Case No: T20067402

IN THE CROWN COURT
CENTRAL CRIMINAL COURT

Date: 27/02/2014

Before :

MR JUSTICE OUSELEY
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Between :

	WANG YAM	Applicant	
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H.M.  ATTORNEY GENERAL	Interested Party	

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Ms Kirsty Brimelow QC and Mr Nikolaus Grubeck (instructed by Janes Solicitors) for Wang Yam 
Mr James Eadie QC and Mr Jonathan Hall (instructed by The Treasury Solicitor) for the Attorney General

Hearing dates: 16th December 2013
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Judgment
MR JUSTICE OUSELEY : 
1.	On 15 January 2008, I made an order under the Court’s inherent jurisdiction excluding the access of the press and public to part of the trial of Wang Yam for murder and related offences of dishonesty at the Old Bailey. This order was upheld by the Court of Appeal Criminal Division, Lord Phillips CJ, Silber and Underhill JJ on 28 January 2008, [2008] EWCA Crim 269. I delivered an open and “in camera” judgment, as did the CACD.   The Order was made in the interests of national security and for the protection of the identity of a witness or other person. 

2.	I was the judge at the first trial. The jury was unable to reach a verdict on the murder charge. Wang Yam was convicted of murder at a retrial at which I was also the judge and to which the same exclusionary order applied. His appeal against that conviction was rejected by the Court of Appeal Criminal Division, Hughes V-P CACD, Saunders and Thirlwall JJ, on 5 October 2010.  His appeal had included the ground that the effect of that order had made the trial unfair. That ground was rejected as unarguable.  There is only an open judgment; [2010] EWCA Crim 2072. 

3.	The CACD stated that the order which I had made in support of the order for the exclusion of the public from parts of the trial, was to remain in effect until further order.  It said:

“Limitation on publicity
There has been no occasion for this court to give any part of its judgment in closed form. This judgment may be reported without restriction. But in order to confirm the position, we reiterate the order which we made at the outset of the hearing. There were orders made by Ouseley J at the trial, which prevented any publication which could reveal the grounds or reasons for excluding the public from part of the proceedings, or any evidence, submissions, judicial decisions or other matter heard or dealt with in camera. Those orders are to remain in force. They are attached hereto, together with an informative explanation. Similarly there must be no publication of anything which could reveal the grounds on which a limited part of the proceedings before us was conducted in camera, or anything which occurred during that part of the hearing before us. 
Order of Ouseley J, 15 January 2008.
It is ordered under section 11 of the Contempt of Court Act 1981, and all other powers enabling, that:
the court having ordered that the press and public be excluded from part of these proceedings for the due administration of justice, no report is to be published revealing the grounds or reasons for the making of the order or any evidence, submissions, judicial decisions or other matter heard or dealt with in camera, other than that which has been said in public in these proceedings. For the avoidance of doubt the reasoned judgment delivered by the Honourable Mr Justice Ouseley on 15 January can be published. This order does not affect the operation of the normal rules of contempt of court applicable to any evidence, submission or discussion dealt with in public, in the absence of any specific order.
This order to remain until further order.
"Informative: Media organisations are reminded that purporting to reveal or speculating as to what was or may have been said in camera may be an attempted contempt of court, punishable as a contempt: A [2006] 1 WLR 1361."

4.	Wang Yam has made an application to the ECtHR challenging his conviction as involving a breach of Article 6 ECHR, and wishes to refer to the “in camera” material in his response to the UK Government’s observations on that application, albeit subject to such restrictions on its public use as the Strasbourg Court might impose. Ms Brimelow QC for Wang Yam, who had represented him as junior counsel in both trials, contended that the Order did not preclude reference to the “in camera” material for the purposes of his application to the ECtHR, and that if it did so, it should be varied so that his application to the ECtHR could do so.  Accordingly, I heard this application as the judge who had made the Order in the first place, sitting, notionally, at the Old Bailey. 

5.	Mr Eadie QC for the Attorney General, articulating the public interest on behalf of the Government in a case such as this, as he put it quite correctly, contended that the Order did preclude references to the “in camera” material in Wang Yam’s application to Strasbourg, and should not be varied to permit the application to do so. Mr Eadie produced a Public Interest Immunity Certificate, signed by the Secretary of State for Foreign Affairs and dated 11 December 2013, confirming the continuing public interest which underlay the “in camera” order in the first place: 

“that there would be a real risk of serious harm to an important public interest were either the Order to be discharged in its entirety, or in part, permitting disclosure of the “in camera” information, or were disclosure to be made to the Strasbourg court of the information in the draft “response document”.

This was supported by a closed schedule, not seen by Ms Brimelow but she was aware of its existence.

6.	I have seen the draft “response document”. The Government had suggested changes to it which would have led to its objections being dropped. But these did not go far enough to satisfy Ms Brimelow. 

7.	Ms Brimelow has not made any references to the “in camera” material in the application yet, since she did not want to risk breaching a Court order and, in the light of my indication at the end of the hearing that the order should be treated as preventing such references until I had ruled upon it, she agreed that she would make no reference to it unless and until the Order was varied to permit her to do so.

