JUDGMENT
R (on the application of Wang Yam) (Appellant) v
Central Criminal Court and another (Respondents)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Clarke
Lord Sumption
Lord Reed
Lord Toulson
JUDGMENT GIVEN ON
16 December 2015
Heard on 2 November 2015
Appellant Respondents
Lord Pannick QC James Eadie QC
Kirsty Brimelow QC Jonathan Hall QC
Nikolaus Grubeck
(Instructed by Janes
Solicitors
)
(Instructed by The
Government Legal
Department
)
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LORD MANCE: (with whom Lord Neuberger, Lady Hale, Lord Clarke, Lord
Sumption, Lord Reed and Lord Toulson agree)
Introduction
1. The issue before the Supreme Court lies within a very narrow compass. The
appellant is applying to the European Court of Human Rights to challenge the
fairness of his trial because it was held partially in camera. The United Kingdom
has in its observations to the court resisted this application. The appellant wishes to
be permitted in his response to disclose and refer to contents of the evidence given
in camera. The limited issue now before the Supreme Court is whether the English
courts have any discretionary power in any circumstances to refuse to permit the
appellant to do this at this stage of the proceedings before the European Court of
Human Rights. If the English courts have any discretion at all in this regard, the
question whether circumstances exist justifying its exercise in this case is not before
the Supreme Court.
2. In a purely domestic context, it is now common ground that the English
courts have a discretionary power to refuse to permit disclosure of material deployed
in camera. The issue on this appeal is whether this power ceases or ceases to be
exercisable, whatever the circumstances, once an applicant to the European Court
of Human Rights decides that he wishes to disclose the material to that court in the
context (here) of a complaint that the in camera proceedings made his trial unfair.
The appellant invokes in this connection obligations which he alleges are imposed
on the United Kingdom at the international level under article 34 of the European
Convention on Human Rights, an article not incorporated into United Kingdom law
by the Human Rights Act 1998.
The appellant’s conviction
3. In circumstances which attracted much public attention at the time, Mr Allen
Chappelow, an 86-year old reclusive writer, was on 14 June 2006 found to have
been murdered, plainly some weeks beforehand, in his house in Downshire Hill,
Hampstead, London. The appellant, who lived two or three streets away, was
subsequently charged with his murder and with associated offences of fraudulent
misuse of his identity and bank accounts. The appellant denied the murder charge
and alleged that he had been given the deceased’s cheques, credit cards and banking
information by gangsters who he named as “Gaz”, Zhao Dong and Ah Ming. He
gave descriptions of them and places they frequented or where, in the case of Ah
Ming, he said he worked. The appellant alleged that they were responsible for the
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theft of the deceased’s identity and that he was playing along with them as a means
of assembling evidence against them and reporting them.
4. The Crown applied for an order that part of the trial relating to this defence
take place in camera in the interests of national security and to protect the identity
of a witness or other person. The judge, Ouseley J, considered this exceptional
application in the light of the relevant case law of the European Court of Human
Rights. By judgment and order dated 15 January 2008 he held that the risks to
national security and to witnesses or others, together with the risk that no trial at all
might otherwise be possible, justified the making of the order sought and that the
defendant would have a fair trial were it to be made. The Court of Appeal (Criminal
Division) (Lord Phillips of Worth Matravers CJ, Silber and Underhill JJ) upheld this
decision by judgment dated 28 January 2008, after considering the in camera
material.
5. On a first trial, the jury could not agree on the murder charge, but convicted
the appellant on charges of fraudulent misuse of the deceased’s identity and bank
accounts. (That was a conviction which the jury should not have been allowed to
deliver while the murder charge and a retrial were outstanding, and it was
subsequently set aside by the Court of Appeal.) On a retrial, a second jury on 16
January 2009 convicted the appellant of both murder and burglary, and he was
sentenced to life imprisonment with a minimum term of 20 years. During the trial,
because of the appellant’s difficulty in keeping distinct the sensitive and nonsensitive aspects of his evidence, the entire defence case was heard in camera in the
presence of the appellant and those representing him, who were Mr Robertson QC
leading Ms Brimelow instructed by Janes Solicitors. At the end of the retrial,
Ouseley J made a further order that nothing be published revealing any evidence or
other matter heard or dealt with in camera, other than that which had been said in
public during the proceedings.
