Elisabeth Palm;John Laws;Nicolas Bratza;Paul Mahoney

At the time of the introduction of the application , the applicant was serving a prison sentence . The background to his conviction is as follows .

According to the ORG ’s case the applicant , together with C. , S. and another , planned to carry out an armed robbery of a FAC van as it was due to leave ORG at FAC in GPE . C. and S. had worked for ORG and were familiar with the procedures necessary to send packages of great value through the post . Using up - to - date technology the conspirators posted a letter containing a tracking device . The letter was to appear , in due course , amongst other packages of a similar kind , in a mail van the conspirators proposed to rob . Unknown to them , the police were fully informed as to the robbery that had been planned .

On DATE , the date of the robbery , the police were keeping the area and conspirators under observation .

At TIME an Orion ( driven by C. ) parked in FAC , with its lights on , near the ORG depot . ORG arrived in FAC . The applicant emerged from ORG , dressed entirely in black . He made his way into the cemetery carrying a jacket over his arm . C. in the ORG then followed the ORG , only to return to FAC , where he parked the Orion with the headlights on .

At TIME the applicant was seen lying down by the railings , inside the cemetery , at a spot directly opposite FAC where there was a gap in the railings . At TIME he was disturbed by a passing resident , who stopped and spoke to him . He was also spotted by a ORG employee . The police officers observed the incident .

At TIME the applicant ran further back into the cemetery constantly stopping to face the depot and gesticulating in a manner consistent with his trying to attract the attention of C. in the Orion which was parked opposite . Having disappeared between the bushes for TIME , he re - appeared , now without his jacket , and ran further into the cemetery where he was arrested by armed officers .

C. was arrested in a motorcar near the mail van . In the car there was a walkie - talkie , a balaclava and some gloves .

Behind a bush where the applicant had been observed crouching at CARDINAL stage was found a light - coloured jacket with fibres on it matching those from the applicant ’s jumper . In the pocket of the jacket were a pair of handcuffs , a sock containing CARDINAL shotgun cartridges , and a canister of ORG gas . Partially buried near the jacket was a balaclava helmet . A short time later a police officer discovered a pair of gloves and a sawn - off shotgun buried nearby . All the items were shown to the applicant whilst still at the scene . He denied all knowledge of them .

S. was stopped after a high - speed car chase . In his car there was another walkie - talkie , through which connection could be made with that found in C. ’s car . Yet another car was found abandoned nearby . It was the ORG ’s case that that car had been driven by a fourth conspirator . In it was found a device capable of monitoring a police radio .

The trial against the applicant , PERSON on DATE at ORG , GPE . DATE , C. pleaded guilty and the jury were discharged . On DATE the trial of PERSON and the applicant began before a new jury . On DATE the applicant was convicted of conspiracy to rob , possession of a firearm and possession of a prohibited weapon , and he was sentenced to CARDINAL years’ imprisonment .

Prior to the start of the trial , on DATE , the prosecution applied ex parte to the trial judge for an order that they should not be required to disclose certain material to the defence . The defence were told that the material related to sources of information . The contents of the material in question were described to the trial judge by prosecuting counsel . Having later heard submissions from the defence that if any of this information touched upon the applicant ’s defence that he had been set up by PERSON ( see paragraph CARDINAL below ) , it ought to be disclosed , on DATE the trial judge refused to order disclosure . He stated , inter alia :

“ ... I ... adopted the principle that if something did or might help further the defence then I would order disclosure . I have not ordered disclosure . I have not found it necessary or right to adjourn proceedings , ex parte , in order for them to be inter partes ... ”

On DATE , having informed the defence , the ORG made a further ex parte application to the trial judge . Immediately thereafter , the judge held an inter partes hearing on the question whether a witness statement taken from ORG after his guilty plea should be disclosed to the defence . During the hearing prosecution counsel described the category of information which had been the subject of the ex parte application :

“ ... the application was CARDINAL - fold . CARDINAL part of the ... application ... concerned a renewal of the original ex parte application , namely concerning the source of the information . The second limb upon which approval was sought is such that even to deal with the area upon which it was argued that it ought not to be disclosed would , in fact , reveal what the area was and that particular concern was expressly covered in the case of PERSON , PERSON and PERSON [ see paragraphs CARDINAL - CARDINAL below ] which was [ held ] to be CARDINAL of the exceptions where one does not even state the category in case it result in revealing that which ... ought to be protected . ”

The judge read the entirety of the unedited witness statement and ruled :

“ What has happened here is the defendant , [ C. ] , pleaded guilty . The matter was adjourned so that the prosecution could take a statement from him . It is now known that he has made a statement , but he is not to be called as a witness . ... [ T]he prosecution has asked me to examine matters ex parte and I am satisfied that that was a correct application , that it was right that I should hear matters ex parte . As I indicated , had I changed my view during the hearing , I would have adjourned and heard the matter inter partes .

