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. 28901/95                       by Raphael ROWE and Michael DAVIS                       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 20 December 1993 by Raphael ROWE and Michael DAVIS against the United Kingdom and registered on 9 October 1995 under file No. 28901/95;        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 applicants are two British citizens born in 1968 and 1966 respectively.   They are currently detained in HM Prison Maidstone. Before the Commission, they are 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.        During the night of 15 December 1988 a homosexual was murdered, and three very serious robberies were committed in Surrey by three masked men.   The applicants and a third man were soon suspected of being involved in these offences.   They were arrested on 19 December 1988 in their flats in a house at 25 Lawrie Road ("No. 25").        The trial judge observed in his summing-up the following:        "I turn now to the arrest and interviews of Rowe.   He too      was arrested on the morning of the 19th December.   He too      was interviewed by the police. He was interviewed on the      19th December and the 20th December.   As in the case of      Davis, the answers that Rowe gave in the interviews are of      a piece with his evidence to you. There is no inconsistency      between them and there is no value, therefore, in my      rehearsing even in summary form what he told the police in      interview because it is what he told you."        No victim was able to identify the attackers.   The prosecution case depended, principally, on the testimony of four accessories. Three of them, Jobbins, Duncan and Griffin ("the Jobbins group") lived at the same address as the applicants.   The fourth, Kate Williamson, was a former girlfriend of the first applicant.        A subsequent search of No. 25 revealed some of the stolen property.   The applicants' case was that some of the items had been planted, either by one of the Jobbins group or by the police.   However, the bulk of items was discovered at No. 71 Adelaide Road, the home of the girlfriend of Jobbins.   Five stolen vehicles used by the attackers were found near the places of the murder and robberies.   Some of them were burnt down.        At the trial, the applicants gave evidence, during the course of which, in addition to strenuously denying complicity in the offences, they told the jury that it was quite impossible for them to have been involved in the light of their activities on the night in question which they explained in some detail.   They contended that "if anyone from No. 25 was responsible for the offences, they were Jobbins, Duncan and Griffin".   The applicants also submitted that the Jobbins group had given a deliberately false account to the police, and in evidence at the trial, in order to implicate the applicants, and thereby to exonerate themselves.        The prosecution introduced evidence of Jobbins, Duncan, Griffin and Kate Williamson.        In summary, the Jobbins group's evidence for the prosecution was that they admitted having jointly stolen, on 10 December 1988, one of the vehicles and having supplied it for use in the robberies.   They admitted having supplied at least one of the masks.   They also admitted having driven two of the vehicles to 71 Adelaide Road, where Griffin unloaded the property whilst Jobbins and Duncan went to buy petrol. They destroyed the vehicles afterwards.        Kate Williamson gave evidence that the applicants had been in her company on the night of 15 December 1988 from 8.30 p.m.   She said that she had returned with the applicants and two other persons to No. 25 at about 12.30 a.m.   After returning to the house she and the first applicant had sexual intercourse and then he left between 1.30 and 2.30 a.m. The timing of the return was confirmed by two other witnesses.        The defence case was that the applicants had not left No. 25 that night, and that Kate Williamson was lying either out of jealousy, or through pressure, or for a reward.   She wrote a letter to the first applicant in which she apologised to him for having lied about him to the police.   When cross-examined about this she said she had written the letter under pressure from another of the applicant's girlfriends, though this was denied in evidence by the woman in question. Later at the trial, she retracted her account of how the first applicant had shown her two gold rings (items stolen in the robberies), saying that she had lied in order to make it appear that he had dishonestly received them, rather than having been involved in the robberies.        It appeared from the trial judge's summing-up that the suggestion was put by defence counsel to each of Jobbins, Duncan and Griffin that a deal had been done with the authorities pursuant to which they would not, or might not, be charged with their involvement in the offences in return for giving evidence.   It also appeared that it had been suggested that at least Jobbins' and Griffin's evidence might have been influenced by the prospect of reward money being offered for help to the police.   The jury was reminded of these matters by the trial judge at the outset of his summing-up:        "... It was put to [Jobbins] that a deal had been done and      he denied that.   He denied that any deal had been done in      which, in exchange for the help he was about to give or was      giving, he would not be prosecuted.   He also denied having      been influenced by any prospect of reward apparently being      offered for help in the conviction of [the homosexual]'s      murderer.   It appears that such a reward was at least known      of because both Jobbins and I think Griffin also tacitly      accepted that they were aware of some such offer.        ... [Duncan] told you that when he was first interviewed he      was very frightened that he might be prosecuted, yet he,      like Jobbins, has not been charged with anything.   He      indicated in evidence that he had been told that he would      not be charged.        ... Griffin too was a strong candidate for prosecution, you      may think, for certain charges arising out of the events in      the same way as were Jobbins and Duncan.   