The trial and appellate decisions

8.	The Crown applied to me for an order that parts of the evidence be heard in camera. I heard evidence in camera in support of this contention. Mr Robertson QC, then leading Counsel for Wang Yam, cross-examined the witness on issues relevant to the argument before me. The Defendant’s argument before me in January 2008 was based on the common law rather than on some particular requirement of Article 6 ECHR, not provided for by the common law.  I made an order excluding the public and press from specified parts of the hearing. One factor of real importance was that there was a very real possibility that there would be no trial at all if the order were not made.  But I was satisfied that a fair trial would still be conducted.   

9.	The Defendant appealed against that ruling before the trial began. The CACD in paragraph 7 of its January 2008 judgment summarised the basis on which, in open, the “in camera” order had been made: 

“Ouseley J held, on the basis of material placed before him in camera, that if the press and the public were not excluded from certain parts of the trial, "serious risks would be taken". So serious were these risks that the Crown might well drop the prosecution rather than incur them. If the press and the public were excluded from the relevant parts of the trial, the trial would go ahead, the risks would not be taken and a fair trial would nonetheless be possible. In these circumstances the interests of justice required that he should order the exclusion of the press and the public from those parts of the trial.”

10.	The Court rejected Mr Robertson QC’s contention that the risks to the protected interests could not justify dropping the prosecution in the absence of the order, and held that the exclusion of the press and public from part of the trial would not make the trial unfair.

11.	The media had objected to the order, relying on Article 10 ECHR, but did not appeal my ruling.

12.	The “in camera” order excluding the press and public related to part of the evidence  put forward by Wang Yam as his  explanation for involvement, to the extent that he admitted it, in some of the acts relied on by the Crown as proving his  dishonest involvement in the use of the deceased’s identity and bank accounts. This dishonest activity was an essential part of the Crown’s case on the murder charge. None of the prosecution evidence to establish Wang Yam’s dishonest involvement and responsibility for the murder was heard in camera. The prosecution evidence heard in camera rebutted Wang Yam’s explanation for such involvement as he admitted in the acts alleged by the Crown to be fraudulent.  This evidence was not therefore needed by the Crown in the first place to prove its case against Wang Yam. 

13.	Although the order did not require that all of Wang Yam’s evidence be heard in camera, in the event all of the evidence which he himself gave was heard in camera since he found it impossible to maintain the distinction between those parts of his evidence which were ordered to be dealt with in camera and those parts which were not. Constant interruptions to enforce the “in camera” order, which in any event might well come after some inadvertent disclosures, would have impeded his giving evidence in the free flowing way he adopted. But the advocates’ speeches about that part of his evidence which the exclusionary order did not require to be given in camera, and its summing-up, were not dealt with in camera. 

14.	Wang Yam appealed against conviction to the CACD.  He contended that the conviction was unsafe since holding part of the trial in camera had deprived him of the considerably greater media coverage which would have been likely, and thus of the possibility that additional witnesses would have come forward to support his case.  In particular, he had contended  that there might have been  others who could have given evidence about the existence and gangster characteristics of those whom he blamed for supplying him with the deceased’s cheques, credit cards and banking information, and there might have been further evidence of his essentially good and non-violent character. This contention was dealt with between paragraphs 22-27 of the October 2010 CACD judgment, before it was rejected as “unarguable”. The Court refused to grant leave to argue the point. The Court refused to certify any point of law of general public importance.

15.	I do not need to set out those paragraphs, but they are important for understanding the extent to which the current application to the Strasbourg Court has any possible merit, and that may be relevant to any balancing exercise which I have to carry out. 

The ECtHR proceedings

16.	On 6 May 2011, the Applicant lodged his application with the ECtHR under Article 34 ECHR and Rule 47 of its Rules of Court. It raises four grounds for alleging that Article 6 was violated in his trial and retrial: “the in camera hearing of Wang Yam’s defence”, autrefois acquit of murder based on the conviction (now quashed) for receiving stolen goods, the conviction for murder based on circumstantial evidence was “generally unfair”, and the admission of “resemblance evidence”, the evidence of a so-called partial identification, rendered “the entire trial unfair”.  This largely covers the territory of his appeal against conviction. The application before me is concerned only with the first ground in his application to Strasbourg.  

17.	The submissions on the first ground adopt much of what was rejected as unarguable by the CACD in October 2010. There would have been considerable media coverage of the defence. It was disproportionate for the media and public to be excluded from the defence in a murder trial.  It would have placed witnesses called by the Crown “under public scrutiny”. Additional witnesses could have been encouraged to come forward, or to provide sources for cross-examination material. The defence could not “properly challenge the case against Mr Yam, and present an alternative explanation”. The principle of equality of arms was violated since “the prosecution case was conducted in public but Wang Yam could not examine his defence witnesses under the same conditions as those for the prosecution”. 

18.	On 9 April 2013, the UK Government submitted its observations. For the various reasons given it submitted that the application on ground one, and on the other grounds for that matter, was “manifestly ill-founded and without merit”. 