It is plain to everyone , including each defendant that the statement of [ C. ] must , first of all , have dealt with preparation of the conspiracy to which he has pleaded guilty and the events of DATE upon which he was arrested . The reason the prosecution say they should not serve that part of [ C. ] ’s statement is sources of information in the headline and my decision has been that the prosecution ’s attitude is correct . ... ”

In accordance with the judge ’s ruling , the defence were served with a summary of C. ’s statement , omitting any reference to sources of information .

The applicant gave evidence at trial . It was his case that he had agreed with ORG , who was his brother - in - law , to bury some items which he understood had been used in connection with a theft of motor vehicles . These items had come from a man called PERSON , from whom PERSON was buying a car . The items had been handed to the applicant by PERSON in CARDINAL bundles , wrapped in a brown coat , on the evening of CARDINAL DATE . The applicant said that ORG had asked him to bury the bundles at a particular spot in the cemetery . This he had proceeded to do on that TIME . After he had buried the items , he put the knife he used for digging the holes and the brown coat into a bag , which he then threw away . He denied all knowledge of the proposed robbery , of the light - coloured jacket , handcuffs , ORG canister , shotgun and cartridges .

The applicant alleged that he had been falsely implicated in the conspiracy by a participating informer , although he could only speculate as to the identity of the informer and as to that person ’s motives . He claimed that ORG had been having a relationship with PERSON ’s girlfriend , and that PERSON had sought , for purposes of revenge , to make it appear that PERSON was involved in an armed robbery .

On DATE the trial judge , in his summing - up to the jury , said :

“ That there was information from CARDINAL person in this case is accepted and must be the situation , must it not , otherwise why would the police be going to all this trouble watching ? Every rule has its exceptions and the law provides if a defendant in his trial is hindered in putting forward his defence by not knowing , first of all , whether or not there was an informer or , if he knows that , not knowing the identity of an informer , an application can be made to the judge and the judge has to be told the identity of the informer , or informers and he may order the prosecution to reveal that if a defendant is prejudiced in his defence . …

Well , it will be plain to you that in a case like this where there has been CARDINAL informer , the role of the informer has got to be examined with care and circumspection by you the jury in this trial . If the rules are observed not only by the police but also by the informer , or informers , the informer should not be told not [ sic ] to initiate crime or to promote it but , if crime is going on , he may be invited to string along with the plan and have a foot in both camps .

Of course an informer may overstep the mark , for example , and what is suggested here is that [ PERSON ] organised really a façade of conspiracy to rob possibly in order to take revenge on [ C. ] who was messing about with his girl , or for whatever reason ( perhaps a reward it is suggested ) and you must consider it : has [ PERSON ] so organised matters that [ C. ] would be arrested in incriminating circumstances and has [ the applicant ] been drawn into that web , [ S. ] possibly also being drawn into that web ? ”

The applicant appealed to ORG . Subsequent to his conviction he had discovered that C. had provided false information for reward on a number of occasions in the past . Therefore , in the course of the appeal proceedings , the applicant applied to ORG for disclosure of CARDINAL statements previously made by C. relating to alleged confessions to crime made by other prisoners or information about crimes allegedly witnessed or overheard by C. while he was at liberty . This application was refused by ORG , which was “ not persuaded that there [ was ] any proper basis for ordering such disclosure ” .

The applicant relied on CARDINAL grounds of appeal against conviction . The first ground concerned the rulings by the trial judge and the second related to the witness statement made by C. to the prosecution . It was submitted in particular that :

“ ... In his sentencing remarks the judge specifically referred to the existence of a ‘ participating informant’ who was instrumental in both the appellant and [ C. ] being arrested ; this was the first that the defence had heard of the existence of such an informant .

In the submission of the appellant , the interests of justice required that the undisclosed material which had been specifically withheld from the defence , and apparently relating to a participating informant , should have been made available to the defence . The defence was materially disadvantaged in presenting its case to the jury by its inability to establish even the existence , let alone the role , of this informant . Without this evidence the defence case of ‘ set - up’ rested upon a mere assertion which may well have been regarded by the jury as quite incredible and absurd . ...

... In the submissions of the defence , the actual text of the witness [ C. ’s ] statement , or such part or parts of it as were not covered by recognised public interest immunity or protection , ought to have been disclosed to them . If this was not practicable then a further statement should have been obtained which omitted the objectionable material . The course in fact adopted of giving a ‘ LAW was a naked device to prevent the proper disclosure of admittedly relevant material , and was specifically designed to thereby advantage the ORG and to disadvantage the defence . ”

On DATE ORG upheld the applicant ’s conviction , observing :

“ ... During the course of the proceedings the prosecution successfully applied ex parte to the judge for an order that they not be required to disclose certain material to the defence , save to the extent that the defence were told that the material related to sources of information . Having later heard submissions from the defence that if any of the material in question touched upon the applicant ’s defence that he had been set up by [ PERSON ] , it ought to be disclosed , on DATE the judge refused to order any disclosure of the materials .

