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FOURTH
SECTION
CASE OF BOTMEH AND ALAMI v. THE UNITED KINGDOM
(Application
no. 15187/03)
JUDGMENT
STRASBOURG
7
June 2007
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 Botmeh and Alami v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Mr J. Šikuta,
Mrs P.
Hirvelä, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15187/03) 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 two
Palestinian nationals, Mr Jawad Botmeh and Ms Samar Alami (“the
applicants”), on 11 May 2003.
- The
applicants were represented by Ms G. Peirce, a lawyer practising in
London. The United Kingdom Government (“the Government”)
were represented by their Agent, Mr J. Grainger, Foreign and
Commonwealth Office.
- The
applicants alleged that the procedure at first instance and before
the Court of Appeal, allowing non-disclosure of certain relevant
evidence, was inconsistent with the Court's case-law and incompatible
with Article 6 of the Convention.
- On
31 May 2005 the Court decided to communicate the complaint under
Article 6 to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1967 and 1965 respectively and, prior to
their sentences of imprisonment, lived in Rugby.
- On
26 July 1994 a car-bomb exploded outside the Israeli Embassy in
London and the following morning a second bomb went off outside the
headquarters of a Jewish organisation, also in London.
- The
applicants and two others (subsequently acquitted) were arrested and
charged with having participated in the conspiracy to make, place,
and detonate these bombs. Ms Alami was a chemical engineer who
admitted possessing other explosive devices and relevant literature.
Mr Botmeh was an engineer who was alleged to have procured the
two cars in which the bombs were delivered, and a large amount of
TATP explosive (of a different type to that used in the two bombs)
was found in a lock-up rented by him. The Crown's case was that both
were members of, or sympathisers with, the Popular Front for the
Liberation of Palestine (PFLP) but, being dissatisfied with official
policy, had become part of a breakaway English group. In evidence
before the jury at trial, both appellants denied any involvement in
the bombings but admitted having carried out experiments with TATP
and model aircraft. The sole purpose, they said, was to develop and
test techniques which could be used not in this country, but in the
Occupied Territories. Both condemned the bombings, regarding them as
short-sighted. They alleged that a Palestinian known to them as
“Reeda”, whom they were unable further to identify, had
supplied the TATP found in the lock-up and accompanied Mr Botmeh
to buy cars at auction. “Reeda” was not mentioned by
either applicant in the course of the police interviews, and his name
came up for the first time during Mr Botmeh's evidence-in-chief. The
Crown, pursuant to its duty to review disclosure during the trial,
unsuccessfully tried to find evidence confirming his existence.
- Although
the trial judge, following ex parte proceedings, ruled that
certain documents should not be disclosed to the defence on grounds
of public interest immunity, some intelligence information was
disclosed before the trial, including material indicating that the
bombs had been planted by an Iranian-backed terrorist organisation.
This possibility was mentioned by the judge in his summing-up to the
jury, as follows:
“Unless the bombs were the work of Iranian backed
Hezbollah, who were named at one time by the media, although there
was no evidence that they ever claimed responsibility or were, in
fact, involved, we have to look elsewhere and ask whether these
defendants were part of some breakaway group or faction and whether
what they have said about their views and attitudes is, in fact,
true. ...
The question is, for you, did these three defendants,
and almost certainly one or more people unknown to us, form their own
English group rejecting the PLO, Fatta, PFLP non-violent policy and
decide to paint the name of Palestine on the mountain again? Or was
it an Islamic fundamentalist group with which these applicants have
no connection seeking to damage Israel and, at the same time, to
discredit the PLO? These are the things that we have to think about.
...”
- On
11 December 1996 both applicants were convicted and on 16 December
1996 they were sentenced to twenty years' imprisonment and
recommended for deportation. They lodged appeals against conviction
and sentence.
- On
4 November 1997, eleven months after the conclusion of the trial, the
applicant's solicitors drew the attention of the Crown Prosecution
Service to a press article quoting a former intelligence officer,
David Shayler, who declared that the United Kingdom's intelligence
agency, MI5, had been warned by a reliable source prior to the
embassy bombing that such an attack was imminent, but that the
information had not been passed to the police. They requested the
details of the warning and an interview with the “reliable
source”.
- On
6 April 1998 the Crown Prosecution Service replied, indicating that
an ex parte application was to be made to the Court of Appeal,
on notice, in relation to the information relevant to the disclosure
request which had been made.
