However, the critical question for the jury was whether they were sure that from then on the appellant encouraged or allowed or, most pertinently, failed to take reasonable steps to prevent drug use at the premises. As the Lord Chief Justice said in the appellant’s first appeal:
‘... once the jury had decided that both appellants were involved in the management or control of the club ..., the issue was the extent to which each of them knew of drug supplying and what, if anything, each did or did not do, about it.’
Upon this question [G.G.] could of course give no direct evidence whatever.”
The court summarised the evidence led by the prosecution concerning the period covered by the indictment. It noted that on none of this did G.G.’s evidence or the evidence relating to G.G. that was before the jury have any material impact. It referred to the applicant’s argument that with the disclosed material the whole balance of the case changed, since he would have been in a much stronger position to undermine the prosecution case and advance his own, and continued:
“34. ... The judge clearly paid attention to what [G.G.] said ..., and of course the CCRC took the view ... that he was ‘the most important prosecution witness against the appellant’.
We consider, however, that [G.G.’s] evidence was by no means at the heart of the case. The CCRC concluded ... that a trial jury ‘which believed [G.G’s] account of the appellant’s attitude towards drug dealing inside the Dance Academy would inevitably proceed to the conclusion that he had permitted or suffered the supply of drugs on those premises’. But [G.G.’s] evidence relates to a period 15 months or more before the indictment period. No amount of cross-examination of [G.G.] to expose him as a drug dealer, whatever his answers, was capable of offering any refutation of the objective evidence of the test purchase officers and other evidence of what was happening, so to speak, on the ground in the club at the time.
We note, moreover, that the lie about the Royal Marines, for what it is worth, was told not to trumpet good character but rather to boast about [G.G.’s] physical presence. It is of no little interest that at the appellant’s first appeal Lord Judge CJ observed ..., amongst other things, that it had been the appellant’s own case that the testimony of the test purchase officers was the ‘sole or decisive’ evidence against him.”
The court concluded:
“37. ... The real issue here was what the appellant did or did not do after the warnings given to him at the beginning of the indictment period. As regards that, the evidence of open and blatant supplies of ecstasy at the club, effectively under the noses of the staff, seems to us entirely compelling. We are wholly unpersuaded by the submission urged upon us yesterday that the [undercover officers’] evidence did not plainly implicate the appellant. His absence over periods of time when drugs were being openly and blatantly supplied has to be viewed against what the Crown was required to prove, namely that the appellant failed to take reasonable steps to prevent drug use at the premises. He knew full well that drugs were being frequently supplied on the premises, to put it at its lowest.”
The appeal against sentence was successful on the basis that new sentencing guidelines had entered into force since the applicant’s first appeal and ought to be taken into account. The sentence was reduced to seven and a half years. The court explicitly stated that the fresh evidence in respect of G.G. played no part in the reduction of sentence.
Advice on appeal to the Supreme Court
The applicant was informed by senior counsel that the appeal turned on disclosure and the determination that the conviction was safe was a factual determination. No matter of law of general public importance, amenable to certification for a further appeal to the Supreme Court, arose. Counsel therefore concluded that no further avenue of appeal existed.
B. Relevant domestic law and practice
Referral to the Court of Appeal by the CCRC
Where a person has been convicted on indictment, section 9(1) of the Criminal Appeal Act 1995 gives the CCRC the power to refer at any time the conviction to the Court of Appeal. By section 9(2), any such reference is to be treated for all purposes as an appeal by the person concerned against conviction. Section 13 sets the conditions for making references. It provides:
“(1) A reference of a conviction, verdict, finding or sentence shall not be made ... unless-
(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,
(b) the Commission so consider-
(i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or
(ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and
(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.”
Section 17 of the Act provides:
“(1) This section applies where the Commission believe that a person serving in a public body has possession or control of a document or other material which may assist the Commission in the exercise of any of their functions.
(2) Where it is reasonable to do so, the Commission may require the person who is the appropriate person in relation to the public body-
(a) to produce the document or other material to the Commission or to give the Commission access to it, and
(b) to allow the Commission to take away the document or other material or to make and take away a copy of it in such form as they think appropriate,
and may direct that person that the document or other material must not be destroyed, damaged or altered before the direction is withdrawn by the Commission.
(3) The documents and other material covered by this section include, in particular, any document or other material obtained or created during any investigation or proceedings relating to-
(a) the case in relation to which the Commission’s function is being or may be exercised, or
(b) any other case which may be in any way connected with that case (whether or not any function of the Commission could be exercised in relation to that other case).
(4) The duty to comply with a requirement under this section is not affected by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by or by virtue of an enactment) which would otherwise prevent the production of the document or other material to the Commission or the giving of access to it to the Commission.”
Duty to disclose
Under the Criminal Procedure and Investigations Act (“CIPA”) 1996, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor’s view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused’s defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court.
Special Counsel
Following the judgments of this Court in Chahal v. the United Kingdom , 15 November 1996, Reports of Judgments and Decisions 1996 - V, and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom , 10 July 1998, Reports 1998 - IV, the United Kingdom introduced legislation making provision for the appointment of a special counsel in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his legal representatives, the Attorney - General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. The relevant rules giving effect to the 1997 and 1998 Acts are set out in the Court’s judgment in Jasper v. the United Kingdom ([GC], no. 27052/95 , § 36, 16 February 2000).
In R. v. H. ; R. v. C. [2004] UKHL 3 , decided on 5 February 2004, the Judicial Committee of the House of Lords held, inter alia :
“The years since the ... enactment of the CIPA have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who cannot (either personally or through his legal representative), for security reasons, be fully informed of all the material relied on against him. The procedure is to appoint a person, usually called a ‘special advocate’, who may not disclose to the subject of the proceedings the secret material disclosed to him, and is not in the ordinary sense professionally responsible to that party but who, subject to those constraints, is charged to represent that party’s interests ...
There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII matters, a defendant in an ordinary criminal trial ... But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant’s right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. ...”
COMPLAINT
The applicant complains under Article 6 § 3 (d) that he was denied a fair trial because material which might have undermined the prosecution or assisted his defence, identified by the CCRC in its report, was not disclosed to him. He complains in particular that:
(i) although the Court of Appeal considered the PII material on an ex parte basis, it had not been seen by the trial judge; and
(ii) special counsel should have been appointed to represent his interests during the PII hearing.
QUESTIONS TO THE PARTIES
Factual information sought
The Government are requested to provide copies of the following documents:
(a) The CCRC report;
(b) The open transcript of the judgment of the Court of Appeal in 2012 in respect of the ex parte PII application and/or any available summary of the decision and court orders;
(c) Any judgments/summaries in respect of any PII applications or hearings which took place during the applicant’s original trial and appeal proceedings in 2008.
The Government are requested to confirm which parts of Annex C and any other confidential information to which the CCRC referred were disclosed, and the dates of such disclosure.
The parties are requested to confirm the dates and details of all disclosure which took place following the publication of the CCRC report.
Legal questions
Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular:
(a) did he advance before the Court of Appeal in 2012, at least in substance, the argument under Article 6 of the Convention which he now seeks to make; and
(b) did Article 35 § 1 require him to seek certification of a question of law of general public importance?
Has there been a violation of Article 6 §§ 1 and 3 (d) of the Convention in the applicant’s case?