These rulings by the judge are the subject of the first ground of appeal ... It is said that the interests of justice required that the undisclosed material should have been disclosed to the defence . We can see no reason to disagree with the judge ’s ruling . He made it clear that if any of the material ‘ did or might help the defence’ he would order disclosure . He obviously considered the matter carefully before giving his ruling . There is no substance in this ground of appeal .

The second ground of appeal relates to a witness statement made by [ C. ] as a witness for the ORG . On DATE the ORG applied ex parte to the judge to approve the non - disclosure of [ C. ] ’s witness statement and to approve the alternative course proposed by the ORG , which was to provide a summary of the witness statement . The judge granted the application and approved the proposed course . Again , we see no reason to disagree with the judge ’s decision in this matter . ...

Accordingly , this renewed application for leave to appeal against conviction is refused . ”

At common law , the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial . The duty also extends to statements of any witnesses potentially favourable to the defence .

In DATE the Attorney - General issued Guidelines , which did not have the force of law , concerning exceptions to the common - law duty to disclose to the defence certain evidence of potential assistance to it ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL : “ the Guidelines ” ) . The Guidelines attempted to codify the rules of disclosure and to define the prosecution ’s power to withhold “ unused material ” . Under paragraph CARDINAL , “ unused material ” was defined as :

“ ( i ) All witness statements and documents which are not included in the committal bundle served on the defence ; ( ii ) the statements of any witnesses who are to be called to give evidence at the committal and ( if not in the bundle ) any documents referred to therein ; ( iii ) the unedited version(s ) of any edited statements or composite statement included in the committal bundles . ”

According to the LAW , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was “ sensitive ” material which , because of its sensitivity , it would not be in the public interest to disclose . “ Sensitive material ” was defined as follows :

“ ... ( a ) it deals with matters of national security ; or it is by , or discloses the identity of , a member of ORG who would be of no further use to those services once his identity became known ; ( b ) it is by , or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger ; ( c ) it is by , or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known ; ( d ) it contains details which , if they became known , might facilitate the commission of other offences or alert someone not in custody that he is a suspect ; or it discloses some unusual form of surveillance or method of detecting crime ; ( e ) it is supplied only on condition that the contents will not be disclosed , at least until a subpoena has been served upon the supplier – e.g. a bank official ; ( f ) it relates to other offences by , or serious allegations against , someone who is not an accused , or discloses previous convictions or other matters prejudicial to him ; ( g ) it contains details of private delicacy to the maker and/or might create risk of domestic strife . ”

According to paragraph CARDINAL , “ in deciding whether or not statements containing sensitive material should be disclosed , a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence ” . The decision as to whether or not the balance in a particular case required disclosure of sensitive material was CARDINAL for the prosecution , although any doubt should be resolved in favour of disclosure . If either before or during the trial it became apparent that a duty to disclose had arisen , but that disclosure would not be in the public interest because of the sensitivity of the material , the prosecution would have to be abandoned .

NORP Since DATE the Guidelines have been superseded by the common law , notably by a number of decisions of ORG .

In NORP v. Ward ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) ORG dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity . It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case , because :

“ ... [ When ] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings . Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence . If , in a wholly exceptional case , the prosecution are not prepared to have the issue of public interest immunity determined by a court , the result must inevitably be that the prosecution will have to be abandoned . ”

ORG described the balancing exercise to be performed by the judge as follows :

“ ... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand , the interests of justice . Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life , the weight to be attached to the interests of justice is plainly very great indeed . ”

In NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , ORG emphasised that , in performing the balancing exercise referred to in NORP v. Ward , the court must view the material itself :

“ In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity . When public interest immunity is claimed for a document , it is for the court to rule whether the claim should be upheld or not . To do that involves a balancing exercise . The exercise can only be performed by the judge himself examining or viewing the evidence , so as to have the facts of what it contains in mind . Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure . ”

This judgment also clarified that , where an accused appeals to ORG on the ground that material has been wrongly withheld , ORG will itself view the material ex parte .

In NORP v. PERSON , PERSON and PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , ORG held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity , and outlined CARDINAL different procedures to be adopted .

The first procedure , which had generally to be followed , was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held . The defence then had the opportunity to make representations to the court .

Secondly , however , where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed , the prosecution should still notify the defence that an application to the court was to be made , but the category of the material need not be disclosed and the application should be ex parte .

