CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 16 février 2000

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THE UNITED KINGDOM   (Application no.   27052/95)                 JUDGMENT   STRASBOURG     16 February 2000     [This judgment is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court.] In the case of Jasper v. the United Kingdom , The European Court of Human Rights, sitting, in accordance with Article   27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol   No.   11 [1] , and the relevant provisions of the Rules of Court [2] , as a Grand Chamber composed of the following judges:   Mr   L. Wildhaber , President ,   Mrs   E. Palm ,   Mr   L. Ferrari Bravo ,   Mr   L. Caflisch ,   Mr   J.-P. Costa ,   Mr   W. Fuhrmann ,   Mr   K. Jungwiert ,   Mr   M. Fischbach ,   Mr   B. Zupančič ,   Mrs   N. Vajić ,   Mr   J. Hedigan ,   Mrs   W. Thomassen ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   T. Panţîru ,   Mr   E. Levits ,   Mr   K. Traja ,   Sir   John Laws , ad hoc judge , and also of Mrs   M . de Boer-Buquicchio, Deputy Registrar , Having deliberated in private on 20 October 1999 and 26 January 2000, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 12 March 1999. It originated in an application (27052/95) against the United Kingdom of Great Britain and Northern Ireland (“the Government”) lodged with the Commission under former Article   25 of the Convention by Mr Eric Jasper, a British national, on 26 September 1994. The applicant is represented by Ms Mary Cunneen of Liberty. The Government of the United Kingdom are represented by their Agent, Mr   Martin Eaton, Deputy Legal Adviser at the Foreign and Commonwealth Office. The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 of the Convention. 2.     In accordance with Article 5 § 4 of Protocol No. 11 to the Convention and Rules 100 § 1 and 24 § 6 of the Rules of Court, a panel of the Grand Chamber of the Court decided on 31 March 1991 that the case should be examined by the Grand Chamber. On 1 April 1999 Mr L. Wildhaber, the President of the Court, acting under Rule 24 §§ 3-5 determined the composition of the Grand Chamber to include, ex officio, himself, and Mrs E. Palm, the Vice-President of the Court. The other members appointed to complete the Grand Chamber were Mr L. Ferrari Bravo, Mr L. Caflisch, Mr J.-P. Costa, Mr W. Fuhrmann, Mr   K. Jungwiert, Mr M. Fischbach, Mr B. Zupančič, Mrs N. Vajić, Mr   J.   Hedigan, Mrs W. Thomassen, Mrs M. Tsatsa-Nikolovska, Mr   T.   Panţîru, Mr E. Levits and Mr K. Traja (Rule   24   §   3 and Rule   100   §   4). Sir Nicolas Bratza, the judge elected in respect of the United Kingdom and who should have participated pursuant to Article 27 § 2 of the Convention, could not take part in the consideration of the case since he had participated in the proceedings before the Commission (Rule 28 § 3). The Government appointed Sir John Laws to sit as an ad hoc judge (Article   27   §   2 of the Convention and Rule   29 §   1). 3.     In accordance with the President’s decision, a hearing of the case, jointly with application nos. 28901/95, Rowe and Davis v. the United Kingdom, and 29777/96, Fitt v. the United Kingdom, took place in public in the Human Rights Building, Strasbourg, on 20 October 1999. There appeared before the Court: (a)   for the Government Mr   M. Eaton , Foreign and Commonwealth Office,   Agent , Mr   R. Cranston , Solicitor General, Mr   J. Eadie, Barrister-at-law   Counsel , Mr   R. Heaton , Home Office, Ms   G. Harrison , Home Office Mr   C. Burke , Customs and Excise Ms   F. Russell , Crown Prosecution Service Mr   A. Chapman , Law Officer’s Department,   Advisers ; (b)   for the applicant Mr   B. Emmerson, Barrister-at-law,   Counsel , Ms   M. Cunneen , Liberty,     Ms   P. Kaufman , Barrister-at-law, Mr   S. Young , Barrister-at-law, Mr   A. Master , Solicitor,   Advisers .   The Court heard addresses by Mr Cranston and Mr Emmerson and also their replies to questions put by several of its members. AS TO THE FACTS I.   THE CIRCUMSTANCES OF THE CASE 1.   The alleged offence 4.     At the time of the introduction of the application, the applicant was serving a prison sentence. The background to his conviction is as follows. On 30 June 1993 approximately three tonnes of cannabis resin was imported into the United Kingdom concealed in a consignment of frozen meat on a lorry travelling from Zeebrugge to Dover. There had been two previous importations of meat from the same consignor in May and early June 1993, both of which had been collected by a firm of hauliers called Davidsons. On this occasion, the meat was delivered to West Kent Cold Storage at Dunton Green, near Sevenoaks in Kent. 5.     On 1 July 1993 Customs and Excise officers were keeping the applicant under observation. At approximately 6 a.m. he was followed from his home in Walthamstow, East London, to a lorry park at Beckton, where he collected an articulated lorry and refrigerated trailor which he had bought the previous month. He drove the lorry to West Kent Cold Storage, where he loaded the consignment of meat onto the lorry, and then drove on to a lock-up garage in Leytonstone, East London. He backed the trailor into the garage and drove away in his car. He made two brief visits to the garage during the morning, and then returned at approximately 1 p.m. 6.     