R (on the application of Wang Yam) v Central Criminal Court & Anor [2015] UKSC 76

Wang Yam, convicted of murder following a partially in camera trial, applied to the European Court of Human Rights and sought to disclose in camera material in his response. The Supreme Court held English courts retained a discretionary power to refuse such disclosure.

Facts

The appellant, Wang Yam, was convicted in 2009 of the murder of Allen Chappelow, an elderly reclusive writer found dead in his Hampstead home, together with associated offences of fraudulent misuse of the deceased’s identity and bank accounts. The appellant’s defence was that the deceased’s cheques, credit cards and banking information had been supplied to him by named gangsters, against whom he was allegedly assembling evidence.

On the Crown’s application, Ouseley J ordered that part of the trial relating to this defence be held in camera in the interests of national security and to protect the identity of a witness or other person. The Court of Appeal upheld that order. At the retrial, the entirety of the defence case was heard in camera because the appellant could not separate sensitive from non-sensitive aspects of his evidence. After conviction, Ouseley J made a further order prohibiting publication of evidence heard in camera. The Court of Appeal (Criminal Division) dismissed an appeal against conviction in 2010, finding no real possibility that further exculpatory evidence would have emerged had the trial been wholly public.

The appellant applied to the European Court of Human Rights (ECtHR) alleging that the in camera procedure rendered his trial unfair contrary to article 6.1. The United Kingdom submitted that the application was manifestly ill-founded. The appellant then sought permission from the English courts to refer to the contents of the in camera material in his response to those observations. The Foreign Secretary certified that disclosure would risk serious harm to an important public interest. Ouseley J refused permission and expanded his original order to make this express. The Divisional Court dismissed judicial review proceedings.

Issues

The Divisional Court certified the following point of law as one of general public importance:

Is there a power under the common law or under section 12 of the Administration of Justice Act 1960 to prevent an individual from placing material before the European Court of Human Rights? If so, can the power be exercised where the domestic court is satisfied that it is not in the interests of state for the material to be made public even to the Strasbourg court?

The narrow issue before the Supreme Court was whether the English courts have any discretionary power at all to refuse to permit an applicant to disclose in camera material to the ECtHR. The reasonableness or proportionality of the exercise of any such power on the particular facts was not before the court.

Arguments

Appellant

Lord Pannick QC accepted that in a purely domestic context the common law power extends to enable protection of national interests and witnesses. However, he submitted that no such power could exist or continue to be exercisable in any circumstances where its use would put the United Kingdom in breach of an international obligation under article 34 of the Convention, which requires the High Contracting Parties not to hinder in any way the effective exercise of the right of individual application. Only express Parliamentary authorisation could justify a contrary exercise. The appellant relied on the Supreme Court’s decision in Bank Mellat v HM Treasury (No 2) [2013] UKSC 38 by analogy.

Respondent

The Attorney General submitted that articles 34 and 38 operate only at the international level, are not incorporated by the Human Rights Act 1998, and do not constrain the domestic discretionary power. The ECtHR itself, under article 38, decides what material it requires, and recognises the sensitivity of national security considerations.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Mance, giving the leading judgment with which all other Justices agreed, held that the appellant had to make good the proposition that there were no circumstances in which refusal to permit disclosure could be justified, and had failed to do so on two independent grounds.

The international position under article 34

Lord Mance examined the limited Strasbourg case law, including Sisojeva v Latvia, Janowiec v Russia and Al Nashiri v Poland. Articles 34 and 38 work together: the ECtHR is master of its own procedure and decides what material is necessary for its examination. The Court recognises that national security judgments by national authorities are not ones it is well equipped to challenge, and may accommodate confidentiality concerns through procedural measures including restricting access under rule 33, classifying documents as confidential, or holding closed hearings.

Importantly, the present case did not involve closed material the applicant had never seen, but in camera material which the appellant and his representatives had seen and addressed at trial and on appeal. English courts had repeatedly examined the necessity and fairness of the in camera procedure. It did not follow that the ECtHR would inevitably or probably conclude that further disclosure to it was required. It would be for the ECtHR to decide under article 38 at the appropriate time what, if any, further disclosure should be made, rather than for the appellant to prejudge that question by insisting on disclosure as of right under article 34.

The domestic position

Even if a breach of article 34 had been made out at international level, this would not constrain the domestic common law discretion. The United Kingdom takes a dualist approach to international law. Applying R v Secretary of State for the Home Department, Ex p Brind, R v Lyons, and R (Hurst) v London Northern District Coroner, a domestic decision-maker exercising a general discretion is neither bound to have regard to nor to give effect to purely international obligations, though may have regard to them if appropriate. Neither the principle of legality nor any other basis required Parliamentary authorisation before a court could exercise its discretion in a way potentially inconsistent with unincorporated international obligations. Ouseley J had taken into account the United Kingdom’s international position and had adopted an orthodox approach, while indicating willingness to reconsider in future circumstances.

Implications

The decision confirms that English courts possess a discretionary common law power to restrain disclosure of in camera material even where an applicant seeks to deploy that material in proceedings before the European Court of Human Rights. The power is not extinguished or rendered inoperable by the existence of article 34 of the Convention, which has not been incorporated into domestic law by the Human Rights Act 1998.

The judgment reinforces the dualist nature of the relationship between English law and unincorporated international obligations: a domestic court exercising a general common law discretion is not bound to give effect to such obligations, though it may consider them. The ruling also clarifies the inter-play between articles 34 and 38: the ECtHR itself controls what material it requires, and may accept the outcome of fair and thorough domestic adjudication on national security questions without insisting on automatic disclosure.

The decision is significant for practitioners dealing with national security material, sensitive criminal trials and proceedings before the Strasbourg court. It illustrates that the existence of the common law power does not predetermine its exercise: the reasonableness and proportionality of any particular refusal to permit disclosure may still be challenged on conventional public law grounds, and Ouseley J expressly indicated willingness to reconsider his order if circumstances change, particularly if the ECtHR formally requested the material. The judgment does not address, because it was not argued, the alternative statutory routes under section 12 of the Administration of Justice Act 1960 or section 11 of the Contempt of Court Act 1981.

Verdict: Appeal dismissed. The Supreme Court held that the English courts retain a discretionary common law power to restrain disclosure of in camera material to the European Court of Human Rights, and that the appellant had failed to establish either that non-disclosure at this stage involved any breach of article 34 of the Convention or that any such international obligation would in any event constrain the domestic discretion.

Source: R (on the application of Wang Yam) v Central Criminal Court & Anor [2015] UKSC 76