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MCKEOWN v. THE UNITED KINGDOM - 6684/05 [2011] ECHR 22 (11 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/22.html
Cite as:
[2011] ECHR 22,
(2012) 54 EHRR 7
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FOURTH
SECTION
CASE OF MCKEOWN v. THE UNITED KINGDOM
(Application
no. 6684/05)
JUDGMENT
STRASBOURG
11 January 2011
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of McKeown v. the
United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Ljiljana
Mijović,
President,
Nicolas
Bratza,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 7 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no. 6684/05) against the
United Kingdom of Great Britain and Northern Ireland lodged with the
Court under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
British national, Mr Clifford George McKeown (“the
applicant”), on 4 February 2005.
The applicant was represented by Mr C.R.P. Monteith, a lawyer
practising in Portadown, Northern Ireland, assisted by Mr A. Kane
Q.C., counsel. The United Kingdom Government (“the Government”)
were represented by their Agent, Ms E. Willmott of the Foreign and
Commonwealth Office.
The applicant alleged that his trial for terrorism related offences
was unfair because of the way the courts in Northern Ireland had
approached the question of non-disclosure of prosecution papers to
the defence on grounds of public interest immunity.
On
17 March 2008 the President of the Chamber to which the case had been
allocated decided to give notice of the application to the
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1959. He is currently detained at HMP
Maghaberry, Northern Ireland.
A. The applicant's arrest
At
about 10 p.m. 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 applicant 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 p.m. 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
applicant 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 applicant was arraigned on 8 June 2001 and pleaded not guilty to
one count of possession of firearms and ammunition with intent and
one count of possessions of articles for a purpose connected with
terrorism. 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.”
B. The pre-trial disclosure proceedings
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, BAILII: [2000] ECHR 91 and Jasper v. the United
Kingdom [GC], no. 27052/95, 16 February 2000, BAILII: [2000] 30 EHRR 441 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.
A
hearing took place on 1 August 2002 to allow the parties and counsel
appearing for the Attorney-General made submissions as to whether it
was appropriate either for special counsel to be appointed or for the
trial judge himself to consider the undisclosed material. At that
hearing, 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 then heard submissions from the defence, prosecution
and counsel for the Attorney-General. The latter argued that the
question of disclosure 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 ruled that it was not appropriate for him to
recuse himself. He explained that he had reconsidered his decision
not to read the statement of reasons; he had come to the view that it
was important for him to read the statement of reasons in case there
was something in it which would be of relevance to his decision on
whether to appoint special counsel or to read the undisclosed
material himself. He added:
“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.”
The
trial judge 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 applicant 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 applicant.
C. The trial
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 p.m. 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 applicant 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 applicant's car to appear. All police officers to
whom this suggestion was made denied it.
17. On 8 October 2002, during the cross-examination of one police
officer, counsel for the applicant 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.”
At the conclusion of the case for the prosecution the trial judge was
invited to rule that there was no case for the applicant to answer
and to stay the proceedings on the grounds of entrapment. The trial
judge rejected both applications. As to the former, he concluded that
the circumstantial evidence was such that a jury properly directed
could be satisfied, to the requisite standard of proof, that the
applicant was in voluntary possession by actual or potential control
of the items that were in the car when the police began their pursuit
with knowledge of what was kept or controlled. There was a clear
inference to be drawn that from the nature of the items that were
thrown from the car and those that were found in it after it came to
a halt that the applicant was in possession of the firearms in
connection with terrorist activities.
As to
the latter, after referring to the case of R. v. Looseley (see
paragraph 33 below), the trial judge ruled:
“Although, as was suggested in cross examination
the police may have been in possession of more information than was
revealed at the trial I did not find any evidence to suggest that the
conduct of the police could in any way affront the public conscience
and I therefore declined to stay the proceedings.”
When the trial resumed, the applicant did not give evidence and no
other evidence was called on behalf of the defence. 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. The trial judge found that taking the
circumstantial evidence and the inferences to be drawn from it and,
using as support adverse inferences to be drawn from the applicant's
silence when questioned by the police and his failure to give
evidence, he was satisfied of the applicant's guilt of the two
offences beyond reasonable doubt.
