#14960 - Pii Cm Ps - Principles of Civil Procedure

Secret evidence: PII & CMPs

Types of secret evidence

• Evidence unavailable to the court because kept secret (eg shielded by LPP)

• Evidence available to court but unavailable to one or more of the parties (eg CMPs)

• Evidence which is available to court & parties but withheld from public (eg in camera proceedings)

History

• Crown Privilege (unreviewable) – Duncan v Cammell Laird [1942] (trials on new submarine design – submarine was submerged & never came back up – employees lost – families brought proceedings against shipbuilders for negligence in design of submarine – blueprints during wartime were sensitive – could backfire & frontfire D asserted Crown Privilege – that assertion is conclusive – not disclosed)

  • BUT Crown can get privilege just by asserting

  • Public benefits – particular parties suffer – is that distribution of burden appropriate?

    • Can’t assess liability & quantum without documents

    • CF if liability could be established another way & documents would show no negligence – Ds would suffer

• Establishment of Public Interest Immunity – Conway v Rimmer [1968] (permitting non-disclosure for PII claim)

  • Balancing test – harm to public <> harm to administration of justice

  • Difficulty in case where – serious harm to public interest & cannot reach correct decision without evidence disclosed

• Immunity over classes of documents effectively abolished in Ex parte Wiley (1994)

• Carnduff v Rock (2001) — only case where PII asserted by Crown as defendant to civil claim, causing claim to be dismissed

  • grant of PII in action against police by informant alleging breach of alleged contract – could not be determined without looking at ‘contract’ – covered by PII

  • but AZ: alleged contract was illegal & unenforceable anyway?

• Closed material proceedings: JSA 2013

  • Al Rawi (proceedings alleging torture – no common law power to conduct CMP in inherent power)

  • Rationale – better to decide with regard to all evidence while excluding parties, than by part evidence with some excluded for PII

Public Interest Immunity

= exception to disclosure

Tension with disclosure

• In general court should have access to best evidence — any exclusion of relevant evidence calls for good justification: Lord Edmund-Davies in D v NSPCC

• Art 6(1) ECHR — restriction on disclosure permitted if proportionate in pursuit of legitimate interest & subject to judicial scrutiny

Procedure

• Application by party asserting PII — usually Minister as a party but could be anyone or even the court on its own motion: Rogers v Home Secretary (1973)

  • Minister can issue PII certificates – but have been heavily criticised: Al-Sweady (certificate over material that was already in the public domain — criticised by court and made indemnity costs order against gov)

  • Party seeking disclosure must show that docs would provide substantial support: Air Canada

    • Difficult if they haven’t seen them

    • But only need a real as opposed to fanciful chance: Goodridge (1999)

  • Balancing then conducted by the court

• Special advocates can be appointed to help resolve the claim: AHK

• Assertion that no relevant evidence

  • If party says that has no relevant evidence to disclose, then can’t go behind it

  • R v H per Bingham — may be necessary to have inspection of material by court, possibly aided by special advocate

• Possible to make ex parte applications for disclosure of existence of docs & not serve order: CPR31.19(2) — ie total secrecy

• May be that judge who inspects & then upholds PII claim should not determine substantive matter, as reasonable apprehension of bias: Ex parte Lilley (1995)

Balancing — Harm to public interest from disclosure <> harm to administration of justice generally and in the particular case by withholding

• Public interest—

  • National security in time of war: Duncan v Cammell Laird (now CMPs available)

  • Proper functioning of public service: Re M (a minor)

  • Operation of local authority social work services: D v NSPCC (1978)

  • Ascertaining risk of harm to public interest on disclosure —

    • Ex parte Wiley (claim of PII in evidence collected under inquiry re police misconduct — asserted that disclosure would discourage further witnesses from coming forward but could not withhold from victims of police misconduct on this basis — that is the whole point of the inquiry — would discourage witnesses from coming forward as would be futile)

    • May depend on who has the documents as well as their contents: Lonrho (application for disclosure of tax documents balancing exercise in favour of disclosure)

• <> Harm from withholding — to individual & administration of justice

  • EG whether marginal importance, whether can be obtained from other sources

• Class-wide exemptions for PII require compelling public interest: Ex parte Wiley (allegations of police misconduct – documents subject to class-wide PII claim disclosure ordered – otherwise would have chilling effect)

  • Can refuse to disclose documents & existence of documents: CPR 31.19

• Consequences of grant of PII

  • Documents can be redacted to provide a middle ground

  • If unsuccessful – open to all parties

  • If successful – inadmissible & can’t be relied on

    • Can also apply to withhold existence of documents as well as docs themselves

Waiver

• PII cannot be waived as protects public interest — not a card for the gov to play as it wishes: Makanjuola per Bingham LJ

  • Follows that there is a duty to claim PII?

