CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 27 octobre 2004

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THE UNITED KINGDOM   (Applications nos. 39647/98 and 40461/98)                     JUDGMENT       STRASBOURG   27 October 2004     In the case of Edwards and Lewis v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Mr   L. Wildhaber , President ,   Mr   C.L. Rozakis ,   Mr   J.-P. Costa ,   Mr   G. Ress ,   Sir   Nicolas Bratza ,   Mr   G. Bonello ,   Mr   I. Cabral Barreto,   Mr   K. Jungwiert,   Mr   B. Zupančič,   Mrs   H.S. Greve,   Mr   A.B. Baka,   Mrs   S. Botoucharova,   Mr   A. Kovler,   Mrs   A. Mularoni,   Mrs   E. Steiner,   Mrs   E. Fura-Sandström ,   Mrs   A. Gyulumyan , judges , and Mr P.J. Mahoney , Registrar , Having deliberated in private on 6 October 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos. 39647/98 and 40461/98) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two United Kingdom nationals, Mr Martin John Edwards (“the first applicant”), and Mr Michael Lewis (“the second applicant”), on 6 September 1996 and 16 May 1997 respectively. 2.     The applicants were represented by Mr D. Clarke, a lawyer practising in Tonbridge and, at the hearing on 10 September 2002, by Mr   B.   Emmerson QC and Mr J. Hall, counsel. The United Kingdom Government (“the Government”) were represented by their Agent, Mr   H.   Llewellyn, of the Foreign and Commonwealth Office, and, at the hearing, by Mr D. Perry, counsel. 3.     The applicants alleged that they had been denied fair trials, contrary to Article 6 of the Convention, as a result of the incitement of offences by agents provocateurs and the procedure concerning the non-disclosure of evidence followed by the domestic courts. 4.     The applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.     The applications were allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 10 September 2002, following a hearing on admissibility and the merits (Rule 54 § 4), both applications were declared admissible by a Chamber of that Section, and on 1 July 2003 the Chamber decided to join them (Rule 43 § 1). 6.     On 22 July 2003 judgment was delivered by the Chamber, composed of Mr M. Pellonpää, President, Sir Nicolas Bratza, Mrs E. Palm, Mr M. Fischbach, Mr R. Maruste, Mr S. Pavlovschi and Mr L. Garlicki, judges, and Mr M. O’Boyle, Section Registrar. The Chamber held, unanimously, that there had been violations of Article 6 § 1 of the Convention, that this finding constituted sufficient just satisfaction for any non-pecuniary damage suffered by the applicants and that the respondent State should pay each applicant 22,000 euros in respect of costs and expenses. 7.     On 21 October 2003 the Government requested, in accordance with Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber. A panel of the Grand Chamber accepted the request on 3   December 2003. 8.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 9.     On 2 April 2004 the Government wrote to the Court as follows: “Having now had the opportunity to give even fuller consideration to the judgment of the Chamber of the Court of 22 July 2003 and its implications, the Government have decided that they no longer wish to pursue the referral of this application to the Grand Chamber which was accepted on 3 December 2003 at the request of the Government. In the circumstances the Government accept that it is open to the Grand Chamber to endorse the judgment of the Chamber of 22 July 2003, and confirm that they are content that the Grand Chamber should now do so.” 10.     On 22 April 2004 the President, Mr L. Wildhaber, decided that it was not necessary to hold a hearing (Rules 59 § 3 and 71 § 2). 11.     The applicants and the Government filed observations under Article   41 of the Convention concerning the applicants’ additional costs resulting from the Grand Chamber proceedings. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Martin John Edwards 12.     The first applicant was born in 1946 and lives in Woking. 13.     On 9 August 1994, following a surveillance and undercover operation, he was arrested in a van in the company of an undercover police officer known only as “Graham”. In the van was a briefcase containing 4.83   kilograms of 50% pure heroin. On 7 April 1995 the applicant was convicted in Snaresbrook Crown Court of possessing a Class A drug with intent to supply and was sentenced to nine years’ imprisonment. 14.     The first applicant’s defence was that at the time of his arrest he believed he was taking part in a transaction to sell stolen jewellery. He alleged that his participation had been organised by a man named Geoffrey   Lerway, whom he had met the previous year while both were detained on remand in Brixton Prison. According to the applicant, the week before his arrest Lerway had introduced him to a man called Jim Humphries and a man introduced to him only as “Martin”. The day before the arrest, the applicant was contacted by Lerway and asked if he would be interested in going to Birmingham in connection with a jewellery deal in which Lerway was acting as intermediary to Martin. He would be given a cut of the purchase price. The applicant agreed that Lerway would pick him up from his home the next day. 15.     The following morning he was told that the plans had changed, as Martin was now coming to London. The first applicant agreed to accompany Lerway to a public house where, at approximately 12.45 p.m., a red Jaguar and a white van drew up. The driver of the Jaguar was introduced to the applicant as “Jeff”; he was accompanied by a man and a woman, subsequently addressed as “Terry” and “Carol”. The driver of the van was introduced as “Graham”. Jeff gave Lerway a briefcase containing 125,000   pounds sterling (GBP). They all then left in convoy for the Clive Hotel, Primrose Hill, where they were to meet Martin. 