CASE OF FITT v. THE UNITED KINGDOM
No violation of Art. 6-1
Elisabeth Palm;John Laws;Nicolas Bratza;Paul Mahoney
4. At the time of the introduction of the application, the applicant was serving a prison sentence. The background to his conviction is as follows. According to the Crown’s case the applicant, together with C., S. and another, planned to carry out an armed robbery of a Royal Mail van as it was due to leave the Sorting Office at Sandgate Close in Romford. C. and S. had worked for the Post Office and were familiar with the procedures necessary to send packages of great value through the post. Using up-to-date technology the conspirators posted a letter containing a tracking device. The letter was to appear, in due course, amongst other packages of a similar kind, in a mail van the conspirators proposed to rob. Unknown to them, the police were fully informed as to the robbery that had been planned. 5. On 26 August 1993, the date of the robbery, the police were keeping the area and conspirators under observation. At 8.40 p.m. an Orion (driven by C.) parked in Crow Lane, with its lights on, near the Post Office depot. S.’s Sierra arrived in Crow Lane. The applicant emerged from S.’s Sierra, dressed entirely in black. He made his way into the cemetery carrying a jacket over his arm. C. in the Orion then followed the Sierra, only to return to Sandgate Close, where he parked the Orion with the headlights on. At 8.46 p.m. the applicant was seen lying down by the railings, inside the cemetery, at a spot directly opposite Sandgate Close where there was a gap in the railings. At 8.49 p.m. he was disturbed by a passing resident, who stopped and spoke to him. He was also spotted by a Post Office employee. The police officers observed the incident. At about 8.50 p.m. the applicant ran further back into the cemetery constantly stopping to face the depot and gesticulating in a manner consistent with his trying to attract the attention of C. in the Orion which was parked opposite. Having disappeared between the bushes for about a minute, he re-appeared, now without his jacket, and ran further into the cemetery where he was arrested by armed officers. 6. C. was arrested in a motorcar near the mail van. In the car there was a walkie-talkie, a balaclava and some gloves. 7. Behind a bush where the applicant had been observed crouching at one stage was found a light-coloured jacket with fibres on it matching those from the applicant’s jumper. In the pocket of the jacket were a pair of handcuffs, a sock containing four shotgun cartridges, and a canister of CS gas. Partially buried near the jacket was a balaclava helmet. A short time later a police officer discovered a pair of gloves and a sawn-off shotgun buried nearby. All the items were shown to the applicant whilst still at the scene. He denied all knowledge of them. 8. S. was stopped after a high-speed car chase. In his car there was another walkie-talkie, through which connection could be made with that found in C.’s car. Yet another car was found abandoned nearby. It was the Crown’s case that that car had been driven by a fourth conspirator. In it was found a device capable of monitoring a police radio. 9. The trial against the applicant, S. and C. commenced on 18 April 1994 at the Central Criminal Court, London. The following day, C. pleaded guilty and the jury were discharged. On 20 April 1994 the trial of S. and the applicant began before a new jury. On 16 May 1994 the applicant was convicted of conspiracy to rob, possession of a firearm and possession of a prohibited weapon, and he was sentenced to eleven years’ imprisonment. 10. Prior to the start of the trial, on 23 March 1994, the prosecution applied ex parte to the trial judge for an order that they should not be required to disclose certain material to the defence. The defence were told that the material related to sources of information. The contents of the material in question were described to the trial judge by prosecuting counsel. Having later heard submissions from the defence that if any of this information touched upon the applicant’s defence that he had been set up by D.W. (see paragraph 13 below), it ought to be disclosed, on 23 March 1994 the trial judge refused to order disclosure. He stated, inter alia: “... I ... adopted the principle that if something did or might help further the defence then I would order disclosure. I have not ordered disclosure. I have not found it necessary or right to adjourn proceedings, ex parte, in order for them to be inter partes... ” 11. On 25 April 1994, having informed the defence, the Crown made a further ex parte application to the trial judge. Immediately thereafter, the judge held an inter partes hearing on the question whether a witness statement taken from C. after his guilty plea should be disclosed to the defence. During the hearing prosecution counsel described the category of information which had been the subject of the ex parte application: “... the application was two-fold. One part of the ... application ... concerned a renewal of the original ex parte application, namely concerning the source of the information. The second limb upon which approval was sought is such that even to deal with the area upon which it was argued that it ought not to be disclosed would, in fact, reveal what the area was and that particular concern was expressly covered in the case of Davis, Johnson and Rowe [see paragraphs 23-24 below] which was [held] to be one of the exceptions where one does not even state the category in case it result in revealing that which ... ought to be protected.” 