United Kingdom House of Lords Decisions

APPELLATE COMMITTEE

REPORT

Ordered to be printed 5 February 2004

LONDON

    (HL Paper 33)

    12TH REPORT
from the Appellate Committee

5 FEBRUARY 2004

ORDERED TO REPORT

    The Committee (Lord Bingham of Cornhill, Lord Woolf, Lord Hope of Craighead, Lord Walker of Gestingthorpe and Lord Carswell) have met and considered the causes Regina v. H (Appellant) (2003) (On Appeal from the Court of Appeal (Criminal Division)) and Regina v. C (Appellant) (On Appeal from the Court of Appeal (Criminal Divsion)) (Conjoined Appeals). We have heard counsel on behalf of each appellant and on behalf of the Crown as respondent.

1.   This is the considered opinion of the Committee.
2.   On 16 October 2003 the Court of Appeal (Criminal Division) gave judgment on interlocutory appeals by C and by the Crown: [2003] EWCA Crim 2847, [2003] 1 WLR 3006. The court certified that two points of law of general public importance were involved in its decision, namely
"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 way are the procedures deficient and how might the deficiency be remedied?"

    The court signalled its recognition of the importance and topicality of these questions by, unusually, granting leave to appeal to the House.

3.   Both appellants have been charged, with others, with conspiracy to supply a class A drug, namely heroin, contrary to section 1 of the Criminal Law Act 1977. The street value of the heroin in question was said to be some £1.8 million. The appellant H is alleged to be a wholesaler of heroin. C is alleged to be an associate of H and to have been involved in the distribution of heroin. Another defendant (who has pleaded guilty to the indictment, and who is not involved in the appeals) is said to have stored and delivered heroin on behalf of H. When interviewed under caution, both H and C denied that they had committed any offence.
4.   The prosecution case was based on observations which, so far as relevant, began on 3 January 2003 and culminated in the arrest of H and C and others on 21 February. It is alleged that on that date a package, later found to contain 2 kilos of heroin, was taken to H's timber-yard, put by H into a white van with a quantity of timber and taken to C's business premises, where C appeared to inspect it.
5.   Both H and C served defence statements as required by section 5(5) of the Criminal Procedure and Investigations Act 1996. H denied that he had any knowledge that controlled drugs were in the van on 21 February. He gave no one permission to place the drugs inside the van. No package was passed to him. The police officer who stated otherwise was lying. He operated a legitimate timber business, a quantity of timber ordered by C was taken to him on 21 February, and that was the sole purpose of his dealings with C on that day. He could not account for traces of heroin on cash found on his person and at the house of his partner; the cash might have been innocently contaminated or there might have been deliberate interference. H's defence statement concluded with a far-reaching request for disclosure of documents by the prosecution. In his defence statement C denied that he had conspired to supply heroin or any class A drug. He knew nothing of any heroin in the van on 21 February. He had ordered a supply of timber, which was delivered on that day. He had no dealings with H, formerly his business partner, save in relation to their former business and the supply of timber. He also made a far-reaching request for disclosure, including disclosure of all material relating to any covert human intelligence sources involved in the investigation "to assist the preparation of his Defence and to establish the legality of the operation".
6.   A formal preliminary hearing was held before His Honour Judge Murphy QC, who was not the judge to whom the case was first assigned, on 11 and 12 September 2003. There was then a lengthy argument on disclosure and the withholding of documents from disclosure by the prosecution on the grounds of public interest immunity. On behalf of H, counsel indicated that his client wished to mount a challenge to the legality and propriety of the police operation, and the integrity of the police surveillance evidence. He indicated that his client's case would involve allegations of the planting of evidence, and the falsification of observations. He indicated that it was his client's intention to make an application to stay the prosecution as an abuse of process on the grounds of serious executive misconduct and/or illegality on the part of the investigating officer and/or to seek the exclusion of evidence on the same grounds under section 78 of the Police and Criminal Evidence Act 1984. He sought disclosure inter alia of the original police observation logs, as well as applications and authorisations under the Regulation of Investigatory Powers Act 2000, and supporting material. On behalf of C, counsel sought disclosure inter alia of the same material in order "to assist the preparation of his Defence and to establish the legality of the operation". Counsel indicated to the judge that the material was sought in order to "found an application for section 78 exclusion of the observation evidence" and to support an application to dismiss the charge pursuant to section 52(6) of the Crime and Disorder Act 1998.
7.   It was argued for C that any assessment of sensitive information held by the prosecution should be conducted in open court in the presence of the defendants and their counsel. The judge rejected this contention, as did the Court of Appeal on C's appeal, and it has not been pursued.
8.   In argument before the judge, both H and C relied strongly on the very recent judgment of the European Court of Human Rights in Edwards and Lewis v United Kingdom (22 July, 2003, unreported, Appn nos 39647/98 and 40461/98). It was urged that since the judge might be called upon to stay or dismiss the case, or to exclude evidence under section 78 of the 1984 Act, Edwards and Lewis required him to appoint special counsel to safeguard the interests of the defendants and test the contentions of the prosecution at any public interest immunity hearing held in the absence of the defendants and their legal representatives. The judge ruled:
"42.  I have just said, I do not feel able to ignore or to circumvent the decision in Edwards. That its consequences are inconvenient or novel or unusual are no grounds for concluding that the present case does not fall within its ambit. I have already ruled that Edwards does not have the consequence in this case of making the examination of sensitive material a matter for an open court investigation.

