CHADWICK v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza;Viera Strážnická
The applicant, Eric Albert Chadwick, is a United Kingdom national, who was born in 1942 and lives in Surrey, England. He is represented before the Court by Salhan and Co., a firm of solicitors practising in Birmingham, England. The respondent Government are represented by their Agent, Mr D. Walton, Foreign and Commonwealth Office, London. The facts, as submitted by the parties, may be summarised as follows. On 9 December 1994 the applicant was arrested on suspicion of being involved in a conspiracy to manufacture a controlled drug (amphetamine sulphate). He co-operated with the police during interview, answering the questions put to him. The applicant told the police during interview that he had been working with a co-conspirator, Liam Walsh, on the production of a drug and had been aware that Walsh was a police informant. The applicant admitted that, at Walsh’s instigation, he had procured some of the ingredients (BMK) for the production of the drug. However, his intention all along had been to persuade others to become involved in the project and that he had acted with Walsh’s knowledge and, as he believed, with the knowledge and approval of the police operating in the framework of a broader police entrapment operation aimed at netting, amongst others, Ian Pollock. The applicant, along with Walsh and Pollock and another co-defendant, David Wilson, was tried before a jury at Birmingham Crown Court from 26 February 1996 to 28 March 1996. The charge against the applicant related to the production of a controlled drug contrary to section 1(1) of the Criminal Law Act 1977. The applicant’s and his co-accused’s lawyers were notified before the start of the trial that the prosecution would be making an ex parte Public Interest Immunity (“PII”) application. No indication was given of the categories of materials to be incorporated in the application. However, the applicant acknowledges that his lawyers were informed in the case summary received from the prosecution that “one matter” which would be raised with the judge would be the position in respect of Walsh’s full “profile”. The defence lawyers were subsequently informed that the PII hearing had been fixed for 16 February 1996 before His Honour Judge Taylor. At that hearing, the judge ruled in favour of the prosecution. However, he stated that a schedule of information given by Walsh had to be served on Walsh’s lawyers and that consideration ought to be given to disclosure to the applicant and the other co-accused. The prosecution sent a schedule of Walsh’s activities as an informant to Walsh’s lawyers with a request that they comment on why the schedule should not be disclosed to the lawyers of the other co-accused. Walsh’s lawyers objected to disclosure to his co-accused. According to the applicant, his lawyers were aware that the trial judge granted PII in respect of at least “one matter” between 26 February and 4 March 1996, but cannot confirm whether a PII order was sought or made in respect of other materials. The schedule was produced at the trial by Walsh’s lawyers, without objection from any party. According to the Government, the bulk of the source documentation from which the schedule was prepared was disclosed during the trial, some of it in edited form with the approval of the trial judge. There was a further ex parte hearing during the course of the trial, following an application for disclosure by Walsh’s counsel. The prosecution declined to state the category of material raised during the hearing. The judge approved the prosecution’s PII claim for the material in question. The essence of the prosecution’s case was that the applicant had been intimately involved in the preparation of false documents for the purchase on behalf of the L&W Distribution Company (“L&W”) of a range of chemicals used in the manufacture of amphetamine sulphate including BMK. The documents had been prepared with the knowledge of Walsh, who was a police informant and, at the relevant time, in Sudbury prison along with the applicant and Pollock. L&W was not a legitimate trading company, and had no legitimate need of BMK. An order was placed with Hammond Chemicals through a third party, J., acting on behalf of a company called Trans Global International. Hammond Chemicals was suspicious of the order and informed the police, which authorised a controlled release of the BMK. The applicant, who was on home leave from Sudbury prison, received delivery of a quantity of BMK at Walsh’s home, Walsh being in Sudbury prison at the time. Around this time, the applicant had also bought a quantity of glucose and other chemicals. The applicant split up the chemicals he had obtained, keeping some and storing others with his sister. He had never himself spoken to the police about his involvement in what he claimed was an entrapment operation with the intention of claiming a reward. The prosecution stressed that Walsh had been repeatedly told by the police not to get involved in the manufacture of drugs. Two police officers were called to confirm that Walsh was acting on his own initiative and without any encouragement from the police. According to the applicant, he had intended to give evidence at the trial in line with what he had told the police during the interview. A proof of evidence had been prepared in this connection for use at the trial. Evidence of what was said