The applicant 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.
D. The Court of Appeal judgment
The applicant appealed against his conviction on both charges. On
28 October 2004, the Court of Appeal in Northern Ireland
unanimously dismissed the appeal. The non-disclosed material was not
considered by the Court of Appeal before it gave judgment. Instead,
it considered the House of Lords ruling in R. v. H and C
[2004] AC 134 (see paragraph 32 below) and reviewed this Court's
judgments in Rowe and Davis and Jasper, both cited
above; Fitt v. the United Kingdom [GC], no. 29777/96,
ECHR 2000 II, BAILII: [2000] 30 EHRR 480; Edwards and Lewis v. the United Kingdom,
nos. 39647/98 and 40461/98, 22 July 2003, BAILII: [2003] ECHR 381 and Dowsett v.
the United Kingdom, no. 39482/98, ECHR 2003 VII, BAILII: [2003] ECHR 314.
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 known 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. It
rejected the applicant's contention that the disclosure judge should
have obtained a daily transcript of the trial and examined it for any
sign of material that might have assisted the applicant's case; this
was not a case where a daily transcript would have been warranted as
no new line of defence ever emerged that might have prompted a
reconsideration of the disclosure judge's decision that the material
did not assist the applicant.
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 [applicant] and [counsel
for the applicant] 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.”
The Court of Appeal further rejected the applicant's argument that
the trial judge had given insufficient weight to the entrapment
theory. The Court of Appeal noted that it had been the central plank
of the applicant's defence and had been thoroughly explored not only
in cross-examination of the witnesses but in extensive canvassing of
the various “coincidences” relied on by the applicant:
the trial judge had had the advantage of hearing the witnesses give
evidence about these matters and had the opportunity to assess them
as they gave their explanations as to the circumstances in which they
came to be involved with the applicant.
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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal trials in Northern Ireland
In Northern Ireland, under section 75 of the Terrorism Act 2000,
trials on indictment can be conducted by so-called “Diplock
courts” (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 a verdict.
He or she 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 convicting the defendant.
B. 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.
Under section 15 (which applies to trials conducted before a judge
and jury) 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 governing the
keeping of the record of its statement of reasons made in pursuance
of Rule 4(2).
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 his legal representative.
C. “Special counsel”
The relevant domestic law and practice on the appointment of special
counsel (also known as special advocates) are set out in Edwards
and Lewis v. the United Kingdom [GC], nos. 39647/98 and
40461/98, ECHR 2004 X, BAILII: [2004] ECHR 560 at paragraphs 43-45.
D. R. v. H and C [2004] 2 AC 134
32. R. v. H and C the House of Lords considered the
compatibility of applications for non-disclosure on grounds of public
interest immunity. It held that procedures for dealing with such
applications would not be in violation of Article 6 provided they
were operated with “scrupulous attention” to certain
governing principles and with continuing regard to the proper
interests of the defendant. The governing principles were as follows:
“35. If material does not weaken the prosecution
case or strengthen that of the defendant, there is no requirement to
disclose it. For this purpose the parties' respective cases should
not be restrictively analysed. But they must be carefully analysed,
to ascertain the specific facts the prosecution seek to establish and
the specific grounds on which the charges are resisted. The trial
process is not well served if the defence are permitted to make
general and unspecified allegations and then seek far-reaching
disclosure in the hope that material may turn up to make them good.
Neutral material or material damaging to the defendant need not be
disclosed and should not be brought to the attention of the court.
Only in truly borderline cases should the prosecution seek a judicial
ruling on the disclosability of material in its hands. If the
material contains information which the prosecution would prefer that
the defendant did not have, on forensic as opposed to public interest
grounds, that will suggest that the material is disclosable. If the
disclosure test is faithfully applied, the occasions on which a judge
will be obliged to recuse himself because he has been privately shown
material damning to the defendant will, as the Court of Appeal
envisaged (paragraphs 31 and 33(v)), be very exceptional indeed.
