CASE OF EDWARDS and LEWIS - v - THE UNITED KINGDOM

This case illustrates Europe’s continuing concern about the way in which the UK deals with unused material and makes use of public interest immunity (PII). It also gave the ECHR the opportunity to reflect upon the changes since the ECHR dealt with the cases of ROWE. and DAVIS v UK, 30 E.H.R.R. 1, JASPER v UK 30 E.H.R.R. 441 and FITT v UK 30 E.H.R.R. 480.

The case of EDWARDS and LEWIS v UK (judgement dated 22^nd July 2003) also seeks to take account of the implications of the case of TEIXEIRA de CASTRO v PORTUGAL, 28 E.H.R.R. 101, ECtHR dealing with entrapment otherwise known as state commissioned crime.

The case of R. v Loosely Att.-Gen’s Reference (No. 2 of 2000) [2002] 1 Ct.App.R. 29 allowed the House of Lords to give guidance on the application of Article 6 of the Convention to cases of alleged entrapment. The H of L told us that it was simply not acceptable that the State, through its agents, should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. The role of the courts was to stand between the citizen and the State and make sure this did not happen.

A useful guide to identifying the limits of acceptable police conduct was to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit the crime.

Their Lordships went on to consider the remedy if what was done was in breach of the principle to be found in Teixeira. Generally the application would be for a stay of proceedings for abuse if the trial had not begun or eg a section 78 application if the trial was begun. In both cases (ignoring the recent trend towards reading down burdens of proof on the defence) there is a burden upon the defence to prove the grounds of the application on balance of probability. (See for example paragraph 4-51 of Archbold).

The procedure that has built up to deal with PII applications has failed to take account of the problems that arise when you combine the ex parte application by the Crown for PII with an application by the Defence for a stay for abuse of process.

A typical PII application to the trial judge prior to the start of a criminal trial where the crime may involve participation by the State and/or agents of the State will set out “intelligence” on the defendant in order to show that the defendant had a pre-disposition to commit the crime alleged against him and, therefore, any involvement by the State and/or its agents was solely to offer the opportunity to commit the crime and could not give rise to any argument based on TEIXEIRA. The laying of this information before the trial judge ought not to happen but some prosecutors still do this and some judges still permit it.

In the case of EDWARDS it was (eventually) made clear that the PII material included allegations that he had dealt in class A drugs previously notwithstanding that he had no convictions for doing so. In the case of LEWIS the Crown has never indicated what the material was but Mr. Lewis had no criminal record at the time.

When faced with what appeared to overwhelming “information” that the defendant was actively committing similar crimes a trial judge would no doubt see the public interest in not releasing to a defendant the extent of the Crown’s knowledge of his activities nor the way in which that knowledge was gained. Having accepted, possibly without question, the information given by the prosecution about the defendant’s pre-disposition, it is a short step for the Judge to decide that the involvement of the State in the commission of the crime can be of no or little relevance as it would not give rise to an abuse application in the TEIXEIRA sense. Often the Judge will comment that ‘the material could not help the defence, quite the opposite’.

In reaching his decision the judge will not usually have had the advantage of the ‘information’ being tested in cross-examination by Counsel with good knowledge of the defence case. The information that the judge has accepted may be hearsay and of dubious source. There is no procedure established whereby any of the allegations being made against the defendant during the course of this ex parte application can be refuted and/or rebutted by the defence by the calling of evidence or in any other way.

It is little wonder, therefore, that in the Auld report at paragraphs 193 – 197 it is quite clear that a number of judges feel uncomfortable with the system of PII applications and welcome the prospect of being able to rely on Special Counsel to assist the court by testing any assertions made by the Crown.

If we were only concerned with the judge’s decision on the PII hearing it may be that the ECHR would not have accepted these cases for its determination.

The next stage in the trial proceedings, however, was a significant feature in the consideration by the ECHR for the purpose of considering the fairness of the proceedings.

There are many reasons following a decision not to release information that may give rise to an application on the part of the defence to exclude evidence under Section 78 of PACE or to make an application for a stay for abuse of the process.

The problem, under the present system, that the defence has faced is that in making a Section 78 or abuse of process application there is a burden on the defence to prove its case.

In order to prove its case the defence must know what case it has to deal with.

The decision of the judge to withhold material means, first of all, the defence cannot discover the case that it has to meet and, therefore, it cannot target its submissions and evidence to maximise its chances of success. Secondly, having made a decision to withhold the material, the judge will have made a decision of fact that will be likely to be against the interests of the defendant on the subsequent application and it adds to the hurdles that the defence have to try to overcome.