43.  What the decision in Edwards and Lewis does tell me, however, is that if there is not an independent Counsel appointed, so as to introduce an adversarial element into the public interest immunity enquiry, there is a risk that the trial will be perceived to be unfair, and therefore to be a violation of Article 6.1 of the Convention. I am not prepared to contemplate that."

    The judge added that he had received two lever arch files from the prosecution on the day before the preliminary hearing began, but as he was still very new to the case and needed to familiarise himself with the basic facts, he had given the documents "only a very perfunctory perusal".

9.   The prosecution's appeal against the judge's order succeeded. The court accepted that in some situations a trial judge can and should invite the Attorney General to appoint special counsel from an approved panel to take part in the proceedings (paragraph 33(v) of the judgment of the court delivered by Rose LJ). But it held that the judge's appointment of special counsel was premature (paragraph 34):
"He had not looked in detail at the material, nor considered it in the light of the issues in the case or submissions by the prosecution about it. Had that stage been reached, he might have concluded, for example, that disclosure must be made. He was obliged to take account of the Edwards and Lewis case. But he was not bound by it in the way in which he would be bound by a decision of this court. In any event, there is nothing in the Edwards and Lewis case which required the appointment of independent counsel at that stage".

    The appellants contend that the decision of the judge was correct, and seek to reinstate it.

    A fair trial

10.   As the House declared in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 68, and recently repeated in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 WLR 1, para 13, it is "axiomatic" "that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all". Article 6 of the European Convention requires that the trial process, viewed as a whole, must be fair. Any answer given to the questions raised by these appeals must be governed by that cardinal and overriding requirement.
11.   Fairness is a constantly evolving concept. Hawkins J (Memoirs, chapter IV) recalled a defendant convicted of theft at the Old Bailey in the 1840s after a trial which lasted 2 minutes 53 seconds, including a terse jury direction: "Gentlemen, I suppose you have no doubt? I have none". Until 1898 a defendant could not generally testify on his own behalf. Such practices could not bear scrutiny today. But it is important to recognise that standards and perceptions of fairness may change, not only from one century to another but also, sometimes, from one decade to another.
12.   While the focus of article 6 of the Convention is on the right of a criminal defendant to a fair trial, it is a right to be exercised within the framework of the administration of the criminal law: as Lord Steyn pointed out in Attorney-General's Reference (No 3 of 1999) [2001] 2 AC 91, 118,
"The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public".

    The European Court has repeatedly recognised that individual rights should not be treated as if enjoyed in a vacuum: Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52. As Lord Hope of Craighead pointed out in Montgomery v HM Advocate [2003] 1 AC 641, 673:

"the rule of law lies at the heart of the Convention. It is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice. The approach which the Strasbourg court has taken to the question whether there are sufficient safeguards recognises this fact."

