Court of Appeal in Northern Ireland Decisions

Factual background

"...a vehicle acting suspiciously at Parkmore, VRM - DDZ 1039, blue/green Renault 11".

The information passed by control to the three patrol cars was recorded as:

"... blue/green Renault car acting suspiciously in the Craigavon area"

No reference was made to the registration number, or Parkmore in the controller's message to the patrols. The case made on behalf of the appellant at trial was that the reason that the controller did not pass to those on the ground the registration number of the Renault and information as to the place where it was last seen, was that this was an operation in which police were already in position waiting for the appellant's car to appear. All police officers to whom this suggestion was made roundly denied it.

The proceedings

"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. "

"The considerations which I applied in considering the prosecutor'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. "

The learned judge then gave his ruling as follows: -

"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. "

At the end of the ruling he stated that he had prepared a statement of the reasons for his decision (in accordance with Rule 4(2) of the 1997 Rules), and that this should remain confidential to the prosecutor and the trial judge (pursuant to Rule 9(2) of the 1997 Rules).

"It would be contrary to the public interest in the integrity of the criminal justice system and contrary to the defendant's right to a fair and public trial to permit a trial to take place in circumstances where the trial judge, who is also the judge of fact, and the prosecution have the benefit of a statement of reasons arising from an ex parte application by the prosecution in respect of disclosure which is denied to the defence. The said statement of reasons of necessity is likely to refer to and relate to the nature of the material withheld from the defence. The defence are to be kept in ignorance of the extent and content of the document or documents held by the one performing the jury function. The sole protector of the defendant's interests, monitoring as the case proceeds whether further disclosure is necessary, is the prosecutor who in our adversarial system is the defendant's adversary. It is anticipated as possible as the case proceeds that the prosecutor may disclose to the one performing the jury function material which then may or may not be disclosed to the defence. "

"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. "

There were, McCollum LJ said, two types of material involved. The first could not assist the appellant because it was, he implied, adverse to him. The second related to police procedures; was general in nature and content and did not relate directly to the appellant.

"Mr Kerr [prosecuting counsel] 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 McCollum LJ and ask him about it, but beyond that I can't go." (page 221 of transcript 8 October 2002 lines 9-12).

"Ultimately the overall consideration is always whether the conduct of the police (or other law enforcement agency) was so seriously improper as to bring the administration of justice into disrepute. Lord Steyn's formulation of a prosecution which would affront the public conscience is substantially to the same effect. "

The trial judge ruled that there was no evidence that the conduct of the police could affront the public conscience and he therefore declined to stay the proceedings. He accepted, as had been suggested in cross-examination, that the police may have been in possession of more evidence than was revealed at the trial.

Statutory Background

(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.

The appellant's arguments

The arguments for the Attorney-General

The authorities

"(1) Are the procedures for dealing with claims for public interest immunity made on behalf of the prosecution in criminal proceedings compliant with article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms?

(2) If not, in what ways are the procedures deficient and how might the deficiency be remedied?"

"22. 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 matters, a defendant in an ordinary criminal trial, as distinct from proceedings of the kind just considered. 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 co-operate 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. …"

"60. 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 (see the Brandstetter v Austria judgment of 28 August 1991, Series A no. 211, paras. 66, 67). In addition Article 6(1) requires, as indeed does English law (see para. 34 above), that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused (see the above-mentioned Edwards judgment, para. 36).

61. However, as the applicants recognised (see para. 54 above), 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 (see, for example, the Doorson v The Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, para. 70). 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) (see the Van Mechelen and others v The Netherlands judgment of 23 April 1997, Reports 1997-III, para. 58). 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 (see the above-mentioned Doorson judgment, para. 72 and the above-mentioned Van Mechelen and others judgment, para. 54). "

"57. In the present case … it appears that the undisclosed evidence related, or may have related, to an issue of fact decided by the trial judge. 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 order to conclude whether or not the accused had indeed been the victim of improper incitement by the police, it was necessary for the trial judge to examine a number of factors, including the reason for the police operation, the nature and extent of police participation in the crime and the nature of any inducement or pressure applied by the police (see para 30 above). Had the defence been able to persuade the judge that the police had acted improperly, the prosecution would, in effect, have had to be discontinued. The applications in question were, therefore, of determinative importance to the applicants' trials, and the public interest immunity evidence may have related to facts connected with those applications.

58. Despite this, the applicants were denied access to the evidence. It was not, therefore, possible for the defence representatives to argue the case on entrapment in full before the judge. Moreover, in each case the judge, who subsequently rejected the defence submissions on entrapment, had already seen prosecution evidence which may have been relevant to the issue. For example, in Mr Edwards' case, the Government revealed before the European Court that the evidence produced to the trial judge and Court of Appeal in the 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 judges' conclusions that the applicant had not been charged with a "state created crime" (see para 16 above). In Mr Lewis' case, the nature of the undisclosed material has not been revealed, but it is possible that it also was damaging to the applicant's submissions on entrapment. Under English law, where public interest immunity evidence is not likely to be of assistance to the accused, but would in fact assist the prosecution, the trial judge is likely to find the balance to weigh in favour of non-disclosure (see R v Keane, para 36 above).

59. In these circumstances, the Court does 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 and incorporated adequate safeguards to protect the interests of the accused. It follows that there has been a violation of art 6(1) in this case. "

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.

The application of the principles to the present case

The statement of reasons

Adverse inferences

"Although he had been cautioned under the Criminal Evidence (Northern Ireland) Order 1988 before his first interview Mr McKeown, when invited to do so, did not offer any explanation for the guns and other items thrown from the car or for those items found in it when it when it was stopped. The explanation he offered for this at his second interview was that he had been 'brutalised' and that he did not see why he should have to sit and answer questions when he had bruises on him. It is not disputed that his attitude at the first interview was as recorded. Secondly it would be open to a jury to take the view that he could reasonably have been expected to mention, at the outset, the facts that he relied upon later in his interviews. Further that the only sensible explanation for his failure is that he had no answer at the time or none that would stand up to scrutiny. Finally that the prosecution case was such that it clearly called for an answer. A jury could therefore take this failure as some additional support for the prosecution case".

and

"I consider that Mr McKeown could reasonably be expected to have told the police at the very earliest opportunity that Mr Murphy had asked him to give him a lift and that he knew nothing about the articles that Mr Murphy brought with him. I find unconvincing his explanation that his failure to do so was because of the treatment that he says that he received from other police officers at the time of his arrest. Nor do I consider that it was sufficient to say, "I certainly was not in possession of any firearms". The objects that had been thrown from his car and those found in it were such that an explanation was clearly necessary. I conclude that the only reason why Mr McKeown did not take the first opportunity to give his explanation was that he had not thought of it at that time".

"There is now the additional fact that Mr McKeown did not give evidence. What inferences (if any) can properly be drawn from this? At this stage he has supplied an answer after his first interview by saying that he was giving Murphy a lift and had no idea what he had with him. I take the view that he failed to give evidence because he realised that his explanation would not stand up to cross-examination. I am satisfied that it is fair to draw this inference against him".

Failure to give sufficient weight to the entrapment theory

Conclusions