Public Interest Immunity Edmund Burge

Welcome to this podcast on Public Interest Immunity. I'm Edmund Burge, a barrister in chambers at 5 St Andrew's Hill specialising in criminal prosecution and defence. A significant part of my work is prosecuting large-scale drug These

importations and arms-trade offences for Revenue & Customs.

investigations frequently rely on information obtained through informants and other forms of covert surveillance, and so prosecuting them regularly raises issues of Public Interest Immunity. Im also one of the Attorney-General's Special Advocates, Counsel who are used to assist the Court in cases involving allegations of terrorism and other matters of national security. I am therefore frequently involved in considering and advising on matters involving sensitive intelligence, and regularly make applications for the prosecution to assert PII over otherwise disclosable material.

A solid grasp of the principles of PII is essential to anyone who will either prosecute or defend in criminal cases, because applying those principles properly can be the difference between conviction and acquittal. Many a prosecution has been stayed because of a failure on the part of prosecutors properly to deal with sensitive unused material. Therefore knowing how to recognise material that might raise issues of PII, and how to deal with it, is an essential skill for any criminal barrister whether they act for the state or a defendant. This podcast is intended to give you an understanding first of the legislative framework that governs the application of PII, and second how to approach the matter in practice.

Disclosure is an essential element of the states guarantee to a defendant of a fair criminal trial. The Golden Rule is that the defendant is entitled to full

disclosure of all material in the prosecutions possession that is capable of either undermining their case against him or of assisting his defence. Public Interest Immunity Page 1 of 11

The rules that govern prosecution disclosure can be found principally in Part 1 of the Criminal Procedure and Investigations Act 1996, and the Code of Practice issued under Part II. Guidance on the proper application of those rules can be found in the Attorney Generals Guidelines on Disclosure, and The Protocol for Control and Management of Unused Material in the Crown Court.

The doctrine of Public Interest Immunity represents a significant exception to the Golden Rule. It allows the prosecution to obtain from the trial judge a ruling that material which satisfies the test for disclosure need not be disclosed. Furthermore, the prosecution is allowed to seek that ruling ex parte. This means that the defence cannot respond to the prosecutions submissions to the judge that the material should be withheld. This process has been considered by the European Court of Human Rights on a number of occasions and has been found to be compatible with a defendants right to a fair trial under Article 6 of the Convention. Its obvious, however, that prosecuting counsel bears a heavy

responsibility to ensure that the whole process of applying for PII is conducted fairly.

The operation of PII is complex, involving the competing interests of the state (in its widest sense) and the individual, so the examples used here to illustrate the types of issues that can arise have been simplified. Its important therefore to remember that in practice the combination of relevant factors is infinite, and the correct approach in any case will depend on those factors. What is right in one case may not be right in another.

The leading domestic authority on the application of PII in criminal cases is the House of Lords case of R v. H & C [2004] 2 Appeal Cases. p134. Its essential reading for anybody who has to deal with PII in practice. summarised the operation of PII as follows: Their Lordships

Circumstances may arise in which material held by the prosecution and tending to undermine the prosecution or assist the defence cannot be disclosed to the

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defence, fully or even at all, without the risk of serious prejudice to an important public interest. The public interest most regularly engaged is that in the effective investigation and prosecution of serious crime, which may involve resort to informers and under-cover agents, or the use of scientific or operational techniques (such as surveillance) which cannot be disclosed without exposing individuals to the risk of personal injury or jeopardising the success of future operations. In such circumstances some derogation from the golden rule of full disclosure may be justified, but such derogation must always be the minimum derogation necessary to protect the public interest in question and must never imperil the overall fairness of the trial.

The Code of Practice issued under Part II of the CPIA gives examples (at paragraph 6.12) of the sort of public interests that can engage the doctrine of non-disclosure under PII. It should be noted that the list in the Code is not intended to be exhaustive; its simply a guide. It includes material relating to national security, material that might reveal intelligence gathering methods, and the identities or existence of informants.

