CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 novembre 2004

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Casadevall , President ,   Sir   Nicolas Bratza ,   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   K. Traja ,   Ms   L. Mijović ,   Mr   J. Šikuta, judges , and Mr M. O'Boyle , Section Registrar , Having regard to the above application lodged on 26 November 2003, Having deliberated, decides as follows: THE FACTS The applicant, Mr Matthew Glover, is a United Kingdom national, who was born in 1962 and lives in York. He is represented before the Court by Ms Fiona Stevens, solicitor, of Messrs. Goodwin and Stevens, Halifax. A.   The circumstances of the case The applicant was convicted at the Crown Court in Preston on 22 March 2002 of three counts of conspiracy to supply class A and class B drugs, namely ecstasy, amphetamine and cannabis resin. He was sentenced to 25   years' imprisonment for supplying class A drugs and, concurrent thereto, 14 years' imprisonment for the supply of class B drugs. In connection with the sentence, the Court of Appeal on 4 November 2003 granted leave to appeal and reduced the individual sentences to 18 years and 7 years respectively, to run consecutively. Leave to appeal against conviction was refused on the same day. The facts of the case, as submitted by the applicant, may be summarised as follows. One of the issues in the case concerned the disclosure of materials held by the prosecution on which they did not intend to rely. The applicant and his co-defendants had been subject to intensive police observations at one or more stages of the conspiracy, between September 1999 and February 2001, and at various times some of them (but not the applicant) were found in possession of amounts of drugs worth, variously, £100,000, £150,000, £62,000, £70,000, £220,000 and £50,000 (two), £500,000 and £40,000. Much of the evidence was recordings of telephone calls made by defendants, and references by one of the defendants to another. The applicant, in his defence, accepted that he knew some of the people who had been arrested in possession of drugs in the case, but contended that he had not known what was going on, and had never been involved in any way with drugs. He said that he had had business dealings with some of the people that he would not have wanted the authorities to know about. Before and during the trial, the applicant applied for disclosure of the unused material in the form of the many covertly obtained tapes of conversations and observation material not already in evidence. He maintained that he needed the information to put in context the extracts from the recordings and details of all observations relied upon by the prosecution. Rulings were made by Judge Baker, before the trial on 7 February 2002, and by the trial judge, Judge Ensor during the trial. The rulings (summarised by the Court of Appeal) were to the effect that:   -   the court had no power to order further primary disclosure – that was a matter for the prosecution's judgment under Section 3 of Criminal Proceedings and Investigations Act 1996 (“CPIA”);   -   in the absence of any particular issue in the applicant's defence statement in respect of which the prosecution could be shown to have reasonable cause under Section 8 of the CPIA to believe that there was undisclosed prosecution material which might reasonably be expected to assist the defence case, such disclosure would not be ordered;   -   in the circumstances it was not appropriate or necessary to order the further disclosure sought or for the trial judge to examine it or for himself to verify the prosecution's compliance with their secondary disclosure duty, and   -   the CPIA scheme of prosecution disclosure was not contrary to Article 6 of the Convention.   The applicant was convicted on 22 March 2002 and sentenced to a total of 25 years' imprisonment. Leave to appeal against conviction was refused by a single judge on 16   October 2003, and the Court of Appeal heard the renewed application on 4 November 2003. Before the Court of Appeal, the applicant challenged the way in which material had been withheld by the prosecution. In particular, he claimed that the prosecution was not entitled to withhold material that, when put in context with the material relied on by the prosecution, might have put the latter in a different light. The Court of Appeal noted that the applicant (unlike a co-defendant who raised similar issues) had served a defence statement under Section 5 of the CPIA which raised in general terms the nature of his defence, namely that he would contend that he know nothing of the drugs. The defence statement had also stated that he would contend that the balance of the audio recordings not already disclosed would put the conversations in their true context. Counsel for the prosecution, in reply, contended that the disclosure had complied with the scheme set up by Sections 3 and 8 of the CPIA and the relevant Guidelines on Disclosure of Information in Criminal Proceedings, and that the initial primary disclosure itemised many hundreds of documents or bundles of documents drawn from a mass of documentary material running to thousands of pages. The unused audio material alone amounted to over 900 hours of listening. He added that the defence had been served, by way of primary disclosure, with further schedules of discloseable material in the course of the trial as such material came into the police's hands.   