19.	The Applicant’s response of 22 August 2013 complains of the difficulties experienced in accessing the “in camera” material, and of delay and obstruction by the Government. It submits that the Applicant cannot fully argue his case without referring to the “in camera” material.  The Government had objected to any such reference being made since it would contravene the “in camera” order, and reference to it was not necessary for the ECtHR to reach a conclusion on the application.  The Applicant riposted that the right of application to the ECtHR was absolute, and that it was not for the Government to restrict the Applicant’s response to the Government’s observations.  It is in response to the Government’s submissions that Ms Brimelow says she wishes to refer to some “in camera” material.  The ECtHR should identify a secure means for keeping the response confidential. That would avoid a breach of the contempt order. The Applicant, as was emphasised to me, was not trying to put the “in camera” material into the public domain in his ECtHR application, even though he contended that it should have been heard in public for his trial to be fair. 

20.	The ECtHR Section Registrar wrote to the parties on 2 August 2013, extending time for the submission of the Applicant’s observations to 1 September 2013, because of the debate over the extent to which reference could be made to the “in camera” material in the response.   

21.	On 30 August 2013, the Section Registrar wrote to the UK Government that the Court could “confirm” that it had “procedures in place to ensure the safe storage of secret documents should the need arise”.  However, since there appeared to be an argument that making reference to such material in the observations would breach domestic law, the Section President decided to extend the 1 September deadline so that this application could be made to me.

Non-contentious issues

22.	Before the hearing I had asked for submissions on a number of issues to assist me to deal with this unusual application. There was a large measure of agreement on the original source of the powers to make the “in camera” orders, on whether or not the Court was functus officio, on the procedure for varying such an order, and on the rights of appeal or other routes of challenge to any decision which I might make on Ms Brimelow’s application.  

23.	The Order excluding the press and public from parts of the trial was made pursuant to the Court’s inherent jurisdiction since the interests of justice required it, following the procedure in the Criminal Procedure Rules, rule 16; see paragraphs 5-6 of the 28 January 2008 CACD open judgment.  That Order was itself supported by the Order under s11 of the Contempt of Court Act 1981, and all other powers enabling such an order, which included the inherent jurisdiction. 

24.	It was agreed that the trial Court was not functus officio, and still had power to vary or discharge the 2008 Order or its continuation by the CACD in 2010. Mr Eadie referred to two recent cases to that effect.  The relevance of what happened in Amin v Director-General of the Security Service [2013] EWHC 1579 QB, see para 27, is only hinted at, but Mr Hall, junior Counsel here and who appeared in Amin, tells me that it refers to an order made by Lord Judge CJ in the CACD who exercised the powers of a Crown Court judge and varied the “in camera” order made in the criminal proceedings, so as to permit the use of “in camera” material in civil proceedings. I was also told that in Ahmed v Director-General of the Security Service (claim no. HQ09X03608)  Saunders J as a Crown Court judge accepted a continuing jurisdiction, after conviction and appeal, to vary “in camera” orders for the purpose of domestic civil proceedings.     

25.	Part 16 of the Criminal Procedure Rules applies to the making of an application to vary or discharge such a restriction, which can be heard in private, after each party and those directly affected have had an opportunity to make representations.  In fact, save for a very short period, this application was heard in public. 

26.	I had also been concerned that, in view of the effect of the order which I was being asked to make, either way, I should be clear what further routes of appeal or challenge to my decision would be open to either party, since that could affect the constitution of the court hearing this application in the first place. I am satisfied that one or both of two routes would be open to either side.  First under s159(1)(a) of the Criminal Justice Act 1981, an appeal could lie with the leave of the Court of Appeal against an order restricting access under s11 of the Contempt of Court Act 1981, under s159(1)(b) against an order restricting public access to the whole or to any part of a trial on indictment, and under s159(c) restricting the publication of any report of the whole or part of any trial on indictment. Second, my decision would probably be amenable to judicial review, under s29(3) of the Senior Courts Act 1981, since the exercise of the jurisdiction of the Crown Court is amenable to judicial review save where it relates “to trial on indictment”.  I agree with Mr Eadie that this application, although arising out of a trial on indictment, is probably not “a matter relating to trial on indictment” since the trial has concluded.  Some support for that is to be found in R v Manchester Crown Court ex p H [2000] 1 WLR 760 D Ct; judicial review of the discharge by Sachs J of a prohibition on the identification of a minor was seen as a collateral issue, as the trial had concluded, and having regard to the nature of the application.  The order at issue is not as such now directly appealable to the CACD. 

The powers of the ECtHR

27.	Article 34 ECHR, which provides for the right of individual petition by those who claim to be victims of a violation of the Convention Rights, concludes:  “The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”  Article 38 provides for the State Parties to assist the ECtHR in the conduct of its examination of a case or in any investigation, requiring them to “furnish all necessary facilities” for the Court, if it declares the application to be admissible.  Neither Article has been incorporated into domestic law by the Human Rights Act 1998 or other legislation.

28.	Enforcement of ECtHR decisions is ultimately through the Committee of Ministers of the Council of Europe; Article 46. The decisions of the Committee of Ministers must be taken into account, as with decisions of the ECtHR by the UK Courts, when determining a question which has arisen in connection with a Convention right; s2 HRA.  There is no relevant decision of the Committee of Ministers. 

29.	Relevant rules of the Strasbourg Court, the 2013 Rules of Procedure, include Rules 44A, B and C. These provide (A) for a duty on the parties to co-operate fully in the conduct of proceedings and to take “such action within their power as the Court considers necessary for the proper administration of justice”, (B) for the President of the Court to take any steps considered appropriate where a party fails to comply with an Order of the Court concerning the conduct of proceedings, and (C) for the Court to draw such inferences as it considers appropriate where a party fails to adduce evidence or to provide information requested by the Court.

