PUBLIC INTEREST IMMUNITY (Criminal Proceedings)

PII and Privilege

Whilst

PII, like privilege, is relied upon to object to disclosing relevant evidence, PII is not a form of privilege but, rather, is an exclusionary rule which differs from privilege because: PII (unlike privilege) cannot be waived and where it exists the court may be required refuse to order disclosure even though it has not been claimed (Wiley) Where PII exists: secondary evidence (e.g. a copy or oral evidence) of the documents contents is not admissible; the document cannot be used for memory refreshing; and the document cannot be used during cross-examination (Conway)

Contents Claims and Class Claims

PII

may be claimed either via a contents claim (i.e. disclosing the document is against the public interest) or via a class claim: (i.e., whether or not disclosing the document is against the public interest, the document belongs to a class of documents the disclosure of which is against the public interest) Government policy is now only to claim PII where disclosure could cause real damage to the public interest (i.e. is not to make class claims) but, other public bodies (e.g. police forces) may still make class claims

Categories of PII The categories of public interest are not closed, new ones may develop (probably by analogy with existing categories (NSPCC)) , though substantial development is, perhaps, unlikely (Human Rights issues; see below) Examples of existing categories are: (central government) national security/ international relations/internal government discussions and advice; (police) police informants/observation posts/police training manuals; (children) NSPCC informants; interviews of alleged child sexual offence victims made for therapeutic purposes; records of children kept by social services

The Balancing Exercise

When

deciding whether to order disclosure the court balances the public interest against disclosure (which may take a variety of forms) with the public interest in favour of disclosure (i.e. the public interest in doing justice in the proceedings before the court) If the former outweighs the latter the court has no discretion to order disclosure (Conway)

The Balancing Exercise in criminal proceedings In criminal proceedings, fairness to the accused is the primary consideration so if the material to which a PII application by the prosecution relates might prove the accuseds innocence or prevent a miscarriage of justice this appears to overwhelmingly support the public interest in favour of disclosure, but if the material is merely relevant to a frivolous defence or there is merely a fanciful prospect that the material would lead to relevant defence evidence or the material is neutral or indeed damages the defence case, fairness to the accused does not require its disclosure (H)

Balancing exercise in criminal proceedings (cont) In a criminal trial the court should consider (H): The nature of the material Whether the material may weaken the prosecution case or strengthen the defence case Whether there is a real risk that an important public interest will be prejudiced if full disclosure is ordered Can the interests of the accused be protected without ordering disclosure or can a form of limited disclosure (e.g. anonymised documents) be ordered that will protect both the public interests and those of the accused? [Exceptionally it may be necessary to appoint special counsel] (H)

Balancing exercise in criminal proceedings (cont)

If the proposed measures derogate from full disclosure more than is necessary to protect the public interest then fuller disclosure should be ordered (H) If limited disclosure may render the trial unfair then fuller disclosure should be ordered even if this may result in the prosecution discontinuing the proceedings (the judge must continue to consider whether this is so throughout the trial) (H)

Balancing exercise in criminal proceedings (cont) The judge should involve the defence as much as possible (H) If the circumstances are such that: the defence cannot even be informed that an ex parte application has been made by the prosecution and special counsel (if appointed) would not be able to receive defence instructions and the material would be of significant help to the accused then it may be that the prosecution should not proceed (H).

Ken is charged with burglary. The prosecution do not wish to disclose the identity of Norris, who informed on Ken and told the police that the stolen goods were in Kens house. Norris has several burglary convictions and has a key to Kens house. Norris was formerly one of Kens friends but now Norris hates Ken because Ken, who is married to Norris sister, left her for another woman shortly before Norris informed on him. Ken claims that he has no idea how the stolen goods got into his house. Which of [a] or [b] is true? [a] The court should uphold the PII claim [b] The court should order disclosure

Which one is true?

1.

2.

