Rowe & Davis v UK

[Donald Ramsbottom]

>From todays Times Law report.

Not on crypto per se but deals with European courts attitudes to ECHR fair
trials etc, which is relevant within the context of the current debate on
RIP etc. If you are not interested in  wider law ignore as it is quite long.



>Rowe and Davis v United Kingdom=20
>
>  (Application No 28901/95)=20
>
>  Jasper v United Kingdom=20
>
>  (Application No 27052/95)=20
>
>  Fitt v United Kingdom=20
>
>  (Application No 29777/96)=20
>
>  Before L. Wildhaber, President, and Judges E. Palm, L.
>  Ferrari Bravo, L. Caflisch, J.-P. Costa, W. Fuhrmann, K.
>  Jungwiert, M. Fischbach, B. Zupancic, N. Vajic, J.
>  Hedigan, W. Thomassen, M. Tsatsa-Nikolovska, T.
>  Pant=EEru, E. Levits, K. Traja and Sir John Laws, ad hoc
>  judge=20
>
>  Deputy Registrar: M. de Boer-Buquicchio=20
>
>  Judgment February 16, 2000=20
>
>  The prosecution's failure to lay evidence before a trial
>  judge so as to permit him to rule on the question of
>  disclosure deprived applicants of a fair trial.=20
>
>  The European Court of Human Rights in the case of
>  Rowe and Davis held unanimously that there had been a
>  violation of the right to a fair trial, as guaranteed by article
>  6 of the European Convention on Human Rights in the
>  prosecution's failure to lay public interest immunity
>  evidence before the trial judge. In the cases of Jasper and
>  Fitt, the Court found, by nine votes to eight, no violation
>  of article 6.=20
>
>  The cases concerned three applications brought by four
>  British nationals: Raphael Rowe and Michael Davis, born
>  in 1968 and 1966 respectively, Eric Jasper, born in 1933,
>  and Barry Fitt, born in 1933. Mr Rowe and Mr Davis
>  were at the time 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 had been remitted to the Court of
>  Appeal by the Criminal Cases Review Commission.=20
>
>  Mr Jasper was in Maidstone Prison for fraudulent evasion
>  of the prohibitions on importing cannabis in 1993, and Mr
>  Fitt was in Whitemoor Prison for conspiracy to rob and
>  possession of a firearm and a prohibited weapon in 1993.
>  They were both convicted in 1994.=20
>
>  During the criminal proceedings against all four applicants,
>  relevant evidence was withheld from the defence on the
>  ground of public interest immunity.=20
>
>  The applications were lodged with the European
>  Commission of Human Rights in 1995 and 1996. On
>  November 1, 1998, in accordance with article 5.4 of
>  Protocol No 11 to the Convention, the cases were
>  transmitted to the Court.=20
>
>  In three judgments, the European Court of Human Rights
>  held:=20
>
>  The applicants complained that non-disclosure by the
>  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 6.3(b) and (d) of the
>  Convention.=20
>
>  Case of Rowe and Davis=20
>
>  The Court recalled that the guarantees in article 6.3 were
>  specific aspects of the right to a fair trial set out in 6.1: see
>  Edwards v UK (The Times January 21, 1993; Series A
>  No 247-B, paragraph 33).=20
>
>  In the circumstances the court found it unnecessary to
>  examine the applicants' allegations separately from the
>  standpoint of paragraph 3(b) and (d), since they
>  amounted to a complaint that the applicants did not
>  receive a fair trial. It therefore confined its examination to
>  the question of whether the proceedings in their entirety
>  were fair.=20
>
>  It was a fundamental aspect of the right to a fair trial that
>  criminal proceedings, including the elements of such
>  proceedings which related to procedure, should be
>  adversarial and that there should be equality of arms
>  between the prosecution and defence.=20
>
>  The right to an adversarial trial meant, in a criminal case,
>  that both prosecution and defence had to be given the
>  opportunity to have knowledge of and comment on the
>  observations filed and the evidence adduced by the other
>  party: see Brandstetter v Austria (August 28, 1991;
>  Series A No 211, paragraphs 66, 67).=20
>
>  In addition article 6.1 required, as indeed did English law,
>  that the prosecution authorities should disclose to the
>  defence all material evidence in their possession for or
>  against the accused: see Edwards at paragraph 36).=20
>
>  However, as the applicants recognised, the entitlement to
>  disclosure of relevant evidence was not an absolute right.
>  In any criminal proceedings there might be competing
>  interests, such as national security or the need to protect
>  witnesses at risk of reprisals or keep secret police
>  methods of investigation of crime, which had to be
>  weighed against the rights of the accused: see, for
>  example, Doorson v The Netherlands (March 26, 1996,
>  Reports of Judgments and Decisions 1996-II, paragraph
>  70).=20
>
>  In some cases it might be necessary to withhold certain
>  evidence from the defence so as to preserve the
>  fundamental rights of another individual or to safeguard an
>  important public interest.=20
>
>  However, only such measures restricting the rights of the
>  defence which were strictly necessary were permissible
>  under article 6.1: see Van Mechelen and Others v The
>  Netherlands (April 23, 1997, Reports 1997-III,
>  paragraph 58).=20
>
>  Moreover, in order to ensure that the accused received a
>  fair trial, any difficulties caused to the defence by a
