PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 12 March 1999, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 28901/95) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under former Article 25 by two British nationals, Mr Raphael Rowe and Mr Michael Davis, on 20 December 1993. 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 the provisions of Article 5 § 4 of Protocol No. 11 taken together with Rules 100 § 1 and 24 § 6 of the Rules of Court, a panel of the Grand Chamber decided on 31 March 1999 that the case would be examined by the Grand Chamber of the Court. The Grand Chamber included ex officio Sir Nicolas Bratza, the judge elected in respect of the United Kingdom (Article 27 § 2 of the Convention and Rule 24 § 4), Mr L. Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr J.‑P. Costa and Mr M. Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr L. Ferrari Bravo, Mr L. Caflisch, Mr W. Fuhrmann, Mr K. Jungwiert, 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). Subsequently Sir Nicolas Bratza, who had taken part in the Commission's examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). The United Kingdom Government (“the Government”) accordingly 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 decision of the Grand Chamber, a hearing in this case and in the cases of Jasper v. the United Kingdom (application no. 27052/95) and Fitt v. the United Kingdom (application no. 29777/96) 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, Deputy Legal Adviser, 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 applicants Mr B. Emmerson, Barrister-at-Law, Counsel, Ms M. Cunneen, Solicitor (Liberty), Ms P. Kaufman, Barrister-at-Law, Mr S. Young, Solicitor, Mr A.B.R. Masters, Barrister-at-Law, Advisers. The Court heard addresses by Mr Emmerson and Mr Cranston and also their replies to questions put by several of its members.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The offences

During the night of 15 to 16 December 1988, a series of offences occurred in Surrey, England. The first, which may have occurred sometime after 1.30 a.m., involved an attack on two men in a parked car in a field near a public house in Fickleshall. Just after the conclusion of sexual activities between the two men (Mr Ely and Mr Hurburgh), two masked men appeared. One carried a knife, the other a gun. Ely was pulled out of the car and 10 pounds sterling (GBP) was taken from him. On orders, he lay face down on the ground while the man with the knife kept guard over him. Ely became aware of a third masked man. The robbers wanted to take the car which belonged to Hurburgh, who objected and was attacked. Ely was made to crawl over to where Hurburgh was lying tied up. He was also tied up and gagged. Petrol was spread around both of them. Ely saw a lit cigarette and passed out. When he recovered consciousness, Hurburgh's Austin Princess car had gone and Hurburgh was dead. The attackers had abandoned a stolen Spitfire car in which they had arrived on the scene in the entrance to a field, about 500 metres away.

This offence was followed, at about 3.40 a.m., by three masked robbers arriving at the Napier household in Oxted. They entered by a back window. Two of them went into Timothy Napier's room; one had a knife, the other a gun. Meanwhile, Richard Napier (the father) was awakened by the third robber armed with a revolver. He was taken into Timothy's room. Both were told they would be shot if they did not cooperate. They attacked the robbers and forced them downstairs. In the struggle, Timothy Napier's arm was cut and an artery was severed. Richard Napier was forced back upstairs to the bedroom where his wife was waiting. A knife was pointed at her and she was told to remove her rings and jewellery or her fingers would be cut off. The other two robbers ransacked the room before all three fled taking Timothy's Toyota car. Timothy Napier was rushed to hospital. He was found to have a stab wound to his back that had punctured the pleural cavity and required the insertion of a chest drain. Hurburgh's car was found abandoned nearby.

At 5 a.m., at the home of Mrs Spicer in Fetcham, she and her partner (Mr Almond) awoke to find three masked men in their bedroom. They were asked for money, jewellery and car keys. They told the intruders where to find them. Spicer and Almond were bound and gagged and the house was ransacked. It was nearly an hour before the robbers left, taking a large amount of property and the couple's two cars, a Renault and a Cavalier. Timothy Napier's Toyota was found abandoned nearby.