The applicant remained inside the garage for about five hours and was arrested just before 6 p.m. as he was leaving. The garage was searched. Six of the ten pallets of meat were still on the lorry in a frozen state, although the refrigerator motor was not operative. Four of the pallets, containing a large quantity of cannabis resin, had been opened and left to defrost in the unrefrigerated garage. The applicant told Customs officers that he worked as a haulage contractor and had not known that the meat contained cannabis. 7.     In addition, Customs officers found that the applicant’s daughter had rented a safety deposit box on 19 March 1993, of which the applicant, using the name of “Eric Siggins” was an authorised signatory. Following the applicant’s arrest on 5 August the box was searched and found to contain GBP 24,100 in cash and two passports bearing the applicant’s photograph, the first in his true name and the second in the name of Eric Siggins. Also found in the box were two documents dated 30 June, the date of the applicant’s arrest. 8.     The applicant was charged with an offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of cannabis, and remanded for trial in the Southwark Crown Court. 2.   The disclosure procedure at first instance 9.     On 14 January 1994, shortly before the commencement of the trial, 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. They were given the opportunity to outline the defence case to the trial judge, namely that the applicant had collected the consignment of meat pursuant to instructions received by telephone the previous night, and had not been aware that the meat contained cannabis, and to request the judge to order disclosure of any evidence relating to these alleged facts. The trial judge examined the material in question and ruled that it should not be disclosed. The defence were not informed of the reasons for the judge’s decision. 10.     On 18 January 1994 the defence served the following written request on the prosecution: “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.” 11.     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, but declined to answer the remainder of the questions. The defence therefore applied to the trial judge for an order that the prosecution should provide the information requested. The application was heard on 24 January 1994, when prosecution counsel submitted: “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 [Interception of Communications] Act [see paragraphs 31-34 below]. 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 ... .” 12.     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.” 3.   The trial 13.     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 was attempting to establish a haulage business (“Ejay Couriers”) and had bought vehicles and hired the lock-up garage for that purpose. It was submitted on his behalf that in collecting the meat he had been acting pursuant to instructions from another firm of hauliers, as was shown by a note, found in the applicant’s possession at the time of his arrest, on Ejay Couriers headed paper of a telephone call made by Davidsons (see paragraph 1 above) at 7.30 p.m. on 30 June 1993. 14.     On 31 January 1994 the applicant was convicted of the offence charged and on 21 March 1994 he was sentenced to ten years’ imprisonment. 4.   The appeal 15.     The applicant appealed to the Court of Appeal, on the following grounds: “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 [see paragraph 34 below].       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.” 16.     On 13 February 1995, prior to the hearing of the appeal, defence counsel applied to the Court of Appeal for an order that the defence should be given a transcript of the ex parte hearing of 14   January 1994, to enable them to argue the non-disclosure as a ground of appeal. Defence counsel outlined the applicant’s case, namely that the instructions for the collection of the load had been received by telephone very shortly before 1 July 1993, and submitted that any information that might be in the Crown’s possession and which could, directly or indirectly, support the defence case, should have been disclosed. 17.     The Court of Appeal, which had before it the transcript of the ex parte hearing of 14   January 1994 and the material which had been its subject-matter, declined to order the disclosure of either to the defence on the following grounds: “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.” 18.     On 28 March 1995 the Court of Appeal dismissed the applicant’s appeal. The first ground of appeal, namely the non-disclosure of relevant evidence, was rejected 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. ...       There is no suggestion, nor any ground for a suggestion, that the Crown were in any way in dereliction of their duty of good faith in making disclosure of anything that ought properly to be disclosed.” The court continued: “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.” II.   RELEVANT DOMESTIC LAW AND PRACTICE A.   The prosecution’s duty of disclosure 19.     At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence. B.   