36. When any issue of derogation from the golden rule of
full disclosure comes before it, the court must address a series of
questions:
(1) What is the material which the prosecution seek to
withhold? This must be considered by the court in detail.
(2) Is the material such as may weaken the prosecution
case or strengthen that of the defence? If No, disclosure should not
be ordered. If Yes, full disclosure should (subject to (3), (4) and
(5) below be ordered.
(3) Is there a real risk of serious prejudice to an
important public interest (and, if so, what) if full disclosure of
the material is ordered? If No, full disclosure should be ordered.
(4) If the answer to (2) and (3) is Yes, can the
defendant's interest be protected without disclosure or disclosure be
ordered to an extent or in a way which will give adequate protection
to the public interest in question and also afford adequate
protection to the interests of the defence?
This question requires the court to consider, with
specific reference to the material which the prosecution seek to
withhold and the facts of the case and the defence as disclosed,
whether the prosecution should formally admit what the defence seek
to establish or whether disclosure short of full disclosure may be
ordered. This may be done in appropriate cases by the preparation of
summaries or extracts of evidence, or the provision of documents in
an edited or anonymised form, provided the documents supplied are in
each instance approved by the judge. In appropriate cases the
appointment of special counsel may be a necessary step to ensure that
the contentions of the prosecution are tested and the interests of
the defendant protected (see paragraph 22 above). In cases of
exceptional difficulty the court may require the appointment of
special counsel to ensure a correct answer to questions (2) and (3)
as well as (4).
(5) Do the measures proposed in answer to (4) represent
the minimum derogation necessary to protect the public interest in
question? If No, the court should order such greater disclosure as
will represent the minimum derogation from the golden rule of full
disclosure.
(6) If limited disclosure is ordered pursuant to (4) or
(5), may the effect be to render the trial process, viewed as a
whole, unfair to the defendant? If Yes, then fuller disclosure should
be ordered even if this leads or may lead the prosecution to
discontinue the proceedings so as to avoid having to make disclosure.
(7) If the answer to (6) when first given is No, does
that remain the correct answer as the trial unfolds, evidence is
adduced and the defence advanced?
It is important that the answer to (6) should not be
treated as a final, once-and-for-all, answer but as a provisional
answer which the court must keep under review.
37. Throughout his or her consideration of any
disclosure issue the trial judge must bear constantly in mind the
overriding principles referred to in this opinion. In applying them,
the judge should involve the defence to the maximum extent possible
without disclosing that which the general interest requires to be
protected but taking full account of the specific defence which is
relied on. There will be very few cases indeed in which some measure
of disclosure to the defence will not be possible, even if this is
confined to the fact that an ex parte application is to be made. If
even that information is withheld and if the material to be withheld
is of significant help to the defendant, there must be a very serious
question whether the prosecution should proceed, since special
counsel, even if appointed, cannot then receive any instructions from
the defence at all.”
E. Entrapment
33. 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] United
Kingdom House of Lords Decisions 53) [2001] UKHL 53 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
A. The parties' submissions
The applicant complained 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, which, where relevant,
reads as follows:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. ...
3. Everyone charged with a criminal offence has the
following minimum rights: ...
(b) to have adequate time and facilities for the
preparation of his defence; ...
(d) to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;”
The applicant submitted that the procedures in place in Northern
Ireland were inadequate to comply with the requirements of Article 6
§ 1. After the disclosure hearing, those procedures in reality
left further consideration of issues of disclosure to the discretion
of prosecution counsel. The disclosure judge's ruling of 13 September
2002 was subject to the duty of the trial judge to ensure a fair
trial and the trial judge's statement on 8 October 2002 (see
paragraph 17 above) had endorsed only the procedure of prosecution
counsel referring issues back to the disclosure judge. Therefore,
during the trial, the applicant had been precluded from access to the
disclosure judge.