B. The reward, investigation and arrests

There was considerable interest in the above events, including publication in the national media between 17 and 19 December 1988 of the offer of a reward of GBP 25,000 for information leading to the conviction of the offenders. On Sunday 18 December the police incident room received information that the persons responsible for the murder and other offences were living at 25 Lawrie Park Road, Sydenham, South London (“No. 25”). In addition, the caller said that a considerable quantity of property which had been stolen during the course of the robberies had been taken by other persons resident at No. 25 and stored at the flat of a female associate at 71 Queen Adelaide Court.

No. 25 was owned by Mr Smith, who occupied the ground floor and basement. The remainder of the house, consisting of the two upper floors, was divided into flats occupied by the applicants, Raphael Rowe and Michael Davis, amongst others. Randolph Johnson visited the house from time to time, most recently to help repair the wiring and various electrical appliances, and he was said to have been there on the night of 15 December 1988. Rowe, Davis and Johnson were black.

Three white men also lived at No. 25: Mark Jobbins, Norman Duncan and Shane Griffin (“the Jobbins Group”). They were then aged 29, 21 and 19 years respectively. Duncan and Griffin sniffed glue on a regular basis. All three had criminal records.

As a result of the information received by the police, search warrants were obtained for each of the two addresses and were executed simultaneously at 7.50 a.m. on 19 December 1988. In a search of No. 25 carried out sometime between 2.15 p.m. on 19 December and 5 a.m. on 20 December, the police found a brooch from the Spicer/Almond robbery in Rowe's wastepaper basket. Other Spicer/Almond items were found in a storeroom and, also in the storeroom, were some porcelain figurines (not connected with these offences) which bore Davis's fingerprints. Blood stains on a jacket found in Rowe's bedroom were analysed and found to be of a blood group shared by 8% of the population, including the murder victim, Hurburgh. Rowe, Davis, Jobbins and Griffin were arrested on suspicion of aggravated burglary. Duncan was arrested on 21 December.

Kate Williamson, a 16-year-old school student and girlfriend of Rowe, produced to the police a number of items from the Spicer/Almond robbery, including two eternity rings, a yellow metal watch strap and a lady's watch. She told them that she visited Rowe quite regularly and was there during the night of 15 December 1988. She said that she did not know Jobbins, Duncan or Griffin except by sight.

Joanne Cassar informed the police that she had stayed with another resident of No. 25, Jason Cooper, for a period in 1988. She knew Davis, Rowe, Jobbins, Duncan and Griffin. She had been at No. 25 during the night of 15 December 1988 and had stayed in Cooper's room.

The other search warrant was executed at 71 Queen Adelaide Court. It resulted in the arrest of the tenant, Bernadette Roberts, who was the girlfriend of Jobbins, and the recovery of a large amount of stolen property.

Johnson was arrested on 6 January 1989 after an extensive car chase by several police officers. At the time, he was carrying a revolver. In his statement he agreed that he had been to No. 25 on several occasions and, on the night in question, was probably there until late. He denied involvement in the offences and said in police interviews that he might have spent the night with a girlfriend.

C. The trial

The trial of the two applicants and Johnson took place at the Central Criminal Court in February 1990.

The prosecution case was that the three men had been involved in each incident. It was argued that there was evidence to link the offences: the Austin Princess stolen from Hurburgh was found at the scene of the Napier robbery; the Toyota stolen from the Napiers was found abandoned close to the Spicer/Almond household; and the vehicles stolen from the latter couple were connected to the occupants of No. 25. In addition, the witnesses to each of the robberies had described a team of three robbers, at least one of whom was carrying a gun and a second one a knife, dressed in black and wearing balaclavas.

The prosecution relied substantially upon the evidence of the Jobbins Group. The latter admitted having jointly stolen the Spitfire which had been found abandoned near the scene of the first robbery and murder, and having driven the Renault and Cavalier stolen at the last robbery to a field in Sidcup where they had set fire to them. They gave evidence, inter alia, that on the night of 15 to 16 December, Rowe had asked if he could use the Spitfire and that he, Davis and another black man had requested help in other ways, such as the loan of a balaclava and assistance in starting the Spitfire. The Jobbins Group also gave evidence relating to the events of the following morning (16 December), when Rowe had allegedly made a number of incriminating comments about his own involvement in the crimes and had requested them to dispose of the stolen Spicer/Almond cars and to store the stolen property elsewhere.