- On
8 May 1998 the Home Secretary signed a public interest immunity
certificate in respect of a bundle of documents, confirming that
these documents “concerned the part played by the Security
Service in events prior to the prosecution of the defendants”
and that they “pass the threshold test for disclosure in the
criminal proceedings against the applicants” (in other words,
that they were relevant to the issues raised on appeal).
- In
March 1999, before granting leave to appeal, a division of the Court
of Appeal (which did not include any of the judges who were later to
preside over the substantive appeal) held an ex parte hearing
to consider the material which the Crown sought to withhold pursuant
to the Secretary of State's certificate, and which the Crown conceded
had not been placed before the trial judge prior to, or during, the
trial.
- The
same division of the Court of Appeal subsequently considered the
applicants' oral application for leave to appeal, where it was
submitted that the ex parte hearing which had already taken
place was incompatible with Article 6 of the Convention. On 3 May
1999, the Court of Appeal granted leave to appeal against conviction
on grounds relating to the lack of full disclosure.
- On
23 September 1999 the defence served a further formal request for
disclosure. In a letter dated 31 March 2000 the prosecution replied
to the defence request, setting out the approach it had adopted to
the disclosure of unused material and confirming its intention to
make a further ex parte application to the Court of Appeal
following inter partes submissions on the procedure to be
followed. The letter indicated that the category into which the
material appended to the Secretary of State's certificate was said to
fall was “agent material”.
- The
substantive appeal was first listed for hearing on 24 October 2000.
It began with inter partes submissions on the procedure to be
followed. On behalf of the applicants it was submitted that it would
be inconsistent with Article 6 of the Convention for the Court of
Appeal to sit ex parte to consider material which had not been
placed before the trial judge and then uphold a claim for public
interest immunity and dismiss the appeal. The Court of Appeal invited
the applicants' counsel to examine the material in question, subject
to an undertaking not to disclose its contents to the applicants.
After taking the advice of his professional association, counsel
informed that court that no such undertaking could be given.
- The
Court of Appeal then concluded that it should view the material ex
parte and rule on the claim for public interest immunity. Having
done so, on 26 October 2000 it ordered the following summary of the
undisclosed evidence to be released to the applicants and their
representatives, but declined to order any further disclosure of the
material in question:
“Some months prior to the bombing of the Israeli
Embassy in London on 26/7/94, the Security Service and MPSB
[Metropolitan Police Special Branch] had received information from an
agent source that a terrorist organisation, unconnected to these
appellants, was seeking information about the location and defences
of the Israeli Embassy in London for a possible bombing attack.
The Security Service and MPSB information was that such
information regarding the Embassy was not provided to the terrorist
organisation.
Related intelligence received after the bombing attack
indicated that the terrorist organisation had not, in fact, carried
out the bombing.
In relation to the Security Service the document
containing the information was disseminated within the Security
Service. However the particular document, for reasons of human error,
was not placed on files subsequently shown to Counsel during the
disclosure exercise.
Other documents from the same source were placed before
Counsel. Two of these other documents, both later in time than the
original, were very similar. One of those documents contained a short
reference to the information referred to above. Through oversight, of
the two documents, the one not referring to the information was
placed before [the trial judge] during the disclosure hearing.
Following publicity in 1997 ensuing from the allegations
of Mr Shayler, the Security Service papers were reviewed. The
particular document was located on a file not seen by Counsel. The
Security Service took immediate steps to bring the document to the
attention of the CPS [Crown Prosecution Service] and Counsel.
Regarding the SIS (MI6), with regard to the document
received by the Security Service, a copy was passed by the Security
Service to SIS. This was handled by the desk officer dealing with the
terrorist group in question. This was not the same officer who was
handling the CPS request for disclosure. The information was filed by
the desk officer in a file containing information from the same
source. The information did not emerge in the disclosure exercise
carried out by SIS through human error.
In relation to MPSB, the document recording the
information was placed on a file germane to the main thrust of the
information received, but it was not placed on a file connected to
the Israeli Embassy or one which would have fallen within the Crown's
disclosure strategy.
There was a cross-reference to the document in a file
received for disclosure which would have led to the document if
noted, but the unusual physical position of the cross-reference on
the file was such that it was over-looked during the disclosure
exercise.”