The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question . In such cases the prosecution should apply to the court ex parte without notice to the defence .

The Court of Appeal observed that although ex parte applications limited the rights of the defence , in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute , and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest . It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing , the defence had “ as much protection as can be given without pre - empting the issue ” . Finally , it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed . Issues might emerge during the trial which affected the balance and required disclosure “ in the interests of securing fairness to the defendant ” . For this reason it was important for the same judge who heard any disclosure application also to conduct the trial .

In NORP v. PERSON ( DATE ] CARDINAL Weekly Law Reports CARDINAL ) ORG emphasised that , since the ex parte procedure outlined in PERSON , PERSON and PERSON was “ contrary to the general principle of open justice in criminal trials ” , it should be used only in exceptional cases . It would be an abdication of the prosecution ’s duty if , out of an abundance of caution , it were simply “ to dump all its unused material in the court ’s lap and leave it to the judge to sort through it regardless of its materiality to the issues present or potential ” . Thus , the prosecution should put before the court only those documents which it regarded as material but wished to withhold . “ Material ” evidence was that which could , on a sensible appraisal by the prosecution , be seen ( i ) to be relevant or possibly relevant to an issue in the case ; ( ii ) to raise or possibly raise a new issue the existence of which was not apparent from the evidence the prosecution proposed to use ; or ( iii ) to hold out a real ( as opposed to fanciful ) prospect of providing a lead of evidence going to ( i ) or ( ii ) . Exceptionally , in case of doubt about the materiality of the documents or evidence , the court might be asked to rule on the issue . In order to assist the prosecution in deciding whether evidence in its possession was “ material ” , and the judge in performing the balancing exercise , it was open to the defence to indicate any defence or issue which they proposed to raise .

In NORP v. PERSON ( The ORG , DATE ) , ORG held that a failure by the prosecution to disclose the fact that a prosecution witness whose evidence was challenged had applied for or received a reward for giving information was a material irregularity which justified overturning a conviction .

In NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , ORG reviewed the operation of the Guidelines . It stated :

“ The Attorney - General ’s objective was no doubt to improve the existing practice of disclosure by the ORG . That was a laudable objective . But the Attorney - General was not trying to make law and it was certainly beyond his power to do so ... The Guidelines are merely a set of instructions to ORG lawyers and prosecuting counsel ... Judged simply as a set of instructions to prosecutors , the LAW would be unobjectionable if they exactly matched the contours of the common law duty of disclosure ... But if the LAW , judged by the standards of DATE , reduce the common - law duties of the ORG and thus abridge the common - law rights of a defendant , they must be pro tanto unlawful ...

[ T]oday , the Guidelines do not conform to the requirements of the law of disclosure in a number of critically important respects . First , the judgment in LOC established that it is for the court , not prosecuting counsel , to decide on disputed questions as to discloseable materials , and on any asserted legal ground to withhold production of relevant material ... For present purposes the point of supreme importance is that there is no hint in the Guidelines of the primacy of the court in deciding on issues of disclosure ... Secondly , the guidelines are not an exhaustive statement of the ORG ’s common law duty of disclosure : NORP v. Ward at CARDINAL and CARDINALD. To that extent too the Guidelines are out of date . Thirdly , the LAW were drafted before major developments in the field of public interest immunity . [ I]n paragraph CARDINAL the Guidelines are cast in the form of a prosecutor ’s discretion ... Much of what is listed as ‘ sensitive material’ is no doubt covered by public interest immunity . But not everything so listed is covered by public interest immunity ... ”

In the case of NORP v. PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , ORG returned to the balancing exercise , stating , inter alia :

“ Since NORP v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants’ names and roles , alleging that those details are essential to the defence . Defences that the accused has been set up , and allegations of duress , which used at one time to be rare , have multiplied . We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care . They will need to be astute to see that assertions of a need to know such details , because they are essential to the running of the defence , are justified . If they are not so justified , then the judge will need to adopt a robust approach in declining to order disclosure . Clearly , there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will . Again , there will be cases where the informant is an informant and no more ; other cases where he may have participated in the events constituting , surrounding , or following the crime . Even when the informant has participated , the judge will need to consider whether his role so impinges on an issue of interest to the defence , present or potential , as to make disclosure necessary ...