Limitations to the duty of disclosure on grounds of public interest 1.   The Attorney General’s Guidelines (1981) 20.     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”. 21.     According to the Guidelines, 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, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” 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, although any doubt should be resolved in favour of disclosure. If either before or during the trial it became apparent that a duty to disclose had arisen, but that disclosure would not be in the public interest because of the sensitivity of the material, the prosecution would have to be abandoned. 2.   R. v Ward (1992) 22.     Since 1992 the Guidelines have been superseded by the common law, notably by a number of decisions of the Court of Appeal. In R. v. Ward ([1993] vol. 1 Weekly Law Reports p. 619) the Court of Appeal dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity. It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case, because: “... [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.” The Court of Appeal described the balancing exercise to be performed by the judge as follows: “... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed”. 3.   R. v. Trevor Douglas K . (1993) 23.     In R. v. Trevor Douglas K (vol. 97 Criminal Appeal Reports p.   342), the Court of Appeal emphasised 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.” This judgment also clarified 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 . 4.   R. v. Davis, Johnson and Rowe (1993) 24.     In R. v. Davis, Johnson and Rowe ([1993] vol. 1 Weekly Law Reports p. 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence then had 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 was 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 was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence. 25.     The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that 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”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the 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 who heard any disclosure application also to conduct the trial. 5.   R. v. Keane (1994) 26.     In R. v. Keane ([1994] vol. 1 Weekly Law Reports p. 747) the Court of Appeal emphasised that, since the ex parte procedure outlined in R. v. Davis, Johnson and Rowe was “contrary to the general principle of open justice in criminal trials”, it should be used only in exceptional cases. It would be an abdication of the prosecution’s duty if, out of an abundance of caution, it were simply “to dump all its unused material in the court’s lap and leave it to the judge to sort through it regardless of its materiality to the issues present or potential”. Thus, the prosecution should put before the court only those documents which it regarded as material but wished to withhold. “Material” evidence was that which could, on a sensible appraisal by the prosecution, be seen to (i) be relevant or possibly relevant to an issue in the case; (ii) raise or possibly raise a new issue the existence of which was not apparent from the evidence the prosecution proposed to use; or to (iii) hold out a real (as opposed to fanciful) prospect of providing a lead of evidence going to (i) or (ii). Exceptionally, in case of doubt about the materiality of the documents or evidence, the court might be asked to rule on the issue. In order to assist the prosecution in deciding whether evidence in its possession was “material”, and the judge in performing the balancing exercise, it was open to the defence to indicate any defence or issue which they proposed to raise. 6.   R. v. Rasheed (1994) 27.     In R. v. Rasheed (The 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 was challenged had applied for or received a reward for giving information was a material irregularity which justifies overturning a conviction. 7.   R. v. Winston Brown (1994) 28.     In R. v. Winston Brown ([1994] Criminal Appeal Reports p. 191), the Court of Appeal reviewed the operation of the Guidelines. It stated: “The Attorney General’s objective was no doubt to improve the existing practice of disclosure by the Crown. That was a laudable objective. But the Attorney General was not trying to make law and it was certainly beyond his power to do so ... . The Guidelines are merely a set of instructions to Crown Prosecution Service lawyers and prosecuting counsel ... . Judged simply as a set of instructions to prosecutors, the Guidelines would be unobjectionable if they exactly matched the contours of the common law duty of non-disclosure ... . But if the Guidelines, judged by the standards of today, reduce the 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 ... .” 8.   R. v. Turner (1994) 29.     In the case of R. v. Turner ([1995] vol. 1 Weekly Law Reports p. 264), 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 one 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.” 9.   The Criminal Procedure and Investigations Act 1996 30.     Subsequent to the applicant’s trial, a new statutory scheme covering disclosure by the prosecution has come into force in England and Wales. Under the 1996 Act, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor’s view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused’s defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court. C.   