13.   The institutions and procedures established to ensure that a criminal trial is fair vary almost infinitely from one jurisdiction to another, the product, no doubt of historical, cultural and legal tradition. In some countries provision is made for judicial oversight of criminal investigations. That is, for better or worse, entirely contrary to British practice. Instead, the achievement of fairness in a trial on indictment rests above all on the correct and conscientious performance of their roles by judge, prosecuting counsel, defending counsel and jury. Save in defined circumstances (such as when ruling on the voluntariness of a confession in a voir dire or, much more rarely, a specific allegation of official misconduct) the judge is not a factual decision-maker. His task is to ensure that the trial is conducted in a fair and even-handed way. For this latter purpose he is entrusted with numerous discretions (see Rosemary Pattenden, Judicial Discretion and Criminal Litigation, 2nd ed 1990). The appellants' counsel were generous in their acknowledgement of the high standards of fairness which judges routinely apply. The duty of prosecuting counsel, recently considered by the Judicial Committee of the Privy Council in Randall v The Queen [2002] UKPC 19, [2002] 1 WLR 2237, para 10, is not to obtain a conviction at all costs but to act as a minister of justice. As Rand J put it in the Supreme Court of Canada in Boucher v The Queen [1955] SCR 16, 24-25:
"Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly".

    Defending counsel also are subject to clear professional rules: they may not invent a case for their client or pursue serious accusations in the absence of material to support them: Code of Conduct for the Bar of England and Wales, paragraph 708(e). In Dr Johnson's famous formulation, "A lawyer is to do for his client all that his client might fairly do for himself, if he could" (emphasis added). To the jury, of course is entrusted the all-important decision to convict or to acquit, and properly-directed juries have over the years shown a remarkable instinct for fairness. To the extent that judges take it upon themselves to decide matters properly within the province of the jury (as for instance by basing a decision to withdraw a case from the jury on their own assessment of the credibility of the evidence, or by ruling whether an incriminating article allegedly found in a defendant's possession had been planted) the process of jury trial is or may be subverted.

    Disclosure

14.   Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.
15.   This is a field in which domestic practice has developed markedly, although not always consistently, over the last 20 years. Until December 1981, the prosecution duty was to make available, to the defence, witnesses whom the prosecution did not intend to call, and earlier inconsistent statements of witnesses whom the prosecution were to call: see Archbold, Pleading, Evidence and Practice in Criminal Cases, 41st ed (1982), paras 4-178-4-179. Guidelines issued by the Attorney General in December 1981 ([1982] 1 All ER 734) extended the prosecution's duty of disclosure somewhat, but laid down no test other than one of relevance ("has some bearing on the offence(s) charged and the surrounding circumstances of the case") and left the decision on disclosure to the judgment of the prosecution and prosecuting counsel.
16.   In R v Ward [1993] 1 WLR 619, 674 this limited approach to disclosure was held to be inadequate:
"An incident of a defendant's right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the defence case. This duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence. Moreover, this duty is continuous: it applies not only in the pre-trial period but also throughout the trial".

    The rule was stated with reference to scientific evidence, because that is what the case concerned, but the authority was understood to be laying down a general test based on relevance: see R v Keane [1994] 1 WLR 746, 752.

17.   The Criminal Procedure and Investigations Act 1996 gave statutory force to the prosecution duty of disclosure, but changed the test. Primary disclosure must be made under section 3(1)(a) of any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused. Secondary disclosure under section 7(2)(a) is to be made, following delivery of a defence statement, of previously undisclosed material which might be reasonably expected to assist the accused's defence. Section 32 of the Criminal Justice Act 2003, yet to take effect, has amended section 3(1)(a) of the 1996 Act so as to require primary disclosure of any previously undisclosed material "which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused". Whether in its amended or unamended form, section 3 does not require disclosure of material which is either neutral in its effect or which is adverse to the defendant, whether because it strengthens the prosecution or weakens the defence. This rule was not criticised by the appellants' counsel, unsurprisingly since a defendant cannot complain that the defence (and the judge and jury) are not alerted to the existence of material which, if revealed, would lessen his chance of acquittal. The information which came to light in the course of the European Court proceedings in Edwards (that he had been involved in the supply of heroin before the start of the undercover operation: judgment, paragraph 16) would not have been disclosable under the present rule, since that information could only have thrown doubt on his contention that he thought he was dealing with jewellery and on any contention that he had been induced to commit the offence of which he was convicted.