- The
hearing of the appeal was adjourned for reasons unconnected with the
present application, and resumed almost a year later, on 16 October
2001, when the applicants repeated their submission that the present
case was indistinguishable from Rowe and Davis v. the United
Kingdom [GC], no. 28901/95, ECHR 2000-II (see paragraphs 37-38
below), and that, in order to comply with Article 6 of the
Convention, the Court of Appeal was required either to quash the
conviction or order full disclosure of all relevant evidence not seen
by the trial judge. In its judgment of 1 November 2001
([2001] EWCA Crim 2226), the Court of Appeal rejected the argument
that it could never be appropriate for it to conduct an ex parte
hearing to determine a claim for public interest immunity in
respect of material which had not been placed before the trial judge.
It explained its approach in the disclosure proceedings as follows:
“We turn next to the ex parte hearing which
we held at the first stage of this appeal and its consequences. We
considered the matter in relation to which the prosecution claimed
public interest immunity before us in the context of all the matter
before the trial judge, both disclosed on his order and undisclosed.
We specifically bore in mind the grounds of appeal and the terms of
the letter of 31st March 2000, from the CPS to the appellants'
solicitors setting out their disclosure strategy in response to the
solicitors' request for disclosure. We also specifically considered
whether there was disclosable material relating to any warning by the
Israeli ambassador or any involvement in the bombing by Mossad or in
relation to bombings in Argentina in 1992 and 1994. Our approach was
to consider whether there was a public interest in the non-disclosure
of particular matter and, if there was, whether this was outweighed
because it might, if disclosed, have helped the defence on issues
raised by them at trial.... Because a year had elapsed between the
first and second stages of this appeal we again, at the second stage,
and in accordance with the same considerations, looked at the matter
in relation to which public interest immunity was claimed. We also
took into account the further submissions made on behalf of the
appellants during the second stage of the appeal. We are unpersuaded
that the Crown's system and strategy in relation to disclosure ... is
flawed. In particular the suggestion that they adopted too narrow an
approach is unsubstantiated.
Having considered all the matter placed before us in
this way, we were and are entirely satisfied about five things.
First, prosecuting counsel have had access to everything they want to
see and have examined all relevant and potentially material matter
... and they have continued to keep the need for disclosure under
review. Secondly, the trial judge was correct to rule as he did in
relation to the disclosure and non-disclosure of the matter before
him. Thirdly, no one has attempted to conceal from this court any
relevant or potentially material matter. Fourthly, public interest
immunity has been rightly claimed in relation to the matter which we
have seen, because it affects national security at the highest level
and would, if disclosed, present a clear and immediate threat to
life. Fifthly, apart from the two matters to which we shall refer,
there is nothing of significance before this court which was not
before the trial judge. Having ordered disclosure of these matters to
the appellants, in a suitable form, and having heard submissions in
relation to them, we are satisfied that no injustice was done to the
appellants by not having access to that matter at trial. We say this,
first, because the matter added nothing of significance to what was
disclosed at trial and, secondly, because, for whatever reason, no
attempt was made by the defence at trial to exploit, by adducing it
in any form before the jury, the similar material in relation to the
embassy which had been disclosed at trial. This included information,
on the day before the bombing, that Hizbollah was planning attacks in
London and Geneva and, after the bombing, that it had been carried
out by Hizbollah using non Muslim mercenaries. Information was
also disclosed that three named Iranians were involved in the bombing
under the direction of the IRGC Chief in Europe and in relation to
terrorist activity in Argentina in 1992 and 1994. At trial, no
attempt was made to place this, or other disclosed material pointing
to the possible involvement of other groups, before the jury. Whether
this was because the principal issue at trial was whether Reeda
existed and this information was inconsistent with the appellants'
claim that Reeda was a Palestinian, or for some other reason, we do
not know. We do not accept [counsel for the applicants'] submission
that its vagueness or contradictory nature precluded its use if,
otherwise, it was thought to help the defence. Expert evidence was
called for the defence that the bombers could have come from many
different places, though responsibility was not attributed to any
particular group or organisation. There was also expert evidence that
the organisation with which Alami was connected did not believe in
violence outside Israel. The judge's summing-up rehearsed these
matters in what [counsel for the applicants] called 'commendable
detail' No complaint of any kind is directed to the summing-up. The
jury could not have failed to realise that there were many possible
candidates for carrying out bombings of this kind.
The two matters which we ordered should be disclosed
during the course of this appeal were, first, further information,
prior to the bombings, suggesting that a terrorist organisation
unconnected with the appellants may have been contemplating an attack
on the Israeli Embassy and, secondly, an explanation as to the
circumstances in which a document was not shown to counsel and a
later document was not shown to the trial judge. As to the
information, for the reasons already given, this would have had no
impact on the trial. As to the explanation about the documents, which
we accept, this disposed of any possible sinister implication: we do
not take the view that deliberate malpractice is a necessary or
proper inference from repeated human error, particularly in the light
of the explanation given to us in the ex parte proceedings. Further,
having seen the later document which the judge did not see, we are
satisfied that it, like the similar, but not identical, document
which he did see, was not a document which ought to have been, or
should now be, disclosed: its terms, so far as they are material, are
properly reflected in the information which we ordered to be
disclosed. [Counsel for the applicants'] final submissions proceeded
on the assumption that this court had seen material, not disclosed,
tending to suggest that another English-based group unconnected with
the appellants may have been involved in these bombings. All we say
about that assumption is that, if it were correct, this court's
obligations, at common law and under Article 6, would have required
us to order its disclosure. We should also emphasise that assessment
of the accuracy or reliability of the information disclosed is no
part of this court's function.”
The
Court of Appeal therefore concluded that there had been no breach of
the applicants' Article 6 rights and no reason to regard their
convictions as unsafe.
- The
applicants petitioned the House of Lords for leave to appeal against
the judgment of the Court of Appeal, but were refused leave on
14 November 2002.
B. Relevant domestic law and practice
- At
common law, the prosecution has a duty to disclose any material which
has or might have some bearing on the offence charged. This duty
extends to any earlier written or oral statement of a prosecution
witness which is inconsistent with evidence given by that witness at
the trial and statements of any witnesses potentially favourable to
the defence.
- In
December 1981 the Attorney-General issued guidelines, which did not
have force of law, concerning exceptions to the common-law duty to
disclose to the defence evidence of potential assistance to it
((1982) 74 Crim App 302 – “the Guidelines”)).
According to the Guidelines, the duty to disclose was subject to a
discretionary power for prosecuting counsel to withhold relevant
evidence if it fell within one of the categories set out in paragraph
6. One of these categories (6(iv)) was “sensitive”
material which, because of its sensitivity, it would not be in the
public interest to disclose. “Sensitive material” was
defined as follows:
“... (a) it deals with matters of national
security; or it is by, or discloses the identity of, a member of the
Security Services who would be of no further use to those services
once his identity became known; (b) it is by, or discloses the
identity of, an informant and there are reasons for fearing that the
disclosure of his identity would put him or his family in danger; (c)
it is by, or discloses the identity of, a witness who might be in
danger of assault or intimidation if his identity became known; (d)
it contains details which, if they became known, might facilitate the
commission of other offences or alert someone not in custody that he
is a suspect; or it discloses some unusual form of surveillance or
method of detecting crime; (e) it is supplied only on condition that
the contents will not be disclosed, at least until a subpoena has
been served upon the supplier – e.g. a bank official; (f) it
relates to other offences by, or serious allegations against, someone
who is not an accused, or discloses previous convictions or other
matters prejudicial to him; (g) it contains details of private
delicacy to the maker and/or might create risk of domestic strife.”
- In
R. v. Ward ([1993] 1 WLR 619), the Court of Appeal stressed
that the court and not the prosecution was to decide whether or not
relevant evidence should be retained on grounds of public interest
immunity. It explained that “... a judge is balancing on the
one hand the desirability of preserving the public interest in the
absence of disclosure against, on the other hand, the interests of
justice. Where the interests of justice arise in a criminal case
touching and concerning liberty or conceivably on occasion life, the
weight to be attached to the interests of justice is plainly very
great indeed”.
- In
R. v. Davis, Johnson and Rowe ([1993] 1 WLR 613), the Court of
Appeal held that it was not necessary in every case for the
prosecution to give notice to the defence when it wished to claim
public interest immunity, and outlined three different procedures to
be adopted. The first procedure, which had generally to be followed,
was for the prosecution to give notice to the defence that they were
applying for a ruling by the court and indicate to the defence at
least the category of the material which they held. The defence would
then have the opportunity to make representations to the court.