The Interception of Communications Act 1985 31.     The Interception of Communications Act 1985 (“the 1985 Act”) came into force on 10 April 1986 following the Court’s judgment in Malone v. the United Kingdom (2 August 1984, Series A no. 82). Its objective, as outlined in the Home Office White Paper which preceded it, was to provide a clear statutory framework within which the interception of communications on public systems would be authorised and controlled in a manner commanding public confidence (Interception of Communications in the United Kingdom (February 1985) Her Majesty’s Stationary Office, Cmnd. 9438). 32.     By section 1 (1) of the 1985 Act, anyone who intentionally intercepts a communication in the course of its transmission by means of a public communications system is guilty of a criminal offence. Section 1 (2) and (3) provide four circumstances in which a person who intercepts communications in this way will not be guilty of the offence, for example, interception of a communication pursuant to a warrant lawfully issued by the Secretary of State under section 2 of the Act, where the Minister considers the interception necessary in the interests of national security, for the purpose of preventing or detecting serious crime, or in order to safeguard the economic well-being of the United Kingdom. The operation of the Act is overseen by a Tribunal and a Commissioner: see further the Halford v. the United Kingdom judgment of 25 June 1997 ( Reports   1997 ‑ III, §§ 21-35). 33.     Section 6 of the 1985 Act contains a series of provisions designed to secure that the retention and circulation of any intercepted material is “limited to the minimum ... necessary” to achieve the section 2 purpose for which it was obtained, including a provision requiring the destruction of any such material as soon as its retention “is no longer necessary” for that purpose. Section 9 provides that no evidence shall be adduced by any party, in any proceedings before a court or tribunal, which tends to suggest either that an offence under section 1 of the 1985 Act has been committed by a public servant or that a warrant has been issued to such a person under section 2 of the 1985 Act. 34.     In R. v. Preston ([1994] vol. 2 Appeal Cases p. 130), the House of Lords decided that the fact that material intercepted pursuant to section 2 of the 1985 Act had been destroyed did not amount to a material irregularity in criminal proceedings. The basis for the House of Lords’ decision was that the purpose for which such an interception might be permitted was narrowly defined in section 2 of the 1985 Act; in particular, the purpose of “preventing and detecting serious crime” did not extend to amassing evidence with a view to prosecuting offenders. One of the consequences of this construction was that, in a case of interception authorised for “preventing and detecting serious crime”, section 6 of the Act would normally require the destruction of intercepted material at a stage well before the prosecution’s duty to disclose relevant material could arise in criminal proceedings. Accordingly, if the Act were to operate, as Parliament had intended, to restrict retention and dissemination of intercepted material to the minimum necessary to achieve the purpose of “preventing and detecting serious crime”, there was likely to be no intercepted material to disclose to the defence and its destruction could not be said to amount to a material irregularity. D.   “Special Counsel” 35.     Following the judgments of the Court in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996-V) and Tinnelly v. the United Kingdom (10 July 1998, Reports 1998-IV) the United Kingdom has introduced legislation making provision for the appointment of a “special counsel” in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”), and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera , in the absence of the affected individual and his or her legal representatives, the Attorney General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. 36.     For example, in the immigration context, the relevant Rules under the 1997 Act are contained in the Special Immigration Appeals Act Commission (Procedure) Rules 1998 (Statutory Instrument no. 1998/1881). Rule 3 provides that in exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. Rule 7 relates to the special advocate established by section 6 of the 1997 Act. It provides, inter alia , “7.   (4)   The function of the special advocate is to represent the interest of the appellant by - (a)   making submissions to the Commission in any proceedings from which the appellant or his representative are excluded;     (b)   cross-examining witnesses at any such proceedings; and     (c)   making written submissions to the Commission. (5)   Except in accordance with paragraph (6) to (9) the special advocate may not communicate directly or indirectly with the appellant or his representative on any matter connected with proceedings before the Commission. (6)   The special advocate may communicate with the appellant and his represen