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FOURTH SECTION
Application no.
31777/05
by Fintan Paul O’FARRELL and
Others
against the United Kingdom
lodged on 30 August
2005
STATEMENT OF FACTS
THE FACTS
The applicants, Mr. Fintan O’Farrell, Mr. Declan Rafferty and Mr. Michael McDonald, are citizens of the Republic of Ireland who are currently in prison in the United Kingdom. They are represented before the Court by James Macguill of Macguill and Company Solicitors, a lawyer practicing in County Louth, Ireland.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 2000 the British Security Services became aware from an informant that the leader of the Real IRA (RIRA), Michael McKevitt, was seeking affiliation with another government. A covert operation was devised in order to lure Mr McKevitt into attending meetings with undercover security service agents in various European countries to discuss the supply of weapons and funds. Mr McKevitt was to be arrested when sufficient evidence had been obtained. A Security Services agent posing as an Iraqi Intelligence agent contacted Mr McKevitt and a meeting was organised. It was agreed that Mr McKevitt would not attend but would send others. The applicants subsequently attended this meeting.
In early 2001 the applicants met with British agents posing as Iraqi agents in a number of different European countries to discuss the purchase of weapons and the provision of funds. The last meeting took place on 7 July 2001 in Slovakia. At the conclusion of the meeting the applicants were arrested by Slovak police following the issue of an extradition warrant by a District Judge sitting at Bow Street Magistrates Court. Thereafter the applicants were remanded in custody and a request for their extradition was made by the United Kingdom for offences committed under the Terrorism Act 2000. The applicants were represented in the extradition proceedings by an experienced Slovakian lawyer.
All three applicants were extradited to the United Kingdom on 30 August 2001 pursuant to an order of the Slovak Minister of Justice.
Following their extradition, the United Kingdom sought Slovakia’s consent under Article 14 of the European Convention on Extradition 1957 to add the charge of conspiracy to cause explosions contrary to section 3 of the Explosives Substances Act 1883. Consent was granted in March 2002, shortly before the trial commenced.
The applicants applied to have the criminal proceedings against them stayed on the grounds of entrapment and on grounds of unlawful extradition. The prosecution applied to withhold certain evidence on the ground of Public Interest Immunity (“PII”). The material in question included evidence sought by the defence in relation to the entrapment issue. In the course of the PII hearing, the applicants submitted that the trial judge should not sit ex parte to determine the prosecution’s claim. However, the trial judge considered that so long as the procedural safeguards identified in Jasper v. the United Kingdom [GC], no. 27052/95 were followed, a tribunal which made a decision which had the effect of it ‘s acting as judge and jury would not offend Article 6 by an ex parte hearing. He considered all of the material put before him and concluded that PII had rightly been claimed in relation to the material because, if it were to be disclosed, it would affect national security and give rise to an immediate threat to life. More importantly, the trial judge was satisfied that the material neither undermined the case for the prosecution against any of the applicants nor supported any of the submissions made on behalf of the defendants. On 19 April 2002 the prosecution’s application was granted and on 30 April 2002 the application for a stay was refused.
The applicants were indicted and pleaded guilty to offences of conspiracy to cause explosions and to various other offences under the Terrorism Act 2000. Each applicant was sentenced to a total sentence of 30 years’ imprisonment.
The applicants applied for leave to appeal against conviction and sentence. One of the grounds of appeal related to the conduct of the PII application by the trial judge. The applicants claimed that Special Counsel should be appointed so that the Court of Appeal could conduct a review of the material which had been withheld at trial. The applications for leave were referred to the full court, which in turn referred to the Court of Appeal the question of whether it was appropriate for the Court of Appeal (Criminal Division), on an appeal which raised issues about the PII exercise performed at the trial, initially to deal with the matter by reference to a summary of the PII material prepared by the prosecution. The application was adjourned pending judgment of the House of Lords in R. v. H.; R. v. C. [2004] UKHL 3, which was handed down on 5 February 2004.
