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Cite as: [2008] ECHR 261
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` 01 April 2008
FOURTH SECTION
Application no.
6684/05
by Clifford George McKEOWN
against the United
Kingdom
lodged on 4 February 2005
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Clifford George McKeown, is a British national who was born in 1959 and lives in Lisburn, Northern Ireland. He is represented before the Court by Mr R Monteith, a lawyer practising in Portadown.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At about 10 pm on 29 March 2000 the applicant was seen by police driving a Renault 11 car along Lake Road, Craigavon, Northern Ireland with a second person, M., in the front passenger seat. Police officers followed the car and saw items being thrown from it. These were subsequently recovered and found to be firearms. The car was stopped and searched. Two black balaclavas, dark woollen gloves and one round of ammunition were found in the car, together with a blue plastic container containing petrol.
The applicant's case was that he had simply given M. a lift and that he knew nothing about the articles that he had brought into the car.
Following his arrest the appellant was interviewed by police. He was shown a number of the items that had been found in the Renault car and he said that, apart from the blue plastic container, he had never seen them before. He told police that at about 9.30 pm on the night of his arrest, he had been asked by M. to take him to Lurgan, Northern Ireland. He claimed that he had initially refused, telling M. that every time he left the house, “the police were on to” him. He was persuaded by M., however, and they went to the car, M. carrying a bag that the applicant was unable to describe. As they were driving to Lurgan they were intercepted by police cars. The appellant asserted that he had been entrapped. He was sure that someone had sent M. to his home with the guns because he had no doubt that the police did not arrive by chance to stop his car.
The appellant was arraigned on 8 June 2001 and pleaded not guilty to both counts. A defence statement was served on his behalf on 12 June 2001. It contained the following:
“The defendant believes that he may have been entrapped by a person known to him working with the police either for the purpose of incriminating this defendant or his co-defendant. In consequence he requires disclosure of all information and material touching upon this issue and informing the state of knowledge of the police prior to the stopping and arrest of the defendant and all such material shall be disclosed because failure to do so would mean unfairness to the defendant and would be in breach of Article 6 of the European Convention.”
On 21 September 2001, the prosecution informed the applicant that it would apply ex parte for an order preventing disclosure.
In non-jury trials in Northern Ireland, such an application is made to a judge other than the trial judge. That judge is designated by the Lord Chief Justice of Northern Ireland and is referred to as the “disclosure judge” (see domestic law and practice below).
The applicant opposed the ex parte hearing of the prosecution's application by the disclosure judge. Having heard argument from counsel for the applicant and the prosecution, inter alia on the compatibility of an ex parte hearing with Article 6 of the Convention and the relevant case-law of the European Court of Human Rights, the disclosure judge, in an ex tempore judgment, found that it was proper to hear the application ex parte. He stated that while this Court's case-law suggested that ex parte applications without any notice to the defence were problematic, the present case was an ex parte application with notice. He stated:
“... the European Court has certainly not forbidden that procedure. It doesn't seem to me that I would be empowered to overrule the [relevant domestic legislation] on the basis of the findings of the European Court up to the moment, but the Court will do if this case reaches it, maybe another matter, but I would propose to hear the [prosecution's] application at present.”
On 18 February 2002, the disclosure judge allowed the prosecution's application for non-disclosure. He outlined this Court's judgments in Rowe and Davis v. the United Kingdom [GC], no. 28901/95, §§6 60-62, ECHR 2000 II and Jasper v. the United Kingdom [GC], no. 27052/95, 16 February 2000 and continued:
“ ... I have to consider, in the light of the defence of entrapment advanced on behalf of the accused, whether the material which is the subject of the application is such that it might be of assistance to the defence or in any way undermines any part of the prosecution case; whether in those circumstances it is necessary in the public interest to order non-disclosure and further, if disclosure is not to be provided, what steps are appropriate to protect the interests of the accused and ensure the fairness of the trial.
My reason for conducting an ex parte hearing are as follows: in order to determine whether the material is such that the public interest requires its non-disclosure I must see the material and consider the evidence and arguments submitted by the prosecutor, and I must do so in the absence of the defendants and their representatives to protect the public interest until that decision is made.
There was considerable debate in [Rowe and Davis] about the best way to deal procedurally with this situation. The majority took the view that it was important for the trial judge to see the material personally.
That is certainly true if the material is not prejudicial to the accused and where the trial is before a judge and jury the effect of the judge seeing even prejudicial material may not be inconsistent with the fairness of the trial process.
