PUBLIC INTEREST IMMUNITY

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 Where PII exists: secondary evidence (e.g. a copy or oral evidence) of the document’s contents is not admissible; the document cannot be used for memory refreshing; and the document cannot be used during cross-examination

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), 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

Colin, who was shot by a police officer, is bringing claim in tort against Newtown Police Force. The police officer shot Colin whilst attempting to arrest him in the belief that he had been involved in the commission of terrorist offences. The defendants have claimed public interest immunity in a police manual which, amongst other matters, provides guidance on the use of firearms whilst attempting to arrest suspected terrorists. True/false? The judge must order disclosure if the manual could assist Colin’s case or damage the defendant’s defence False

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 accused’s 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

Balancing exercise in criminal proceedings (cont) In a criminal trial the court should consider: The nature of the material Whether the material may weaken the prosecution case or strengthen the defence case Is there 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]?

The 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 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)

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

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 Ken’s house. Norris has several burglary convictions and has a key to Ken’s house. Norris was formerly one of Ken’s 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 [b] is true

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 official’s decision (particularly by that of a Secretary of State) 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)

Inspection of Documents by the Court In the context of civil proceedings there is authority for the proposition that there may be circumstances in which the court will be prepared to uphold a PII claim without inspecting the relevant documents (i.e. where the court is not satisfied by the party seeking disclosure that the documents would be likely to substantially support the case of the party who seeks disclosure) but it appears that it, in practice, a civil court would not be likely to uphold a PII application without inspecting the documents In criminal proceedings it appears that the court will not uphold a PII claim without the judge first inspecting the documents

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 Abdul’s defence They are all false

There must be some public interest to protect PII does not arise to protect private interests PII does not arise to protect the interests of foreign states

PII and the Civil Procedure Rules 1998 Under CPR 31.19, PII may be claimed, either: (like claiming privilege, i.e. normally via the list in which the document’s existence is disclosed), to withhold inspection of a document which is disclosed (if the other party applies to the court to decide whether the claim should be upheld and it is upheld, the other party will know that documents subject to PII exist but will not be entitled to inspect and copy them) or (by applying without notice) for permission to withhold disclosure (i.e., if the application to withhold disclosure is successful, the other party will not know that the documents exist; they will not be in the list)

PII and the Civil Procedure Rules 1998 Note: the duty to disclose documents under the CPR 1998 essentially arises (in the form of “standard disclosure) in relation to documents on which a party relies, documents that adversely affect the party’s case, documents that adversely affect another party’ case and documents that support another party’s case. Thus, essentially, a party will not be required to claim PII (or privilege) in relation to documents which he is under no duty to disclose; they will simply not be required to appear in his list.

Sarah is bringing a civil claim against Bigco PLC. The Foreign Office has directed Bigco to claim PII in certain documents the disclosure of which could affect relations between the UK and the Republic of Ruritania. Which of [a] or [b] is true? [a] The claim must take the form of an application without notice to withhold disclosure of the documents [b] The claim must be made in the list in which the party making it discloses the relevant documents They are both false

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 25 Hearing normally with notice and inter partes though the prosecution may be given leave to make representations in the absence of the defence If revealing the nature of the document would reveal the sensitive information then the notice should not indicate the nature if the material and the hearing will be ex parte If revealing the fact that an application is being made would reveal the sensitive information then notice should not be served and the hearing will be ex parte [Note: if the hearing is ex parte, great caution and a very searching investigation of the facts and their possible relevance to the defence will be required.]

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 the form of an ex parte hearing without notice (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. (ii) and (iii) are true

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

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). 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.

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. 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