CASE OF DOWSETT v. THE UNITED KINGDOM
Violation of Art. 6-1+6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
9. The applicant was born in 1946 and is currently detained in HM Prison Kingston, Portsmouth. 10. On 22 March 1989 at Norwich Crown Court the applicant was convicted of the murder of Christopher Nugent and sentenced to life imprisonment. 11. Mr Nugent had been the applicant’s business partner. He was shot and killed at their business premises on 15 December 1987 by Stephen Gray, who left the scene of the crime in a car driven by Gary Runham. 12. Runham and Gray were arrested in January 1988 and the applicant was arrested in February 1988. He was charged with murder jointly with Runham, Gray and two other men who had allegedly provided money to pay for the killing of Christopher Nugent. 13. The Crown’s case was that the applicant had paid Runham and Gray 20,000 pounds sterling (GBP) to kill Nugent, because Nugent knew too much about the applicant’s involvement in mortgage fraud. 14. The applicant’s defence was that he had hired Runham and Gray to break one of Nugent’s limbs in order to put him out of action for a few weeks while the applicant effected his own transfer to another branch of the firm. He alleged that he had paid Runham and Gray GBP 7,500 for the assault, but that after Gray had killed Nugent, Gray blackmailed the applicant into paying him more money. The applicant claimed that he would have had no motive for killing Nugent, since the latter was himself involved in the fraudulent activities being perpetrated through the business. The applicant submitted, however, that his representatives felt unable to pursue this line of argument satisfactorily because of lack of evidence of Nugent’s dishonesty; the jury were asked to accept the applicant’s word alone on this issue. 15. Runham and Gray pleaded guilty to murder. Gray gave evidence for the prosecution against the applicant concerning the alleged murder conspiracy. The two alleged co-conspirators, who according to the prosecution had, together with the applicant, paid for Nugent to be murdered, were acquitted. 16. Following his conviction, the applicant complained to the Police Complaints Authority (PCA) about Suffolk Constabulary’s refusal to disclose material evidence. After investigation, in a letter of 30 October 1992 to the applicant, the PCA reported that it could not support any allegation of perversion of the course of justice but had found various instances of negligence. 17. According to the applicant, in July 1993 he was informed that there were seventeen boxes of hitherto undisclosed material. The applicant contended that some of this evidence would have supported his defence that he had had no need to murder Nugent to ensure his silence since it showed that the latter was also deeply involved in the fraudulent activities perpetrated through the business. The applicant claimed that some of the material from the seventeen boxes was disclosed to him in the week prior to his appeal hearing, while other material from the boxes remained undisclosed. 18. According to the Government, the evidence which was not disclosed at first instance, but which was disclosed prior to the applicant’s appeal, fell into two categories. The first type of evidence derived from the Holmes computer system used by the police officers conducting the murder inquiry to store and cross-reference all the information obtained in the course of the inquiry. The computer data included documents known as “messages” which recorded information when first received by an officer, and documents known as “actions” which recorded the steps to be taken by an officer in response to a message and the result of any such further inquiry. At the time of the trial, the prosecution took the view that the computer system was being used as a tool for the police investigation and that the data contained in it was not subject to disclosure under the Attorney-General’s Guidelines (see “Relevant domestic law and practice” below), although any witness statements or exhibits obtained in response to a message or action should be, and were, disclosed as “unused material”. 19. The Government submitted that, following the applicant’s conviction, and in the light of developments in the common-law duty of disclosure (see below), the prosecution reviewed their position and decided that the data stored on the computer system did amount to disclosable material. Prior to the applicant’s appeal, therefore, the prosecution disclosed the messages and actions held by the police. Some 4,000 actions had been disclosed, one of which was referred to by the applicant in support of his appeal. 20. In the Government’s submission, the second category of evidence undisclosed at first instance related to the parallel investigation into mortgage fraud by a number of people, including the applicant and Nugent. At an early stage, the prosecution decided to keep the murder and fraud investigations separate and that there was no duty under the Attorney-General’s Guidelines to disclose the material gathered in the fraud inquiry to the defendant charged with murder. Following the applicant’s conviction and the development of the common law, the prosecution reconsidered their decision and, prior to the applicant’s appeal, made full disclosure of the material obtained in the fraud inquiry. 21. Prior to the hearing before the Court of Appeal, the prosecution served on the applicant a schedule indicating what material was still being withheld following the review of the prosecution’s duty of disclosure. In respect of some of the items in the schedule, the reason given for non-disclosure was “legal and professional privilege”; in respect of other items it was “public interest immunity”; and in respect of certain other items, for example document no. 580, no reason was given to explain the decision to include the document in the list of withheld evidence. Counsel for the defence was in contact with the prosecution concerning possible further disclosure. A letter dated 23 March 1994 from the Branch Crown Prosecutor indicated that a number of documents, including document no. 580, were on the list of withheld material. 