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Cite as: [2003] EWCA Crim 2847, [2003] 1 WLR 3006

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Neutral Citation Number: [2003] EWCA Crim 2847
No: 200305303/B5-200305458/B5

IN THE COURT OF APPEAL
COURTS MARTIAL APPEAL COURT

Royal Courts of Justice
Strand
London, WC2
16th October 2003

B e f o r e :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE PENRY DAVEY
MR JUSTICE DAVID CLARKE

____________________

R E G I N A
-v-
INTERLOCUTORY APPLICATION UNDER SECTIONS 35 & 36
OF THE CRIMINAL PROCEDURE AND INVESTIGATGION ACT 1996
H & C

____________________

Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

MR L SMITH & MR J LENNON appeared on behalf of H
MR R HOWAT & MISS T TAGON appeared on behalf of C
MR D PERRY & MR S MORRIS appeared on behalf of the CROWN
(MR R MCCOUBREY FOR JUDGMENT)

____________________


HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. THE VICE PRESIDENT: There are before the Court interlocutory appeals, under section 35(1) of the Criminal Procedure and Investigations Act 1996. Six defendants, one of whom has pleaded guilty, are indicted for conspiracy to supply heroin with a street value of 1.8 million. The trial is fixed to start on 27th October 2003 and is expected to last six weeks. All the defendants, apart from one who has pleaded guilty, are on bail.
  2. On 11th and 12th September there was a preparatory hearing, under section 29(1) of the Act, to expedite the proceedings before the jury and to assist in the management of the trial. This led to the judge ruling, on 15th September, first, that a public interest immunity (PII) enquiry sought by the prosecution should not be conducted inter partes and in open court and, secondly, that a special independent counsel should be appointed to introduce an adversarial element to the PII hearing. The purpose of this was to avoid a possible violation of Article 6(1) of the European Convention on Human Rights, in the light of the judgment of the European Court of Human Rights in Edwards & Lewis v United Kingdom (applications number 39647/98 and 4O461/98, 22nd July 2003, BAILII: [2003] ECHR 381).
  3. One of the defendants, C, with leave of the judge, appeals against the first ruling. The Crown, with leave of the judge, appeals against the second. This is the first occasion that this Court has considered the effect of Edwards & Lewis, which has a potential impact on all those Crown Court cases in which the prosecution make a PII application. We know of another case since Edwards & Lewis in which the judge, after hearing a PII application, has recused himself from conducting a trial and ordered a stay of proceedings. There is an appeal in another similar case imminently pending in this Court. The judge expressed the hope that this Court could establish some ground rules as to the application of Edwards & Lewis. We shall endeavour to do so in the light of the submissions which we have heard.
  4. It is convenient, first, to set out, as shortly as possible, the statutory and common-law principles and the Attorney-General's guidelines as to disclosure and PII hearings which, it is largely common ground, provide the English domestic regime. We shall also refer to the different views expressed in two judicial reports, one of which was before the Strasbourg Court in Edwards & Lewis.
  5. In addition to disclosing the material on which it intends to rely at the trial, the prosecution must, by virtue of the Criminal Procedure and Investigations Act 1996, by section 3(1), make primary disclosure of other material which, in the prosecution's opinion, might undermine the case for the prosecution. The defence must, by s.5 subsections (5) and (6), provide a defence statement setting out, in general terms, the nature of the accused's defence and indicating the matters on which he takes issue with the prosecution and why. The prosecution then comes under a duty, under section 7, to make secondary disclosure of any previously undisclosed material which might reasonably be expected to assist the accused's defence as disclosed by the defence statement. The prosecution, under section 9(2), and the court, under section 15(3), are under a continuing duty to review questions of disclosure. The Act addresses PII in relation to primary and secondary disclosure (see sections 3(6), 7(5), 8(5) and 9 (8)) and also contemplates the discontinuance of the proceedings as a possible result of an order for disclosure (see section 14(2)(b) in relation to the Magistrates' Court and section 15(2)(b) in relation to the Crown Court).
  6. The prosecutor may apply to the Court for an order excusing him from the disclosure obligation on the basis of PII. The Court is then required to weigh the competing interests and decide whether or not material should be disclosed. Rules of Court made pursuant to section 19 of the Act set out the procedure for making such an application. Those are, in relation to the Crown Court, the Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997 SI 1997 698 and, in relation to Magistrates' Courts, The Magistrates' Court (Criminal Procedure and Investigation Act 1996) (Disclosure) Rules 1997, SI 1997 703. The rules are modelled on the procedure set out in Johnson, Davis & Rowe [1993] 1 WLR 613. Rule 3.4 of the Crown Court Rules expressly contemplates a judge hearing prosecution representations in the absence of a defendant and his lawyers.
  7. The principles of the common law as to whether disclosure is in the public interest are expressly retained by section 21(2) of the Act, namely the judge must rule on immunity having viewed the material for which PII is claimed and, in doing so, must perform a balancing exercise taking into account the public interest and the interests of the defendant. If the disputed material may prove the defendant's innocence or avoid a miscarriage of justice, then it must be disclosed, or the proceedings must be stayed or modified. The case law also makes it clear that the categories of PII are not closed and that sensitivity alone is not a valid reason for withholding information from the defence (see D v NSPCC 1978 AC 171 and R v Chief Constable of the West Midlands Police Force, ex parte Wiley (1995) 1 Cr App R 342). We should refer to two other authorities. In Turner (1995) 2 Cr App R 94, Lord Taylor CJ, at 97G said this:
  8. "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 ...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."
  9. In R v Joe Smith [2001] 1 WLR 1031, the Court of Appeal held that there is no principle in English law that a judge cannot use information obtained during a PII investigation to determine whether or not the police had reasonable suspicion that the defendant had committed the offence or had reasonable cause to arrest him. They held that there was no violation of the defendant's Article 6 rights. A question was certified for the House of Lords, the Appellate Committee of which, following oral argument, refused leave to appeal. It has been submitted before us, on behalf of the defendants, that this decision, which is of course binding on this Court, is incompatible with Edwards & Lewis.
  10. In November 2000 the Attorney-General issued new guidelines on the disclosure of information in criminal proceedings. Paragraphs 41 and 42 deal with "applications for nondisclosure in the public interest" and provide:
  11. "Before making an application to the court to withhold material which would otherwise fall to be disclosed, on the basis that to disclose would not be in the public interest, a prosecutor should aim to disclose as much of the material as he properly can (by giving the defence redacted or edited copies of summaries).
    Prior to or at the hearing, the court must be provided with full and accurate information. The prosecution advocate must examine all material which is the subject matter of the application and make any necessary enquiries of the prosecutor and/or investigator."
  12. It is important to set those guidelines in the context of prosecuting counsel's proper role.
  13. In that regard, in Randall v R [2002] 2 Cr App R 267, in giving the judgment of the Privy Council, Lord Bingham of Cornhill, at 273, said this:
  14. "The duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice [authorities are cited]. The prosecutor's role was very clearly described by Rand J in the Supreme Court of Canada in Boucher v R (1954) 110 Can CC 263 at 270:
    'The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the judicial proceedings."
  15. Finally, in regard to the common law, it is to be noted that in R v Botmeh & Alani [2002] 1 Cr App R 345, the Court of Appeal held that there was no breach of Article 6 if the Court of Appeal examined material ex parte, where that material had not been the subject of a PII application before the trial judge. It has not been suggested to us that that decision was wrong.
  16. Auld LJ's Review of the criminal courts of England and Wales was published in October 2001. In relation to PII it was noted, at page 477, paragraphs 193 and 194:
  17. "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."