    Public interest immunity

18.   Circumstances may arise in which material held by the prosecution and tending to undermine the prosecution or assist the defence cannot be disclosed to the defence, fully or even at all, without the risk of serious prejudice to an important public interest. The public interest most regularly engaged is that in the effective investigation and prosecution of serious crime, which may involve resort to informers and under-cover agents, or the use of scientific or operational techniques (such as surveillance) which cannot be disclosed without exposing individuals to the risk of personal injury or jeopardising the success of future operations. In such circumstances some derogation from the golden rule of full disclosure may be justified but such derogation must always be the minimum derogation necessary to protect the public interest in question and must never imperil the overall fairness of the trial.
19.   The English law of crown privilege, later public interest immunity (or PII), was largely developed in civil cases. This was because, before and even after the Attorney General's 1981 Guidelines, disclosure was left largely to the judgment of the prosecuting authorities and the prosecution and only exceptionally did the court make any ruling. Thus the defence were commonly unaware of what had not been disclosed and there was no judicial decision against which a defendant could appeal.
20.   The shortcomings of this unsatisfactory régime were vividly exposed by the Court of Appeal's ground-breaking decision in R v Ward [1993] 1 WLR 619, to which reference has already been made. The effect of the judgment was to require the prosecution, if it sought to claim PII for documents helpful to the defence, to give notice of the claim to the defence so that, if necessary, the court could be asked to rule on the legitimacy of the prosecution's asserted claim: see pages 680-681. The procedural implications of this judgment were refined by the Court of Appeal six months later in R v Davis [1993] 1 WLR 613. The court there distinguished between three classes of case: page 617. In the first, comprising most of the cases in which a PII issue arises, the prosecution must give notice to the defence that they are applying for a ruling of the court, and must indicate to the defence at least the category of the material they hold (that is, the broad ground upon which PII is claimed), and the defence must have the opportunity to make representations to the court. There is thus an inter partes hearing conducted in open court with reference to at least the category of the material in question. The second class comprises cases in which the prosecution contend that the public interest would be injured if disclosure were made even of the category of the material. In such cases the prosecution must still notify the defence that an application to the court is to be made, but the category of the material need not be specified: the defence will still have an opportunity to address the court on the procedure to be adopted but the application will be made to the court in the absence of the defendant or anyone representing him. If the court considers that the application falls within the first class, it will order that procedure to be followed. Otherwise it will rule. The third class, described as "highly exceptional", comprises cases where the public interest would be injured even by disclosure that an ex parte application is to be made. In such cases application to the court would be made without notice to the defence. But if the court considers that the case should be treated as falling within the second or the first class, it will so order. The court thus modified to a limited extent the ruling in R v Ward that notice of the making of an application should always be given to the defence: page 618. The test laid down in R v Davis was applied in R v Keane [1994] 1 WLR 746, 750, where the court stressed
"that ex parte applications are contrary to the general principle of open justice in criminal trials. They were sanctioned in Reg v Davis [1993] 1 WLR 613 solely to enable the court to discharge its function in testing a claim that public interest immunity or sensitivity justifies non-disclosure of material in the possession of the Crown. Accordingly, the ex parte procedure should not be adopted, save on the application of the Crown and only for that specific purpose".

    It is plain from the observations of the court at page 752 that the prevailing test of materiality and an excess of caution on the part of prosecutors were by this time tending to impose an undue and inappropriate burden on judges. In R v Turner [1995] 1 WLR 264, 267, the court emphasised the need to scrutinise, with great care, applications for disclosure of details about informers. The procedural régime established by R v Davis was in effect sanctioned by sections 3(6), 7(5), 14(2), 15(2) and 21(2) of the Criminal Procedure and Investigations Act 1996, by the Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997 (SI 1997/698) and by the Magistrates' Courts (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997 (SI 1997/703).

