R v Central Criminal Court and another

A domestic court retains a common law discretion to restrain disclosure of material heard in camera, including disclosure intended for proceedings before the European Court of Human Rights. Articles 34 and 38 of the European Convention on Human Rights operate internationally. They do not give an applicant an absolute right to determine what confidential material must be supplied to Strasbourg.

The European Court decides whether further material is necessary and can accommodate legitimate national security concerns through protective procedures. Under the United Kingdom’s dualist system, an unincorporated international obligation does not control a general common law discretion. A domestic decision-maker may consider such an obligation but is neither bound to do so nor required to give effect to it.

The appellant had been convicted of murder and burglary following a retrial during which his defence evidence was heard in camera for reasons including national security and the protection of witnesses or others. He later applied to the European Court of Human Rights, alleging that the private hearing had made his trial unfair contrary to article 6.1 of the European Convention on Human Rights.

Ouseley J refused permission to disclose the in camera material in the appellant’s Strasbourg response. The Divisional Court granted permission for judicial review but dismissed the claim: [2014] EWHC 3558 (Admin). The Supreme Court granted permission to appeal.

The sole issue was whether the English courts possessed any common law discretion to prevent disclosure to the European Court. The reasonableness and proportionality of the particular non-disclosure order were not before the Supreme Court.

1. Appeal dismissed unanimously. Lord Mance delivered the judgment, with which Lord Neuberger, Lady Hale, Lord Clarke, Lord Sumption, Lord Reed and Lord Toulson agreed. The appellant had not established that refusal to permit disclosure to the European Court of Human Rights could never be justified.

2. Articles 34 and 38 of the European Convention on Human Rights operate together. The European Court is master of its own procedure and has the central role in deciding whether further material is needed. An applicant cannot determine unilaterally that disclosure is required for the effective pursuit of an application. The order left the European Court free to request material under article 38 and left the United Kingdom to consider its position if such a request were made. Janowiec v Russia (2013) 58 EHRR 792 and Al Nashiri v Poland (2014) 60 EHRR 393 explained that relationship.

3. National security does not invariably require disclosure to the European Court. Strasbourg may consider whether domestic procedures supplied independent and meaningful scrutiny and whether reasonable and solid grounds supported secrecy. It may protect legitimate interests through redaction, summaries, restricted access or a closed hearing. The present material had been seen and addressed by the appellant and his representatives, and the domestic courts had repeatedly reviewed the need for secrecy and fairness. There was no basis for concluding that Strasbourg would inevitably, or probably, require further disclosure.

4. The European Court is an independent international court, not another tier of domestic appeal. The principle that a domestic appellate court may need access to all material available below therefore had no direct application. The reasoning in Bank Mellat v HM Treasury (No 2) [2013] UKSC 38 did not remove the domestic discretion.

5. The United Kingdom follows a dualist approach. A general common law discretion is not limited by an unincorporated international obligation. Nor does the principle of legality require express parliamentary authority before a court may exercise that discretion inconsistently with such an obligation. A domestic decision-maker is not bound to consider or give effect to purely international obligations, although it may consider them where appropriate.

6. Ouseley J had considered the international position under articles 34 and 38 but concluded that disclosure remained inappropriate, while retaining willingness to reconsider if Strasbourg later requested the material. That was an orthodox exercise of the common law discretion. His order could therefore extend to the appellant’s Strasbourg proceedings.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The Court affirmed that Ouseley J possessed a common law discretion to maintain the non-disclosure order.

2. Divisional Court of the High Court: Permission for judicial review was granted, but the claim was dismissed on its merits: [2014] EWHC 3558 (Admin). The court later certified a point of general public importance but refused permission to appeal.

3. High Court: Ouseley J ruled on 27 February 2014 that the appellant could not disclose the in camera material in his Strasbourg response and expanded the existing order to make that prohibition express.