>  limitation on its rights had to be sufficiently
>  counterbalanced by the procedures followed by the
>  judicial authorities: see Doorson (paragraph 72) and Van
>  Mechelen and Others (paragraph 54).=20
>
>  In cases where evidence has been withheld from the
>  defence on public interest grounds, it was not the role of
>  the Strasbourg Court to decide whether or not such
>  non-disclosure was strictly necessary since, as a general
>  rule, it was for the national courts to assess the evidence:
>  see Edwards (paragraph 34).=20
>
>  Instead, the European Court's task was to ascertain
>  whether the decision-making procedure applied in each
>  case complied, as far as possible, with the requirements of
>  adversarial proceedings and equality of arms and
>  incorporated adequate safeguards to protect the interests
>  of the accused.=20
>
>  During the applicants' trial at first instance, the prosecution
>  decided, without notifying the judge, to withhold certain
>  relevant evidence on the ground of public interest.=20
>
>  Such a procedure, whereby the prosecution itself
>  attempted to assess the importance of concealed
>  information to the defence and weigh that against the
>  public interest in keeping the information secret, could not
>  comply with the requirements of article 6.1.=20
>
>  Indeed that principle was recognised by English case law
>  from R v Ward ([1993] 1 WLR 619) onwards.=20
>
>  It was true that at the commencement of the applicants'
>  appeal prosecution counsel notified the defence that
>  certain information had been withheld, without however
>  revealing the nature of that material, and that on two
>  separate occasions the Court of Appeal reviewed the
>  undisclosed evidence and, in ex parte hearings with the
>  benefit of submissions from the Crown but in the absence
>  of the defence, decided in favour of non-disclosure.=20
>
>  However, the Court did not consider that that procedure
>  on appeal was sufficient to remedy the unfairness caused
>  at the trial by the absence of any scrutiny of the withheld
>  information by the trial judge.=20
>
>  Unlike the latter, who saw the witnesses give their
>  testimony and was fully versed in all the evidence and
>  issues in the case, the judges in the Court of Appeal were
>  dependent for their understanding of the possible
>  relevance of the undisclosed material on transcripts of the
>  crown court hearings and on the account of the issues
>  given to them by prosecuting counsel.=20
>
>  In addition, the first instance judge would have been in a
>  position to monitor the need for disclosure throughout the
>  trial, assessing the importance of the undisclosed evidence
>  at a stage when new issues were emerging, when it might
>  have been possible through cross-examination seriously to
>  undermine the credibility of key witnesses and when the
>  defence case was still open to take a number of different
>  directions or emphases.=20
>
>  In contrast, the Court of Appeal was obliged to carry out
>  its appraisal ex post facto and might even, to a certain
>  extent, have unconsciously been influenced by the jury's
>  verdict of guilty into underestimating the significance of the
>  undisclosed evidence.=20
>
>  In conclusion, therefore, the prosecution's failure to lay the
>  evidence in question before the trial judge and to permit
>  him to rule on the question of disclosure deprived the
>  applicants of a fair trial.=20
>
>  The facts of the present case set it apart from those of
>  Edwards, where the appeal proceedings were adequate
>  to remedy the defects at first instance since by that stage
>  the defence had received most of the missing information
>  and the Court of Appeal was able to consider the impact
>  of the new material on the safety of the conviction in the
>  light of detailed and informed argument from the defence.=20
>
>  The Court therefore found,unanimously, that article 6.1 of
>  the Convention had been violated.=20
>
>  As to just satisfaction under article 41, the Court made an
>  award of =A325,000 for costs, less FFr15,233.40 already
>  paid by way of legal aid, and dismissed the remainder of
>  the applicants' claims.=20
>
>  Cases of Jasper and Fitt=20
>
>  By the time the events relevant to Jasper and Fitt took
>  place, the law had changed. Under the new regime, the
>  prosecution was required to make an application to the
>  trial judge for authority not to disclose the evidence in
>  question.=20
>
>  The amount of information given to the defendant
>  depended on the category of information involved.=20
>
>  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.=20
>
>  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.=20
>
>  In each case the defence had been able to outline the
>  defence case to the judge.=20
>
>  In those 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.=20
>
>  The fact that the trial judge had kept the need for
>  disclosure under assessment throughout the trial added a
>  further safeguard.=20
>
>  The Court found no violation of article 6.1 in those cases
>  by nine votes to eight: Judges Palm, Fischbach, Vajic,
>  Thomassen, Tsatsa-Nikolovska, Traja, Zupancic and
>  Hedigan dissenting.=20


Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors

Internet Law & Global Cryptology Law Specialists