CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 27052/95                       by Eric JASPER                       against the United Kingdom          The European Commission of Human Rights sitting in private on 15 September 1997, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;      Having regard to the application introduced on 26 September 1994 by Eric JASPER against the United Kingdom and registered on 20 April 1995 under file No. 27052/95;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      8 November 1996 and the observations in reply submitted by the      applicant on 7 February 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1933 and currently detained in HM Prison Maidstone.   Before the Commission, he is represented by Mr. J. Wadham, a lawyer practising in London.   A.    The particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        On 1 July 1993 a Dutch lorry imported a consignment of frozen meat from Zeebrugge to Dover.   After customs controls the lorry was taken over by the applicant at a lorry park at Beckton.   The applicant then drove to West Kent Cold Storage at Dunton Green and later on to a warehouse in Leyton.   When he was leaving the warehouse he was arrested and accused of concealing within the meat approximately three metric tonnes of cannabis resin.   Though the meat was frozen meat the warehouse was not refrigerated.   The refrigeration facility for the trailer was not in operation.        A search of the applicant's home revealed substantial monetary outlay. A substantial sum of money in cash (some £24,100) was found in a safety deposit box together with two passports bearing the applicant's photographs, the first in his true name, and the second one in the name of Eric Siggins.   Also found in the box were two documents dated 30 June 1993.        The applicant did not give evidence at his trial.   The defence case was that he had no knowledge of the cannabis hidden in the consignment and was acting as an innocent haulier of the goods.   He pleaded he was attempting to establish a haulage business and had bought vehicles, and hired the lock-up garage with this purpose in mind.   Documents found in the applicant's possession at the time of his arrest indicated that he had received telephone instructions on the evening of 30 June 1993.   These were recorded.   The record indicated that delivery instructions would be found with the load.        On 14 January 1994 the prosecution made an ex parte application to the trial judge to withhold material in its possession on the grounds of public interest immunity.   The defence were notified that an application was to be made, but were not informed of the category of material which the prosecution sought to withhold   The trial judge read the material on the ex parte application. He decided, having considered how important the material might be to the defence, that it should not be disclosed.   The defence did not have any opportunity to make representations and were not informed of the outcome of the hearing.        On 18 January 1994, immediately before the beginning of the trial, the defence served a formal written request asking the prosecution to indicate whether, apart from the evidence which had been the subject of the ex parte hearing on the 14 January 1994, there was other relevant evidence which the prosecution had not disclosed.   The request was in the following terms:        "9.    The Crown are formally asked to indicate (a) in      general whether there is unused material in connection with      this case, apart from the subject-matter of the ex parte      application to the Court on Friday 14 January 1994 ...      which has not been disclosed and (b) in particular:        (i)    whether any listening device or telephone intercept            was used, and whether there exists any resulting            recording, note, memorandum, or other record;        (ii)   whether there exists any note, memorandum or other            record of any interview with, or statement by any            witness or potential witness in this case that has not            already been disclosed;        (iii) whether there exists any evidence ... of any            observations on the lorry ... or on the premises of            West Kent Cold Storage, and if not, whether any such            observations were in fact carried out;        (iv)   whether there were any other observations carried out            in connection with this enquiry that have not been            disclosed;        (v)    whether any enquiries were made to trace the vehicles            and/or drivers used for the first two Davidson & Sons            collections from West Kent Cold Store, and if so, with            what result;        (vi)   whether HM Customs and Excise acted in this enquiry on            any 'information received' and if so, whether there            exists any log, memorandum, or other record of any            such information."        Prosecution counsel provided the answer to questions 9 (iii) and (vi), informing the defence that there had been no such observations and no 'information received' from an informant. However, he declined to answer the remainder of the questions, and declined to place any further material before the trial judge for a ruling on non-disclosure, whether on an inter partes or an ex parte basis.   So far as telephone interceptions were concerned, prosecution counsel contended that it was not incumbent upon him to seek the trial judge's ruling before deciding to withhold such evidence on the grounds of public interest immunity.        