PROCEDURE

The case originated in two applications (nos. 39647/98 and 40461/98) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two United Kingdom nationals, Mr Martin John Edwards (“the first applicant”), on 6 September 1996 and Mr Michael Lewis (“the second applicant”) on 16 May 1997.

The applicants were represented by Mr P. Maynard, a lawyer practising in Tonbridge and, at the hearing on 10 September 2002, by Mr B. Emmerson QC and Mr J. Hall, counsel. The United Kingdom Government (“the Government”) were represented by their Agent, Mr H. Llewellyn, Foreign and Commonwealth Office and, at the hearing, by Mr D. Perry, counsel.

The applicants alleged that they had been denied fair trials, contrary to Article 6 of the Convention, as a result of the incitement of offences by agents provocateurs and the procedure concerning the non-disclosure of evidence followed by the domestic courts.

The applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

They were allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

Having consulted the parties, the President of the Chamber decided that in the interests of the proper administration of justice, the proceedings in both applications should be conducted simultaneously (Rule 43 § 2).

By a decision of 10 September 2002, following a hearing on admissibility and the merits (Rule 54 § 4), the Court declared the applications admissible.

On 1 July 2003 the Court decided to join the two applications (Rule 43 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Martin John Edwards

The first applicant was born in 1946 and lives in Woking.

On 9 August 1994, following a surveillance and undercover operation, he was arrested in a van in the company of an undercover police officer known only as “Graham”. In the van was a briefcase containing 4.83 kilograms of 50% pure heroin. On 7 April 1995 the applicant was convicted in Snaresbrook Crown Court of possessing a Class A drug with intent to supply and was sentenced to nine years' imprisonment.

The first applicant's defence was that at the time of his arrest he believed he was taking part in a transaction to sell stolen jewellery. He alleged that his participation had been organised by a man named Geoffrey Lerway, whom he had met the previous year while both were detained on remand in Brixton Prison. According to the applicant, the week before his arrest Lerway had introduced him to a man called Jim Humphries and a man presented to him only as “Martin”. The day before the arrest, the applicant was contacted by Lerway and asked if he would be interested in going to Birmingham in connection with a jewellery deal in which Lerway was acting as intermediary to Martin. He would be given a cut of the purchase price. The applicant agreed that Lerway would pick him up from his home the next day.

The following morning he was told that the plans had changed as Martin was now coming to London. The first applicant agreed to accompany Lerway to a public house where, at approximately 12.45 p.m., a red Jaguar car and a white van drew up. The driver of the Jaguar was introduced to the applicant as “Jeff”; he was accompanied by a man and a woman, subsequently called “Terry” and “Carol”. The driver of the van was introduced as “Graham”. Jeff gave Lerway a briefcase containing GBP 125,000. They all then left in convoy for the Clive Hotel, Primrose Hill, where they were to meet Martin.

At the hotel, Lerway decided to stay with the money in the car and asked the applicant to see if Martin had arrived. The applicant therefore went into the hotel where he met Jim Humphries, who told him that the arrangements had changed again as Martin was now in Euston. Humphries and Lerway asked the applicant to take a taxi to Euston and ask Martin to return with him to the Clive Hotel. The applicant followed these instructions and found Martin, who told him he had to leave immediately for another meeting. Martin, having spoken to Humphries or Lerway by mobile phone, gave the applicant the key to a room in the nearby Ibis Hotel, and explained that the “goods” were in a briefcase in the room.

According to the applicant, Graham came from Primrose Hill in his van and met the applicant outside the Ibis. Graham then suggested that the applicant should accompany him up to the room and offered to give him a lift back to Primrose Hill afterwards. In the hotel room, Graham forced the lock on the case while the applicant was in the bathroom and when he came out Graham was ready to go. They returned to the van where the briefcase was opened and within moments the applicant had been arrested.

Of all the participants in the above transaction, only the applicant was arrested and charged. The applicant suspects that the other participants were undercover police officers or informers acting on police instructions, but their identities and status have never been revealed to him. In this regard he considers it relevant that at the time of the alleged dealings, Lerway was on bail to the Middlesex Crown Court in respect of a large scale conspiracy to supply cannabis. One of the conspirators was a former Flying Squad Detective. It was known to the applicant that Lerway had acted as a participating police informer in that case and it was further known that the police officers involved in the applicant's case had also investigated the conspiracy for which Lerway was on bail. The applicant believes that sentencing in Lerway's trial was deliberately postponed until 12 April 1995, some five days after the conclusion of the applicant's own trial, as a disincentive for Lerway to come forward and give evidence concerning the true nature of the transaction.

Prior to the commencement of the applicant's trial the prosecution gave notice to the defence that an application to withhold material evidence had been made ex parte in advance of the trial under the procedure approved in R. v. Davis, Johnson and Rowe (see paragraph 34 below). Judge Owen Stable QC, who considered the material in the absence of the defence, concluded that it would not assist the defence and that there were genuine public interest grounds for withholding it. This ruling was subsequently reconsidered by the trial judge, who had the benefit of a document prepared by the defence, outlining the issues in the case, as well as of the oral submissions of defence counsel. In the course of the present proceedings before the European Court, the Government revealed for the first time that the material placed before the trial judge included information indicating that the applicant had been involved in the supply of heroin before the start of the undercover operation. The subject matter of the public interest immunity evidence was not disclosed to the applicant during the domestic proceedings, either at first instance or on appeal. He denies any prior involvement in drug dealing. The trial judge, who directed himself in accordance with the approach set out by the Court of Appeal in R. v. Keane (see paragraph 36 below), decided that the evidence in question would not assist the defence and found genuine public interest grounds in favour of non-disclosure.

