‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 12 December 2013

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - week 50

NON-DISCLOSURE OF POLICE SOURCES - Article 6 (right to a fair hearing) of the European Convention on Human Rights - In the case of Donohoe v. Ireland, the European Court of Human Rights held that  the non-disclosure of police sources did not make the trial of a member of the IRA unfair. The case concerned the fairness of Mr Donohoe’s trial and conviction before the Special Criminal Court (‘SCC’) in Ireland for being a member of the IRA. His conviction was based, among other things, on evidence given by a Chief Superintendent of the Irish police, who testified that it was his belief that Mr Donohoe was a member of the IRA.When asked to identify the sources of his belief, the Chief Superintendent claimed privilege stating that disclosure would endanger lives and State security. The SCC directed the Chief Superintendent to produce all relevant documentary sources which formed the basis of his belief and it reviewed those files in order to be satisfied as to the reliability of his belief.  Neither the prosecution nor the defence had access to that confidential material. Mr Donohoe complained that the non-disclosure had made his trial unfair as it seriously restricted his defence rights.

The Court found against the applicant because: the trial court had upheld the non-disclosure of sources for the legitimate purpose of protecting human life and State security; the decision to convict had been reached with the support of additional evidence which corroborated PK’s belief; and, there had been a number of safeguards in place during the trial to ensure that the non-disclosure of PK’s sources would not undermine the fairness of the proceedings:
"78.  The Court notes that the present case does not involve the evidence of an absent or an anonymous witness. Unlike Al-Khawaja and Tahery, the non-disclosed material in issue here did not, in itself, form part of the prosecution’s case. It was testimony of an identifiable and present witness (Chief Superintendent PK) that constituted the impugned evidence in question. It is true that Chief Superintendent’s belief was based on sources which were not disclosed to the applicant, but those sources in themselves did not constitute evidence upon which the prosecution sought to rely. Nevertheless, the Court considers that in view of the potential unfairness caused to the defence by the domestic courts’ upholding of the claim of privilege in respect of Chief Superintendent PK’s sources, it should be guided by the general principles articulated by the Court in Al-Khawaja and Tahery in its consideration of the applicant’s complaints.
79.  Accordingly, the questions to be addressed by the Court are threefold: (i) whether it was necessary to uphold the claim of privilege asserted by Chief Superintendent PK as regards the source of his belief; (ii) if so, whether Chief Superintendent PK’s evidence was the sole or decisive basis for the applicant’s conviction; and, (iii) if it was, whether there were sufficient counterbalancing factors, including the existence of strong procedural safeguards, in place to ensure that the proceedings, when judged in their entirety, were fair within the meaning of Article 6 of the Convention.
80.  As to the necessity for upholding the claim of privilege asserted by PK, the Court recalls that the public and victims have a strong interest in ensuring that organised and subversive crime is prosecuted. However, the interests of informers courageous enough to provide information must also be taken into account and allowing police informers to provide information anonymously is a vital tool in prosecuting, in particular, organised and subversive crime (Saïdi v. France, 20 September 1993, § 44, Series A no. 261-C; Doorson v. the Netherlands, cited above, § 70; Dzelili v. Germany (dec.), no. 15065/05, 29 September 2009; and Ellis and Simms v. the United Kingdom, cited above).
81.  The applicant did not challenge, either before the domestic courts or this Court, PK’s view that disclosure of his sources would endanger persons and State security. The Court notes the domestic courts’ description of the unlawful organisation in question, the IRA: it was a secretive and violent organisation, one which assiduously sought out and punished police informers through torture and death and one which relied on the inevitable fear of testifying which those methods engendered (paragraphs 46, 47, 49, 50 and 53 above). The admission of belief evidence, combined with the inevitable grant of privilege for the sources of that belief (paragraphs 48 and 54), also provides a crucial tool to overcome the evidential difficulties in prosecuting this particular kind of charge. A charge of “membership” of such an organisation requires evidence drawn from intelligence necessarily gathered from numerous and varied sources (human and documentary) and over some time. The Court considers these justifications for the grant of privilege - effective protection of persons and State security as well as effective prosecution of serious and complex crime - to be compelling and substantiated.
82.  As to whether the evidence of Chief Superintendent PK was the sole or decisive basis for the applicant’s conviction, the Court notes that the SCC expressly stated that it would not convict the applicant on the basis of his evidence alone. In addition to his evidence, the trial court heard over 50 other prosecution witnesses. It also examined what it regarded as ‘significant’ other material evidence and it identified therefrom three further strands of corroborative evidence against the applicant.