Defence counsel then applied to the trial judge for an order that the prosecution answer the other questions.   That application was heard on 24 January 1994 and the prosecution counsel answered as follows:        "I see now, although I had not seen earlier, that sub      paragraphs (ii), (iv) and (v) which I had earlier refused      to answer, are subject to the caveat in the main body of      paragraph 9.   In other words, the question that I am asked      is not whether there does exist -- looking at sub paragraph      (ii) -- any note memorandum; whether there does exist any      other observation; or whether there does exist any enquire      in paragraph 5 to trace vehicles and drivers.   I am not      being asked whether those things exist, I am asked whether      they exist, apart from the subject matter of the ex parte      application. ...        There are two categories of material.   The first ... is      covered by the case of R. v. Ward and subsequently of R. v.      Davis and is also ... the subject ... of the Attorney      General's guidelines. There is another category of material      which is covered by the Interception of Communications Act      and which quite plainly falls to be treated differently in      law. ...        I have refused and still refuse to answer the questions set      out in ... paragraph 9 because I contend that I am not      required to reveal to any person whether there has been any      interception of communications under the Act.   If I answer      the question at 9(a) or 9 (b), I shall be answering that      question which I am not required to answer. ... I am      confident I have done what is required of me in respect of      it. ...        I take the view that were there to be any matter falling      under the Interception of Communications Act it should not      be the subject of any ex parte application, even if there      were not."        That position was upheld by the trial judge who, in his ruling of 24 January 1994, stated inter alia:        "I cannot invite [prosecution counsel], ... to go behind      the stand that he is taking, at this stage, where he takes      the view that even an ex parte application is unnecessary,      which is the way he looks at it ... I think we have taken      the matter as far as we can in that particular aspect. One      is bound, because I have no power [to order] otherwise, to      accept the situation as the prosecutor tells it to be."        On 31 January 1994 the Southwark Crown Court convicted the applicant of being knowingly concerned in the fraudulent evasion of the prohibition on importation of three tonnes of cannabis resin into the United Kingdom.   On 21 March 1994 the applicant was sentenced to ten years' imprisonment.        The applicant appealed to the Court of Appeal.   His arguments were summarised in the Court of Appeal as follows:        "It was clear that not all unused material had been      disclosed ... In open court it was stated on behalf of the      defendant that the unused material was of potential      importance to his defence that he had no knowledge that      drugs were to be or were concealed in the load he carried,      and that he had received his instructions for the      collection by telephone, in the course of his business as      a haulier, very shortly before 1 July 1993 ... Any      information therefore that might have led to his being able      to confirm either the source or content of those      instructions, as well as to trace those who had involved      him in a smuggling enterprise was of obvious importance.        The Crown had declined to answer the question whether any      potentially relevant material, apart from the subject-      matter of the ex parte application, had not been disclosed,      on the grounds that to do so would reveal whether or not      there had been a telephone intercept. It was plain from the      course of the argument that the ex parte application had      not dealt with any telephone intercept, since the Crown      argued that this was the province solely of the prosecutor,      and not that of the judge, a proposition based on R. v.      Preston ...        In these circumstances the defence were entitled to know at      least the category of material with which that application      did not deal ...   Furthermore, the Crown should have been      called upon to justify, ex parte if necessary the stance      taken in relation to the other unused material ...        Since there must have been a reason for watching the      defendant, which was explained neither by the evidence      adduced, nor by that served but excluded by agreement, and      since it was said that there was no informant involved in      the case, there is a strong likelihood that disclosable      information, bearing directly upon the defendant's case,      was in the possession of the prosecution."        Prior to the hearing of the appeal defence counsel applied to the Court of Appeal for an order that the transcript of the ex parte hearing on 14 January 1994 be disclosed to the defence to enable them to argue the non-disclosure as a ground of appeal. This application was heard on 13 February 1995.   Defence counsel outlined the applicant's case that the instructions for the collection of the load had been received by telephone very shortly before 31 July 1993 and continued:        "... and so any information that might be in the Crown's      possession that might directly or indirectly lead to      supporting that proposition, including the absence, if      there had been, of other relevant observations of any prior      contact with those instructing him, would be a matter that      should be disclosed."        