The prosecution further contended that without identifiable issues as to what the undisclosed material might relate to, it could not properly make secondary disclosure. The prosecution also pointed out that, in order to put the conversations which were relied on in context, some minutes of conversation before and after each of the incriminating passages had been included in the served audio tapes and transcripts. The Court of Appeal held as follows: “There is no power in the court to direct primary disclosure, and, even if there were, it is difficult to see how the court could approach its task without knowledge of what, if any, issues were going to be taken with the prosecution case. The scheme of the [CPIA] is to rely on the prosecutor at that stage to disclose to the defence any unused material which in his or her opinion might undermine the prosecution case, but not to disclose everything available regardless of any conceivable relevance. The machinery for testing the objectivity and adequacy of that disclosure, given the prosecution's incomplete knowledge at that stage of what issues lie ahead, is the scheme of secondary disclosure. Once those issues are identified by the defence in a defence statement, if they are so identified, the prosecutor can then revisit his duty of disclosure, better informed than he was at the primary stage, to form a view as to what further disclosure justice requires in the form of material that might reasonably be expected to assist the defence. If, in the light of his then knowledge, he still does not make adequate disclosure, that is when the court can step in, and stay in. It can then consider the material for itself and direct further disclosure if it considers justice requires it. That is the machinery, and that machinery was invoked here over a number of applications in the course of the trial; and the judges, true to the scheme of the Act, ruled as they did. In our view, there is nothing in the machinery that violates the Convention or the jurisprudence of the European Court, that is, of tying prosecution disclosure to material that is relevant to the issues of guilt or innocence. There is nothing in the Convention or the Strasbourg Court's jurisdiction to equate the notion of a fair trial, including the requirement of the prosecution to prove its case, with the notion that the defence, while keeping its cards close to its chest, can demand sight of all the prosecution material, however irrelevant to any issue that could be guessed at. As to [the] more modest proposition that more of the audio tapes should have been disclosed to enable [the applicant] to put seemingly incriminating conversations into a more innocent context, it seems to us there are three answers. First, additional context was provided as [counsel for the prosecution] has told us, in recorded passages before and after the incriminating words. Second, the words, in the context of what the police had seen as well as heard and the drug finds they made at or about the times of the conversations, were not seemingly incriminating, but plainly incriminating. Any innocent exchanges at other times – and no doubt there were many of them – could not have saved the passages on which the prosecution relied for the purpose of the defence. Third, it is to be remembered that these were lengthy conspiracies, punctuated by serious drug finds with which [the applicant and a co-defendant] visibly and audibly, in greater or less measure, were clearly involved. The patterns of their criminality were plainly established. There is, in our view, no arguable substance in this ... ground of appeal ...” The Court of Appeal then dealt with a further ground of appeal. Three alleged co-conspirators had been tried separately from the applicant and his co-defendants, and in the course of their trial, they had applied for certain prosecution disclosure. The judge ordered disclosure, and the prosecution was unwilling to comply. As a result, the prosecution offered no evidence against all the defendants in that case. The applicant, unaware of the nature of the undisclosed material that caused the collapse of the prosecution in the co-conspirators' case, claimed that if he had been tried with the three other men (as might have happened), the result would have been an abandonment of the prosecution against him. He also claimed that evidence of events in October 2002 (concerning the supply of ecstasy tablets to one of the co-conspirators) should not have been included in the prosecution case against him. The applicant asked the Court of Appeal to investigate the nature of the disclosure that the prosecution had declined to make in that case, with a view to ordering its disclosure for the applicant's own appeal if the court considered it would have assisted his defence. The Court of Appeal replied: “We have looked at transcripts of the relevant public interest immunity hearings in question in the [other] proceedings and, in the absence of the [applicant and his counsel], we have heard submissions about the matters referred to in them from [counsel] on behalf of the prosecution. [Counsel] was also the lawyer in charge of this prosecution and familiar with, and closely involved throughout in, the process of prosecution disclosure. Having explored the matter thoroughly with him, we are satisfied that none of the matters that led to the collapse of the prosecution in the [other] case in any way overflowed into or tainted the conduct of the police investigation in this case. The two investigations, though overlapping in relation to one or more overt acts of supply [of drugs], were conducted by two entirely separate police teams, separately directed and located, notwithstanding that institutionally they form part of the National Crime Squad. Accordingly, we are satisfied that there is no arguable case for the grant of leave on this proposed ground.” Leave to appeal against conviction was refused on 4 November 2003. B.   