At a hearing on 14 October 2004 the Court of Appeal considered the recent case law and indentified the following principles guiding the conduct of appeals raising issues as to the trial judge’s conduct of a PII hearing:
“1. The approach should be the same whether the ex parte PII hearing before the judge was or was not on notice. The principles in relation to the appointment of Special Counsel, or the need for the judge to recuse himself or herself are the same in both cases.
2. The Court of Appeal (Criminal Division) will have to review ex parte with the prosecution present all the material which was before the trial judge. A prosecution summary will not usually suffice, but is always desirable and, in a complex case, essential.
3. It is necessary for that review to be carried out by the same constitution which is to hear the appeal.
4. The review will have to take place sufficiently in advance of the substantive appeal hearing to permit, in those exceptional cases where this is necessary, Special Counsel to be appointed and suitably prepared.
5. In the majority of cases, where the Public Interest Immunity material can be read in an hour or two, this should present no listing difficulty and the Public Interest Immunity hearing can take place, as frequently happens now, in the first week of a constitution sitting with the appeal being heard in the third week.
6. In the majority of cases, where the PII material is unusually voluminous, special listing arrangements will have to be made over a longer time scale.”
On 14 January 2005, after having reviewed all the material put before the trial judge in order to decide on the PII issue, the Court of Appeal rejected the applicants’ appeal against the judge’s decision to refuse the application for a stay on the ground of entrapment. A transcript of this judgment is not available as the hearing was confidential.
The applicants also applied for leave to appeal on the ground that the extradition proceedings in Slovakia had been unfair as they had not been provided with a copy of the extradition request and that the extradition request had wrongly implied that the alleged offences had been committed within the United Kingdom.
On 13 July 2005 the Court of Appeal refused the application for permission to appeal. The court noted that there was some doubt as to whether the Slovak Code of Criminal Procedure required a copy of the extradition request to be provided. In any case, the extradition request had been read in full to the applicants in the presence of their lawyer. With regard to the second complaint, the Court of Appeal held that even if there had been a failure to make it clear that the offences were committed outside the United Kingdom, it was quite obvious from the date of the offences and from the account of what happened in Slovakia that events outside the United Kingdom played a significant part in the offences for which extradition was being sought.
The applicants subsequently brought a claim against Slovakia alleging breaches of Article 5 §§ 1 and 4 of the Convention both taken alone and in conjunction with Article 13 of the Convention. They raised various complaints concerning the deprivation of their liberty with a view to extradition and the procedure applied and the decisions taken in its respect, including the failure to provide their lawyer with a copy of the extradition request. The Court considered it necessary to give notice of the application to the respondent Government. However, the application was struck out on 11 October 2005 after the applicants’ Slovak representative repeatedly failed to respond to correspondence from the Court.
B. Relevant domestic law and practice
1. Entrapment under English law
The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under English law. The judge does, however, have a discretion to order a stay of a prosecution where it appears that entrapment has occurred, as the House of Lords affirmed in R. v. Looseley; Attorney-General’s Reference (no. 3 of 2000) ([2001] UKHL 53), a judgment which followed and approved earlier case-law, including case-law which applied at the time of the applicants’ trials (for example, the judgment of the House of Lords in R. v. Latif [1996] 1 Weekly Law Reports 104).
In Looseley, Lord Nicholls of Birkenhead explained (§ 1):
“My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the State do not misuse the coercive, law-enforcement functions of the courts and thereby oppress citizens of the State. Entrapment ... is an instance where such misuse may occur. It is simply not acceptable that the State through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of State power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which State conduct of this nature could have are obvious. The role of the courts is to stand between the State and its citizens and make sure this does not happen.”
In addition, the court has a discretion, under section 78 of the Police and Criminal Evidence Act 1984, to exclude evidence obtained by an undercover police officer where, inter alia, the defendant would not have committed the offence without police incitement (see R. v. Smurthwaite; R. v. Gill (1994) 98 Criminal Appeal Reports 437, judgment of the Court of Appeal; and Looseley, cited above). Of the two remedies, the grant of a stay, rather than the exclusion of evidence, is the more appropriate remedy because a prosecution founded on entrapment is an abuse of the court’s process and should not have been brought in the first place.