The Court read the transcript of the ex parte application made to the trial judge.   It had access to the material which was the subject of the ex parte hearing on 14 January 1994.   As appears from the transcript of the 13 February 1995 application, the Court had to establish the issue to which any unused material had to be relevant in order to be disclosable at all:        "Otton LJ: ... the unused material which was not disclosed      has to be relevant, or likely to be relevant, to the      defence.   The defence here was that he did not know that he      had cannabis in the lorry?      [Defence counsel]: Yes, that was the sole issue before the      jury - did he know."        The Court of Appeal then ruled as follows:        "The application is made, correctly, on the ground that if      the matters which emerged during the ex parte hearing are      relevant, or likely to have been relevant, to the defence      of Mr. Jasper, he should be permitted to have sight of the      ruling and the transcript of the proceedings which took      place on that occasion.   We have read the record and it      seems ... that the learned judge ... knew precisely the      scope of the application and listened with the greatest      possible care to the matters which were placed before him.      He tested those matters, and he came to the conclusion that      the ruling which he made was appropriate in all the      circumstances.   It is abundantly clear from the transcript      that he throughout was very careful to ensure and to      explore whether the material was relevant, or likely to be      relevant to the defence which had been indicated to him. In      these circumstances, it is impossible for this court to say      that the learned judge erred in principle in adopting the      course that he did, or that the prosecution erred in      principle and we see no ground to set aside the order that      the learned judge made on that occasion."        The Court of Appeal declined to order the disclosure.        On 28 March 1995 the Court of Appeal dismissed the applicant's appeal.   The first ground of appeal, i.e. non-disclosure of relevant evidence was dismissed in the following terms:        "The first [ground of appeal], taking them in the order in      which they are set out in the grounds of appeal, related to      matters to which the label 'unused material' is commonly      given in these courts.   It concerned the natural and proper      desire of those instructed on behalf of the appellant to      make sure, in so far as they could, that no documents or      leads of any other sort existed which the Crown ought, as      a matter of duty, to disclose to the defence if there was      a real or a possible or more than a fanciful chance that      disclosure of those documents or those leads might assist      the defence ...        The Crown did, before the trial, disclose certain matters      to the defence.   It was necessary for the Crown to obtain      a ruling from the trial judge as to whether any other      matters which were laid before him were matters that ought,      within the rules of conduct to which we have adverted, to      be disclosed to the defence.   The trial judge gave certain      rulings.   The defence submitted that they were entitled to      a transcript of that which had transpired at that hearing,      at which of course they were not present (the hearing was      ex parte), and it was that transcript which was the subject      matter of the hearing, to which reference was made earlier,      which took place on 13th February 1995. This Court refused      the application by the defence that they be supplied with      a copy of the transcript.   That, in the judgment of this      Court, must be an end of the matter.   There is no      suggestion, nor any ground for a suggestion, that the Crown      were in any way in dereliction of their duty of good faith      in making disclosure of anything that ought properly to be      disclosed."        The Court then considered:        "This was a case of enormous strength so far as the      prosecution were concerned.   The appellant had been caught      red handed with a huge amount of cannabis resin.   He was      exercising a proprietorial form of control over the      packages.   He was unloading them and opening them up.   By      opening them he was allowing what were ostensibly their      sole contents to defreeze, with a risk (to put it no      higher) of their becoming valueless.   He was not the      consignee of the meat.   The appellant neither called nor      gave evidence.   That, of course, was his right, as the jury      were perfectly properly directed, but it had the result      that the jury were   without any explanation whatsoever as      to what, on his case, he was about.   It is difficult, if      not impossible, to see what other inference than that he      was indeed guilty of the offence charged any reasonable      jury could have reached.   We dismiss this appeal."   B.    Relevant domestic law and practice        In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common-law duty to disclose to the defence certain evidence of potential assistance to it ((1982) 74 Cr.App.R. 302 ("the Guidelines")).   The Guidelines attempted to codify the rules of disclosure and to define the prosecution's power to withhold "unused material".   