PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 12 March 1999. It originated in an application (27052/95) against the United Kingdom of Great Britain and Northern Ireland (“the Government”) lodged with the Commission under former Article 25 of the Convention by Mr Eric Jasper, a British national, on 26 September 1994. The applicant is represented by Ms Mary Cunneen of Liberty. The Government of the United Kingdom are represented by their Agent, Mr Martin Eaton, Deputy Legal Adviser at the Foreign and Commonwealth Office. The Commission's request referred to former Articles 44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 of the Convention.

In accordance with Article 5 § 4 of Protocol No. 11 to the Convention and Rules 100 § 1 and 24 § 6 of the Rules of Court, a panel of the Grand Chamber of the Court decided on 31 March 1991 that the case should be examined by the Grand Chamber. On 1 April 1999 Mr L. Wildhaber, the President of the Court, acting under Rule 24 §§ 3-5 determined the composition of the Grand Chamber to include, ex officio, himself, and Mrs E. Palm, the Vice-President of the Court. The other members appointed to complete the Grand Chamber were Mr L. Ferrari Bravo, Mr L. Caflisch, Mr J.-P. Costa, Mr W. Fuhrmann, Mr K. Jungwiert, Mr M. Fischbach, Mr B. Zupančič, Mrs N. Vajić, Mr J. Hedigan, Mrs W. Thomassen, Mrs M. Tsatsa-Nikolovska, Mr T. Panţîru, Mr E. Levits and Mr K. Traja (Rule 24 § 3 and Rule 100 § 4). Sir Nicolas Bratza, the judge elected in respect of the United Kingdom and who should have participated pursuant to Article 27 § 2 of the Convention, could not take part in the consideration of the case since he had participated in the proceedings before the Commission (Rule 28 § 3). The Government appointed Sir John Laws to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).

In accordance with the President's decision, a hearing of the case, jointly with application nos. 28901/95, Rowe and Davis v. the United Kingdom, and 29777/96, Fitt v. the United Kingdom, took place in public in the Human Rights Building, Strasbourg, on 20 October 1999. There appeared before the Court: (a) for the Government Mr M. Eaton, Foreign and Commonwealth Office, Agent, Mr R. Cranston, Solicitor General, Mr J. Eadie, Barrister-at-law Counsel, Mr R. Heaton, Home Office, Ms G. Harrison, Home Office Mr C. Burke, Customs and Excise Ms F. Russell, Crown Prosecution Service Mr A. Chapman, Law Officer's Department, Advisers; (b) for the applicant Mr B. Emmerson, Barrister-at-law, Counsel, Ms M. Cunneen, Liberty, Ms P. Kaufman, Barrister-at-law, Mr S. Young, Barrister-at-law, Mr A. Master, Solicitor, Advisers. The Court heard addresses by Mr Cranston and Mr Emmerson and also their replies to questions put by several of its members.

AS TO THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

1. The alleged offence

At the time of the introduction of the application, the applicant was serving a prison sentence. The background to his conviction is as follows. On 30 June 1993 approximately three tonnes of cannabis resin was imported into the United Kingdom concealed in a consignment of frozen meat on a lorry travelling from Zeebrugge to Dover. There had been two previous importations of meat from the same consignor in May and early June 1993, both of which had been collected by a firm of hauliers called Davidsons. On this occasion, the meat was delivered to West Kent Cold Storage at Dunton Green, near Sevenoaks in Kent.

On 1 July 1993 Customs and Excise officers were keeping the applicant under observation. At approximately 6 a.m. he was followed from his home in Walthamstow, East London, to a lorry park at Beckton, where he collected an articulated lorry and refrigerated trailor which he had bought the previous month. He drove the lorry to West Kent Cold Storage, where he loaded the consignment of meat onto the lorry, and then drove on to a lock-up garage in Leytonstone, East London. He backed the trailor into the garage and drove away in his car. He made two brief visits to the garage during the morning, and then returned at approximately 1 p.m.

The applicant remained inside the garage for about five hours and was arrested just before 6 p.m. as he was leaving. The garage was searched. Six of the ten pallets of meat were still on the lorry in a frozen state, although the refrigerator motor was not operative. Four of the pallets, containing a large quantity of cannabis resin, had been opened and left to defrost in the unrefrigerated garage. The applicant told Customs officers that he worked as a haulage contractor and had not known that the meat contained cannabis.