30.	It was agreed by the parties before me that the UK Courts had no power to impose upon the Strasbourg Court any conditions as to the receipt, handling, and disclosure of any “in camera” material sent to it. However, as indicated in the Section Registrar’s letter of 30 August, the Strasbourg Court does have procedural powers which enable it to impose restrictions on public access to certain material.  Article 40 provides for hearings to be in public “unless the Court in exceptional circumstances decides otherwise”; likewise documents deposited with the Registrar are open to the public “unless the President of the Court decides otherwise”.  By Rule 33, the President can decide otherwise of his own motion or at the request of a party or of any other person concerned. The basis for such a decision is where “the interests of morals, public order or national security in a democratic society, [or] where the …protection of the private life of the parties or any person concerned so require, or to the extent strictly necessary in the opinion of the President of the Chamber in special circumstances where publicity would prejudice the interests of justice”. The request for confidentiality must include reasons. By Rule 63, the press and public can be excluded from all or part of a hearing. 

31.	A recent and important example of how these procedures operate is Janowiec and Others v Russia, Applications 55508/07 and 29520/09 21 October 2013, concerning the Soviet murder of thousands of Polish soldiers at Katyn during the Second World War.  Russia had decided that material could not be disclosed to the ECtHR for reasons of state security. The Grand Chamber held that the obligation in Article 38 applied both to examinations and to investigations.  It reiterated the importance of the obligation on States to comply with Article 38.  A failure to comply with that obligation could lead to the drawing of adverse inferences and reflect “negatively on the level of compliance” by the State with its Article 38 obligations. Importantly, it said that a request under Article 38 was “binding on the respondent government” from the moment such a request has been formulated - by implication from the Court; paragraph 203. The requested material had to be submitted in its entirety if the Court has so directed, and any missing elements had to be accounted for properly. 

32.	Where a government relied on security considerations to justify the failure to produce the material requested, it was for the Strasbourg Court “to satisfy itself that there existed reasonable and solid grounds for treating the documents in question as secret”. It pointed out that the Russian domestic provision did not impose an absolute bar on disclosure but set out the procedure for and limits to such disclosure, and such disclosure had been made by Russia in the past without objection; paragraph 205. If the Russian Government had had “legitimate national security concerns” it could have “edited out the sensitive passages or supplied a summary of the relevant factual grounds”; paragraph 206.  

33.	Paragraphs 207-209 make it clear that it is the State which is responsible for what it supplies and how it justifies any refusal to supply more.  

34.	The Grand Chamber held that it was master of its own procedure, and had:

“…complete freedom in assessing not only the admissibility and the relevance but also the probative value of each item of evidence before it.  Only the Court may decide whether and to what extent the participation of a particular witness would be relevant for its assessment of the facts and what kind of evidence the parties are required to produce for due examination of the case.  The parties are obliged to comply with its evidential requests and instructions, provide timely information on any obstacles in complying with them and provide any reasonable or convincing explanations for failure to comply…  It is therefore sufficient that the Court regards the evidence contained in the requested decision as necessary for the establishment of the facts in the present case.” (para 208).
35.	Paragraph 213 is important:

“213.  The Court reiterates that the judgment by the national authorities in any particular case that national security considerations are involved is one which it is not well equipped to challenge. However, even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and the relevant evidence. If there was no possibility to challenge effectively the executive’s assertion that national security was at stake, the State authorities would be able to encroach arbitrarily on rights protected by the Convention.”

36.	The Grand Chamber, see paragraph 214, was critical of the fact that the Russian Court had not itself subjected the Government’s claims of national security to adequate scrutiny.  In effect, that issue had not been considered; rather the Court had focussed on the power of the relevant body to decide not to declassify the documents.  The subject matter of the case meant that there ought to have been a balancing exercise between the need for security, the public interest in the investigation of the most serious violations of human rights, and the private interests of the victims’ families. 

37.	At paragraph 215, the Grand Chamber dealt with how its procedures could accommodate security sensitivities:

“…legitimate national security concerns may be accommodated in its proceedings by means of appropriate procedural arrangements, including restricted access to the document in question under Rule 33 of the Rules of Court and, in extremis, the holding of a hearing behind closed door.  Although the Russian Government were fully aware of those possibilities, they did not request the application of such measures, even though it is the responsibility of the party requesting confidentiality to make and substantiate such a request.”

38.	The decision does not deal with the position where it is an applicant who seeks to rely on the sensitive material, to which he and his lawyers have had access.

The submissions

39.	Mr Eadie submitted that the issue for me was whether there were changes in circumstances which meant that the public interest protected by the Order no longer required to be protected. For these purposes it was to be assumed that the Order either was or could be made effective to prevent disclosure to the ECtHR. The up to date PII certificate and closed Schedule showed that the public interest still required protection by the Order, and further that the public interest would be damaged by disclosure of the “in camera” material to the ECtHR. If I accepted that further disclosure would be damaging, the existence of proceedings before the Strasbourg Court was not a reason for permitting disclosure. Were that Court to impose an obligation on the UK Government in relation to damaging disclosure, which it has not yet done, it would be for the Government to consider how to respond to any such request or order, which would create an obligation which existed solely on the international level.

