CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 mai 2002

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Costa , President ,   Sir   Nicolas Bratza,   Mr   Gaukur Jörundsson ,   Mr   L. Loucaides ,   Mr   C. Bîrsan ,   Mr   M. Ugrekhelidze ,   Mrs   A. Mularoni , judges , and Mr T.L. Early , Deputy Section Registrar , Having regard to the above application introduced with the European Commission of Human Rights on 20 September 1994 and registered on 22   January 1998, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, James Dowsett, is a United Kingdom national, born in 1946 and currently detained at H.M. Prison Kingston, Portsmouth. He is represented before the Court by Ms. A. Bromley, a solicitor practising in Nottingham, and Mr A. Masters, a barrister practising in London. The respondent Government are represented by Mr C.A. Whomersley, Foreign and Commonwealth Office. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.   The Crown Court trial On 22 March 1989 in Norwich Crown Court the applicant was convicted of the murder of Christopher Nugent and sentenced to life imprisonment. Mr Nugent had been the applicant’s business partner. He was shot and killed at their business premises on 15 December 1987 by Stephen Gray, who left the scene of the crime in a car driven by Gary Runham. Mr Runham and Mr Gray were arrested in January 1988 and the applicant was arrested in February 1988. He was charged with murder jointly with Mr Runham, Mr Gray and two other men who had allegedly provided money to pay for the killing of Mr Nugent. The Crown’s case was that the applicant had paid Mr Runham and Mr   Gray GBP   20,000 to kill Mr Nugent, because Mr Nugent knew too much about the applicant’s involvement in mortgage fraud. The applicant’s defence was that he had hired Mr Runham and Mr Gray to break one of Mr   Nugent’s limbs in order to put him out of action for a few weeks while the applicant effected his transfer to another branch of the firm. He alleged that he had paid Mr Runham and Mr Gray GBP 7,500 for the assault, but that after Mr Gray had killed Mr Nugent, Mr Gray blackmailed the applicant into paying him more money. The applicant claimed that he would have had no motive for killing Mr Nugent, since the latter was himself involved in the frauds being perpetrated through the business. The applicant submits, however, that his representatives felt unable to pursue this line of argument satisfactorily because of lack of evidence of Mr Nugent’s dishonesty; the jury were asked to accept the applicant’s word alone on this issue. Mr Runham and Mr Gray pleaded guilty to murder. Mr Gray gave evidence for the prosecution against the applicant concerning the alleged murder conspiracy. The two alleged co-conspirators, who according to the prosecution had, together with the applicant, paid for Mr Nugent to be murdered, were acquitted. 2.   Post-trial disclosure Following his conviction the applicant complained to the Police Complaints Authority (“PCA”) about Suffolk Constabulary’s refusal to disclose material evidence. In a letter to the applicant of 30 October 1992, the PCA reported that it had reprimanded some of the investigating officers for negligence. According to the applicant, in July 1993 he was informed that there were seventeen boxes of hitherto undisclosed material. The applicant contends that some of this evidence would have supported his defence that he had had no need to murder Mr   Nugent to ensure his silence since it showed that the latter was also deeply involved in the frauds perpetrated through the business. The applicant claims that some of the material from the seventeen boxes was disclosed to him in the week prior to his appeal hearing, while other material from the boxes remains undisclosed. According to the Government, the evidence which was not disclosed at first instance, but which was disclosed prior to the applicant’s appeal, falls into two categories. The first type of evidence derived from the Holmes computer system used by the police officers conducting the murder inquiry to store and cross-reference all the information obtained in the course of the inquiry. The computer data included documents known as “Messages” which recorded information when first received by an officer, and documents known as “Actions” which recorded the steps to be taken by an officer in response to a Message and the result of any such further inquiry. At the time of the trial, the prosecution took the view that the computer system was being used as a tool for the police investigation and that the data contained in it was not subject to disclosure under the Attorney General’s Guidelines (see below), although any witness statements or exhibits obtained in response to a Message or Action should be, and were, disclosed as “unused material”. The Government submit that, following the applicant’s conviction, and in the light of developments in the common law duty of disclosure (see below), the prosecution reviewed their position and decided that the data stored on the computer system did amount to disclosable material. Prior to the applicant’s appeal, therefore, the prosecution disclosed the Messages and Actions held by the police. Some 4000 Actions were disclosed, of which the applicant referred to one in support of his appeal. In the Government’s submission, the second category of evidence undisclosed at first instance related to the parallel investigation into mortgage fraud by a number of people including the applicant and Mr   Nugent. At an early stage the prosecution decided to keep the murder and fraud investigations separate and that there was no duty under the Guidelines to disclose the material gathered in the fraud inquiry to the defendant charged with murder. Following the applicant’s conviction and the development of the common law, the prosecution reconsidered their decision and, prior to the applicant’s appeal, made full disclosure of the material obtained in the fraud inquiry. 