  • BUT can give weight to decision of government officials choosing to disclose voluntarily: Horseferry (CPS handing over documents to D that were potentially subject to PII claim)

Criminal contexts

• Keane per Lord Taylor — if disputed material may prove defendant’s innocence, then balance comes down “resoundingly” in favour of disclosure

  • IE State can’t have both secrecy & prosecution — must either disclose or drop prosecution

• R v H (charge of conspiracy to supply drugs — PII asserted over investigation if material weakens Crown case or strengthens defence case must be disclosed — if would not prejudice, then derogation must be minimum necessary) —Set out 7 steps, in essence—

  • Full disclosure if weakens crown case or if not a real risk of serious prejudice to important public interest

  • Limited disclosure permitted provided that the minimum necessary to protect public interest & does not render trial process unfair

  • Must keep under review as trial progresses

• R v Davis (anonymity of witnesses — risk of intimidation could not deny right to confront prosecution witnesses)

• Cynical criticisms—

  • Dreaming up defence to get disclosure — eg asserting that informant duressed D in order to get disclosure, or have prosecution dropped

Civil contexts — Refuse to hear on the basis that cannot be fairly heard?

Carnduff v Rock (2001) (police informant claimed remuneration — asserted contract with police — applied for disclosure — police applied to strike out By majority, struck out — application of PII causes unfairness rendering matter untriable)

• The only case since Conway v Rimmer in which PII has been successful with the result that the plaintiff loses his case

  • At odds with CMP justification — if information not disclosed, then C’s claim may fail — Produces CMP situation — in C’s interest that disclosed to court even if not to them

• Laws LJ: Court would have to examine in detail interactions with police — concerned about police having to make concessions — case which can only be justly tried

• Criticisms — Illogical to strike out —

  • Not abusive under CPR 3.4 as brought in good faith

  • Not groundless as even if evidence not disclosed, applicant would have given evidence that would have to be evaluated

    • Best explanation of the case — that PII claim upheld

    • But trial should have proceeded without evidence

    • And struck out before disclosure commenced — no consideration of summaries, redacted copies, etc

  • If striking out because not possible to have a fair trial — then are not achieving that goal by striking it out

• Picked up in Al Rawi (2012) (common law CMP not permissible)

  • Argued for CMP on the basis of (a) public interest and (b) economy as determining large number of PII claims would be expensive & time-consuming

  • Majority — CMP not permitted by common law

  • Mance & Hale in dissent — CMP permitted only by consent

    • Mance — presuming correctness of Carnduff — successful PII claim can make claim untriable and strike out — so should be able to consent to CMP

    • BUT no party submitted the claim in Al Rawi would be untriable or should be struck out under Carnduff

    • And Al Rawi’s claim prima facie valid, whereas alleged contract in Carnduff may have been illegal

  • Clarke — CMP permitted without statutory authority or consent

  • Government settled claim rather than litigate & reveal evidence

Accepted (reconstrued?) in Tariq (2012)

• Lord Mance for the majority — if disclosure would harm public interest, then disclosure not possible and fair trial not possible — renders not justiciable

Reconstruction — cannot be tried merely because claimant bound to lose

• AHK (refusal of citizenship applications with no reasons — invoked national security)

  • Cannot go behind Sec of State’s assertion of public interest — evidence means that claimant cannot win — makes case untriable only because C cannot win

  • <> Carnduff, non-justiciability based on unfairness generally

• CF in HC (allegation of UK government complicity in arrest & torture)

  • I am convinced that the information is such that no court could fairly try the case without this material (or most of it). This...