The Court of Appeal had been wrong to decide that, because no new
line of defence had emerged, there was no need for the disclosure
judge to have had an ongoing role in considering disclosure
throughout the trial. This ongoing duty to monitor and supervise
disclosure during his trial could not be fulfilled by the trial
judge; he had not seen the material and could not determine its
relevance to the trial as it unfolded. It could not be fulfilled by
the disclosure judge because he did not participate actively in the
trial. The applicant acknowledged that the disclosure judge had known
that at trial the defence would allege entrapment or a “set-up”
by the police. However, there was a difference between, on the one
hand, the disclosure judge considering whether to order disclosure in
advance of trial and with only an outline of the defence case and, on
the other, disclosure being considered in the context of the actual
evidence given at trial.
The applicant also relied on the House of Lords' judgment in
Secretary of State for the Home Department (Respondent) v. MB (FC)
(Appellant) [2007] UKHL 46, which had found that, in cases where
there was undisclosed evidence against someone subject to a “control
order”, the use of special advocates could remedy any
unfairness in the proceedings. He contended that a special advocate
(also known as special counsel) ought to have been appointed in his
case and the refusal to do so meant he had not been provided with a
procedural safeguard that would have been sufficient to uphold his
Article 6 rights.
Finally he relied on this Court's judgment in Botmeh and Alami v.
the United Kingdom, no. 15187/03, 7 June 2007, where the ability
of the Court of Appeal to consider previously withheld material and
further to consider its impact on the safety of the applicants'
convictions had been decisive in this Court's finding of no violation
of Article 6. In the present case, there was nothing to prevent the
Court of Appeal considering the undisclosed material, especially when
it was in the particularly advantageous position of being able to
consider the actual evidence given at trial and the submissions of
the defence.
The Government contested that argument. They submitted that the
essential principles to be derived from this Court's case-law were:
that Article 6 in principle required disclosure but this was not an
absolute right and it could be necessary to withhold evidence to
preserve the fundamental rights of another or safeguard an important
public interest; any difficulties caused to the defence had to be
adequately counter-balanced by the procedures followed by the
judicial authorities; a failure to disclose material to a trial judge
could be remedied by appeal proceedings; and the Court, in
considering whether there had been a violation of Article 6, paid
close attention to the facts of a particular case and the issues
raised by the defence.
In the present case, the decision of the disclosure judge to hear the
prosecution's ex parte application for non-disclosure had been
made after a full inter partes hearing. At the inter
partes hearing the disclosure judge had invited the applicant
and his co-accused to provide him with information as to the nature
of their defence. In his ruling of 13 September 2002 the disclosure
judge had also made it clear that he would be prepared to reconsider
the question of disclosure in light of the defence case as it had
been presented. The applicant had not given evidence and no other
evidence was called on behalf of the defence. This was significant
because the prosecution case was based on depositions which had been
served on the defence in advance of trial and which had been seen by
the disclosure judge. The sole issue in the case always had been
whether the applicant had been in possession of the items in question
when the police began their pursuit of the vehicle or whether he had
been entrapped (or, more accurately, “set-up”) by the
police. The disclosure judge had full regard to the applicant's right
to a fair trial and fully understood the nature of the defence case;
he had found that there was nothing relevant in the non-disclosed
material. The defence case at trial was the same and nothing was
advanced that might have prompted reconsideration of disclosure. The
position at the end of the trial was no different from the position
as it had been before the disclosure judge. It was incorrect to
suggest, as the applicant had, that further disclosure was in the
hands of the prosecution; the defence too could have applied for
review of the decision not to order disclosure under section 14A of
the 1996 Act. Further safeguards, such as providing the disclosure
judge with daily transcripts, were not necessary as they would only
have catered for the speculative possibility that a new line of
defence may have emerged. In light of the disclosure judge procedure,
the applicant's trial was fair even though special counsel had not
been appointed; as the disclosure judge had found (and the Court of
Appeal had agreed) the appointment of special counsel had not been
necessary. The Government therefore submitted that the case bore a
strong similarity to Jasper and Fitt, both cited above;
Edwards v. the United Kingdom, 16 December 1992, BAILII: [1992] ECHR 77 , Series A no.
