Communicated on 22 September 2014

FOURTH SECTION
Application no. 35752/13
Manochehr BAHMANZADEH
against the United Kingdom
lodged on 24 May 2013
STATEMENT OF FACTS
The applicant, Mr Manochehr Bahmanzadeh, is an Iranian national, who was born in 1956 and lives in London. He is represented before the Court by Ms J. Hickman of Hickman & Rose, a firm of solicitors based in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  The police investigation
The applicant held the lease of premises housing a nightclub called the Dance Academy and was co-manager of the club.
In December 2005 he was made aware of police concerns about high levels of drug usage at the club. He met with the licensing officer in December 2005 and in January and February 2006 and offered assurances that he took the problem very seriously and would introduce a “zero tolerance” approach to drugs on the premises.
In January 2006 an undercover police operation commenced into drug use at the Dance Academy. Over the course of the operation, twenty-four undercover police officers attended the club and a number of them purchased ecstasy there from several drug dealers.
A police raid on the nightclub took place on 7 May 2006. Around 450 ecstasy pills were recovered.
On 6 August 2006 the applicant and his co-manager were charged with permitting premises to be used for the supply of ecstasy between 1 December 2005 and 8 May 2006.
2.  The first set of criminal proceedings
(a)  Proceedings before the Crown Court
The applicant’s trial commenced at the Crown Court on 19 May 2008.
The prosecution case was that the applicant had failed to take reasonable steps to address the drugs problem in the club. They relied on evidence covering the indictment period, namely:
- the detail and nature of the contact with police concerning the drugs problem by way of meetings and letters;
- the prevalence of drug dealing witnessed by members of staff and by the undercover officers, who successfully purchased drugs;
- the volume of drugs found during the search in May 2006;
- oral evidence from former members of staff that in the period following January 2006 the management could have done more to address the drugs problem to which they had been alerted in warning staff as to their responsibilities;
- data recording the number of ambulances attending the premises; and
- oral evidence to the effect that the management of the club had informed door staff that they should cut back on the number of searches.
The oral evidence from the undercover police officers was given anonymously and they were screened from the public, the defendants and defence counsel.
The club’s former head of security, G.G., who had worked at the club in 2004, gave evidence of the applicant’s tolerance of drug dealing and his obstructive approach when he, G.G., had tried to eject and report on those caught dealing drugs at the club. He described a specific incident in which he had caught two men dealing drugs. He said he had searched the first man and found three tablets. He had been about to evict the first man from the club but was told by the co-manager to let the man stay. G.G. had handed the second man, who had had twenty ecstasy tablets in his possession, to the police. He claimed that he had subsequently been told off by the applicant, who had complained that his friends had had their night disrupted. G.G. also told the jury that he was a former Royal Marine.
G.G. was vigorously cross-examined by the applicant’s trial counsel. It was put to him that he had been sacked by the applicant for stealing money and drugs from a drug dealer, rather than arresting him. G.G. denied this. It was further put to him that his dismissal had also been informed by the fact that he had been present at a drugs murder nearby some weeks before. G.G. replied that he had merely been a witness to the murder and was assisting police in that capacity.
The applicant gave evidence in his own defence. He said that he was strongly opposed to drug use and supply. He and his staff had sought to enforce a policy of zero tolerance in relation to drug supply. He had responded positively to police warnings from December 2005 by replacing his CCTV system and changing his security company. It was impossible to keep drugs out of the club, but he had taken all reasonable steps to prevent the supply of drugs.
In his summing up to the jury, the trial judge reminded the jury that G.G. had worked at the Dance Academy in late 2004 for approximately six months and so was not there during the period covered by the indictment. He summarised G.G.’s evidence as follows:
“[G.G.], who had been the head doorman before the period of the indictment in 2004, said this: ‘There was never an enthusiasm to stop drugs going into the club.’ On a Saturday night there would be on average about 800 people in the club of which ... he said ‘about 50 per cent would be intoxicated on drugs’...”
On 2 July 2008 the applicant was convicted by a jury and on 21 July 2008 he was sentenced to nine years’ imprisonment. In his sentencing remarks, the judge commented that there had been “large-scale, blatant supply of and use of ecstasy” in the club, of which the applicant had been well aware and to which, at the very least, he had turned a blind eye in order to maximise the profits and reputation of the club. He referred, inter alia, to the evidence of the undercover police officers, of G.G., of the club’s head doorman in 2005, of other doormen at the club and of a customer.