83.  The second and third strands of evidence concerned the applicant’s connection to the main factual event namely, the suspicious activities in Corke Abbey on 10 October 2002. The trial court found that there was clear evidence associating each accused with the other and with the activities in Corke Abbey. In particular, it had had “no doubt” that the applicant, if not an actual participant, was well aware of and acquiesced in those activities. He was linked to those events in three ways: his partner’s Nissan Micra present in Corke Abbey had been entrusted by her to him just before the Corke Abbey events; that car had been observed by the police at Corke Abbey with five male occupants and, if the applicant was not amongst the five, then the movements of the car were at least within his knowledge or acquiescence; a Rayovac torch was found in the van and the wrapping (matching that usually found on such a torch) as well as a receipt for the purchase of such a torch was found in the Nissan Micra. A piece of paper also found after a search of the applicant’s home, the third strand of evidence, contained the phone number of the owner of the Nissan Almera and of the man in the driver’s seat of the van. The applicant did not challenge in any significant way the evidence of the police officers involved in the arrest of the five men in Corke Abbey. However, the SCC was careful to conclude that these two strands of evidence were insufficient, in isolation, to prove the charge of IRA membership but were evidence of suspicious activities of an organised crime nature which were corroborative of PK’s evidence.
84.  The fourth strand of evidence, which corroborated the Chief Superintendent’s evidence and which the trial court took into account in convicting the applicant, was the negative inference which it was entitled by law to draw and which it did draw from the applicant’s refusal to answer police questions. It is recalled that silence maintained in response to questions “clearly calling for an explanation” can be taken into account although that negative inference cannot be the “sole or main” basis for a conviction (John Murray v. the United Kingdom, 8 February 1996, Reports 1996 I; and Condron v. the United Kingdom, no. 35718/97, § 56, ECHR 2000 V). The Court again notes that section 2 of the 1998 Act, which allowed the negative inference to be drawn, was also limited to the charge of membership of an unlawful organisation. The SCC did not doubt the materiality to the charge of the police questions, noting that each question had a clear evidential basis which called for a response. The applicant, who was at all times legally represented, had also been warned of the possibility of a negative inference being drawn if he did not answer questions material to the charge and he maintained his silence. The negative inference which the trial court was entitled under statute to draw was so drawn and the court considered it to be corroborative of the Chief Superintendent’s evidence.
85.  In conclusion, the SCC was careful to point out that none of the four strands of evidence, if taken in isolation, was sufficient to ground the applicant’s conviction. However, its assessment was that, when viewed in conjunction with Chief Superintendent PK’s belief, the applicant’s association with the Corke Abbey activities, the material found during the search of his home and the negative inference to be drawn from his failure to respond to material questions, were supportive of the charge of membership of the IRA.
86.  The CCA, on appeal, reviewed the evidential analysis of the SCC in detail. It endorsed its conclusions and, notably, found it clear that the events at, and evidence from, Corke Abbey as well as the applicant’s association with those events constituted conduct within the meaning of section 3(1)(b)(i) of the 1972 Act, as amended, and thus evidence of his membership of the IRA. The negative inferences from silence were correctly and validly drawn. The belief evidence was accorded appropriate weight. The appeal court held that the SCC’s review of the underlying documentation was clearly within the ambit of the case-law of the Court which requires that the withholding of any such documentation must at all times remain within the supervisory control of judges themselves. The CCA rejected the applicant’s claim that the trial court’s review had entailed a review of material that was or could have been ‘determinative’ of guilt. It found that in view of the SCC’s express statement that it had not convicted on the basis only of Chief Superintendent PK’s evidence, still less on the basis of anything appearing in the documents examined by the trial judges as part of their monitoring of procedures, the information in the documentation could not be regarded as having been ‘determinative’. The CCA approved the SCC’s conclusion that, when taken cumulatively, the four strands of evidence established, beyond reasonable doubt, that the applicant was guilty, as charged.
87.  In view of the foregoing, the Court considers that Chief Superintendent PK’s evidence cannot be considered to have been the sole or decisive evidence grounding the applicant’s conviction. However, the Court observes that his evidence clearly carried some weight in the establishment of the applicant’s guilt. Accordingly, it considers it necessary to examine, carefully, whether there were adequate counterbalancing factors and safeguards in place (see Pesukic v Switzerland, cited above, § 50) in order to ensure that the disadvantage caused to the applicant by upholding PK’s claim of privilege did not restrict his defence rights to an extent incompatible with the requirements of Article 6 of the Convention.
88.  The Court observes, at the outset, that the trial court was alert to the need to approach the Chief Superintendent’s evidence with caution having regard to his claim of privilege and was aware of the necessity to counterbalance the restriction imposed on the defence as a result of its decision upholding that claim. It proceeded to adopt a number of measures having regard to the rights of the defence.
Firstly, the court reviewed the documentary material upon which PK’s sources were based in order to assess the adequacy and reliability of his belief. While the Court does not regard such a review, in itself, to be sufficient to safeguard the rights of the defence (Edwards and Lewis v. the United Kingdom, cited above, § 46), it nevertheless considers that the exercise of judicial control over the question of disclosure in this case provided an important safeguard in that it enabled the trial judges to monitor throughout the trial the fairness or otherwise of upholding the claim of privilege in respect of the non-disclosed material (see McKeown v. the United Kingdom, no. 6684/05, § 45, 11 January 2011).