    Auld LJ went on that the introduction of special independent counsel "would restore some adversarial testing of the issues presently absent in the determination of these often critical and finely balanced applications." Accordingly, Auld LJ recommended:

    "... 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."

    Rowe & Davis 2000 30 EHRR is referred to in the report but not Jasper v United Kingdom 2000 30 EHRR 441.

  18. More recently, in his Review of criminal investigations and prosecutions conducted by Her Majesty's Customs and Excise, Butterfield J, in 2003, considered the question of disclosure and PII. Starting at page 264 he said:
  19. "There was, perhaps surprisingly, very little concern expressed to the Review about the process itself by those who are involved in it, whether as prosecutors, defenders or judges. The perception generally is that judges fully understand the importance of the part they play and the trust reposed in them by the system. Practitioners see them as robust and fair in applying the appropriate test. A few to whom we spoke raised the possibility of the appointment of an independent counsel who could be given access to the material and in effect represent the interests of the defendant. There are, it seems to me, considerable practical and ethical difficulties in the way of such a proposal, and it received little support."
  20. In this domestic context, we turn, first, to Mr Howat's submissions in support of C's appeal against the judge's first ruling. He relied on Edwards & Lewis. It will be necessary later to analyse more closely the full significance of that decision but, for the moment, it is sufficient to rehearse the Court's conclusions as they appear in the judgment, first in paragraph 57:
  21. "... it appears that the undisclosed evidence related, or may have related, to an issue of fact decided by the trial judge. Each applicant complained that he had been entrapped into committing the offence by one or more uncover police officers or informers, and asked the trial judge to consider whether the prosecution evidence should be excluded for that reason ...
    Despite this, the applicants were denied access to the evidence. It was not, therefore, possible for the defence representatives to argue the case on entrapment in full before the judge. Moreover, in each case the judge, who subsequently rejected the defence submissions on entrapment, had already seen prosecution evidence which may have been relevant to the issue."

    The European Court did not know the nature of the undisclosed material in Lewis's case but the Court went on:

    "...in Mr Edward's case, the Government revealed before the European Court that the evidence produced to the trial judge and Court of Appeal in the ex parte hearings included material suggested that Mr Edwards had been involved in drug dealing prior to the events which led to his arrest and prosecution. During the course of the criminal proceedings the applicant and his [legal] representatives were not informed of the content of the undisclosed evidence and were thus denied the opportunity to counter this allegation, which might have been relevant to the judge's conclusion that applicant had not been charged with a 'state created crime... '"

    The Court went on to hold, in paragraph 59, that, in each case, there had been a violation of Article 6 rights because the procedure did not comply with the requirements to provide an adversarial proceedings and equality arms and incorporate adequate safeguards to protect the interests of the accused. However, the Court concluded, in paragraph 64, that a declaration to that effect was sufficient just satisfaction and expressly found that the violation of Article 6 did not, in those cases, entail that the applicants were wrongly convicted (see paragraph 63).

  22. Mr Howat submitted that, in the light of Edwards & Lewis, a PII hearing which relates to the authorisation of surveillance under the Registration of Investigatory Powers Act 2000 (RIPA) should be held in open court, in the presence of the defendant and his legal advisers. The judge is going to be asked to dismiss the case against C because of want of proper authorisation and to rule on the admissibility of evidence under section 78 of the Police and Criminal Evidence Act 1984. His determination of those issues is going to be affected by material seen by him in the PII hearing. Therefore, if the defence does not see that material and have the opportunity to challenge it, there will be inequality of arms. This problem would not, Mr Howat submitted, be cured by the appointment of a special independent counsel because this would not provide the defence with adequate safeguards.
  23. The trial judge described Mr Howat's submission as audacious. In our judgment, it is manifestly flawed for a number of reasons. First, in Edwards & Lewis, at paragraph 53, the European Court of Human Rights repeats and adopts the recognition, in Jasper v United Kingdom [2003] 30 EHRR 441 paragraph 52, that entitlement to disclosure is not absolute and national security and the need to protect witnesses against reprisals or keep secret police methods of investigation of crime can properly be weighed against the interests of the accused, provided that the measures restricting the rights of the defendant are strictly necessary. The same approach is reflected in PG and JH v United Kingdom applications No 4478/98, 25th September 2001, paragraph 68. We see no incompatibility between the Strasbourg jurisprudence and the Crown Court Rules which permit hearings in the absence of a defendant and his lawyers. Secondly, in addition to the rights of the defendant, there are also to be considered the rights of informants and their families and the public interest that the flow of information from informants is not severed by being passed on to those accused of crime (see the observations of Lord Taylor CJ in Turner already cited). Thirdly, an application to dismiss is decided on the face of the papers (see schedule 3 paragraph 2 of the Crime and Disorder Act 1998). These papers, by definition, do not contain information protected by PII. Fourthly, complaints about the legitimacy of the surveillance operation under RIPA can be made by way of submission before and/or after the judge studies the PII material. The judge will then be able to carry out the proper balancing exercise, knowing what to look for. Fifthly, it is difficult to conceive circumstances in which Edwards & Lewis would affect a section 78 application, in relation to the admissibility of evidence. Sixthly, in relation to special counsel appointed by the Attorney-General under the statutory procedures provided by the Special Immigrations Appeals Act 1997 and the Northern Ireland Act 1998, it has never been suggested, in Strasbourg, that such an appointment is inappropriate. The prescribed Organisation Appeal Commission (Procedure) Rules SI2001/443 made under the Terrorism Act 2000 schedule 3 paragraph 5(2) also provide for a law officer to appoint a special advocate to assist in representing a defendant's interests. Seventhly, trial judges daily make rulings excluding evidence and, thereafter, may be called upon to rule if there is a case for a defendant to answer before the jury. Such a ruling is based on the evidence which the jury has heard. It has never, to our knowledge, been suggested that judges are incapable of ruling fairly in such circumstances because they have heard inadmissible evidence. Finally, if Mr Howat's submission were to succeed, it would provide a windfall to professional criminals who, by raising such issues as entrapment, would remain untried for conduct which the public interest requires should be the subject of fair adjudication. Accordingly the judge was, in our view, clearly right to rule that the PII application before him should not be made inter partes in open court. C's appeal therefore fails.
  24. We turn to the submissions on the judge's second ruling. For the Crown, Mr Perry relied on Jasper v United Kingdom, where, by a majority of 9:8, the Court held that ex parte hearings to determine a prosecution claim to PII do not violate Article 6. In particular, in paragraph 52 (which we have already cited) the Court held that entitlement to disclosure is not an absolute right. It may be necessary to withhold material from the defence to preserve or safeguard an important public interest. A trial judge, who satisfies the Article 6(1) requirements of independence and impartiality, is required to consider and monitor disclosure. But only such measures restricting the rights of the defence as are strictly necessary are permissible under Article 6(1). The European Court of Human Rights, as we pointed out earlier, took the same view in PG and JH v United Kingdom (paragraph 68) and Edwards & Lewis (paragraph 53). Mr Perry also referred to Atlan v United Kingdom [2002] 34 EHRR 833 (paragraph 40) which is to like effect.
  25. In Edwards & Lewis v United Kingdom the European Court of Human Rights, as we have already said, found a violation of Article 6, that that finding was sufficient just satisfaction and that the violation did not entail that the defendants were wrongly convicted. Mr Perry submitted that the Court in Edwards & Lewis did not depart from the principle in Jasper. On the contrary, at paragraph 53, as we have said, it repeated paragraph 52 in the Jasper judgment. But the Court in Edwards & Lewis distinguished Jasper on the basis that the material withheld from the defence in that case formed no part of the prosecution case and was never put before the jury. In the present case, however, it appears that the undisclosed evidence related, or may have related, to an issue of fact decided by the trial judge (see paragraph 57). The court referred to evidence produced to the trial judge and to the Court of Appeal on ex parte hearings to which the defence were denied access. This indicated that Edwards had been involved in drug dealing prior to the events leading to his arrest. This, the European Court of Human Rights said, might have been relevant to the judge's decision rejecting the defence submissions on entrapment. Mr Perry submitted that the Court's reasoning in Edwards & Lewis was that, whether the applicants had been victims of entrapment, so that proceedings should be stayed under section 78 of Police and Criminal Evidence Act, was an issue of fact decided by the trial judge when the applicants had not seen or been able to counter material seen by the judge which might have been relevant to the issues of fact.