22. Document no. 580 subsequently came into the applicant’s possession. It is a letter, dated 12 April 1988, from a firm of solicitors acting for Gray addressed to Detective Chief Inspector Baldry of the Suffolk Constabulary, and reads as follows: “... Further to our several discussions concerning Mr Gray, you will of course be aware that I did visit him in Leicester Prison on 26 March. He has requested a transfer either to Brixton Prison or Wormwood Scrubs if this is at all possible and I should be grateful if you would let me know whether there is any possibility of Mr Gray receiving a transfer. Secondly I now understand that apparently Mr Gray understands that you would be willing to support him receiving a straight term of life imprisonment and an application for early parole. Obviously I have explained to Mr Gray the position concerning sentencing but perhaps you would set out your position so far as possible concerning these matters. Thirdly I understand that Mr Gray’s wife is to be produced at fortnightly intervals to Leicester Prison for visits and perhaps again you could clarify the position. I look forward to hearing from you ...” 23. The hearing of the applicant’s appeal took place on 28 and 29 March 1994. Non-disclosure of evidence at trial, particularly evidence discovered in the parallel mortgage fraud investigation, was one of the applicant’s grounds of appeal to the Court of Appeal, but no mention was made of document no. 580 or of the other documents which continued to be withheld by the prosecution. The applicant also relied on the fact that the trial judge had omitted to direct the jury that a person may lie for reasons unconnected with his guilt in relation to the offence with which he is charged (a “Lucas” direction), and that the fact that, during interviews with the police the applicant had denied all knowledge of any plot to harm Nugent, did not mean that he had been involved in his murder. 24. Dismissing his appeal on 29 March 1994, the Court of Appeal remarked that in the course of his summing-up the judge had not suggested that the applicant’s lies could amount to corroboration of the other evidence, and had reminded the jury of defence counsel’s submissions in relation to the applicant’s lies. Although the summing-up should have included a “Lucas” direction, no miscarriage of justice had occurred. On the question of non-disclosure the court observed: “... As the trial was conducted, Nugent’s dishonesty was made perfectly plain to the jury. The appellant himself had admitted being dishonest, and had said in the course of his evidence that Nugent was party to all the dishonest resorts to which he had lent himself in making false representations and forging documents. Accordingly it was fully before the jury that Mr Nugent was dishonest. ... We have been taken through various parts of the evidence ... and we are quite satisfied that ... Mr Nugent’s involvement in the deep dishonesty of this business was fully canvassed before the jury. ... Accordingly, although ... the stricter regime of prosecution disclosure which now prevails might well have required further disclosure than was actually made, we do not consider that this ground is one which has any substance in regard to the outcome of the case. ...” The Court of Appeal concluded: “There was overwhelming evidence that the appellant initiated a plot against the victim Nugent. There was likewise strong evidence that he had indicated what he wanted was to get rid of Nugent. The money actually paid, and indeed even the sum mentioned by the appellant was in our view out of proportion to a plot simply to ‘duff up’ the victim. Moreover, on analysis such a plot made no sense. Each member of this Court is of the clear opinion, despite the blemishes in an otherwise impeccable summing-up, that no miscarriage of justice has actually occurred. ...” 25. The applicant believed that an inducement was promised to Gray by the prosecuting authorities in exchange for his testifying against him. In addition to the above letter, which the applicant claimed supported his hypothesis, he referred to the fact that his tariff of imprisonment (that is, the period to be served before review by the Parole Board) under the life sentence had been set at twenty-five years, but was subsequently reduced to twenty-one years. Runham, who had provided the murder weapon and drove the get-away car, received a tariff of sixteen years. Gray, who had shot and killed Nugent, had his tariff set at eleven years and was released in 1999. In April 1999 the Home Office wrote to Runham, refusing to reduce his tariff: “The Secretary of State holds Stephen Gray to be as culpable as you are, even though he fired the murder weapon and you did not. When the tariff was set for Stephen Gray, the then Secretary of State took into account that he had, like you, pleaded guilty to murder but had in addition been ‘... a very important witness for the prosecution’. ...” 26. The Government denied that any inducement was offered to Gray. Under cover of a letter dated 27 June 2001, they sent to the Court undated statements from three senior officers in the Suffolk Constabulary who had been involved in the murder investigation. (a) The statement of Chief Superintendent Green reads: “I have seen a copy of the letter dated 12 April 1988 from Ennions, Solicitors ... to my then colleague, Mr Baldry. I can confirm that this letter is genuine and was recorded as Document D-580 during the course of the investigation into the murder of Mr Nugent. I have no recollection of this letter after thirteen years and I cannot remember ever discussing it with Mr Baldry. At no time was I ever involved in any debate regarding the issue of Mr Gray receiving a ‘straight term of life imprisonment and an application for early parole’. I can confirm that I did not offer Mr Gray any form of inducement to give evidence against Mr Dowsett or other defendants. To the best of my recollection, Gray’s motives were that he was simply attempting to ‘clear his plate’ I would like to emphasise that I spent six days with Mr Gray at Winchester Prison during the preparation of his statement and can categorically state that all one hundred and one pages of the