It is sufficient for us to say that in this case we are satisfied that the information concerning the informant showed a participation in the events concerning this crime which , coupled with the way in which the defence was raised from the very first moment by the defendant when he said that he was being set up , gave rise to the need for the defence to be aware of the identity of the informant and his role in this matter . We , therefore , conclude that if one applies the principle which has been quoted from NORP v. PERSON ... to the facts of the present case , there could only be one answer to the question as to whether the details concerning this informer were so important to the issues of interest to the defence , present and potential , that the balance which the judge had to strike came down firmly in favour of disclosure . ”

Subsequent to the applicant ’s trial , a new statutory scheme covering disclosure by the prosecution has come into force in GPE and GPE . Under LAW , the prosecution must make “ primary disclosure ” of all previously undisclosed evidence which , in the prosecutor ’s view , might undermine the case for the prosecution . The defendant must then give a defence statement to the prosecution and the court , setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution . The prosecution must then make a “ secondary disclosure ” of all previously undisclosed material “ which might reasonably be expected to assist the accused ’s defence as disclosed by the defence statement ” . Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court .

Following the judgments of ORG in PERSON v. GPE ( DATE , Reports of Judgments and Decisions DATE ) and ORG and Others and PERSON and Others v. GPE ( DATE , Reports CARDINAL-IV ) GPE has introduced legislation making provision for the appointment of a “ special counsel ” in certain cases involving national security . The provisions are contained in ORG Act DATE ( “ the CARDINAL Act ” ) and LAW DATE ( “ the DATE LAW ) . Under this legislation , where it is necessary on national security grounds for the relevant tribunal to sit in camera , in the absence of the affected individual and his or her legal representatives , the Attorney - General may appoint a special counsel to represent the interests of the individual in the proceedings . The legislation provides that the special counsel is not however “ responsible to the person whose interest he is appointed to represent ” , thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which can not be disclosed .

For example , in the immigration context , the relevant Rules under LAW are contained in GPE ( Procedure ) Rules DATE ( ORG no . DATE ) . Rule CARDINAL provides that in exercising its functions , the Commission shall secure that information is not disclosed contrary to the interests of national security , the international relations of GPE , the detection and prevention of crime , or in any other circumstances where disclosure is likely to harm the public interest . Rule CARDINAL relates to the special advocate established by section CARDINAL of LAW . It provides , inter alia :

“ CARDINAL . NORP …

( CARDINAL ) The function of the special advocate is to represent the interest of the appellant by -

( a ) making submissions to the Commission in any proceedings from which the appellant or his representative are excluded ;

( b ) cross - examining witnesses at any such proceedings ; and

( c ) making written submissions to the Commission .

( CARDINAL ) Except in accordance with paragraphs ( CARDINAL ) to ( CARDINAL ) the special advocate may not communicate directly or indirectly with the appellant or his representative on any matter connected with proceedings before the Commission .

( CARDINAL ) The special advocate may communicate with the appellant and his representative at any time before the Secretary of ORG makes the material available to him .

( CARDINAL ) At any time after the Secretary of ORG has made the material available under Rule CARDINAL(CARDINAL ) , the special advocate may seek directions from the ORG authorising him to seek information in connection with the proceedings from the appellant or his representative .

( CARDINAL) The Commission shall notify the Secretary of ORG of a request for direction under paragraph ( CARDINAL ) and the Secretary of ORG must , within a period specified by the Commission , give the Commission notice of any objection which he has to the request for information being made or to the form in which it is proposed to be made .

( CARDINAL ) Where the Secretary of ORG makes an objection under paragraph ( CARDINAL) Rule CARDINAL shall apply as appropriate . ”

Rules DATE , to which Rule CARDINAL refers , provide :

“ CARDINAL . ( CARDINAL ) If the Secretary of ORG intends to oppose the appeal , he must , no later than CARDINAL days after receiving a copy of the notice of appeal -

( a ) provide the ORG with a summary of the facts relating to the decision being appealed and the reasons for the decision ;

( b ) inform the Commission of the grounds on which he opposes the appeal ; and

( c ) provide the ORG with a statement of the evidence which he relies upon in support of those grounds .

( CARDINAL ) Where the Secretary of ORG objects to material referred to in paragraph ( CARDINAL ) being disclosed to the appellant or his representative , he must also -

( a ) NORP state the reasons for the objection ; and

( b ) if and to the extent it is possible to do so without disclosing information contrary to the public interest , provide a statement of that material in a form that can be shown to the appellant .

( CARDINAL ) Where he makes an objection under paragraph ( CARDINAL ) , the Secretary of ORG must make available to the special advocate , as soon as it is practicable to do so , the material which he has provided to the ORG under paragraphs ( CARDINAL ) and ( CARDINAL ) .

( CARDINAL ) Proceedings under this Rule shall take place in the absence of the appellant and his representative .

( CARDINAL ) ORG shall decide whether to uphold the Secretary of ORG ’s objection .

( CARDINAL ) Before doing so it shall invite the special advocate to make written representations .

( CARDINAL ) After considering representations made under paragraph ( CARDINAL ) the ORG may -

( a ) invite the special advocate to make oral representations ; or

( b ) uphold the Secretary of ORG ’s objections without requiring further representations from the special advocate .