Relevant domestic law and practice A review of the domestic law on disclosure of evidence by the prosecution can be found in the Court's judgment in the case of Edwards and Lewis ( Edwards and Lewis v.   the United Kingdom , nos.   39647/98 and 40461/98, §§ 31 – 39, 22   July 2003; confirmed by the Grand Chamber on 27 October 2004). The duty of primary disclosure is contained in Section 3 of the Criminal Procedure and Investigations Act 1996 (“the CPIA”), and requires the prosecution “to disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused”, or give a statement that there is no such material. The provision as to a defence statement is at Section 5, and requires the defence, after primary disclosure under Section 3, to give a defence statement to the court and prosecutor “(a) setting out in general terms the nature of the accused's defence, (b) indicating the matters on which he takes issue with the prosecution, and (c) setting out, in the case of each such matter, the reason why he takes issue with the prosecution.” The prosecution's duty of secondary disclosure derives from Section 7, and requires the prosecution, after the accused has given a defence statement under Section 5, to “disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused's defence as disclosed by the defence statement given under Section 5...”, or to give a written statement that there is no such material. The review by the trial court of the prosecution's disclosure (referred to at § 39 of the Chamber's judgment in Edwards and Lewis ) is governed by Section 8 of the CPIA, which provides for the possibility of a defence application to the court for disclosure where the defence have reasonable cause to believe that there is prosecution material which might reasonably be expected to assist the defence as disclosed by the Section 5 statement. The provisions of the CPIA replaced the earlier, common law rules on disclosure. In November 2000, the Attorney General issued Guidelines on the Disclosure of Information in Criminal Proceedings which set out in more detail the way in which primary and secondary disclosure, and defence disclosure, should operate. In R v. H and R v. C ([2004] UKHL 3) the House of Lords noted that “In some countries provision is made for judicial oversight of criminal investigations. That is, for better or worse, entirely contrary to British practice. Instead, the achievement of fairness in a trial on indictment rests above all on the correct and conscientious performance of their roles by judge, prosecuting counsel, defending counsel and jury”. COMPLAINTS Referring to Rowe and Davis v.   the United Kingdom ([GC], no.   28901/95, ECHR 2000 ‑ II) and Edwards and Lewis v.   the United Kingdom (nos.   39647/98 and 40461/98, 22   July 2003; confirmed by the Grand Chamber on 27 October 2004), the applicant complained that the failure to order disclosure (primary or secondary) of the audio transcripts and observations not relied on by the Crown was in violation of Article 6 §   1 of the Convention. He contended that Article 6 requires the trial judge to monitor and control the conduct of the prosecution and the material in its possession. As regards the material which was not disclosed in the case against the co-conspirator, the applicant stated that he could not properly argue his case without knowledge of that material, and he asked the Court to obtain transcripts. THE LAW The applicant alleged a violation of Article 6 § 1 of the Convention by reason of two failures to disclose evidence. The first failure was that of the prosecution and the domestic courts which dealt with his case to disclose, or to require disclosure of, material obtained by the prosecution in the course of their investigations and subsequently not used as part of the prosecution case. The second failure was the failure of the Court of Appeal to disclose to the applicant material which had led to the abandonment of a prosecution against one of the persons referred to in the case against the applicant. Article 6 of the Convention reads, so far as relevant, as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... 3.     Everyone charged with a criminal offence has the following minimum rights:... (b)     to have adequate time and facilities for the preparation of his defence; ... (d)     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...” The Court recalls that it is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6 § 1 requires that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused (see Edwards and Lewis v.   the United Kingdom , nos.   39647/98 and 40461/98, § 52, 22   July 2003, with further references to Jasper v.   the United Kingdom [GC], no.   27052/95, § 51, 16   February 2000, and the Grand Chamber's judgment of 27 October 2004 in the Edwards and Lewis case). As the Court noted in Edwards and Lewis , the entitlement to disclosure of relevant evidence is not, however, an absolute right, and certain strictly necessary measures which restrict the rights of the defence may be