In addition, Customs officers found that the applicant's daughter had rented a safety deposit box on 19 March 1993, of which the applicant, using the name of “Eric Siggins” was an authorised signatory. Following the applicant's arrest on 5 August the box was searched and found to contain GBP 24,100 in cash and two passports bearing the applicant's photograph, the first in his true name and the second in the name of Eric Siggins. Also found in the box were two documents dated 30 June, the date of the applicant's arrest.

The applicant was charged with an offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of cannabis, and remanded for trial in the Southwark Crown Court.

2. The disclosure procedure at first instance

On 14 January 1994, shortly before the commencement of the trial, the prosecution made an ex parte application to the trial judge to withhold material in its possession on the grounds of public interest immunity. The defence were notified that an application was to be made, but were not informed of the category of material which the prosecution sought to withhold. They were given the opportunity to outline the defence case to the trial judge, namely that the applicant had collected the consignment of meat pursuant to instructions received by telephone the previous night, and had not been aware that the meat contained cannabis, and to request the judge to order disclosure of any evidence relating to these alleged facts. The trial judge examined the material in question and ruled that it should not be disclosed. The defence were not informed of the reasons for the judge's decision.

On 18 January 1994 the defence served the following written request on the prosecution: “9. The Crown are formally asked to indicate (a) in general whether there is unused material in connection with this case, apart from the subject-matter of the ex parte application to the Court on Friday 14 January 1994 ... which has not been disclosed and (b) in particular: (i) whether any listening device or telephone intercept was used, and whether there exists any resulting recording, note, memorandum, or other record; (ii) whether there exists any note, memorandum or other record of any interview with, or statement by any witness or potential witness in this case that has not already been disclosed; (iii) whether there exists any evidence ... of any observations on the lorry ... or on the premises of West Kent Cold Storage, and if not, whether any such observations were in fact carried out; (iv) whether there were any other observations carried out in connection with this enquiry that have not been disclosed; (v) whether any enquiries were made to trace the vehicles and/or drivers used for the first two Davidson and Sons collections from West Kent Cold Store, and if so, with what result; (vi) whether HM Customs and Excise acted in this enquiry on any 'information received' and if so, whether there exists any log, memorandum, or other record of any such information.”

Prosecution counsel provided the answer to questions 9(iii) and (vi), informing the defence that there had been no such observations and no “information received” from an informant, but declined to answer the remainder of the questions. The defence therefore applied to the trial judge for an order that the prosecution should provide the information requested. The application was heard on 24 January 1994, when prosecution counsel submitted: “I have refused and still refuse to answer the questions set out in ... paragraph 9 because I contend that I am not required to reveal to any person whether there has been any interception of communications under the [Interception of Communications] Act [see paragraphs 31-34 below]. If I answer the question at 9(a) or 9(b), I shall be answering that question which I am not required to answer. ... I am confident I have done what is required of me in respect of it. ... I take the view that were there to be any matter falling under the Interception of Communications Act it should not be the subject of any ex parte application ... .”

That position was upheld by the trial judge who, in his ruling of 24 January 1994, stated inter alia: “I cannot invite [prosecution counsel] ... to go behind the stand that he is taking, at this stage, where he takes the view that even an ex parte application is unnecessary, which is the way he looks at it. ... I think we have taken the matter as far as we can in that particular aspect. One is bound, because I have no power [to order] otherwise, to accept the situation as the prosecutor tells it to be.”

3. The trial

The applicant did not give evidence at his trial. The defence case was that he had no knowledge of the cannabis hidden in the consignment and was acting as an innocent haulier of the goods. He was attempting to establish a haulage business (“Ejay Couriers”) and had bought vehicles and hired the lock-up garage for that purpose. It was submitted on his behalf that in collecting the meat he had been acting pursuant to instructions from another firm of hauliers, as was shown by a note, found in the applicant's possession at the time of his arrest, on Ejay Couriers headed paper of a telephone call made by Davidsons (see paragraph 1 above) at 7.30 p.m. on 30 June 1993.

On 31 January 1994 the applicant was convicted of the offence charged and on 21 March 1994 he was sentenced to ten years' imprisonment.