21.   The years since the decision in R v Davis and enactment of the CPIA 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. This procedure was first introduced by section 6 of the Special Immigration Appeals Commission Act 1997 and rule 7 of the Special Immigration Appeals Commission (Procedure) Rules 1998 (SI 1998/1881), in proceedings concerned with exclusion or removal of a person as conducive to the public good or in the interests of national security. Similar provision was made by section 91(7) and (8) of the Northern Ireland Act 1998 in relation to national security certificates issued under section 42 of the Fair Employment (Northern Ireland) Act 1976, although no appointment has yet been made under section 91. Similar provision was again made by section 5 of the Terrorism Act 2000 and rule 10 of the Proscribed Organisations Appeal Commission (Procedure) Rules 2001 (SI 2001/443); section 70 of the Anti-Terrorism, Crime and Security Act 2001 and rule 8 of the Pathogens Access Appeal Commission (Procedure) Rules 2002 (SI 2002/1845); and by the Northern Ireland (Sentences) Act 1998, Schedule 2, paragraph 7(2) and the Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564), Schedule 2, paragraph 6. The courts have recognised the potential value of a special advocate even in situations for which no statutory provision is made. Thus the Court of Appeal invited the appointment of a special advocate when hearing an appeal against a decision of the Special Immigration Appeals Commission in Secretary of State for the Home Department v Rehman [2003] 1 AC 153, paragraphs 31-32, and in R v Shayler [2002] UKHL 11, [2003] 1 AC 247 paragraph 34, the House recognised that this procedure might be appropriate if it were necessary to examine very sensitive material on an application for judicial review by a member or former member of a security service.
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. In the Republic of Ireland, whose legal system is, in many respects, not unlike that of England and Wales, a principled but pragmatic approach has been adopted to questions of disclosure and it does not appear that provision has been made for the appointment of special counsel: see Director of Public Prosecutions v Special Criminal Court [1999] I IR 60.

    The Strasbourg jurisprudence

23.   The problem of reconciling an individual defendant's right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime is inevitably difficult to resolve in a liberal society governed by the rule of law. It is not surprising that complaints of violation have been made against member states including the United Kingdom, some of which have exposed flaws in or malfunctioning of our domestic procedures. The European Court has however long accepted that some operations must be conducted secretly if they are to be conducted effectively: Klass v Federal Republic of Germany (1978) 2 EHRR 214, 232, paragraph 48.
24.   In Edwards v United Kingdom (1992) 15 EHRR 417 there was a prosecution failure to disclose relevant information, but no PII issue had been raised. The omission was held to have been rectified by the appeal process. The applicant in Bendenoun v France (1994) 18 EHRR 54 similarly complained of non-disclosure by the prosecution: his application failed because (paragraph 52) the undisclosed material had not been relied on by the prosecution and he had given no sufficiently specific reasons for requesting the material in question.
25.   Chahal v United Kingdom (1996) 23 EHRR 413 arose from protracted immigration proceedings and did not involve a complaint under article 6. But the case has proved very influential, since in it the Court held (paragraph 144) that the expedient of appointing security-cleared counsel, instructed by the court, who would cross-examine the witnesses and generally assist the court to test the strength of the State's case, served to illustrate (paragraph 131)
"that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice".

    In Tinnelly & Sons Ltd and McElduff v United Kingdom (1998) 27 EHRR 249 the Court again recognised (paragraphs 52, 78) that the appointment of a special advocate in a discrimination case raising security issues in Northern Ireland might

"safeguard national security concerns about the nature and sources of intelligence information and yet accord the individual a substantial degree of procedural justice".

    Both Chahal and Tinnelly arose in fields where provision for the appointment of a special advocate has now been made by statute (see paragraph 21 above).

26.   The appellants placed reliance on the decision of the Court in Van Mechelen v Netherlands (1997) 25 EHRR 647, in particular for two statements of principle. The first (paragraph 54) is that handicaps placed on the defence in criminal proceedings should be sufficiently counterbalanced by the procedures allowed by the judicial authorities. The second is in paragraph 58:
"Having regard to the place that the right to a fair administration of justice holds in a democratic society, any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can suffice then that measure should be applied".

27.   Rowe and Davis v United Kingdom (2000) 30 EHRR 1 arose from the proceedings in which an important ruling had been given by the Court of Appeal in England (paragraph 20 above). Having reviewed the facts of the case and the development of English practice, the Court found that the applicants' rights under article 6 had been violated. In doing so, the Court recognised it (paragraph 60) as 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 should disclose to the defence all material evidence in their possession for or against the accused".

    This, as noted above (paragraph 15) had been the domestic law under the Attorney General's 1981 Guidelines, but had ceased to be so in 1996. The Court continued:

"61.  However, as the applicants recognised, 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.

62.  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".

