alex-bailinIn R (Yam) v Central Criminal Court & Anor [2015] UKSC 76, [2016] AC 771 a seven judge Court considered the important issue of an individual’s right of access to the European Court of Human Rights (ECtHR). The appellant had been convicted of murder following an Old Bailey trial which had been held largely in camera (including the entirety of his defence case). He had failed in his pre-trial, interlocutory application challenging the ruling which had excluded the public from his trial and any press reporting of the sensitive material. He had also failed in his post-conviction appeal based on similar grounds. Following his unsuccessful conviction appeal, he sought to bring an application before the ECtHR that his trial and conviction had violated his ECHR, art 6 rights. The ECtHR application was duly communicated to the UK Government which invited the ECtHR to dismiss the case. In order to respond to those submissions and for the ECtHR to make a proper assessment of his claim he sought permission for the ECtHR to have access to the secret material and the Strasbourg proceedings were adjourned pending an application to the domestic courts for release to the ECtHR of the secret material. The Divisional Court refused that application and the appellant appealed directly to the Court (as it was a ‘criminal cause or matter’). The Court held that, since the ECtHR was not a fourth instance criminal court of appeal, it would, in all likelihood, defer to the national authorities’ assessment of the sensitivity of the secret material and would not inevitably conclude that further disclosure to it should be made. Accordingly, the claimant’s rights of access to the ECtHR under ECHR, art 34 were not hindered. The Court also held that a domestic decision-maker was not bound to take into account an unincorporated international treaty obligation such as art 34 in any event. Continue reading »