European Court of Human Rights - case of Jasper v. the United Kingdom (2000) (excerpts)

 

European Court of Human Rights - case of Jasper v. the United Kingdom (2000) (excerpts)

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55.  The Court is satisfied that the defence were kept informed and permitted to make submissions and participate in the above decision-making process as far as was possible without revealing to them the material which the prosecution sought to keep secret on public interest grounds. Whilst it is true that in a number of different contexts the United Kingdom has introduced, or is introducing, a “special counsel” (see paragraphs 35 and 36 above), the Court does not accept that such a procedure was necessary in the present case. The Court notes, in particular, that the material which was not disclosed in the present case formed no part of the prosecution case whatever, and was never put to the jury. This position must be contrasted with the circumstances addressed by the 1997 Act and the 1998 Act, where impugned decisions were based on material in the hands of the executive, material which was not seen by the supervising courts at all.

56.  The fact that the need for disclosure was at all times under assessment by the trial judge provided a further, important, safeguard in that it was his duty to monitor throughout the trial the fairness or otherwise of the evidence being withheld. It has not been suggested that the judge was not independent and impartial within the meaning of Article 6 § 1. He was fully versed in all the evidence and issues in the case and in a position to monitor the relevance to the defence of the withheld information both before and during the trial. Moreover it can be assumed – not least because the Court of Appeal confirmed that the transcript of the ex parte hearing showed that he had been “very careful to ensure and to explore whether the material was relevant, or likely to be relevant to the defence which had been indicated to him” - that the judge applied the principles which had recently been clarified by the Court of Appeal, for example that in weighing the
public interest in concealment against the interest of the accused in disclosure, great weight should be attached to the interests of justice, and that the judge should continue to assess the need for disclosure throughout the progress of the trial (see the Ward and Davis, Johnson and Rowe judgments in paragraphs 22 and 24-25 above). The jurisprudence of the English Court of Appeal shows that the assessment which the trial judge must make fulfils the conditions which, according to the Court's case-law, are essential for ensuring a fair trial in instances of non-disclosure of prosecution material (see paragraphs 51 and 52 above). The domestic trial court in the present case thus applied standards which were in conformity with the relevant principles of a fair trial embodied in Article 6 § 1. Furthermore, during the appeal proceedings the Court of Appeal also considered whether or not the evidence should have been disclosed (see paragraphs 17-18 above), providing an additional level of protection for the applicant's rights.