Resolution CM/ResDH(2011)289

Execution of the judgment of the European Court of Human Rights
Edwards and Lewis against the United Kingdom

(Application No. 39647/98, judgment of 27 October 2004 – Grand Chamber)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicants’ right to a fair trial, due to two judicial decisions in 1995 and 1996, to withhold certain evidence from the defence in violation of the principle of equality of arms and without adequately protecting the interest of the accused in criminal proceedings (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with the United Kingdom’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)289

Information about the measures to comply with the judgment in the case of
Edwards and Lewis against the United Kingdom

Introductory case summary

This case concerns the violation of the applicants’ right to a fair trial due to two judicial decisions in 1995 and 1996, in which certain evidence was withheld from the defence in violation of the principle of equality of arms, and without adequately protecting the interest of the accused in criminal proceedings (violations of Article 6, paragraph 1).

The applicants argued that their criminal offences were the result of entrapment by undercover police officers. However, in both cases, the prosecution successfully applied to the courts to withhold evidence. The trial judges dismissed the applicants’ arguments on the grounds that the undisclosed evidence did not prove entrapment, that it would not assist the defence and that non-disclosure by the prosecution was justified by genuine public interest.

The European Court noted that the defence had been unable to argue the case on entrapment in full before the judges, because the evidence remained undisclosed and therefore could not be challenged, and that the same judges who decided to withhold the evidence had also decided the facts related or possibly related to the withheld evidence. The applicants had been sentenced to nine years’ and four and a half years’ imprisonment respectively.

I.	Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total	
--	--	47 000 EUR	47 000 EUR	
Paid on 21/12/2004	

b) Individual measures

The applicants are no longer detained. According to the information received from the applicants’ lawyers, following the judgment of the European Court, Mr Lewis was granted leave to appeal his conviction. The appeal was dismissed on 6 April 2005 by the Court of Appeal ([2005] EWCA Crim 859). A new application was made to the European Court in 2007 under Article 6 following the Court of Appeal’s judgment, but that application was rejected at an early stage (see application 6116/06).

Mr Edwards applied to the Criminal Cases Review Commission (CCRC) who rejected his request to have his case referred to the Court of Appeal on 28 February 2007. His request for judicial review of that decision was dismissed on 14 August 2007 by a single judge of the High Court. The applicant then applied to the full court and judgment was given on 13 October 2008 refusing his application (case reference [2008] EWHC 2389 (Admin) Case No: CO/3764/2007). A new application was made to the European Court in 2009 but that application was rejected at an early stage (see application 21566/09). Consequently, no other measures are considered necessary by the Committee of Ministers.

	II.	General measures

On 5 February 2004 the House of Lords gave judgment in the case of R v H and others [2004] 2 AC 134, in which it considered the question of whether the procedures for dealing with claims for public-interest immunity made on behalf of the prosecution in criminal proceedings complied with Article 6 of the Convention.

Disclosure of sensitive evidence: The House of Lord took into consideration the extensive jurisprudence of the European Court, including the present case and stated that derogation from full disclosure “may be justified but such derogation must always be the minimum derogation necessary to protect the public interest and must never imperil the overall fairness of the trial” (see R v. H, at 148). A number of general guiding principles on disclosure and the procedure which must be followed when a court is faced with an application to withhold sensitive material from the defence were set out in the decision.

The principles were summarised in the Guidance which was issued by the Director of Public Prosecutions on 13 February 2004 and circulated among lawyers, caseworkers and prosecutors. The principles were later included in Chapters 12 and 13 of the Crown Prosecution Service’s Disclosure Manual issued in April 2005. Moreover, Part 5 of the Criminal Justice Act 2003 amended the disclosure regime in the Criminal Procedure and Investigations Act 1996. This latter Act gave statutory force to the prosecution’s duty of disclosure. The new text requires initial and continuing prosecution disclosure of any previously undisclosed material “which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused”. The edition of the Crown Prosecution Service’s Disclosure Manual issued in April 2005 supersedes all previous guidance. Along with other things it clearly sets out when the prosecutor’s statutory duty to disclose is triggered, the importance of scrupulously observing that duty, and sets out the consequences of failure to do so.

The judgment of the European Court was published in the European Human Rights Law Review at (2005) 40 EHRR 24, and in The Times on 3 November 2004.

III.	Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.