The European Court found that there had been a violation of Article 6(1) in the cases of EDWARDS and LEWIS. The consequence has to be that the procedure employed for some years to determine issues of disclosure of evidence and of entrapment has failed to comply with the requirements for adversarial proceedings, equality of arms and the incorporation of adequate safeguards to protect the interests of defendant. To put this decision in context Lord Slynn in the case of R v A (No.2) [2002] 1 A.C. 45 HL observed that

it is was well-established that the right to a fair trial in Article 6 was absolute in the sense that a conviction obtained in breach of it cnnot stand.

The remedy that was discussed in the ECHR was the appointment of Special Counsel. Not only had the Auld report made a recommendation for Special Counsel in these situations but there are many examples in the UK of the use of Special Counsel – and this seems to be increasing. The rationale behind the use of Special Counsel would be that there is an independent advocate to test the case being put forward by the Crown but this advocate would not be allowed to release to the defendant or a member of the defence team, material discussed in the ex parte application without the clear permission of the judge.

On the other hand the Special Counsel could be given a great deal of information by the defence team in order to ensure that information put forward by the Crown is tested as fully as possible. There may also be opportunities for Special Counsel to ask specific questions of the defence team if, for example, it is being alleged that the defendant committed a similar crime in a specific place on a specific date. Perhaps the defendant would be able to call evidence to rebut that allegation in the form of alibi evidence.

For an example of a use of Counsel ‘who shall not be responsible to the accused’ see the appointment of Counsel under the power contained in section 38 of the Youth Justice and Criminal Evidence Act 1999.

“Special Counsel” is not an animal unknown to UK law. There are a number of examples of the use of Special Counsel that are set out in the European Court’s judgment in the case of EDWARDS and LEWIS. Practitioners may also have noted the recent intention of the Parole Board to use Special Counsel at some Parole hearings to allow the Parole Board to keep some reports from the prisoner but seeking to have a procedure to protect it from complaints arising from Article 6 consideration. The writer has certainly had experience of two Crown Court trials where judges were persuaded to nominate Special Counsel to look after the defence interests in Chambers on PII applications. On both occasions the defence benefited enormously. It is understood that the problem that still exists is that there is no method in place to reimburse Counsel who act as Special Counsel. In our two cases we know that Counsel are still waiting to be paid!

Following the hearing that took place in the case of EDWARDS and LEWIS in Strasbourg in December 2002, the (then) DPP began to investigate how the (expected) judgment could be absorbed into the criminal justice system and what changes needed to be introduced to cope with it. The DPP allowed himself some 6 months to prepare for what he believed to be a certain judgement.

Unfortunately it would appear that no solution has yet been found which may be why the Court of Appeal, in the case of R. v GREAVES [2003] EWCA Crim 2353 (7^th August 2003) were persuaded not to order Special Counsel in the case before it. The persuasion, however, came about when the Attorney General gave instructions that Special Counsel were to be appointed in that particular case. It may be fair reading of the case that the Court of Appeal would have made the order if the Attorney General had not intervened.

Although the case of EDWARDS and LEWIS appears to be decided on a very narrow point, it seems probable that the DPP and his advisors have identified that the implications are in fact much wider. It may be that whenever there is a PII application, there will need to be consideration on the part of the defence to decide whether representations should be made to the judge in order to see whether any factors exist that could warrant the involvement of Special Counsel.

I do not propose to go into the ways in which the criminal justice system could be affected by this judgment as the Government may very well be considering an Appeal to the full Chamber. It has until about the 21^st October 2003 to decide.

It is to be hoped that the Government may very well have learned from the case of GREAVES that the Court of Appeal is likely to accept the system of Special Counsel and, therefore, any Appeal to the full Chamber at Strasbourg would be most unlikely to achieve anything for them. The likelihood is that the main and possibly only ground the Government could rely on is the cost implications.

The Court of Appeal is also about to consider the impact of PII hearings on Sentencing.

When a trial judge has heard about previous offending and accepted that evidence, how can a defendant be satisfied that he has been sentenced for the crime before the court rather than on the basis of material given to the Judge in secret and on which there is no opportunity to mitigate/deny. Indeed, if there is then an Appeal to the Court of Appeal against sentence the usual procedure would be for the single judge to view the PII before deciding if leave should be granted.

This is an area that the Court of Appeal is to review in the near future and this may help to show the concern that the Court of Appeal has to re-visit as much of the PII procedures as possible. The Court of Appeal can only visit these areas if practitioners identify the points, argue them and appeal in those cases where the point is well made.