So, for example, the prosecution in a drugs smuggling case might be in possession of intelligence given by an informant that one of the defendants had expressed second thoughts about becoming involved in the smuggling operation. Depending on the facts of that case, such material is likely to be disclosable to the defendant as supporting his defence that he was never involved at all. However, the prosecution have a legitimate fear that the informant might be the only person to whom the defendant expressed that doubt; therefore to reveal to the defendant that the Crown knows about it would be to reveal to him that his friend was an informant.

Assuming there is evidence that, notwithstanding his initial doubts, the defendant went ahead and joined the smuggling operation, the prosecution would be entitled to seek an order from the judge that this piece of otherwise disclosable material need not be disclosed to the defence. The rationale would be that to disclose it would be to endanger the anonymity of an informant and thus damage Public Interest Immunity Page 3 of 11

the wider public interest that people are able to provide the police with information about the criminal activities of others without fear of being exposed.

The procedure for making an application for PII is set out in the Criminal Procedure Rules. It requires the prosecution to make an application in writing, and to serve that application on (i) the court, (ii) anybody the prosecution thinks might be directly affected by disclosure of the relevant material, and (iii) the defendant.

There is an important and obvious exception to the need to let the defence know that an application for PII is to be made; that is where even to let them know about it would be to reveal the very thing which you intend to keep secret.

For example, suppose in a two defendant case, the first defendant was an informant. Depending on the circumstances, that fact might be disclosable to the second defendant, but to do so could imperil an important public interest, namely the safety of informants. If to withhold that information would not impair the fairness of the second defendants trial, the prosecution would apply for PII.

The second defendant then submits a defence statement alleging that the first defendant was an informant. If telling the second defendant that the prosecution intends to seek PII would be to have the effect of outing the first defendant as an informant, then the prosecution would not have to put the second defendant on notice that they intend to make the application. They would, of course, still have to inform the first defendant, because he is someone who would be directly affected by disclosure of the material as defined in the Criminal Procedure Rules.

The written application has to set out the material over which PII is sought, and explain (i) why its prima facie disclosable, (ii) why its in the public interest not to disclose it, and (iii) why limited or partial disclosure would not meet the public interest concern and protect the defendants right to a fair trial.

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This last point raises an important matter to keep in mind when considering applications for disclosure and PII; namely the fact that part of a document or record may be sensitive and thus subject to PII does not automatically render the whole of it so. Prosecutors must always be alive to the possibility of editing a document (often called redacting) in such a way as to give the defendant what he needs to put his defence without jeopardising the public interest, or making an admission.

For example, bank statements served as evidence may show that a defendant received a large sum of money into his bank account. The defendant is

concerned that jurors may mistakenly think this money was his proceeds of the crime he is charged with and thus evidence of his guilt. He puts forward in his Defence Statement an account of where the money came from, which shows it is innocent, for example a legacy from a relative. The prosecution conduct their own enquiries and find that the defendants account of the money is true, but they cant reveal the investigatory techniques that allowed them to establish it as such.

In such circumstances, there is no need for the prosecution to seek PII over the fact that the money is legitimate, and it would be wrong for them to do so. They can simply make a formal admission that the money shown in the bank statement was legitimate and had no connection to the crime with which the defendant is charged.

Upon receiving the written application the matter will be set down for a hearing. The hearing will be heard in the absence of the defendant unless the Court directs otherwise. Where the defendant was informed that the application was to take place he is allowed to make representations to the judge before the hearing about what aspects of his case the judge should bear in mind when considering whether to grant PII.

In practice what usually happens is that the judge hears an outline from the prosecution of what the case is about, and then from the defence as to what their defence is and what matters are of particular importance to it. The defence then

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leave the court and the hearing is held in camera with just the judge, prosecution counsel, the disclosure officer and a court logger present. The material in

question is placed before the judge, and Counsel explains in respect of each part of it why it is disclosable and why disclosure should be withheld. The judge will then rule in respect of each item whether PII applies, and to what extent. Any further disclosure that must be made will also be identified. Where a PII hearing takes place without the defence having an opportunity to make representations to the judge, prosecution counsel is under an added duty to explain to the judge the defence case as fully and fairly as possible. Copies of key documents such as the defence statement and the defendants interview transcripts must be made available so that the judge fully understands the importance that the disputed material may have to the defence case.

Where the Court is of the view that an application for PII can only fairly be decided by having someone who has seen the disputed material to represent the defendants interests at the hearing, the judge may order the appointment of Special Counsel. This is an advocate who is not instructed by the defendant in the trial itself, but is appointed by the Court to represent the defendant for the purposes of the PII hearing only. Special Counsel is given access to the defendants case and is then given access to the material the prosecution wish to withhold. The hearing then takes place, and the judge can hear argument from both sides as to whether particular material should be disclosed or not. Once the matter has been decided, Special Counsel withdraws from the case and the defendant continues to be represented by his trial lawyers.

The issues that the judge has to consider, and the approach to be taken, were set out in detail in R v. H & C. In essence, the court must establish what material PII is being sought over, and whether it satisfies the test for disclosure. Next it must consider whether its disclosure would represent a real risk of serious prejudice to an important public interest, and if so what. If the application

satisfies both these requirements, the Court must then establish whether the Public Interest Immunity Page 6 of 11

defendants interests can be properly protected by limited or partial disclosure and if so, in what way and to what extent. At all times the court must be satisfied that the derogation from the golden rule of full disclosure is the minimum required to protect the public interest.

If, however, limited disclosure is insufficient to protect the defendants right to a fair trial, then the court should order fuller disclosure, even if that means impinging on the protection of the public interest in question. In such

circumstances, the prosecution have a choice whether to make the fuller disclosure ordered or to discontinue the proceedings. The overriding

consideration is that the public interest in non-disclosure must never threaten the overall fairness of the defendants trial.

That then, is a brief overview of the legal framework underpinning the application of the doctrine of PII. But how do the issues arise in practice? It would be helpful to consider how to approach unused material for possible issues of PII.

For each case they bring, prosecuting authorities are required to keep schedules of all the relevant unused material. There are usually two types of schedule: one of sensitive material and one of non-sensitive material. Both are collated and up-dated by the case disclosure officer, and reviewed by the case reviewing lawyer. In respect of both schedules the prosecution has a duty to keep

disclosure under review until the end of the proceedings. Prosecution Counsel bears that duty alongside their reviewing lawyer.

Non-sensitive material is the everyday product of the investigation that has no impact on the important public interests identified earlier. It will include unused witness statements, police notebooks, custody records etc. That schedule is supplied to the defence as part of initial disclosure under the CPIA, along with copies of any items that fall to be disclosed.

The schedule of sensitive material is where unused material is recorded that in the view of the prosecuting authority might have an impact on the relevant public

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interests.

The schedule is never disclosed to the defence or their legal

representatives, and any copy provided to prosecution Counsel must be kept secure at all times.

Upon receipt of a prosecution brief, Counsel should check whether there is any schedule of sensitive material. Very often there wont be, because the case gives rise to no such issues. However, occasionally there is no schedule included in the brief when the facts of the case make it clear there should be. For example, in a drugs raid on domestic premises the evidence will usually start with officers describing the raid and who was arrested. If the officers say they conducted it in execution of a warrant issued by a magistrates court, they must have put before the magistrates their reasonable suspicions that the house in question would have drugs in it. Those suspicions were likely to be based on intelligence, whether from surveillance or from an informant. The existence of that intelligence is relevant material that is not relied on as evidence, and is therefore sensitive unused material which should be on a schedule. schedule is included in the brief, counsel must ask to see it. If no

Upon receiving a copy of the sensitive schedule, Counsel is under a duty to satisfy him- or herself of a number of matters in respect of each item on it: First, that each item is in fact sensitive, in other words, its material that relates to an important public interest. If its not, it should be removed from the sensitive schedule and listed on the non-sensitive schedule. The fact that its listed on the non-sensitive schedule does not mean that the defendant is entitled to see it; only if it satisfies the test for disclosure is a copy provided to the defence.

Second, Counsel must assess whether any item listed on the sensitive schedule satisfies the disclosure test. Material that is damaging to a defendants case, or is neutral, does not satisfy the test and so would not fall to be disclosed.