28.   The Court's judgment in Jasper v United Kingdom (2000) 30 EHRR 441 was delivered on the same day and by the same judges as that in Rowe and Davis. Although by a bare majority, there was held to be no violation of article 6. The distinguishing feature of this case was that the defence had been informed that a PII application was to be made by the prosecution (although not of the category into which the material withheld had been said to fall) and had had the opportunity to make submissions and participate in the decision-making process so far as was possible without revealing to them the material which the prosecution sought to keep secret on public interest grounds: paragraphs 54-55. Appointment of a special advocate was not necessary in this case: paragraph 55. Judgment was also given by the same judges on the same date in Fitt v United Kingdom (2000) 30 EHRR 480, and again (by a bare majority) no violation was found, on grounds very similar to those in Jasper: paragraphs 47-48.
29.   In PG and JH v United Kingdom (4 September 2001, unreported, appn no 44787/98) the prosecution had sought to withhold on public interest grounds certain information relating to the installation of a listening device. A police officer declined to answer questions put to him in cross-examination by defence counsel because his answers might reveal sensitive material. The judge then, with the consent of the defence, put questions to the officer in the absence of the defendants and their lawyers and concluded that the benefit of the answers to the defence was slight, if any, while the damage to the public interest if the answers were made public would be great. The judge refused to exclude the evidence derived from the device. It was unanimously held, partly on the same grounds as in Jasper and Fitt (paragraph 71), that the withholding of the officer's report and the procedure adopted to examine him had not violated article 6. The Court held (paragraph 71):
"The Court also notes that the material which was not disclosed in the present case formed no part of the prosecution case whatever, and was never put to the jury. The fact that the need for disclosure was at all times under assessment by the trial judge provided a further, important safeguard in that it was his duty to monitor throughout the trial the fairness or otherwise of the evidence being withheld. It has not been suggested that the judge was not independent and impartial within the meaning of Article 6 §1. He was fully versed in all the evidence and issues in the case and in a position to monitor the relevance to the defence of the withheld information both before and during the trial".

30.   In both Atlan v United Kingdom (2001) 34 EHRR 833 and Dowsett v United Kingdom (24 June 2003, unreported, appn no 39482/98) unanimous findings of violation of article 6(1) were made. In the first of these cases (paragraphs 44-45) the prosecution had repeatedly denied the existence of undisclosed material and had failed to inform the judge of the true position, when it appeared that there had been undisclosed material directly bearing on the defence advanced at trial. In the second case it was held that the prosecution's failure to disclose material at the trial, although partly cured in the Court of Appeal (paragraph 46), had not been wholly cured (paragraphs 47-49).
31.   Much argument was devoted before the House to the facts and the ratio of the decision of the Fourth Section of the Court in Edwards and Lewis v United Kingdom (22 July 2003, unreported, appn nos 39647/98 and 40461/98), on which the appellants placed very strong reliance. The House is mindful that that decision is to be reviewed by a Grand Chamber, and also that it is not hearing an appeal from the Fourth Section. It should not seek to usurp the function of the Court. But it must address the appellants' submissions on the effect of the decision and the interpretation put on it by the trial judge in this case.
32.   The appellants contended that, taken at its narrowest, the principle established by Edwards and Lewis is that it is incompatible with article 6 for a judge to rule on a claim to PII in the absence of adversarial argument on behalf of the accused where the material which the prosecution is seeking to withhold is, or may be, relevant to a disputed issue of fact which the judge has to decide in order to rule on an application which will effectively determine the outcome of the proceedings. It was argued that the Edwards and Lewis principle applies wherever the defence rely on entrapment to stay the proceedings or exclude evidence, but does not apply to entrapment only and is not confined to determinative rulings. It was however acknowledged that there is no absolute rule which requires the appointment of special counsel in any particular kind of case.
33.   These submissions, in our opinion, seek to place the trial judge in a straitjacket. The consistent practice of the Court, in this and other fields, has been to declare principles, and apply those principles on a case-by-case basis according to the particular facts of the case before it, but to avoid laying down rigid or inflexible rules. There is no doubt as to the principles to be applied - the more important have been identified in earlier paragraphs of this opinion - and there is no dissonance between the principles of domestic law and those recognised in the Convention jurisprudence. It is entirely contrary to the trend of Strasbourg decision-making to hold that in a certain class of case or when a certain kind of decision has to be made a prescribed procedure must always be followed. The overriding requirement is that the guiding principles should be respected and observed, in the infinitely diverse situations with which trial judges have to deal, in all of which the touchstone is to ascertain what justice requires in the circumstances of the particular case.

