Ex parte application to withhold disclosure to defence on ground of public interest immunity - judge requiring appointment of special counsel to avoid breach of convention rights - appointment not required since domestic procedures compatible with convention rights

R v H; R v C: HL (Lord Bingham of Cornhill, Lord Woolf, Chief Justice, Lord Hope of Craighead, Lord Walker of Gestingthorpe and Lord Carswell): 5 February 2004

At a preparatory hearing prior to the defendants' trial, the judge ruled that, on the hearing of the prosecution's ex parte application to withhold certain material from the defence on the ground of public interest immunity, special counsel should be appointed so as to comply with the European Court of Human Rights' jurisprudence and avoid any violation of article 6(1) of the European Convention on Human Rights.

The Court of Appeal [2003] EWCA Crim 2847; [2003] Gazette, 13 November, 31; [2003] 1 WLR 3006, allowing the prosecution's appeal, concluded that the judge's ruling was premature.

The defendants appealed.

Roy Amlot QC and Leonard Smith (instructed by Rahman Ravelli, Halifax) for H; Ben Emmerson QC, Robin Howat and Tamia Tagon (instructed by Middleweeks, Manchester) for C; Lord Goldsmith QC, Attorney-General, David Perry, Sean Morris and Robin McCoubrey (instructed by Crown Prosecution Service, Headquarters) for the prosecution.

Held, dismissing the appeals, that, having regard to the overriding principle of fairness in the trial process, viewed as a whole, and to the rule that the prosecution had to make full disclosure of unused material tending to undermine its case or assist that of the defence, the trial judge hearing a public interest immunity application had to consider in detail the material sought to be withheld, to identify the public interest and assess the prejudice claimed, and to ensure that any derogation from the full disclosure rule was the minimum necessary to achieve its purpose; that an ex parte application without notice was only permissible in exceptional cases and special counsel should only be appointed as a course of last resort; and that, since material damaging to the defendant was not disclosable and should not be brought to the court's attention, and since the trial judge was required to protect the defendant's proper interests and keep the matter under review as the trial progressed, there was no dissonance between domestic and European jurisprudence and, provided domestic procedures were properly applied, there should be no violation of article 6(1).

(WLR)

Evidence - co-accused giving untruthful answer to question asked in appellant's presence by police officer prior to charge - appellant's mere silence not admissible in evidence against him

R v Collins: (Lord Justice Thomas, Mr Justice McCombe and Judge Peter J Fox QC): 28 January 2004

The appellant and a co-accused were apprehended and were asked what they had been doing.

The co-accused said, untruthfully, in the presence and hearing of the appellant, that they had been in a pub.

The appellant said nothing.

When asked in interview why he had not corrected the lie, the appellant said 'no comment'.

They were tried on an indictment charging kidnapping and having a firearm with intent to commit an indictable offence.

The judge directed the jury that they could rely on the lie as supporting evidence in the case against the appellant.

He was convicted and appealed against conviction.

Sally-Ann Hales (assigned by the Registrar of Criminal Appeals) for the appellant; John Hillen (instructed by Crown Prosecution Service, Maidstone) for the Crown.

Held, allowing the appeal, that principles similar to those relating to accusations made in the presence of the accused were applicable; that, where an important question was asked in the presence of an accused and an answer was given by another, and the issue arose as to whether the accused had joined in the answer, a jury was entitled to consider whether his reaction to that question and answer could amount to his adoption of that answer; that the jury should be directed to consider whether in all the circumstances the question had called for some response from the accused and, if so, whether the accused by his reaction had adopted the answer made; that mere silence in the context of the single question asked and the answer given by the co-accused, without more, would not provide a sufficient evidential basis for leaving to the jury the question whether by his reaction the appellant was adopting that answer; and that, in any event, even if there had been such an evidential basis and the parties had been on equal terms, the direction to the jury was not sufficient.