Under paragraph 1, "unused material" was defined as:        "(i) All witness statements and documents which are not included      in the committal bundle served on the defence; (ii) the      statements of any witnesses who are to be called to give evidence      at the committal and (if not in the bundle) any documents      referred to therein; (iii) the unedited version(s) of any edited      statements or composite statement included in the committal      bundles."        Under paragraph 2, any item falling within this definition was to be made available to the defence if "... it has some bearing on the offence(s) charged and the surrounding circumstances of the case".        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 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."        According to paragraph 8, "in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence".   The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution.        Since 1992, the Guidelines have been superseded by the common law, notably by the decisions of the Court of Appeal in R. v. Ward ([1993] 1 WLR 619); R. v. Trevor Douglas K. ((1993) 97 Cr.App.R. 342); R. v. Davis, Johnson and Rowe ([1993] 1 WLR 613); R. v. Preston ([1993] 3 WLR 981); R. v. Keane ([1994] 1 WLR 747); R. v. Winston Brown ((1995) 1 Cr.App.R. 191) and R. v. Turner ([1995] 1 WLR 264).        In R. v. Ward, decided in June 1992, the Court of Appeal gave its most detailed attention to the question of what duties the prosecution have to disclose evidence to the defence.   The Court of Appeal laid down the proper procedure to be followed when the prosecution claims that certain material is the subject of public interest immunity.   It stressed that the court and not the prosecution, was the judge of where the proper balance lay in a particular case.   In dealing with the question whether the prosecution was obliged to give notice to the defence where it wished to withhold documents on grounds of public interest immunity, the Court of Appeal stated:        "... [W]hen the prosecution acted as judge in their own cause on      the issue of public interest immunity in this case they committed      a significant number of errors which affected the fairness of the      proceedings. Policy considerations therefore powerfully reinforce      the view that it would be wrong to allow the prosecution to      withhold material documents without giving any notice of that      fact to the defence.   If, in a wholly exceptional case, the      prosecution are not prepared to have the issue of public interest      immunity determined by a court, the result must inevitably be      that the prosecution will have to be abandoned."        In R. v. Trevor Douglas K., decided in November 1992, the Court of Appeal held that in performing the balancing exercise referred to in Ward, the court must view the material itself:        "In our judgment the exclusion of the evidence without an      opportunity of testing its relevance and importance amounted to      a material irregularity.   When public interest immunity is      claimed for a document, it is for the court to rule whether the      claim should be upheld or not.   To do that involves a balancing      exercise.   The exercise can only be performed by the judge      himself examining or viewing the evidence, so as to have the      facts of what it contains in mind.   Only then can he be in a      position to balance the competing interests of public interest      immunity and fairness to the party claiming disclosure."        The Court of Appeal also established that where an accused appeals to the Court of Appeal on the grounds that material has been wrongly withheld, the Court of Appeal will itself view the material ex parte.   In this case the defence were at least aware of the nature of the evidence in issue.   Subsequent decisions have however authorised a procedure whereby the Crown Court and Court of Appeal may conduct the balancing exercise without the defence being on notice of the general nature of the material or, in certain cases, of even the fact that such material exists and that an application has been made to withhold it.        In January 1993, in R. v. Davis, Johnson and Rowe, the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wishes to claim public interest immunity.        Lord Taylor CJ outlined three different procedures to be adopted. The first procedure which must generally be followed was for the prosecution to give notice to the defence that they are applying for a ruling by the court and indicate to the defence at least the category of the material which they hold.   The defence 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 is 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 is to be made would "let the cat out of the bag'.   Then the prosecution should apply to the court ex parte without notice to the defence.        The Court justified its position on the ground that the only way of avoiding ex parte applications was to say that the prosecution must choose between following the inter partes procedure or declining to prosecute and in rare but serious cases the prosecution would then choose not to prosecute when it was clearly in the public interest to do so.   The Royal Commission on Criminal Justice concluded that this decision represented a satisfactory balance between the public interest in protecting sensitive information and the interests of the defence.        The Court of Appeal also noted that the change of procedure had been to give the court an important role in monitoring the views of the prosecution as to the proper balance to be struck.   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".   