CEDH · CASELAW;REPORTS;ENG — 20 octobre 1998

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GEUS, M.P. PELLONPÄÄ, E. BUSUTTIL, A. WEITZEL, J.-C. SOYER, H. DANELIUS, Mrs J. LIDDY, MM B. MARXER, I. CABRAL BARRETO, G. RESS, A. PERENIČ and Mrs M. HION           23   APPENDIX :   DECISION OF THE COMMISSION AS TO THE                         ADMISSIBILITY OF THE APPLICATION 25   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 Whitemoor.   He was represented before the Commission by Mr R. Tilbrook, a solicitor practising in Essex, and 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 M. Eaton, as Agent, from the Foreign and Commonwealth Office, London.   4.   The case concerns the non-disclosure of relevant evidence, in an ex parte procedure, on the grounds of public interest immunity and the use of an informer's statement.   The applicant invokes Article 6 of the Convention.   B.   The proceedings   5.   The application was introduced on 30 November 1995 and registered on 10 January 1996.   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 14 February 1997.   The applicant replied on 5 April 1997.   On 15 April 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 further observations on the merits.   The Government submitted observations on 22 December 1997.   The applicant submitted observations on 27 November 1997 and complemented them on 24 August 1998.   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. PERENIČ       C. BÎRSAN       P. LORENZEN       E. BIELIŪNAS           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 conspiracy to rob, possession of a firearm and possession of a prohibited weapon.   The background to his conviction is 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 Snadgate 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.   18.   On 26 August 1993, the date of the robbery, the police were keeping the area and conspirators under observation.   19.   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.   20.   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.   21.   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.   22.   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.     23.   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.   24.   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.   25.   On 23 March 1994 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. The contents of the material in question were orally conveyed to the trial judge by prosecuting counsel.   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 had not ordered disclosure.   I have not found it necessary or right to adjourn proceedings, ex parte, in order for them to be inter partes ..."   26.   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.   27.   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 the subject of the ex parte application:     "... the application was two-fold. One part of the ...   application ... 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."   28.   The judge read the entirety of the unedited witness statement and ruled:     "What has happened here is the defendant, [C.], pleaded guilty. The matter was adjourned so that the prosecution could take a statement from him.   It is now known that he has made a statement, but he is not to be called as a witness.   ... [T]he prosecution, has asked me to examine matters ex parte and I am satisfied that that was a correct application that it was right that I should hear matters ex parte.   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 a 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."     29.   On 13 May 1994 the trial judge in his summing-up to the jury said:     "That there was information from at least one person in this case is accepted and must be the situation, must it not, otherwise why would the police be going to all this trouble watching? Every rule has its exceptions and the law provides   if a defendant in his trial is hindered in putting forward his defence by not knowing, first of all, whether or not there was an informer or, if he knows that, not knowing the identity of an informer, an application can be made to the judge and the judge has to be told the identity of the informer, or informers and he may order the prosecution to   reveal that if a defendant is prejudiced in his defence.   ...   Well, it will be plain to you that in a case like this where there has been at least one informer, the role of the informer has got to be examined with care and circumspection by you the jury in this trial.   If the rules are observed not only by the police but also by the informer, or informers the informer should not be told not [sic] to initiate crime or to promote it but, if crime is going on, he may be invited to string along with the plan and have a foot in both camps.     Of course an informer may overstep the mark, for example, and what is suggested here is that [D.W.] organised really a façade of conspiracy to rob possibly in order to take revenge on [C.] who was messing about with his girl, or for whatever reason (perhaps a reward it is suggested) and you must consider it:   has [D.W.] so organised matters that [C.] would be arrested in incriminating circumstances and has [the applicant] been drawn into that web, [S.] possibly also being drawn into that web?"   30.   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.   31.   Following the conviction, the applicant's counsel drafted two grounds of appeal against the conviction and sentence in which the first one concerned the rulings 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 its 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."   32.   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   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. Keane [1994] 1 WLR 747; R. v. Winston Brown ((1995) 1 Cr.App.R. 191); 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:     "... [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."   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 [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."   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 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 held 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.   46.   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.   47.   