16.     At the hotel, Lerway decided to stay with the money in the car and asked the applicant to see if Martin had arrived. The applicant therefore went into the hotel where he met Jim Humphries, who told him that the arrangements had changed again as Martin was now in Euston. Humphries and Lerway asked the applicant to take a taxi to Euston and ask Martin to return with him to the Clive Hotel. The applicant followed these instructions and found Martin, who told him he had to leave immediately for another meeting. Martin, having spoken to Humphries or Lerway on a mobile phone, gave the applicant the key to a room in the nearby Ibis Hotel, and explained that the “goods” were in a briefcase in the room. 17.     According to the applicant, Graham came from Primrose Hill in his van and met the applicant outside the Ibis Hotel. Graham then suggested that the applicant should accompany him up to the room and offered to give him a lift back to Primrose Hill afterwards. In the hotel room, Graham forced the lock on the case while the applicant was in the bathroom, and when he came out Graham was ready to go. They returned to the van, where the briefcase was opened, and within moments the applicant was arrested. 18.     Of all the participants in the above transaction, only the applicant was arrested and charged. The applicant suspects that the other participants were undercover police officers or informers acting on police instructions, but their identities and status have never been revealed to him. In this regard, he considers it relevant that, at the time of the alleged dealings, Lerway was on bail to the Middlesex Crown Court in respect of a large-scale conspiracy to supply cannabis. One of the conspirators was a former Flying Squad detective. It was known to the applicant that Lerway had acted as a participating police informer in that case and it was further known that the police officers involved in the applicant’s case had also investigated the conspiracy for which Lerway was on bail. The applicant believes that sentencing in Lerway’s trial was deliberately postponed until 12 April 1995, some five days after the conclusion of the applicant’s own trial, as a disincentive for Lerway to come forward and give evidence concerning the true nature of the transaction. 19.     Prior to the commencement of the applicant’s trial, the prosecution gave notice to the defence that an application to withhold material evidence had been made ex parte in advance of the trial under the procedure approved in R. v. Davis, Johnson and Rowe (see paragraph 37 below). Judge Owen Stable QC, who considered the material in the absence of the defence, concluded that it would not assist the defence and that there were genuine public interest grounds for withholding it. This ruling was subsequently reconsidered by the trial judge, who had the benefit of a document prepared by the defence outlining the issues in the case, as well as of the oral submissions of defence counsel. In the course of the proceedings before the Chamber, the Government revealed for the first time that the material placed before the trial judge had included information indicating that the applicant had been involved in the supply of heroin before the start of the undercover operation. The subject matter of the public interest immunity evidence was not disclosed to the applicant during the domestic proceedings, either at first instance or on appeal. The trial judge, who directed himself in accordance with the approach set out by the Court of Appeal in R. v. Keane (see paragraph 39 below), decided that the evidence in question would not assist the defence and found genuine public interest grounds in favour of non-disclosure. 20.     Following the ruling on disclosure, the defence made an application to the trial judge under section 78 of the Police and Criminal Evidence Act 1984 (PACE – see paragraph 32 below) to exclude the evidence of Graham, on the basis that the applicant had been entrapped into committing the offence. These submissions were rejected. The judge held that in the course of the ex parte application he had heard nothing and seen no material which would have assisted the defence in their argument that evidence should be excluded under section 78 on grounds of entrapment. He continued that, if he had seen or heard any such material, he would have ordered disclosure. 21.     Apart from the applicant, Graham was the only participant in the offence to give evidence at the trial. He testified that the applicant had made a number of incriminating statements to him when they were alone together in the van and hotel room. Although Graham claimed to have made a full note of the alleged conversations, these notes were never shown to the applicant and the applicant was not questioned in connection with their content by the investigating police officers. According to the applicant, it was, however, difficult for the defence to undermine Graham’s credibility because his full name and other identifying details were not disclosed. 22.     Following his conviction, the applicant appealed to the Court of Appeal on the ground, inter alia , that the judge had been wrong to refuse to order disclosure. Dismissing the appeal on 18 July 1996, the Court of Appeal, having itself examined the undisclosed evidence, observed that “each one of us reached the clearest possible view that nothing in the documents withheld could possibly have assisted the defence at trial; indeed quite the reverse”. B.     