40.	The ECtHR was not concerned with the merits of the evidence leading to the conviction, but with whether the Convention’s procedural safeguards were applied. It was possible for submissions which Wang Yam wished to make about the principle of holding part of the trial in camera to be made without referring to the “in camera” material. It was possible for further submissions to be made on the basis of a gist which did not give rise to a breach of the Order, or which would require a non-contentious variation, essentially so as to enable evidence which was given in camera but which was dealt with in open submissions and summing up, to be referred to in the application to Strasbourg.   

41.	The “in camera” Order was not made on the basis of a mere request or say so by the Crown or without evidence justifying the application for evidence to be heard in camera.   Evidence was given, and was open for cross-examination on behalf of Wang Yam.  This evidence and the effect on the fairness of the trial were considered, with evidence and submissions, by the trial judge, and by the Court of Appeal both before and after the trial.  If either Court had thought that a fair trial would not take place if evidence were heard in camera, the evidence would not have been heard in camera, and there was a really serious risk that the trial for murder would not have taken place.  I was bound by the CACD’s assessment of the effect on the fairness of the trial of part of the evidence being heard in camera.  

42.	There was no reason to suppose that the Crown held further material which was not made available to Wang Yam which would have advanced his case, in open or in camera, and had failed in its duty of disclosure.  Wang Yam does not say that he could not call witness whose addresses he knew.

43.	The Criminal Cases Review Commission, CCRC, was considering the application for a reference; if refused, it would undermine the contention that the trial was unfair; if successful, the application to Strasbourg would be superfluous. The issue over the CCRC’s access to the material at issue had been resolved.  

44.	Ms Brimelow accepted that the relevant parts of the ECHR were not part of domestic law, although she submitted that national courts should, so far as free  to do  so, act in a manner consistent with the obligations on the State binding in international law; R v Lyons  [2002] UKHL 447, [2003] 1 AC 976.  There is at least a presumption that the proper interpretation of the law is not one which puts the UK in breach of its international obligations.  Her accurate citation from Bulale v SSHD [2008] EWCA Civ 806 paragraph 24 Buxton LJ, that “As organs of the state the appellate authorities are bound to exercise their powers to ensure the state’s compliance with its international obligations”, is in my view an over strong statement of the law, not borne out by Robinson v SSHD 1998 QB 929, 945 B-G, which is its identified source. The Robinson duty on the courts is to apply their own knowledge of the law and the relevant international convention to the facts, even if a party has not raised the point which to the court appears obvious and well meriting consideration. 

45.	Ms Brimelow submitted that the Courts, unless constrained by express contrary provision of domestic law, should be guided by the principles of judicial comity in considering any request from the ECtHR; Dallal v Bank Mellat [1980] QB 441 at 461-2.  That case deals with a different point of comity, the enforcement of judgments.  But I do not disagree that general principles of judicial comity apply between the domestic courts and ECtHR.  

46.	Her essential submission was that it was not for this Court or the Government but for the ECtHR alone to determine what evidence was relevant in any case before it.  It was not for the Government, especially not as a party, to try to inhibit the Strasbourg Court from seeing the “in camera” material; rather it should   ask that Court to use its procedural powers to hear the case “in camera” and to protect such material. 

47.	The restriction on the content of the response impeded the guaranteed right of access to the courts at common law and in breach of Article 6 ECHR.  This right included the right to make applications to Strasbourg, as s2(1)(a) of the Human Rights Act 1998 and Article 34 confirmed. Article 34 was an international obligation to which the Court should give effect in the absence of clear legislative provision to the contrary.  

48.	The effective exercise of that right entailed the right to refer the Strasbourg Court to all information relevant to the alleged breach of a Convention right. If it was relevant for the Court of Appeal to consider it on the appeal, it was relevant for the ECtHR to consider it on the application to it. She relied on what Lord Neuberger said in Bank Mellat v HM Treasury [2013] UKSC 38 at paragraph 35. This concerned whether the Supreme Court should examine the closed evidence heard by the courts below. He said:
“…one would normally expect an appeal court to be entitled to have access to all the material available to the court below and to see all the reasoning of the court below.  Otherwise, it is hard to see how an appeal process could be conducted fairly or even sensibly.  …”

49.	The Strasbourg Court was in an analogous position; it needed to have the “in camera” material upon which Wang Yam relied in order to determine his application fairly.  Even if a domestic Court could impose such a restriction, it should not do so for the same reasons.

Conclusions

50.	First, I accept what the PII Certificate says. The Certificate makes it clear that the circumstances which persuaded me and the CACD in 2008 of the need for parts of the evidence not to be available to the public and press continue unchanged. Indeed, that was not at issue before me.  The closed Schedule to the Certificate also explains clearly why that material should not be made available to the Strasbourg Court, whether or not it uses its procedural powers to impose restrictions on the availability of the material to the public or press.  The purpose of the “in camera” order would be put at risk by disclosure of the “in camera” material to the Strasbourg Court.  This is therefore not a case in which the problem can be resolved by co-operative attention to the mechanics whereby the material can become protected by a decision of the Strasbourg Court. I acknowledge that a Court should not stand in the way of what an applicant wishes to place before Strasbourg, unless there is very good reason to do so. I have no doubt that there are very good reasons to do so in this case. These are sufficient to prevent any question of judicial comity requiring this Court to vary the order.   

