Case Comment: R (Yam) v Central Criminal Court & Anor  UKSC 76
24 Monday Oct 2016
In R (Yam) v Central Criminal Court & Anor  UKSC 76,  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. Comment
The judgment is notable for two main reasons.
First, it is not the case that the Strasbourg Court will typically defer to national authorities’ assessments of what proportion of a criminal trial should be held in secret: a recent example is Pichugin (No. 1) v Russia (App no. 38623/03, 23 Oct 2012) in which the ECtHR ruled that the holding a criminal trial in secret when only a small proportion of the material was in fact classified was a violation of art 6. The ECtHR did not simply adopt the Russian domestic courts’ assessment of the secret material. In this respect, the Court was wrong to take dicta from Janowiec v Russia (2013) 58 EHRR 30, GC, which emphasise the margin of appreciation given to domestic courts’ assessment of national security claims, and effectively extrapolate them into a general proposition of non-justiciability by the ECtHR in this field.
Second, it was surprising that the Court downgraded the status of the individual right of access to an international human rights court, which is a fundamental human right, and an international treaty obligation which the UK has ratified since 1966. Prior to the Human Right Act, the Convention had been frequently invoked in proceedings before English courts and the courts were prepared to consider the unincorporated Convention and the case law of the ECtHR as sources of principles or even norms of public policy.
The essence of art 34 is that it is for the international court to decide the admissibility and merits of any application before it; it is not for the domestic courts to pre-adjudicate on that application and certainly not for them to hinder that process in any way. Here, the appellant sought to place before the ECtHR, inter alia, material which he himself had deployed at trial but which was heard in camera. Whilst the ECtHR may well have afforded a large margin of appreciation to the national courts’ assessment of whether that material could be made public the notion that it would necessarily defer to the domestic courts’ assessment (and refuse to order disclosure of the secret material by the Government under art 38) is difficult to reconcile with an individual’s unfettered right of access to the ECtHR. The ‘belt and braces’ aspect to the judgment is telling: the Court reasons in the alternative that even if its conclusion amounts to a violation of art 34, because it represents an impediment to the right of access to the ECtHR, that right is legally unenforceable domestically because art 34 is an unincorporated treaty obligation. In a relatively brief review of the conflicting authorities, Lord Mance, giving the unanimous judgment of the Court, concluded that a domestic decision-maker could either choose to have regard to unincorporated treaty obligations (including human rights ones) or was bound to have regard to them. Either way, that was what the domestic courts had done here. But that analysis is somewhat circular in its operation in this case: the domestic courts had considered art 34 but had merely reasoned that right of access to the ECtHR did not require disclosure to it of the secret material because it would inevitably defer to the domestic courts’ assessment of the national security reasons for keeping the material secret. If that is all that is required of the domestic courts when an applicant seeks to deploy material in Strasbourg, then it is difficult to see how, in circumstances such as the appellant’s, the domestic courts could ever conclude that disclosure had to be made to the ECtHR, since they will simply reason that the ECtHR will be bound to defer to national authorities’ assessment. An ECtHR applicant will, by definition, not have had the benefit of the national courts’ ruling in his favour. The judgment therefore takes an aspect of the right to petition the international court firmly out of the ECtHR’s jurisdiction and exclusively within the domestic court’s purview. Although art 34 is unincorporated, Parliament has not legislated expressly for the domestic courts to act incompatibly with art 34. Nor has it legislated for the domestic courts to act so as to impede the right of access to any court, which is itself a long-standing common law right (Ahmed v HM Treasury  UKSC 2,  2 AC 534). Indeed, the whole structure of the Human Rights Act presumes that, whilst the domestic courts will make the primary assessment of the Convention compatibility, an individual will always have the option of appealing further to the ECtHR and then the domestic courts will further take into account the international court’s decision. But they can hardly do that if the individual is unable even to bring his case before the ECtHR. In the same way that the domestic jurisprudence surrounding art 13 (right to effective remedy; which is also unincorporated) has adapted and evolved to the complement operation and structure of the Human Rights Act, and the healthy dialogue between UK and Strasbourg courts, so too should the jurisprudence surrounding art 34.
Historically, the English courts have jealously upheld rights of access to courts and often been at their most progressive in this arena. The judgment therefore represents both a missed opportunity and a conservative approach to unincorporated international human rights obligations. Since the Government proposes repeal of the Human Rights Act 1998 without withdrawing from the Convention, the judgment is likely to become even more relevant in the future.
The criminal trial itself is the subject of a forthcoming book.