Secondly, however, where the disclosure of the category of the
material in question would in effect reveal that which the
prosecution contended should not be revealed, the prosecution should
still notify the defence that an application to the court was to be
made, but the category of the material need not be disclosed and the
application should be ex parte. The third procedure would apply in an
exceptional case where to reveal even the fact that an ex parte
application was to be made would in effect be to reveal the nature of
the evidence in question. In such cases the prosecution should apply
to the court ex parte without notice to the defence.
- The
Court of Appeal observed that although ex parte applications
limited the rights of the defence, in some cases the only alternative
would be to require the prosecution to choose between following an
inter partes procedure or declining to prosecute, and in rare
but serious cases the abandonment of a prosecution in order to
protect sensitive evidence would be contrary to the public interest.
It referred to the important role performed by the trial judge in
monitoring the views of the prosecution as to the proper balance to
be struck and remarked that, even in cases in which the sensitivity
of the information required an ex parte hearing, the defence
had “as much protection as can be given without pre-empting the
issue”. Finally, it emphasised that it was for the trial judge
to continue to monitor the position as the trial progressed. Issues
might emerge during the trial which affected the balance and required
disclosure “in the interests of securing fairness to the
defendant”. For this reason it was important for the same judge
who heard any disclosure application also to conduct the trial.
- The
leading case on disclosure at the time of the applicants' trials was
the judgment of the Court of Appeal in R. v. Keane ([1994]
1 WLR 746). The Lord Chief Justice, giving the judgment of
the court, held that the prosecution should put before the judge only
those documents which it regarded as material but wished to withhold
on grounds of public interest immunity. “Material”
evidence was defined as evidence which could be seen, “on a
sensible appraisal by the prosecution: (1) to be relevant or possibly
relevant to an issue in the case; (2) to raise or possibly raise a
new issue whose existence is not apparent from the evidence which the
prosecution proposes to use; (3) to hold out a real (as opposed to
fanciful) prospect of providing a lead on evidence which goes to (1)
or (2)”.
- Once
the judge was seized of the material, he or she had to perform the
balancing exercise between the public interest in non-disclosure and
the importance of the documents to the issues of interest, or likely
to be of interest, to the accused. If the disputed material might
prove the defendant's innocence or avoid a miscarriage of justice,
the balance came down firmly in favour of disclosing it. Where, on
the other hand, the material in question would not be of assistance
to the accused, but would in fact assist the prosecution, the balance
was likely to be in favour of non-disclosure.
- In
the case of R. v. Turner ([1995] 1 WLR 264), the Court of
Appeal returned to the balancing exercise, stating, inter alia:
“Since R. v. Ward ... there has been an
increasing tendency for defendants to seek disclosure of informants'
names and roles, alleging that those details are essential to the
defence. Defences that the accused has been set up, and allegations
of duress, which used at one time to be rare, have multiplied. We
wish to alert judges to the need to scrutinise applications for
disclosure of details about informants with very great care. They
will need to be astute to see that assertions of a need to know such
details, because they are essential to the running of the defence,
are justified. If they are not so justified, then the judge will need
to adopt a robust approach in declining to order disclosure. Clearly,
there is a distinction between cases in which the circumstances raise
no reasonable possibility that information about the informant will
bear upon the issues and cases where it will. Again, there will be
cases where the informant is an informant and no more; other cases
where he may have participated in the events constituting,
surrounding, or following the crime. Even when the informant has
participated, the judge will need to consider whether his role so
impinges on an issue of interest to the defence, present or
potential, as to make disclosure necessary ...”
- The
requirements of disclosure have since been set out in a statutory
scheme. Under the Criminal Procedure and Investigations Act 1996,
which came into force in England and Wales immediately upon gaining
Royal Assent on 4 July 1996, the prosecution must make “primary
disclosure” of all previously undisclosed evidence which, in
the prosecutor's view, might undermine the case for the prosecution.
The defendant must then give a defence statement to the prosecution
and the court, setting out in general terms the nature of the defence
and the matters on which the defence takes issue with the
prosecution. The prosecution must then make a “secondary
disclosure” of all previously undisclosed material “which
might reasonably be expected to assist the accused's defence as
disclosed by the defence statement”. Disclosure by the
prosecution may be subject to challenge by the accused and review by
the trial court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that the Court of Appeal's approach to the
issues of public interest immunity and disclosure of evidence was
inconsistent with Article 6 of the Convention, which 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
Government submitted that the procedure was compatible with Article
6. They reasoned that there was no principled objection to prevent
the Court of Appeal considering ex parte material which had
not been the subject of an application to the trial judge and that
this was recognised in the Court's case-law.