Michael Lewis 23.     The second applicant was born in 1953 and lives in Tonbridge. Prior to the events in question, he had been of good character and employed as accounts director in a firm which had gone into liquidation a year earlier. At the time of his arrest in July 1995, he was unemployed and in considerable debt. 24.     The applicant’s version of events, which he maintained from the time of his first interview with the police, was that he had been introduced to a man named “Terry” by an acquaintance, Colin Phelps, since Terry appeared interested in purchasing from the applicant some bankrupt stock. At a meeting in July 1995, Terry had started talking about counterfeit currency and had pressed the applicant to obtain some as part of the transaction. Although the applicant had never hitherto been involved with counterfeit currency, he did have a contact, “John”, who was able to supply forged banknotes. 25.     Terry went on to introduce the applicant to two men called “Jag” and “Jazz”. At a third meeting on 14 July 1995, Jag turned up with “Chris”, who was subsequently revealed to be an undercover police officer, and an order for a large amount of currency was placed. It appears from the transcript of covert tape recordings made during this meeting that, while the applicant was not unwilling to become involved, he was actively encouraged to do so by Jag and Chris, who put a certain amount of pressure on him to supply more notes of a higher denomination than had at first been agreed. On 25   July 1995 the applicant met Chris and another undercover officer, “Ian”, in a public house car park. He showed them some counterfeit notes, and was immediately arrested by uniformed officers. More counterfeit notes were found when his house was searched. 26.     The applicant maintained that he had been entrapped by undercover police officers and/or participating informers into committing the offences. On 11 November 1996 he applied to the Crown Court judge for an order that the indictment should be stayed on the grounds that, as a result of the covert activities of undercover police officers and/or participating informers, (a) it was not possible for him to have a fair trial and (b) the moral integrity of the criminal proceedings had been impaired. He also requested the judge to order the prosecution to provide more information and documents, including information relating to the question whether Colin Phelps, Terry or “Tel”, Jazz or Jag were participating informers or undercover police officers. 27.     Prior to making his ruling on the defence application, the judge heard, ex parte , an application by the prosecution to withhold certain material evidence on grounds of public interest immunity. The judge refused to grant a stay or to order further disclosure, indicating that most of the information sought was subject to public interest immunity. He also ruled that, while it was clear that Chris had been coaxing the applicant, there was no evidence of pressure having been applied. 28.     A second submission was then made on the applicant’s behalf to exclude the evidence of undercover police officers under section 78 of PACE. However, before evidence was called from the officers in question – Chris and Ian –defence counsel sought guidance from the judge as to the areas of cross-examination which would or would not be allowed, given that certain issues relating to the investigation were covered by public interest immunity. It became apparent that most of the areas of cross-examination necessary to develop the submission were not to be allowed. Accordingly, the submission was withdrawn and the applicant entered guilty pleas to the indictment on 12 November 1996. 29.     On 20 November 1996 he was sentenced to a total of four and a half years’ imprisonment. 30.     On 28 November 1996 counsel advised that the applicant had no prospects of success in appealing against conviction, since he would have to demonstrate that the convictions were unsafe before an appeal could succeed. This would be impossible given that, on his own account, he had been motivated by money to enter into the deal to sell counterfeit currency. Counsel also expressed the view that: “Had there been anything within the [public interest immunity] material which could have assisted the Defendant in developing his case to exclude the evidence under s.78 PACE I am confident the Judge would have released it. In those circumstances, I advise that there are no grounds of appeal against conviction.” II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Entrapment under English law 31.     The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under English law. The judge does, however, have a discretion to order a stay of a prosecution where it appears that entrapment has occurred, as the House of Lords affirmed in R. v. Looseley; Attorney-General’s Reference (no. 3 of 2000) ([2001] United Kingdom House of Lords Decisions 53), a judgment which followed and approved earlier case-law, including case-law which applied at the time of the applicants’ trials (for example, the judgment of the House of Lords in R. v. Latif [1996] 1 Weekly Law Reports 104). In Looseley , Lord Nicholls of Birkenhead explained (§ 1):   “My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the State do not misuse the coercive, law-enforcement functions of the courts and thereby oppress citizens of the State. Entrapment ... is an instance where such misuse may occur. It is simply not acceptable that the State through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of State power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which State conduct of this nature could have are obvious. The role of the courts is to stand between the State and its citizens and make sure this does not happen.” 