The Court of Appeal held:        "(1) In general, it is the duty of the prosecution to comply,      voluntarily and without more, with the requirements in para. 2      of the Attorney-General's guidelines. (2) If the prosecution wish      to rely on public interest immunity or sensitivity to justify      non-disclosure, then, whenever possible, which will be in most      cases, (a),(b) and (c) of [defence counsel's] formulation ...      will apply.   (3) Where, however, to disclose even the category      of the material in question would in effect be to reveal that      which the Crown contends should not in the public interest be      revealed, a different procedure will apply.   The Crown should      still notify the defence that an application to the court is to      be made, but the category of the material need not be specified      and the application will be ex parte.   If the court, on hearing      the application, considers that the normal procedure under (2)      above ought to have been followed, it will so order.   If not, it      will rule on the ex parte application.   (4) It may be that, in      a highly exceptional case, to reveal even the fact that an ex      parte application is to be made, could "let the cat out of the      bag" so as to stultify the application.   Such a case would be      rare indeed, but we accept the prosecution's contention that it      could occur.   In that event, the prosecution should apply to the      court, ex parte, without notice to the defence.   Again, if the      court, on hearing the application, considered that at least      notice of the application should have been given to the defence      or even that the normal inter partes procedure should have been      adopted, it will so order."        Finally, the Court of Appeal noted that it was for the court to continue to monitor the position as the trial progressed.   Issues might emerge during 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 or constitution of the court which hears the application also to conduct the trial.        In November 1993 the House of Lords had decided R. v. Preston which concerned the right of the defence to have access to material obtained by a telephone tap authorised under the Interception of Communications Act 1985 ["the 1985 Act"] (see also No. 24193/94, Dec. 2.7.97).        Section 2 empowers the Secretary of State to authorise the interception of, inter alia, telephone calls.   The purposes for which the power may be exercised are circumscribed by the statute and are confined by Section 2 (2)(b) to the purpose of preventing or detecting serious crime. Section 6 contains provisions for limiting dissemination of intercepted material and for its destruction as soon as its retention is no longer necessary.   Lastly, Section 9 (1)(b) provides, inter alia, that no evidence shall be adduced, and no question in cross-examination shall be asked, by any party in any proceedings before a court or tribunal which tends to suggest that a warrant has been or is to be issued authorising interception of communication.        The House of Lords held that the purpose of 'preventing' serious crime in Section 2 (2)(b) does not extend to the prosecution of such crime.   It was not the purpose of this Act that intercepted material should be used in evidence.   Indeed, the Secretary of State was under a duty to destroy the intercepted material as soon as the object for which it was collected was achieved, which will usually happen long before a criminal trial has taken place.   Accordingly, the House of Lords regarded the 1985 Act as making an exception to the general rule that the prosecution must disclose all unused material to the defence. Lord Mustill made observations on the duties of the prosecution in this regard.   He reiterated that disclosure by the prosecution turns not on admissibility but on materiality.   The prosecution is therefore duty bound to disclose material even if it would be inadmissible.   Further, material must not be withheld from prosecuting counsel on the ground that it is inadmissible in evidence, for he could not perform his broader duties to see justice done without knowing all the material that there is to know.        In March 1994, the Court of Appeal gave judgment in R. v. Keane which concerned a non-disclosure of the details of an informant by the prosecution to the defence.   This judgment highlighted two points.   The first concerns a matter of principle. The Court of Appeal held that in every case in which the prosecution objects to the disclosure of relevant material on grounds of public interest immunity, the judge must balance the public interest in non-disclosure against the importance to the defence of the materials in question. Moreover, if the judge concludes that the material in question might prove the defendant's innocence or avoid miscarriage of justice, he is duty bound to order disclosure.   The second point concerns the procedure to be followed in determining a claim for immunity. It has been determined that a judge may not sanction the withholding of evidence in a criminal case without inspecting the evidence in private and satisfying himself that its suppression would not result in miscarriage of justice.        In June 1994, in R. v. Winston Brown, the Court of Appeal reviewed the operation of the Guidelines.   It stated:        "The Attorney General's objective was ... to improve the existing      practice of disclosure by the Crown. ... But the Attorney General      was not trying to make law and it was certainly beyond his power      to do so ... The Guidelines are merely a set of instructions to      Crown Prosecution Service lawyers and prosecuting counsel ...      