3.   Undisclosed material Prior to the hearing before the Court of Appeal, the prosecution served on the applicant a schedule indicating what material was still being withheld following the review of the prosecution’s duty of disclosure. In respect of some of the items in the schedule, the reason given for non-disclosure was “legal and professional privilege”; in respect of other items it was “public interest immunity”; and in respect of certain other items, for example document no.   580, no reason was given to explain the decision to include the document in the list of withheld evidence. One of the documents on the Schedule (no. 580) subsequently came into the applicant’s possession. It is a letter, dated 12   April 1988, from a firm of solicitors acting for Mr Gray to Detective Chief Inspector Baldry of the Suffolk Constabulary, which reads as follows: “Further to our several discussions concerning Mr Gray, you will of course be aware that I did visit him in Leicester Prison on 26 March.   He has requested a transfer either to Brixton Prison or Wormwood Scrubs if this is at all possible and I should be grateful if you would let me know whether there is any possibility of Mr Gray receiving a transfer.   Secondly I now understand that apparently Mr Gray understands that you would be willing to support him receiving a straight term of life imprisonment and an Application for early parole.   Obviously I have explained to Mr Gray the position concerning sentencing but perhaps you would set out your position so far as possible concerning these matters.   Thirdly I understand that Mr Gray’s wife is to be produced at fortnightly intervals to Leicester Prison for visits and perhaps again you could clarify the position.   I look forward to hearing from you ... .” 3.   Appeal The hearing of the applicant’s appeal took place on 28 and 29 March 1994. Non-disclosure of evidence, particularly evidence discovered in the parallel mortgage fraud investigation, was one of the applicant’s grounds of appeal to the Court of Appeal, but no mention appears to have been made of document no. 580. The applicant also relied on the fact that the trial judge had omitted to direct the jury that a person may lie for reasons unconnected with guilt of the offence charged (a “Lucas” direction), and that the fact that during interviews with the police the applicant had denied all knowledge of any plot to harm Mr Nugent, did not mean that he had been involved in his murder. Dismissing his appeal on 29   March 1994, the Court of Appeal remarked that in the course of his summing up the judge had not suggested that the applicant’s lies could amount to corroboration of the other evidence, and had reminded the jury of defence counsel’s submissions in relation to the applicant’s lies. Although the summing up should have included a “Lucas” direction, no miscarriage of justice had occurred. On the question of non-disclosure the court observed: “... As the trial was conducted, Nugent’s dishonesty was made perfectly plain to the jury. The appellant himself had admitted being dishonest, and had said in the course of his evidence that Nugent was party to all the dishonest resorts to which he had lent himself in making false representations and forging documents. Accordingly it was fully before the jury that Mr Nugent was dishonest. ...       We have been taken through various parts of the evidence ... and we are quite satisfied that ... Mr Nugent’s involvement in the deep dishonesty of this business was fully canvassed before the jury. ... Accordingly, although ... the stricter regime of prosecution disclosure which now prevails might well have required further disclosure than was actually made, we do not consider that this ground is one which has any substance in regard to the outcome of the case. ...” The Court of Appeal concluded: “There was overwhelming evidence that the appellant initiated a plot against the victim Nugent. There was likewise strong evidence that he had indicated what he wanted was to get rid of Nugent. The money actually paid, and indeed even the sum mentioned by the appellant was in our view out of proportion to a plot simply to ‘duff up’ the victim. Moreover, on analysis such a plot made no sense. Each member of this court is of the clear opinion, despite the blemishes in an otherwise impeccable summing-up, no miscarriage of justice has actually occurred. ...” 4.   The alleged significance of document no. 580 The applicant believes that an inducement was promised by the prosecuting authorities to Mr Gray in exchange for his testifying against the applicant. In addition to the above letter, which the applicant claims supports his hypothesis, he refers to the fact that his tariff of imprisonment (that is, the period to be served before review by the Parole Board) under the life sentence had been set at twenty-five years, but was subsequently reduced to twenty-one years. Mr Runham, who had provided the murder weapon and drove the get-away car, received a tariff of sixteen years. Mr   Gray, who had shot and killed Mr Nugent, had his tariff set at eleven years and was released in 1999. In April 1999 the Home Office wrote to Mr   Runham, refusing to reduce his tariff: “The Secretary of State holds Stephen Gray to be as culpable as you are, even though he fired the murder weapon and you did not. When the tariff was set for Stephen Gray, the then Secretary of State took into account that he had, like you, pleaded guilty to murder but had in addition been ‘... a very important witness for the prosecution’. ...” The Government deny that any inducement was offered to Mr Gray. Under cover of a letter dated 27 June 2001, they sent to the Court undated statements from three senior officers in the Suffolk Constabulary who had been involved in the murder investigation. The Statement of Chief Superintendent Green states: “I have seen a copy of the letter dated 12 April 1988 from Ennions, Solicitors ... to my then colleague, Mr Baldry. I can confirm that this letter is genuine and was recorded as Document D-580 during the course of the investigation into the murder of Mr Nugent.   