32.     In addition, the court has a discretion, under section 78 of the Police and Criminal Evidence Act 1984, to exclude evidence obtained by an undercover police officer where, inter alia , the defendant would not have committed the offence without police incitement (see R. v. Smurthwaite; R.   v. Gill (1994) 98 Criminal Appeal Reports 437, judgment of the Court of Appeal; and Looseley , cited above). Of the two remedies, the grant of a stay, rather than the exclusion of evidence, is the more appropriate remedy because a prosecution founded on entrapment is an abuse of the court’s process and should not have been brought in the first place. 33.     In Looseley , the House of Lords agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or “State-created crime”. In each case it was for the judge, having regard to all the circumstances, to decide whether the conduct of the police or other law-enforcement agency was so seriously improper as to bring the administration of justice into question. Factors to be taken into account included the nature of the offence, the reason for the particular police operation, the possibility of using other methods of detection and the nature and extent of police participation in the crime; the greater the inducement offered by the police, and the more forceful and persistent the police overtures, the more readily a court might conclude that the police had overstepped the boundary, since their conduct might well have brought about the commission of a crime by a person who would normally avoid crime of that kind. The police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing, and the police operation should be properly supervised. The defendant’s criminal record was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that he or she had been engaged in the criminal activity in question prior to the involvement of the police (per Lord Nicholls, §§   26 ‑ 29; Lord Hoffmann, §§ 50-71). B.     Disclosure of evidence by the prosecution 34.     At common law, the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged. This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence. 35.     In December 1981 the Attorney-General issued guidelines, which did not have force of law, concerning exceptions to the common-law duty to disclose to the defence evidence of potential assistance to it ((1982) 74 Criminal Appeal Reports 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.” 36.     In R. v. Ward ([1993] 1 Weekly Law Reports 619), 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”. 37.     In R. v. Davis, Johnson and Rowe ([1993] 1 Weekly Law Reports   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 would 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 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. 38.     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. 39.     The leading case on disclosure at the time of the applicants’ trials was the judgment of the Court of Appeal in R. v. Keane ([1994] 1 Weekly Law Reports 746). The Lord Chief Justice, giving the judgment of the court, held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity. “Material” evidence was defined as evidence which could be seen, “on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)”. 40.     Once the judge was seized of the material, he or she had to perform the balancing exercise between the public interest in non-disclosure and the importance of the documents to the issues of interest, or likely to be of interest, to the accused. If the disputed material might prove the defendant’s innocence or avoid a miscarriage of justice, the balance came down firmly in favour of disclosing it. Where, on the other hand, the material in question would not be of assistance to the accused, but would in fact assist the prosecution, the balance was likely to be in favour of non-disclosure. 41.     In the case of R. v. Turner ([1995] 1 Weekly Law Reports 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 ...” 42.     The requirements of disclosure have since been set out in a statutory scheme. Under the Criminal Procedure and Investigations Act 1996 (CIPA), which came into force in England and Wales immediately upon gaining Royal Assent on 4 July 1996, 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.     “Special Counsel” 43.     Following the judgments of the European Court of Human Rights in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996 ‑ V) and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports 1998 ‑ IV), the United Kingdom 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. The relevant rules giving effect to the 1997 and 1998 Acts are set out in the Court’s judgment in Jasper v. the United Kingdom ([GC], no.   27052/95, § 36, 16 February 2000). 44.     In December 1999 the government commissioned a comprehensive review of the criminal justice system, under the chairmanship of a senior Court of Appeal judge, Sir Robin Auld. The report, published in September 2001 after extensive consultation and entitled “The Review of the Criminal Courts in England and Wales” (“the Auld Report”), recommended, inter alia , the introduction of a “special counsel” scheme in cases where the prosecution wished to seek, ex parte , non-disclosure on grounds of public interest immunity. The recommendation was explained in the Auld Report as follows (footnotes omitted): “193.     