AUSTIN v. THE UNITED KINGDOM
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo
1. The applicant, Mr Herbert Austin, is a British national, who was born in 1949 and lives in Birmingham. 2. The complaint made in this application is that the applicant’s trial for money laundering was unfair because the legal framework governing disclosure of prosecution evidence to the defence was inadequate, and the operation of that legal framework had deprived the applicant of a fair trial since neither the trial judge nor the Court of Appeal had reviewed the material which the prosecution claimed was not relevant and therefore not discloseable. 4. In May 2006 the applicant was convicted after trial of the importation of cocaine. The applicant appealed against his conviction and the appeal centred on whether there had been a failure to disclosure telephone intercept evidence. Special counsel was appointed to represent the applicant (that is, independent counsel appointed in addition to the applicant’s own counsel, but able to see evidence not disclosed to the defence on public interest grounds: see paragraphs 42-43 below). While the appeal was pending, the prosecution decided no longer to resist the appeal. On 15 September 2009 the Court of Appeal quashed the conviction and ordered a re-trial. In doing so, it gave two redacted or “open” judgments (that is, judgments which are public and available to all parties) and two unredacted or “closed” judgments (judgments seen only by the prosecution and special counsel appointed for the applicant). 5. In reaching its conclusions, the Court of Appeal indicated that further material related to the telephone intercept evidence was prima facie discloseable and it would have to be reviewed in light of Public Interest Immunity (“PII”) considerations. Therefore, before the re-trial, a review of the prosecution’s unused material (that is, evidence that they had not relied on at the first trial) was conducted by independent counsel, Mr Laidlaw (“the Laidlaw review”). Mr Laidlaw concluded that there had been serious and multiple instances of non-disclosure during the cocaine trial attributable to significant and acknowledged failures by the Crown in communicating between its various entities. These failures, which were confined to issues concerning intercept material relating to the drugs offences, potentially affected the provenance, authenticity and reliability of the intercept evidence, but affected no other evidence. The prosecution then gave notice that they would not seek to rely on the intercept evidence because they could not comply with their disclosure obligations. Later, on 3 August 2010, they decided not to proceed with the prosecution. Verdicts of not guilty were accordingly recorded on 3 September 2010. It had been the intention of the defence to make submissions to the trial judge as to lack of disclosure and an abuse of process by the prosecution, but the prosecution’s decision to drop the case meant that those submissions were not, in the event, heard or substantively determined. In addressing the court the defence indicated that based on their experience, they had “no confidence in the integrity of the prosecution in this case”. 6. The money laundering case arose from the electronic theft in August 2000 of over USD 15,000,000 from C. Bank, Frankfurt. Part of the money was said to have been laundered through a series of transfers from Frankfurt to Amsterdam and then to Australia and, thereafter, to corporate bank accounts in Cyprus and Jersey, which were controlled by the applicant and a co-defendant. The money was then used to purchase property for the benefit of the applicant and his co-defendant through an estate agent firm which they ran. This was done through a series of payments totalling GBP 1.6 million. The transfers were orchestrated by an Australian, R.B. The main evidence against the applicant was a document seized from R.B.’s home which suggested that the applicant was to be one of the beneficiaries of the stolen money. The applicant’s defence was that he was investing the money on behalf of R.B. and did not know it was stolen. 7. It appears that, before the money laundering trial started, the trial judge sought and received approval to read the unredacted version of the Court of Appeal’s judgments quashing the applicant’s conviction in the cocaine case. Approval was given by, among others, the judge who had presided in the appeal. The trial judge did not, however, inform the defence and prosecution of his intention to obtain and read those unredacted judgments. 8. Also in advance of trial the defence sought to argue that the proceedings were an abuse of process. The two prosecutions (the cocaine case and the money laundering case) involved the same police officers and prosecution counsel. There were, it was argued, overlaps in the evidence. The applicant thus submitted that the court should examine the prosecution’s failure to disclose evidence in the cocaine case and consider whether he could have a fair trial in the money laundering case. The following hearings considered these questions. 9. On 9 May 2011 the applicant asked for disclosure of the material which had led to the conviction in the cocaine case being quashed. The prosecution considered that, in so far as the money laundering case was concerned, there was nothing in that material which was discloseable: there was nothing which would undermine the prosecution case or assist the defence submission that the proceedings were an abuse of process. Submissions then took place in respect of the material reviewed by Mr Laidlaw QC (see paragraph 5 above). The trial judge indicated that he did not wish to look at that material but accepted that, if he was called upon to rule on whether there was any impropriety in the prosecution, he would have to do so. 10. On 10 May 2011 leading counsel for the prosecution reiterated that, in the materials reviewed by Mr Laidlaw, there was nothing capable of supporting any allegation of bad faith and therefore nothing that was discloseable. Counsel for the applicant submitted that it was not an assurance on the propriety of disclosure the defence was asking for, but rather the evidence which had not been disclosed. 