HUMAN RIGHTS – Access to courts – European Court of Human Rights – Order made by Crown Court that evidence heard in camera not to be published – Convicted person applying to European Court of Human Rights alleging that right to fair trial infringed – Judge refusing to vary order to permit disclosure to European court – Whether decision hindering effective exercise of convicted person’s right of application to European court – Whether for domestic or European court to order disclosure if appropriate – Convention for the Protection of Human Rights and Fundamental Freedoms (1953), arts 34, 38
Regina (Yam) v Central Criminal Court
 UKSC 76
SC: Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Mance, Lord Clarke of Stone-cum-Ebony, Lord Sumption, Lord Reed, Lord Toulson JJSC 16 December 2015
A trial judge had a discretionary power to prohibit an applicant, who complained that his trial on criminal charges had been unfair, disclosing to the European Court of Human Rights evidence which had been deployed in camera at his trial.
The Supreme Court so held in dismissing an appeal by the claimant, Wang Yam, who had been convicted in the Central Criminal Court of murder and other offences, against the dismissal by the Divisional Court of the Queen’s Bench Division (Elias LJ and Hickinbottom J)  3 WLR 1050 of his claim for judicial review of the decision of the trial judge, Ouseley J, on 27 February 2014 to refuse to vary an earlier order which he had made prohibiting publication of anything which had been said during the parts of the claimant’s trial which had been ordered to be held in camera, in the interests of national security and to protect the identity of a witness or other person.
Under article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms contracting states undertook not to hinder in any way the effective exercise of an individual’s right of application to the European Court of Human Rights. Under article 38, the European court could require contracting states to “furnish all necessary facilities” for the effective conduct of examining a case.
LORD MANCE JSC, with whom all the other members of the court agreed, said that the claimant was applying to the European Court of Human Rights to challenge the fairness of his trial because it had been held partially in camera. The United Kingdom had in its observations to the court resisted that application. The claimant wished to be permitted in his response to disclose and refer to contents of the evidence given in camera. The limited issue before the court was whether the English courts had any discretionary power in any circumstances to refuse to permit the claimant to do that at the present stage of the proceedings before the European court. If the English courts had any discretion at all in that regard, the question whether circumstances existed justifying its exercise was not before the court.
The European court was an independent international court, not another tier in the domestic appellate structure. Further, any obligations which the United Kingdom might have under articles 34 and 38 of the Convention operated at the international level, not at a domestic level. However, the claimant submitted that the United Kingdom was currently under international obligations under article 34, which under domestic law had to be seen as controlling the domestic power to restrict disclosure of in camera material. On the claimant’s case under article 34 he would be the sole judge of what was necessary at this stage for the effective presentation of his case in the European court. In contrast, the order under appeal left it at the international level to the European court to consider and decide under article 38 whether any and if so what further material should be requested from the United Kingdom to enable it to consider the claimant’s case. The European court case law made clear the inter-play between articles 34 and 38. The European court had a central role in deciding what material should be disclosed to it. A suggestion of breach of article 34 was a matter for the European court to consider under article 38. It by no means followed that the court would always order disclosure, even of secret material which the alleged victim had never seen, and still less of in camera material which the alleged victim had seen and addressed. On the contrary, the European court recognised the sensitivity of national security considerations, and the particular competence of national authorities in handling material affecting national security or the safety of witnesses or others. There was no basis for concluding that the European court would either inevitably or probably conclude that any further disclosure should be made to it. More importantly, it would be for the European court to decide at an appropriate time under article 38 whether any and if so what further disclosure should be made; and it would then be for the United Kingdom to consider its position further. For that reason alone, his Lordship would dismiss the appeal.
Accordingly, the question whether the English courts’ domestic power to restrain disclosure of in camera material was limited by reference to any international obligation incumbent on the United Kingdom under article 34 did not necessarily arise. But his Lordship could consider it shortly. A domestic decision-maker exercising a general discretion (i) was neither bound to have regard to this country’s purely international obligations nor bound to give effect to them, but (ii) could have regard to the United Kingdom’s international obligations, if he or she decided that to be appropriate. The judge had had regard to the United Kingdom’s international legal position under articles 34 and 38, but had made clear that, whatever the United Kingdom’s obligations might prove to be at the international level, he did not consider the suggested relaxation of his order to allow disclosure in the claimant’s response to be appropriate. That was an orthodox approach to the exercise of his general discretion. He had also made clear his willingness to reconsider the position further, in certain circumstances. In those circumstances, even if the claimant had established that the non-disclosure of the in camera evidence involved a breach by the United Kingdom of its international obligations under article 34, it would not follow that the order made by the trial judge involved any breach of domestic law.
Lord Pannick QC, Kirsty Brimelow QC and Nikolaus Grubeck (instructed by Janes Solicitors) for the claimant.
James Eadie QC and Jonathan Hall QC (instructed by Treasury Solicitor) for the Attorney General, as an interested party.
Reported by: Jill Sutherland, Barrister.