However, in the case [of] a non-jury trial it is obviously undesirable that prejudicial material which is not going to be part of the evidence in the case should be seen by the judge who will be tribunal of fact, especially if it is not disclosed to the defence.
...
No procedure exists to ensure that an assessment of the possible value to the defence of such material other than by the prosecutor or at his request the trial judge can be made in the light of the evidence at the trial. We do not have “special counsel” to carry out such an exercise.
In general the Court has to rely on the judgment and integrity of the prosecutor, who can monitor the issue of whether disclosure of such material to the trial judge may become necessary in the interests of justice.
...
The considerations I applied in considering the prosecution's application were:
1. If it is compatible with the public interest then all relevant material should be disclosed;
2. All of the material for which non-disclosure is ordered and which is not prejudicial to the defendant should be available to the trial judge;
3. The prosecutor should monitor the continuing non-disclosure of potentially prejudicial material.
In considering that matter it may be possible for the prosecutor to give some indication of the nature of the material to the defendant's advisors without disclosing that which it requires to keep secret so as to allow the latter to decide whether the material should be disclosed or not.”
He concluded:
“Having considered the matter ex parte, I have decided that in the light of the defence statement none of the material which is the subject of the application before me is such that it might reasonably be expected to undermine the case for the prosecution or to assist the accused's defence. On the evidence before me I do not anticipate any circumstances which would result in the material becoming of value to the defence. I consider that it is not in the public interest to disclose the material and have ordered accordingly. I have prepared a statement of the reasons for my decision which shall remain confidential to the prosecutor and the trial judge.”
When the case next came before the trial judge on 17 and 19 June 2002, the applicant and his co-accused sought an adjournment of the proceedings. The trial judge indicated that he had not received the disclosure judge's ruling or the statement of reasons and did not intend to receive anything that had not been made available to the defence. He then consulted the disclosure judge who indicated that he was content that the trial judge did not see the reasons and did not require him to do so. The trial judge then suggested that one way of proceeding would be to appoint special counsel who would be shown the material and remain throughout the trial.
When proceedings resumed on 1 August 2002, the trial judge indicated that he had by then read the ruling of the disclosure judge and the statement of reasons for his decision. The trial judge said that he considered that it was in the interests of justice that he should see the statement of reasons when the disclosure judge, in his ruling of 18 February 2002, had suggested that he should. He also stated that the statement of reasons referred to “certain items which could not in [the disclosure judge's] view prejudice the defence in any way if they were seen by me [the trial judge], but he also said that there were items which were capable of having a prejudicial effect on the trial if seen by the trial judge.” He stressed that he had not himself seen the material seen by the disclosure judge.
The trial judge heard submissions from the defence, prosecution and counsel appearing on behalf of the Attorney-General. The latter argued that the matter should be referred back to the disclosure judge for his decision. Counsel for the applicant's co-accused also suggested that the trial judge recuse himself since he had seen the statement of reasons which had not been made available to the defence. The trial judge found:
“The fact that a judge had seen a document in a non-jury trial which has not been seen by the defence does not of necessity mean that the trial is made unfair or becomes unfair and, having seen the document and read it, I am absolutely satisfied that it does not create any reason why I should no longer act as the trial judge in this case.”
He also found that the disclosure judge was best equipped to know what procedural safeguards could be put in place as to the non-disclosed material, including whether it was appropriate to appoint special counsel, since he knew the nature of that material. He therefore referred the matter back to the disclosure judge.
The matter came before the disclosure judge on 13 September 2002. In an ex tempore judgment he ruled:
“There is no further safeguard that I am aware of that would be of any assistance, that one could conceive would be of any assistance at this stage, and I would not regard the case as requiring the appointment of special counsel...
The present reality is that I cannot foresee any circumstance in which the undisclosed material, that is the material undisclosed to the trial judge, would be of assistance to the defence. But it may be that the defence may advance a proposition or raise an issue that might by remote possibility make that so, and I think if the Crown concedes that that is the position then the Crown should make the matter known to the trial judge and consideration could be given then to referring back to me.”
The disclosure judge said there were two types of material involved. The first could not assist the appellant because it was adverse to him. The second related to police procedures, was general in nature and content, and did not relate directly to the appellant.