(b)  Proceedings before the Court of Appeal
The applicant appealed against his conviction and sentence, challenging the special measures permitted at trial to screen the undercover police officers when they had given evidence. The appeal was dismissed by the Court of Appeal on 17 December 2008. The court observed:
“81. ... Having examined the evidence, ... we have no doubt that ... there was ample evidence, outside the evidence emanating from the undercover police officers, from which it would have been open to the jury to conclude that there was substantial dealing in drugs at the club and that no real or, alternatively, no adequate steps had been taken by management to prevent or discourage the sale of drugs. At best occasional token efforts were made, but in essence a blind eye was turned towards the problem.”
Dismissing the appeal, it commented
“87. ... Although taken cumulatively, these [undercover police officer] witnesses provided the jury with a graphic illustration of what was happening at the club, once the jury had decided that both appellants were involved in the management or control of the club (which did not depend in the slightest on the anonymous witnesses), the issue was the extent to which each of them knew of drug supplying and what, if anything, each did, or did not do, about it. This evidence may well have enabled the jury more easily to infer that the appellants were more involved in what was happening than they were prepared to admit. In reality neither appellant ... [was] prejudiced by the fact that a number of these witnesses gave evidence anonymously, and behind screens, shielded from the sight of the appellants. They were enabled properly and fully to test the evidence of the anonymous witnesses to strengthen their own cases or to undermine the case for the prosecution.”
3.  The report of the Criminal Cases Review Commission
On 25 January 2012 the Criminal Cases Review Commission (“CCRC”) referred the applicant’s conviction and sentence to the Court of Appeal. The statement of reasons set out a single reason for the referral, namely information giving rise to the real possibility that the Court of Appeal would find the trial evidence of “an important prosecution witness”, namely G.G., no longer capable of belief.
The report detailed new evidence not disclosed at trial that G.G. had been working as a doorman in another club in February 2004 and had offered to sell drugs to off-duty police officers. He had told the officers that he was earning five thousand pounds a week from selling drugs. The CCRC considered that this would “severely damage” the credibility of the witness. It was also revealed that G.G. had lied on oath by claiming that he was a former Royal Marine. The statement continued:
“23. In the course of its enquiries the Commission has located a further record which appears to be of relevance regarding [G.G.]. The record, which is sensitive, is considered further in a Confidential Annex (‘Annex C’) that will be provided to the Court of Appeal and the Crown Prosecution Service. For reasons associated with the principle of Public Interest Immunity, the Confidential Annex will not be provided to Mr Bahmanzadeh or his representatives. Whilst this course of action is contrary to the general practice of providing an applicant with full reasons for any decision made, the Commission considers that it is inappropriate in this case to pre-empt any decisions on disclosure that may be made by the Crown Prosecution Service or the Court of Appeal.”
By letter dated 13 March 2012 the CCRC informed the applicant that further sensitive information had been disclosed to the Court of Appeal and to the prosecution. Again, for Public Interest Immunity (“PII”) reasons, a decision had been taken not to disclose the information to the applicant or his representatives. He was invited to make an application to the court or the prosecution for disclosure.
4.  The proceedings before the Court of Appeal
(a)  Preliminary issue concerning disclosure
On 16 April 2012 the applicant submitted provisional grounds of appeal to the Court of Appeal. His first ground claimed that his conviction was unsafe “by reason of fresh evidence concerning [G.G.]”. The grounds referred to the need for a “detailed disclosure exercise” in the light of the CCRC report including, in particular, disclosure of Annex C to that report. Appended to the grounds was a schedule of disclosure requests. The defence asked the court to conduct a thorough PII exercise and order disclosure of the file and such further material as might be relevant. He also invited the court “to review the PII exercise conducted by the trial judge between 22nd and 29th February 2008”. Finally, the defence asked that the prosecution disclose all material concerning G.G.’s role in the drugs murder in respect of which he had been cross-examined at trial and invited the court to review any relevant PII material.