4. The appeal

The applicant appealed to the Court of Appeal, on the following grounds: “It was clear that not all unused material had been disclosed. ... In open court it was stated on behalf of the defendant that the unused material was of potential importance to his defence that he had no knowledge that drugs were to be or were concealed in the load he carried, and that he had received his instructions for the collection by telephone, in the course of his business as a haulier, very shortly before 1 July 1993. ... Any information therefore that might have led to his being able to confirm either the source or content of those instructions, as well as to trace those who had involved him in a smuggling enterprise was of obvious importance. The Crown had declined to answer the question whether any potentially relevant material, apart from the subject-matter of the ex parte application, had not been disclosed, on the grounds that to do so would reveal whether or not there had been a telephone intercept. It was plain from the course of the argument that the ex parte application had not dealt with any telephone intercept, since the Crown argued that this was the province solely of the prosecutor, and not that of the judge, a proposition based on R. v. Preston [see paragraph 34 below]. In these circumstances the defence were entitled to know at least the category of material with which that application did not deal. ... Furthermore, the Crown should have been called upon to justify, ex parte if necessary, the stance taken in relation to the other unused material. ... Since there must have been a reason for watching the defendant, which was explained neither by the evidence adduced, nor by that served but excluded by agreement, and since it was said that there was no informant involved in the case, there is a strong likelihood that disclosable information, bearing directly upon the defendant's case, was in the possession of the prosecution.”

On 13 February 1995, prior to the hearing of the appeal, defence counsel applied to the Court of Appeal for an order that the defence should be given a transcript of the ex parte hearing of 14 January 1994, to enable them to argue the non-disclosure as a ground of appeal. Defence counsel outlined the applicant's case, namely that the instructions for the collection of the load had been received by telephone very shortly before 1 July 1993, and submitted that any information that might be in the Crown's possession and which could, directly or indirectly, support the defence case, should have been disclosed.

The Court of Appeal, which had before it the transcript of the ex parte hearing of 14 January 1994 and the material which had been its subject-matter, declined to order the disclosure of either to the defence on the following grounds: “The application is made, correctly, on the ground that if the matters which emerged during the ex parte hearing are relevant, or likely to have been relevant, to the defence of Mr Jasper, he should be permitted to have sight of the ruling and the transcript of the proceedings which took place on that occasion. We have read the record and it seems ... that the learned judge ... knew precisely the scope of the application and listened with the greatest possible care to the matters which were placed before him. He tested those matters, and he came to the conclusion that the ruling which he made was appropriate in all the circumstances. It is abundantly clear from the transcript that he throughout was 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. In these circumstances, it is impossible for this court to say that the learned judge erred in principle in adopting the course that he did, or that the prosecution erred in principle and we see no ground to set aside the order that the learned judge made on that occasion.”

On 28 March 1995 the Court of Appeal dismissed the applicant's appeal. The first ground of appeal, namely the non-disclosure of relevant evidence, was rejected in the following terms: “The first [ground of appeal] ... related to matters to which the label 'unused material' is commonly given in these courts. It concerned the natural and proper desire of those instructed on behalf of the appellant to make sure, in so far as they could, that no documents or leads of any other sort existed which the Crown ought, as a matter of duty, to disclose to the defence if there was a real or a possible or more than a fanciful chance that disclosure of those documents or those leads might assist the defence. ... There is no suggestion, nor any ground for a suggestion, that the Crown were in any way in dereliction of their duty of good faith in making disclosure of anything that ought properly to be disclosed.” The court continued: “This was a case of enormous strength so far as the prosecution were concerned. The appellant had been caught red handed with a huge amount of cannabis resin. He was exercising a proprietorial form of control over the packages. He was unloading them and opening them up. By opening them he was allowing what were ostensibly their sole contents to defreeze, with a risk (to put it no higher) of their becoming valueless. He was not the consignee of the meat. [He] neither called nor gave evidence. That, of course, was his right, as the jury were ... directed, but it had the result that the jury were without any explanation whatsoever as to what, on his case, he was about. It is difficult, if not impossible, to see what other inference than that he was indeed guilty of the offence charged any reasonable jury could have reached. We dismiss this appeal.”