11. On 11 May 2011 the defence applied for the proceedings to be stayed on the ground that there had been an abuse of process arising, inter alia, from the prosecution’s failings in the cocaine case. They also asked the trial judge to consider disclosure to allow proper consideration of the available evidence. In particular, the defence sought details of the documentation which had been seen by the Court of Appeal in the appeal against conviction in the cocaine case and which had led to the appeal being allowed. 12. The trial judge ruled that the defence were not entitled to disclosure of this documentation. The disclosure system relied on the integrity of prosecution counsel and there was no basis for any allegation in respect of the prosecution’s integrity. Prosecution counsel had told him there was nothing to disclose and there was nothing in the material he had seen to displace his duty to put his trust on issues of disclosure firmly in the hands of prosecution counsel. 13. On 16 May 2011 the trial judge was invited to reconsider his ruling of 11 May in light of the fact that prosecution counsel had not seen all of the material herself. He declined to do so. He found that prosecution counsel could not expect to look at every item of material and must rely on being part of a team. Prosecution counsel had a system for being kept properly informed. It was her judgment, not anyone else’s, which had led to her declaring that there was no discloseable material. 14. On 17 May 2011, the trial judge rejected an application that he should recuse himself because he had read the unredacted Court of Appeal judgments. He confirmed, however, that he had relied on those judgments when considering and rejecting the allegations of bad faith and abuse of process made by the defence and also while considering whether the events which led the Court of Appeal to quash the conviction in the cocaine case would affect the fairness of the money laundering trial. 15. On 19 May 2011 the judge declined to accede to a further application for disclosure on the part of the defence. 16. On 25 May 2011 the defence again applied for the proceedings to be stayed as an abuse of process on grounds relating to, inter alia, the integrity of the prosecution team and an alleged manipulation of the trial process. The trial judge rejected that application. He found that, even if the prosecution had acted with bad faith in the cocaine case, this would not infect the prosecution in the money laundering case. Having considered the Court of Appeal’s unredacted judgments there was no foundation in them for any allegations of bad faith or other misconduct on the part of those involved in prosecuting the money laundering case. He also declined to appoint special counsel for the purposes of the trial. 17. At trial one of the men responsible for the initial theft from C. Bank, D.S., gave evidence for the prosecution that R.B. was pivotal to the entire operation and that a third man, R.J., would legitimise the money. They also led evidence from a businessman and a broker tending to show the connections between R.J, R.B., and the applicant. A forensic accountant gave evidence of the routes the money had taken and of correspondence between R.J. and R.B. 18. The applicant gave evidence setting out his business dealings with, among others, R.J. and R.B., but denied that he knew the money was stolen. 19. Since it was accepted that the C. Bank money had been stolen, and the money had taken the route it did, the only issue for the jury was whether the applicant knew the money was stolen. 20. The applicant was convicted on 21 October 2011 of one count of conspiracy to conceal the proceeds of criminal conduct and one count of conspiracy to convert the proceeds of criminal conduct. He was acquitted of one count of conspiracy to transfer the proceeds of criminal conduct, and a similar count was ordered to lie on the file (meaning that no verdict was returned on it and the prosecution could only subsequently revive and proceed on that count in exceptional circumstances). 21. On 12 December 2011 the applicant was sentenced to eight years’ imprisonment. 22. The applicant appealed to the Court of Appeal against his conviction on a single ground, namely that his conviction was unsafe because the judge had acted incompatibly with his Article 6 rights in resolving the abuse of process application in the money laundering case without appointing special counsel to advance the applicant’s interests despite his having read and been influenced by the two unredacted Court of Appeal judgments in the cocaine case. 23. In the course of the appeal the same special counsel who had been appointed in the appeal in the cocaine case was re-appointed and, as the Court of Appeal later noted, he was given “the fullest possible access to potentially relevant material”. In particular, he read and considered the unredacted judgments of the Court of Appeal, the opinion of Mr Laidlaw on disclosure failures in the cocaine trial together with the supporting documentation (see paragraph 5 above), and the undisclosed material in the money laundering case. The special counsel made critical submissions on the applicant’s behalf, noting that there had been serious failings in the cocaine trial. However, he noted that “although there were repeated errors, and bad judgment [on the part of the prosecution in the cocaine trial], there was no evidence of deliberate non-disclosure, or attempts to hide material, or of deliberate misleading”. Moreover, he considered that there was no evidence from which it could be argued that the money laundering trial had been tainted. Accordingly, he considered that no issue arose as to whether any of this material should be the subject of an application by the prosecution to withold disclosure in the money laundering proceedings. 