12. The judge read the entirety of the unedited witness statement and ruled: “What has happened here is the defendant, [C.], pleaded guilty. The matter was adjourned so that the prosecution could take a statement from him. It is now known that he has made a statement, but he is not to be called as a witness. ... [T]he prosecution has asked me to examine matters ex parte and I am satisfied that that was a correct application, that it was right that I should hear matters ex parte. As I indicated, had I changed my view during the hearing, I would have adjourned and heard the matter inter partes. It is plain to everyone, including each defendant that the statement of [C.] must, first of all, have dealt with preparation of the conspiracy to which he has pleaded guilty and the events of the day upon which he was arrested. The reason the prosecution say they should not serve that part of [C.]’s statement is sources of information in the headline and my decision has been that the prosecution’s attitude is correct. ...” In accordance with the judge’s ruling, the defence were served with a summary of C.’s statement, omitting any reference to sources of information. 13. The applicant gave evidence at trial. It was his case that he had agreed with C., who was his brother-in-law, to bury some items which he understood had been used in connection with a theft of motor vehicles. These items had come from a man called D.W., from whom C. was buying a car. The items had been handed to the applicant by D.W. in two bundles, wrapped in a brown coat, on the evening of 26 August 1993. The applicant said that C. had asked him to bury the bundles at a particular spot in the cemetery. This he had proceeded to do on that evening. After he had buried the items, he put the knife he used for digging the holes and the brown coat into a bag, which he then threw away. He denied all knowledge of the proposed robbery, of the light-coloured jacket, handcuffs, CS canister, shotgun and cartridges. The applicant alleged that he had been falsely implicated in the conspiracy by a participating informer, although he could only speculate as to the identity of the informer and as to that person’s motives. He claimed that C. had been having a relationship with D.W.’s girlfriend, and that D.W. had sought, for purposes of revenge, to make it appear that C. was involved in an armed robbery. 14. On 13 May 1994 the trial judge, in his summing-up to the jury, said: “That there was information from at least one person in this case is accepted and must be the situation, must it not, otherwise why would the police be going to all this trouble watching? Every rule has its exceptions and the law provides if a defendant in his trial is hindered in putting forward his defence by not knowing, first of all, whether or not there was an informer or, if he knows that, not knowing the identity of an informer, an application can be made to the judge and the judge has to be told the identity of the informer, or informers and he may order the prosecution to reveal that if a defendant is prejudiced in his defence. … Well, it will be plain to you that in a case like this where there has been at least one informer, the role of the informer has got to be examined with care and circumspection by you the jury in this trial. If the rules are observed not only by the police but also by the informer, or informers, the informer should not be told not [sic] to initiate crime or to promote it but, if crime is going on, he may be invited to string along with the plan and have a foot in both camps. Of course an informer may overstep the mark, for example, and what is suggested here is that [D.W.] organised really a façade of conspiracy to rob possibly in order to take revenge on [C.] who was messing about with his girl, or for whatever reason (perhaps a reward it is suggested) and you must consider it: has [D.W.] so organised matters that [C.] would be arrested in incriminating circumstances and has [the applicant] been drawn into that web, [S.] possibly also being drawn into that web?” 15. The applicant appealed to the Court of Appeal. Subsequent to his conviction he had discovered that C. had provided false information for reward on a number of occasions in the past. Therefore, in the course of the appeal proceedings, the applicant applied to the Court of Appeal for disclosure of some eighty-eight statements previously made by C. relating to alleged confessions to crime made by other prisoners or information about crimes allegedly witnessed or overheard by C. while he was at liberty. This application was refused by the Court of Appeal, which was “not persuaded that there [was] any proper basis for ordering such disclosure”. 