document were written with Mr Gray’s consent and without any form of inducement.” (b) The statement of Detective Chief Inspector Baldry, now retired, reads: “This murder happened in 1987 and is not now fresh in my memory. However I do remember clearly that I gave no indications to interviewing officers or to Gray himself that in return for his support we would aid an application for a shorter sentence. Gray was a very dangerous murderer who I considered enjoyed carrying out his ‘murder’ contract with Mr Dowsett. This matter was so grave that no such undertaking could honestly have been given. I do remember that Gray at one time was on hunger strike in prison and that we helped his wife to visit him in prison. How this help was given I do not remember - it may have been in the role of carrying messages to and from.” (c) Detective Chief Inspector Abrahams, also now retired, said in his statement: “Concerning the letter Document D-580 I can categorically state that I did not personally offer Gray any inducement or arrangement relating to his sentence. Nor did I have any discussions with his legal representative with regard to his sentence. Equally, I did not instruct any of my subordinate officers including the interview team questioning Gray so to do. As far as I am aware Gray throughout his detention and taped questioning was dealt with in accord with the Police and Criminal Evidence Act. I have been unaware of this letter until now but I am sure Chief Inspector Mike Baldry (now retired) may be of some help to you. I would point out that Gray was arrested at Mildenhall Police Station on 23 January 1988 after which the murder management team was joined by Mr Christopher Yule of the Crown Prosecution Service, Ipswich, who advised on all legal aspects of the case. He was later joined by Mr (now Sir and a High Court Judge) David Penry-Davey QC and Mr David Lamming of Counsel, who advised on what was to be a complex case not only involving murder, conspiracy to murder but also large scale mortgage fraud. I am not aware that any representations were made to the trial judge concerning any reduction in Gray’s tariff. If this had been the case then the application would have had to be made through prosecuting counsel. For your information I include below some relevant dates and points that you may already be aware of in relation to the murder, but I think they are worth emphasising: 15 December 1987: Christopher Nugent found murdered at his business premises that he owned with his partner Dowsett. 23 January 1988: Gray gave himself up at Mildenhall Police Station and admits the offence naming Dowsett, Runham and others as part of a murder conspiracy. 26 January 1988: Gary Runham arrested for the murder. He admits the offence naming Dowsett, Gray and others. Runham did the groundwork in planning Nugent’s murder and propositioned Gray at a later stage to do the actual killing. 1 February 1988: Dowsett and others arrested for the murder. 17 February 1988: I was withdrawn from the everyday management of the inquiry and returned to Force Headquarters. DCI Baldry took over this role. December 1988: Gray and Runham appear at Crown Court, plead guilty to the murder and are sentenced to life imprisonment. January 1989: Gray agrees to become a witness for the prosecution and Detective Inspector Green (now Chief Superintendent) obtains a witness statement. 30 January 1989: Trial of Dowsett and others commences. ... Gray appeared as a prosecution witness. Runham did not. The jury unanimously found Dowsett guilty of murder and he was sentenced to life imprisonment. Prosecution witness O’Dowd gave evidence to the fact that Dowsett admitted the murder to him and stated that Dowsett had said that ‘if Abrahams gets too close then he’ll get the same’ (or words to that effect). 16 December 1990 Dowsett made a formal complaint against me, other officers and Mr Yule [Crown Prosecution Service] that we perverted the course of justice in relation to his trial. The matter was investigated by an outside Police Force and was found by the DPP [Director of Public Prosecutions] and the PCA to be totally unsubstantiated. Dowsett latter appealed against his conviction to the Court of Appeal but the Judges were unanimous in their judgment to disallow his application. The above is to the best of my recollection. I do not know what tariffs were set by the Judge in his sentencing of all three defendants but I assume credit was given for Gray and Runham’s guilty pleas.” 27. 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. 28. 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”). 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.” 29. Subsequent to the applicant’s trial in 1989 but before the appeal proceedings in March 1994, the Guidelines were superseded by the common law. 30. In R. v. Ward ([1993] 1 Weekly Law Reports 619), the Court of Appeal dealt with the duty 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: “... [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.” 31. The Court of Appeal’s judgment in R. v. Davis, Johnson and Rowe ([1993] 97 Criminal Appeal Reports 110) set out the procedures to be followed if the prosecution wished to withhold unused material from disclosure on grounds of public interest immunity including, where appropriate, making an application to the court ex parte. 32. 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, however, 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. The test of “materiality” was that an item should be considered as disclosable if “[it] can be seen on a sensible appraisal by the prosecution: (i) to be relevant or possibly relevant to an issue in the case; (ii) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; or (iii) to hold out a real, as opposed to fanciful, prospect of providing a lead on evidence which goes to (i) or (ii)”. If the prosecution was in any doubt as to the materiality of any such evidence it should ask the court to rule on the question. 33. In 1996 a new statutory scheme covering disclosure by the prosecution came into force in England and Wales. Under the Criminal Procedures and Investigations Act 1996, 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.