compatible with Article 6 (§ 53 of the Chamber judgment). Where evidence has been withheld from the defence on public interest grounds, it is not the role of the Court to decide whether such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. In any event, in many cases, where the evidence in question has never been revealed, it would not be possible for the Court to weigh the public interest in non-disclosure against that of the accused in having sight of the material. The Court must therefore scrutinise the decision-making procedure in such cases to ensure that, so far as possible, the procedure complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (§   54 of the Chamber judgment). The Court will deal with the failures alleged by the applicant in turn. (a) The failure to disclose material in the criminal proceedings against the applicant was different from that in cases such as Jasper , Fitt ( Fitt v.   the United Kingdom [GC], no.   29777/96, ECHR 2000 ‑ II), Rowe and Davis and Edwards and Lewis because in each of those cases it was accepted that the withheld evidence – which formed no part of the prosecution case against the accused – could be relevant to the defence case. The question was then whether the non-disclosure to the defence of the unused evidence was compatible with Article 6 of the Convention. In the present case, the discussion turns not on the non-disclosure of relevant (but unused) material, but on the non-disclosure of unused material which – according to the prosecution – was not at all relevant to the defence. It is in this context that the Court is required to look at the procedural safeguards available to a defendant. The Court notes that the aim of the relevant provisions of the CPIA was to clarify the extent and nature of judicial involvement in the disclosure process. The structures created put the main responsibility for disclosure on the parties. It is thus for the prosecution in the first place to reveal to the defence not only the evidence which they do intend to use, but also all evidence which may undermine the prosecution case. Then, after the defence have provided a defence statement, the prosecution is required to review the evidence again, in the light of the defence statement, and provide material which might reasonably be expected to assist the defence case. The second round of disclosure (“secondary disclosure”) requires more disclosure by the prosecution in respect of the generally narrower scope of the case after service of the defence statement. If the defence consider that certain undisclosed prosecution material might be reasonably expected to help the defence case, it is then (and only then) that an application may be made to the court under Section 8 of the CPIA for an order for the prosecutor to disclose it. In the Section 8 application in the present case, the judges involved, including the Court of Appeal, all found that the defence had not shown “reasonable cause” to believe that relevant matters might be included in the non-disclosed items. The Court of Appeal replied to the applicant's claim that the records would put the incriminating evidence in context by pointing out that “context material” had been provided with each incriminating transcript, and that no amount of innocent matter could help the defence case. The Court further notes that to the extent that the applicant was himself involved in conversations which had been recorded, it was open to him to bring evidence about them, if he considered that they assisted his case. Finally, the Court finds that the applicant has not made any submissions to it which could cast doubt on the validity either of the prosecution's conclusion that the unused material in question was not relevant, or of the domestic courts' acceptance of that conclusion. (b) As to the applicant's contention that the prosecution should have been required to disclose material from a prosecution against a third party (who was named as a co-conspirator in the indictment of the applicant, but was tried separately), the Court notes that in making this contention, the applicant is claiming that evidence from the determination of a “criminal charge” against a third person can be relevant to the determination of a “criminal charge” against him. Assuming this to be the case, as the matters were not revealed, the Court must look at the procedural safeguards available to the applicant. The Court notes that the Court of Appeal, when this point was raised, asked counsel for the prosecution what had been the position in the other proceedings, with a view to ascertaining whether the material ordered to be disclosed in that case could be of any relevance to the applicant's case. The Court of Appeal also obtained the transcripts of the relevant public interest immunity hearings in the other proceedings. In the light of the material before it, the Court of Appeal was satisfied that none of the matters which led to the collapse of the prosecution in the other case “in any way overflowed into or tainted the conduct of the police investigation in this case”. The Court considers that that review by the Court of Appeal represented an adequate procedural safeguard in the circumstances of this case. It follows that the application is manifestly ill-founded, within the meaning of Article § 3, and that it must be rejected, pursuant to Article 35 §   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Michael O'Boyle   Josep Casadevall   Registrar   President