The appeal against conviction
6. The appellant appealed against his conviction, on the grounds that, in the light
of the hearing of part of the trial in camera, the conviction was unsafe. The fairness
of this procedure was again considered by the Court of Appeal (Criminal Division)
(Hughes V-P, Saunders and Thirlwall JJ), this time in the light of the way the trial
had actually proceeded and again after considering the in camera material. The court
dismissed the appeal in a full judgment dated 5 October 2010. Inter alia, it addressed
submissions advanced on behalf of the appellant by Mr Robertson QC in a passage
which also indicates how substantially the essence of the appellant’s case was in fact
publicly disclosed:
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“21. … He [Mr Robertson] contends that if the evidence
which was taken in private, which consisted of four witnesses
plus that of the defendant, had been heard in public, there
would have been likely to be significantly greater media
coverage of the trial, and that there is a real possibility that
additional witnesses supporting the defendant in his case would
have come forward on seeing it. In particular, he suggests that
there is a real possibility that witnesses would have come
forward to confirm the existence and gangster characteristics
of those whom the defendant blamed for the supply to him of
the deceased’s cheques, credit card and banking information.
Secondly, he says, there may well have been further evidence
of the essentially good and non-violent past character of the
defendant.
22. This possibility was considered carefully at the time of
the decision to conduct part of the case in camera. We are
unable to see that it can be more than the merest speculation.
Most of the trial was conducted in public. The defendant was
able to name the three persons who he said were responsible
for the supply of the cheques and to give a good deal of
circumstantial identifying material. The order for the taking of
evidence in private had excluded that part of his evidence,
expressly so that it could be heard by anyone who chose to be
in court, but the defendant when he came to give evidence was
unable to confine himself even for a brief period to this kind of
material and so it was in the end necessary for all his evidence
to be taken in private. Nevertheless, the information about the
alleged gangsters was available to be put to several Crown
witnesses who gave evidence in open court, including the
officer in the case who was cross-examined about them and
about what efforts had been made to trace them. Moreover, at
the first trial counsel for the defendant had made an opening
statement after the Crown opening – in public – and had had the
opportunity, taken as we understand it, to identify the persons
on whom, on the defendant’s case, the defence turned. At the
second trial a similar statement could no doubt have been made,
but as a matter of trial strategy no request to do so was made.
The existence of Aming [Ah Ming] was confirmed by at least
one witness and other information about him was elicited. The
defendant was also able to advance, in open court, a number of
allegations against a prosecution witness, He Jia Jin, and to put
before the jury material which suggested, perhaps without
much in the way of proof but advantageously so to the
defendant, that that man similarly participated in nefarious
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activities. This all happened twice, in two trials a year or so
apart. We are unable to accept that there is a real possibility that
other evidence would have emerged given further publicity and
that such would have been exculpatory. In reaching that
conclusion we have taken into account the enormously strong
evidence, summarised below, that the defendant’s account of
being involved only in very limited use of the deceased’s
identity and bank accounts at the behest of others, was simply
not true.
23. Insofar as Mr Robertson suggested that further material
might also have emerged on which to cross-examine the few
witnesses who gave evidence in private this was not made out.
The kind of material to which he referred was available at the
time and no attempt was made to deploy it.
24. The suggestion that additional good character evidence
might also have emerged is similarly unarguable. There was a
great deal of evidence of the defendant’s character, both
praiseworthy and non-violent on the one hand and less good,
involving a history of forgery and dishonesty, on the other. The
judge summed it up very favourably to the defendant.”
The appellant’s application to the European Court of Human Rights
7. By Application No 31295/11 lodged on 28 April 2011 the appellant, again
represented by Mr Robertson and Ms Brimelow instructed by Janes Solicitors, has
initiated proceedings against the United Kingdom before the European Court of
Human Rights, complaining inter alia that his trial and conviction were unfair and
violated article 6.1 of the Convention because of the in camera hearing of that part
of the trial that went to his defence. The evidential prejudice alleged (in the
applicant’s application dated 28 April 2011) to have arisen from material being
deployed in camera, rather than in public, is the same as that previously alleged and
considered by the English trial and appellate courts, namely:
“42. If the trial had been conducted in the normal way – in
public – it could have encouraged additional witnesses, who
would have supported the defence, to come forward. It would
have placed witnesses called by the Crown under public
scrutiny.
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43. In particular, there is a real possibility- that witnesses
who were able to substantiate the applicant’s defence that he
was being supplied with material stolen from the deceased by
‘gangsters’, would have made themselves known. Not only
could these witnesses have given evidence for the defence, but
they also could have provided material with which defence
counsel could have cross-examined prosecution witnesses. To
that end, the defence was impaired by being unable to properly
challenge the case against Mr Yam and present an alternative
explanation. A public reporting of this case, undoubtedly,
would have raised awareness within the close knit Chinese
community in London and the confidence raised by open
criminal due process would have encouraged witnesses to
come forward.”
