The appellant was to apply to the ECHR challenge the fairness of his trial because it was held partially in camera. The UK resisted this application. The appellant sought to be permitted in his response to disclose and refer to contents of the evidence given in camera. The Supreme Court was now asked whether the English courts had any discretionary power in any circumstances to refuse to permit the appellant to do this at this stage of the proceedings before the ECHR,
Held: The appeal failed. What was to be disclosed was first an issue for he ECHR which might make a request: ‘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.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Clarke, Lord Sumption, Lord Reed, Lord Toulson
[2015] UKSC 76, [2016] HRLR 3, [2015] WLR(D) 526, [2016] 2 WLR 19, [2016] 1 Cr App R 17, [2016] AC 771, UKSC 2015/0044
Bailii, Bailii Summary, WLRD, SC, SC Summary
European Convention on Human Rights 34 38
England and Wales
Citing:
See Also – Yam, Regina v CACD 28-Jan-2008
An order had been made for the trial of the defendant on a charge of murder to be held excluding both press and public. The Order had been made in the interests of national security and for the protection of the identity of a witness or other . .
Appeal from – Yam, Regina (on The Application of) v Central Criminal Court and Another Admn 31-Oct-2014
The claimant had been convicted of murder after evidence was given in camera. He sought to apply to the ECHR challenging the fairness of the trial, arguing that he needed and shoudl be free to use the material given in camera.
Held: The . .
Cited – Sisojeva And Others v Latvia ECHR 16-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 8; No violation of Art. 34; Non-pecuniary damage – financial award; Costs and expenses – claim rejected. . .
Cited – Yam, Regina v CACD 28-Jan-2008
An order had been made for the trial of the defendant on a charge of murder to be held excluding both press and public. The Order had been made in the interests of national security and for the protection of the identity of a witness or other . .
Cited – Yam v Regina CACD 5-Oct-2010
The defendant appealed against his conviction for murder saying that since part of the trial had been in camera the result was unsafe.
Held: The appeal failed. The Court addressed submissions advanced on his behalf indicating how substantially . .
Cited – Al Nashiri v Poland (Chamber Judgment) ECHR 24-Jul-2014
. .
Cited – Faraz v Regina CACD 21-Dec-2012
The defendant appealed from his convictions for possession and dissemination of terrorist related publications, saying that the judge should not have admitted evidence of the possession by named terrorist offenders of material similar or identical . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – Janowiec And Others v Russia ECHR 21-Oct-2013
ECHR Grand Chamber – Article 3
Inhuman treatment
Positive obligations
Alleged failure adequately to account for fate of Polish prisoners executed by Soviet secret police at Katyn in 1940: no . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Constitutional, Criminal Evidence
Leading Case
Updated: 09 November 2021; Ref: scu.556981