51.	Second, I accept Mr Eadie’s submissions about the relevant obligations in Articles 34 and 38, and on whom they lie.  The obligations in Articles 34 and 38 ECHR are binding on the State parties but are not part of UK domestic law.  It is for the UK Government to decide whether or not to comply with the obligation in Article 34, and to receive and respond to requests or requirements under Article 38, and the more obviously so in so far as they might require the “in camera” material to be made available to the Strasbourg Court.  It is for the Government to decide whether to go beyond seeking the exercise of the Strasbourg Court’s own “in camera” powers.  The Strasbourg Court can draw adverse inferences against the Government from the breach of such obligations, which are the Government’s responsibility. S2 of the Human Rights Act requires a UK Court to have regard to the various decisions and judgements of Strasbourg, and of the Committee of Ministers of the Council of Europe, through which its decisions are enforced.  The domestic Courts however do not act as the enforcement arm of the Strasbourg Court in respect of such obligations. Still less is it the function of domestic Courts to enforce the Strasbourg Court’s procedural rules. I do not think that the cases cited by Ms Brimelow and the general propositions which she draws from them are strong enough to require  this Court, in effect, to compel the UK Government to fulfil its obligations or to transfer to this Court obligations which lie  on the Government alone. 

52.	Moreover, I am not satisfied that the course which the Government may take is necessarily bound to breach its international obligations anyway. In the normal run of cases, the provisions of Articles 34 and 38 of course would mean that the evidence heard in a criminal trial would be made available to the Strasbourg Court. But that will not always be so, and issues about that will arise for example in applications related to prosecutions under the various equivalents of the Official Secrets Act for example.  As I understand Janowiec, the Strasbourg Court does not rule out that a Government may, without breaching Articles 34 and 38, decline to provide otherwise relevant material, on the grounds of national security or other confidentiality, if it explains why and how that decision was arrived at.  As I read paragraphs 205-215, and 213 especially, the Court may be persuaded by material of that nature that no requirement for it to be presented to the Court should be pursued.  Although the Strasbourg Court regards the decision as one for it to take, it will take account of the extent to which an independent domestic court has examined the merits of the claimed national security or confidential interest and supported it.  I do not read Janowiec as saying that the only effect of Strasbourg’s acceptance of the need for the relevant interest to be protected is that the material should go through its own “in camera” procedures; Strasbourg is bound to be alive to the legitimate sensitivities of governments in respect of such material.  The criticism made of the Russian Government is that its laws did not enable any such independent scrutiny to be given to the assertion of a national security interest, which the Court found surprising anyway 70 years after the events.  The Moscow Court accepted the assertion by the competent body as to the need for the material to be protected for national security reasons, simply finding that that body was competent to make the decision and had done so in the correct manner. 

53.	The UK Government would be entitled to rely on my decision as trial judge in   2008, and the decisions of the CACD in 2008 and 2010, on the basis that they were evidenced and reached independently. It would also be able to rely on the affirmation of that appraisal in this judgment and the specific acceptance of the appraisal of the risk of disclosure in proceedings in Strasbourg.  As trial judge, I considered in camera the evidence in support of the application that the interests to be protected required part of the trial to be in camera.  The evidence which sought to justify the application was tested before me on behalf of the defendant. The order was not made on the basis of a mere assertion by the prosecutor.  The protected interests included national security and the protection of the identity of a witness or other person.  I reached conclusions about that evidence which were upheld on appeal. 

54.	But if that reading is wrong, and the only route ultimately for the UK Government to avoid breach of its Convention obligations, in respect of national security or other confidential or protected material, would be for it to accept the Strasbourg Court’s own “in camera” procedures, it would still be for the Government to decide what to do.  It would not be for this Court to order it to disclose the contentious material.  It is not for this Court to deprive it of the option of protecting the “in camera” material by deciding, should it come to it, not to comply with any ECtHR disclosure requirements under Articles 34 and 38.  It is for Government to decide how far it has to go to protect what it sees as the national interest, even in breach of a requirement from Strasbourg, in the light of the various decisions as to the importance of the protected interests, as to the fairness of the trial, the unarguability of the point to be pursued, and my acceptance of the risks of disclosure to Strasbourg. 

55.	I do not see any difference in substance where it is the applicant to Strasbourg who seeks to rely on the “in camera” material. The decision whether to comply with the obligations imposed by the Strasbourg Court, whether they require disclosure or disclosure “in camera” under its rules, is for the Government.  It cannot be that the effect of a defendant and his legal team having access to “in camera” material in the trial means that the Government is powerless in these circumstances to prevent disclosure to the Strasbourg Court, or even more widely should that Court so decide under its procedural rules.

56.	The logic of the applicant’s argument is that the exclusionary order I made and the supportive order, whether by its terms or by any variation to them, do not and cannot affect his right to communicate what he wants to the ECtHR.  Ms Brimelow’s willingness to agree to the ECtHR receiving the material subject to its own “in camera” powers does not remove the underlying logic of her case.  And whether or not the ECtHR would also agree to treat it in that way is for it to decide.  It is agreed that it is not for this Court to tell the ECtHR to treat the “in camera” material as “in camera” or for anyone else to instruct it on how to handle it. 

