R v Central Criminal Court and another

The Supreme Court considered a narrow question whether English courts have any common-law discretion to refuse permission for a defendant to disclose material heard in camera to the European Court of Human Rights (ECHR) in the course of pursuing an article 6 complaint. The court held that (i) the ECHR procedural rights in articles 34 and 38 of the European Convention on Human Rights operate at the international level and do not of themselves automatically deprive domestic courts of the ability to exercise a common-law discretion to protect national security, witnesses or other interests; and (ii) even if there were any tension with article 34, English courts exercising a domestic common-law discretion are not bound to give effect to unincorporated international obligations and may take those obligations into account but need not treat them as determinative.

The court applied ECHR jurisprudence (notably Janowiec v Russia and Al Nashiri v Poland) to emphasise that the ECHR itself is best placed to decide under article 38 whether disclosure to it is necessary and what protective measures it can adopt. Because the domestic courts had acted with appropriate scrutiny and had reasonable and solid grounds for non-disclosure, the Supreme Court dismissed the appeal.

The appellant, convicted after a retrial of murder and related offences, sought to challenge on Convention grounds before the European Court of Human Rights the fairness of his trial because part of his defence evidence had been heard in camera. The appellant applied to disclose and refer in his response to the ECHR to the contents of the in camera material. Domestically, the trial judge (Ouseley J) had ordered parts of the defence be heard in camera on national security and witness-protection grounds; the Court of Appeal (Criminal Division) and later the Court of Appeal on the conviction appeal had reviewed the closed material and upheld the procedure. The appellant brought an ECHR application (No 31295/11) and later sought permission from the domestic courts to include the in camera material in his Strasbourg response.

Procedural path: following the original in camera order (15 January 2008) and dismissal of the appellant's criminal appeal (5 October 2010), the appellant lodged his ECHR application (28 April 2011). The ECHR extended time for any response to allow the appellant to seek leave in the domestic courts. Ouseley J refused the application to permit disclosure to Strasbourg on 27 February 2014 and expanded his earlier non‑publication order. The appellant challenged that ruling by judicial review; the Divisional Court (Elias LJ and Hickinbottom J) granted permission for judicial review but dismissed the substantive application. The Divisional Court certified a point of law but refused permission to appeal; the Supreme Court granted permission and heard the appeal.

Nature of relief sought: the appellant sought a declaration or order permitting him to disclose and rely on material heard in camera in his response to the United Kingdom’s observations before the ECHR.

Issues framed by the court: (i) whether English courts have any discretionary power to refuse to permit disclosure of in camera material to the ECHR where an applicant seeks to rely on it; and (ii) whether any such power is displaced by the United Kingdom’s international obligations under article 34 of the Convention (and article 38 by implication).

Court’s reasoning:

• The court distinguished between the rights conferred by article 34 (right to individual application) and the procedural powers of the ECHR under article 38 to request and manage evidence. It emphasised that articles 34 and 38 operate at international level and that the ECHR is best placed to determine whether disclosure to it is necessary and what protective arrangements or redactions should be made.
• Authority from the ECHR (Janowiec and Al Nashiri) shows the Strasbourg court will consider domestic procedures’ independence and thoroughness before ordering production of sensitive material and may adopt protective measures; it will not act as a mere fourth-instance re-evaluation of national security findings.
• On domestic law, the United Kingdom’s dualist approach means a domestic decision-maker exercising a general common-law discretion is not obliged to give effect to unincorporated international obligations, though it may take them into account. Precedents (eg Brind, Lyons, Hurst) support this approach.
• Because Ouseley J had considered the open and closed material, concluded there were reasonable and solid grounds for non-disclosure, and left the ECHR free to request material under article 38, the Supreme Court found no basis to hold that there are no circumstances in which domestic refusal could be justified.

The court therefore dismissed the appeal.

Appeal dismissed. The Supreme Court held that (i) articles 34 and 38 of the Convention operate at the international level and do not automatically deprive domestic courts of a common-law discretion to refuse disclosure of in camera material to the European Court of Human Rights; (ii) the ECHR itself should decide under article 38 whether it requires disclosure and what protective measures to adopt; and (iii) domestically the courts are not bound to give effect to unincorporated international obligations when exercising a general discretion. Because the trial judge had reasonable and solid grounds for maintaining non-disclosure, the refusal to permit disclosure to Strasbourg was lawful.

Trial judge Ouseley J made in camera orders (15 January 2008). The Court of Appeal (Criminal Division) upheld that order (28 January 2008). After a retrial the appellant was convicted (16 January 2009) and his criminal appeal was dismissed by the Court of Appeal (Criminal Division) (5 October 2010). The appellant applied to the European Court of Human Rights (Application No 31295/11). Ouseley J refused permission to disclose in camera material to Strasbourg (27 February 2014). The Divisional Court (Elias LJ and Hickinbottom J) granted permission for judicial review but dismissed the challenge (31 October 2014) and certified a point of law; the Supreme Court granted permission and dismissed the appeal ([2015] UKSC 76).