The scheme [developed by the common law since R. v. Ward and reflected in the Criminal Procedure and Investigations Act 1996: see above] is an improvement on what went before and has been generally welcomed on that account. But there is widespread concern in the legal professions about lack of representation of the defendant’s interest in the [ ex parte ] forms of application, and anecdotal and reported instances of resultant unfairness to the defence. ... A suggestion, argued on behalf of applicants in Strasbourg and widely supported in the Review, is that the exclusion of the defendant from the procedure should be counterbalanced by the introduction of a ‘special independent counsel’. He would represent the interest of the defendant at first instance and, where necessary, on appeal on a number of issues: first, as to the relevance of the undisclosed material if and to the extent that it has not already been resolved in favour of disclosure but for a public interest immunity claim; second, on the strength of the claim to public interest immunity; third, on how helpful the material might be to the defence; and fourth, generally to safeguard against the risk of judicial error or bias. 194.     In my view, there is much to be said for such a proposal, regardless of the vulnerability or otherwise of the present procedures to Article 6. Tim Owen QC, in a paper prepared for the Review, has argued powerfully in favour of it. It would restore some adversarial testing of the issues presently absent in the determination of these often critical and finely balanced applications. It should not be generally necessary for special counsel to be present throughout the trial. Mostly the matter should be capable of resolution by the court before trial and, if any question about it arises during trial, he could be asked to return. If, because of the great number of public interest immunity issues now being taken in the courts, the instruction of special counsel for each would be costly, it simply indicates, as Owen has commented, the scale of the problem and is not an argument against securing a fair solution. 195.     The role would be similar to that of an amicus curiae brought in to give independent assistance to a court, albeit mostly on appeal. In rape cases, where an unrepresented defendant seeks to cross-examine a complainant, the court must inform him that he may not do so, and should he refuse to instruct counsel, the court will appoint and instruct one. After the decisions of the European Court of Human Rights in Chahal and Tinnelly , the government introduced such a procedure in immigration cases involving national security. Although such cases are extremely rare, it is sufficient that the principle of a ‘third’ or ‘special’ counsel being instructed on behalf of a defendant has been conceded in a number of areas. 196.     The introduction of a system of special independent counsel could, as Owen has also noted, in part fill a lacuna in the law as to public interest immunity hearings in the absence of a defendant appellant in the Court of Appeal, to which the 1996 Act and supporting Rules do not apply. Where there has been a breach of Article 6 because a trial judge did not conduct a public interest immunity hearing due to the emergence of the material only after conviction, the European Court of Human Rights has held that the breach cannot be cured by a hearing before the Court of Appeal in the absence of the appellant. The Court’s reasons for so holding were that the appeals court is confined to examining the effect of non-disclosure on the trial ex post facto and could possibly be unconsciously influenced by the jury’s verdict into underestimating the significance of the undisclosed material. 197.     However, even the introduction of special counsel to such hearings would not solve the root problem to which I have referred of police failure, whether out of incompetence or dishonesty, to indicate to the prosecutor the existence of critical information. Unless, as I have recommended, the police significantly improve their performance in that basic exercise, there will be no solid foundation for whatever following safeguards are introduced into the system. I recommend the introduction of a scheme for instruction by the court of special independent counsel to represent the interests of the defendant in those cases at first instance and on appeal where the court now considers prosecution applications in the absence of the defence in respect of the non-disclosure of sensitive material .” 45.     In R. v. H.; R. v. C. [2004] United Kingdom House of Lords Decisions 3, decided on 5 February 2004 after the Chamber judgment in the present case, the Judicial Committee of the House of Lords held, inter alia : “The years since the decision in R. v. Davis [see paragraph 37 above] and the enactment of the CIPA [see paragraph 42 above] have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who cannot (either personally or through his legal representative), for security reasons, be fully informed of all the material relied on against him. The procedure is to appoint a person, usually called a ‘special advocate’, who may not disclose to the subject of the proceedings the secret material disclosed to him, and is not in the ordinary sense professionally responsible to that party but who, subject to those constraints, is charged to represent that party’s interests. ... There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII [public interest immunity from disclosure] matters, a defendant in an ordinary criminal trial ... But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant’s right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. ...” THE LAW I.     