In Looseley, the House of Lords agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or “State-created crime”. In each case it was for the judge, having regard to all the circumstances, to decide whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into question. Factors to be taken into account included the nature of the offence, the reason for the particular police operation, the possibility of using other methods of detection and the nature and extent of police participation in the crime; the greater the inducement offered by the police, and the more forceful and persistent the police overtures, the more readily a court might conclude that the police had overstepped the boundary, since their conduct might well have brought about the commission of a crime by a person who would normally avoid crime of that kind. The police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing, and the police operation should be properly supervised. The defendant’s criminal record was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that he or she had been engaged in the criminal activity in question prior to the involvement of the police (per Lord Nicholls, §§ 26 29; Lord Hoffmann, §§ 50-71).
2. Disclosure of evidence by the prosecution
At common law, the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged. This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence.
In December 1981 the Attorney-General issued guidelines, which did not have force of law, concerning exceptions to the common-law duty to disclose to the defence evidence of potential assistance to it ((1982) 74 Criminal Appeal Reports 302 – “the Guidelines”)). According to the Guidelines, 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, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” 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.”
In R. v. Ward ([1993] 1 Weekly Law Reports 619), the Court of Appeal stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity. It explained that “... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed”.
In R. v. Davis, Johnson and Rowe ([1993] 1 Weekly Law Reports 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence would 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 was 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 was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence.
The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that, 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”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the 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 who heard any disclosure application also to conduct the trial.
In R. v. Keane ([1994] 1 Weekly Law Reports 746) the Lord Chief Justice, giving the judgment of the court, held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity. “Material” evidence was defined as evidence which could be seen, “on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)”.
Once the judge was seized of the material, he or she had to perform the balancing exercise between the public interest in non-disclosure and the importance of the documents to the issues of interest, or likely to be of interest, to the accused. If the disputed material might prove the defendant’s innocence or avoid a miscarriage of justice, the balance came down firmly in favour of disclosing it. Where, on the other hand, the material in question would not be of assistance to the accused, but would in fact assist the prosecution, the balance was likely to be in favour of non-disclosure.
In the case of R. v. Turner ([1995] 1 Weekly Law Reports 264), the Court of Appeal returned to the balancing exercise, stating, inter alia:
“Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants’ names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. 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 requirements of disclosure have since been set out in a statutory scheme. Under the Criminal Procedure and Investigations Act 1996 (CIPA), which came into force in England and Wales immediately upon gaining Royal Assent on 4 July 1996, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor’s view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused’s defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court.
3. “Special Counsel”
Following the judgments of the European Court of Human Rights in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996 V) and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports 1998 IV), the United Kingdom introduced legislation making provision for the appointment of a “special counsel” in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his or her legal representatives, the Attorney General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. The relevant rules giving effect to the 1997 and 1998 Acts are set out in the Court’s judgment in Jasper v. the United Kingdom ([GC], no. 27052/95, § 36, 16 February 2000).
In December 1999 the Government commissioned a comprehensive review of the criminal justice system, under the chairmanship of a senior Court of Appeal judge, Sir Robin Auld. The report, published in September 2001 after extensive consultation and entitled “The Review of the Criminal Courts in England and Wales” (“the Auld Report”), recommended, inter alia, the introduction of a “special counsel” scheme in cases where the prosecution wished to seek, ex parte, non-disclosure on grounds of public interest immunity. The recommendation was explained in the Auld Report as follows (footnotes omitted):
“193. The scheme [developed by the common law since R. v. Ward and reflected in the Criminal Procedure and Investigations Act 1996: see above] is an improvement on what went before and has been generally welcomed on that account. But there is widespread concern in the legal professions about lack of representation of the defendant’s interest in the [ex parte] forms of application, and anecdotal and reported instances of resultant unfairness to the defence. ... A suggestion, argued on behalf of applicants in Strasbourg and widely supported in the Review, is that the exclusion of the defendant from the procedure should be counterbalanced by the introduction of a ‘special independent counsel’. He would represent the interest of the defendant at first instance and, where necessary, on appeal on a number of issues: first, as to the relevance of the undisclosed material if and to the extent that it has not already been resolved in favour of disclosure but for a public interest immunity claim; second, on the strength of the claim to public interest immunity; third, on how helpful the material might be to the defence; and fourth, generally to safeguard against the risk of judicial error or bias.
