The Strasbourg jurisprudence
23. The problem of reconciling an individual defendant's right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime is inevitably difficult to resolve in a liberal society governed by the rule of law. It is not surprising that complaints of violation have been made against member states including the United Kingdom, some of which have exposed flaws in or malfunctioning of our domestic procedures. The European Court has however long accepted that some operations must be conducted secretly if they are to be conducted effectively: Klass v Federal Republic of Germany (1978) 2 EHRR 214, 232, paragraph 48.
24. In Edwards v United Kingdom (1992) 15 EHRR 417 there was a prosecution failure to disclose relevant information, but no PII issue had been raised. The omission was held to have been rectified by the appeal process. The applicant in Bendenoun v France (1994) 18 EHRR 54 similarly complained of non-disclosure by the prosecution: his application failed because (paragraph 52) the undisclosed material had not been relied on by the prosecution and he had given no sufficiently specific reasons for requesting the material in question.
25. Chahal v United Kingdom (1996) 23 EHRR 413 arose from protracted immigration proceedings and did not involve a complaint under article 6. But the case has proved very influential, since in it the Court held (paragraph 144) that the expedient of appointing security-cleared counsel, instructed by the court, who would cross-examine the witnesses and generally assist the court to test the strength of the State's case, served to illustrate (paragraph 131)
In Tinnelly & Sons Ltd and McElduff v United Kingdom (1998) 27 EHRR 249 the Court again recognised (paragraphs 52, 78) that the appointment of a special advocate in a discrimination case raising security issues in Northern Ireland might
Both Chahal and Tinnelly arose in fields where provision for the appointment of a special advocate has now been made by statute (see paragraph 21 above).
26. The appellants placed reliance on the decision of the Court in Van Mechelen v Netherlands (1997) 25 EHRR 647, in particular for two statements of principle. The first (paragraph 54) is that handicaps placed on the defence in criminal proceedings should be sufficiently counterbalanced by the procedures allowed by the judicial authorities. The second is in paragraph 58:
27. Rowe and Davis v United Kingdom (2000) 30 EHRR 1 arose from the proceedings in which an important ruling had been given by the Court of Appeal in England (paragraph 20 above). Having reviewed the facts of the case and the development of English practice, the Court found that the applicants' rights under article 6 had been violated. In doing so, the Court recognised it (paragraph 60) as a
This, as noted above (paragraph 15) had been the domestic law under the Attorney General's 1981 Guidelines, but had ceased to be so in 1996. The Court continued:
28. The Court's judgment in Jasper v United Kingdom (2000) 30 EHRR 441 was delivered on the same day and by the same judges as that in Rowe and Davis. Although by a bare majority, there was held to be no violation of article 6. The distinguishing feature of this case was that the defence had been informed that a PII application was to be made by the prosecution (although not of the category into which the material withheld had been said to fall) and had had the opportunity to make submissions and participate in the decision-making process so far as was possible without revealing to them the material which the prosecution sought to keep secret on public interest grounds: paragraphs 54-55. Appointment of a special advocate was not necessary in this case: paragraph 55. Judgment was also given by the same judges on the same date in Fitt v United Kingdom (2000) 30 EHRR 480, and again (by a bare majority) no violation was found, on grounds very similar to those in Jasper: paragraphs 47-48.
29. In PG and JH v United Kingdom (4 September 2001, unreported, appn no 44787/98) the prosecution had sought to withhold on public interest grounds certain information relating to the installation of a listening device. A police officer declined to answer questions put to him in cross-examination by defence counsel because his answers might reveal sensitive material. The judge then, with the consent of the defence, put questions to the officer in the absence of the defendants and their lawyers and concluded that the benefit of the answers to the defence was slight, if any, while the damage to the public interest if the answers were made public would be great. The judge refused to exclude the evidence derived from the device. It was unanimously held, partly on the same grounds as in Jasper and Fitt (paragraph 71), that the withholding of the officer's report and the procedure adopted to examine him had not violated article 6. The Court held (paragraph 71):
30. In both Atlan v United Kingdom (2001) 34 EHRR 833 and Dowsett v United Kingdom (24 June 2003, unreported, appn no 39482/98) unanimous findings of violation of article 6(1) were made. In the first of these cases (paragraphs 44-45) the prosecution had repeatedly denied the existence of undisclosed material and had failed to inform the judge of the true position, when it appeared that there had been undisclosed material directly bearing on the defence advanced at trial. In the second case it was held that the prosecution's failure to disclose material at the trial, although partly cured in the Court of Appeal (paragraph 46), had not been wholly cured (paragraphs 47-49).