At the applicant's trial it was established that ten police officers, in three cars, were on patrol in the general area of Lurgan and Craigavon at the time the car was intercepted. Those police officers who had attended a briefing at Mahon Road Station said that they were told that there was intelligence that loyalist paramilitaries were in possession of a firearm in the Lurgan/Craigavon area. One crew had travelled from Belfast, and they said they did not arrive in time for the briefing but they were told by radio that loyalist paramilitaries had obtained access to weapons. It emerged during cross-examination, based on logs obtained on disclosure, that at 10 pm a message was sent to control to the following effect:
“...a vehicle acting suspiciously at Parkmore, VRM - DDZ 1039, blue/green Renault 11.”
The information passed by control to the three patrol cars was recorded as:
“... blue/green Renault car acting suspiciously in the Craigavon area.”
No reference was made to the registration number, or “Parkmore” in the controller's message to the patrols. The case made on behalf of the appellant at trial was that the reason that the controller did not pass to those on the ground the registration number of the Renault and information as to the place where it was last seen, was that this was an operation in which police were already in position waiting for the appellant's car to appear. All police officers to whom this suggestion was made denied it.
At the conclusion of the case for the prosecution the trial judge was invited to stay the proceedings on the ground of entrapment, and to rule that there was no case for the applicant to answer. He ruled that there was no evidence that the conduct of the police could affront the public conscience and therefore declined to stay the proceedings. He accepted, as had been suggested in cross-examination, that the police may have been in possession of more evidence than was revealed at the trial.
Counsel for the accused also argued that, in order to advance the defence of entrapment, further disclosure was required. The trial judge replied:
“Counsel for the prosecution has heard what you have got to say. If he feels that there is information that would assist you I have no doubt he will go back to [the disclosure judge] and ask him about it, but beyond that I can't go.”
On 12 November 2002 the applicant was convicted by the trial judge, without a jury, of two offences: possession of firearms and ammunition with intent, contrary to Article 17 of the Firearms (NI) Order 1981; and possession of articles for a purpose connected with terrorism, contrary to Section 32(1) of the Northern Ireland (Emergency Provisions) Act 1996. He was sentenced to concurrent terms of imprisonment of twelve years and two years respectively. His co-accused, M., had pleaded guilty on the opening day of the trial and was sentenced to nine years' imprisonment for the offence of possession of firearms and ammunition with intent and to two years' imprisonment concurrent for the offence of having articles for a purpose connected with terrorism.
The applicant appealed against his conviction on both charges. On 28 October 2004, the Court of Appeal in Northern Ireland unanimously dismissed the appeal. It reviewed this Court's judgments in Rowe and Davis v. the United Kingdom [GC], no. 28901/95, ECHR 2000 II; Jasper v. the United Kingdom [GC], no. 27052/95, 16 February 2000; Fitt v. the United Kingdom [GC], no. 29777/96, ECHR 2000 II; Edwards and Lewis v. the United Kingdom, nos. 39647/98 and 40461/98, 22 July 2003 and Dowsett v. the United Kingdom, no. 39482/98, ECHR 2003 VII.
In respect of Edwards and Lewis, having quoted paragraphs 57-59 of the Court's judgment, the Court of Appeal observed:
“The fact specific nature of the cases is apparent from these passages. The trial judges had to deal directly with the defence of entrapment and the material produced to them may well have sounded on that issue. Moreover there was plainly prejudicial material in the evidence that the judges saw but which was denied to the defence. Not only were the defence put at a disadvantage because they could not contribute to the assessment that the judges were making but, in Edwards' case, prejudicial material was put before the judge as well.”
It went on to state that from the relevant case-law of this Court the following principles could be recognised:
“Full disclosure of any material held by the prosecution which weakens the prosecution case or strengthens that of the defendant should be made.
Minimum derogation from this golden rule is permissible where full adherence would create risk of serious prejudice to an important public interest.
The judge dealing with an application for non-disclosure must have a full understanding and appreciation on an ongoing basis of all the issues in the trial and in particular the nature of the defence.
The appointment of special counsel will always be exceptional. It should not be ordered unless the trial judge is satisfied that no other course will adequately meet the over-riding requirements of fairness to the defendant.”
In applying those principles to the applicant's case, it found that the applicant's defence of entrapment was well know to the trial judge, the prosecution, and the disclosure judge and no other issue had been identified that might sound on the question of disclosure. The disclosure judge had been unable to envisage any circumstances in which the non-disclosed material could assist the defence either by enhancing the case that was being made for the applicant or by undermining or weakening the prosecution case. Furthermore, it agreed with the disclosure judge that there had been no need for special counsel to be appointed and there was nothing to indicate that the material characterised by the disclosure judge as wholly irrelevant to the applicant's defence might have suddenly become relevant. On the availability of the disclosure judge's statement of reasons to the trial judge, the Court of Appeal found:
“The trial judge did not read the statement of reasons given by the disclosure judge before the first hearing on the question of disclosure. The circumstances in which he considered these before the second hearing on this issue are not entirely clear. In general, where material is not to be released to a defendant, it will be inappropriate for the trial judge in a non-jury case to see it. In the present case the trial judge made clear that he had not seen any material that was adverse to the appellant and Mr Orr did not dispute this statement. In the particular circumstances of the present case, therefore, the trial judge's consideration of this material has not brought about any unfairness to the appellant and we do not consider that this rendered his conviction in any way unsafe.”
