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. 29777/96                       by Barry FITT                       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 30 November 1995 by Barry FITT against the United Kingdom and registered on 10 January 1996 under file No. 29777/96;        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      14 February 1997 and the observations in reply submitted by the      applicant on 5 April 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1950 and currently detained in HM Prison Whitemoor.   Before the Commission, he is represented by Mr. Robin Tilbrook, a solicitor practising in Essex.   A.    Particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        According to the Crown's case the applicant, together with C., S. and another, planned to carry out an armed robbery of a Royal Mail van as it was due to leave the Sorting Office at Sandgate Close in Romford.   C. and S. had worked for the post office and were familiar with the procedures necessary to send packages of great value through the post.   Using up-to-date technology the conspirators posted a letter containing a tracking device.   The letter was to appear, in due course, amongst other packages of a similar kind in a mail van the conspirators proposed to rob.   Unknown to them, the police were fully informed as to the robbery that had been planned.        On 26 August 1993, the date of the robbery, the police were keeping the area and conspirators under observation.        At 8.40pm an Orion (driven by C.) parked in Crow Lane, with its lights on, near the Post Office depot.   S.'s Sierra arrived in Crow Lane.   The applicant emerged from S.'s Sierra, dressed entirely in black. He made his way inside the cemetery carrying a jacket over his arm.   C. in the Orion then followed the Sierra, only to return to Sandgate Close, where he parked the Orion with the headlights on.        At 8.46pm the applicant was seen lying down by the railings, inside the cemetery at a spot which was directly opposite Sandgate Close and had a gap in the railings.   Only the "moon" of his face was showing due to the hood of the jacket being secured firmly around his head. At 8.49pm the applicant was disturbed by a local resident passing by, who stopped and spoke to him.   He was also spotted by a passing Post Office employee. The police officers observed the incident.        At about 8.50pm the applicant ran further back into the cemetery constantly stopping to face the depot and gesticulating in a manner consistent with trying to attract the attention of C. in the Orion which was parked opposite.   Having disappeared between the bushes for about a minute, he re-appeared, now without his jacket, and ran further into the cemetery where he was confronted by armed officers.   C. was arrested in a motorcar near the mail van.   In the car there was a walkie-talkie, a balaclava and some gloves.        Behind a bush, where the applicant had been observed crouching at one stage, was found a light-coloured jacket with fibres on it matching those from the applicant's jumper. In the pocket of the jacket were a pair of handcuffs, a sock containing four shotgun cartridges, and a canister of CS gas. Partially buried near the jacket was a balaclava helmet. A short time later a police officer discovered a pair of gloves and a sawn-off shotgun buried nearby.   All the items were shown to the applicant whilst still at the scene.   He denied all knowledge of them.        S. was stopped after a high-speed car chase.   In his car there was another walkie-talkie, through which connection could be made with that found in C.'s car.   Yet another car was found abandoned nearby. It was the Crown's case that that car was driven by a fourth conspirator.   In it was found a device capable of monitoring a police radio.        It was the applicant's case that he had agreed with C. to bury some items which he understood had been used in connection with a theft of motor vehicles.   These items had come from a man called D.W., from whom C. was buying a car.   The items had been handed to the applicant by D.W. in two bundles, wrapped in a brown coat, on the evening of 26 August 1993.   The applicant said that C. had asked him to bury the bundles at a particular spot in the cemetery.   This he had proceeded to do on that evening.   After he had buried the items, he put the knife he used for digging the holes and the brown coat into a bag, which he then threw away.   He denied all knowledge of the proposed robbery, of the light-coloured jacket, handcuffs, CS canister, shotgun and cartridges.   He claimed that he had been set up by D.W. to make it appear that he was going to participate in an armed robbery.        In the course of proceedings the prosecution successfully applied ex parte to the trial judge for an order that they not be required to disclose certain material to the defence, save to the extent that the defence were told that the material related to sources of information. Having later heard submissions from the defence that if any of this information touched upon the applicant's defence that he had been set up by D.W., it ought to be disclosed, on 23 March 1994 the trial judge refused to order disclosure.   He considered inter alia:        "... I ... adopted the principle that if something did or      might help further the defence then I would order      disclosure.   I have not ordered disclosure.   I have not      found it necessary or right to adjourn proceedings, ex      parte, in order for them to be inter partes ..."        