8. The United Kingdom in observations dated 9 April 2013 has submitted that
the application should be declared manifestly ill-founded and inadmissible or
alternatively dismissed on the merits. The issue has thus subsequently arisen,
whether the appellant can or should be permitted to refer to the contents of in camera
material in his response to the United Kingdom’s observations. The European Court
of Human Rights on 30 August 2013 extended the time for any response to allow
the appellant to apply to the English courts for leave to refer to the contents of in
camera material in his response. The court when doing this confirmed that it “has
procedures in place to ensure the safe storage of secret documents, should the need
arise”.
The further application to Ouseley J and the present judicial review proceedings in
respect of his ruling
9. The appellant duly made an application to Ouseley J. The Attorney General
intervened as an interested party. A certificate dated 11 December 2013 was made
by the Rt Hon William Hague MP, Secretary of State for Foreign and
Commonwealth Affairs, stating that he had considered “in camera” material set out
in a schedule (not itself disclosed to those acting for the appellant) together with the
appellant’s draft of the response which he wishes to put before the European Court
of Human Rights, and that:
“10. I have concluded that there would be a real risk of
serious harm to an important public interest were either the
Order to be discharged in its entirety, or in part, permitting
disclosure of the ‘in camera’ information, or were disclosure to
be made to the Strasbourg court of the information in the draft
‘response document’.
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11. It is not possible for me to be specific in this certificate
about the precise harm that disclosure of the information in
question would cause, since my doing so would be liable to
cause the very damage that the certificate seeks to avoid. Full
details are, however, given for the benefit of the court in the
Schedule to this certificate.”
10. On 27 February 2014 Ouseley J ruled that the appellant was not and should
not be able to disclose the in camera material in his response and, for the avoidance
of doubt, expanded the wording of his order of 15 January 2008 to make this express.
The appellant brought proceedings challenging the ruling by way of judicial review.
On 31 October 2014, the Divisional Court (Elias LJ and Hickinbottom J) granted
permission for judicial review, but dismissed the application on its merits.
11. Before Ouseley J and the Divisional Court, Ms Brimelow QC representing
the appellant referred to the Supreme Court’s decision in Bank Mellat v HM
Treasury (No 2) [2013] UKSC 38; [2014] AC 700. The Supreme Court there held
by a majority that it must in the interests of justice be able on an appeal to consider
closed material deployed before a first instance judge. She submitted that the
Supreme Court should adopt similar reasoning as regards in camera material, in the
context of the appellant’s current application to the European Court of Human
Rights.
12. Ouseley J was referred to articles 34 and 38 of the Convention and to case
law of the European Court of Human Rights dealing with their effect. Articles 34
and 38 bind the United Kingdom at the international level. They are not incorporated
into English law by the Human Rights Act 1998. They read:
“34. Individual applications The court may receive
applications from any person, nongovernmental organisation
or group of individuals claiming to be the victim of a violation
by one of the High Contracting Parties of the rights set forth in
the Convention or the Protocols thereto. The High Contracting
Parties undertake not to hinder in any way the effective
exercise of this right.
38. Examination of the case The court shall examine the
case together with the representatives of the parties and, if need
be, undertake an investigation, for the effective conduct of
which the High Contracting Parties concerned shall furnish all
necessary facilities.”
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13. Ms Brimelow submitted that, although articles 34 and 38 are not part of
domestic law, domestic courts should, so far as free to, act consistently with the
obligations which she submitted that they involve under international law, and
should leave it to the European Court of Human Rights to make such use as it may
decide of its own procedural powers to hear the case in camera and to protect the in
camera material.
14. In the light of the parties’ submissions and after considering the open
certificate as well as its closed schedule, Ouseley J reconsidered whether disclosure
as sought by the appellant should be permitted. He concluded that it should not be.
On the material before him, he held that “The purpose of the ‘in camera’ order would
be put at risk by disclosure of the ‘in camera’ material to the Strasbourg Court”. He
said that, although “a court should not stand in the way of what an applicant wishes
to place before Strasbourg, unless there is very good reason to do so”, he had “no
doubt that there are very good reasons to do so in this case” (para 50). Any
obligations arising under articles 34 and 38 of the European Convention on Human
Rights operated on the United Kingdom at the international level only (para 51). He
was not satisfied that the European Court of Human Rights would insist on
disclosure to it by the United Kingdom of the in camera material (para 52).
Undertaking, as a domestic court, the balancing exercise referred to by the European
Court of Human Rights in Janowiec v Russia (2013) 58 EHRR 792, he had “no
doubt but that the balance lies in favour of non-disclosure to the Strasbourg court,
even assuming the use by it of its protective procedural powers”, bearing “in mind
the nature of the evidence as to the interests to be protected, the decisions made thus
far on that by the trial and appellate courts, the degree of risk and the possible
consequences of disclosure” (para 58).