( CARDINAL ) Where the Commission is minded to overrule the Secretary of ORG ’s objection , or to require him to provide material in different form from that in which he has provided it under Rule CARDINAL(CARDINAL)(b ) , the Commission must invite the Secretary of ORG and the special advocate to make oral representations .

( CARDINAL ) Where -

( a ) ORG overrules the Secretary of ORG ’s objection or requires him to provide material in different form from that in which he has provided it under Rule ORG ) , and

( b ) NORP the Secretary of ORG wishes to oppose the appeal ,

he shall not be required to disclose any material which was the subject of the unsuccessful objection if he chooses not to rely upon it in opposing the appeal . ”

In the context of fair employment proceedings in GPE , the scheme under sections CARDINAL of the CARDINAL Act and the relevant Rules is identical to the mechanism adopted under LAW ( above ) .

In addition , the government has recently placed before ORG CARDINAL bills which make provision for the appointment of “ special counsel ” ( operating under the same conditions ) in other circumstances . ORG Bill DATE provides for the appointment of a “ special representative ” in proceedings before an ORG to be established for the purpose of examining complaints relating to the interception and interpretation of electronic communications . In the context of criminal proceedings , ORG and Criminal Evidence Bill DATE makes provision for the appointment by the court of a special counsel in any case in which a trial judge prohibits an unrepresented defendant from cross - examining in person the complainant in a sexual offence .


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

Alvina Gyulumyan;John Hedigan;Lucius Caflisch;Margarita Tsatsa-Nikolovska;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in PERSON .

On DATE the applicant and CARDINAL others , all of whom were charged with fraudulent bankruptcy , were committed for trial in LOC . After numerous adjournments on account of failure to serve proper notice or ORG strikes , a hearing was held on DATE . At the hearing the lawyer retained by PERSON produced a list of witnesses he wanted to be summoned to appear in court . They were mainly people who would say that the applicant had been less directly involved in the management of GPE , a commercial company , after DATE . The president of the court granted the request .

At a hearing on DATE , PERSON was represented by a different lawyer of his choosing , PERSON , whom he had retained on DATE . PERSON produced the list of witnesses again . The court again granted leave for the persons named in the list to be summoned . A number of witnesses were examined on DATE in the presence of the applicant and PERSON

NORP In a note deposited with the registry of ORG on DATE , PERSON announced that he was withdrawing from the case . He said that the applicant had been informed accordingly by registered letter sent on DATE . On DATE the court assigned the applicant a defence lawyer , PERSON

On DATE Mr B. was informed of the date of the next hearing ( DATE ) . The note he received did not , however , mention that he had been officially assigned to represent Mr LANGUAGE . No notification was sent to PERSON .

Mr B. did not appear at the hearing on CARDINAL DATE , but the applicant did . The court ordered PERSON to be replaced by another official defence lawyer , PERSON , and adjourned the case to DATE .

On that date PERSON again failed to appear , but the applicant was present . The court ordered PERSON to be replaced by another official defence lawyer , PERSON of the witnesses called by the prosecution was examined by the prosecution ’s representative and cross - examined by the lawyer of CARDINAL of the applicant ’s co - defendants . The court adjourned the proceedings to CARDINAL DATE and ordered the other witnesses to be summoned .

On that date PERSON again failed to appear , but the applicant was present . The court ordered PERSON to be replaced by another official defence lawyer , Mr O. Mr PERSON made a number of spontaneous statements . A witness called by the prosecution was examined . Having regard to the absence of CARDINAL other prosecution witnesses , the court adjourned its examination of the case to DATE . The hearing was not held on that date and the proceedings were adjourned on account of the NORP parliamentary elections .

Further hearings were held on DATE and DATE and on DATE and DATE , to which the witnesses on the applicant ’s list were not summoned . PERSON , who had still not appeared , was replaced by a different court - appointed defence lawyer each time .

The record of the hearing on DATE mentions that the applicant was present , which the applicant himself denies . He states that he attended his trial for the last time on CARDINAL DATE and that after the adjournment of DATE he was not notified of the date of the next hearing ( DATE ) . A notice of hearing had in fact been issued to a person who did not have authorisation ( persona non abilitata ) to receive notices . The Government produced a note ( relata di notifica ) before the ORG , drawn up by a court bailiff , according to which notice of the hearing on DATE had been served personally on DATE on a person identifying himself as PERSON . The applicant maintains that the signature appearing on the note is not his and that on DATE he was not at home , but at FAC in GPE del Tronto , as had been proved by his lawyer in the appeals lodged after his conviction . Furthermore , he alleges , the indication that the notice of hearing was served on him personally was added by the court bailiff DATE after the material time , “ at the request of the office of ORG at ORG ” .

A final hearing was held on DATE . Neither the applicant nor PERSON appeared . PERSON was replaced by a court - appointed lawyer . Witnesses were examined .