On 10 July, 14 August and 15 August 2012 further disclosure took place. A police statement of July 2012 confirmed that in February 2004 G.G. had claimed to off-duty police officers that he made five thousand pounds a month selling drugs. A letter of July 2012 contained antecedents for G.G. Material related to G.G.’s arrest and questioning in September 2004 about the drugs murder was also disclosed. A witness statement by the police officer who had given evidence at trial confirmed that he had “commissioned a review of all material held by the police” concerning G.G. and it had not uncovered anything which assisted the defence or undermined the prosecution.
Meanwhile, on 14 August 2012, the prosecution indicated that it intended to make a PII application and make ex parte submissions. Part of the PII application, it said, would relate to Annex C to the CCRC’s statement of reasons. The prosecution invited the applicant to provide further particulars of the case to inform the court and the prosecution in their assessment of the potential value to the defence case of the retained material.
On 29 October 2012, in response to the prosecution invitation, the applicant submitted a note on PII and disclosure for consideration at the PII hearing. He contended that much of the material now disclosed by the prosecution should unquestionably have been disclosed at trial, since it would have undermined the prosecution cases and assisted the defence. He argued in particular that Annex C should plainly be disclosed, since it was prima facie capable of assisting the defence or undermining the prosecution given that it had led the CCRC to refer the case back to the Court of Appeal. He also requested permission to address the court prior to the PII hearing and invited the court to consider whether the interests of justice required the appointment of special counsel to represent the applicant’s interests at the PII hearing. He advanced two principal arguments: first, that G.G. had provided crucial evidence again him and that the fresh evidence – and any material not yet disclosed on account of PII – would have undermined his credibility; and second, that the judge’s directions to the jury had been inadequate.
On 13 November 2012 the ex parte PII hearing took place in the Court of Appeal. The court considered whether material referred to by the CCRC should be disclosed to the defence. Special counsel was not appointed to represent the applicant’s interests at the hearing. The applicant was subsequently informed that, save for very limited disclosure, no further disclosure had been ordered. The court issued a direction requiring the applicant’s representatives to confirm that “complete and unambiguous disclosure” by the prosecution had taken place or, if it had not, to thus inform the court.
On 18 November 2012, in a note on disclosure, the applicant’s representatives informed the court that they were not able to provide the confirmation sought. They expressed concern that a review of material held by the police had been conducted by unknown persons on the instructions of an officer who had given evidence against the applicant at trial. They commented on the prosecution’s failure to supply any schedules of unused material or to provide any clear indication of how the process of disclosure had been conducted, explaining that it left them with “a deep sense of unease as to the adequacy and efficiency of the process ...”. They concluded that it was, in their view, for the prosecution to confirm that their disclosure obligations had been met.
In response, on 20 November 2012 the prosecution informed the applicant that the “vast preponderance” of the material in Annex C had been disclosed in the context of the further disclosure which had taken place in July and August 2012. They confirmed that prosecuting counsel had personally reviewed the material placed before the Court of Appeal at the PII hearing. They concluded that they were satisfied that they had complied with their disclosure obligations.
Further disclosure took place on 22 November 2012.
(b)  The appeal hearing
In his skeleton argument dated 23 November 2012, the applicant set out detailed argument concerning his first ground of appeal. He introduced his submissions as follows:
“The issue is whether the fresh evidence, if available at trial, might reasonably have affected the jury’s decision to convict the Appellant ... It plainly would have.”
He complained that his inability properly to challenge G.G. and his account at trial because of the lack of disclosure meant that there was a real risk that the applicant’s credibility had been unfairly damaged at trial. Lack of disclosure in relation to G.G. had, he claimed, “potentially devastating consequences”.
The appeal proceeded on 28 November 2012. On 29 November 2012 the appeal against conviction was dismissed. Regarding the PII application, the court said:
“3. Both before and after the directions hearing of 13 July 2012, there has been much contention upon issues of disclosure. The court upheld the Crown’s PII claim on 13 November 2012, being of the view that the material sought to be withheld would not advance the appellant’s case nor undermine the prosecution. Nothing has happened to suggest a different view. The appellant provided a further note to the court concerning disclosure dated 18 November 2012, to which the Crown responded with a yet further note dated 20 November 2012. Though the appellant complains of ‘other irregularities’ ..., his grounds of appeal are helpfully crystallised in two propositions ... as follows:
‘(i) [G.G.] was an important prosecution witness against the appellant at trial. Had the fresh evidence relating to him been available, it would have undermined his credibility and assisted the defence.