15. Ouseley J further amplified his reasons for these conclusions, noting, as had
done the Court of Appeal (Criminal Division) (para 6 above), the speculative nature
of the appellant’s case that a trial in the open would have led to either the named
gangsters or any third party coming forward (para 62). He went on:
“63. There is nothing in this point, and nothing to go in the
balance favouring disclosure beyond allowing the ECtHR to
reach that same, and to my mind inevitable, conclusion itself.
That is not nearly enough. I say that, having seen the partial
draft of the response which Ms Brimelow wishes to submit to
the ECtHR.”
16. The United Kingdom government had also suggested that, with various
amendments, the appellant’s response could avoid any breach of the prohibition on
disclosure. As to this Ouseley J said:
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“64. … Those amendments would permit the response
document to be submitted and it would then convey something
of the flavour of the envisaged submissions. However, if the
application on that basis were declared admissible, I doubt that
they could all be effectively pursued let alone answered,
without the ‘in camera’ material. But, with the ‘amended’
response document, the Strasbourg court would be in a better
position to judge relevance and what requirement, if any, it
should place on the UK Government in relation to the ‘in
camera’ material.
65. At present, therefore, I see no reason to vary the order
to enable the material to be deployed before Strasbourg. The
Government will have to see how far it can persuade the
Strasbourg court not to ask for the material, whether or not in
camera, and then decide whether or not to comply with any
obligations which Strasbourg may impose. It is not for this
court to make that decision for it, let alone at this stage.
66. If the Government wished to disclose material covered
by the order, the court would again consider an application for
its variation or discharge. The Government is just as much
covered by the order as Wang Yam and his lawyers. To the
extent that the order covers the use of the ‘in camera’ material
in applications to Strasbourg, whether under its own ‘in
camera’ rules or not, it would be a breach of the order by either
party or others to refer to that material without variation of the
order or its discharge.”
17. Before the Divisional Court Ms Brimelow advanced essentially the same
submissions as had been advanced before Ouseley J. The Divisional Court gave
essentially the same reasons for rejecting them. It noted that the right of access to
the European Court of Human Rights operates at the international level, and is not
analogous to a domestic right of appeal. It said that it was far from clear that the
European Court of Human Rights would consider that the order made would infringe
Convention principles; and that, in any event, there was no absolute obligation on a
domestic court to exercise a domestic discretion in a way which would ensure that
the United Kingdom acted compatibly with its international obligations (paras 16 to
22, 28 and 35).
18. The Divisional Court was asked not to look at and did not look at the in
camera material. It was told that there was in this regard “a further matter which
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[the appellant] may wish to pursue at a later occasion”. The Divisional Court
addressed this “further matter” as follows:
“59. … He [the appellant] wishes to contend that even if in
principle it was open to the judge to make an order interfering
with the way in which he wished to present his case, in the
particular circumstances of this case the order ought not to have
been made. The judge gave disproportionate weight to the
national security considerations. The claimant said that he was
unable to run this argument because in order to do so his
lawyers needed to be able to see the material which had only
been disclosed in the closed session, but they were unable to
do. The reason is that the Secretary of State has required certain
undertakings to be complied with before permitting access to
the material. The claimant’s lawyers say that these are
unjustified conditions and they have refused to comply; hence
there has been a stand-off. We were not asked to resolve this
matter and in any event we were not in a position to do so.
Moreover, we were asked in the circumstances not to look at
the confidential material, and have not done so.
60. I confess that it is not clear to me from the grounds that
this point had been raised. Counsel has undertaken to give
careful consideration as to whether in all the circumstances it
is still proper to pursue that ground. If it is pursued, there
should be a short hearing before the same court if possible.”
19. The Divisional Court certified the following point of law as being of general
public importance, but refused permission to appeal on it to the Supreme Court:
“Is there a power under the common law or under section 12 of
the Administration of Justice Act 1960 to prevent an individual
from placing material before the European Court of Human
Rights? If so, can the power be exercised where the domestic
court is satisfied that it is not in the interests of state for the
material to be made public even to the Strasbourg court?”
The Supreme Court granted permission to appeal. The parties appearing are the
appellant, represented by Lord Pannick QC leading Ms Brimelow QC and Nikolaus
Grubeck instructed by Janes Solicitors, and the Attorney General as an interested
party.