at the police interview was adduced in open court by the prosecution. On 11 March 1996, two men visited the applicant at his home and threatened him and his family with severe physical violence and told him that if he said anything in court about Pollock, “he had better make sure he had good fire insurance”. The applicant contacted his solicitor who recalled that the applicant “sounded very frightened and upset”. The solicitor relayed the information the following morning to the applicant’s barrister. After the close of the prosecution case and before the applicant was due to give evidence, the trial judge, pursuant to section 35 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), informed the applicant of the consequences of his not giving evidence. The applicant was warned: “You have heard the evidence against you. Now is the time for you to make your defence. You may gave evidence on oath and be cross-examined like any other witness. If you do not give evidence or, having been sworn, without good cause refuse to answer questions, the jury may draw such inferences as appear proper. That means that they may hold it against you. You may also call any witness or witnesses whom you have arranged to attend court. Afterwards you may also, if you wish, address the jury by arguing your case from the dock. But you cannot at that stage give evidence. Do you now intend to give evidence?” The applicant chose not to give evidence on account of his fear of the consequences for himself and his family. He did not opt to go into the witness box and decline to answer questions about Pollock since, according to the applicant, he did not know at that stage of the proceedings whether the trial judge would accept his plea that he was in fear of Pollock. Walsh did not testify at the trial. Pollock and Wilson gave evidence. Pollock was cross-examined by the applicant’s counsel on the basis that Pollock was intimately and actively involved in the manufacture of drugs, had presented himself to the applicant as a “soldier” for major drug dealers including a certain “Frank”, had sent another “soldier” to give the applicant money to finance the operation and had received from the applicant 2.5 litres of BMK at a specific location. According to the applicant, most of the cross-examination of Pollock was conducted by the prosecution. At a stage when the cases for all the defendants had been concluded and before the summing up, the applicant’s counsel applied to the trial judge for a voire dire with a view to laying an evidential basis to persuade the judge not to direct the jury to draw an adverse inference from the applicant’s silence in court. The application was made on the basis of the threats which the applicant had received, threats which, the applicant’s counsel argued, could be confirmed by hearing the applicant’s solicitor on the voire dire. The application was opposed on the ground that the correct course of action would be for the applicant to go into the witness box and, whenever a question was asked which he did not wish to answer through fear, to decline to answer it and give the reason. It was also opposed on the basis that it would be unfair for the applicant’s counsel to be permitted to cross-examine Pollock in a manner designed to incriminate him and for the applicant then to be able to avoid inferences on the basis of a fear of the consequences of giving evidence to the same effect. According to the applicant, prosecution counsel in effect summarised for the judge the nature of the applicant’s fears and his defence barrister was only able to correct the version given by prosecution in the briefest of terms. The judge refused the application, although he was prepared to accept that the applicant was afraid. After the ruling had been given, counsel for the prosecution stated in the presence of all concerned: “I take it from [the] ruling that you have agreed ... that it would not be right to call [the applicant] on a voire dire, and if [counsel for the applicant] wishes to establish a reason he can only do so by calling his client to give evidence in front of the jury, he then being cross-examined in the way I had indicated.” The judge replied that that was implicit in what he had said. Counsel for the prosecution stated that that was his understanding, but it was as well for the matter to be plain. The applicant’s counsel did not make an application to allow the applicant to give evidence and to decline to answer questions in respect of Pollock. The judge put the applicant’s case to the jury as it appeared from the transcripts of the police interviews. According to the applicant, since neither he nor Walsh testified at the trial there was no evidence before the jury that the applicant had acted at Walsh’s instigation or that the applicant believed that Walsh was a police informant or that the police had approved of the applicant’s actions in the light of the wider entrapment plan. The trial judge directed the jury in accordance with the relevant practice guidelines at the time on the circumstances in which it may draw an adverse inference from the applicant’s silence in court. The trial judge stated: “Now, what then are you permitted to consider about ... the failure to give evidence? Now, when a defendant does not give evidence, that is his right. The right to silence, as it is sometimes called, has not been removed. A defendant is entitled, as indeed have [the applicant