    Conclusions

34.   It would be unduly complacent to suggest that the guiding principles are now uniformly applied as they should be. R v Early [2002] EWCA Crim 1904, [2003] 1 Cr App R 288 is disturbing evidence to the contrary, although the miscarriage in that case was promptly rectified on appeal. It is encouraging that, of the cases which have reached the Court and led to a finding of violation, there has been only one (Lewis) in which the first instance criminal trial (as opposed to any appeal) took place after the domestic disclosure régime was put on a statutory footing by the 1996 Act. Recent reports by various investigators have however highlighted the need for very great care in handling the whole process of disclosure.
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.
38.   In the present case the judge did not address the first of the questions listed in paragraph 36 above. The Court of Appeal was accordingly right to hold that his decision to seek the appointment of special counsel was premature. Whether he will ever reach that stage must depend on the answers to the succeeding questions, to be answered with particular reference to the material which the prosecution seek to withhold and the specific facts the defence seek to establish. The appeals must be dismissed.
39.   The answers to the certified questions must be gathered from a reading of the whole of this judgment. Provided the existing procedures for dealing with claims for public interest immunity made on behalf of the prosecution in criminal proceedings are operated with scrupulous attention to the governing principles referred to and continuing regard to the proper interests of the defendant, there should be no violation of article 6 of the Convention.
40.   There remain three matters on which submissions were made, and on which the House should express an opinion.

    R v Smith (Joe)

41.   Argument was directed to the correctness of the Court of Appeal decision in R v Smith (Joe) [2001] 1 WLR 1031. In that case the defendant was arrested on suspicion of burglary and a non-intimate sample was taken without his consent. The DNA profile obtained from the sample matched blood at the scene of the burglary, and this match was the bedrock of the prosecution case. At the outset of the trial prosecuting counsel applied to the judge ex parte to withhold disclosure of certain material. The defence were, it seems, notified of the making of the application but not of the category into which the material was said to fall. The judge ruled that the material should not be disclosed and the defence were so informed. The defence then submitted to the judge that the DNA evidence derived from the non-intimate sample should be excluded under section 78 of the Police and Criminal Evidence Act 1984 on the ground that the police had had no reasonable grounds for suspecting the defendant of committing the burglary, and had not therefore been entitled to arrest him or take the sample. There was no evidence before the jury to show that the police had had reasonable cause to suspect the defendant of the burglary but the judge, relying on information communicated to him by the prosecution during the PII hearing, ruled that the police had had reasonable grounds for suspicion and declined to exclude the DNA evidence. The defendant was convicted. On appeal it was argued on his behalf that the judge had not been entitled to rely on evidence communicated to him at the PII hearing and unknown to the defence, but this argument was rejected and the appeal was dismissed.
42.   The report of the case does not of course disclose the effect of the sensitive material withheld pursuant to the PII application, nor is it clear that this was material which either weakened the prosecution or strengthened the defence. It is perhaps unlikely that it did. When the submission on reasonable cause was made, however, the appropriate course was to hold a voir dire. An appropriate police witness would then have testified that he had reasonably suspected the defendant of committing the burglary. When asked the grounds of his suspicion, it may be inferred that he would have declined to answer on PII grounds (assuming there were no grounds for his suspicion to which PII did not apply). The judge would then have had to consider how, fairly to the defendant, the problem could be handled. By analogy with the course adopted in PG and JH v United Kingdom, the judge could have ascertained the questions the defence wished to put to the witness, and himself put the questions to the witness in chambers. That would have enabled him to reach a conclusion whether the police had had reasonable grounds for suspicion or not. It may be that the judge could, by inviting submissions from prosecution and defence, have devised a better procedure. In any event, it was incumbent upon him to involve and inform the defence to the maximum extent possible and to ensure that disclosure was made to the extent that it could be made without unjustified damage to the public interest. As it was, the main plank of the defence was destroyed by evidence given to the judge privately which the defence never had the opportunity to meet in any way. Such a procedure does not meet the minimum standards required by the Convention, and the Court of Appeal erred in holding otherwise. Had it been referred (which it was not) to the Court of Appeal's judgment in civil proceedings in Lamothe v Commissioner of Police of the Metropolis (25 October 1999, unreported), it would perhaps have reached a different conclusion. R v Smith (Joe) should no longer be treated as good law.