In practice, the greatest difficulties in assessing disclosability often arise in multihanded cases, where the defences advanced by each defendant are different, and may be cut-throat. In such situations, what is damaging to one defendants Public Interest Immunity Page 8 of 11

case (and so not disclosable to him) may support the case of another (and so be disclosable to that other defendant).

For example, consider a drugs importation where one defendant is the organiser and another is the courier. The courier says he was the innocent dupe of the organiser and simply thought he was driving a legitimate load into the UK at the organisers request. The prosecution is in possession of material indicating that prior to the importation the organiser was debating whether or not to tell the courier what he was planning. Clearly, that material cannot assist the organiser as it tends to prove his guilt, but it is capable of supporting the couriers case that his co-defendant used him as an innocent dupe.

Having considered whether any item of material is disclosable to any of the defendants, Counsel must next consider whether such material can be disclosed without compromising the important public interest that makes the material sensitive in the first place. This is where the issues of partial disclosure,

redaction of documents, or formal admissions which were discussed earlier, come in to play.

If the defendants interests can be met in this way, then such disclosure as is necessary and consistent with protecting the public interest should be made. Consideration should also be given to whether any PII application has to be made over those remaining undisclosed parts of the document.

If no disclosure can be made without threatening an important public interest, then a PII application has to be considered. In respect of any item on the

sensitive schedule over which PII is to be sought, an entry to that effect should be made by the prosecution reviewing lawyer and signed by him/her. Where its decided that there are no proper grounds for applying for PII over material that must be disclosed to the defence, the prosecution must either disclose that material or consider other options, such as severing the indictment, or discontinuing proceedings against that defendant so as to protect that defendants right to a fair trial. Public Interest Immunity Page 9 of 11

Its important to remember that the decision whether to disclose or not is for the prosecution, not the judge. The judge can only order that material must be

disclosed should the trial take place. If the public interest dictates that material that has been ordered to be disclosed cannot be disclosed, then the Crown can discontinue the proceedings. Likewise, the decision whether material is in fact disclosable is for the prosecution alone. R v. H & C made it quite clear that PII applications were not to be used to seek the advice of the judge on whether material was disclosable or not, save in truly borderline cases.

The process by which decisions are taken in respect of each item on the sensitive schedule is a matter for Counsel and the reviewing lawyer. However, the most common approach is for both to go through the schedule together, looking at the original items (as opposed to just their descriptions on the schedule), one by one, and recording as they go their decisions in respect of (a) sensitivity, (b) disclosability, and (c) the need for PII.

Finally, the prosecutions duty to keep disclosure under review is an on-going one. Therefore, earlier decisions on whether to disclose or not must be re-visited as the case develops. The most obvious change is in the service of defence statements, where issues may be raised that were not raised in interview. But many other factors can affect the disclosability of sensitive material; for example the joinder or severance of defendants, the acquisition of new unused material, or a change in the charges on the indictment. Prosecution Counsel have a duty to satisfy themselves at every stage in the proceedings either that the defendant has had access to any material that properly falls to be disclosed, or that the Court has sanctioned its retention from him on the grounds of PII.

It will be clear that the consequences of failing properly to apply the principles of PII can be severe. At one extreme defendants can be denied their right to a fair trial. At the other, cases that should have gone to trial may be dropped. In neither case are the interests of justice served. Its therefore essential that those who prosecute cases where issues of sensitivity and the public interest arise Public Interest Immunity 11 Page 10 of

keep themselves informed of the statute and case law underpinning this crucial doctrine. Very helpful guidance and commentary is available in Archbold,

Blackstones and Phipson on Evidence. Always remember to check the supplements for any recent developments in the law.

You should now have a clear understanding of how to recognise material that will give rise to issues of PII, and how to go about dealing with it. You should also have an appreciation of the variety of ways in which these issues can arise in practice, and of the options open to prosecutors to enable them to make maximum disclosure without compromising the important public interests engaged by that material. Most importantly, you should now know where to look for further guidance on the law relating to this essential subject, and how to keep yourselves up-to-date with developments in that law.

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