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The parties’ cases before the Supreme Court
20. Before the Supreme Court, Lord Pannick QC accepted, indeed emphasised,
that the appellant’s case depends on the proposition that the courts below had no
relevant power or discretion to exercise at all. This proposition in turn depends upon
the submission that the existence or exercise of any such power or discretion would
inevitably involve the United Kingdom in a breach of international obligations owed
under article 34, at least once an appellant determines to refer to the contents of in
camera material in submissions to the European Court of Human Rights. The
“further matter” referred to by the Divisional Court (para 18 above) does not and
cannot arise on this appeal, since it would involve a challenge to the reasonableness
or proportionality of the exercise of any power or discretion which exists. This
matter was not argued before the Divisional Court, was linked with the closed
schedule which the appellant’s advisers have not seen and was left over for further
pursuit, if the appellant’s advisers thought proper (as they do not appear, at least as
yet, to have done), before the Divisional Court.
21. In relation to the first stated question, both parties have on this appeal
proceeded on the basis that any relevant power is to be found in the common law. It
is thus unnecessary in this judgment to consider section 12(1)(c) of the
Administration of Justice Act 1960, on which the Divisional Court also relied and
to which the first certified question set out in para 19 above refers, or section 11 of
the Contempt of Court Act 1981, the application of which the Divisional Court
considered but did not find it necessary to decide. Lord Pannick accepts that in a
purely domestic context the common law power extends to enable the protection of
the national interest and/or the interests of witnesses or others by an order regarding
in camera material such as Ouseley J made on 15 January 2008. But in his
submission no such power can exist or continue to be exercisable in any
circumstances where its use would put the United Kingdom in breach of an
international obligation. The only basis upon which the power could be exercised
inconsistently with such an obligation would be, he submitted, if Parliament
expressly authorised this. The international obligation on which he relies before the
Supreme Court is article 34, rather than article 38, of the Convention.
Analysis
22. The appellant can (as I have emphasised) only succeed on this appeal by
making good a proposition that there are no circumstances in which refusal to permit
disclosure of the in camera material to the European Court of Human Rights in the
appellant’s response could be justified. For reasons which appear in paras 24 to 34
below, that proposition is not in my opinion made good at the international level by
reference to the Convention and case law of the European Court of Human Rights.
Moreover, even if it were made good at the international level, it would not, in my
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opinion and for reasons which appear in paras 35 to 38, follow that the English
courts would as a matter of domestic law be obliged to give effect to it.
23. The right of access to the European Court of Human Rights in Strasbourg is
a right conferred by the Convention at the international level. The European Court
of Human Rights is an independent international court, not another tier in the
domestic appellate structure. The domestic principles according to which a domestic
appellate court may have access to all the materials available to a first instance court
have no direct application. Further, any obligations which the United Kingdom may
have under articles 34 and 38 operate at the international level, not at a domestic
level. However, as stated already, Lord Pannick submits that the United Kingdom is
currently under international obligations under article 34, which must under
domestic law be seen as controlling the domestic power to restrict disclosure of in
camera material. I will address this submission, starting with the question whether
it is made good at the international level.
The international legal position under article 34
24. The submission is that the United Kingdom would, contrary to article 34, be
hindering the effective exercise of the appellant’s right of application to the
European Court of Human Rights, whereby he claims to be the victim of a violation
of article 6 of the Convention because of the in camera procedure adopted at his
trial. The application itself has been made without hindrance, but Lord Pannick’s
submission is, clearly, that its effective exercise includes its pursuit and that the
English courts can and should conclude that this is being hindered by the appellant’s
inability at this stage to refer to the in camera material in his response.
25. The appellant asks the English courts to accept this, in circumstances where
English courts have repeatedly examined the question whether it was both necessary
and fair to hold part of the trial in camera and have repeatedly concluded that it was.
The appellant and those representing him knew of and were able to address the in
camera material at trial and on appeal. It arose, as Lord Pannick noted, from the
appellant’s own defence. The appellant’s assertion that publication of its content
would in any way have advanced his defence has repeatedly been rejected as
implausible. The appellant’s current appeal can only succeed if one accepts that the
inability to deploy the in camera material in the appellant’s response will inevitably
constitute a breach by the United Kingdom of an obligation owed by it in
international law under article 34. In my opinion, that is not shown to be the case,
and in any event, if any court is to reach such a conclusion, it must be the European
Court of Human Rights, not the English courts.
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26. Case law of the European Court of Human Rights on article 34 is limited.
Sisojeva v Latvia (2007) 45 EHRR 753 to which the Supreme Court was referred
concerned the very different subject matter of pressure to dissuade or discourage
pursuit of a Convention remedy. The European Court of Human Rights reiterated,
uncontroversially, that:
“115. … it is of the utmost importance for the effective
operation of the system of individual petition instituted by
article 34 of the Convention that applicants or potential
applicants are able to communicate freely with the court
without being subjected to any form of pressure from the
authorities to withdraw or modify their complaints.