(ii) Inadequate directions and insufficient guidance were given to the jury ...’ ”
Concerning the impact of the fresh evidence on the evidence given by G.G. at trial, the court noted that the indictment period began in December 2005 and that G.G. had worked as head doorman in 2004. It remarked that the jury had been reminded by the trial judge during his summing-up that G.G. was not at the club during the period covered by the indictment. The court continued:
“8. What did this evidence add at the trial to the prosecution case? The events of the indictment period start with a meeting on 1 December 2005 at the police station between the appellant and Mr P., the alcohol related crime reduction officer for the Devon and Cornwall Police. Mr P. said ... that the police had intelligence to the effect that drug use was prevalent at the club.
9. What steps would the appellant take to ‘alleviate’ the problems? The appellant said he was ‘taking every step to prevent drugs getting on the premises’. Thereafter, on 6 December 2005 Mr P. sent the appellant a letter setting out requirements to be attached as conditions to the licence for the premises: for example, a drugs safe, a warning notice, matters related to door supervisors and so forth ...
10 However, the critical question for the jury was whether they were sure that from then on the appellant encouraged or allowed or, most pertinently, failed to take reasonable steps to prevent drug use at the premises. As the Lord Chief Justice said in the appellant’s first appeal:
‘... once the jury had decided that both appellants were involved in the management or control of the club ..., the issue was the extent to which each of them knew of drug supplying and what, if anything, each did or did not do, about it.’
11. Upon this question [G.G.] could of course give no direct evidence whatever.”
The court summarised the evidence led by the prosecution concerning the period covered by the indictment. It noted that on none of this did G.G.’s evidence or the evidence relating to G.G. that was before the jury have any material impact. It referred to the applicant’s argument that with the disclosed material the whole balance of the case changed, since he would have been in a much stronger position to undermine the prosecution case and advance his own, and continued:
“34. ... The judge clearly paid attention to what [G.G.] said ..., and of course the CCRC took the view ... that he was ‘the most important prosecution witness against the appellant’.
35. We consider, however, that [G.G.’s] evidence was by no means at the heart of the case. The CCRC concluded ... that a trial jury ‘which believed [G.G’s] account of the appellant’s attitude towards drug dealing inside the Dance Academy would inevitably proceed to the conclusion that he had permitted or suffered the supply of drugs on those premises’. But [G.G.’s] evidence relates to a period 15 months or more before the indictment period. No amount of cross-examination of [G.G.] to expose him as a drug dealer, whatever his answers, was capable of offering any refutation of the objective evidence of the test purchase officers and other evidence of what was happening, so to speak, on the ground in the club at the time.
36. We note, moreover, that the lie about the Royal Marines, for what it is worth, was told not to trumpet good character but rather to boast about [G.G.’s] physical presence. It is of no little interest that at the appellant’s first appeal Lord Judge CJ observed ..., amongst other things, that it had been the appellant’s own case that the testimony of the test purchase officers was the ‘sole or decisive’ evidence against him.”
The court concluded:
“37. ... The real issue here was what the appellant did or did not do after the warnings given to him at the beginning of the indictment period. As regards that, the evidence of open and blatant supplies of ecstasy at the club, effectively under the noses of the staff, seems to us entirely compelling. We are wholly unpersuaded by the submission urged upon us yesterday that the [undercover officers’] evidence did not plainly implicate the appellant. His absence over periods of time when drugs were being openly and blatantly supplied has to be viewed against what the Crown was required to prove, namely that the appellant failed to take reasonable steps to prevent drug use at the premises. He knew full well that drugs were being frequently supplied on the premises, to put it at its lowest.”
The appeal against sentence was successful on the basis that new sentencing guidelines had entered into force since the applicant’s first appeal and ought to be taken into account. The sentence was reduced to seven and a half years. The court explicitly stated that the fresh evidence in respect of G.G. played no part in the reduction of sentence.
4.  Advice on appeal to the Supreme Court
The applicant was informed by senior counsel that the appeal turned on disclosure and the determination that the conviction was safe was a factual determination. No matter of law of general public importance, amenable to certification for a further appeal to the Supreme Court, arose. Counsel therefore concluded that no further avenue of appeal existed.