Following the ruling on disclosure, the defence made an application to the trial judge under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”: see paragraph 29 below) to exclude the evidence of Graham, on the basis that the applicant had been entrapped into committing the offence. These submissions were rejected. The judge held that in the course of the ex parte application he had heard nothing and seen no material which would have assisted the defence in their argument that evidence should be excluded under section 78 on grounds of entrapment. He continued that, if he had seen or heard any such material, he would have ordered disclosure.

Apart from the applicant, Graham was the only participant in the offence to give evidence at the trial. He testified that the applicant had made a number of incriminating statements to him when they were alone together in the van and hotel room. Although Graham claimed to have made a full note of the alleged conversations, these notes were never shown to the applicant and the applicant was not questioned in connection with their content by the investigating police officers. According to the applicant it was, however, difficult for the defence to undermine Graham's credibility because his full name and other identifying details were not disclosed.

Following his conviction the applicant appealed to the Court of Appeal on the ground, inter alia, that the judge had been wrong to refuse to order disclosure. Dismissing the appeal on 18 July 1996 the Court of Appeal, having itself examined the undisclosed evidence, observed that “each one of us reached the clearest possible view that nothing in the documents withheld could possibly have assisted the defence at trial; indeed quite the reverse”.

B. Michael Lewis

Prior to the events in question, the applicant was of good character. He had been employed as accounts director in a firm which had gone into liquidation a year earlier, and at the time of his arrest in July 1995 he was unemployed and in considerable debt.

The applicant's version of events, which he maintained from the time of his first interview with the police, was that he had been introduced to a man named “Terry” by an acquaintance, Colin Phelps, since Terry appeared interested in purchasing from the applicant some bankrupt stock. At a meeting in July 1995 Terry had started talking about counterfeit currency and had pressed the applicant to obtain some as part of the transaction. Although the applicant had never hitherto been involved with counterfeit currency, he did have a contact, “John”, who was able to supply forged bank notes.

Terry went on to introduce the applicant to two men called “Jag” and “Jazz”. At a third meeting on 14 July 1995, Jag turned up with “Chris”, who was subsequently revealed to be an undercover police officer, and an order for a large amount of currency was placed. It appears from the transcript of covert tape recordings made during this meeting that, while the applicant was not unwilling to become involved, he was actively encouraged to do so by Jag and Chris, who pressurised him to a certain degree to supply more notes of a higher denomination than had at first been agreed. On 25 July 1995 the applicant met Chris and another undercover officer, “Ian”, in a public house car park. He showed them some counterfeit notes, and was immediately arrested by uniformed officers. More counterfeit notes were found when his house was searched.

The applicant maintained that he had been entrapped by undercover police officers and/or participating informers into committing the offences. On 11 November 1996 he applied to the Crown Court judge for an order that the indictment should be stayed on the grounds that, as a result of the covert activities of undercover police officers and/or participating informers, (a) it was not possible for him to have a fair trial and (b) the moral integrity of the criminal proceedings had been impugned. He also requested the judge to order the prosecution to provide more information and documents, including information relating to the question whether Colin Phelps, “Terry” or “Tel”, “Jazz” or “Jag” were participating informers or undercover police officers.

Prior to making his ruling on the defence application, the judge heard, ex parte, an application by the prosecution to withhold certain material evidence on grounds of public interest immunity. The judge refused to grant a stay or to order further disclosure, indicating that most of the information sought was subject to public interest immunity. He also ruled that, while it was clear that “Chris” was coaxing the applicant, there was no evidence of pressure being applied.

A second submission was then made on the applicant's behalf to exclude the evidence of undercover police officers under section 78 of PACE. However, before evidence was called from the officers in question – “Chris” and “Ian” – the defence counsel sought guidance from the judge as to the areas of cross examination which would or would not be allowed, given that certain issues relating to the investigation were covered by public interest immunity. It became apparent that most of the areas of cross examination necessary to develop the submission were not to be allowed. Accordingly, the submission was withdrawn and the applicant entered guilty pleas to the indictment on 12 November 1996.

On 20 November 1996 he was sentenced to a total of four and a half years' imprisonment.

On 28 November 1996 counsel advised that the applicant had no prospects of success in appealing against conviction, since he would have to demonstrate that the convictions were unsafe before an appeal could succeed. This would be impossible given that, on his own account, he had been motivated by money to enter into the deal to sell counterfeit currency. Counsel also expressed the view that: “Had there been anything within the [public interest immunity] material which could have assisted the Defendant in developing his case to exclude the evidence under s.78 PACE I am confident the Judge would have released it. In those circumstances, I advise that there are no grounds of appeal against conviction.”