I have no recollection of this letter after thirteen years and I cannot remember ever discussing it with Mr Baldry. At no time was I ever involved in any debate regarding the issue of Mr Gray receiving a ‘straight term of life imprisonment and an application for early parole’.   I can confirm that I did not offer Mr Gray any form of inducement to give evidence against Mr Dowsett or other defendants. To the best of my recollection, Gray’s motives were that he was simply attempting to ‘clear his plate’ by telling the whole truth about the circumstances of the case, whilst at the same time ensuring that Dowsett and others faced their share of the responsibility for the crime. I do recall that Mr Gray hoped that his honesty at the trial would one day assist him to make a successful application for parole.   I would like to emphasis that I spent six days with Mr Gray at Winchester Prison during the preparation of his statement and can categorically state that all one hundred and one pages of the document were written with Mr Gray’s consent and without any form of inducement.” The statement of Detective Chief Inspector Baldry, now retired, reads: “This murder happened in 1987 and is not now fresh in my memory.     However I do remember clearly that I gave no indications to interviewing officers or to Gray himself that in return for his support we would aid an application for a shorter sentence. Gray was a very dangerous murderer who I considered enjoyed carrying out his ‘murder’ contract with Mr Dowsett. This matter was so grave that no such undertaking could honestly have been given.   I do remember that Gray at one time was on hunger strike in prison and that we helped his wife to visit him in Prison. How this help was given I do not remember - it may have been in the role of carrying messages to and from.” Detective Chief Inspector Abrahams, also now retired, said in his statement: “Concerning the letter Document No D580 I can categorically state that I did not personally offer Gray any inducement or arrangement relating to his sentence. Nor did I have any discussions with his legal representative with regard to his sentence. Equally, I did not instruct any of my subordinate officers including the interview team questioning Gray so to do.   As far as I am aware Gray throughout his detention and taped questioning was dealt with in accord with the Police and Criminal Evidence Act.   I have been unaware of this letter until now but I am sure Chief Inspector Mike Baldry (now retired) may be of some help to you.   I would point out that Gray was arrested at Mildenhall Police Station on 23 January 1988 after which the murder management team was joined by Mr Christopher Yule of the Crown Prosecution Service-Ipswich, who advised on all legal aspects of the case. He was later joined by Mr (now Sir and a High Court Judge) David Penry-Davey QC and Mr David Lamming of Counsel, who advised on what was to be a complex case not only involving murder, conspiracy to murder but also large scale mortgage fraud.   I am not aware that any representations were made to the trial judge concerning any reduction in Gray’s tariff. If this had been the case then the application would have had to be made through prosecuting counsel.   For your information I include below some relevant dates and points that you may already be aware of in relation to the murder, but I think they are worth emphasising:   15 Dec 87   Christopher Nugent found murdered at his business premises that he owned with his partner Dowsett.   23 Jan 88   Gray gave himself up at Mildenhall Police Station and admits the offence naming Dowsett, Runham and others as part of a murder conspiracy.   26 Jan 88   Gary Runham arrested for the murder. He admits the offence naming Dowsett, Gray and others. Runham did the groundwork in planning Nugent’s murder and propositioned Gray at a later stage to do the actual killing.   1 Feb 88     Dowsett and others arrested for the murder.     17 Feb 88   I was withdrawn from the everyday management of the inquiry and returned to Force Headquarters. DCI Baldry took over this role.   Dec 88     Gray and Runham appear at Crown Court plead guilty to the murder and are sentenced to life imprisonment.   Jan 89     Gray agrees to become a witness for the prosecution and Detective Inspector Green (now Chief Superintendent) obtains a witness statement.   30 Jan 89   Trial of Dowsett and others commences. ...     Gray appeared as a prosecution witness. Runham did not. The jury unanimously found Dowsett guilty of murder and he was sentenced to life imprisonment.   Prosecution witness O’Dowd gave evidence to the fact that Dowsett admitted the murder to him and stated that Dowsett had said that ‘If Abrahams gets too close then he’ll get the same’ (or words to that effect).   16 Dec 90   Dowsett made a formal complaint against me, other officers and Mr Yule (CPS) that we perverted the course of justice in relation to his trial. The matter was investigated by an outside Police Force and was found by the DPP [Director of Public Prosecutions] and the PCA to be totally unsubstantiated.   