  26. In consequence, there was no compliance with the requirements of adversarial proceeding and equality of arms. It is to be noted, as Mr Perry pointed out, that steps are being taken by the United Kingdom government to place the decision in Edwards & Lewis before the Grand Chamber. It is also to be noted that the decision has been subjected to extremely robust academic criticism by James Richardson, the editor of Archbold, in Criminal Law Week of 30th August 2003, in these terms:
  27. "The court's conclusion is as far reaching as it is remarkable. In separate and unrelated trials (one for drug dealing, one for pushing counterfeit currency) the two judges, fully conversant with the fact that the defence wished at least to canvass the possibility of entrapment, reviewed the material said to attract public interest immunity, applied the correct domestic law principles and ruled that there was nothing in any of the material that could assist the defence on this issue. In the drug case, the defendant was convicted by the jury, and on appeal the Court of Appeal reviewed the material for themselves and came to the same conclusion ('each one of us reached the clearest possible conclusion that nothing in the documents withheld could possibly have assisted the defence...indeed quite the reverse'). In the counterfeiting case the defendant pleaded guilty and his counsel advised that there was no prospect of a successful appeal, pointing out that on the defendant's own version 'he had been motivated by money to enter the deal to sell counterfeit currency', and opining that 'had there been anything...which could have assisted the defendant in developing his case to exclude the evidence under section 78...I am confident the judge would have released it...' In the Stasbourg proceedings, nothing further was revealed in this case, but, unabashed, the court saw fit to conclude that the undisclosed material might have included material relevant to the entrapment issue, and that on this account the applicant had not had a fair trial. The pointlessness of the proceedings and the conclusion are underlined by the court's conclusion as to compensation. The court refused to award any as it conceded that its conclusion as to lack of a fair trial did not mean that the applicants were wrongly convicted, or that they had suffered loss or damage.
    How was it that the court concluded that there might have been material relevant to the issue of entrapment when the domestic courts had been unequivocal as to there being no such material? Enter Alice in Wonderland. The one part of the material of which the court was actually made aware related to the drugs trial, and consisted of evidence that the defendant had been dealing in drugs on an occasion prior to the occasion the subject of the charge. The trial judge (unsurprisingly) took the view that this was not material which would help to make out a case of entrapment; and the Court of Appeal obviously agreed. But not the European Court. This was material which the judge had seen and which may have influenced him against the defendant on the entrapment issue: but the defence had had no opportunity to deal with it. The premise seems to be that judges are incapable of making decisions on the material legitimately placed before them by the parties in open court. Whether or not there is any merit in such a view, this is a decision that is likely to have widespread ramifications, the most obvious of which is an impending upsurge in entrapment allegations."
  28. Furthermore, Mr Perry submitted the Court in Edwards & Lewis was influenced by Auld LJ's recommendation about special independent counsel, which, as we have indicated, finds no echo in Butterfield J's more recent report. The court was apparently also influenced by the availability of special counsel appointed by the Attorney-General in cases under the Special Immigration Appeals Commission Act 1997 and the Northern Ireland Act 1998. However, as Mr Perry pointed out, by Rule 7 of the Special Immigration Appeals Act Commission (Procedure) Rules 1998, SI1998/1881, the special advocate, who represents the interests of the appellant, by making submissions and cross-examining in proceedings from which he and his representatives are excluded, may not generally communicate with the appellant or his representatives and is, by statute, not responsible for the person whose interest he is appointed to represent: that is, the special counsel is obliged to keep any information confidential. Furthermore, Mr Perry said, as Butterfield J pointed out, ethical difficulties arise from the relationship between independent counsel, a defendant and his legal advisers.
  29. There are also very considerable practical difficulties which may or may not have been present Auld LJ's mind if independent counsel are appointed in a large number of cases, or for several different defendants in the same case. The continuing obligation of prosecution and judge to review disclosure during a trial highlights the difficulty, if independent counsel is expected to hold himself available for recall on review at any time. Disruption and delay of the trial process are likely.
  30. By reason of these matters Mr Perry submitted that the principle in Edwards & Lewis should be confined to those cases (of which the present is not one) where the trial judge makes an important determinative ruling based on or having taken into account undisclosed PII material. Furthermore, he submits that the Court in Edwards & Lewis gave insufficient weight to English domestic safeguards, namely the obligation on the prosecution to disclose all material relevant to a fair presentation of the case, in particular, any which undermines the prosecution or helps the defence, the ability of the defence to make submissions in most cases, constant review by prosecution and judge and review of the trial judge's decision by the Court of Appeal.
  31. As to the judge's ruling in the present case, Mr Perry submitted that the judge was wrong to conclude that Edwards & Lewis applies. He had not considered the material or heard prosecution submissions about it. He was not making a determinative ruling, taking PII material into account. Depending on the nature of the material when examined, the need for any such ruling might never arise. The Court of Appeal (Criminal Division) decision in Joe Smith is still good law and binding on this Court. In that case, as we have said, no breach of Article 6 was found where on a PII hearing the judge had learnt of undisclosed material, supporting the police's reasonable suspicion of the defendant, but there had been detailed submissions and full adversarial argument as to the legality of the defendant's arrest. That decision, submitted Mr Perry, accords with the decision of the Divisional Court in R v DPP Acton Youth Court [2001] 1 WLR 1828 that the same district judge (magistrate) who has heard PII applications should conduct the trial, because he is in a position to protect the interests of the defence. Similarly, submitted Mr Perry, where in PG and GH v United Kingdom covert listening devices had been used and the judge had questioned a detective inspector in the absence of the defendant and his lawyers, the European Court of Human Rights held that there was no violation of Article 6. That decision was not doubted in Edwards & Lewis. The crucial question, submitted Mr Perry, is whether there was sufficient participation on behalf of the defence to protect the defendant's interests. Accordingly, in the present case, the judge was premature and wrong to seek the appointment of special independent counsel when he did. As to who should appoint special independent counsel in those exceptional cases where it is appropriate, the Attorney-General, Mr Perry submitted, is the person to appoint, the costs being borne by the Treasury, either through the Treasury Solicitor or in some other way. He relied on Lord Diplock in Attorney-General v Times Newspapers [1974] AC 273 at 311 referring to the Attorney-General:
  32. "He is the appropriate public officer to represent the public interest in the administration of justice. In doing so he acts in constitutional theory on behalf of the Crown, as do Her Majesty's judges themselves; but he acts on behalf of the Crown as 'the fountain of justice' and not in the exercise of its executive functions. It is in a similar capacity that he is available to assist the court as an amicus curiae and is a nominal party to relator actions."
  33. For the appellant, H, Mr Smith, in submissions no doubt adopted by the other defendants who are to be tried, submitted that the judge was right to conclude that Edwards & Lewis applied and that an independent counsel should be appointed. The sensitive material which he was to consider might, as in Edwards & Lewis, have been relevant to pending applications to exclude evidence and/or an application to stay the indictment. H's defence involved an allegation that drugs had been planted by a named police officer, on whose evidence the prosecution relied, to show H dealt with the drugs. The defence will seek to exclude that officer's evidence, either under section 78 of Police and Criminal Evidence Act or because of alleged unlawfulness arising from noncompliance with RIPA relating to authorisation of covert surveillance.
  34. The prosecution has claimed immunity in relation to the whole of the RIPA authorisations. If the prosecution cannot show justification under Part II of the Act, the evidence will be excluded. But the absence of any opportunity for the defence to challenge and make submissions about material before the judge renders the trial unfair.
  35. Mr Smith relied on Auld LJ's recommendation. He submitted that PG and JH v United Kingdom and Joe Smith are inconsistent with Edwards & Lewis. Edwards & Lewis, he submitted, should not be read so widely as to apply to all applications made for the exclusion of evidence, nor so narrowly as to be limited to findings of fact which terminate proceedings, rather it should be construed as conferring a judicial discretion as to when the appointment of independent counsel is necessary. It should apply in the present case where the judge has to determine important questions of fact where allegations of planting evidence and unauthorised surveillance are to be made.
  36. In PII applications, without notice to the defence, he submitted that independent counsel can provide no useful adversarial role. He submitted that the Attorney-General, being closely concerned with the prosecution process, is not an appropriate person to appoint independent counsel to protect defence interests. In the light of these contentions, we express our conclusions.
  37. It is a truism that both the English Common Law and Article 6 require a criminal trial to be fair. No one doubts that, since the coming into force of the Human Rights Act, common law principles in this respect have been refined and improved by reference to Convention principles, particularly in relation to equality of arms. But perhaps the time has come to recognise that, in an imperfect world, it is not always possible to achieve perfect fairness. The fairness of a particular trial has to be judged in isolation. But trials do not take place in isolation. They have to compete with each other for time and other resources, judicial, legal and financial, none of which are limitless.
  38. The problems posed by PII applications are, as is recognised here and in Strasbourg, delicate in nature and extremely difficult to resolve. Ultimately, their fairness depends on the integrity and fairness of trial and appellate judges. No member of this Court needs persuasion that, unless proper disclosure is made by prosecution to defence, fairly supervised by the judge, unfairness and injustice can result. On the contrary, two of us have had recent, direct personal experience of cases where the prosecution has collapsed or a conviction has been quashed on appeal because of judicial intervention in relation to disclosure in general and PII applications in particular: (see, for example, Mullen [1999] 2 Cr App R 143 and Early & Ors [2003] 1 Cr App R 288).
  39. No doubt there are very exceptional cases in which, in the course of a PII application, a judge learns something unknown to the defence which, although not undermining the prosecution or helping the defence, is so prejudicial to the defendant that thereafter the judge could not be expected fairly to make a factual decision if called upon to do so. In such a case if the judge does not seek the appointment of special independent counsel, as this appeal envisages, so as to inject an adversarial element into the proceedings, he can be expected to recuse himself and, if he does not do so, any conviction is liable to be quashed on appeal. But we do not accept that a trial is necessarily unfair because a judge makes a decision or gives a ruling which might be affected because he had learnt of material unknown to the defence: (see Joe Smith).
  40. For the most part, subject to what we say in (v) below, we accept Mr Perry's submissions, in particular as to the scope of Edwards & Lewis and the state of English domestic law.
  41. It is not for this Court to question the correctness of the European Court of Human Rights decision in Edwards & Lewis and we do not seek to do so. But, bearing in mind that it is a decision which the Grand Chamber may reconsider, we think it right to make the following observations in relation to the present state of English domestic law.
  42. i) A divisional Court in which Lord Woolf CJ, presided in R (DPP) v Acton Youth Court, held that, ever since the coming into force of the Human Rights Act, the same district judge (magistrate) can and should, having heard PII applications, conduct the trial, because he is in a position to protect the interests of the defence (see paragraphs 32 and 35 of the judgment). In reaching that conclusion the Court was following a previous Divisional Court decision of Lord Bingham of Cornhill CJ and Buxton J in R v Stipendiary Magistrate for Norfolk ex parte Taylor 161 JP 773 (see paragraphs 23 to 27 of Lord Woolf's judgment in the Acton Youth Court case).

    ii) The decision of the Court of Appeal Criminal Division in Joe Smith is consistent with the Divisional Court's conclusions in the Acton Youth Court case. It is binding on this Court. If there is any inconsistency between Edwards & Lewis and Joe Smith, although, in accordance with section 2(1) of the Human Rights Act 1998 we must take Edwards & Lewis into account, we must follow Joe Smith unless and until it is overruled by the House of Lords.

    iii) There are serious ethical and practical difficulties, as identified by Mr Perry, in appointing a special independent counsel. The European Court of Human Rights in Edwards & Lewis was apparently influenced by the views expressed by Auld LJ in his Review. That Review is, if we may say so, a monumental work, the product of outstanding scholarship covering a very wide field. But his recommendation in relation to the appointment of special independent counsel in all cases where PII is claimed is no more and no less than the view of one highly distinguished judge in the Court of Appeal. It is not the result of adversarial process. It is not the law of England. We respectfully venture the view that, when the difficulties inherent in such appointments and the subsequent conclusions of Butterfield J are considered, it is unlikely to become the common law of England. We cannot, of course, predict the views of Parliament.

    iv) The safeguards provided in relation to PII hearings, namely the duty of prosecuting counsel not to obtain a conviction at all costs, but to act as a minister of justice, the obligation on the prosecution to disclose all material which may undermine the prosecution or support the defence, the obligation on judge and prosecuting counsel constantly to review material in relation to which PII is claimed, the availability of oral argument on behalf of the defence in most cases and the ability of the Court of Appeal to review a trial judge's decision, afford a raft of safeguards which, save in a few exceptional cases, in our view, adequately protects the interests of a defendant in accordance with his Article 6(1) rights, in those cases where national security or the need to protect witnesses or keep secret police methods of investigation of crime would be jeopardised by disclosure of material to the defence.

    v) In those few exceptional cases where material is so sensitive that the defence cannot be informed that a PII hearing is to take place, or in which a judge in a PII hearing learns of material which is so highly prejudicial to a defendant that he ought not to make a ruling depending in whole or in part on that material without the benefit of further adversarial comment upon it, a trial judge can and should invite the Attorney General to appoint special independent counsel from an approved Panel to take part in the proceedings in the way which we shall identify. Because the Attorney-General supervises prosecutions, this is by no means ideal. But it seems the only available route, pending legislation to provide a suitably-funded alternative permitting the appointment of counsel by the court itself, such as can occur, for example, for the cross-examination of rape complainants under section 38(4) and (5) of the Youth Justice and Criminal Evidence Act 1999 and Crown Court Rules 1982 rule 24C and under section 4A of the Criminal (Insanity) Act 1964. In these cases, fees and costs are provided for by the Costs in Criminal Cases (General) Regulations 1986, regulation 13A to 13C.

    vi) In order to carry out the balancing exercise between competing interests which English domestic law requires, it is necessary for a trial judge to consider the material in relation to which PII is claimed by the prosecution, to hear prosecution submissions in relation to it, to hear such submissions as the defence are able to make and to know the issues raised by the defence, whether in police interview, statement or defence or otherwise.

  43. In the light of these considerations it is, in our judgment, clear that the present interlocutory appeal by the Crown against the judge's second ruling must be allowed. Although we have every sympathy with the judge in the position in which he found himself, his request for the appointment of independent counsel was premature. He had not looked in detail at the material, nor considered it in the light of the issues in the case or submissions by the prosecution about it. Had that stage been reached, he might have concluded, for example, that disclosure must be made. He was obliged to take account of Edwards & Lewis. But he was not bound by it in the way in which he would be bound by a decision of this Court. In any event, there is nothing in Edwards & Lewis which required the appointment of independent counsel at that stage. Edwards & Lewis in no way denigrates from the principle enunciated in paragraph 52 of Jasper. As and when the judge comes to look at the material and hear submissions, it will be necessary for him to consider whether this is or is not one of those rare and exceptional cases which we have sought to identify in paragraph 32(v) above in which a special independent counsel should be appointed.
  44. For those rare cases in which there exists material of such sensitivity that the appointment of a special independent counsel may be necessary, we accept Mr Perry's proposals as to the desirable regime. The prosecutor should consider whether it is necessary to seek a ruling from the trial judge having regard to the disclosure regime under the 1996 Act and in the light of such submissions as have been made by defence counsel. The judge should consider whether the case falls within the principle in Jasper or within Edwards & Lewis. In a Jasper case, where the material is not relevant to any preliminary determinative ruling, such as an application to stay proceedings, the existing procedure should be followed. In an Edwards & Lewis case, where a determinative ruling on an issue of fact which has to be decided by the trial judge by reference to undisclosed material, the prosecutor should raise the matter with the trial judge and, if he is in any reasonable doubt, he should invite the appointment of an independent counsel. Where an independent counsel is appointed, the prosecutor should make submissions in support of the claim to withhold material on the grounds of PII. Independent counsel, in order to perform his role in the best interests of the defence, will need to know what issues are raised by the defence; and, if the defence has not already done so, it will be in the interest of the defence to disclose those issues to independent counsel. If this is not done, it is unlikely that it will be possible for the defence subsequently to complain of inadequacy in performance by independent counsel or unfairness in the procedures. Independent counsel should examine the material in question and should make submissions to the court on the question of disclosure. Having heard such submissions, the judge should hear any submissions which defence counsel may wish to make. Having heard submissions from prosecutor, independent counsel and defence counsel, the judge should then rule on the prosecutor's application. It is to be noted that independent counsel will be an advocate to the court whose duty is to the court, and he must keep confidential any information which cannot, by the judge's ruling, be disclosed to the defence. Judge and prosecutor are under a continuing duty to review disclosure throughout the trial. If and when any question of review arises, independent counsel should be invited to return to court so that the above procedures can again be followed. In those exceptional cases where the prosecution's application for PII is made ex parte without notice to the defence, the same procedures should be followed, save that there will be no participation in them by defence counsel. In such cases, of course, the defence will be unaware of the appointment of independent counsel at the instigation of the judge.
  45. In the Court of Appeal, similar procedures should be followed suitably adapted to the appellate process.
  46. For the reasons given earlier, C's appeal is dismissed. The Crown's appeal succeeds. This case will continue before the judge in accordance with the terms of this judgment.
  47. MR MCCOUBREY: I appear for the Crown, Mr Lennon appears on behalf of H and my learned friend, Miss Tagon, appears on behalf of C. I hope your Lordship has seen a draft of the question agreed between the parties, or two questions.
  48. THE VICE PRESIDENT: They are very wide. This is not fatal but they are very wide.
  49. MR MCCOUBREY: Deliberately so. Mr Perry was keen not to leave out any determination of the procedures. Any practical questions which may arise for that reason, they are deliberately broad.
  50. THE VICE PRESIDENT: Those are the questions. You are not seeking to appeal, are you?
  51. MR MCCOUBREY: Well, my Lord having won, no, save, that, with respect, it is appropriate that on behalf of the Crown Prosecution Service, I acknowledge that these are fundamental questions and the domestic reception of Edwards & Lewis is a matter of serious concern to a public interest immunity application in every Crown Court. For those reasons, I understand that various submissions will be made on behalf of C and H. The Crown Prosecution Service certainly does not....
  52. THE VICE PRESIDENT: What you are really telling us is that you are content with these questions because Mr Perry has drafted them.
  53. MR MCCOUBREY: My Lord, yes. My Lord, that is the question of certification I leave to my learned friends the question of leave to appeal. On the questions of reporting, may I take your Lordships to the passage in Archbold which deals with reporting of interlocutory appeals. It is page 357, at chapter 4 paragraph 84-K.
  54. THE VICE PRESIDENT: 84-K.
  55. MR MCCOUBREY: Down the right-hand side. Section 37. Subsection (1) of section 37 of the 1996 Act prohibits reporting. However, over the page, subsection (4): "the Court of Appeal may order that subsection (1) shall not apply or shall not apply to a specified extent to a report of the proceedings". We would seek an order pursuant to section 37(4) that these proceedings and this judgment may be reported so long as anonymity is guaranteed, there being an ongoing trial.
  56. THE VICE PRESIDENT: Yes. Well, deliberately, we have referred to the defendants by an initial. I suppose it might be necessary to delete from any report the identity of the Crown Court. But subject to that - and the judge. But subject to that I cannot see any problem about reporting, can you?
  57. MR MCCOUBREY: My Lord I am grateful.
  58. THE VICE PRESIDENT: We have to hear what the defendants say. Yes.
  59. MR MCCOUBREY: My Lord, subject to observations on leave to appeal, that is all I ask for.
  60. THE VICE PRESIDENT: Thank you. Yes Mr Lennon?
  61. MR LENNON: I am for H. My Lord, there is an application, as I am sure is anticipated, an application for permission to appeal to the House of Lords.
  62. THE VICE PRESIDENT: You agree the draft, the certified questions?
  63. MR LENNON: It was discussed last week and discussions have been ongoing. It has been drafted deliberately wide by Mr Perry for the appropriate reasons and we certainly entirely support it.
  64. THE VICE PRESIDENT: As you know this Court very rarely grants leave to appeal, although it does occasionally. I suppose it might be said that, on any view, this judge's ruling is premature and therefore it is really rather academic for consideration by the House of Lords. On the other hand, it is a matter which is of some urgent general importance.
  65. MR LENNON: It is, my Lord, the point of prematurity. That may be a significant consideration by your Lordship because of course there are two aspects to it. One is, the learned judge may be biased if he sees material, and the other is the adversarial input. That first part, of course, the learned judge may be biased simply by seeing material, really turns on the prematurity point. It really goes to the heart of the issue, in my respectful submission. The trial is due to start in eleven days' time. The practical difficulty that I have, and my leader has, is that should leave be refused today, we will have no choice but to make a petition to the House of Lords. We would be very lucky for the House of Lords to come back with an answer within 11 days.
  66. THE VICE PRESIDENT: Astonished.
  67. MR LENNON: If leave is granted by the House of Lords, then we are in a difficult situation because under the statute a jury shall not be sworn where leave has been given. There is no provision for the situation where leave has been granted after a jury is sworn. So there is that practical aspect to take into account as well. Also, this matter, as you know, is going to the Grand Chamber. I do not want to speak on Mr Perry's behalf, but you heard him say last week that the utterance of the highest Court in the land is going to have some sway when he goes back to Strasbourg and argues this matter before the Grand Chamber. In the short term the judgment that has been handed down will give certainty-
  68. THE VICE PRESIDENT: Delivered.
  69. MR LENNON: -to all the criminal trials throughout the jurisdiction which appear to have come to a grinding halt. In the middle term, in respect of Mr H, if permission is given today, then we would know that the trial will be adjourned until such time as the House of Lords considers the matter. My Lord, that is my respectful submission. Clearly it is a matter of the utmost public importance and it is something which, in my respectful submission, ought to be addressed by the House of Lords. The sooner as we have the question of leave sorted out the better.
  70. THE VICE PRESIDENT: What do you say about reporting? Is there any objection to reporting of this decision subject to deletion from the judgment delivered of the identity of the Crown Court and the judge?
  71. MR LENNON: The procedure discussed between you and my learned friend is I think the appropriate procedure. Initials are used, the name of the court-
  72. THE VICE PRESIDENT: We know what the procedure is. What I am asking you is whether you have objection to the order?
  73. MR LENNON: I do not have any objection.
  74. THE VICE PRESIDENT: Miss Tagon?
  75. MISS TAGON: On behalf of C there is certainly no objection to the course proposed with regard to reporting. We too will seek leave to appeal to the House of Lords. The question has been set in very broad terms. We are particularly interested in the procedure proposed by the Crown and about that indicated by this Court. My Lord, I will say and echo my learned friend's views that this is clearly a point of general public importance. Your Lord has raised in the judgment the fact that this has a bearing on all Crown Courts and it is a very live issue. Under those circumstances, I would ask for permission to appeal. My Lord, unless....
  76. THE VICE PRESIDENT: You are for C are you not, or is it the other way round.
  77. MISS TAGON: I am for C.
  78. THE VICE PRESIDENT: You are for C. Your position is rather more difficult - to put it no higher - than the position of H, is it not?
  79. MISS TAGON: In terms of the arguments that were canvassed regarding the inter partes aspect of a PII application, albeit that I do not want to tie my leader's hands or myself, I believe that we would focus an appeal more on the procedure aspect of the appointment of special counsel. We maintain that it is not appropriate for the Attorney-General to be the responsible officer for the appointment of special counsel. We do say that the procedure proposed - we take issue with the procedure proposed by the Crown. Those are aspects which we feel are important. Of course, the first consideration is the effect of Edwards & Lewis in the domestic courts. Then the second consideration is whether or not there is parity between SIAC and the Northern Ireland procedures and the procedures to be adopted in the criminal courts. One fundamental difference would be that in terms of SIAC and the Northern Ireland provisions, counsel must be security cleared. That consideration does not necessarily apply in the generality of criminal offences. Therefore, where it would be appropriate in those cases for the Attorney-General to be the responsible officer for the agreement, we say that there is a difference in criminal cases. So, certainly in terms of appeal, our focus would be more on the question of procedure, the correct procedure to be adopted for special counsel. We had input in the drafting of the question with Mr Perry on the last occasion, for that particular reason.
  80. THE VICE PRESIDENT: Thank you. Mr McCoubrey, what about leave to appeal, so far as these two defendants are concerned?
  81. MR MCCOUBREY: My Lord, we do not doubt for a moment that yet further guidance would be of assistance both to the Crown Prosecution Service and to others. That said, your Lordship's indication that the case of C was in a more difficult position. We note that our basic submission is that this may well be one of those exceptional cases which does merit your Lordships granting leave to the House of Lords.
  82. THE VICE PRESIDENT: Leave for both defendants to appeal?
  83. MR MCCOUBREY: My Lord, I would say without dodging the issue that really is a question for your Lordships.
  84. THE VICE PRESIDENT: I know it is. We are inviting your submissions. We try not to reach a conclusion without hearing what counsel has to say.
  85. MR MCCOUBREY: They may well be sensible in the circumstances. Really we say that to put it colloquially, following Edwards & Lewis the whole procedure is under the spotlight in criminal courts up and down the country and whether it be one defendant or both defendants represented, if the matter gets to their Lordships' House, it really would not make much difference, we submit.
  86. MR JUSTICE DAVID CLARKE: Were both not respondents to the Crown's appeal?
  87. MR MCCOUBREY: As I understand it both H and C were respondents to our appeal on question 2 and C cross appealed on question 1. Thank you.
  88. (The Bench Conferred)

  89. MISS TAGON: My Lord I apologise for rising to my feet again. I have just confirmed with my learned friend for H, my understanding was that Mr Smith on the last occasion in the generality accepted the procedure put forward by the Crown.
  90. THE VICE PRESIDENT: I do not think we are going to hear any more submissions, we have heard all the submission we are going to hear and we are about to give our decision. Thank you.
  91. We shall certify the two questions. We shall grant both defendants leave to appeal in relation to the judge's second ruling. We shall order under section 37(4) of the Criminal Procedure and Investigations Act 1996 that the judgment which has just been delivered may be reported provided there is deleted from any reporting of it material which identifies the Crown Court or the Crown Court judge involved.
  92. The following questions were certified:
    "Are the procedures for dealing with claims for public interest immunity made on behalf of the prosecution in criminal proceedings compliant with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms?
    If not, in what way are the procedures deficient and how might the deficiency be remedied?"


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