Judged simply as a set of instructions to prosecutors, the      Guidelines would be unobjectionable if they exactly matched the      contours of the common law duty of non-disclosure ...   But if the      Guidelines, judged by the standards of today, reduce the common      law duties of the Crown and thus abridge the common law rights      of a defendant, they must be pro tanto unlawful ...        [T]oday, the Guidelines do not conform to the requirements of the      law of disclosure in a number of critically important respects.        First, the judgment in Ward established that it is for the court,      not prosecuting counsel, to decide on disputed questions as to      disclosable materials, and on any asserted legal ground to      withhold production of relevant material ... For present purposes      the point of supreme importance is that there is no hint in the      Guidelines of the primacy of the Court in deciding on issues of      disclosure ... Secondly, the guidelines are not an exhaustive      statement of the Crown's common law duty of disclosure: R. v.      Ward at 25 and 681D.   To that extent too the Guidelines are out      of date. Thirdly, the Guidelines were drafted before major      developments in the field of public interest immunity.   [I]n      paragraph 6 the Guidelines are cast in the form of a prosecutor's      discretion ...   Much of what is listed as 'sensitive material'      is no doubt covered by public interest immunity. But not      everything so listed is covered by public interest immunity ..."        In October 1994 the Court of Appeal decided the case of R. v. Turner where it returned to the balancing exercise.   As in R. v. Keane, the case concerned the increasingly common situation where the prosecution did not wish to disclose the details of an informant but the defence claimed that these details were essential to its case.        The day before the trial the prosecution applied ex parte to the judge for a ruling that it was not under any duty to disclose the details of the informant who had alerted the police, and the judge ruled in its favour.   On appeal, Lord Taylor endorsed the balancing test which required the judge to have regard, on the one hand, to the weight of the public interest in non-disclosure against the importance, on the other hand, of the documents to the issues of interest to the defence, present or potential, so far as they had been disclosed to him or he could foresee them.   But in view of the tendency for defendants to seek disclosure of informants' names and roles, Lord Taylor alerted judges to the need to scrutinise applications for disclosure of details about informants with very great care and continued:        "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 Court of Appeal then concluded:        "It is sufficient for us to say that in this case we are      satisfied that the information concerning the informant showed      a participation in the events concerning this crime which,      coupled with the way in which the defence was raised from the      very first moment by the defendant when he said that he was being      set up, gave rise to the need for the defence to be aware of the      identity of the informant and his role in this matter.   We      therefore conclude that if one applies the principle which has      been quoted from R. v. Keane to the facts of the present case,      there could only be one answer to the question as to whether the      details concerning this informant were so important to the issues      of interest to the defence, present and potential, that the      balance which the judge had to strike came down firmly in favour      of disclosure."     COMPLAINTS        The applicant submits that his trial at the Crown Court and the Court of Appeal violated Article 6 of the Convention in the following respects:   1.    The non-disclosure to the defence of evidence which was acknowledged to be relevant and material, violated the applicant's right to adequate facilities for the preparation of his defence guaranteed by paragraph 3(b) and, consequently, placed him at a substantial disadvantage in the conduct of proceedings - in particular in the oral examination of witnesses according to paragraph 3(d) - and thereby violated the principle of equality of arms.   2.    The ex parte procedure, whereby the Crown Court and the Court of Appeal gave rulings approving the non-disclosure of evidence at hearings held in the absence of the applicant or his counsel, and without affording them the opportunity to make informed representations or providing a transcript of the hearing, violated the applicant's right to a fair and public hearing guaranteed by paragraph 1.   3.    The defects were not remedied by the hearing before the Court of Appeal since neither the applicant nor his counsel had the opportunity to see the undisclosed material at the appeal hearing, and, in consequence, were unable to make informed representations about the impact of the material on the safety of the conviction.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 26 September 1994 and registered on 20 April 1995.        On 26 June 1996 the Commission decided to communicate the application.        The Government's written observations were submitted on 8 November 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 7 February 1997, also after an extension of the time-limit.        On 21 January 1997 the Commission granted the applicant legal aid.   THE LAW        The