otherwise and, on

the contrary, have recognised the legitimacy of non-disclosure of

confidential or sensitive material in criminal proceedings.

As to the issue of principle, the Government submit that there

are categories of material which the public interest requires either

should not be disclosed at all, or should not be disclosed without a

compelling reason. The basis on which that public interest rests is

that damage would or, at the least, might be caused by disclosure.

They claim that the concept of relevant material covers material

in a very broad spectrum. At one end of the spectrum is material which

is likely not to assist the defence at all, but rather to assist the

prosecution. In criminal cases the principle of public interest

immunity might operate to prevent use by the prosecution of such

material, even if such material incriminated the accused. At the other

end is material which would tend to establish an accused's innocence.

The Government note that if the disclosure of relevant material

is a requirement implicit in the reference to "adequate facilities" in

Article 6 (Art. 6) of the Convention or the concept of a fair trial,

the consequences are that (i) the public interest in preventing the

damage which would follow disclosure would be wholly irrelevant to the

disclosure requirements in criminal cases - no matter how obvious or

serious the risk, and that (ii) it would be impermissible in any case

to assess and take into account the true importance of the material to

a fair and proper presentation of the defence case, as opposed simply

to deciding whether it passed the low threshold of relevance.

They contend that it is necessary in this context to bear in mind

the important public interest in ensuring that, where there is

sufficient admissible evidence to support the prosecution of an

individual with at least a realistic prospect of a conviction being

obtained, the case should be allowed to proceed to trial. That public

interest is directly relevant here because the alternative to

disclosure is for a prosecution either not to be mounted or to be

abandoned. In relation to informants, (i) the authorities are likely

to be extremely reluctant to reveal the identity of an informant, both

because of the risk of physical harm to that informant and because of

the importance to the effective detection of crime of ensuring that the

sources of information do not dry up, and (ii) an accused will know

this and accordingly will have every incentive to seek disclosure of

the identity of an informant, in an attempt to ensure that he is not

prosecuted, whatever the strength of the evidence against him.

The Government argue that a decision not to mount or to abandon

a prosecution is an outcome which may be inevitable. If the public

interest in non-disclosure is irresistible in a particular case, but

it is clear that the material is important to enable the defence case

to be properly and fairly put, a prosecution could not be mounted or

continued. Fairness to the accused would be paramount. The effect of

an absolute principle based solely on relevance would, however, be to

increase those cases in which the prosecution could not be mounted or

would have to be abandoned. That increase would be accounted for by

cases in which the material in question, although passing the low

threshold of relevance, was of relatively minor importance to the

accused. If such material was of real importance to a fair presentation

of the defence case, its disclosure would, if necessary, be ordered in

any event under existing principles applied by the courts.

The Government further submit that the domestic courts have been

astute to ensure that any non-disclosure does not compromise the

fairness of proceedings. Thus, the relevant principles applicable under

domestic law enable the court to balance the importance and weight of

the public interest in not disclosing the material in question and the

importance of that material to the fair and proper conduct of the

defence case. That balancing exercise is weighted in favour of

disclosing material in recognition of the importance of achieving the

fullest possible disclosure of relevant material. The Government claim

that these principles are sufficient to ensure and safeguard the

fairness of proceedings.

The Government recall that criminal proceedings are to be judged

as a whole including any appellate process, as the European Court

stressed in Edwards v. the United Kingdom (judgment of

16 December 1992, Series A no. 247-B, p. 34, para. 34). In the present

case, as appears from the judgment of the Court of Appeal, the case

against the applicant was "of enormous strength". He was, again in the

Court of Appeal's words, "caught red handed with a huge amount of

cannabis resin". He was opening the packages of meat. He was allowing

the meat (which, if he was unaware of the cannabis, were the only

contents of the packages) to defreeze rendering it effectively

worthless. In the Government's view, there was a large quantity

ofevidence from which an inference of knowledge seemed the only

possible inference. Moreover, the applicant did not explain his

actions either to the police or in evidence in court.

The Government submit that the material was withheld following

ex parte hearing before the trial judge. The procedure laid down in

Davis, Johnson and Rowe was followed. The decision reached by the

trial judge was carefully reviewed by the Court of Appeal. Both

concluded that, in summary, fairness to the applicant did not require

disclosure of any further material to the defence.

As to the possibility of telephone interceptions having been

withheld, the Government neither confirm nor deny that there was any

such interception. In practice, the product of any such interception

will in any event have been destroyed pursuant to Section 6 of the 1985

Act. Accordingly, the principle of equality of arms was observed as

neither the prosecution nor the defence could use such product.

As regards the fact that the decision of 14 January 1994 by the

trial judge was not published, the Government point out that the

defence was informed of the fact that an application was to be made ex

parte on an issue of disclosure, but it was not informed of the

category of material sought to be withheld. It was not so informed

because to have done so would have been, according to R. v. Davis,

Johnson and Rowe, to pre-empt the outcome of the application. The

Government further note that as a result of the ex parte application

the court would have decided either that the material in question

should be disclosed or that the material was properly to be withheld

(either because it was not relevant or because, although relevant, the

balance came down in favour of the public interest in non-disclosure).