116. The word ‘pressure’ must be taken to cover not only
direct coercion and flagrant acts of intimidation of applicants
or their families or legal representatives but also other improper
indirect acts or contacts designed to dissuade or discourage
them from pursuing a Convention remedy. Whether or not
contacts between the authorities and an applicant or potential
applicant amount to unacceptable practices from the standpoint
of article 34 must be determined in the light of the particular
circumstances in issue.”
The actual decision was that there was insufficient evidence that the questioning by
security police in the circumstances of that case
“should be regarded as a form of ‘pressure’, ‘intimidation’ or
‘harassment’ which might have induced the applicants to
withdraw or modify their application or hindered them in any
other way in the exercise of their right of individual petition.”
(para 124)
27. Contrary to the appellant’s case, it is in my opinion relevant to look in the
present context not just at article 34, but also at article 38. On the appellant’s case
under article 34 he would be the sole judge of what is necessary at this stage for the
effective presentation of his case in Strasbourg. This would be so, even though the
English courts have, as I have mentioned, repeatedly concluded both that it would
be prejudicial to the national interest, to witnesses or to others, if the disclosure were
made, and that it was not unfair to him that the disclosure he wishes should not be
made. In contrast, the order under appeal leaves it at the international level to the
European Court of Human Rights to consider and decide under article 38 whether
any and if so what further material should be requested from the United Kingdom
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to enable it to consider the appellant’s case both at the admissibility stage and, if the
matter were to go further, on the merits. Further, the case law of the European Court
of Human Rights indicates that that Court will not in this context act as if it were a
fourth-instance appeal court re-determining issues of national security, but will
review the domestic adjudication on the issues involved and, if satisfied of its
fairness and thoroughness, may accept the outcome without insisting on automatic
disclosure to itself of secret material.
28. The most relevant case law consists of Janowiec v Russia (2013) 58 EHRR
792 and Al Nashiri v Poland (2014) 60 EHRR 393. As the reference (above) to
“secret material” indicates, these two cases concerned “closed” material held and
used by the relevant state which the applicants to Strasbourg had never seen. In
contrast, the present appeal concerns material which the appellant and his
representatives have been able to see and address in camera both at trial and on
appeal. The complaint is simply that its publication to the world at large might have
been beneficial to his defence. That is a difference which in my opinion may well
weigh with the European Court of Human Rights, as a factor inclining that court to
accept the judgment of domestic courts which have adjudicated fairly and
thoroughly on the question whether material should, in the interests of national
security, witnesses and others, remain in camera at and after trial.
29. In Janowiec the applicants were relatives of the alleged victims of a massacre
of Polish prisoners of war held at Ostashkoy in 1940, for which massacre Russia in
1990 accepted responsibility. They had been refused access to Russian prosecutorial
investigation files as well as to a decision on 21 September 2004 to discontinue the
criminal case on the ground that the persons responsible were already dead. The
European Court of Human Rights in holding that there had been a breach of article
38 said this (italics added):
“208. The court reiterates that article 38 of the Convention
requires the Contracting States to furnish all necessary facilities
to the court, whether it is conducting a fact-finding
investigation or performing its general duties as regards the
examination of applications. Being master of its own procedure
and of its own rules, the court has complete freedom in
assessing not only the admissibility and the relevance but also
the probative value of each item of evidence before it. Only the
court may decide whether and to what extent the participation
of a particular witness would be relevant for its assessment of
the facts and what kind of evidence the parties are required to
produce for due examination of the case. The parties are
obliged to comply with its evidential requests and instructions,
provide timely information on any obstacles in complying with
them and provide any reasonable or convincing explanations
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for failure to comply. It is therefore sufficient that the court
regards the evidence contained in the requested decision as
necessary for the establishment of the facts in the present case.