57.	It would be open, on Ms Brimelow’s arguments, for an applicant to Strasbourg, without more ado, to include in the application any “in camera” material, whether covered by orders such as those made here, or by the Official Secrets Act.  But the prevention of that disclosure to any recipient at Strasbourg, anyone who can then see it or to whom it may be passed, without restraint by an enforceable court order, cannot be a matter of the applicant’s good will.  This means that the only method by which the Government can maintain the necessary protection of the “in camera” material is if the present order, varied if necessary, prevents its presentation to the ECtHR.  Whether or not material is released then would depend on a further variation, should the Government or applicant seek one.

58.	Third, if this is a case in which the balancing exercise referred to in paragraph 213 of Janowiec arises for the Court to resolve, and at this stage, I have no doubt but that the balance lies in favour of non–disclosure to the Strasbourg Court, even assuming the use by it of its protective procedural powers.  I bear in mind the nature of the evidence as to the interests to be protected, the decisions made thus far on that by the trial and appellate Courts, the degree of risk and the possible consequences of disclosure.  Moreover, without the exclusionary order, which the order in question supports, there may very well have been no trial at all of this defendant on a very serious charge, and one which involved a serious breach of human rights.  I also bear in mind that the wholly justified purpose of the exclusionary order would be put at risk in circumstances in which the Crown could not now retake the decision to prosecute.  The Crown could have decided not to prosecute in order to protect the interests which need protecting, if the exclusionary order had been refused.  Those protected interests would be jeopardised, and the Crown very seriously wrong footed by disclosure being forced on it.  All the prosecution evidence necessary to make out its case rather than to rebut the defence explanations was open to the public and press. 

59.	Nonetheless, the approach to the exclusionary order was that it would not have been made if I had not been satisfied that the ensuing trial would be fair.  Nothing was put into the balance against the need for a fair trial.  If I had not been satisfied that the trial would be fair with the exclusion of the public and press from part of the trial, there would either have been no such exclusion or no trial.  Once I was satisfied that the trial would be fair, notwithstanding the exclusion of the public and press from part of it, but that without their exclusion there might very well be no trial at all of a serious charge, the interests of justice both in having a trial and in having one which was fair obviously warranted the exclusion of the press and public from parts of the trial.  That ruling was considered and upheld on appeal.  The effect of the exclusion of the press and public from part of the trial was considered again, after conviction, by the CACD, which held that it was unarguable that the trial was unfair. 

60.	The CCRC, now that the issue concerning it has been resolved, is in a position fully to judge whether there is a case for referring the appeal back to the CACD. 

61.	The application to the ECtHR can raise the principle of hearing part of the trial in camera, although I accept that, without the “in camera” material, it would not be as well placed as was I or the CACD to appreciate the insignificance for the fairness of the trial of the exclusion of the press and public from parts of it. 

62.	I cannot avoid putting into the other side of the balance, the nature of the case which Wang Yam wants to make, beyond attacking the principle of the “in camera” order, for which he does not need the “in camera” material.  I recognise that my judgment might be thought to be affected by my earlier orders, but the CACD supported my judgment and regarded the suggestion that the necessary order might have made the trial unfair, as unarguable. That is a conclusion which is binding on me, though I entirely agree with it.  I accept that Wang Yam’s trial would have received more publicity if it had been held in public, assuming that it would have gone ahead at all.  However, much of the evidence was not given “in camera”, and the age and personality of the victim, and indeed the fact that part was to be heard in camera did generate press publicity.  Wang Yam’s name was in the public domain as were the names of the gangsters whom he alleged were responsible for the theft of the deceased’s identity.  It is impossible to imagine that the gangsters Wang Yam claimed to have dealt with would have come forward, and it is pure speculation that a third party would have come forward because of any greater publicity.  All this is explained by the CACD in its 2010 judgment. 

63.	There is nothing in this point, and nothing to go in the balance favouring disclosure beyond allowing the ECtHR to reach that same, and to my mind inevitable, conclusion itself.  That is not nearly enough.  I say that, having seen the partial draft of the response which Ms Brimelow wishes to submit to the ECtHR.       

64.	I have also seen the amendments to that draft suggested by the Government which it would not contend breached the order at issue.  Those amendments would permit the response document to be submitted and it would then convey something of the flavour of the envisaged submissions.  However, if the application on that basis were declared admissible, I doubt that they could all be effectively pursued let alone answered, without the “in camera” material.  But, with the “amended” response document, the Strasbourg Court would be in a better position to judge relevance and what requirement, if any, it should place on the UK Government in relation to the “in camera” material.  

65.	At present, therefore, I see no reason to vary the order to enable the material to be deployed before Strasbourg.  The Government will have to see how far it can persuade the Strasbourg Court not to ask for the material, whether or not in camera, and then decide whether or not to comply with any obligations which Strasbourg may impose.  It is not for this Court to make that decision for it, let alone at this stage. 

66.	If the Government wished to disclose material covered by the order, the Court would again consider an application for its variation or discharge.  The Government is just as much covered by the order as Wang Yam and his lawyers.  To the extent that the order covers the use of the “in camera” material in applications to Strasbourg, whether under its own “in camera” rules or not, it would be a breach of the order by either party or others to refer to that material without variation of the order or its discharge. 

