European Court of Human Rights - case of Dowsett v. the United Kingdom (2003) (excerpts)

European Court of Human Rights - case of Dowsett v. the United Kingdom (2003) (excerpts)

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42.  However, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or to keep secret police methods of investigating crime, which must be weighed against the rights of the accused (see, for example, Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 470, § 70). In some cases it may 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. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1 (see, for example, Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports 1997-III, p. 712, § 58). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see Doorson and Van Mechelen and Others, both cited above, p. 471, § 72, and p. 712, § 54 respectively).

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44.  The Court observes that this case has strong similarities to Rowe and Davis (cited above). As in that case, during the applicant’s trial at first instance the prosecution decided, without notifying the judge, to withhold certain relevant evidence on grounds, inter alia, of public interest immunity. Such a procedure, whereby the prosecution itself attempts to assess the importance of concealed information for the defence and weigh this against the public interest in keeping the information secret, cannot comply with the above-mentioned requirements of Article 6 § 1; nor is it in accordance with the principles recognised in English case-law from the Court of Appeal’s judgment in R. v. Ward onwards (see paragraphs 30 et seq. above).