247 B; and I.J.L. and Others v. the United Kingdom, nos.
29522/95, 30056/96 and 30574/96, ECHR 2000 IX, BAILII: [2000] ECHR 421. In those cases no
violation of Article 6 had been found on the basis that the question
of disclosure in each case had been determined by a court fully
apprised of the issues and after hearing detailed submissions from
the defence.
41. There was no need for the Court of Appeal to have considered the
undisclosed material because the first-instance procedures had
complied with Article 6. Moreover, counsel for the applicant before
the Court of Appeal had not invited it to consider the material and
so it had never been suggested that the Court of Appeal was required
to remedy a deficiency which had occurred at first instance. This
Court had referred to the ability of the Court of Appeal to remedy
defects in disclosure at first instance, for example in Atlan v.
the United Kingdom, no. 36533/97, 19 June 2001; Edwards,
Dowsett, and Botmeh and Alami, all cited above.
However, in the Government's submission, the Court had never
suggested that the Court of Appeal should consider undisclosed
material in appeal proceedings when there has been no discernible
error in the course of first-instance proceedings. The Government
reiterated that the essential point was that the factual position as
considered by the disclosure judge had not changed and there was no
basis for suggesting that wholly irrelevant material had become
relevant.
B. Admissibility
The Court notes that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
C. Merits
The Court notes the present case is one of a series of applications
against the United Kingdom where it has been called upon to examine
the compatibility of non-disclosure of evidence in criminal
proceedings with Article 6 § 1 of the Convention. The principles
applicable to the duty to disclose relevant evidence in criminal
proceedings were set out by the Grand Chamber in Rowe and Davis v.
the United Kingdom, cited above, §§ 60-63, as follows:
“It is a fundamental aspect of the right to a fair
trial that criminal proceedings, including the elements of such
proceedings which relate to procedure, should be adversarial and that
there should be equality of arms between the prosecution and defence.
The right to an adversarial trial means, in a criminal case, that
both prosecution and defence must be given the opportunity to have
knowledge of and comment on the observations filed and the evidence
adduced by the other party ... In addition Article 6 § 1
requires, as indeed does English law ..., that the prosecution
authorities disclose to the defence all material evidence in their
possession for or against the accused ...
However, ... , the entitlement to disclosure of
relevant evidence is not an absolute right. In any criminal
proceedings there may be competing interests, such as national
security or the need to protect witnesses at risk of reprisals or
keep secret police methods of investigation of crime, which must be
weighed against the rights of the accused ... . In some cases it may
be necessary to withhold certain evidence from the defence so as to
preserve the fundamental rights of another individual or to safeguard
an important public interest. However, only such measures restricting
the rights of the defence which are strictly necessary are
permissible under Article 6 § 1 .... Moreover, in order to
ensure that the accused receives a fair trial, any difficulties
caused to the defence by a limitation on its rights must be
sufficiently counterbalanced by the procedures followed by the
judicial authorities ... .
In cases where evidence has been withheld from the
defence on public interest grounds, it is not the role of this Court
to decide whether or not such non-disclosure was strictly necessary
since, as a general rule, it is for the national courts to assess the
evidence before them ... . Instead, the European Court's task is to
ascertain whether the decision-making procedure applied in each case
complied, as far as possible, with the requirements of adversarial
proceedings and equality of arms and incorporated adequate safeguards
to protect the interests of the accused.”
In considering whether those procedures provided sufficient
counterbalance in each case, the Court has examined both the trial
and appeal stages of proceedings. The reason for doing so is that, as
the Court has repeatedly stated in respect of Article 6, its task is
to ascertain whether the proceedings in their entirety were fair (see
Edwards, cited above, § 34).