31. Much argument was devoted before the House to the facts and the ratio of the decision of the Fourth Section of the Court in Edwards and Lewis v United Kingdom (22 July 2003, unreported, appn nos 39647/98 and 40461/98), on which the appellants placed very strong reliance. The House is mindful that that decision is to be reviewed by a Grand Chamber, and also that it is not hearing an appeal from the Fourth Section. It should not seek to usurp the function of the Court. But it must address the appellants' submissions on the effect of the decision and the interpretation put on it by the trial judge in this case.
32. The appellants contended that, taken at its narrowest, the principle established by Edwards and Lewis is that it is incompatible with article 6 for a judge to rule on a claim to PII in the absence of adversarial argument on behalf of the accused where the material which the prosecution is seeking to withhold is, or may be, relevant to a disputed issue of fact which the judge has to decide in order to rule on an application which will effectively determine the outcome of the proceedings. It was argued that the Edwards and Lewis principle applies wherever the defence rely on entrapment to stay the proceedings or exclude evidence, but does not apply to entrapment only and is not confined to determinative rulings. It was however acknowledged that there is no absolute rule which requires the appointment of special counsel in any particular kind of case.
33. These submissions, in our opinion, seek to place the trial judge in a straitjacket. The consistent practice of the Court, in this and other fields, has been to declare principles, and apply those principles on a case-by-case basis according to the particular facts of the case before it, but to avoid laying down rigid or inflexible rules. There is no doubt as to the principles to be applied - the more important have been identified in earlier paragraphs of this opinion - and there is no dissonance between the principles of domestic law and those recognised in the Convention jurisprudence. It is entirely contrary to the trend of Strasbourg decision-making to hold that in a certain class of case or when a certain kind of decision has to be made a prescribed procedure must always be followed. The overriding requirement is that the guiding principles should be respected and observed, in the infinitely diverse situations with which trial judges have to deal, in all of which the touchstone is to ascertain what justice requires in the circumstances of the particular case.
34. It would be unduly complacent to suggest that the guiding principles are now uniformly applied as they should be. R v Early  EWCA Crim 1904,  1 Cr App R 288 is disturbing evidence to the contrary, although the miscarriage in that case was promptly rectified on appeal. It is encouraging that, of the cases which have reached the Court and led to a finding of violation, there has been only one (Lewis) in which the first instance criminal trial (as opposed to any appeal) took place after the domestic disclosure régime was put on a statutory footing by the 1996 Act. Recent reports by various investigators have however highlighted the need for very great care in handling the whole process of disclosure.
35. If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties' respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court. Only in truly borderline cases should the prosecution seek a judicial ruling on the disclosability of material in its hands. If the material contains information which the prosecution would prefer that the defendant did not have, on forensic as opposed to public interest grounds, that will suggest that the material is disclosable. If the disclosure test is faithfully applied, the occasions on which a judge will be obliged to recuse himself because he has been privately shown material damning to the defendant will, as the Court of Appeal envisaged (paragraphs 31 and 33(v)), be very exceptional indeed.
36. When any issue of derogation from the golden rule of full disclosure comes before it, the court must address a series of questions:
(1) What is the material which the prosecution seek to withhold? This must be considered by the court in detail.
(2) Is the material such as may weaken the prosecution case or strengthen that of the defence? If No, disclosure should not be ordered. If Yes, full disclosure should (subject to (3), (4) and (5) below be ordered.
(3) Is there a real risk of serious prejudice to an important public interest (and, if so, what) if full disclosure of the material is ordered? If No, full disclosure should be ordered.
(4) If the answer to (2) and (3) is Yes, can the defendant's interest be protected without disclosure or disclosure be ordered to an extent or in a way which will give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence?
This question requires the court to consider, with specific reference to the material which the prosecution seek to withhold and the facts of the case and the defence as disclosed, whether the prosecution should formally admit what the defence seek to establish or whether disclosure short of full disclosure may be ordered. This may be done in appropriate cases by the preparation of summaries or extracts of evidence, or the provision of documents in an edited or anonymised form, provided the documents supplied are in each instance approved by the judge. In appropriate cases the appointment of special counsel may be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected (see paragraph 22 above). In cases of exceptional difficulty the court may require the appointment of special counsel to ensure a correct answer to questions (2) and (3) as well as (4).
