Lord Coulsfield's analysis and recommendation: ES22 The authorities appear to recognise that in some circumstances material which would otherwise be disclosable may be withheld from the defence on grounds of public interest or damage to other persons or interference with their rights. There are two broad classes of case in which this question may arise. The first is where disclosure would be prejudicial to individuals. The second is where it would cause prejudice to the public interest in preserving security and preventing or detecting crime. ES23 There is extensive experience in England of the operation of a system of public interest immunity ( PII) hearings to enable the courts to manage issues of disclosure, and in practice that system seems to operate reasonably satisfactorily. If the Crown Prosecution Service ( CPS) considers any material both disclosable and sensitive, and cannot separate out the disclosable material and make it available in a way that does not compromise the public interest, it then has three options, namely to abandon the case; or to disclose the sensitive material because the overall public interest in pursuing the prosecution is greater than that in abandoning it: or to seek a court order to withhold the material, by means of a PII application. ES26 Under the current arrangements in England and Wales there are three types of PII hearing, depending on the level of sensitivity: - Type 1 (inter partes): In this case, the prosecutor informs the defence of the category of material at issue, and the defence is allowed to make representations at an inter partes hearing;
- Type 2 (ex parte): The prosecutor informs the defence that an application is being made, but gives no details of the category of material. The defence may make broad statements to the court but the hearing then proceeds in the absence of the defence and accused .
- Type 3 (ex parte): The defence is not notified; hearing takes place entirely in their absence. These are the most serious cases and the CPS rarely uses this route. (The European Court has not ruled specifically on whether type 3 procedures are Convention compliant. Clearly, if the defence does not know that a PII application has been made, it is not able to launch an appeal).
ES27 The PII hearing is held before the judge who is to conduct the trial. The judge examines the material at issue in the context of the case and it is open to the court to order that the prosecution cannot proceed without full disclosure; or that the case may continue without disclosure of part or all of the material at issue. The court can only reach the latter conclusion if it considers, in the context of the case as a whole, that a fair trial is still possible. ES28 The court may revise its decision during the subsequent course of the trial, if subsequent developments cast doubt on the conclusion that the accused can still have a fair trial without the sensitive material being disclosed. ES29 Judges in England and Wales have power to call for special counsel to safeguard the interests of the defendant in ex partePII hearings (i.e. type 2 and type 3 hearings). The purpose is to permit the retention of a Chinese wall between the defence and any sensitive material, while allowing the interests of the defence to be represented at the PII hearing. Special counsel can engage in adversarial argument about the strength of public interest in keeping the material secret, and, briefed by the defence, draw attention to any particular issues to which the material was relevant. Communication between the defence and special counsel is, however, a one way street. Special counsel are not permitted to inform the defence of the nature of the sensitive material. ES31 The problem of handling sensitive information can be simplified if a clear view is taken as to what types of material require to be disclosed. The majority of sensitive information may then not have to be treated as disclosable at all, and the dilemma about its disclosure would not then arise. However, it is certain that there will be some cases in which the dilemma will be unavoidable and, in the nature of things, these will often be complex and high-profile cases. ES32 The contrasting European cases of Jasper v United Kingdom [2000] 30 EHRR 441 and Edwards and Lewis v United Kingdom [2005] 40 EHRR 24 show that, although the PII system in England and Wales seems to have worked reasonably well and has survived some Article 6 challenges, it is by no means free from problems. There are persistent doubts as to whether the system, particularly in relation to type 3 applications, is Article 6 compliant. My personal view is that these doubts may very well be justified, as regards type 3 and even type 2 cases, and that the fact that the initial decision whether or not to make an application at all lies with the prosecutor is a weakness in the system. ES33 In trying to work through this set of problems as a whole, I have found it increasingly difficult to believe that the system of PII hearings provides an adequate and satisfactory long term solution for the dilemmas created by the competing pressures. These problems may have to be approached on a wider basis than disclosure in isolation, and to be thought through in terms of finding ways to secure fairness in the whole process of intelligence-based and covert investigation as well as prosecution. Any move in that direction would, however, have implications extending well beyond mere questions of disclosure. ES34 Nevertheless, I have come to the conclusion that, despite the uncertainties, I should recommend the introduction of legislation to provide for a system of PII applications on the same lines as that operating in England and Wales. I do not see that there is any practicable alternative in the short or medium term. I have hesitated as to whether that recommendation should include type 3 applications, but it has been strongly urged by police and security organisations that they should be included. However, their use should be severely discouraged, except in the most unusual cases. R9. Legislation should provide for a system of "Public Interest Immunity" hearings in Scotland, along the lines of the English model. The trial judge or sheriff should conduct the hearings, and the use of ex-parte applications and special counsel should be possible when necessary. This facility should extend to both solemn and summary cases. R15a. Legislation should allow for the use of Public Interest Immunity applications in summary cases as in solemn. |