209. As regards the allegedly derivative nature of the
obligation to furnish all necessary facilities for its investigation,
flowing from article 38 of the Convention, the court reiterates
that this obligation is a corollary of the undertaking not to
hinder the effective exercise of the right of individual
application under article 34 of the Convention. Indeed, the
effective exercise of this right may be thwarted by a
Contracting Party’s failure to assist the court in conducting an
examination of all circumstances relating to the case, including
in particular by not producing evidence which the court
considers crucial for its task. Both provisions work together to
guarantee the efficient conduct of the judicial proceedings and
they relate to matters of procedure rather than to the merits of
the applicants’ grievances under the substantive provisions of
the Convention or its Protocols. Although the structure of the
court’s judgments traditionally reflects the numbering of the
articles of the Convention, it has also been customary for the
court to examine the Government’s compliance with their
procedural obligation under article 38 of the Convention at the
outset, especially if negative inferences are to be drawn from
the Government’s failure to submit the requested evidence. …
Furthermore, it is not required that the Government’s alleged
interference should have actually restricted, or had any
appreciable impact on, the exercise of the right of individual
petition. The court reaffirms that the Contracting Party’s
procedural obligations under articles 34 and 38 of the
Convention must be enforced irrespective of the eventual
outcome of the proceedings and in such a manner as to avoid
any actual or potential chilling effect on the applicants or their
representatives.”
30. As to national security considerations, the court said:
“213. The court reiterates that the judgment by the national
authorities in any particular case that national security
considerations are involved is one which it is not well equipped
to challenge. However, even where national security is at stake,
the concepts of lawfulness and the rule of law in a democratic
society require that measures affecting fundamental human
rights must be subject to some form of adversarial proceedings
Page 16
before an independent body competent to review the reasons
for the decision and the relevant evidence. If there was no
possibility to challenge effectively the executive’s assertion
that national security was at stake, the state authorities would
be able to encroach arbitrarily on rights protected by the
Convention.”
In Janowiec itself, there had been “no substantive analysis” by the Russian courts
of the reasons for maintaining the classified (secret) status, no “meaningful scrutiny”
of the executive assertions and no “independent review of whether the conclusion
that … declassification constituted a danger to national security had a reasonable
basis in fact” (para 214).
31. In Al Nashiri the two applicants had been detained for six and nine months
respectively in a secret CIA detention facility operated in a Polish training base in
Poland, where they alleged that they were not only unlawfully detained, but also
tortured and ill-treated. The Polish authorities refused access to findings of inquiries
by a Polish Parliamentary Committee and Regional Prosecutor. The European Court
of Human Rights had twice issued procedural orders for production of the nonconfidential part of the investigative file (para 358), and further found that the Polish
Government “had provided no ‘reasonable and solid grounds’ … to justify the
treatment of most of the relevant documents in the investigation as secret” (para
354).
32. The European Court of Human Rights concluded that there had been a breach
of article 38, and in para 363 repeated what it had said in para 208 in Janowiec.
Dealing specifically with cases where national security or confidentiality are
involved, the court in Al Nashiri returned to the theme of para 213 of its judgment
in Janowiec in these terms (italics added):
“365. The judgment by the national authorities in any
particular case that national security considerations are
involved is one which the court is not well equipped to
challenge. Nevertheless, in cases where the Government have
advanced confidentiality or security considerations as the
reason for their failure to produce the material requested, the
court has had to satisfy itself that there were reasonable and
solid grounds for treating the documents in question as secret
or confidential. Where such legitimate concerns exist, the court
may consider it necessary to require that the respondent
Government edit out the sensitive passages or supply a
summary of the relevant factual grounds.
Page 17
Furthermore, such concerns may, depending on the document,
be accommodated in the court’s proceedings by means of
appropriate procedural arrangements, including by restricting
access to the document in question under rule 33 of the Rules
of Court, by classifying all or some of the documents in the
case file as confidential vis-à-vis the public and, in extremis,
by holding a hearing behind closed doors.”
33. The reasoning in this case law makes clear the inter-play between articles 34
and 38. The European Court of Human Rights has a central role in deciding what
material should be disclosed to it: see especially the passages italicised in the
quotations from the judgments in Janowiec and Al Nashiri set out in paras 29 and
32 above. A suggestion of breach of article 34 is a matter for the European Court of
Human Rights to consider under article 38. It by no means follows that the court
will always order disclosure, even of secret material which the alleged victim has
never seen, and still less of in camera material which the alleged victim has seen
and addressed. On the contrary, the European Court of Human Rights recognises the
sensitivity of national security considerations, and the particular competence – one
might add responsibility – of national authorities in handling material affecting
national security or the safety of witnesses or others. Thus, in deciding whether to
order that material withheld by governmental authorities from an alleged victim
should be disclosed to it, the European Court of Human Rights will consider the
independence and thoroughness of the domestic procedure for reviewing the
authorities’ decision. It will consider in that light whether any and if so what further
disclosure should be made. It will by no means necessarily conclude that any further
disclosure was required.