16. The applicant relied on two grounds of appeal against conviction. The first ground concerned the rulings by the trial judge and the second related to the witness statement made by C. to the prosecution. It was submitted in particular that: “... In his sentencing remarks the judge specifically referred to the existence of a ‘participating informant’ who was instrumental in both the appellant and [C.] being arrested; this was the first that the defence had heard of the existence of such an informant. In the submission of the appellant, the interests of justice required that the undisclosed material which had been specifically withheld from the defence, and apparently relating to a participating informant, should have been made available to the defence. The defence was materially disadvantaged in presenting its case to the jury by its inability to establish even the existence, let alone the role, of this informant. Without this evidence the defence case of ‘set-up’ rested upon a mere assertion which may well have been regarded by the jury as quite incredible and absurd. ... ... In the submissions of the defence, the actual text of the witness [C.’s] statement, or such part or parts of it as were not covered by recognised public interest immunity or protection, ought to have been disclosed to them. If this was not practicable then a further statement should have been obtained which omitted the objectionable material. The course in fact adopted of giving a ‘summary’ was a naked device to prevent the proper disclosure of admittedly relevant material, and was specifically designed to thereby advantage the Crown and to disadvantage the defence.” 17. On 6 June 1995 the Court of Appeal upheld the applicant’s conviction, observing: “... During the course of the proceedings the prosecution successfully applied ex parte to the judge for an order that they not be required to disclose certain material to the defence, save to the extent that the defence were told that the material related to sources of information. Having later heard submissions from the defence that if any of the material in question touched upon the applicant’s defence that he had been set up by [D.W.], it ought to be disclosed, on 23 March 1994 the judge refused to order any disclosure of the materials. These rulings by the judge are the subject of the first ground of appeal ... It is said that the interests of justice required that the undisclosed material should have been disclosed to the defence. We can see no reason to disagree with the judge’s ruling. He made it clear that if any of the material ‘did or might help the defence’ he would order disclosure. He obviously considered the matter carefully before giving his ruling. There is no substance in this ground of appeal. The second ground of appeal relates to a witness statement made by [C.] as a witness for the Crown. On 25 April 1994 the Crown applied ex parte to the judge to approve the non-disclosure of [C.]’s witness statement and to approve the alternative course proposed by the Crown, which was to provide a summary of the witness statement. The judge granted the application and approved the proposed course. Again, we see no reason to disagree with the judge’s decision in this matter. ... Accordingly, this renewed application for leave to appeal against conviction is refused.” 18. At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence. 19. In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common-law duty to disclose to the defence certain evidence of potential assistance to it ([1982] 74 Criminal Appeal Reports 302: “the Guidelines”). The Guidelines attempted to codify the rules of disclosure and to define the prosecution’s power to withhold “unused material”. Under paragraph 1, “unused material” was defined as: “(i) All witness statements and documents which are not included in the committal bundle served on the defence; (ii) the statements of any witnesses who are to be called to give evidence at the committal and (if not in the bundle) any documents referred to therein; (iii) the unedited version(s) of any edited statements or composite statement included in the committal bundles.” 20. According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows: “... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.” According to paragraph 8, “in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence”. The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution, although any doubt should be resolved in favour of disclosure. If either before or during the trial it became apparent that a duty to disclose had arisen, but that disclosure would not be in the public interest because of the sensitivity of the material, the prosecution would have to be abandoned. 21. Since 1992 the Guidelines have been superseded by the common law, notably by a number of decisions of the Court of Appeal. In R. v. Ward ([1993] 1 Weekly Law Reports 619) the Court of Appeal dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity. It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case, because: “... [When] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings. Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned.” The Court of Appeal described the balancing exercise to be performed by the judge as follows: “... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed.” 22. In R. v. Trevor Douglas K. ([1993] 97 Criminal Appeal Reports 342), the Court of Appeal emphasised that, in performing the balancing exercise referred to in R. v. Ward, the court must view the material itself: “In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity. When public interest immunity is claimed for a document, it is for the court to rule whether the claim should be upheld or not. To do that involves a balancing exercise. The exercise can only be performed by the judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind. Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure.” This judgment also clarified that, where an accused appeals to the Court of Appeal on the ground that material has been wrongly withheld, the Court of Appeal will itself view the material ex parte. 23. In R. v. Davis, Johnson and Rowe ([1993] 1 Weekly Law Reports 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence then had the opportunity to make representations to the court. Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte. The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence. 24. The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial. 25. In R. v. Keane (1994] 1 Weekly Law Reports 747) the Court of Appeal emphasised that, since the ex parte procedure outlined in R. v. Davis, Johnson and Rowe was “contrary to the general principle of open justice in criminal trials”, it should be used only in exceptional cases. It would be an abdication of the prosecution’s duty if, out of an abundance of caution, it were simply “to dump all its unused material in the court’s lap and leave it to the judge to sort through it regardless of its materiality to the issues present or potential”. Thus, the prosecution should put before the court only those documents which it regarded as material but wished to withhold. “Material” evidence was that which could, on a sensible appraisal by the prosecution, be seen (i) to be relevant or possibly relevant to an issue in the case; (ii) to raise or possibly raise a new issue the existence of which was not apparent from the evidence the prosecution proposed to use; or (iii) to hold out a real (as opposed to fanciful) prospect of providing a lead of evidence going to (i) or (ii). Exceptionally, in case of doubt about the materiality of the documents or evidence, the court might be asked to rule on the issue. In order to assist the prosecution in deciding whether evidence in its possession was “material”, and the judge in performing the balancing exercise, it was open to the defence to indicate any defence or issue which they proposed to raise. 26. In R. v. Rasheed (The Times, 20 May 1994), the Court of Appeal held that a failure by the prosecution to disclose the fact that a prosecution witness whose evidence was challenged had applied for or received a reward for giving information was a material irregularity which justified overturning a conviction. 27. In R. v. Winston Brown ([1995] 1 Criminal Appeal Reports 191), the Court of Appeal reviewed the operation of the Guidelines. It stated: “The Attorney-General’s objective was no doubt to improve the existing practice of disclosure by the Crown. That was a laudable objective. But the Attorney-General was not trying to make law and it was certainly beyond his power to do so ... The Guidelines are merely a set of instructions to Crown Prosecution Service lawyers and prosecuting counsel ... Judged simply as a set of instructions to prosecutors, the Guidelines would be unobjectionable if they exactly matched the contours of the common law duty of disclosure ... But if the Guidelines, judged by the standards of today, reduce the common-law duties of the Crown and thus abridge the common-law rights of a defendant, they must be pro tanto unlawful... [T]oday, the Guidelines do not conform to the requirements of the law of disclosure in a number of critically important respects. First, the judgment in Ward established that it is for the court, not prosecuting counsel, to decide on disputed questions as to discloseable materials, and on any asserted legal ground to withhold production of relevant material ... For present purposes the point of supreme importance is that there is no hint in the Guidelines of the primacy of the court in deciding on issues of disclosure ... Secondly, the guidelines are not an exhaustive statement of the Crown’s common law duty of disclosure: R. v. Ward at 25 and 681D. To that extent too the Guidelines are out of date. Thirdly, the Guidelines were drafted before major developments in the field of public interest immunity. [I]n paragraph 6 the Guidelines are cast in the form of a prosecutor’s discretion ... Much of what is listed as ‘sensitive material’ is no doubt covered by public interest immunity. But not everything so listed is covered by public interest immunity...” 28. In the case of R. v. Turner ([1995] 1 Weekly Law Reports 264), the Court of Appeal returned to the balancing exercise, stating, inter alia: “Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants’ names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary... It is sufficient for us to say that in this case we are satisfied that the information concerning the informant showed a participation in the events concerning this crime which, coupled with the way in which the defence was raised from the very first moment by the defendant when he said that he was being set up, gave rise to the need for the defence to be aware of the identity of the informant and his role in this matter. We, therefore, conclude that if one applies the principle which has been quoted from R. v. Keane ... to the facts of the present case, there could only be one answer to the question as to whether the details concerning this informer were so important to the issues of interest to the defence, present and potential, that the balance which the judge had to strike came down firmly in favour of disclosure.” 29. Subsequent to the applicant’s trial, a new statutory scheme covering disclosure by the prosecution has come into force in England and Wales. Under the 1996 Act, 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. 30. Following the judgments of the European Court of Human Rights in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996V) and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports 1998-IV) the United Kingdom has 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 or her 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. 31. For example, in the immigration context, the relevant Rules under the 1997 Act are contained in the Special Immigration Appeals Act Commission (Procedure) Rules 1998 (Statutory Instrument no. 1998/1881). Rule 3 provides that in exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. Rule 7 relates to the special advocate established by section 6 of the 1997 Act. It provides, inter alia: “7. … (4) The function of the special advocate is to represent the interest of the appellant by - (a) making submissions to the Commission in any proceedings from which the appellant or his representative are excluded; (b) cross-examining witnesses at any such proceedings; and (c) making written submissions to the Commission. (5) Except in accordance with paragraphs (6) to (9) the special advocate may not communicate directly or indirectly with the appellant or his representative on any matter connected with proceedings before the Commission. (6) The special advocate may communicate with the appellant and his representative at any time before the Secretary of State makes the material available to him. (7) At any time after the Secretary of State has made the material available under Rule 10(3), the special advocate may seek directions from the Commission authorising him to seek information in connection with the proceedings from the appellant or his representative. (8) The Commission shall notify the Secretary of State of a request for direction under paragraph (7) and the Secretary of State must, within a period specified by the Commission, give the Commission notice of any objection which he has to the request for information being made or to the form in which it is proposed to be made. (9) Where the Secretary of State makes an objection under paragraph (8) Rule 11 shall apply as appropriate.” Rules 10 and 11, to which Rule 7 refers, provide: “10. (1) If the Secretary of State intends to oppose the appeal, he must, no later than 42 days after receiving a copy of the notice of appeal - (a) provide the Commission with a summary of the facts relating to the decision being appealed and the reasons for the decision; (b) inform the Commission of the grounds on which he opposes the appeal; and (c) provide the Commission with a statement of the evidence which he relies upon in support of those grounds. (2) Where the Secretary of State objects to material referred to in paragraph (1) being disclosed to the appellant or his representative, he must also - (a) state the reasons for the objection; and (b) if and to the extent it is possible to do so without disclosing information contrary to the public interest, provide a statement of that material in a form that can be shown to the appellant. (3) Where he makes an objection under paragraph (2), the Secretary of State must make available to the special advocate, as soon as it is practicable to do so, the material which he has provided to the Commission under paragraphs (1) and (2). 11. (1) Proceedings under this Rule shall take place in the absence of the appellant and his representative. (2) The Commission shall decide whether to uphold the Secretary of State’s objection. (3) Before doing so it shall invite the special advocate to make written representations. (4) After considering representations made under paragraph (3) the Commission may - (a) invite the special advocate to make oral representations; or (b) uphold the Secretary of State’s objections without requiring further representations from the special advocate. (5) Where the Commission is minded to overrule the Secretary of State’s objection, or to require him to provide material in different form from that in which he has provided it under Rule 10(2)(b), the Commission must invite the Secretary of State and the special advocate to make oral representations. (6) Where - (a) the Commission overrules the Secretary of State’s objection or requires him to provide material in different form from that in which he has provided it under Rule 10(2)(b), and (b) the Secretary of State wishes to oppose the appeal, he shall not be required to disclose any material which was the subject of the unsuccessful objection if he chooses not to rely upon it in opposing the appeal.” 32. In the context of fair employment proceedings in Northern Ireland, the scheme under sections 90 to 92 of the 1998 Act and the relevant Rules is identical to the mechanism adopted under the 1997 Act (above). 33. In addition, the government has recently placed before Parliament two bills which make provision for the appointment of “special counsel” (operating under the same conditions) in other circumstances. The Electronic Communications Bill 1999 provides for the appointment of a “special representative” in proceedings before an Electronic Communications Tribunal to be established for the purpose of examining complaints relating to the interception and interpretation of electronic communications. In the context of criminal proceedings, the Youth Justice and Criminal Evidence Bill 1999 makes provision for the appointment by the court of a special counsel in any case in which a trial judge prohibits an unrepresented defendant from cross-examining in person the complainant in a sexual offence.