In addition, the prosecution relied on the evidence of Kate Williamson that Rowe had left her during the night of 15 to 16 December and had returned the following morning at 6.30 a.m.; that he gave her rings from the Napier robbery in order to have them valued; that he scratched his bedroom window with one of the diamond rings and that he told her about the stolen cars. The prosecution also relied on the evidence of Joanne Cassar, that she had been given a plant by Davis that, it was suggested, came from the boot of the car stolen from Almond. Finally, Martin Todd, an inmate at Her Majesty's Prison Brixton where Johnson had been held on remand, gave evidence of incriminating remarks allegedly made to him by Johnson.

All three of the accused denied any involvement in the offences. Their defence relied on the facts that Kate Williamson and others had given evidence that Rowe and Davis had been in their company at times during the night of 15 to 16 December which were inconsistent with a sighting of the Spitfire at a similar time close to the scene of the Hurburgh murder and that the victims of the offences, including Ely, the Napiers and Spicer, had described their attackers as white. On behalf of Johnson it was argued that there was no evidence of his involvement in the preparatory acts or subsequent disposals.

The defence submitted that many of the witnesses for the prosecution were unreliable. Thus, Ely's evidence included a number of inconsistencies, as did the testimony and statements of the Jobbins Group. It was argued that if anyone from No. 25 had been responsible for the crimes, it was the Jobbins Group, and that Jobbins, Duncan and Griffin had given a deliberately false account to the police in order to implicate the accused and thus exonerate themselves. Joanne Cassar may have been an accomplice because she knew Duncan and Griffin, and Kate Williamson's evidence may have been motivated by jealousy of Rowe's relationship with another girlfriend and was in any event inconsistent with a letter which she had sent to Rowe whilst he was in prison. The defence sought to impugn Todd's evidence on the grounds that he may have lied in order to obtain parole. In addition, the defence referred to the substantial reward which had been offered as a factor which may have motivated prosecution witnesses to give evidence.

Davis gave evidence, consistent with his statement to the police, that he had played no part in the offences and had had nothing to do with the Spitfire. He claimed to have spent the evening of 15 December at home, and agreed with Kate Williamson's account of going out and not returning until about 12.30 a.m. Rowe's evidence was also consistent with his statement to the police. He denied having played any part in the offences and said that after returning to No. 25 at 12.30 a.m., he had then slept with Kate Williamson throughout the night. Johnson did not give evidence.

On 26 February 1990 the jury returned unanimous verdicts convicting the applicants and Johnson of murder, assault occasioning grievous bodily harm, and three counts of robbery. They were each sentenced to concurrent terms of life, fifteen years' and twelve years' imprisonment.

D. The proceedings before the Court of Appeal

The applicants and Johnson appealed on the grounds, inter alia, that their convictions were unsafe and unsatisfactory because of weaknesses and inconsistencies in the evidence against them.

1. The disclosure procedure

On 20 October 1992, at the first hearing before the Court of Appeal, counsel for the prosecution handed to the court a document which was not shown to defence counsel. He sought the Court of Appeal's ruling on a matter of disclosure (see paragraphs 34-35 below), and informed the court that the matter was sensitive to a degree which would require the court to hear him either ex parte or, if inter partes, only on an undertaking by defence counsel not to disclose what took place to their solicitors or clients. Both defence counsel indicated that they could not conscientiously give such an undertaking and withdrew from the hearing, which proceeded ex parte.

On 14 and 15 January 1993 the issue of disclosure was re-canvassed before a differently constituted Court of Appeal (although the Lord Chief Justice, Lord Taylor, participated in both hearings), because defence counsel had reconsidered their position and had concluded that they had been incorrect in withdrawing voluntarily as they had done at the first hearing. It was argued by the defence that (i) defence counsel should have been permitted to hear the application by the Crown without giving an undertaking and (ii) counsel for the Crown should, at the least, have been obliged to disclose the category of material in question so that defence counsel could then have made submissions as to whether or not disclosure of material in that category should be ordered. The Court of Appeal, in its judgment, remarked that the procedure to be followed when the prosecution was in possession of material which it believed should not be disclosed to the defence had been changed by the judgment in R. v. Ward (see paragraph 37 below) in that it was now for the court, and not the prosecution, to decide whether disclosure should be made, and set out a series of procedural guidelines to be followed in such cases (see paragraphs 39-40 below). In conclusion, however, it refused to order disclosure.

On 22 June 1993, at the outset of the hearing of the substantive appeal before a differently constituted Court of Appeal, defence counsel invited the court to order the Crown to disclose the name of any person or persons to whom any reward money had been paid for information given to the police concerning the applicants, and sought access to the Police Complaints Authority Report concerning a complaint by Rowe. The prosecution showed the court documents relevant to the request for disclosure which were not shown to the defence. However, defence counsel were able to make submissions as to the factors weighing in favour of disclosure and the nature of the balancing exercise to be undertaken by the court. Having considered those submissions and having examined the relevant documents, the court refused to order disclosure.

2. The substantive appeal

On 29 July 1993 the Court of Appeal upheld the applicants' convictions and that of Johnson, concluding that there was no basis to say that there was even a lurking doubt about their safety.

E. Subsequent events

The applicants applied to the Court of Appeal for leave to appeal to the House of Lords, but this application was refused on 30 September 1993.

By a letter of 27 November 1994 the first applicant's solicitor, with reference to R. v. Rasheed (see paragraph 42 below), asked the Crown Prosecution Service for disclosure of any reward claim made prior to the trial by any witness and, in particular, by one of the Jobbins Group, Williamson or Cassar.

On 22 November 1995 the Crown Prosecution Service replied: “Regarding the question raised in paragraph (1) of your letter of 27th October 1994, you will know that the topic of rewards was raised by [defence counsel] at the outset of the appeal in this matter. This resulted in an ex parte application which was heard in camera. This application was upheld and referred to by Watkins LJ in his final judgment in these terms: 'We upheld the claim and refused to order disclosure of any kind for reasons we gave on 22nd June and which are recorded'.”

In 1994 the applicants applied to the Home Office for a review of the safety of their convictions. In April 1997 the Criminal Cases Review Commission (“the CCRC”) was set up under the Criminal Appeal Act 1995 and the applicants' case was transferred to it. In August 1997 the CCRC appointed an officer from Greater Manchester Police to investigate the events surrounding the prosecution of the applicants and Johnson. The investigating officer's report was submitted in January 1999.

In its report of 7 April 1999 the CCRC found, inter alia, that Duncan was a long-standing police informant, who, on 18 December 1988 had approached a Sussex police officer and told him that the applicants were responsible for the crimes of 15 to 16 December 1988. As a result of his assistance to the police and the evidence which he gave at the applicants' trial, Duncan had received a reward of GBP 10,300, in addition to police protection between 18 and 22 December 1988 and immunity from prosecution in relation to his admitted participation as an accessory to the offences in question. It appeared from police records of the information supplied by Duncan that the latter had never identified Johnson as one of the offenders. These facts had not previously been disclosed to the defence on grounds of public interest immunity. The CCRC also found that “the police were not keen that the Jobbins Group should be prosecuted and there was a corresponding inertia on the part of the prosecuting authorities”, and commented that “if the jury had been aware of this then the credibility of the Jobbins Group might have been assessed in a more critical manner”. Moreover, Todd had retracted his statement concerning the incriminating comments allegedly made by Johnson. The CCRC concluded that, in the light of this new evidence, there was a real possibility that Johnson was not involved in the offences of 15 to 16 December 1988. Whilst there was evidence linking the two applicants to the robberies, if the prosecution case against one of the three, Johnson, might no longer be sustainable, in the CCRC's view the Court of Appeal ought at the same time to have the opportunity to consider whether the case could still be sustained against Rowe and Davis. It therefore referred the convictions of the applicants and Johnson back to the Court of Appeal, since it considered that there was a real possibility that these convictions would not be upheld if such a reference were made (Criminal Appeal Act 1995, section 13).

At the time of the adoption of the present judgment the applicants' case is pending before the Court of Appeal.