On 18 April 1994 the trial against the applicant, S. and C. started. On 19 April 1994 C. pleaded guilty and the jury were discharged.   On 20 April 1994 the trial of the applicant and S. started before a new jury.        On 25 April 1994 the Crown made a further ex parte application to the trial judge.   This application, and the inter partes application which immediately followed, related to a witness statement given to the prosecution by C. after his guilty plea.   The defence were aware that the ex parte application was to be made.   Prosecution counsel described, at the inter partes hearing, the category of information which was the subject of the ex parte application:        "... the application was two-fold. One part ... concerned      a renewal of the original ex parte application, namely      concerning the source of the information.   The second limb      upon which approval was sought is such that even to deal      with the area upon which it was argued that it ought not to      be disclosed would, in fact, reveal what the area was and      that particular concern was expressly covered in the case      of Davis, Johnson and Rowe which was [held] to be one of      the exceptions where one does not even state the category      in case it result in revealing that which ... ought to be      protected."        The judge ruled:        "... [prosecution counsel] has asked me to examine matters      ex parte and I am satisfied that that was a correct      application ... As I indicated, had I changed my view      during the hearing, I would have adjourned and heard the      matter inter partes.        It is plain to everyone, including each defendant, that the      statement of [C.] must, first of all, have dealt with      preparation of the conspiracy to which he has pleaded      guilty and the events of the day upon which he was      arrested.   The reason the prosecution say they should not      serve that part of [C.]'s statement is sources of      information in the headline and my decision has been that      the prosecution attitude is correct.        The second part of [C.]'s statement, as is now plain to the      defence, deals with preparation for defence and there are      two main matters, one I will call, 'Boot', 'Boot and Bug',      and the other I will call 'Bin-liner'.   With regard to that      the prosecution say that we should not serve that part of      the statement, 'Boot and Bug' and 'Bin-liner', but they do      disclose a summary of the information which has now been      given to the defence; paragraphs 1 to 6 are 'Boot and Bug',      paragraph 7 is 'Bin-liner'.        The prosecution have invited me to consider whether their      proposal, the action which they have now carried out, is      consistent with the Attorney General's Guidelines and in my      view it is.   [Defence counsel] accurately points out that      giving a precise rather than the whole or the edited part      of the statement, or part of the statement with further      edited things or omissions, does not in fact follow any one      or other of the various examples given in Guideline 13, but      Guideline 13 is only giving examples.   In my view the      prosecution have been fair and correct in giving the      information which they have which, of course, they may use      during the case.   When it comes to the defence, it is open      to them to use it and putting each defendant on guard that      this they know and this they may use.   It is further my      view that in no way is either defendant prejudiced by the      prosecution following this procedure which, as I have said,      in respect of each limb ... is the correct procedure."        On 16 May 1994 the Central Criminal Court convicted the applicant of conspiracy to rob, possession of a firearm and possession of a prohibited weapon.   On 20 May 1994 the applicant was sentenced to 11 years' imprisonment.        Following the conviction, the applicant's counsel drafted two grounds of appeal against the conviction and sentence in which the first one concerned the ruling by the trial judge and the second one related to the witness statement made by C. to the prosecution.   It was submitted in particular that:        "... In his sentencing remarks the judge specifically      referred to the existence of a 'participating informant'      who was instrumental in both the appellant and [C.] being      arrested; this was the first that the defence had heard of      the existence of such an informant.        In the submission of the appellant, the interests of      justice required that the undisclosed material which had      been specifically withheld from the defence, and apparently      relating to a participating informant, should have been      made available to the defence.   The defence was materially      disadvantaged in presenting their case to the jury by its      inability to establish even the existence, let alone the      role, of this informant.   Without this evidence the defence      case of 'set-up' rested upon a mere assertion which may      well have been regarded by the jury as quite incredible and      absurd. ...        ... In the submissions of the defence, the actual text of      the witness [C.'s] statement, or such part or parts of it      as were not covered by recognised public interest immunity      or protection, ought to have been disclosed to them.   If      this was not practicable then a further statement should      have been obtained which omitted the objectionable      material.   