THE FINDINGS OF THE CHAMBER 46.     The “Law” part of the Chamber’s judgment of 22 July 2003 stated as follows (original paragraph numbering omitted): “I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION The applicants complained that they had been deprived of fair trials, contrary to Article 6 § 1 of the Convention, which provides: ‘In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...’ A.     The parties’ submissions 1.     The Government The Government contended that the applicants had been given fair trials. They submitted that the principle set out by the Court in Teixeira de Castro v. Portugal (judgment of 9 June 1998, Reports 1998-IV) had been respected, in that there was no material to suggest that either applicant had been incited or procured by police officers or others on their behalf to commit an offence which he would not otherwise have committed. This was the conclusion reached by the trial judge in each case, who had considered the public interest immunity material and ruled that, since there was nothing in it that would assist the defence, it should not be disclosed. They pointed out that, in the first applicant’s case, not only the trial judge but also the Court of Appeal had examined the undisclosed evidence and held that Mr Edwards had not been disadvantaged as a result of the non-disclosure. The information placed before the trial judge and the Court of Appeal in the ex parte procedures suggested that the first applicant had already been engaged in the supply of heroin at the time of the undercover operation. The Government submitted that, according to the evidence given by ‘Graham’ at the first applicant’s trial, the first applicant had voluntarily, actively and knowingly involved himself in the supply of drugs. The Government further contended that the ex parte procedure followed by the domestic courts in respect of both the first and second applicants afforded adequate safeguards to the defence, and that the present case was indistinguishable from Jasper [cited in paragraph 43 above], where the Court had found no violation of Article 6 § 1. In particular, the Government emphasised that in each of the instant cases the trial judge, who was under a duty to order disclosure if the material in question assisted the defence, had examined the evidence having heard the submissions of defence counsel and with knowledge of the defence case on entrapment. 2.     The applicants The applicants submitted that it was impossible for them to establish, on the available evidence, whether or not the involvement of agents provocateurs in the offences they had committed rendered the proceedings against them unfair. Evidence on this point had been withheld from the defence on grounds of public interest immunity. They considered that the domestic proceedings were fundamentally unfair because the trial judge, who had to decide the question of fact as to whether the accused had been the victim of entrapment and abuse of process, also had to review the material for which the prosecution claimed public interest immunity, in the absence of any representative of the defendant and without any adversarial process. The present case could be distinguished from Jasper , cited above, because, in a case such as Jasper where no issue of entrapment arose, the separation of function between judge and jury ensured that neither side could rely on the undisclosed evidence and therefore that equality of arms was maintained. The tribunal of fact saw nothing which the accused and his lawyers were not permitted to see, and the judge was under a duty to order disclosure if the material in question was likely to assist the defence (see R. v. Keane , [paragraph 39] above). In the present case, it appeared that the undisclosed material was positively damaging to the accused’s allegations of entrapment, which he had the burden of proving and which the judge had to decide, but the defence remained ignorant of the nature or content of the evidence placed before the judge and was unable to challenge it. The applicants pointed out that the Auld Report [see paragraph 44 above] constituted recognition by a respected member of the senior judiciary, following wide consultation, that the present ex parte system was unfair and that the practical obstacles to the introduction of a ‘special counsel’ to ensure some adversarial testing of the issues could reasonably be overcome. B.     The Court’s view The applicants claim to have been victims of entrapment. The Court reiterates that, although the admissibility of evidence is primarily a matter for regulation by national law, the requirements of a fair criminal trial under Article 6 entail that the public interest in the fight against crime cannot justify the use of evidence obtained as a result of police incitement (see Teixeira de Castro , cited above, pp. 1462-63, §§   34 ‑ 36). In Teixeira de Castro the Court found that the activities of the two police officers had gone beyond that of undercover agents, in that they had not ‘confined themselves to investigating the applicant’s criminal activity in an essentially passive manner’, but had ‘exercised an influence such as to incite the commission of the offence’. Their acti