CEDH · CASELAW;REPORTS;ENG — 20 octobre 1998

.s3ABFC313 { font-size:10pt } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt } .sBB9EE52A { font-family:Arial } .s23A41E03 { width:36pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s6A5D7EE7 { width:29.33pt; display:inline-block } .sFD1C8E96 { width:16.01pt; display:inline-block } .s70DF58E9 { width:3.3pt; display:inline-block } .sA047E36C { width:24.66pt; display:inline-block } .s893D1BA2 { width:9.98pt; display:inline-block } .s4D28B2E2 { width:24pt; display:inline-block } .s2D8A4020 { width:32.63pt; display:inline-block } .s6863D229 { width:26pt; display:inline-block } .s5BA4079A { width:22.66pt; display:inline-block } .s66441246 { width:19.97pt; display:inline-block } .s9001E1B2 { width:14.65pt; display:inline-block } .s49C574CC { width:7.98pt; display:inline-block } .s498DF152 { width:9.33pt; display:inline-block } .sC0E0C70 { width:35.96pt; display:inline-block } .s21B97EC1 { width:25.99pt; display:inline-block } .sB11B45BD { width:19.32pt; display:inline-block } .sC82ACC0A { width:20.67pt; display:inline-block } .s2A75809F { width:2.67pt; display:inline-block } .s9F8BC31C { width:30.3pt; display:inline-block } .sEB86F1CA { width:25.34pt; display:inline-block } .sBF11BE31 { width:22.68pt; display:inline-block } .s8AFB426F { width:32.67pt; display:inline-block } .sE4B66E67 { width:21.73pt; display:inline-block } .sD7042CE7 { width:20.01pt; display:inline-block } .s10E66146 { width:19.34pt; display:inline-block } .s9782B425 { width:22.01pt; display:inline-block } .s3D66DD5D { width:15.98pt; display:inline-block } .s64B1589E { width:19.33pt; display:inline-block } .sE9B312F6 { width:5.29pt; display:inline-block } .sEFB0CE36 { width:9.3pt; display:inline-block } .s7E5F6101 { width:10.62pt; display:inline-block }                     EUROPEAN COMMISSION OF HUMAN RIGHTS                   Application No. 27052/95       Eric Jasper       against       the United Kingdom             REPORT OF THE COMMISSION     (adopted on 20 October 1998)       TABLE OF CONTENTS                         Page   I.   INTRODUCTION     (paras. 1-16)                   1     A.   The application     (paras. 2-4)                 1     B.   The proceedings     (paras. 5-11)                 1     C.   The present Report     (paras. 12-16)               2   II.   ESTABLISHMENT OF THE FACTS   (paras. 17-51)                 3     A.   The particular circumstances of the case     (paras. 17-32)               3     B.   Relevant domestic law     (paras. 33-51)               8   III.   OPINION OF THE COMMISSION   (paras. 52-83)                 14     A.   Complaints declared admissible     (para. 52)                 14     B.   Point at issue     (para. 53)                 14     C.   As regards Article 6 of the Convention     (paras. 54-82)               14       CONCLUSION     (para. 83)                 21   DISSENTING OPINION OF MM J.-C. GEUS, M.P PELLONPÄÄ, A. WEITZEL, H. DANELIUS, C.L. ROZAKIS, Mrs J. LIDDY, MM B. MARXER, I. CABRAL BARRETO, G. RESS, A. PERENIC and Mrs M. HION                   22   APPENDIX:   DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION         24     I.   INTRODUCTION     1.   The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.   The application   2.   The applicant is a British citizen, born in 1933.   He is currently detained at HM Prison Maidstone.   He was represented before the Commission by Mr J. Wadham, a lawyer practising in London.   3.   The application is directed against the United Kingdom.   The respondent Government were represented by Mr Martin Eaton, as Agent, from the Foreign and Commonwealth Office, London.   4.   The case concerns the non-disclosure of relevant evidence and the ex parte procedure for determining public interest immunity.   The case raises issues under Article 6 of the Convention.   B.   The proceedings   5.   The application was introduced on 26 September 1994 and registered on 20 April 1995.   6.   On 26 June 1996 the Commission [First Chamber] decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.   The Government's observations were submitted on 8 November 1996, after an extension of the time-limit fixed for this 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 for the representation of his case.   8.   On 9 September 1997 the case was transferred from the First Chamber to the Plenary by decision of the latter.   9.   On 15 September 1997 the Commission declared the application admissible.   10.   The text of the Commission's decision on admissibility was sent to the parties on 25 September 1997 and they were invited to submit such further information or observations on the merits as they wished.   Neither party availed itself of this possibility.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.   The present Report   12.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:       MM   S. TRECHSEL, President       J.-C. GEUS           M.P. PELLONPÄÄ       E. BUSUTTIL       G. JÖRUNDSSON       A.S. GÖZÜBÜYÜK       A. WEITZEL       J.-C. SOYER       H. DANELIUS     Mrs   G.H. THUNE           MM   F. MARTINEZ       C.L. ROZAKIS     Mrs   J. LIDDY     MM   L. LOUCAIDES       B. MARXER       M.A. NOWICKI       I. CABRAL BARRETO       N. BRATZA       I. BÉKÉS       D. ŠVÁBY       G. RESS       A. PERENI       C. BÎRSAN       P. LORENZEN       E. BIELINAS           E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     MM   R. NICOLINI       A. ARABADJIEV   13.   The text of this Report was adopted on 20 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 of the Convention, is:     (i)   to establish the facts, and     (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   15.   The Commission's decision on the admissibility of the application is annexed hereto as an Appendix.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.   The particular circumstances of the case   17.   At the time of the introduction of the application, the applicant was serving his prison sentence for being knowingly concerned in the fraudulent evasion of the prohibitions on importation of cannabis.   The background to his conviction was as follows.   On 1 July 1993 a Dutch lorry imported a consignment of frozen meat from Zeebrugge to Dover.   The consignment was delivered by the lorry driver to West Kent Cold Storage at Dunton Green.   On that morning, the applicant collected one of his vehicles, a lorry with a trailer, at a lorry park at Beckton which was under observation of Customs and Excise officers.   He then drove to West Kent Cold Storage where the consignment of frozen meat was loaded on to the lorry.   The Customs and Excise officers followed the applicant.   After that he continued 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.   18.   A search of the applicant's home revealed substantial monetary outlay. A substantial sum of money in cash 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.   19.   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.   The applicant states that Customs and Excise officers denied the involvement of an informant and gave evidence that when they followed him they were unaware of his destination.   20.   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.   21.   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 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."   22.   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.   23.   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."   24.   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."   25.   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.   26.   The applicant appealed to the Court of Appeal.   His arguments were summarised 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."   27.   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 1 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."   