#10384 - Public Interest Immunity - BPC Criminal Litigation (formerly BPTC) 2024/2025

PUBLIC INTEREST IMMUNITY (PII)

• the rule

  • function: enables pros to withhold material that would otherwise have to be disclosed under CPIA 1996

  • need permission of court - pros makes application before / midway through trial

  • basis: disclosure would give rise to real risk of serious prejudice to an important public interest

  • how PII interacts with disclosure

    • general rule = full disclosure: to satisfy art 6, pros should disclose to defence all material in possession for / against D

    • exception = PII: under art 6, CANNOT withhold material unless non-disclosure 'strictly necessary'

• preparation for the application

  • considerations before making:

    • pros should aim to disclose as much material as they can (e.g. by giving defence redacted copies)

    • neutral material / material damaging to D need NOT be disclosed AND must NOT be brought to court's attention

    • pros should only apply in truly borderline cases (AG's Guidelines on Disclosure)

  • general points:

    • prior to hearing, court must be provided with full + accurate information

    • pros advocate must examine all material which is subject matter of application + make any necessary inquiries of prosecutor and / or investigator

    • prosecutor (or rep) and / or investigator should attend such applications

• application / hearing procedure

  • 3 classes of case (R v Ward; Davis)

    • class 1 - the usual cases

1. pros must:

1. give notice to defence that they are applying for PII ruling; +

2. indicate to defence at least the category of material they hold (broad ground on which PII claimed)

2. defence must have opportunity to make representations to court

3. hearing conducted in open court with both parties (i.e. pros and the D) present

   • class 2 - cases where pros contend public interest would be injured if disclosure made even of category of material

1. pros must give notice to defence that they are applying for PII ruling; +

2. defence must have opportunity to make representations to court

3. D or anyone representing him will NOT be present at hearing

4. at hearing:

1. if court thinks material falls within class 1 follow class 1 procedure

2. otherwise, court will rule

   • class 3 - 'highly exceptional cases' where public interest would be injured even by disclosure that an ex parte (from 1 party; without notice) application is made

1. application made WITHOUT notice to defence

2. at hearing:

3. if court thinks material falls within class 1 follow class 1 procedure

4. if court thinks material falls within class 2 follow class 2 procedure

   • replicated by CrimPR

     • prosecutor must serve notice of the application on:

1. court

2. any person thinks would be directly affected by disclosure

3. on D (to the extent that it would not disclose what ought NOT to be disclosed) (r22.3(2))

   • the application must explain:

1. why disclosure NOT in public interest

2. why no measure (e.g. edited copy) could adequately protect public interest and D's right to a fair trial (r22.3(3))

3. if prosecutor serves only part of application on D, must in the part for the court explain why withheld from D (r22.3(4))

   • court may order that the application be served on D if not already (r22.5(3))

   • general points about the hearing

     • court must determine application at hearing - in private, unless court orders otherwise

     • if court directs, hearing may take place wholly / partly in D's absence (r22.3(6))

     • if D present, court usually hears representations:

1. from prosecutor + anyone else served with the application (in presence of all)

2. from D (in presence of all)

3. further representations from prosecutor + anyone else served with the application (in D's absence) (r22.3(7))

   • court may only determine application if satisfied able to take adequate account of rights to confidentiality of material and D's right to a fair trial

• court's decision-making process at the hearing (R v H; H v C)

1. what material do pros seek to withhold?

2. may material weaken pros case / strengthen defence case? (may require special independent counsel - see(4b))

1. N order NO disclosure

2. Y order full disclosure (subject to (3), (4) and (5))

3. real risk of serious prejudice to important public interest if full disclosure ordered? (may require special independent counsel - see(4b))

1. N order full disclosure

4. if answer to (2) and (3) = Y, can D's interest be protected without disclosure OR in a way which will adequately protect public interest and interests of the defence?

1. court must consider whether pros should formally admit what defence seek to establish OR whether limited disclosure may be ordered

2. v exceptionally, special counsel may me necessary to ensure pros's contentions tested and D's interests protected (although material not released to D)

5. do measures proposed in answer to (4) represent minimum derogation from full disclosure necessary to protect public interest?

1. N order greater disclosure so represents minimum derogation necessary

6. if limited disclosure ordered pursuant to (4) or (5), may this render trial process as whole unfair to D?

1. Y order fuller disclosure (even if may lead pros to discontinue proceedings to avoid making disclosure)

7. if answer to (6) = originally N, remain correct answer as trial unfolds, evidence adduced, defence advanced (pros have continuing duty)?

• PII in mags'

  • if bench alerted to...