At the trial stage, the role of the trial judge is of critical
importance. For example, in Rowe and Davis, cited above, the
Court found a violation of Article 6 § 1 on the basis that
evidence, which could have been used to undermine the credibility of
a key prosecution witness, was withheld by the prosecution from both
the defence and the trial judge at first instance, its non-disclosure
on grounds of public interest immunity subsequently being ordered by
the Court of Appeal following an ex parte hearing. The Court
did not consider that this procedure before the appeal court was
sufficient to remedy the unfairness caused at the trial by the
absence of any scrutiny of the withheld information by the trial
judge. Unlike the latter, who saw the witnesses give their testimony
and was fully versed in all the evidence and issues in the case, the
judges in the Court of Appeal were dependent for their understanding
of the possible relevance of the undisclosed material on transcripts
of the Crown Court hearings and on the account of the issues given to
them by prosecuting counsel. In addition, the trial judge would have
been in a position to monitor the need for disclosure throughout the
trial, whereas the Court of Appeal judges made their determination ex
post facto.
Equally,
in Atlan, cited above, the prosecution had repeatedly denied
during the first-instance trial that they had any evidence in their
possession concerning the man whom the applicants accused of having
been an informer who had falsely implicated them. Shortly before the
hearing of the appeal, the prosecution informed the defence that,
contrary to their earlier statements, there was some undisclosed
material. The Court of Appeal, following an ex parte hearing,
ruled that this evidence could remain undisclosed on grounds of
public interest immunity. The Court found a violation of Article 6 §
1 on the grounds that, as it had held in Rowe and Davis, the
trial judge had been better placed than the appeal court judges to
decide whether or not the non disclosure of material evidence
would be prejudicial to the defence, and might, moreover, have chosen
a different form of words for his summing up to the jury had he seen
the evidence in question.
In
Dowsett v. the United Kingdom, no. 39482/98, ECHR 2003-VII,
the prosecution on its own initiative decided not to disclose
material evidence to the defence at trial. Some of this evidence was
subsequently released before the appeal hearing, but the Court found
a violation of Article 6 § 1 because some material evidence
continued to be withheld on grounds of public interest immunity, and
was not even placed before the Court of Appeal in an ex parte
procedure. At paragraph 50 of its judgment, the Court reiterated
the importance of placing material relevant to the defence before the
trial judge for his ruling on questions of disclosure at the time
when it could serve most effectively to protect the rights of the
defence.
By
contrast, in Jasper and Fitt, cited above, where the
prosecution placed all material evidence which it intended to
withhold before the trial judge, no violation was found. The Court
considered it significant that the trial judge in each case provided
an important safeguard in that it was his duty to monitor throughout
the trial the fairness or otherwise of the evidence being withheld.
The need for disclosure was at all times under assessment by him (see
paragraph 56 of the Jasper and paragraph 49 of the Fitt
judgment).
Where the trial judge is not able to rule on the disclosure issue,
the lack of fairness at first instance can be remedied on appeal only
where the Court of Appeal orders full, or virtually full, disclosure
to the defence. Thus the Court found no violation of Article 6 in
Edwards and I.J.L. and Others, both cited above,
because, although the prosecution did not disclose material evidence
at the trial, there was full disclosure to the defence before the
appeal hearing and the Court of Appeal considered the impact of the
new material on the safety of the conviction and did so in the light
of detailed argument from the applicant's lawyers. The same
conclusion was reached in Botmeh and Alami, cited above, where
undisclosed material in the hands of the United Kingdom Security
Service had not been made available to the prosecution or trial
judge. The undisclosed material had been first considered by the
Court of Appeal in an ex parte hearing, a summary of the
material had then been disclosed to the applicants well in advance of
the appeal hearing and the applicants had been able to make
submissions on the basis of it. The Court of Appeal had also been
able to observe that there was nothing of significance before it that
had not been placed before the trial judge (paragraph 43 of the
judgment) and had been able to consider the impact of the new
material on the safety of the applicants' convictions (paragraph 44
of the judgment).
