The Court of Appeal, Criminal Division, noted the distinction between "fairness" and "safety" in reviewing convictions resulting from a trial which the European Court of Human Rights had found to have been unfair. It was clear that material irregularities had occurred and that the convictions could not be regarded as "safe". That, the court said, was not a declaration of innocence.

The court allowed the appeals against conviction of Michael George Davis, Raphael George Rowe and Randolph Egbert Johnson. They had been tried and convicted in 1990 at the Central Criminal Court (Mr Justice Auld and a jury) of murder, causing grievous bodily harm and several robberies on the night of December 15-16, 1988. They were sentenced to life imprisonment and other substantial concurrent sentences.

In 1993 they had appealed. There was in 1990 a duty to disclose material information subject to certain exceptions contained in Attorney-General's Guidelines: Disclosure of Information to the Defence in Cases to be tried on Indictment (Archbold, Criminal Evidence, Pleading & Practice (1993) vol 1, pp 1/544-545, paragraph 4-267; ((1981) 74 Cr App R 302, 303)).

At some stage during the trial it became clear to prosecuting counsel that a Mr Duncan was the informant, where all parties must earlier have realized that there had been an informant who had been instrumental in bringing about the arrests.

In those circumstances, counsel had sought the court's guidance as to whether the fact of Duncan's status ought to be disclosed prior to that first appeal: see R v Davis, R v Rowe, R v Johnson (The Times January 19, 1993; [1993] 1 WLR 613). The court had upheld the Crown's submission that it was unnecessary for the fact to be disclosed. The appeals were dismissed.

In 1994, Davis and Rowe had made an application to the European Court of Human Rights. In 1997 the Criminal Cases Review Commission instigated an investigation, initially on behalf of Davis and Rowe but later to include Johnson.

In its report, the commission revealed that Duncan was a registered informant who had contacted his handler and had been housed voluntarily at Reigate Police Station for two days in December 1988.

Further, as a result of what took place between him and police officers during that period, message 111 had been originated which suggested that the three robbers were not Davis, Rowe and Johnson but Davis, Rowe and a Mr Cooper. There had also been conversations between Duncan and the police about the possibility of a reward being paid to him at the conclusion of the case.

In April 1999, the commission referred the case to the Court of Appeal.

Furthermore, the European Court of Human Rights had given its judgment in Rowe and Davis v United Kingdom (The Times March 1, 2000) finding that there had been a breach of article 6.1 of the European Convention on Human Rights during the trial, which had not been cured by the appeal process.

The decision focused entirely upon the failure to disclose Duncan's status as an informant prior to trial together with the fact that he had become eligible for a reward and might have nominated Cooper as one of the robbers before nominating Johnson.

Further material had been disclosed to the appellants following various applications to the Court of Appeal and the second substantive appeal took place in June 2000.

Mr Michael Mansfield, QC and Mr Alan Masters for Davis; Mr Patrick O'Connor, QC and Mr Peter Clark for Rowe; Mr Courtenay Griffiths, QC and Mr Henry Blaxland for Johnson, all assigned by the Registrar of Criminal Appeals; Mr David Waters, QC and Mr David Perry for the Crown.

LORD JUSTICE MANTELL, giving the judgment of the court, said that in what might be the first case of its kind but would certainly not be the last, the court was required to review the safety of convictions resulting from a trial which the European Court of Human Rights had found to have been unfair.

First, it was appropriate to outline the approach to be adopted.

The court was proceeding as though the Human Rights Act 1998 were already in force: see R v DPP, Ex parte Kebilene and Others ([1999] 3 WLR 972, 982 A-C).

Further, the Court of Appeal was a creature of statute and had to carry out its duties accordingly, see section 2 of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995.

Section 3(1) of the Human Rights Act 1998 required the court so far as possible to give effect to primary and subordinate legislation in a way which was compatible with Convention rights; and article 6 of the Convention conferred on everyone the right to a fair trial. The court found no difficulty in giving effect to the "right to a fair trial" when discharging its duty to consider the safety of convictions.

There was authority suggesting that the safety of a conviction was to be considered irrespective of the trial process by which it was procured, but the court preferred the approach outlined in R v Mullen ([1999] 2 Cr App R 143) and R v Smith (Patrick Joseph) and Others (The Times May 31, 1999).

That view was fortified by R v B (Attorney General's Reference No 3 of 1999); R v Weir (The Times June 16, 2000), where a material irregularity resulted in the quashing of a conviction when evidence as to guilt was overwhelming.

Prior to amendment in 1995 the 1968 Act required the court to allow an appeal where it considered the verdict was unsafe or unsatisfactory, or there had been a wrong decision in law, or there had been a material irregularity in the course of the trial, save that the court might dismiss an appeal if it considered that no miscarriage of justice had occurred.

The approach was set out by Viscount Simon in Stirland v DPP ([1944] AC 315): "When the transcript is examined it is evident that no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken..."

