Shayler, R v

A criminal trial remains fair where restrictions on disclosure and cross-examination are necessary, proportionate and no greater than the circumstances require. A defendant acting in person is entitled to the same fairness as a represented defendant, but is not entitled to advance a defence or cross-examination that counsel could not lawfully pursue.

Where national security is engaged, a judge may require advance notice of a matter relating, or purporting to relate, to security or intelligence. The judge must then determine relevance and whether any hearing should be in public or in camera. Cross-examination directed to credit must be capable of affecting the jury’s view of the witness’s evidence. It may be excluded where it is irrelevant and is in substance an attempt to raise an unavailable public-interest justification.

The applicant, a former member of the Security Service, was convicted at the Central Criminal Court on 4 November 2002 of three offences under sections 1 and 4 of the Official Secrets Act 1989. He received concurrent sentences of six months’ imprisonment.

He renewed an application for leave to appeal against conviction. He alleged that the combined effect of rulings made by Moses J on 8, 14 and 30 October 2002 breached Article 6 of the European Convention on Human Rights. The rulings permitted certain witnesses to give evidence anonymously behind screens, required advance notice of security or intelligence matters he wished to raise, and restricted proposed cross-examination of a prosecution witness on credit.

The central issue was whether those cumulative restrictions deprived the proceedings of an adversarial character or unfairly disadvantaged him because he represented himself.

1. The renewed application for leave to appeal was dismissed. The court held that none of the challenged rulings was independently vulnerable and that their combined effect did not render the conviction unsafe or the trial unfair under Article 6.

2. The order allowing four Security Service witnesses to give evidence unnamed and screened from the public was justified. Moses J had correctly treated open justice as important, assessed the particular risk to each witness and the resulting prejudice to the defence, and found a real risk to their safety. The applicant knew their identities. The restriction was no more than necessary to protect national security and the proper administration of justice.

3. The advance-notice regime was also proportionate. It required notice only of a matter relating, or purporting to relate, to security or intelligence. It did not require the applicant to disclose his proposed questions or the detailed substance of his evidence. It preserved the judge’s ability to decide relevance and, only if necessary, whether the matter should be heard in public or in camera. The applicant had not given an assurance that he would confine himself to the material issues, and he could not obtain through self-representation an advantage unavailable to counsel.

4. The proposed cross-examination of witness B was properly excluded. Applying R v Sweet Escott [1971] 55 Cr App R 316, credit questions must be capable of affecting the tribunal’s assessment of the witness’s evidence. The topics were unrelated to B’s limited factual evidence and could not properly affect a jury’s assessment of it. They were also an impermissible attempt to advance a public-interest justification that the earlier rulings had excluded.

5. The court subsequently examined the confidential schedules considered by Moses J and confirmed that they supported his conclusions. The restrictions applied equally to a represented or unrepresented defendant and did not destroy equality of arms or the adversarial nature of the trial.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction dismissed in [2003] EWCA Crim 2218.

• Central Criminal Court: on 4 November 2002, the applicant was convicted on three counts under the Official Secrets Act 1989 and received concurrent sentences of six months’ imprisonment.

• House of Lords: before trial, it upheld the ruling that the Official Secrets Act 1989 allowed no public-interest defence to the charged disclosure offences: [2003] 1 AC 247.