He too has not      been charged with anything.   He said that he had been given      to understand that if he gave evidence for the prosecution      in this matter it would be easier for him."        On 26 February 1990 the Central Criminal Court convicted the applicants and their codefendant of murder, assault occasioning grievous bodily harm and three counts of robbery.   They were sentenced to concurrent terms of life, 15 years and 12 years imprisonment.        Following their conviction, the applicants and their co-defendant appealed to the Court of Appeal.   The applicants' sole ground of appeal was that the conviction as a whole was unsafe or unsatisfactory because of the weaknesses and inconsistencies in the evidence.        The defence were made aware on appeal that a substantial sum of reward money had been paid, but the prosecution declined to inform the defence whether any member of the Jobbins group or Kate Williamson had been paid or had claimed the reward. Moreover, neither Kate Williamson nor the Jobbins group were prosecuted for their admitted part in the offences.   The applicants submit that from events which occurred during the appeal hearings it was apparent that the details of the arrangement between these witnesses and the police were withheld from the defence.        The applicants also made a complaint to the Police Complaints Authority concerning their conviction.   The Police Complaints Authority conducted an inquiry and prepared a report, but the findings of the report were not disclosed to the defence.        On 20 October 1992, at the first hearing before the Court of Appeal, counsel for the prosecution handed a document to the Court which was not shown to defence counsel. He sought the Court of Appeal's ruling as to a matter of disclosure.   He informed the Court that the matter was sensitive to a degree which would have required the Court to hear him either ex parte or, if inter partes only, on an undertaking by defence counsel not to disclose what took place to their solicitors or clients.   Both defence counsel then indicated that they could not conscientiously give such an undertaking and withdrew from the hearing. The application then proceeded ex parte. Having considered the material in question, and having itself conducted the balancing exercise, the Court of Appeal reached the conclusion that the material should not have been disclosed to the defence.        On 14 and 15 January 1993 the issue of disclosure was re- canvassed before a differently constituted Court of Appeal at the second hearing (although Lord Taylor CJ participated in both hearings). The reason was that defence counsel had reconsidered their position and had concluded that they had been incorrect in withdrawing voluntarily as they had done at the first hearing.   It was argued by the defence that (i) defence counsel should have been permitted to hear the application by the Crown without giving an undertaking, (ii) counsel for the Crown should, at the least, have been obliged to disclose the category of material in question so that defence counsel could then have made submissions as to whether or not disclosure of material in that category should be ordered.        The Court of Appeal, in its judgment ((1993) 97 Cr.App.R. 110) ("the disclosure judgment"), set out a series of procedural guidelines in cases involving claims that material should not be disclosed on grounds of public interest.   The Court of Appeal stated inter alia:        "It is common ground that the procedure when the      prosecution are in possession of material they believe      should not be disclosed to the defence has been   changed by      the decision of this court in Ward (1993) 96 Cr.App.R. 1.      Previously, the decision whether to disclose or not was      made by the prosecution in accordance with the Attorney-      General's guidelines ... In Ward this court held that,      where the prosecution wishes to claim public interest      immunity justifying non-disclosure, it is for the court,      not the prosecution, to decide whether disclosure must be      made ...        ... in argument the question arose whether, if in a      criminal case the prosecution wished to claim public      interest immunity for documents helpful to the defence, the      prosecution is in law obliged to give notice to the defence      of the asserted right to withhold the documents so that, if      necessary, the court can be asked to rule on the legitimacy      of the prosecution's asserted claim.   [Defence counsel]'s      position was simple and readily comprehensible.   He      submitted that there was such a duty and that it admitted      of no qualification or exception.   Moreover, he contended      that it would be incompatible with a defendant's absolute      right to a fair trial to allow the prosecution, who occupy      an adversarial position in criminal proceedings, to be      judge in their own cause on the asserted claim to immunity.      Unfortunately, and despite repeated questions by the court,      the Crown's position on this vital issue remained opaque to      the end.        We are fully persuaded by [defence counsel]'s reasoning on      this point.   It seems to us that he was right to remind us      that when 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 ...        Relying on Ward, [counsel for the applicants] submits that      in all cases where the prosecution contend public interest      immunity or sensitivity justifies non-disclosure:        (a)    they must give notice to the defence that they are            applying for a ruling by the court;      (b)    they must indicate to the defence at least the            category of the material they hold; and      (c)    the defence must have the opportunity to make            representations to the court.        In other words, he contends for an inter partes hearing in      all cases with disclosure of at least the category of the      material ...        [Prosecution counsel] accepts that in the majority of cases      these requirements should be met. The problem arises where,      exceptionally, the sensitivity of the material is such that      to reveal the category, or, still more exceptionally, the      very fact that an application is being made to the court,      will defeat the public interest in non-disclosure.   