Friday, June 08, 2007

Secret appeals

Public interest may require that some information not be disclosed by the prosecution even though it might be of use to the defence in preparation for trial. Obviously, this can give rise to questions about whether the trial was fair. Further questions may arise about where these issues of fairness should be determined – by the trial judge, or on appeal?

In Botmeh and Alami v United Kingdom [2007] ECHR 456 (7 June 2007) the Chamber had to determine whether the Court of Appeal of England and Wales had correctly decided that failure to disclose information to the defence had not resulted in an unfair trial. The point, it should be noted, was not whether the information should have been disclosed, as that was a matter for the national court; the European Court was concerned only with whether the proceedings had involved a breach of Article 6 of the Convention.

At trial, the accused Palestinians had been charged with conspiring to make and detonate explosives in London. Some information had been disclosed to the defence prior to the trial, to the effect that the bombs may have been planted by an Iranian organisation. It seems that little was made of this at trial, although one appellant, in giving evidence-in-chief, had referred, for the first time, to another Palestinian who had some involvement in what may have been relevant events. Other than that oblique point, no attempt was made by the defence to make use of the information they had been given concerning the possible involvement of any specific person or organisation. The trial judge had, however, mentioned to the jury that they had to consider the possibility that persons other than the accuseds were involved.

After the accuseds were convicted and sentenced, the prosecution discovered that it had failed to reveal to the judge that it had more information about the possible involvement of a Palestinian group. Significantly, however, this information was to the effect that such involvement was discounted by the security services. The appeal to the Court of Appeal was on the grounds that the defence might have been assisted by knowing why that involvement had been discounted, because if the reasons were bad then that involvement might have been a live issue.

The Court of Appeal was therefore faced having to decide how to deal with the public interest immunity (PII) question: should it hear the matter (remitting it to the trial judge was difficult, as a long time had passed since the conclusion of the trial), and, if so, how should it proceed? Defence counsel were invited to see the confidential material if they would undertake to the court that they would not disclose it to the appellants. They took advice on this point, and concluded that they could not give such an undertaking. Instead of appointing a special advocate to see the material and make submissions on it independently of the appellants’ counsel, the Court of Appeal decided to examine the material and to hear ex parte submissions from the Crown. Then, the Court released a summary of the confidential material to defence counsel, and (para 43)

“ … The applicants were given a full opportunity to make submissions on the material which had been disclosed in summary form and on its significance to the issues raised by the case. On the basis of the submissions made, the Court of Appeal concluded that no injustice had been done to the applicants by not having access to the undisclosed matter at trial, since the matter added nothing of significance to what was disclosed at trial and since no attempt had been made by the defence at trial to exploit, by adducing it in any form before the jury, the similar material which had been disclosed at trial.”

The Chamber held that, in this case, the procedure adopted by the Court of Appeal had been correct, and that this remedied the failure to place the material before the trial judge.

In cases where, as here, the defence is that it was someone else who committed the offence, all the accused is expected to do is raise a reasonable doubt that that, indeed, might be so. Where the accused says he does not know who the offender was, it may be difficult for him to point to someone else as the likely suspect. Where the authorities have suspected someone else, but they later decide that, no, that other person was not involved, the accused could at least get from that a pointer about to whom to look for a reasonable doubt. An investigator might look into it for the defence, and find reason to suspect the other person. Here, however, the role of investigating this lead was undertaken by the security services, and they concluded that it was an unwarranted suspicion.

Are the security services an adequate substitute for an investigator selected by the defence? In the circumstances of this case, it was probably safe to assume that the security services would have no reason not to pursue anyone whom it considered there were good grounds to suspect. Once the security services could be trusted with this impartiality, the only issue would be their thoroughness in checking the reliability of their sources of information. That is a matter the Court could assess, without the need for full disclosure of the confidential information to the defence. The security services’ conclusion that someone else was not a likely suspect was something that the defence would be unlikely to be able to challenge. A reasonable doubt must, after all, be grounded in reality, and not be merely fanciful.

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