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.   48.   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 commons 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 discloseable 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 ..."   49.   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   50.   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 affected his right to a fair trial and his defence rights, and that the use of an informer's statement was contrary to the principle of the presumtion of innocence.   B.   Points at issue   51.   Accordingly, the points at issue are:   -   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;   -   whether there has been a violation of Article 6 para. 2 of the Convention.   C.   As regards Article 6 para. 1 of the Convention in conjunction with Article 6 paras. 3(b) and 3(d) of the Convention   52.   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; ..."   53.   The applicant first notes that the trial judge did not fairly direct the jury as to the role of the participation of the agent provocateur D.W.   All participation was hidden from them by awarding him the title of "informant" and thereby allowing the police and prosecution   to hide all his actions beneath the all encompassing shroud of public interest immunity.   He says that the credibility of the police officers was never called into question, the extent of the falsified, planted and fabricated evidence did not become apparent or provable until after the trial.   He claims that if the jury had been allowed to know the full participation of D.W., acting as a paid agent provocateur for the police, his incriminating position would not have appeared incredible and the conclusion reached would have been almost certainly different.       54.   The applicant also submits that he stated in evidence that he had been set up for reward or revenge on his co-accused C. who pleaded guilty at the trial.   He claims that his co-accused C. made 88 statements and that on one occasion, the first, his evidence, has been accepted as true, and that was this case (plea of guilty).   On the two succeeding occasions he was called to give evidence he was discredited and never called as a prosecution witness.   As it was his written evidence, or that of it that the defence were allowed to see in the "summary", was proved to be concocted and completely factually inaccurate.   The applicant claims that he was however cross-examined by the prosecution on matters contained in this statement he had never had access to and absolutely no knowledge of whatsoever.   55.   The applicant considers that the non-disclosure of the full statement of C. and the fact that the jury did not know the whole role of the police informant D.W. and his participation in the applicant's case rendered the trial unfair.   56.   In his further observations, the applicant, with reference to the case of R. v. Keane, submits that the material which had been withheld from the defence was relevant material.   Some of this material concerned sources of information.   It was his case that he had been set up by D.W.   Any of the sources of information related to D.W. was therefore obviously of relevance and assistance to the applicant.   The trial judge made it plain, in his summing-up, that there had been at least one informer.   He introduced D.W. in a manner indicating not only that he may have been an informer but a participatory informer.   The implication that one such source might have been D.W. and that his role did not stop at giving information, but amounted to active participation in a conspiracy, was very relevant to the applicant as it supported his case that D.W. had been involved in the events which the prosecution alleged evidenced the existence of a conspiracy and was, therefore, in a position to set him up to make it look as though he was involved in a conspiracy of which he had no knowledge.   57.   As to the second ex parte application relating to material connected with the preparation of the conspiracy to rob the post office and with the events of the day which ended with [C.]'s and the applicant's arrest, the applicant submits that regarding the trial judge's ruling of 25 April 1994, it is clear that the material was relevant to the defence.   58.   The applicant, with reference to the case of R. v. Trevor Douglas K., submits that there is a breach of Article 6 of the Convention if the prosecution rather than the court determines that documents should be withheld on public interest immunity.   He stresses that where, as in his case, the court is required to carry out the function of determining whether disclosure should be withheld in the public interest on the basis of a prosecution summary of the material which it is sought to withhold, there is no guarantee that the court will be presented with a fair summary as opposed to one which is so weighted as to predetermine the outcome.   In other words, by presenting a summary rather than producing the actual material, the prosecution leaves the judge no real discretion with the result that it is the prosecution and not the judge which actually determines that the material will be withheld.     59.   The applicant further submits that the defects at the trial were not remedied by the Court of Appeal.   He says that the material withheld as a result of the first ex parte hearing was neither disclosed to him nor seen by the Court of Appeal.   From the transcript of the appeal judgment it appears that the court did not view the relevant evidence itself, nor was it aware that the trial judge himself did not view it.   In connection with the second ex parte application relating to the statement of the co-defendant C., the Court of Appeal, unlike the trial judge (who, according to the Government, read the entirety of the unedited witness statement personally - para. 70 below), did not read the material.   The Court of Appeal did not, therefore, have an opportunity to remedy any error the trial judge may have committed in deciding that the public interest favoured non-disclosure of parts of C.'s statement.   60.   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 disclose 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.   61.   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