Dowsett latter appealed against his conviction to the Court of Appeal but the Judges were unanimous in their judgment to disallow his application. The above is to the best of my recollection. I do not know what tariffs were set by the Judge in his sentencing of all three defendants but I assume credit was given for Gray and Runham’s guilty pleas.” B.     Relevant domestic law and practice 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. 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”)). 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.” In R. v. Ward ([1993] vol. 1 Weekly Law Reports p. 619), decided after the applicant’s conviction, the Court of Appeal stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity. It explained that “... 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”. The Court of Appeal’s judgment in R. v. Davis, Johnson and Rowe ((1993) vol. 97 Criminal Appeal Reports p. 110) set out the procedures to be followed if the prosecution wished to withhold unused material from disclosure on grounds of public interest immunity including, where appropriate, making an application to the court ex parte . In R. v. Keane ((1994) vol. 99 Criminal Appeal Reports p. 1) the Court of Appeal clarified that it was the duty of the prosecution to consider all unused material and to determine the materiality of such material to the issues that would arise or could potentially arise in the forthcoming trial. The prosecution needed to put before the court for a decision on disclosure only such evidence that it wished to withhold from disclosure and that could be described as “material” evidence in the case. The test of “materiality” was that an item should be considered as disclosable if: “[it] can be seen on a sensible appraisal by the prosecution:       (i) to be 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; or     (iii) to hold out a real, as opposed to fanciful, prospect of providing a lead on evidence which goes to (i) or (ii)”. If the prosecution were in any doubt as to the materiality of any such evidence it should ask the court to rule on the question. COMPLAINT The applicant complains under Article 6 §§ 1 and 3(b) of the Convention that he was deprived of a fair trial by virtue of the prosecution’s failure to disclose all material evidence in their possession. THE LAW The applicant complains that he was deprived of a fair trial by virtue of the prosecution’s failure to disclose all material evidence in their possession. Article 6 of the Convention provides, as relevant: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... 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; ...” The Government submit that the proceedings taken as a whole were fair and in accordance with Article 6 § 1. They contend, relying inter alia on the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, that the prosecution’s failure at first instance to disclose the actions and messages held on the Holmes Computer System and the materials gathered during the fraud inquiry did not deprive the applicant of a fair trial because this material was disclosed in time for the hearing in the Court of Appeal. His representatives could have asked for an adjournment if they had thought it necessary in order fully to consider the newly disclosed evidence. The Government further submit that prior to the hearing in the Court of Appeal, the prosecution served on the applicant a schedule indicating what material had been withheld from disclosure following the review by the prosecution of its duty of disclosure. The schedule included documents nos. 375, 572, 573, 580, 590, 614, 620 and 625. In the event the prosecution did not place this material before the Court of Appeal nor apply for an ex parte hearing to decide whether or not it should be disclosed. Instead, the prosecution applied a test of “materiality” similar to that set out by the Court of Appeal in R. v. Keane (see above), and concluded that the items in question were not “material” and thus did not have be disclosed or placed before the court. The applicant’s counsel could have discussed this point with the prosecution before the appeal hearing and, if necessary, could have applied to the Court of Appeal for a review of the prosecution’s decision and for disclosure of any of the documents listed in the schedule. The Government cannot explain how document 580 came into the applicant’s possession, but they submit that it might have been disclosed to the applicant by the prosecution shortly before the appeal hearing in March 1994, as the prosecution continued to reassess their duty of disclosure in the light of developments in the common law. The applicant denies that document 580 was disclosed before the appeal, and refers to a letter from the Branch Crown Prosecutor in charge of the case, dated 23 March 1994, refusing disclosure of a number of documents, including no. 580, as “withheld material”. The applicant alleges that document 580 was sent to him anonymously in Parkhurst Prison in late 1997. He submits that document no. 580 is relevant to the issue of Mr   Gray’s credibility as a prosecution witness, and contends that there may be other material evidence which remains undisclosed. He relies upon the Court’s judgment in Rowe and Davies v. the United Kingdom [GC] , no.   28901/95, ECHR-2000, where it was emphasised that the trial court, and not the prosecution, should be the ultimate judge on questions of disclosure of evidence. The Court considers that the application raises complex issues of law and fact under Article 6 § 1 of the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article   35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. For these reasons, the Court unanimously Declares the application admissible, without prejudging the merits of the case.   T.L. Early   J.-P. C osta Deputy Registrar   President