The course in fact adopted of giving a 'Summary'      was a naked device to prevent the proper disclosure of      admittedly relevant material, and was specifically designed      to thereby advantage the Crown and to disadvantage the      defence."        On 6 June 1995 the Court of Appeal upheld the applicant's conviction.   The Court considered:        "... During the course of the proceedings the prosecution      successfully applied ex parte to the judge for an order      that they not be required to disclose certain material to      the defence, save to the extent that the defence were told      that the material related to sources of information.      Having later heard submissions from the defence that if any      of the material in question touched upon the applicant's      defence that he had been set up to by [D.W.], it ought to      be disclosed, on 23 March 1994 the judge refused to order      any disclosure of the materials.        These rulings by the judge are the subject of the first      ground of appeal ... It is said that the interests of      justice required that the undisclosed material should have      been disclosed to the defence.   We can see no reason to      disagree with the judge's ruling.   He made it clear that if      any of the material 'did or might help the defence' he      would order disclosure.   He obviously considered the matter      carefully before giving his ruling.   There is no substance      in this ground of appeal.        The second ground of appeal relates to a witness statement      made by [C.] as a witness for the Crown.   On 25 April 1994      the Crown applied ex parte to the judge to approve the non-      disclosure of [C.]'s witness statement and to approve the      alternative course proposed by the Crown, which was to      provide a summary of the witness statement.   The judge      granted the application and approved the proposed course.      Again, we see no reason to disagree with the judge's      decision in this matter. ...        Additionally, on 13 May 1995, the applicant wrote to the      Registrar requesting a hearing so as to obtain 'numerous      interviews and statements' by ... [C.]. This is the      application for disclosure which has been referred to the      full court by the Registrar and to which we were referred      earlier. Many of these statements concern apparent      confessions to crime made by fellow prisoners. Others      relate to information about crimes [C.] claims to have      witnessed or heard about whilst he was at liberty.   We have      considered the application and the documents.   We are not      persuaded that there is any proper basis for ordering such      disclosure. Accordingly, this renewed application for leave      to appeal against conviction is refused."   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 of Appeal 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 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 the [defense 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 considered these provisions in R. v. Preston. It was 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.   The Court decided thata 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 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 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 their 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 their 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 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 applicant submits that his trial at the Central Criminal Court and the Court of Appeal violated Article 6 of the Convention in the following respects:   1.    The police use of informant's statement was contrary to Article 6 para. 2.   2.    The non-disclosure to the defence of material relating to a participating informant used by the police breached the applicant's right to a fair trial in general, and, in particular, his right to adequate facilities for the preparation of his defence guaranteed by Article 6 para. 3(b) and his right to examine witnesses on his behalf under the same conditions as witnesses against him under Article 6 para. 3(d) of the Convention.   3.    The judge's approval in the ex parte procedure to withhold the co-defendant's witness statement and to give to the defence a 'Summary' instead breached again the applicant's right to a fair trial.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 30 November 1995 and registered on 10 January 1996.        On 27 November 1996 the Commission decided to communicate the application.        The Government's written observations were submitted on 14 February 1997.   The applicant replied on 5 April 1997.        On 15 April 1997 the Commission granted the applicant legal aid.     THE LAW        The applicant complains about an unfair trial and inability to prepare his defence and to effectively cross-examine prosecution witnesses.   The ex parte procedures, in which courts approved non- disclosures of relevant evidence, namely a police informant and witness statement, were held, on the grounds of public interest, in the absence of the applicant and his counsel and without affording them the opportunity to make informed representation.   Thus, the applicant was placed at a substantial disadvantage in the conduct of the proceedings and thereby the principle of equality of arms was affected.   He invokes Article 6 (Art. 6) of the Convention, the relevant parts of which 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. ...        2.     Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to 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