and Walsh] made it perfectly clear they are entitled not to give evidence. But the law provides now that you may draw such inferences as appear proper from their failure to do so. But before you draw such inferences you have first to be satisfied that there is a prima facie case against them. So the first thing that you must do is to consider whether there is what we call a prima facie case without taking into account the failure to give evidence. You must be satisfied that the prosecution have established that there is a case to answer before drawing any inference from silence. Now, if you do draw such an inference and you are satisfied that there is a case to answer, then you may ... , but you don’t have to, you make take into account the failure to give evidence. Now what proper inferences can you draw from the [applicant’s] decision not to give evidence? If you conclude that there is a case for him to answer then you may think that [the applicant] would have gone into the witness box to give you an explanation, or give an answer to the case against him. If the only sensible explanation for his decision not to give evidence is that he has no case to answer - or he has no answer, I should say, to the case against him, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence. ... It is open to you, it is open to you to hold against [the applicant] his failure to give evidence but only, only if the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or that none could have stood up to cross-examination. Now, in [the applicant’s] case, [his counsel] has made a suggestion to you as to why he hasn’t gone into the witness box and his answer is because he, [the applicant], has said it all in his interviews; nothing more to say. Well, you must consider whether that is a good enough explanation because I have already told you that which is said by a defence, a defendant, in interview, in a statement which is not made on oath, not repeated on oath, therefore not subject to cross-examination .... . You may wonder, therefore, whether that is a good explanation. It is a matter for you. (...). (...) Inference from failure to give evidence cannot of its own prove guilt. Again, I am sorry to repeat this but it is very important to this case because it is the nub of it or the crux of it, namely that it is what the defendants had in their minds which matters, and it is therefore for the prosecution to disprove the explanation which they have given. (...).” 6. The applicant’s conviction and appeal On 28 March 1996 the applicant was found guilty as charged and sentenced to nine years’ imprisonment. Walsh and Pollock were also convicted, each receiving sentences of nine and seven years respectively. The jury were unable to agree a verdict in relation to Wilson. Wilson was later convicted following a new trial. The applicant appealed against his conviction and sentence to the Court of Appeal with the leave of the Single Judge. He contended before the Court of Appeal that the trial judge should have heard evidence on the voire dire since he had been informed by counsel that the applicant was afraid to give evidence. 7. The applications for disclosure and PII during the appeal proceedings During the course of the proceedings on appeal, the applicant and Walsh applied for disclosure of certain specific and identified documents, in particular the schedule of Walsh’s activities as a police informant. The Government point out that the applicant’s application as framed did not appear to have been an application for all material in possession of the police or the prosecution in relation to Walsh’s history as an informant. The Court of Appeal ruled on 20 November 1997 that the applicant and Walsh were entitled to full disclosure in relation to Walsh’s history as an informant, “save that the Maltese Falcon Intelligence Log dated 27 September 1993 be disclosed in edited form.” The latter document was included in the original PII application to the trial judge and was covered by PII immunity in its entirety. However, the prosecution indicated that it was prepared to disclose the content of this document in an edited format. The Court of Appeal approved this proposal. The prosecution also disclosed a further eight extracts from pocketbook entries of police officers. This information had already been served on the defence in the form of intelligence/information reports at the original trial, with the approval of the judge. The applicant cannot confirm whether any or all of the materials at issue were the subject of the trial judge’s order. The applicant does confirm that the documents listed in the Court of Appeal’s order were disclosed to his lawyers, but did not extend to the further material which the applicant sought. It is the applicant’s understanding that a further disclosure order was made by the Court of Appeal in relation to documents sought by Walsh, and specified as extending to the applicant, but that no documents were disclosed to the applicant. The issues relating to Walsh’s activities as an informant were again raised by the applicant in applications dated 28 April 1998 and 18 May 1998 to amend and supplement the applicant’s original grounds of appeal. The original schedule of informing was appended to the application of 28 April 1998. The application dated 18 May 1998 stated that full disclosure had not yet been given in accordance with the Court of Appeal’s order of 20 November 1997. The