Transcript Document

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