In our      judgment, the proper approach is as follows:        (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 the [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.        In reaching these conclusions, we recognise that open      justice requires maximum disclosure and whenever possible      the opportunity for the defence to make representations on      the basis of fullest information.   However, in regard to      public interest immunity in criminal cases, it is implicit      that the defence cannot have the fullest information      without pre-empting the outcome of the application.   Before      Ward, the defence would have been totally unaware that,      within the prosecution authority, the question of whether      to disclose sensitive material or not was being resolved.      The effect of Ward is to give the court the role of      monitoring the views of the prosecution as to what material      should or should not be disclosed and it is for the court      to decide.   Thus, the procedure described as unsatisfactory      in Ward, of the prosecution being judge in their own cause,      has been superseded by requiring the application to the      court.   This clearly gives greater protection to the      defence than existed hitherto - indeed as much protection      as can be given without pre-empting the issue.   Although      ideally one would wish the defence to have notice of all      such applications, and to have sufficient information to      make at least some representations, we recognise that, in      a small minority of cases, the public interest prevents      that being possible."        Finally, the Court 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, if possible, for the same judge or constitution of the court which hears the application also to conduct the trial.        On 22 June 1993, at the outset of the hearing of the substantive appeal before a differently constituted Court of Appeal, defence counsel invited the Court to order the Crown to disclose the name of any person or persons to whom any reward money had been paid for information given to the police concerning the applicants, and sought access to the Police Complaints Authority report concerning a complaint by Rowe.   The Court was shown documents relevant to the request for disclosure.   These were not shown to defence counsel.   However, defence counsel did make submissions as to the factors alleged to support the need for disclosure of the material and as to the balancing exercise. Having considered those submissions and having examined relevant documents, the Court refused to order disclosure.        On 29 July 1993 the Court of Appeal upheld the applicants' conviction concluding that:        "... on the whole of the material we have reviewed, there      is no basis for saying that there is even a lurking doubt      about the safety of the convictions of Rowe and Davis ..."     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 was "sensitive" material which, because of its sensitivity, it would not be in the public interest to disclose. In paragraph 6(iv), it 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.   Accordingly, at the date of the applicants' trial, relevant evidence which was also sensitive could have been withheld without an application to the trial judge.        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) and R. v. Trevor Douglas K. ((1993) 97 Cr.App.R. 342).        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.        On 15 January 1993 the Court of Appeal gave the disclosure judgment in R. v. Davis, Johnson and Rowe (see above).     C.    Subsequent development in the domestic law        In R. v. Keane ([1994] 1 WLR 747), decided in March 1994, the Court of Appeal set out a test of materiality.   The test was discussed in the context of what should be disclosed by the prosecution to the court when it claimed that certain material should not be disclosed on grounds of public interest immunity or other sensitivity.        In R. v. Rasheed ((1994) Times 20 May 1994), the Court of Appeal has held that a failure by the prosecution to disclose the fact that a prosecution witness whose evidence is challenged has applied for or received a reward for giving information is a material irregularity which justifies overturning a conviction.        In June 1994, in R. v. Winston Brown ((1995) 1 Cr.App.R.191), the Court of Appeal reviewed the operation of the Guidelines.   It stated:        "The Attorney General's objective was no doubt to improve the      existing practice of disclosure by the Crown.   That was a      laudable objective.   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 (supra) 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 ([1995] 1 WLR 264).   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.   Lord Taylor CJ stressed that ex parte application should not be made except on the application of the Crown and that it was essential that a verbatim record be kept of such applications.   His Lordship then proceeded to endorse the balancing test laid down in R. v. Keane 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.        The Court of Appeal 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 informer 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 applicants submit that their trial at the Central Criminal 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 applicants' right to a fair trial in general, and, particularly, their right to adequate facilities for the preparation of their defence guaranteed by paragraph 3(b).   Thus, they were placed at a substantial disadvantage in the conduct of the proceedings - in particular at the oral examination of witnesses according to paragraph 3(d) - and became victims of a violation of the principle of equality of arms.   2.    The ex parte procedure, whereby the Court of Appeal gave rulings approving the non-disclosure of evidence at hearings held in the absence of the applicants or their counsel, and without affording them the opportunity to make informed representations, and whereby the prosecution or the trial court may have secretly decided to withhold evidence violated the applicants' 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 applicants nor their 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.   