In a judgment of DATE , the text of which was deposited with the court ’s registry on DATE , ORG sentenced the applicant to CARDINAL years’ imprisonment .

The applicant was not officially informed that the judgment against him had been deposited with the registry . He submits that , not having been aware of the conviction , he was unable to avail himself of his right to appeal within the statutory DATE period .

He claims that he did not learn of his conviction DATE which had become final on CARDINAL DATE – until DATE , when he asked for a copy of his criminal record .

The applicant also learnt that PERSON had been appointed to represent him , whereupon he contacted him .

Through PERSON the applicant lodged an application on DATE for leave to appeal out of time . He claims that the notice of the date of the hearing of DATE was void on the ground that the court bailiff ’s report did not refer to the standing of the person on whom it had been served . Moreover , PERSON appointment was DATE he alleges – unlawful because his name did not appear on the list of official defence lawyers . In any event PERSON had never been informed of his appointment . In the applicant ’s submission , the time - limit for lodging an appeal had therefore never started running .

At the same time , again through PERSON , the applicant appealed against the judgment of DATE . He sought an acquittal on the merits and requested the investigation to be reopened for the purpose of hearing evidence from the witnesses indicated in the defence ’s list .

By an order of DATE , ORG dismissed the application for leave to appeal out of time . It observed that the applicant referred to matters regarding the conduct of the trial at first instance that should have been raised prior to the date on which the judgment of DATE had become final . Leave to appeal out of time was granted only where the convicted person proved that he had been prevented by a case of force majeure from taking certain steps within the statutory time - limit , and not where he alleged procedural defects . In those conditions it was not necessary to ascertain whether the facts of which the applicant complained were genuine .

On DATE the applicant lodged an appeal on points of law . He alleged that ORG had wrongly construed the relevant provisions of domestic law , namely , ORG and CARDINAL of LAW ( “ the ORG ” – see “ Relevant domestic law ” below ) . He stated that , through no fault of his own , he had not been aware of the judgment .

In a judgment of DATE , the text of which was deposited with the registry on CARDINAL DATE , ORG declared the appeal inadmissible . It observed that the applicant was complaining of flaws in the appointment of his court - appointed defence counsel and the service of the notice of the date of the hearing of DATE . Those flaws could have resulted in certain measures being annulled on grounds of procedural errors , but had been cured ( sanate ) when the conviction had become final .

On DATE the GPE public prosecutor ’s office ordered execution of the sentence imposed on the applicant by the judgment of CARDINAL DATE . Execution was stayed , however .

On DATE the applicant requested the application of an alternative measure to detention , namely , probation ( affidamento in prova al servizio sociale ) . By an order of CARDINAL DATE , ORG granted the applicant ’s request . On DATE the applicant declared that he accepted the obligations stipulated in the probation order , namely , not to leave the district ( comune ) of PERSON without prior authorisation of the judge supervising enforcement of sentences ; to devote himself fully to his work at the LOC company ; not to leave his house before TIME and not to return after TIME ; not to associate with reoffenders ; and to report to the police station CARDINAL times per week .

Article CARDINAL § § CARDINAL and CARDINAL of the ORG provides for the possibility of applying for leave to appeal out of time . The relevant parts of that provision were worded as follows at the material time :

“ In the event of conviction in absentia ... , the defendant may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no effective knowledge [ effettiva conoscenza ] [ of it ] ... [ and ] on condition that no appeal has been lodged by his lawyer and there has been no negligence on his part or , in the case of a conviction in absentia having been served ... on his lawyer ... , that he did not deliberately refuse to take cognisance of the procedural steps .

A request for the reopening of the time allowed for appeal must be lodged within DATE of the date ... on which the defendant learnt [ of the judgment ] , failing which it shall be declared inadmissible . ”

The validity of a conviction may be contested by means of an objection to execution under LAW of the ORG , the relevant parts of which provide :

“ Where the judge supervising enforcement establishes that a judgment is invalid or has not become enforceable , he shall , [ after ] assessing on the merits [ nel merito ] whether the safeguards in place for a convicted person deemed to be untraceable have been observed , ... suspend its enforcement , ordering , where necessary , that the person be released and that defects in the service of process be remedied . In such cases the time allowed for appealing shall begin to run again . ”

Under LAW , DATE , DATE and CARDINAL of the ORG :

“ CARDINAL . A defendant who has not appointed a lawyer of his own choosing or finds himself without CARDINAL shall be assisted by a court - appointed defence lawyer .

Where defence counsel ’s presence is necessary and [ the lawyer ] chosen by the defendant or the court - appointed lawyer ... has not been found , has not appeared or has withdrawn from the case , the judge shall appoint as his replacement another defence lawyer immediately available [ reperibile ] , to whom the provisions of Article CARDINAL shall apply [ under that provision , the replacement lawyer exercises the rights of the defence counsel and is subject to the same obligations ] . ...