After dismissing the appeal, the Court of Appeal, on 19 November 2004, also refused to certify a point of law of general importance or grant leave to appeal to the House of Lords.
B. Relevant domestic law and practice
1. Criminal trials in Northern Ireland
In Northern Ireland, under section 75 of the Terrorism Act 2000, trials on indictment can be conducted by courts without a jury if the indictment is for a “scheduled offence” (one of the offences listed in Schedule 9 to the same Act). The trial then takes place before a judge sitting alone who hears all the evidence and reaches the verdict. He or she also is also responsible for conducting the trial and pronouncing sentence if the defendant is found guilty. The judge must give a reasoned verdict if he convicts the defendant.
2. Disclosure
Disclosure in criminal cases is regulated by Part 1 of the Criminal Procedure and Investigations Act 1996 (“the 1996 Act”) and the Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules (Northern Ireland) 1997 (“the 1997 Rules”).
Section 3 of the 1996 Act regulates primary disclosure by the prosecution. Section 3(1)(a) provides that the prosecution must disclose to the defence any material which, in the opinion of the prosecutor, might undermine the prosecution case against the accused. Primary disclosure is followed, where appropriate, by the accused providing a defence statement under Section 5(5). This triggers secondary disclosure by the prosecution under Section 7(2)(a) which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused's defence as disclosed by the defence statement.
Section 8 of the 1996 Act allows the accused to apply to the court for an order that the prosecutor provide undisclosed material. Section 9(2) requires the prosecutor to keep under review whether disclosure is required.
Sections 3(6), 7(5), 8(5) and 9(8) of the 1996 Act provide that material must not be disclosed under the foregoing provisions to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it.
Section 14A (covering procedures for trial on indictment for scheduled offences) provides that the accused may apply to the court to review its decision to order non-disclosure on grounds of public interest. By virtue of section 15 where a court has made a non-disclosure order it must keep under review the question whether it is still not in the public interest to disclose material affected by its order. It must do so without the need for an application but the accused may apply to the court for a review of that question.
Rule 2 of the 1997 Rules regulates an application made under Section 3(6), 7(5), 8(5) or 9(8) of the 1996 Act. There are three types of application under Rule 2:
(a) An application by the prosecutor to the judge, to be determined at an inter partes hearing. The accused receives notice of the application and details of the nature of the material to which the application relates.
(b) An ex parte application by the prosecutor to the judge, of which notice is given to the accused. The accused does not receive information on the nature of the material to which the application relates.
(c) An ex parte application by the prosecutor to the judge of which the accused receives no notice.
The application in the present case was of the kind described in (b) above.
Under Rule 2(5)(a), where the offence in question is a scheduled offence (and thus to be tried by a court without a jury) the application shall be heard by a judge designated by the Lord Chief Justice (known as “the disclosure judge”). Rule 3(5) provides that where an application is made under Rule 2(2) the hearing shall be ex parte and only the prosecutor shall be entitled to make representations to the court. By Rule 4(2) the court (the disclosure judge) is obliged to state reasons for making an order and a record of that statement must be made. Under Rule 9(2) where a hearing is held in private the court may specify conditions to which the record of its statement of reasons made in pursuance of Rule 4(2) should be kept.
In respect of applications by the defence made under sections 14 and 15, Rule 5 provides that they shall be inter partes and the accused and the prosecutor shall be entitled to make representations to the Court. However, under Rule 5(9), the prosecution can apply to the Court for leave to make representations in the absence of the accused, the Court may for that purpose sit in the absence of the accused and any legal representative of his.
3. “Special counsel”
The relevant domestic law and practice on the appointment of special counsel is set out in Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, ECHR 2004 X at paragraphs 43-45.
COMPLAINT
The applicant complains under Article 6 of the Convention that the approach of the domestic courts to the issues of public interest immunity and disclosure of evidence was inconsistent with Article 6 of the Convention.
QUESTIONS TO THE PARTIES