- The
Government reasoned that the Court of Appeal's judgment of 1 November
2001 demonstrated that the applicants' procedural rights were fully
protected, in that the court applied the right principles,
entertained detailed submissions from the defence and came to the
conclusion that the withheld material added nothing of significance
to that which had been before the trial judge. In reaching this
conclusion, the Court of Appeal was not making any finding of fact
adverse to the applicants, but was merely comparing the material
which had been disclosed to the applicants and/or the trial judge to
that which remained undisclosed. The submissions made on behalf of
the applicants before the Court of Appeal contained everything that
might have been advanced by a specially appointed advocate. The
judgment further made it clear that the Court of Appeal would have
ordered disclosure of any material which might have assisted the
defence, without in any way deciding whether or not the material was
accurate or reliable.
- In
the applicants' submission, the Court's case-law established that the
ex parte procedure adopted by English domestic law was a
substantial departure from the principles of inter partes
adversarial justice, which had to be accompanied by guarantees
which secured the rights of the defence; and further, that the Court
of Appeal was not in a position to afford the same safeguards against
unfairness as the trial judge. Accordingly, where relevant evidence
had been withheld on public interest immunity grounds without first
having been placed before the trial judge, there would be a breach of
Article 6 which could not be remedied by the conduct of the ex parte
hearing on appeal. Again, according to the Court's case-law, the
trial judge was intimately involved in the case, and was under a duty
to review his rulings on disclosure as issues emerged during the
trial. He had an overview of the evidence and of the arguments
advanced by the parties to the jury. The Court of Appeal, on the
other hand, was confined to a consideration of transcripts of the
summing-up and selected parts of the evidence. On an ex parte
application, the Court of Appeal was, therefore, dependent upon
prosecution counsel to identify the issues of potential relevance to
a far greater extent than was the trial judge when considering an ex
parte application before and during the trial. In the absence of
a specially appointed advocate to protect the interests of the
accused, the ex parte procedure before the Court of
Appeal did not sufficiently comply with the requirements of
adversarial proceedings and equality of arms, nor incorporate
adequate safeguards for the applicants.
- The
applicants contended that the summary disclosure provided at the
first hearing before the Court of Appeal (see paragraph 17 above)
established that there was relevant information in the possession of
the State which related directly to the responsibility for the
bombings, and which was never placed before the trial judge for a
ruling on public interest immunity. The information tended to
establish, at the very least, that there was a terrorist organisation
unconnected to the applicants which was seeking information to enable
it to mount a bombing of the Israeli Embassy. The decisive issue for
the safety of the applicants' convictions was whether the assertions
made in the disclosure document that (a) the information sought was
not provided and (b) the organisation concerned was not responsible
for the bombings, was correct. Without further disclosure of the
material lying behind the summary, the applicants were unable to
challenge the Court of Appeal's conclusion, reached without the
benefit of adversarial argument, that the terrorist organisation in
question did not, in fact, commit the bombings.
- The
applicants annexed to their observations a copy of an Amnesty
International document, “United Kingdom: Summary of Concerns
raised with the [United Nations] Human Rights Committee”,
November 2001, which stated, in connection with the criminal
proceedings against the applicants:
“Amnesty International is concerned that the two
convicted people have been denied full disclosure, both during and
after the trial, not only of the [information contained in the
summary disclosed by the Court of Appeal], but also of other crucial
evidence which had been blocked by Public Interest Immunity
certificates. The organization believes that failure to disclose
crucial evidence violates the appellants' right to a fair trial.
Amnesty International was also concerned that the appeal court
proceeded with an ex parte hearing, ie in the absence of the
defence team, which was not followed by full disclosure. The case of
Samar Alami and Jawad Botmeh also highlights some of the dangers of
issuing Public Interest Immunity certificates and raises disturbing
questions about the accountability of the intelligence services.”
A. Admissibility
- The Court does not consider that the application is
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.