In the former case the material in question would then be disclosed and

there would be no need to "publish the decision". In the latter case,

there would be no purpose in publishing the decision if simply to state

that a claim to withhold material had been upheld. To state anything

further, in a case in which the nature of the material precluded

informing the defence of the category of material, would be to risk the

very damage which the application had been designed to prevent.

Accordingly, in the light of those matters, the Government claim that

this fact does not advance the applicant's case or support any

allegation of unfairness.

As to the question whether the procedure for determining where

a fair balance lay was in itself in violation of Article 6 (Art. 6) of

the Convention, the Government submit that the Court of Appeal

considered the nature of the procedure to be followed in R. v. Davis,

Johnson and Rowe. The central aim of the procedure laid down by the

Court of Appeal was to ensure that, so far as possible, the accused and

his lawyers should be given the maximum amount of information and the

maximum opportunity to make submissions to the court. The Court of

Appeal recognised however that any hearing before, or decision of, the

court would be rendered meaningless if the nature of the procedure

prior to such decision itself had the effect of revealing the

information.

The Government also submit that the procedure outlined by the

Court of Appeal is specifically designed to achieve this central aim:

(1) The procedures described as "type 2" (notification of application

but application made ex parte and without disclosing the category of

material) and "type 3" (no notification even of fact of an application)

procedures, are to be used if, and only if, the disclosure of either

the category of information (type 2) or the very fact of an application

(type 3 - "a highly exceptional case") would have the effect of pre-

empting the outcome of the application.

(2) The decision whether or not disclosure even of this limited

information will in effect reveal that the Crown contends should not

in the public interest be revealed is itself one for the court. If it

disagrees with the Crown's view, one of the procedures involving

greater disclosure of information will be used.

For the Government, the fundamental problem with the criticisms

of the "type 2" and "type 3" procedures made by the applicant is that

he ignores the factual basis which must exist before those procedures

are followed - namely that to reveal either the category of material

or the very fact of an application would be to pre-empt the outcome and

to cause the very damage which is sought to be prevented by the

application. The majority of the applicant's criticisms go to the

limited involvement or absence of involvement of the accused and his

lawyer in such applications. If the factual basis referred to above

is found by the court to exist, that limited involvement or absence of

involvement is not merely inevitable, but necessary in order to avoid

pre-empting the outcome. A further inevitable and necessary

consequence in such cases is the fact that a detailed, public judgment

cannot be given.

The Government contend that none of the Convention organs' cases

involved a challenge to a procedure which was ex parte because that was

the only way in which to avoid pre-empting the outcome. Nor is any

such principle either inherent in Article 6 (Art. 6) of the Convention

or necessary in order to ensure the fairness of criminal proceedings.

In the Government's view, it would be strange indeed if that were to

be the case, because such a principle would require a procedure which

rendered any subsequent decision on the issue before the court

meaningless.

In the present case, an ex parte application was made to the

trial judge and was reviewed on appeal by the Court of Appeal. At

these hearings, the courts concluded that the category of material

could not be revealed without pre-empting the outcome. These were

accordingly "type 2" procedure. The applicant's criticism that "the

judge is obliged to speculate on the possible issues which the defence

may seek to raise" is not well-founded (i) as a general criticism

because of the continuing duty on the court to monitor the balancing

exercise in the light of the issues raised, (ii) on the present facts

because the trial judge was able to assess the likely narrow issue

prior to the trial and keep that assessment under review as the trial

progressed and the Court of Appeal had the benefit of being able to

review all the issues which had in fact been raised by the defence at

trial.

The Government conclude that the procedures for dealing with

applications raising the issue whether or not particular material

should be disclosed in fairness to the defence are not in violation of

Article 6 (Art. 6) of the Convention.

The applicant submits that the case raises an important issue of

principle concerning the limitation (if any) on the duty of disclosure

implicit in Article 6 (Art. 6), and recognised, in particular, by the

European Court in the Edwards v. the United Kingdom judgment and of the

fairness of the ex parte procedure for determining claims to public

interest immunity. He recalls that in Edwards all the evidence which

had been withheld at trial had been fully disclosed to the applicants

by the time of the Court of Appeal. In that case, the applicants

therefore had the opportunity to make informed representations to the

Court of Appeal upon the significance of the evidence; and the Court

of Appeal had the opportunity of assessing its impact on the

convictions in the light of those submissions.

The applicant submits that in his case, however, the undisclosed

material remained undisclosed throughout, and the Court of Appeal

followed an unfair and secretive procedure from which the defence were

excluded. Far from being remedied before the Court of Appeal, the

complaints raised in his original application were simply repeated.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and facts under

the Convention, the determination of which should depend on an

examination of the merits of the application as a whole. The

Commission concludes, therefore, that the application is not manifestly

ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention. No other grounds for declaring it inadmissible have

been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission