Facts: The cases concern three applications brought by four British nationals. Eric Jasper, who was born in 1933, Raphael Rowe and Michael Davis, who were born in 1968 and 1966 respectively, and Barry Fitt, who was born in 1933. Mr Rowe and Mr Davis are currently serving sentences for murder and other offences committed in 1988. They were convicted in February 1990 and their appeals were finally determined in 1993. Their case has now been remitted to the Court of Appeal by the Criminal Cases Review Commission. Mr Jasper is in Maidstone Prison for fraudulent evasion of the prohibitions on importing cannabis in 1993, and Mr Fitt is in Whitemoor Prison for conspiracy to rob and possession of a firearm and a prohibited weapon in 1993. They were both convicted in 1994. During the criminal proceedings against all four applicants, relevant evidence was withheld from the defence on the ground of public interest immunity.

The applicants complain that the non-disclosure by prosecution of relevant evidence on the ground of public interest immunity meant they were denied a fair trial in breach of Article 6 § 1 and 3 (b) and (d) of the European Convention on Human Rights.

Law:

The Court noted that, in accordance with the law as it stood at the time, it was in this case the prosecution, without the knowledge or approval of the judge, who decided that the evidence in question should not be disclosed. In the light of the requirements of Article 6 § 1 - that the prosecution should disclose to the defence all material evidence in their possession for or against the defence, and that difficulties caused to the defence must be sufficiently counterbalanced by the procedures followed by the judicial authorities - it found that such a procedure was not compatible with the right to a fair trial. The Court of Appeal, which had itself considered the material on two occasions, was not able to remedy the position as it had not seen the witnesses give their evidence, and it had to rely on transcripts of the Crown Court hearings and on the prosecution for its understanding of the relevance of the material.

Conclusion: Violation (unnaimous).

Article 41 - The Court made an award of £25,000 for costs, less FF 15,233.40 already paid by way of legal aid, and dismissed the remainder of the applicant’s claims for just satisfaction.

By the time the events relevant to these two applications took place, the law had changed. Under the new regime, the prosecution were required to make an application to the trial judge for authority not to disclose the evidence in question. The amount of information given to the defendant depended on the category of information involved.

The Court again noted the importance of disclosure of the prosecution case, and the need for any difficulties caused to the defence by limitations on defence rights to be sufficiently counterbalanced by the procedures followed by the judicial authorities. However, it then noted that in each case, the defence had been told that an application for non-disclosure had been made, and in the case of Fitt they were told of the category of information, and were also given an edited summary of the information. In each case the defence had been able to outline the defence case to the judge. In these circumstances, where the trial judge took the decision on whether it was permissible for the prosecution not to disclose material, and where the material was not put before the jury, the Court found that the defence had been kept informed so far as was possible without revealing the material which the prosecution sought to keep secret on public interest grounds. The fact that the trial judge had kept the need for disclosure under assessment throughout the trial added a further safeguard.

Conclusion: No violation (9 votes to 8).