B. Merits
- The
Court recalls that the guarantees in paragraph 3 of Article 6 are
specific aspects of the right to a fair trial set out in paragraph 1
(see Edwards v. the United Kingdom, judgment of 25 November
1992, Series A no. 247-B, § 33). In the circumstances of the
case it finds it unnecessary to examine the applicants' allegations
separately from the standpoint of paragraph 3 (b) and (d), since they
amount to a complaint that the applicants did not receive a fair
trial. It will therefore confine its examination to the question
whether the proceedings in their entirety were fair (ibid., pp.
34-35, § 34).
- The
principles relevant 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
the above-mentioned Rowe and Davis case, 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 first-instance 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.
- In
Atlan v. the United Kingdom, no. 36533/97, 19 June 2001, 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.
- In
contrast, no violation was found in Jasper v. the United Kingdom
[GC], no. 27052/95 or Fitt v. the United Kingdom [GC], no.
29777/96, both ECHR 2000-II, where the prosecution placed all
material evidence which it intended to withhold before the trial
judge, ex parte, for his ruling on disclosure. In
Edwards, cited above, and I.J.L., G.M.R. and A.K.P. v. the
United Kingdom, nos. 29522/95, 30056/96, 30574/96, ECHR 2000-IX,
the requirements of Article 6 § 1 were satisfied because in each
case, although the prosecution withheld material evidence at first
instance, there was full disclosure before the appeal hearing and the
Court of Appeal was able to assess the impact of the earlier
non-disclosure in the light of full and informed defence submissions.
- In
the present case, before and during the applicants' trial, the United
Kingdom Security Service had in their possession evidence from “an
agent source” that a terrorist organisation, unconnected to the
applicants, was seeking information about the possibility of bombing
the Israeli Embassy. Related intelligence received after the bombing
indicated that it had not, in fact, been the work of this terrorist
organisation. The document containing this information (“the
first document”) was not shown to the prosecutors with conduct
of the trial against the applicants, and it was not, therefore,
presented by the prosecution to the trial judge for his ruling as to
whether it was necessary to disclose it. One of two other documents
from the same source, which did not, however, refer to the
information in the first document was placed before the trial judge
during the disclosure hearing.
- The
undisclosed material was first considered by the Court of Appeal in
an ex parte hearing prior to the grant of leave to appeal. At
the commencement of the hearing of the substantive appeal, the Court
of Appeal, in a different composition, heard inter partes
submissions on the procedure to be followed in ruling on the Crown's
claim for public interest immunity, before deciding to examine the
material in an ex parte hearing. The applicants were not
represented during this hearing, either by their own counsel or by a
specially appointed, security-cleared, counsel (see Edwards and
Lewis v. the United Kingdom ([GC], nos. 39647/98 and 40461/98,
§§ 43-45, ECHR 2004-X). However, following the
disclosure hearing and well in advance of the resumed appeal hearing,
the Court of Appeal disclosed to the applicants a summary of the
information contained in the first document, as well as an account of
the events which had resulted in the fact that the undisclosed
material had not been placed before the trial judge. In its judgment
of 1 November 2001, the Court of Appeal observed that, save for the
material which was given to the applicants in summary form, there was
nothing of significance before the court which had not been before
the trial judge (see paragraph 18 above). The applicants were given a
full opportunity to make submissions on the material which had been
disclosed in summary form and on its significance to the issues
raised by the case. On the basis of the submissions made, the Court
of Appeal concluded that no injustice had been done to the applicants
by not having access to the undisclosed matter at trial, since the
matter added nothing of significance to what was disclosed at trial
and since no attempt had been made by the defence at trial to
exploit, by adducing it in any form before the jury, the similar
material which had been disclosed at trial.
- Given
the extent of the disclosure to the applicants of the withheld
material by the Court of Appeal, the fact that the court was able to
consider the impact of the new material on the safety of the
applicants' conviction in the light of detailed argument from their
defence counsel and the fact that the undisclosed material was found
by the court to add nothing of significance to what had already been
disclosed at trial, the Court considers that the case bears a
stronger similarity to the cases of Jasper and Fitt,
Edwards and I.J.L., G.M.R. and A.K.P. (see paragraph 41
above) than to those of Rowe and Davis, Atlan or
Dowsett (see paragraphs 38-40 above) and that the failure to
place the undisclosed material before the trial judge was in the
particular circumstances of the case remedied by the subsequent
procedure before the Court of Appeal.
- There
has not, therefore, been a violation of Article 6 in the present
case.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 of the Convention.
Done in English, and notified in writing on 7 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep Casadevall
Registrar President