(5) Do the measures proposed in answer to (4) represent the minimum derogation necessary to protect the public interest in question? If No, the court should order such greater disclosure as will represent the minimum derogation from the golden rule of full disclosure.
(6) If limited disclosure is ordered pursuant to (4) or (5), may the effect be to render the trial process, viewed as a whole, unfair to the defendant? If Yes, then fuller disclosure should be ordered even if this leads or may lead the prosecution to discontinue the proceedings so as to avoid having to make disclosure.
(7) If the answer to (6) when first given is No, does that remain the correct answer as the trial unfolds, evidence is adduced and the defence advanced?
It is important that the answer to (6) should not be treated as a final, once-and-for-all, answer but as a provisional answer which the court must keep under review.
37. Throughout his or her consideration of any disclosure issue the trial judge must bear constantly in mind the overriding principles referred to in this opinion. In applying them, the judge should involve the defence to the maximum extent possible without disclosing that which the general interest requires to be protected but taking full account of the specific defence which is relied on. There will be very few cases indeed in which some measure of disclosure to the defence will not be possible, even if this is confined to the fact that an ex parte application is to be made. If even that information is withheld and if the material to be withheld is of significant help to the defendant, there must be a very serious question whether the prosecution should proceed, since special counsel, even if appointed, cannot then receive any instructions from the defence at all.
38. In the present case the judge did not address the first of the questions listed in paragraph 36 above. The Court of Appeal was accordingly right to hold that his decision to seek the appointment of special counsel was premature. Whether he will ever reach that stage must depend on the answers to the succeeding questions, to be answered with particular reference to the material which the prosecution seek to withhold and the specific facts the defence seek to establish. The appeals must be dismissed.
39. The answers to the certified questions must be gathered from a reading of the whole of this judgment. Provided the existing procedures for dealing with claims for public interest immunity made on behalf of the prosecution in criminal proceedings are operated with scrupulous attention to the governing principles referred to and continuing regard to the proper interests of the defendant, there should be no violation of article 6 of the Convention.
40. There remain three matters on which submissions were made, and on which the House should express an opinion.
R v Smith (Joe)
41. Argument was directed to the correctness of the Court of Appeal decision in R v Smith (Joe)  1 WLR 1031. In that case the defendant was arrested on suspicion of burglary and a non-intimate sample was taken without his consent. The DNA profile obtained from the sample matched blood at the scene of the burglary, and this match was the bedrock of the prosecution case. At the outset of the trial prosecuting counsel applied to the judge ex parte to withhold disclosure of certain material. The defence were, it seems, notified of the making of the application but not of the category into which the material was said to fall. The judge ruled that the material should not be disclosed and the defence were so informed. The defence then submitted to the judge that the DNA evidence derived from the non-intimate sample should be excluded under section 78 of the Police and Criminal Evidence Act 1984 on the ground that the police had had no reasonable grounds for suspecting the defendant of committing the burglary, and had not therefore been entitled to arrest him or take the sample. There was no evidence before the jury to show that the police had had reasonable cause to suspect the defendant of the burglary but the judge, relying on information communicated to him by the prosecution during the PII hearing, ruled that the police had had reasonable grounds for suspicion and declined to exclude the DNA evidence. The defendant was convicted. On appeal it was argued on his behalf that the judge had not been entitled to rely on evidence communicated to him at the PII hearing and unknown to the defence, but this argument was rejected and the appeal was dismissed.