The scope of the order restricting references to the “in camera” material

67.	It was not contended by Ms Brimelow that this Court lacked the power to make an order restricting references to “in camera” material in applications to Strasbourg.  Rather her argument was that the order did not by its terms, and should not do so because of the international obligations to which it was for the Court to give effect.  It did not do so because referring to the material in the application or response would not amount to “a report” being “published” revealing any evidence or argument heard in camera. To the extent that it might do so, the Court should clarify it so that it clearly did not do so, or if the worse came to the worst, it should be clear that it did do so. 

68.	Mr Eadie submitted that the order did cover this, even if the words were not entirely apt.  The intent was clear: that no public reference should be made to the material, even in applications to Strasbourg.  If not clear in that respect, the order should be clarified or amended to make it restrictive in that way. 

69.	It is clear to me that the purpose of the order excluding the public and press from the hearing was to prevent the disclosure of what was said in camera beyond those who needed to hear it for the purposes of the trial, which included the jury, defendant and the prosecution and defence lawyers.  This order did not just cover those who had heard the material.  And, as the informative note said at the end of the order, speculation about what the nature of the “in camera” material could also be a contempt.  The order which the CACD continued in 2010 was to support the effectiveness of that exclusionary order.  

70.	The role of the ECtHR was only considered by me in terms of the ability of the defendant to make an application challenging the principle of any part of the exclusionary order.  The question of whether the supportive order extended to the ECtHR itself seeing the “in camera” material was not raised by anyone at that stage.   However, the exclusionary order would have excluded the members of the Strasbourg Court and its staff from the trial, and it is that order which the order in question supports. 

71.	I intend to vary the order for the reasons given above, so as to make clear that the “in camera” material cannot be referred to in the application to Strasbourg. I accept that the language “no report is to be published” is not as explicit as it now needs to be to that end.  Accordingly, I vary the order so that after the words “public in these proceedings” there shall be added the words “For the avoidance of doubt, no document or other communication in whatever form shall disclose any of the material to which the prohibition in the preceding sentence applies, or make it available, to any one who was or would have been excluded from the “in camera” parts of the trial, including the staff and members of the European Court of Human Rights.” 

72.	I will hear Counsel on whether any further, better or more general variation to that same end is required. 

73.	I should make it clear, but I do not think that any formal amendment is required, that the order does not cover any part of the evidence of the defendant himself, given in camera, to the extent that it was referred to in the open summing up. 

74.	Although the issue was not raised by Ms Brimelow, I think that I should comment briefly on the powers which I was exercising in making the supportive order which I am now varying.  

75.	The power in s11 of the Contempt of Court Act 1981 is to give directions “prohibiting the publication in connection with the proceedings as appear to the court to be necessary for the purpose for which it was withheld [from the public]”.  “Publication” is defined in s2(1), see s12 (1), although s2 comes in the part dealing with the strict liability rule.  “Publication” “includes any speech, writing, programme included in a programme service or other communication in whatever form, which is addressed to the public at large or any section of the public”.  I can see the argument that an application to the ECtHR, while clearly a communication in some form, may not be one addressed to “any section of the public”.  However, once the addressee falls outside the scope of those entitled to receive the information, they are for these purposes a section of the public.  The exclusion did not permit those who had to hear the material in camera to pass it on in private, to a family member or a friend, or to a few acquaintances when no one else was around, who could then pass it on themselves, all in private.  S11 does not require information to be imparted in public for the prohibition to bite.  The protection which the UK Courts decide such material should have should not then be put at risk through an application to Strasbourg, and the ECtHR cannot have intended that it should do so.  

76.	The staff and members of the Strasbourg Court would have been excluded from the trial as part of the public.  The ECtHR is not another domestic appellate tier. Its Judges and staff owe no allegiance to the Crown. They do not apply UK domestic law.   The various protected interests cannot be explained to it without risk of harm to those interests.  It may take a different view of what is justified in the national interest, applying different tests and balancing the interests differently.  It has no power to commit people for contempt of court in support of any orders it may make.  The UK has no such power either in law or practice.  The right to make the application has not been inhibited.  The Strasbourg Court is simply not in the same position as the UK Court when it comes to the approach to such material, any balancing of interests in respect of it, its protection, and the enforcement of such protection as it orders. 

77.	The Order in support of the exclusion   draws also upon any other available powers in support of the exclusion to make it effective. S12(1) of the Administration of Justice Act 1960 provides:

“The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say-
i.	(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information is published;”

78.	There is no definition of “publication” in this Act. My view is that information is “published” for these purposes when it is made available to those who would have been subject to the exclusionary order. That is the only sensible way to give effect to the Act. 

79.	It also is my view that the Court which makes an “in camera” order pursuant to its inherent jurisdiction must have the inherent power to make an order which makes that exclusionary order effective. To the extent that the powers in either s11 of the 1981 Act or s12 of the 1960 Act are inadequate to achieve the protection of the “in camera” material which the exclusionary order was intended to afford, the assumed scope of those provisions does not remove the Court’s inherent jurisdiction to do so.  The closed Schedule to the PII Certificate provides a sufficient justification for the order covering applications to Strasbourg.

80.	There is no closed judgment.