28.   The Court of Appeal 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."   29.   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."   30.   The Court of Appeal declined to order the disclosure.   31.   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], ..., 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.   ...   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."     32.   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. [He] neither called nor gave evidence.   That, of course, was his right, as the jury were ... 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   33.   At common law, the prosecution had a duty to disclose any earlier written or oral statement of a prosecution witness which was inconsistent with evidence given by that witness at the trial.   The duty also extended to statements of any witnesses potentially favourable to the defence.   34.   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."   35.   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".   36.   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(v)) was "sensitive" material which, because of its sensitivity, it would not be in the public interest to disclose. In paragraph 6(v), 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."   37.   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.     38.   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).   39.   In R. v. Ward, decided in June 1992, the Court of Appeal dealt with 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."   40.   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."   41.   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.     42.   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.   The Court of Appeal 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.   43.   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 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."   44.   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.   45.   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.   46.   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. Thus, 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 and 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 duties to see justice done without knowing all the material that there is to know.   47.   In R. v. Keane, decided in March 1994 and citing R. v. Melvin and Dingle (20 December 1993, unreported), the Court of Appeal stated that only those documents and information which were both "material" in the estimation of the prosecution and sought to be withheld should be put before the court for its decision.   "Material" matter was that which could be seen on a sensible appraisal by the prosecution to be (i) relevant or possibly relevant to an issue in the case; (ii) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (iii) to hold out a real (as opposed to fanciful) prospect of providing a lead of evidence which goes to (i) and (ii).   Exceptionally, in case of doubt about the materiality of the documents or evidence, the court may be asked to rule on the issue.   48.   The Court of Appeal gave further guidance on the nature of evidence which was subject to a prima facie duty of disclosure, and the procedure for claiming public interest immunity.   In determining whether a claim to public interest immunity should be overridden, the Court of Appeal set a high standard of probative relevance.   The evidence had to be capable of proving that the accused was innocent.   The Court of Appeal ruled that it was for the prosecution to determine whether the evidence was material to the defence case prior to the ex parte hearing.   The prosecution is put under a duty only to place before the judge such evidence as it deems to be relevant, but nevertheless wishes to withhold.   49.   In R. v. Rasheed ((1994) Times 20 May 1994), the Court of Appeal   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.   50.   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.   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 ..."   51.   In October 1994 in the case of R. v. Turner, the Court of Appeal returned to the balancing exercise stating inter alia:     "Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants' names and roles, alleging that those details are essential to the defence.   Defences that the accused has been set up, and allegations of duress, which used at once time to be rare, have multiplied.   We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care.   They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified.   If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure.   Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will.   Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime.   Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary ...     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."   III.   OPINION OF THE COMMISSION   A.   Complaint declared admissible   52.   The Commission has declared admissible the applicant's complaint that the non-disclosure to the defence of certain evidence on the grounds of public interest immunity made in the ex parte procedure and of telephone interceptions affected his right to a fair trial and his defence rights.   B.   Point at issue   53.   The point at issue is accordingly whether there has been a violation of Article 6 para. 1 of the Convention in conjunction with Article 6 paras. 3(b) and 3(d) of the Convention.   C.   As regards Article 6 of the Convention   54.   Article 6 of the Convention, insofar as relevant, reads 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; ..."   55.   The applicant submits that the case raises an important issue of principle concerning the limitation (if any) on the duty of disclosure implicit in Article 6, and recognised, in particular, by the European Court in the Edwards v. the United Kingdom judgment (judgment of 16 December 1992, Series A no. 247-B) and of the fairness of the ex parte procedure for determining claims to public interest immunity.   He recalls that in the Edwards case all the evidence which had been withheld at trial had been fully disclosed to the applicants by the time of the Court of Appeal hearing.   In that case, the applicants therefore had the opportunity to make informed representations to the Court of Appeal upon the significance of the evidence. The Court of Appeal had therefore the opportunity of assessing its impact on the convictions in the light of those submissions.   56.   The applicant emphasises that in his case, however, the undisclosed material remained undisclosed throughout, and the Court of Appeal followed an unfair and secretive procedure from which the defence were excluded.   Far from being remedied before the Court of Appeal, the complaints raised in his original application were simply repeated.       57.   The Government first submit that neither the general principle of fairness in criminal proceedings under Article 6 para. 1 of the Convention nor the specific right to "adequate facilities" under Article 6 para. 3(b) of the Convention requires an absolute right for the defence to disclosure of all relevant material.   58.   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.   59.   The Government note that if the disclosure of relevant material is a requirement implicit in the reference to "adequate facilities" in Article 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.   60.   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.   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 such 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.   61.   The Government further submit that the courts have been astute to ensure that any non-disclosure does not compromise th