42. The report of the case does not of course disclose the effect of the sensitive material withheld pursuant to the PII application, nor is it clear that this was material which either weakened the prosecution or strengthened the defence. It is perhaps unlikely that it did. When the submission on reasonable cause was made, however, the appropriate course was to hold a voir dire. An appropriate police witness would then have testified that he had reasonably suspected the defendant of committing the burglary. When asked the grounds of his suspicion, it may be inferred that he would have declined to answer on PII grounds (assuming there were no grounds for his suspicion to which PII did not apply). The judge would then have had to consider how, fairly to the defendant, the problem could be handled. By analogy with the course adopted in PG and JH v United Kingdom, the judge could have ascertained the questions the defence wished to put to the witness, and himself put the questions to the witness in chambers. That would have enabled him to reach a conclusion whether the police had had reasonable grounds for suspicion or not. It may be that the judge could, by inviting submissions from prosecution and defence, have devised a better procedure. In any event, it was incumbent upon him to involve and inform the defence to the maximum extent possible and to ensure that disclosure was made to the extent that it could be made without unjustified damage to the public interest. As it was, the main plank of the defence was destroyed by evidence given to the judge privately which the defence never had the opportunity to meet in any way. Such a procedure does not meet the minimum standards required by the Convention, and the Court of Appeal erred in holding otherwise. Had it been referred (which it was not) to the Court of Appeal's judgment in civil proceedings in Lamothe v Commissioner of Police of the Metropolis (25 October 1999, unreported), it would perhaps have reached a different conclusion. R v Smith (Joe) should no longer be treated as good law.
Proceedings in magistrates' courts
43. The appellants raised the question whether special counsel should routinely be appointed on the rare occasions when PII applications fall to be made in magistrates' courts. In this context attention was drawn to two authorities: R v Stipendiary Magistrate for Norfolk, Ex p Taylor (1997) 161 JP 773, and R (Director of Public Prosecutions) v Acton Youth Court  EWHC Admin 402,  1 WLR 1828.
44. The first of these cases must now be read subject to two qualifications: first, that the test for disclosure is now that laid down in the 1996 Act and not the earlier test of relevance on which the judgment was based (see p 777G); and secondly that the test of apparent bias laid down in R v Gough  AC 646 has now been restated by the House in Porter v Magill  UKHL 67,  2 AC 357, 494, paragraphs 102-103. In the second case the relevant principles were correctly applied. If PII applications are confined, as they should be, to material which undermines the prosecution case or strengthens that of the defence, the bench will not be alerted to material damaging to the defendant. If it is, the principles which should govern the court's decision whether to recuse itself are the same as in the case of any other tribunal of fact, but the court's duty of continuing review ordinarily militates in favour of continuing the proceedings before the court which determines the PII application. If a case raises complex and contentious PII issues, and the court has discretion to send the case to the crown court for trial, the magistrates' court should carefully consider whether those issues are best resolved in the crown court. The occasions on which it will be appropriate to appoint special counsel in the magistrates' court will be even rarer than in the crown court.
The appointment of special counsel
45. The Director of Public Prosecutions, the head of the Crown Prosecution Service, is appointed by and subject to the superintendence of the Attorney General: Prosecution of Offences Act 1985, sections 1(1)(a), 2(1) and 3(1). It was doubtless these functions of the Attorney General which led the trial judge (in paragraph 29 of his judgment) and the Court of Appeal (paragraph 33(v)) to question the suitability of the Attorney General to be the officer responsible for the appointment of special counsel in cases where the necessity for such appointment arises.
46. In our opinion such doubt is misplaced. It is very well-established that when exercising a range of functions the Attorney General acts not as a minister of the Crown (although he is of course such) and not as the public officer with overall responsibility for the conduct of prosecutions, but as an independent, unpartisan guardian of the public interest in the administration of justice: see Halsbury's Laws of England, 4th ed (1995), vol 44(1), para 1344; Edwards, The Law Officers of the Crown, 1964, pp ix, 286, 301-302.) It is in that capacity alone that he approves the list of counsel judged suitable to act as special advocates or, now, special counsel, as when, at the invitation of a court, he appoints an amicus curiae. Counsel roundly acknowledged the complete integrity shown by successive holders of the office in exercising this role, and no plausible alternative procedure was suggested. It would perhaps allay any conceivable ground of doubt, however ill-founded, if the Attorney General were to seek external approval of his list of eligible advocates by an appropriate professional body or bodies, but such approval is not in current circumstances essential to the acceptability of the procedure.
ORDERS OF REFERENCE, ETC.
WEDNESDAY 26 NOVEMBER 2003
Appellate CommitteesTwo Appellate Committees were appointed pursuant to Standing Order.
Regina v. H (Appellant) (2003) (On Appeal from the Court of Appeal (Criminal Division))The appeal of H was presented and ordered to be prosecuted subject to the procedures applicable thereto.
Regina v. C (Appellant) (On Appeal from the Court of Appeal (Criminal Division))The appeal of C was presented and ordered to be prosecuted subject to the procedures applicable thereto.