It was generally accepted that the 1995 amendment was not intended to disturb the previous practice of the court.

In brief, therefore, the court was concerned with the safety of a conviction. A conviction could never be safe if there was doubt about guilt.

However, the converse was not true. A conviction might be unsafe even where there was no doubt about guilt but the trial process had been "vitiated by serious unfairness or significant legal misdirection", as in Smith and in Weir.

Usually, it would be sufficient for the court to apply the test in Stirland which might be adapted to read: "Assuming the wrong decision on the law or the misdirection had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?"

That being so, there was no tension between section 2(1)(a) of the 1968 Act, as amended, and section 3(1) of the 1998 Act.

Turning to the conclusions as to fairness within the judgment of the Human Rights court, the obligation under section 2 of the 1998 Act was to "take into account" that judgment, which would appear to be something less than "to adopt" or "to apply" it.

However, it was not necessary here to determine the extent to which that judgment was binding upon the Court of Appeal, because the court had itself come to the same conclusion, that the failure to make known the fact that Duncan was an informer and the fact that he had received a reward, and the contents of message 111, amounted to a material irregularity, rightly condemned as a violation of article 6.

That was not, however, to say that there must therefore arise a presumption that the convictions were unsafe.

The Human Rights court was principally concerned with interpreting an international treaty and did not express an opinion on whether a conviction was safe in domestic law.

The duty of that court was to determine whether or not there had been a violation of the European Convention or, in this case, more particularly of article 6(1); and it was not within the remit of that court to comment on the nature and quality of any breach or upon the impact such a breach might have had upon the safety of a conviction.

It was noted that a distinction was recognised between "fairness" and "safety" in Condron v United Kingdom (The Times May 9, 2000) notwithstanding the apparent questioning there of the competence of the Court of Appeal to assess safety against the background of an unreasoned verdict.

The two questions must be kept separate and apart. The Human Rights court was charged with inquiring into whether there had been a breach of a Convention right, and the Court of Appeal was concerned with the safety of the conviction.

It was obvious that the first question might intrude upon the second but the extent to which it did so would depend upon the circumstances of the particular case.

Thus a finding of a breach of article 6.1 would not lead inexorably to the quashing of a conviction. The effect of any unfairness upon the safety of a conviction would vary according to its nature and degree.

Turning to the appeals, the court rejected a number of grounds advanced by the appellants but relied on two matters:

1 The informant issue

Neither prosecuting nor defending counsel had been aware until after trial that Duncan had gone to see his handler and had remained voluntarily at a police station.

The prosecution had not been aware until after the trial that during the period when Duncan was housed at the station there had been a number of conversations between Duncan and police officers in which a reward had been discussed and Duncan had apparently named Cooper and not Johnson as the third robber.

The naming of Cooper had come to light via message 111 upon investigation by the Criminal Cases Review Commission.

Prosecuting counsel conceded that if he had known of message 111, even in 1990, he would have deemed it his duty to make it known at least to counsel for Johnson, and thereby Duncan's status would have become known to all, as would the fact that he was eligible for, and did in fact receive a reward, and the fact that he had been a voluntary inmate at the police station for two days.

That was clearly a material irregularity.

Moreover, Duncan had clearly concealed from the jury his status as an informant and was forced to lie about what took place in a 38-minute interview with the police. That could only have occurred in collusion with the police and amounted to a conspiracy to give perjured evidence.

That was something which counsel for the Crown would not have countenanced in any circumstances and it was a profoundly disturbing fact which must dent the credibility both of Duncan and the police officers directly involved.

It should make a significant contribution to the decision in these appeals.

2 The juror issue

During the investigations of the review commission it had become clear that a juror might of his own accord have visited one or more of the scenes of crime.

That matter had been pursued and it was now clear that a juror, the foreman, had indeed visited relevant scenes alone and he might have wielded some influence with the jury.

The area of fact which the jury must have been considering was crucial and there was an irreconcilable conflict in the evidence. The visit by the juror constituted another material irregularity and a serious one.

The court added that it did not seem to be common practice to warn jurors not to visit the scene of crime unless a view had been organised for that purpose.

In future, judges would be wise to consider whether or not in the particular case there might be a risk of a juror acting on his own initiative, as appeared to have happened here, and to give some further appropriate direction.

The case against all three appellants was formidable. However, following the approach set out above, the question was whether, assuming the irregularities identified had not occurred, a reasonable jury would have been bound to return verdicts of not guilty.

The court could not in all conscience say that it would. It was not possible to say what impact the undisclosed material might have had on the case against Johnson; nor could the court be certain that the results of the juror's private investigations, whether or not communicated to the others, might not have played a part in resolving the conflict on timing in favour of the prosecution.

Accordingly, it could not be said that any of the convictions was safe.

The court emphasised that that judgment did not represent a finding of innocence.

Solicitors: Crown Prosecution Service.