B.  Relevant domestic law and practice
1.  Referral to the Court of Appeal by the CCRC
Where a person has been convicted on indictment, section 9(1) of the Criminal Appeal Act 1995 gives the CCRC the power to refer at any time the conviction to the Court of Appeal. By section 9(2), any such reference is to be treated for all purposes as an appeal by the person concerned against conviction. Section 13 sets the conditions for making references. It provides:
“(1) A reference of a conviction, verdict, finding or sentence shall not be made ... unless–
(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,
(b) the Commission so consider–
(i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or
(ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and
(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.”
Section 17 of the Act provides:
“(1) This section applies where the Commission believe that a person serving in a public body has possession or control of a document or other material which may assist the Commission in the exercise of any of their functions.
(2) Where it is reasonable to do so, the Commission may require the person who is the appropriate person in relation to the public body–
(a) to produce the document or other material to the Commission or to give the Commission access to it, and
(b) to allow the Commission to take away the document or other material or to make and take away a copy of it in such form as they think appropriate,
and may direct that person that the document or other material must not be destroyed, damaged or altered before the direction is withdrawn by the Commission.
(3) The documents and other material covered by this section include, in particular, any document or other material obtained or created during any investigation or proceedings relating to–
(a) the case in relation to which the Commission’s function is being or may be exercised, or
(b) any other case which may be in any way connected with that case (whether or not any function of the Commission could be exercised in relation to that other case).
(4) The duty to comply with a requirement under this section is not affected by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by or by virtue of an enactment) which would otherwise prevent the production of the document or other material to the Commission or the giving of access to it to the Commission.”
2.  Duty to disclose
Under the Criminal Procedure and Investigations Act (“CIPA”) 1996, 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.
3.  Special Counsel
Following the judgments of this Court in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996‑V, and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, Reports 1998‑IV, the United Kingdom introduced legislation making provision for the appointment of a special counsel in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) and the Northern Ireland Act 1998 (“the 1998 Act”). 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 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 cannot be disclosed. The relevant rules giving effect to the 1997 and 1998 Acts are set out in the Court’s judgment in Jasper v. the United Kingdom ([GC], no. 27052/95, § 36, 16 February 2000).
In R. v. H.; R. v. C. [2004] UKHL 3, decided on 5 February 2004, the Judicial Committee of the House of Lords held, inter alia:
“The years since the ... enactment of the CIPA have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who cannot (either personally or through his legal representative), for security reasons, be fully informed of all the material relied on against him. The procedure is to appoint a person, usually called a ‘special advocate’, who may not disclose to the subject of the proceedings the secret material disclosed to him, and is not in the ordinary sense professionally responsible to that party but who, subject to those constraints, is charged to represent that party’s interests ...
There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII matters, a defendant in an ordinary criminal trial ... But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant’s right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. ...”
COMPLAINT
The applicant complains under Article 6 § 3 (d) that he was denied a fair trial because material which might have undermined the prosecution or assisted his defence, identified by the CCRC in its report, was not disclosed to him. He complains in particular that:
(i) although the Court of Appeal considered the PII material on an ex parte basis, it had not been seen by the trial judge; and
(ii) special counsel should have been appointed to represent his interests during the PII hearing.

QUESTIONS TO THE PARTIES
Factual information sought

1.  The Government are requested to provide copies of the following documents:
(a)  The CCRC report;
(b)  The open transcript of the judgment of the Court of Appeal in 2012 in respect of the ex parte PII application and/or any available summary of the decision and court orders;
(c)  Any judgments/summaries in respect of any PII applications or hearings which took place during the applicant’s original trial and appeal proceedings in 2008.

2.  The Government are requested to confirm which parts of Annex C and any other confidential information to which the CCRC referred were disclosed, and the dates of such disclosure.

3.  The parties are requested to confirm the dates and details of all disclosure which took place following the publication of the CCRC report.

Legal questions

4.  Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular:
(a) did he advance before the Court of Appeal in 2012, at least in substance, the argument under Article 6 of the Convention which he now seeks to make; and
(b) did Article 35 § 1 require him to seek certification of a question of law of general public importance?

5.  Has there been a violation of Article 6 §§ 1 and 3 (d) of the Convention in the applicant’s case?