24. Nevertheless, special counsel invited the Court of Appeal to consider whether the following matters were compatible with Article 6: - the trial judge relying on the unredacted/closed judgments of the Court of Appeal; - the trial judge not ordering the prosecution to make available further material said by the defence to be relevant to their application on abuse of process; - special counsel not having been appointed at trial; and - the failure of the trial judge to recuse himself having read the Court of Appeal judgments. 25. The Court of Appeal dismissed the appeal on 27 June 2013. It began by emphasising the difference between issues of disclosure and abuse of process. It observed (at paragraphs 47–49 of its judgment): “Disclosure is concerned with the question of what material should be disclosed to the defence with a view to its being deployed before the tribunal of fact, whether that is the jury dealing with the issue of guilt or innocence, or the judge dealing with an issue such as whether proceedings should be stayed for abuse of process. It is the everyday experience in criminal proceedings that a judge may be required to examine material which is prima facie disclosable in order to rule on whether disclosure to the defence should be withheld, for example on grounds of public interest immunity, and it may (although only exceptionally) be appropriate for this purpose for a special counsel to be appointed. If the judge does so rule, that material will play no further part in the trial, and the judge will put it out of his mind for the purpose of any subsequent rulings in the case, including any ruling on abuse of process. All this is well established. Abuse of process is different, because it involves a substantive determination of the case. For a judge to determine an abuse argument by reference to material which he had seen, but which the defence has not seen, undoubtedly creates a difficulty. Although we shall have to consider the procedure adopted in the court below, it is well established that the question of breach of Article 6 must be determined by reference to the proceedings as a whole, including any appeal. [Counsel for the applicant] accepted, rightly in our view, that if it can now be said as a result of the proceedings in this court that there was nothing further which required to be disclosed, and nothing in the unredacted judgments seen by the judge which would have been capable of assisting the defence in their abuse of process arguments, the appeal must be dismissed. Whatever criticisms might have been made of the procedure below, there would then be no breach of Article 6, and no reason to doubt the safety of the appellant’s conviction.” 26. The Court of Appeal then considered the proper role of a trial judge in such a situation. It noted that all of the parties to the appeal accepted that the trial judge had erred in reading the unredacted judgments without disclosing his intention to do so to the defence and prosecution. 27. The Court of Appeal considered that it would have been better if the judge had made clearer the distinction between the application for disclosure and the application to stay the proceedings for abuse of process. In relation to the application for disclosure, he could have accepted the assurance given by prosecution counsel at the pre-trial hearings on 911 May 2011. It would not then have been necessary to read the unredacted judgments of the Court of Appeal. 28. However, he might also have informed the parties that, because of the history of the case, he wished himself to review the relevant material from the earlier case in order to satisfy himself that proper disclosure had been made in the latter case. If he had indicated that to all parties, he would have been entitled to proceed to read the unredacted judgments from the Court of Appeal. Logically, if he was to consider those judgments, he should also have reviewed the relevant material relating to the discontinuance of the drugs prosecution. 29. Nevertheless, it was clear from his rulings that the trial judge had considered disclosure first and then abuse of process. He had concluded that the unredacted judgments were not discloseable as they contained nothing to support the defence or undermine the case for the prosecution. The trial judge was also correct to refuse to recuse himself: he had not been shown any material in private which was damning of the applicant. 30. The Court then considered whether the applicant’s trial was unfair because the trial judge had failed to appoint special counsel before addressing the issue of disclosure or resolving the abuse of process application. Given the history of the case it would have been permissible for the trial judge to have appointed special counsel to help address the question of disclosure. However, there was no obligation on him to do so. It was open to the judge to conclude without special counsel that the prosecution’s disclosure obligation had been properly discharged. It may be that the appointment of special counsel to consider disclosure would have been a reassurance to the applicant, but this was a question of judgment for the judge which he could exercise properly either way. 31. As regards abuse of process and the appointment of special counsel, the applicant had submitted that it was wrong in principle for a substantive issue in criminal proceedings to be decided on the basis of information which was not communicated to the defendant. The appointment of special counsel could cure such a defect. However, having reviewed the leading authorities on the appointment of special counsel, including the judgment of the Grand Chamber in Edwards and Lewis and that of the House of Lords in H and C, the Court of Appeal declined to reach a conclusion on whether special counsel could be appointed for a purpose other than disclosure, such as consideration of a substantive issue like abuse of process. 32. Next, the Court of Appeal considered the role of special counsel on appeal. It recalled that, when an appeal was brought in connection with an issue of disclosure (or non-disclosure on public interest grounds), the Court of Appeal would review all of the material before the trial judge. Nevertheless, there would also be cases where the court would request the appointment of special counsel, including for the consideration of issues other than disclosure. 33. The court then addressed the submissions made on behalf of the applicant by special counsel. In addressing the submission that the applicant had been “traduced” by the trial judge considering the unredacted Court of Appeal judgment which he, the applicant, could not see, the Court of Appeal observed: “86. The position is rather simpler than that suggested. The defence raised a suggestion of abuse of process. The judge looked at material which, if it had undermined the prosecution position on the claim of abuse or was capable of lending support to the suggestion of abuse, would have been disclosable, subject to [public interest immunity] considerations. The judge found there was no such material. That is not a finding which ‘traduces’ the appellant. It was simply a finding that the closed judgments of the Court of Appeal were not capable of supporting the claim of abuse. This was not a case where the defendant was making specific factual allegations amounting to abuse which were then contradicted by detail contained in undisclosed material. We would add that our reading of the Judge’s ruling on the abuse argument is that the unredacted judgments were not central to his reasoning. Rather they fortified the conclusion he would have reached in any event.” 34. The Court of Appeal then summarised the conclusions of special counsel, who had reviewed the material originally reviewed by Mr Laidlaw. In respect of that material, special counsel had concluded that, although there were repeated errors, and bad judgment, there was no evidence of deliberate non-disclosure, or attempts to hide material, or of deliberate misleading. On that issue, the Court of Appeal concluded: “On the basis of our review of that material, we unhesitatingly concur with that conclusion. Taken as a body, the closed judgments of the Court of Appeal in 2009 and the opinion of Mr Laidlaw QC with its supporting material, which has been made available in full to us, revealed nothing which would be disclosable as undermining the prosecution case in the money laundering proceedings or supporting defence allegations of abuse of process in the money laundering proceedings. All of the failings identified are wholly discrete from the investigation into the money laundering or the evidence presented at the trial before [the trial judge]. Even within the four corners of the drugs case, we emphasise that there is nothing to support allegations of bad faith. Finally, in considering the role and submissions of Special Counsel in this appeal, it is appropriate to address the unused material that was in the possession of the prosecution at the time of the money laundering trial. [The trial judge] paid no regard to any prosecution material withheld in the course of the money laundering case. However, out of an abundance of caution, on 28 February 2013 we requested Special Counsel to examine the unused material from the money laundering investigation, and Mr Keith has done so. He concluded that all of the items appeared to be sensitive and/or confidential, and were properly withheld. Mr Keith paid particular attention to the possibility of documents appearing to relate to the course, direction or conduct of the investigation. He found none. He also paid special attention to any item that appeared to relate to any of the personnel who had been concerned in the material non-disclosure during the drugs case. He found no such documents.” 35. Finally, in respect of Article 6, the Court of Appeal found: “95. It is axiomatic that we should consider this question by reference to the criminal proceedings as a whole, including the appeal process. At one point, [counsel for the applicant] submitted that the consideration by the trial judge of undisclosed material both as to disclosure and as to the substance of the issue on abuse of process represented an irredeemable breach of Article 6. However as we have already indicated, he moderated that position in the course of the hearing, and accepted that if there was nothing further which required to be disclosed, and nothing in the unredacted judgments capable of assisting the defence in their abuse arguments, the appeal must be dismissed. 96. The Crown throughout took a directly contrary view to the [applicant’s] original submission. As we have already observed, [counsel for the prosecution] submits that the judge should have accepted the assurances of counsel as to the propriety of the decisions on disclosure taken by the prosecution. There was no need for the judge to look at any of the material: the Crown had performed their duty properly. [Counsel for the prosecution] criticises the judge’s unilateral decision to look at the closed judgments, but submits this is neither here nor there. All he did was to reassure himself the Crown had taken the correct decision. There was no material that would tend to undermine the prosecution or assist the defence. Since the only way in which the relevant material might even hypothetically undermine the prosecution or support the defence, was in relation to the abuse of process claim, it was unsurprising that the judge’s view on disclosure should find its echo in his decision on abuse of process. 97. We have already indicated our view of the submission from Special Counsel that the use of the closed judgments ‘traduced’ the appellant [see the quotation from paragraph 86 of the court’s judgment set out at paragraph 33 above]. Our view of this submission may bear a little expansion in the context of considering a potential breach of Article 6. As we have already stated, the two potential issues of relevance here were inadequacy of disclosure in the money laundering case or abuse of process of the Bennett/Mullen type [on the basis that there has been unconscionable behavior by the executive – see paragraph 46 below]. The decision as to the adequacy of disclosure in the money laundering proceedings is clearly not a ‘substantive’ issue in the criminal trial. This question is almost always decided without the defence having knowledge of the material sought to be withheld. As to the second issue... while, at least theoretically, wrongful withholding of evidence capable of sustaining such a claim could represent a breach of Article 6, it could not even then be said to ‘traduce’ the defendant. We do not consider that what took place here represented a breach of Article 6 at all.” 36. The Court of Appeal thus dismissed the appeal. 37. The applicant applied to the Court of Appeal to certify a point of law of general public importance concerning the compliance of the disclosure regime with Article 6 of the Convention. On 16 October 2013 the Court of Appeal refused the application. 38. Pursuant to section 3 of the Criminal Procedure and Investigation Act 1996 (“the 1996 Act”), the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to him and which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused. However, material must not be disclosed where the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it. 39. The duty of the prosecutor to disclose is a continuing one which, according to section 7A of the 1996 Act, applies at all times after the prosecutor has complied with his section 3 duty up until the point where the accused is acquitted, convicted, or the prosecutor decides not to proceed with the case. 40. Section 8 of the 1996 Act permits the accused to apply to the court for an order requiring the prosecutor to disclose relevant material which he has reasonable cause to believe is in his possession. 41. In R v H and C [2004] 2 AC 134 Lord Bingham emphasised, at paragraph 35, that the prosecution should only seek a judicial ruling on the disclosability of material in its hands in truly borderline cases. 42. In R v H and C, decided after the Chamber judgment in Edwards and Lewis v. the United Kingdom, nos. 39647/98 and 40461/98, 22 July 2003, the Judicial Committee of the House of Lords held, inter alia: “The years since the decision in R. v. Davis and the enactment of [the Criminal Procedure and Investigation Act 1996] 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 [public interest immunity from disclosure] 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. ...” 43. With regard to the role of special counsel at the appeal stage, in R. v. Chisholm [2010] EWCA Crim 258 Lord Justice Touslon made the following “tentative observations”: “46. At the appellate stage, it is obviously not the case that whenever the single judge or the full court is considering an application for leave to appeal against conviction on grounds relating to an anonymity order, it will request the appointment of special counsel. In many cases, the court, on reading the closed material, will be able to reach a view about the propriety of what happened and the safety of the conviction without any need for special counsel. However, there may be cases where, before deciding whether to grant leave, or on granting leave, the court may consider it necessary in the interests of justice to request that special counsel be appointed. This might be for a number of possible reasons: the court may consider that help is needed from special counsel to ensure that it has all the material which it ought to have; the court might want to know whether special counsel, having read the grounds of appeal and supporting advice, would wish to present argument in support of any of the grounds of appeal on the basis of material not known to the applicant or appellant’s ordinary counsel. The court might also wish to know whether special counsel would want to raise some other point unknown to the appellant’s ordinary counsel relating to what happened in the closed proceedings. Or there might be questions on which the court feels that it needs the assistance of special counsel to do justice. These matters would call for individual consideration in the individual case.” 44. In R. v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) [1993] UKHL 10 the House of Lords confirmed that an abuse of process justifying the stay of a prosecution could arise where it would be impossible to give the accused a fair trial; or where it would amount to a misuse/manipulation of process because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of the particular case. 45. The prosecution’s failure to disclose material may lead the courts to stay proceedings on grounds of abuse of process: R v Birmingham and Others [1992] Crim LR 117. However, a stay should not be imposed unless the defendant can show that he or she would suffer such prejudice that a fair trial would not be possible. 46. A court (the High Court or above) may also stay proceedings where there has been unconscionable behavior by the executive (see Bennett v Horseferry Road Magistrates’ Court and R v Mullen [1999] 2 Cr. App. R. 143.