Secondly, the trial court in considering the claim of privilege was alert to the importance of the ‘innocence at stake’ exception to any grant of privilege. It confirmed, expressly, that there was nothing in what it had reviewed that could or might assist the applicant in his defence and that, if there had been, then its response would have been different. The trial court was thus vigilant in exploring whether the non-disclosed material was relevant or likely to be relevant to the defence and was attentive to the requirements of fairness when weighing the public interest in concealment against the interest of the accused in disclosure (see, mutatis mutandi, Jasper v. the United Kingdom, cited above, § 57). The Court considers that if the applicant had any reason to doubt the trial judges’ assessment in this regard he could have requested the appeal court to review the material and to check the trial court’s conclusions. However, he chose not to do so.
Thirdly, in coming to its judgment the trial court stated, specifically, that it had expressly excluded from its consideration any information it had reviewed when it was weighing the Chief Superintendent’s evidence in the light of the proceedings as a whole. It further confirmed that it would not convict the applicant on the basis of PK’s evidence alone and that it required his evidence to be corroborated and supported by other evidence.
The Court further notes that, in advance of taking its intended procedural steps, the trial court informed the applicant and his co-accused of its intentions as regards its procedures and it afforded them an opportunity to make detailed submissions inter partes which they did (see, a contrario, Edwards and Lewis v. the United Kingdom).
89.  In addition to the above measures taken by the trial court to safeguard the rights of the defence, the Court also considers that there existed other strong counterbalancing factors in the statutory provisions governing belief evidence.
90.  In the first place, as noted above, providing belief evidence involves a complex intelligence gathering and analytical exercise. Section 3(2) therefore requires that those doing so must be high-ranking police officers and, moreover, they are generally officers with significant experience of such organisations and in gathering and analysing relevant intelligence (paragraphs 51 and 53 above). 90. In the present case, PK was the Head of the Special Detective Unit concerned with State security and monitoring subversive organisations and had such pertinent professional experience as to lead the SCC to state that it was difficult to envisage any other person in the State more relevantly informed (paragraph 19 above).
91.  In addition, the Chief Superintendent’s evidence is not admitted as an assertion of fact but as the belief or opinion of an expert. It is not, therefore, conclusive and, indeed, it has no special status it being one piece of admissible evidence to be considered by the trial court having regard to all the other admissible evidence (paragraphs 43, 47 and 53 above).
92.  The Court further notes that while the scope of cross-examination was restricted by the trial court’s ruling, the possibility to cross-examine the witness on his evidence was not entirely eliminated. The possibility to test the Chief Superintendent’s evidence in a range of ways still remained. Consistently, such evidence could be tested by the defence even if privilege had been granted as regards the sources upon which that opinion was based. As pointed out by the Supreme Court in DPP v. Kelly (paragraph 49 above), the principle is that any restriction on the right to cross-examine is limited to the extent ‘strictly necessary’ to achieve its (protective) objective. As noted by O’Donnell J in DPP v. Donnelly and Others (paragraph 54 above), the Chief Superintendent’s evidence can, therefore, be challenged on all matters collateral and accessory to the content of the privileged information. He could be cross-examined on the nature of his sources (documentary, civilian, police and amount); on his analytical approach and process; on whether he knew or personally dealt with any of the informants; and on his experience in gathering related intelligence, in dealing with informants as well as in rating and analysing informants and information obtained. His responses would allow the trial court to assess his demeanour and credibility and, in turn, the reliability of his evidence. This possibility of testing the witness distinguishes this case from those where the evidence of absent/anonymous witnesses is admitted (paragraphs 77 and 78 above), and where the cross-examination of these witnesses is hindered or not possible at all. There is, however, no evidence that the present applicant attempted to test the Chief Superintendent’s belief evidence in any way other than by asking him to disclose his sources. In this respect, it remains relevant also to note the comment of O’Donnell J in DPP v. Donnelly and Others to the effect that an accused may decide not to cross-examine a Chief Superintendent, not because of the constraints imposed by a grant of source privilege, but for other reasons including to avoid the risk of unwittingly strengthening the prosecution’s case against him.
93.  In such circumstances, and recalling that this Court’s task is to ascertain whether the proceedings in their entirety were fair, the Court considers that the weight of the evidence other than the belief evidence, combined with the counterbalancing safeguards and factors, must be considered sufficient to conclude that the grant of privilege as regards the sources of the Chief Superintendent’s belief did not render the applicant’s trial unfair.
94.  It follows that there has been no violation of Article 6 of the Convention."
 Courtesy Press Service of the European Court of Human Rights in Strasbourg

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