Non-Disclosure of Prosecution Evidence and Equality of Arms: Edwards and Lewis v United Kingdom

DOI10.1350/ijep.8.2.130.36514
Published date01 March 2004
Date01 March 2004
130 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
CASE NOTE
Non-disclosure of prosecution evidence
and equality of arms:
Edwards and
Lewis
v
United Kingdom
By Susan Nash
Professor of Law, University of Westminster
enying defendants access to relevant prosecution evidence on public
interest grounds is not necessarily contrary to fair trial requirements.
However, appropriate procedures should be in place to protect the
interests of the accused. In the absence of such measures, it would breach Article
6 of the European Convention on Human Rights to permit the trial judge to decide
issues relating to non-disclosure of evidence, which may impact upon a subsequent
determinative ruling on an issue of fact. The applicants in Edwards and Lewis v
United Kingdom1 complained that the procedures adopted by the national court to
determine matters of non-disclosure, which may have been relevant to defence
applications to stay proceedings, failed to incorporate sufficient safeguards to satisfy
Article 6. This decision addresses the impact of non-disclosure on the equality of
arms principle and raises questions concerning the role of the trial judge.
The facts
Edwards was convicted of possession with intent to supply a Class A drug and
sentenced to nine years’ imprisonment. He was arrested in a vehicle in the
company of a police informer. In the vehicle was a briefcase containing a large
quantity of heroin. His defence involved an allegation that his participation had
been organised by police informers or undercover agents. However, he was unable
to establish their identities. Prior to trial, the prosecution made a successful ex
parte application to withhold material relating to police undercover activities on
D
1 Application Nos 00039647/98 and 00040461/98.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2004) 8 E&P 130–134

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