195. The role would be similar to that of an amicus curiae brought in to give independent assistance to a court, albeit mostly on appeal. In rape cases, where an unrepresented defendant seeks to cross-examine a complainant, the court must inform him that he may not do so, and should he refuse to instruct counsel, the court will appoint and instruct one. After the decisions of the European Court of Human Rights in Chahal and Tinnelly, the government introduced such a procedure in immigration cases involving national security. Although such cases are extremely rare, it is sufficient that the principle of a ‘third’ or ‘special’ counsel being instructed on behalf of a defendant has been conceded in a number of areas.
196. The introduction of a system of special independent counsel could, as Owen has also noted, in part fill a lacuna in the law as to public interest immunity hearings in the absence of a defendant appellant in the Court of Appeal, to which the 1996 Act and supporting Rules do not apply. Where there has been a breach of Article 6 because a trial judge did not conduct a public interest immunity hearing due to the emergence of the material only after conviction, the European Court of Human Rights has held that the breach cannot be cured by a hearing before the Court of Appeal in the absence of the appellant. The Court’s reasons for so holding were that the appeals court is confined to examining the effect of non-disclosure on the trial ex post facto and could possibly be unconsciously influenced by the jury’s verdict into underestimating the significance of the undisclosed material.
197. However, even the introduction of special counsel to such hearings would not solve the root problem to which I have referred of police failure, whether out of incompetence or dishonesty, to indicate to the prosecutor the existence of critical information. Unless, as I have recommended, the police significantly improve their performance in that basic exercise, there will be no solid foundation for whatever following safeguards are introduced into the system.
I recommend the introduction of a scheme for instruction by the court of special independent counsel to represent the interests of the defendant in those cases at first instance and on appeal where the court now considers prosecution applications in the absence of the defence in respect of the non-disclosure of sensitive material.”
In R. v. H.; R. v. C. [2004] UKHL 3, decided on 5 February 2004 after the Chamber judgment in Edwards and Lewis, the Judicial Committee of the House of Lords held, inter alia:
“The years since the decision in R. v. Davis and the enactment of the CIPA have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who cannot (either personally or through his legal representative), for security reasons, be fully informed of all the material relied on against him. The procedure is to appoint a person, usually called a ‘special advocate’, who may not disclose to the subject of the proceedings the secret material disclosed to him, and is not in the ordinary sense professionally responsible to that party but who, subject to those constraints, is charged to represent that party’s interests. ...
There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII [public interest immunity from disclosure] matters, a defendant in an ordinary criminal trial ... But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant’s right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. ...”
COMPLAINTS
The applicants claim that their extradition breached Article 5 § 4 of the Convention as they were not provided with a copy of the extradition request and the British Government misled the Slovak authorities as to the location of the offences.
Further, the applicants contend that their rights under Article 6 of the Convention were breached because the trial judge rejected their application to stay the trial as an abuse of process having seen material which had been withheld from them on the grounds of Public Interest Immunity. They further complain that their rights were violated under Article 6 because they were entrapped into committing offences by the United Kingdom Security Services.
QUESTION TO THE PARTIES
Was the consideration of undisclosed evidence by the trial judge, coupled with his determination of the entrapment issue as finder of fact, in violation of Article 6 of the Convention?