Further, the violation was compounded by the fact that the Court of Appeal itself reviewed the undisclosed evidence in the context of proceedings where it acted as a tribunal of fact.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 20 December 1993 and registered on 9 October 1995.        On 26 June 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 8 November 1996, after an extension of the time-limit fixed for that purpose.   The applicants replied on 7 February 1997 also after an extension of the time-limit.        On 21 January 1997 the Commission granted the applicants legal aid.        On 23 May 1997 the Government presented further comments on certain points in the applicants' observations.     THE LAW        The applicants complain that their trial was unfair, that they were prevented from preparing their defence and from cross-examining prosecution witnesses.   The ex parte procedure, in which the Court of Appeal approved the non-disclosure of relevant evidence on the grounds of public interest immunity, was held in the absence of the applicants and their counsel and without affording them the opportunity to make informed representations.   Accordingly, the applicants argue that they were placed at a substantial disadvantage in the conduct of the proceedings which affected the principle of equality of arms.   In addition, they argue that the prosecution also had in its possession information relating to the names of the person or persons to whom any reward money had been paid for information given to the police concerning the applicants, and relating to the Police Complaints Authority report on the case.   They invoke Article 6 paras. 1, 3(b) and 3(d) (Art. 6-1, 6-3-b, 6-3-d) of the Convention which, insofar as relevant, read as follows:        "1.    In the determination ... of any criminal charge against      him, everyone is entitled to a fair and public hearing ... 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 first submit that neither the general principle of fairness in criminal proceedings under Article 6 para. 1 (Art. 6-1) of the Convention nor the specific right to "adequate facilities" under Article 6 para. 3(b) (Art. 6-3-b) of the Convention requires an absolute right for the defence to disclosure of all relevant material. Moreover, previous cases decided by the Convention organs do not establish any such principle whether by analogy or otherwise and, on the contrary, have recognised the legitimacy of non-disclosure of confidential or sensitive material in criminal proceedings.        As to the issue of principle, the Government submit that there are categories of material which the public interest requires either should not be disclosed at all, or should not be disclosed without a compelling reason.   The basis on which that public interest rests is that damage would or, at the least, might be caused by disclosure.        They claim that the concept of relevant material covers material in a very broad spectrum.   At one end of the spectrum is material which is likely not to assist the defence at all, but rather to assist the prosecution. In criminal cases the principle of public interest immunity might operate to prevent use by the prosecution of such material, even if such material incriminated the accused.   At the other end is material which would tend to establish an accused's innocence.        The Government note that if the disclosure of relevant material is a requirement implicit in the reference to "adequate facilities" in Article 6 (Art. 6) of the Convention or the concept of a fair trial, the consequences are that (i) the public interest in preventing the damage which would follow disclosure would be wholly irrelevant to the disclosure requirements in criminal cases - no matter how obvious or serious the risk, and that (ii) it would be impermissible in any case to assess and take into account the true importance of the material to a fair and proper presentation of the defence case, as opposed simply to deciding whether it passed the low threshold of relevance.        They contend that it is necessary in this context to bear in mind the important public interest in ensuring that, where there is sufficient admissible evidence to support the prosecution of an individual with at least a realistic prospect of a conviction being obtained, the case should be allowed to proceed to trial.   That public interest is directly relevant here because the alternative to disclosure is for a prosecution either not to be mounted or to be abandoned.   In relation to informants, (i) the authorities are likely to be extremely reluctant to reveal the identity of an informant, both because of the risk of physical harm to that informant, and because of the importance to the effective detection of crime of ensuring that the sources of information do not dry up, and (ii) an accused will know this and accordingly will have every incentive to seek disclosure of the identity of an informant, in an attempt to ensure that he is not prosecuted, whatever the strength of the evidence against him.        The Government argue that a decision not to mount or to abandon a prosecution is an outcome which may be inevitable.   If the public interest in non-disclosure is irresistible in a particular case, but it is clear that the material is important to enable the defence case to be properly and fairly put, a prosecution could not be mounted or continued.   Fairness to the accused would be paramount.   The effect of an absolute principle based solely on relevance would, however, be to increase those cases in which the prosecution could not be mounted or would have to be abandoned.   That increase would be accounted for by cases in which the material in question, although passing the low threshold of relevance, was of relatively minor importance to the accused. If the material was of real importance to a fair presentation of the defence case, its disclosure would, if necessary, be ordered in any event under existing principles applied by the courts.        The Government further submit that the domestic courts have been astute to ensure that any non-disclosure does not compromise the fairness of proceedings. Thus, the relevant principles ap