The applicants, Mr. Rowe and Mr. Davis, were accused and convicted of several robberies. During the trial some of the relevant evidence was not disclosed to them. Several years later it was found that this evidence contained the statements of witnesses who claimed the applicants had participated in the robberies. In return for their testimonies these witnesses received a financial reward and police protection.
The applicants claimed that their trial had not been fair, as an important part of the evidence was not disclosed to them.
It was a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In a criminal case both prosecution and defence had to be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. It however continued that in some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest, but only the measures which are strictly necessary can be justified and any limitations of the rights of defence must be sufficiently counterbalanced by the procedures followed by the judicial authorities.
In the particular case the Court found that the prosecutor did not even inform the court of first instance about the additional evidence and unilaterally decided not to disclose them. Although the court of appeals was informed of the evidence in question, it could not remedy the situation as it did not have the authority to call the witnesses again and it had to rely on written transcripts and statements of the prosecutor to determine the importance of the undisclosed evidence. Therefore there had been a violation of the applicant’s right to fair trial.