34. Here, Ouseley J was satisfied at trial that the in camera procedure was
necessary and fair and on 27 February 2014 that it continued to be necessary and
fair that there should be no disclosure of the in camera material. He was satisfied
that there were “reasonable and solid grounds” for continuing non-disclosure. The
reasonableness and proportionality of his conclusion have not been (at least as yet)
challenged before the Divisional Court or therefore before the Supreme Court: para
20 above. But, even apart from that, I see no basis for concluding that the European
Court of Human Rights would either inevitably or probably conclude that any
further disclosure should be made to it. More importantly, it will – as Ouseley J said
in paras 64 to 66 of his judgment (para 16 above) – be for the European Court of
Human Rights to decide at an appropriate time under article 38 whether any and if
so what further disclosure should be made, rather than for the appellant to prejudge
its view by insisting on such disclosure as of right under article 34; and it will then
be for the United Kingdom to consider its position further. For this reason alone, I
would therefore dismiss this appeal.
Page 18
The domestic legal position
35. In the light of the above, the question whether the English courts’ domestic
power to restrain disclosure of in camera material is limited by reference to any
international obligation incumbent on the United Kingdom under article 34 does not
necessarily arise. But I can consider it shortly. The United Kingdom takes a dualist
approach to international law. The case does not concern the construction of a
statutory right, duty or power which would otherwise be of uncertain scope in a
context where it can be seen or presumed that Parliament intended the statute to
comply with the United Kingdom’s international obligations: see eg Garland v
British Rail Engineering Ltd [1983] 2 AC 751, 771A-C per Lord Diplock, R v
Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 747H748A per Lord Bridge and Assange v Swedish Prosecution Authority [2012] UKSC
22; [2012] 2 AC 471. It concerns a general discretionary common law power, to be
exercised in the light of all circumstances which the common law identifies as
relevant. The starting point in this connection is that domestic and international law
considerations are separate. In accordance with R v Secretary of State for the Home
Department, Ex p Brind [1991] 1 AC 696, R v Lyons [2002] UKHL 44; [2003] 1 AC
976, para 13 and R (Hurst) v London Northern District Coroner [2007] UKHL 13;
[2007] 2 AC 189, para 56, per Lord Brown of Eaton-under-Heywood with whose
reasons Lord Bingham of Cornhill and Lord Rodger of Earlsferry agreed at paras 1,
9 and 15, a domestic decision-maker exercising a general discretion (i) is neither
bound to have regard to this country’s purely international obligations nor bound to
give effect to them, but (ii) may have regard to the United Kingdom’s international
obligations, if he or she decides this to be appropriate.
36. In relation to point (i), even the minority who have suggested that a domestic
decision-maker should at least give consideration to international rights which can
properly be regarded as fundamental go no further: see per Lady Hale and Lord
Mance in Hurst at paras 18 and 78 to 79. Neither by reference to the principle of
legality, which refers to rights and obligations recognised at a domestic level, nor
on any other basis is it possible to limit the domestic court’s general discretion by
reference to unincorporated international obligations or to require Parliamentary
authorisation before a court can consider whether it should in particular
circumstances exercise such a discretion in a way which will or may prove
inconsistent with such obligations. For completeness, I add that, in the light of the
powers of the European Court of Human Rights under article 38, I would not regard
any obligation (if any) which is regarded as existing at this stage under article 34 as
fundamental in the sense under discussion in Hurst.
37. In the present case Ouseley J did have regard to the United Kingdom’s
international legal position under articles 34 and 38, but made clear (inter alia) that,
whatever the United Kingdom’s obligations might prove to be at the international
level, he did not consider the suggested relaxation of his order to allow disclosure in
Page 19
the appellant’s response to be appropriate. That was in my opinion an orthodox
approach to the exercise of his general discretion. He also made clear his willingness
to reconsider the position further, in the circumstances indicated in paras 64 to 66 of
his judgment (para 16 above).
38. In these circumstances, and bearing in mind that the only issue now before
the Supreme Court is whether Ouseley J had a common law power to maintain and
expand his order for non-disclosure, so as to cover the appellant’s application to the
European Court of Human Rights, as he did on 27 February 2014, this appeal must
also fail on the second ground.
Conclusions
39. In the light of the above, the appellant has not made good the proposition
which he needs to establish, namely that there are no circumstances in which refusal
to permit disclosure of the in camera material to the European Court of Human
Rights in the appellant’s response could be justified. First, he has not established at
the international level that the non-disclosure at this stage involves any breach by
the United Kingdom of any obligation under article 34 of the Convention: see paras
24 to 34. Second, even if a contrary conclusion had been reached on the first point,
it would not follow that the order maintained and made by Ouseley J on 27 February
2014 involved any breach of English law: see paras 35 to 38. It follows that, for each
of these separate reasons, this appeal must be dismissed.