The court - appointed defence lawyer shall defend his client [ prestare il patrocinio ] and shall not be replaced other than for a legitimate reason [ giustificato motivo ] .

The court - appointed lawyer shall cease to act if [ the defendant ] appoints a lawyer of his own choosing . ”

A defence lawyer who has just been appointed may request an adjournment of the hearing date . LAW ORG provides , inter alia :

“ Where a defence lawyer withdraws from the case , has his appointment revoked or is incompatible or abandons the case , the defendant ’s new lawyer or the court - appointed [ defence lawyer ] can request sufficient time [ congruo ] , of DATE , in which to study the file and acquaint himself with the facts of the case . ”

In accordance with Article CARDINAL § CARDINAL of the ORG , the reading out of decisions to persons present in the courtroom and the information given to them orally by the judge “ shall replace formal notice [ sostituiscono le notificazioni ] , on condition that they are noted in the record of hearing ” .

After production of the evidence requested by the parties , the judge may , if he considers it “ absolutely necessary ” , order that further evidence be adduced ( LAW ORG ) .


The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

The Government were represented by their Agents , in which capacity ORG was followed by Mr PERSON , and by their co - Agents , in which capacity Mr PERSON was followed by Mr PERSON .

The facts of the case , as submitted by the parties , may be summarised as follows .

In DATE the GPE public prosecutor 's office entered the applicant 's name in the register of persons against whom criminal proceedings had been brought ( registro degli indagati ) , on suspicion of forgery .

On DATE the public prosecutor 's office requested that the applicant and CARDINAL other accused be committed for trial . The application erroneously gave his name as PERSON instead of GPE .

On DATE the preliminary investigations judge listed the preliminary hearing for DATE .

On DATE ORG noted the mistake and sent the case file back to the preliminary investigations judge for a hearing on DATE , which was later adjourned to CARDINAL DATE .

On DATE the preliminary investigations judge noted that the applicant had not been questioned and sent the file back to the public prosecutor 's office .

On DATE the prosecuting authorities questioned the applicant . The preliminary hearing was then set for DATE .

On DATE the preliminary investigations judge ruled that he did not have jurisdiction ratione materiae and sent the file back to the public prosecutor 's office .

The subsequent course of the proceedings is not known , since the file is untraceable .

On DATE the ORG informed the applicant of the entry into force , on DATE , of PERSON no . CARDINAL of DATE ( hereafter “ the Pinto Act ” ) , which introduced into the NORP legal system a remedy against the excessive length of judicial proceedings .

In a letter of DATE the applicant informed the ORG that he had applied to ORG for compensation under LAW and asked the ORG to suspend the examination of his application until the end of the related proceedings .

On DATE the applicant did indeed submit a claim to ORG under LAW , complaining of the excessive length of the proceedings described above .

He asked it to hold that there had been a violation of LAW and to order the NORP ORG to make good the pecuniary and non - pecuniary damage he had sustained and to pay him costs and expenses .

In particular , the applicant claimed CARDINAL,CARDINAL.CARDINAL euros ( ORG ) , made up of ORG CARDINAL,CARDINAL.CARDINAL for loss of opportunity , LAW for non - pecuniary damage , EUR CARDINAL,CARDINAL.CARDINAL for the downgrading his employer had imposed on him and EUR CARDINAL,CARDINAL.CARDINAL for costs and expenses .

By a decision of DATE , deposited with the registry on DATE , ORG found that a reasonable time had been exceeded . It refused the application regarding compensation for pecuniary damage , describing the applicant 's claims as “ speculative ” , but awarded him , on an equitable basis , ORG CARDINAL,CARDINAL.CARDINAL in compensation for non - pecuniary damage and ORG CARDINAL for costs and expenses , plus interest .

On DATE ORG decision became enforceable .

On DATE the applicant served ORG decision on the respondent authority .

In letters dated DATE and DATE the applicant requested payment of the sums due .

On DATE he served the respondent authority with a notice to pay . As the money was not forthcoming , he summoned the authority to appear in court on DATE .

In a letter of DATE the applicant asked the ORG to resume its examination of his application . He explained that , in the end , he did not intend to appeal on points of law against ORG decision because he considered that he had very little prospect of success .

In a decision of DATE , deposited with the registry on CARDINAL DATE , the GPE judge responsible for supervising the execution of judgments ordered the respondent authority to pay the sums due .

On DATE the applicant obtained payment of the amounts in question .

The relevant domestic law and practice are described in LAW ( ( dec . ) no . CARDINAL/CARDINAL , PERSON CARDINAL-IV ) .