Finally, even where the necessity of disclosure is determined by the
trial judge, the requirements of Article 6 will not necessarily be
satisfied. For example, in Edwards and Lewis, cited above,
each applicant complained that he had been entrapped into committing
the offence by one or more undercover police officers or informers,
and asked the trial judge to consider whether prosecution evidence
should be excluded for that reason. In each case the judge, who
subsequently rejected the defence submissions on entrapment, had
already seen prosecution evidence which might have been relevant to
the issue. In Mr Edwards' case, the evidence produced to the trial
judge and Court of Appeal in ex parte hearings included
material suggesting that Mr Edwards had been involved in drug dealing
prior to the events which led to his arrest and prosecution. During
the course of the criminal proceedings, the applicant and his
representatives were not informed of the content of the undisclosed
evidence and were thus denied the opportunity to counter this
allegation, which might have been directly relevant to the
conclusions of the trial judge and another judge who considered the
matter that the applicant had not been charged with a 'State-created
crime' (a requirement of entrapment). In Mr Lewis' case, the nature
of the undisclosed material had not been revealed, but the Court
considered that it was possible that it was also damaging to the
applicant's submissions on entrapment. Under English law, where
public interest immunity evidence was not likely to be of assistance
to the accused, but would in fact assist the prosecution, the trial
judge was likely to find the balance to weigh in favour of
non-disclosure. In those circumstances, the Court did not consider
that the procedure employed to determine the issues of disclosure of
evidence and entrapment complied with the requirements to provide
adversarial proceedings and equality of arms or incorporated adequate
safeguards to protect the interests of the accused. It therefore
found a violation of Article 6 § 1 in each case (see paragraph
46–48 of the Grand Chamber's judgment, reproducing and
endorsing paragraphs 42–59 of the Chamber's judgment).
In applying those principles to the present case, the Court
recognises the specific circumstances of criminal justice in Northern
Ireland, the need for Diplock courts and the procedures which have
evolved in a system where the trial judge is both tribunal of fact
and tribunal of law. It also considers that, subject to appropriate
appellate review, the appointment of a disclosure judge would, in
principle, meet the requirements of Article 6 § 1 of the
Convention. In particular, the strength of the disclosure judge
system is that it avoids the prejudice that would arise if the trial
judge were required to consider undisclosed material yet does not
leave the question of disclosure entirely to the discretion of the
prosecution. The Court also notes that the disclosure judge system
avoids the problem, highlighted in Edwards and Lewis, of the
trial judge making a finding of fact on a defence submission of
entrapment having already seen prosecution evidence which might be
relevant to the issue.
In the circumstances of this particular case, as in any case
involving the right to a fair trial, the Court must examine whether
the safeguards provided by the disclosure judge system were applied
in a manner compatible with the applicant's rights under Article 6 of
the Convention.
As
a preliminary matter, the Court notes, as did the Court of Appeal,
that the circumstances in which the trial judge came to read the
disclosure judge's statement of reasons are not entirely clear.
However, having examined the trial judge's ruling of 1 August 2002,
the Court accepts his explanation that it was appropriate for him to
read the statement of reasons before hearing the parties' submissions
on whether it was appropriate for special counsel to be appointed or
for the trial judge to examine the undisclosed material for himself.
The Court considers that this was an appropriate course of action for
him to take, not least because the statement of reasons did not
disclose the contents of the undisclosed material. No criticism can
therefore be made of the trial judge who took care to ensure he did
not see anything which might be prejudicial to the defence. Indeed,
the Court observes that the applicant himself does not complain that
his trial was unfair because the trial judge read the statement of
reasons.
Instead,
the essence of the applicant's complaint is that, unlike in the cases
of Jasper and Fitt, cited above, there was no effective
monitoring throughout the trial of the fairness or otherwise of the
evidence being withheld. According to the applicant, the trial judge
could not effectively monitor the situation since he had not seen the
documents; the disclosure judge equally could not act as an effective
monitor since he was not kept informed of the progress of the trial.
It was only prosecuting counsel who had knowledge of both and who was
in practice able to refer the matter back to the disclosure judge if
he felt it necessary. This, the applicant submits, was an inadequate
safeguard.
The
Court is not persuaded by this argument for the following reasons.