application further noted that the prosecution had claimed PII at the trial and that “it is believed that [the Court of Appeal] will be asked by the Prosecution to consider that much of this evidence requested by [the applicant] in this case should not be disclosed.” The applicant invited the Court of Appeal to reconsider the material that the trial judge had decided should not be the subject of disclosure, and to ask itself whether the judge had exercised his discretion properly in relation to disclosure of material which might have assisted the defence, in particular in relation to a schedule of informing concerning Walsh used at the trial. The application of 18 May 1998 also invited the Court of Appeal to have regard to whether or not the requirements of Article 6 of the Convention had been complied with in his case as regards the issues of the judge’s failure to hear evidence on the voire dire and non-disclosure of evidence. On 18 May 1998 the prosecution gave written notice to the accused’s lawyers that the Crown intended to make an ex parte application on notice to the Court of Appeal. The letter stated that the Crown were not able to disclose the category or categories into which the documentation would fall. The Government point out that the application for PII in the Court of Appeal was identical to that made to the trial judge save that the Maltese Falcon Intelligence Log was disclosed during the appeal proceedings, albeit in edited form. On 21 May 1998 the Court of Appeal, following an ex parte hearing, granted the Crown’s application in full, including the editing of the Maltese Falcon Intelligence Log and the editing of various passages from the supporting source documentation. The order of the Court of Appeal dated 21 May 1998 contained the following statement: “PII properly claimed in relation to disclosure”. The applicant states that his lawyers only became aware that the prosecution had made an ex parte application when they arrived outside the courtroom at 10 a.m. on 21 May for a 10.30 hearing and were informed that they could not go into the court because a PII hearing was being conducted in respect of their case. The applicant does not know which documents were covered by the Court of Appeal’s ruling of 21 May 1998. 8. The outcome of the appeal The Court of Appeal refused the applicant leave to amend his grounds of appeal in order to raise arguments based on Article 6 of the Convention. On 22 May 1998 the Court of Appeal, following a hearing, dismissed the applicant’s appeal against conviction and sentence. In delivering the judgment of the Court of Appeal, Lord Justice Rose expressed the view that no evidence called on behalf of the applicant on the voire dire could have been of any possible assistance to the defence and might, had the applicant’s account of intimidation been subjected to cross-examination, been of positive disadvantage to the defence. He considered that the trial judge was under no obligation to hear evidence on the voire dire regarding the applicant’s fear of reprisal. Lord Justice Rose then stated: “At the close of the prosecution case, it is common ground that the judge had, in accordance with section 35(2), satisfied himself, in the presence of the jury, that the accused knew that he could give evidence, and, if he chose not to give evidence, or, having been sworn, refused to answer particular questions, without good cause, it would be permissible for inferences adverse to his case to be drawn. The warning of risk was heard by [the applicant], as well as by the members of the jury. That warning having been given, [the applicant] (advised by leading counsel) indicated that he would not be giving evidence. In our judgment, the fact that at a subsequent stage the judge gave a ruling entirely in accordance with what was to be anticipated, by virtue of the risk to which he had expressly drawn [the applicant’s] attention, does not change the position adversely to the interests of the defendant. The reality is that [the applicant] knew, from the time of the judge’s warning at the close of the prosecution case, of the risk that a direction would be given permitting adverse inferences to be drawn, and in the light of that knowledge and of the advice which he was given, he decided to take his chance and not give evidence. In our judgment, the subsequent ruling cannot be regarded as having in any way impinged on the safety of his conviction.” As to the applicant’s further contention that he was not advised that he could give evidence and not answer particular questions, Lord Justice Rose referred to what the trial judge had said in relation to section 35(2) of the 1994 Act. On 25 May 1999 the Court of Appeal refused the applicant leave to appeal to the House of Lords. The interpretation given by the domestic courts to section 35 of the Criminal Justice and Public Order Act 1994 as well as the specimen direction applicable at the relevant time are described in the Court’s Condron v. the United Kingdom judgment (no. 35718/97, ECHR 2000-V) and Beckles v. the United Kingdom judgment (no. 44652/98, 10 November 2002) . Domestic law and practice at the material time on the prosecution’s duty of disclosure of material to the defence and the circumstances in which such material can be withheld for reasons of public interest immunity are described in the Court’s Rowe and Davis v. the United Kingdom judgment ([GC], no. 28901/95, ECHR 2000-II).