[a] [b]

50%

50%

[a ]

[b ]

Voluntary Disclosure
Where

an official performs the balancing exercise and decides upon voluntary disclosure the final decision belongs to the court but the court, in performing the balancing exercise, may well be influenced by the officials decision (particularly by that of a Secretary of State) (Wiley) Where an official performs the balancing exercise and decides against voluntary disclosure the final decision must be left to the court (otherwise there could be a violation of Article 6 of the Convention) (Rowe)

Inspection of Documents by the Court

In

criminal proceedings it appears that the court will not uphold a PII claim without the judge first inspecting the documents (H)

Abdul is charged with robbery. The prosecution do not wish to disclose the identity of the man who informed on Abdul. Which of [a], [b] or [c] is true? [a] If the prosecutor decides that the public interest against disclosure outweighs that in favour of disclosure he must not inform the judge of the existence of the informant. [b] If the prosecutor certifies that the public interest against disclosure outweighs that in favour of disclosure the judge must determine the PII application without inspecting the relevant documents [c] The judge must order full disclosure even if the material is of no relevance to Abduls defence

Which one is true?

1.

2.
3. 4.

[a] [b] [c] All false

25%

25%

25%

25%

[a ]

[b ]

[c ]

Al l

fa l

se

PII and the Criminal Procedure & Investigations Act 1996 The Act does not modify the common law rules concerning whether disclosure is in the public interest The court, on application by the prosecution, may determine that disclosure is not in the public interest, and make an appropriate order The accused may apply to the court to determine whether non-disclosure remains in the public interest after non-disclosure has been ordered The Crown Court must keep the question of PII under review after it has ordered non-disclosure

PII and the Criminal Procedure & Investigations Act 1996 (continued)
Note:

where material is neutral or damages the accused a PII hearing is not required because the duty to disclose under the 1996 Act (where evidence might reasonably be considered capable of undermining the prosecution case or assisting the accused) does not arise.

PII and CrimPR Part 22

The

prosecution need only serve a public interest immunity application on the defence to the extent to which it would not disclose to the defence he material that the prosecution believe should not be disclosed. The court may direct that the public interest immunity hearing takes place wholly or partly in the absence of the accused.

James is charged with possession of a controlled drug with intent to supply. The prosecution do not wish to reveal the identity of an informant on public interest grounds. Which of (i), (ii) or (iii) is/are true? (i) The PII hearing must take place in the presence of the accused (ii) If the judge upholds the PII application he should keep the matter under review throughout the trial (iii) If knowing the identity of the informant would be of no value to the accused or would damage his case a PII hearing will not be necessary.

Which is/are true?

1.

2.
3. 4. 5.

All true All false (i) and (ii) only (ii) and (iii) only (i) and (iii) only

20%

20%

20% 20%

20%

se

nl y

Al l

Al l

)o

on ly i) (i i nd (i ) an d

(ii

an

(i)

(ii

)a

(ii

i)

on ly

tru

fa l

Human Rights
Prosecution

disclosure of material for or against the accused forms an aspect of a fair trial for the purposes of Article 6 (Rowe) This is not an absolute right and it may be necessary to weigh it against other interests (Rowe) Withholding material must be strictly necessary and the judicial process must provide adequate safeguards providing, if possible, both adversarial proceedings and equality of arms (Rowe)

Human Rights (continued)

If

the process does provide adequate safeguards, deciding whether disclosure is strictly necessary is essentially a question for the domestic courts (not a decision for the official claiming PII) (Rowe). Where the judge rules that material is subject to PII he should not rely upon material communicated to him at the PII hearing when making a ruling in the proceedings, as this will violate Article 6 (May)

Special Counsel
Exceptionally (i.e.

only where a fair trial cannot be secured in another way) the court may find it necessary in the context of a PII claim to order the appointment of special counsel to represent the interests of the accused (H) Special counsel is not responsible to the accused and is not entitled to disclose the material to him. The Attorney-General is responsible for the appointment of special counsel