First, in contrast to Rowe and Davis, Atlan, and
Dowsett, cited above, in the present case, all documents which
might reasonably be expected to assist the applicant's defence and
for which public interest immunity was claimed were submitted by the
prosecution to the disclosure judge. The defence were not only
informed of this fact but at an inter partes hearing made
detailed submissions on the facts of the case and on the nature of
the defence case, namely that the applicant had been “set-up”
by the police. At that hearing, the disclosure judge, who was fully
aware of the issues in the case, concluded that none of the
undisclosed material was relevant to the defence and that he did not
anticipate any circumstances which would result in the material
becoming of value to the defence. He noted that there were two types
of material involved: the first could not assist the applicant since
it was prejudicial to him; the second related to police procedures,
was general in nature and content and did not relate directly to the
applicant. Moreover, the disclosure judge was given an opportunity to
reconsider his ruling when the case came before him to consider,
inter alia, whether it would be necessary to appoint a special
counsel. The Court notes that, after a further inter partes
hearing, the disclosure judge reiterated that he could foresee no
circumstances in which the undisclosed material would be of
assistance to the defence and did not regard the case as requiring
the appointment of a special counsel. Nonetheless, the disclosure
judge was careful to note that, if the defence were to advance a
proposition or raise an issue that might, by a remote possibility,
touch on the undisclosed material and make it of use to the defence,
the prosecution could be relied on to alert the trial judge with a
view to referring the case back to the disclosure judge. In this
connection, the Court notes that the defence case advanced at the
trial was essentially that which had already been indicated to the
disclosure judge. The applicant has been unable to point to any
instance in the course of the trial where, as a result of any change
in his defence, it would have been appropriate for the prosecution to
have referred the matter to the disclosure judge. The Court further
notes that there is nothing in the case-file to indicate that the
applicant was hindered by the non-disclosure in his cross-examination
of the numerous police witnesses with a view to establishing that he
had been “set-up”.
Second,
the Court also observes that the Court of Appeal specifically
considered and rejected the applicant's submission that fairness
required that a special counsel should have been appointed or that a
daily transcript should have been provided to the disclosure judge
and examined for any sign of material that might have assisted the
applicant's case. Both were found to be unnecessary to cater for the
“purely speculative possibility” that a line of defence
might emerge. No new line of defence had emerged and nothing had
appeared that suggested that material characterised by the disclosure
judge as wholly irrelevant to the applicant's defence might suddenly
have become relevant. The Court considers that the Court of Appeal
was justified in finding that all steps necessary to safeguard the
applicant's interests in relation to disclosure were taken. In view
of the clear conclusion of the disclosure judge that there was
nothing in the withheld material which could assist the defence, the
Court considers that the fact that the absence of a continuous
monitoring of the situation by persons other than prosecuting counsel
to provide against a purely speculative possibility of a change in
the situation did not result in any unfairness.
Finally,
the Court observes that if there had been deficiencies in the
disclosure regime during the course of the applicant's trial then it
may well have proved necessary for the Court of Appeal to examine the
undisclosed material in order to remedy any unfairness caused to him
(see for example, Edwards; I.J.L. and Others and Botmeh
and Alami, cited above). Indeed, in the rather particular
circumstances of this case, it may well have been desirable for the
Court of Appeal to have examined the undisclosed material in order to
satisfy themselves that no unfairness had arisen during the course of
the trial by reason of the non-disclosure. However, for the reasons
it has given, the Court does not consider that there were any such
deficiencies in the course of the applicant's trial. Consequently,
the fact that the Court of Appeal did not examine the undisclosed
material cannot in itself amount to a violation of Article 6 §
1. Moreover, the Court accepts the Government's submission that the
applicant did not invite the Court of Appeal to examine the material
and thus the Court of Appeal cannot be criticised for failing to
consider the undisclosed material of its own motion.
In light of these conclusions, the Court considers that the criminal
proceedings against the applicant, when taken as a whole, were fair.
There has, therefore, been no violation of Article 6 § 1 in the
present case.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been no violation of Article 6 §
1 of the Convention.
Done in English, and notified in writing on 11 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı
Ljiljana Mijović Deputy
Registrar President