    Proceedings in magistrates' courts

43.   The appellants raised the question whether special counsel should routinely be appointed on the rare occasions when PII applications fall to be made in magistrates' courts. In this context attention was drawn to two authorities: R v Stipendiary Magistrate for Norfolk, Ex p Taylor (1997) 161 JP 773, and R (Director of Public Prosecutions) v Acton Youth Court [2001] EWHC Admin 402, [2001] 1 WLR 1828.
44.   The first of these cases must now be read subject to two qualifications: first, that the test for disclosure is now that laid down in the 1996 Act and not the earlier test of relevance on which the judgment was based (see p 777G); and secondly that the test of apparent bias laid down in R v Gough [1993] AC 646 has now been restated by the House in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, 494, paragraphs 102-103. In the second case the relevant principles were correctly applied. If PII applications are confined, as they should be, to material which undermines the prosecution case or strengthens that of the defence, the bench will not be alerted to material damaging to the defendant. If it is, the principles which should govern the court's decision whether to recuse itself are the same as in the case of any other tribunal of fact, but the court's duty of continuing review ordinarily militates in favour of continuing the proceedings before the court which determines the PII application. If a case raises complex and contentious PII issues, and the court has discretion to send the case to the crown court for trial, the magistrates' court should carefully consider whether those issues are best resolved in the crown court. The occasions on which it will be appropriate to appoint special counsel in the magistrates' court will be even rarer than in the crown court.

    The appointment of special counsel

45.   The Director of Public Prosecutions, the head of the Crown Prosecution Service, is appointed by and subject to the superintendence of the Attorney General: Prosecution of Offences Act 1985, sections 1(1)(a), 2(1) and 3(1). It was doubtless these functions of the Attorney General which led the trial judge (in paragraph 29 of his judgment) and the Court of Appeal (paragraph 33(v)) to question the suitability of the Attorney General to be the officer responsible for the appointment of special counsel in cases where the necessity for such appointment arises.
46.   In our opinion such doubt is misplaced. It is very well-established that when exercising a range of functions the Attorney General acts not as a minister of the Crown (although he is of course such) and not as the public officer with overall responsibility for the conduct of prosecutions, but as an independent, unpartisan guardian of the public interest in the administration of justice: see Halsbury's Laws of England, 4th ed (1995), vol 44(1), para 1344; Edwards, The Law Officers of the Crown, 1964, pp ix, 286, 301-302.) It is in that capacity alone that he approves the list of counsel judged suitable to act as special advocates or, now, special counsel, as when, at the invitation of a court, he appoints an amicus curiae. Counsel roundly acknowledged the complete integrity shown by successive holders of the office in exercising this role, and no plausible alternative procedure was suggested. It would perhaps allay any conceivable ground of doubt, however ill-founded, if the Attorney General were to seek external approval of his list of eligible advocates by an appropriate professional body or bodies, but such approval is not in current circumstances essential to the acceptability of the procedure.


APPENDIX I

    ORDERS OF REFERENCE, ETC.

    WEDNESDAY 26 NOVEMBER 2003

    Appellate Committees—Two Appellate Committees were appointed pursuant to Standing Order.

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    WEDNESDAY 3 DECEMBER 2003

    Regina v. H (Appellant) (2003) (On Appeal from the Court of Appeal (Criminal Division))—The appeal of H was presented and ordered to be prosecuted subject to the procedures applicable thereto.

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    THURSDAY 4 DECEMBER 2003

    Regina v. C (Appellant) (On Appeal from the Court of Appeal (Criminal Division))—The appeal of C was presented and ordered to be prosecuted subject to the procedures applicable thereto.

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    WEDNESDAY 10 DECEMBER 2003

    Regina v. H (Appellant) (2003) (On Appeal from the Court of Appeal (Criminal Division))—

    Regina v. C (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) —

    The petition of the appellants praying that the appeals be conjoined; that they be allowed to lodge one statement, one appendix and separate cases and that they be separately represented in respect of the two appeals and that the respondents have leave to lodge separate cases and be separately represented (the agents for the respondents consenting thereto) was presented; and it was ordered as prayed.

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    THURSDAY 11 DECEMBER 2003

    Regina v. H (Appellant) (2003) (On Appeal from the Court of Appeal (Criminal Division)) and Regina v. C (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (Conjoined Appeals)—The appeals were set down for hearing and referred to an Appellate Committee.

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APPENDIX II

    MINUTES OF PROCEEDINGS

    WEDNESDAY 14 JANUARY 2004

        Present: