BULLIVANT v. THE UNITED KINGDOM
Inadmissible
Elisabeth Palm;Gaukur Jörundsson;Nicolas Bratza
The applicant is a British national, born in 1946 and detained in HM Prison Long Lartin, Evesham, Worcestershire. He is represented before the Court by Mrs Mary O’Neill, a business analyst, of Selly Park, Birmingham. A. The court proceedings On 3 December 1996, the applicant was convicted of robbing a Brinks Mat van of £498,000 and possession of firearms. On 4 December 1996, he was sentenced to 15 years’ imprisonment for the robbery with 3 consecutive years for possession of firearms, a total of 18 years’ imprisonment. He was represented under legal aid by solicitors and Counsel. During the trial, the applicant’s counsel was denied sight of two intelligence reports from the police and MI5 which were presented to the judge by the prosecution. Counsel for the applicant applied for sight of the reports. This was denied by the trial judge who stated that the named informants were contained therein and invoked Public Interest Immunity. During the jury deliberations, following consultation with defence counsel who proposed amendments to the written direction, the judge directed the jury that on the evidence it was possible to find that the applicant was the driver of the getaway car, rather than as originally submitted by the prosecution, driver of the car used in the robbery. Counsel did not apply for the introduction of a lesser charge of accessory after the fact. The jury convicted the applicant, rejecting his defence of duress which was raised at trial. The applicant appealed against conviction with leave from a single judge of the Court of Appeal. He claimed, firstly, that the judge introduced a new basis for convicting him (that he was driving a getaway car rather than the vehicle used in the robbery) at a late stage, namely during jury deliberations, which his counsel did not have a chance to address. Secondly, the judge’s directions as to knowledge and participation in the robbery were muddled and inadequate in that the directions may have left the jury with the impression that it was open to convict the applicant as a principal even if all he did was to assist those who had committed a robbery to avoid apprehension and had no part in the planning and execution of the robbery. In July 1998, the applicant made an out of time application to the Court of Appeal for leave to appeal. In December 1998, the Court of Appeal refused leave to appeal to the House of Lords. The applicant states he did not receive confirmation in writing of this decision until 14 May 1999. Conditions of imprisonment The applicant was held on remand for one year and moved to five prisons and for some months he was held in a segregation unit. He allegedly suffered a mental breakdown and received anti-depressant drugs. As a Category A prisoner, he states that he has no right to home leave, open prison or parole, he is checked every hour by a prison officer through the night shining a light into his cell and disturbing his sleep and prospective visitors are vetted by the Home Office. According to him, Category A prisoners would also be executed in the event of a nuclear strike on the United Kingdom. He complains that he received delayed medical treatment for a suspected heart condition. He was taken to a local hospital for an appointment but because the consultant was not there he was taken back to prison without seeing him due to the potential security risk. The visit was rescheduled and took place 5 months later. No heart problem was found. The applicant was advised by his solicitor that there was no prospect of obtaining legal aid to pursue a case relating to the delay in seeing a cardiologist. The applicant was transported to the Court of Appeal in February 1998 in an unheated van, locked in a metal cell in the rear of the van, wearing thin clothing with no food, water or toilet breaks for 8 hours. In October 1998, his complaint to the Prison Ombudsman was upheld who recommended the setting up of guidelines for the transfer of Category A prisoners. No proceedings were issued by the applicant against the Prison Service. The applicant states that the security classification of Category A prisoners should be reviewed annually. He has only had one review of his Category A status in April 1997 some 18 months since he was first held on remand and four months after his conviction. He has had no review since. The result of the review security category status was sent to the prison governor in a letter dated 30 June 1997 but the applicant says it was not communicated to him in writing until November 1997. It was decided that he should remain a Category A prisoner. On 8 January 1999, the applicant wrote to ask why he had only had one review and when his next review would take place but has not received a response nor pursued the matter further. B. Relevant domestic law and practice Disclosure of evidence to the Defence R. v. Ward [1993] 1 WLR 619. This case dealt with the question of what duties the prosecution has to disclose evidence to the defence. It laid down the proper procedure to be followed when the prosecution claims that certain material is the subject of public interest immunity. The Court of Appeal held that it was the court, and not the prosecution, who would undertake the balancing exercise between the interests of public interest immunity and fairness to the party claiming disclosure. R v. Trevor Douglas K (1993) 97 Cr. App.R. 342. The Court of Appeal stated that that balancing exercise could only be performed by the trial judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind.