Copyright © 1996 Sir Richard Scott.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
I hope you will forgive me for having chosen as the subject of the lecture a legal issue. It is not, however, an arcane legal issue. It is an issue which relates to the conduct of criminal trials and the need to ensure that trials are fair.
There would I think be general agreement that criminal trials are not fair if documents or information to which the prosecution have access but the defence do not, and that if disclosed might enable a defendant to prove his innocence, are withheld from him. It is in this context that Public Interest Immunity claims (hereafter PII claims) must be considered.
May I make clear what I mean by PII claims. They are claims made on public interest grounds to withhold documents or information from being produced or given in evidence in Court proceedings. These claims may be made and are frequently made, in civil cases and from time to time in criminal proceedings. The great seminal cases establishing the principles of public interest immunity law have, however, been civil cases not criminal cases. I want to suggest to you this afternoon that the application to criminal trials of PII principles derived from civil cases and designed for application in civil cases has been a mistake and an impediment to the evolution of satisfactory principles for dealing with PII claims in criminal trials.
I make that suggestion with a certain amount of trepidation. I am not a criminal lawyer. I did no criminal work in practice at the Bar and as a judge I have never presided over a criminal trial or taken part in a criminal appeal. My card of entry, however, is the examination I have had to give over the past three years to the PII claims that were made in connection with the Matrix Churchill trial and the Ordtec trial. I have been educated by submissions explaining and justifying the practice and procedure that attended those claims put before me by a number of government lawyers, by prosecuting counsel in the two cases and by the Attorney- General.
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Accordingly, the defendants applied for Government documents. Government met their application by making PII claims. Ministers signed certificates stating that if the various documents covered by the certificates were disclosed, grave and unquantifiable damage might be done to the public interest. At a hearing before the trial judge counsel for the Crown argued, as he had been instructed to do, that the documents ought not to be disclosed. The trial judge read the documents, concluded that they ought to be disclosed and ordered their disclosure. They provided the basis for a substantial cross-examination of Government witnesses, including Mr Alan Clark, to be mounted by defence counsel. The upshot of this, following Mr Clark's agreement in cross-examination that he did not regard the possible use of the machine tools to manufacture conventional weapons as matter of concern, was the collapse of the prosecution. The rest is history.
The documents covered by the unsuccessful PII claims in the Matrix Churchill case fell broadly into two classes. First, there were documents passing between officials and Ministers in the ordinary Government departments, the Department of Trade and Industry, the Ministry of Defence and the Foreign and Commonwealth Office, regarding the licensing decisions on machine tools exports to Iraq that were being made. Second there were documents mainly emanating from intelligence agencies which disclosed information coming from intelligence sources regarding the use or likely use Iraq might make of these machine tools.
The justification for these PII claims was that the making of PII claims of this character in civil cases was well established and that the same principles were applicable in criminal cases.
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"...there is no discernible reason why the immunity should not apply in criminal proceedings".
The decision of Mann LJ in ex parte Osman has been taken as justifying the proposition that the principles of PII established in the civil cases to which I will in a moment refer are applicable also to criminal trials.
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This principle was well established at least as long ago as 1890. In Marks v Beyfus (1890) 25 QBD 494, the judge at a criminal trial refused to order a witness to give the name of informants. He was upheld by the Court of Appeal. Lord Esher MR (at p 498) referred to the "rule clearly established and acted on...that in a public prosecution a witness cannot be asked such questions as will disclose the informer...." Lord Esher went on to make clear the limits to this rule. He said (ibid) that :
"if...the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner's innocence then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail."
This limitation is, obviously, of crucial importance. But the point I wish to make is that the propriety of making PII claims in criminal cases has been accepted for a long time. I repeat that there is no doubt that PII claims can be made in criminal trials. The question for consideration is not whether PII claims can be made in criminal cases. They obviously can. The question is, first, what sort of PII claims is it proper to make in criminal cases and second, how should PII claims in criminal cases be dealt with once they are made.
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Common to all these cases was that PII claims for protection of documents either on a contents basis or on a class basis could be made. A word of explanation may be necessary. The contents of a document may be such that, if disclosed, damage to the public interest would be likely to follow. Documents revealing the names or working practices of members of the SIS provide an obvious example. PII protection for such documents can be claimed on a contents basis. Many documents, however, have nothing in their contents that can be pointed to as being likely, if disclosed, to cause damage to the public interest. But they may nonetheless be documents that, in the opinion of Ministers, ought not, because of the particular class into which they fall, to be disclosed. If such documents are to be protected from disclosure, the protection must be claimed on a class basis. Viscount Simon, in Duncan v Cammell Laird gave this classic description of the principle underlying PII claims. He said (at p 686):
"The principle to be applied in every case is that documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld. This test may be satisfied, either (a) by having regard to the contents of the particular document, or (b) by the fact that the document belongs to a class which on grounds of public interest, must as a class be withheld from production."
He gave an example of a justifiable class claim (at p 642): "where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service". Lord Reid, in Conway v Rimmer, said (at p 952) that he did not doubt "that there are certain classes of documents which ought not to be disclosed whatever their content may be". He instanced "Cabinet minutes and the like".
In Duncan v Cammell Laird, the House of Lords held that it was not open to the court to go behind a Minister's statement that damage to the public interest would be caused by production of the documents in question. The Minister's statement on the matter was held to be conclusive. On this point, but only on this point, the House of Lords in Conway v Rimmer disagreed. They held it was open to the Court to require the documents in question to be produced for the Court's inspection and then for the Court itself to decide whether or not the requirements of justice in the case overrode the particular public interest invoked by the Minister in claiming immunity from production of the documents. This decision introduced, therefore, the so-called balancing exercise. Pre-Conway v Rimmer any balance between the requirements of justice on the one hand and the public interest against disclosure on the other hand would have been struck, if it was struck at all, by the Minister. The Minister's certificate that the public interest required the documents to be withheld from production could not be challenged. But post Conway v Rimmer the final decision as to where, on balance, the public interest lay was with the Court.
But, as I have already said, these were both civil cases. Such references to criminal cases as may be found in the speeches in the two cases do not suggest that the principles being enunciated were thought to apply also to criminal cases.
In Duncan v Cammell Laird Viscount Simon said that (at pp 633- 634):
"The judgment of the House in the present case is limited to civil actions and the practice, as applied to criminal trials, where an individual's life or liberty may be at stake, is not necessarily the same."
That seems a clear enough indication.
Viscount Simon, cited with approval a passage from the judgment of Eyre CJ in R v Hardy (1794) 24 St Tr 199, a criminal case:
"...if it can be made to appear that really and truly it is necessary to the investigation of the truth of the case that the name of the person [i.e. the informer] should be disclosed, I should be very unwilling to stop it."
In 1956 the then Lord Chancellor, Lord Kilmuir, in a statement to the House of Lords on said that:
"We also propose that if medical documents, or indeed other documents, are relevant to the defence in criminal proceedings Crown privilege should not be claimed".
Lord Reid referred to this statement in his speech in Conway v Rimmer and then, in countering the argument that if the documents were not protected from disclosure "freedom and candour of communication" would be prejudiced, said (at p 942):
"So we have the curious result that freedom and candour of communication is supposed not to be inhibited by knowledge of the writer that this report may be disclosed in a criminal case but would still be supposed to be inhibited if he thought that his report might be disclosed in a civil case."
This remark seems to me to make it clear that Lord Reid did not regard the Crown privilege being claimed in the Conway v Rimmer malicious prosecution action as being any bar to disclosure of the documents if relevant to a criminal trial.
Lord Pearce, in Conway v Rimmer, made a remark to the same effect. He said (at p 987):
"Moreover if, as at present [the document] may be disclosed in criminal proceedings, then there is already an outside chance of disclosure".
It seems to me clear enough that in 1968, when Conway v Rimmer was decided, it was accepted that different principles applied in criminal proceedings. I would refer again to Marks v Beyfus decided in 1890. Lord Esher made it clear that "if disclosure...is necessary or right in order to show the prisoner's innocence" the information about the informer would have to be disclosed. Lord Justice Bowen, in the same case, said that (at p 500):
"The only exception to such a rule [i.e. the rule against disclosure of an informant's name] would be upon a criminal trial, when the judge if he saw that the strict enforcement of the rule would be likely to cause a miscarriage of justice, might relax it (in favorem innocentiae;) if he did not do so, there would be a risk of innocent people being convicted".
Marks v Beyfus was decided nearly eighty years before Conway v Rimmer. But it is plain that the decision whether the information or documents relating to the informer would have to be disclosed was one that would be taken by the judge presiding over the criminal trial. The notion that a Minister's certificate would be conclusive plainly never applied to criminal trials. Marks v Beyfus was referred to with express approval by Lord Reid in his judgment in Conway v Rimmer.
But compare those dicta of Lord Esher and Bowen LJ., describing the approach in criminal cases, with Lord Reid's description of the balancing exercise to be carried out in civil cases. Lord Reid said (at p 940):
"There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done."
He pointed out that (ibid):
"There are many cases where the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it [but] there are many other cases where the possible injury to the public service is much less and there one would think that it would be proper to balance the public interests involved."
Is the balancing exercise described by Lord Reid in the passages I have just cited, reconcilable with the insistence in Marks v Beyfus that, if disclosure is necessary to show the innocence of the accused, disclosure must be permitted?
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In R v Hallett  Crim LR 462, Lord Lane CJ referred to the "rule of exclusion" that barred the disclosure of information that might identify informants and then went on:
"...it is a rule which excludes evidence as to the identity of informants, unless the judge comes to the conclusion that it is necessary to override the rule and to admit the evidence in order to prevent a miscarriage of justice and in order to prevent the possibility that a man may by reason of the exclusion, be deprived of the opportunity of casting doubt on the case against him".
Lord Lane concluded that "if the judge does come to the conclusion that the lack of information as the identity of the informer is going to cause a miscarriage of justice, then he is under a duty to admit the evidence". Is this conclusion consistent with a balancing exercise under which "the nature of the injury which would or might be done to the nation or the public service [may be] of so grave a character that no other interest, public or private can be allowed to prevail over it"? I do not think so.
In R v Agar  2 All ER 442, Lord Justice Mustill (as he then was) said (at p 448):
"There was a strong, and absent any contrary indication, overwhelming public interest, in keeping secret the source of information: but, as the authorities show, there was an even stronger public interest in allowing a defendant to put forward a tenable case in its best light".
In R v Clowes  3 All ER 440, Mr Justice Phillips (as he then was) made the point that I have been endeavouring to make. He said (at p 454):
"I do not find easy the concept of a balancing exercise between the nature of the public interest [against production of the documents] on the one hand and the degree and potential consequences of the risk of a miscarriage of justice on the other".
It is, of course, inherent in the "balancing exercise" to be carried out in a civil case in which a PII claim has been made that the weight of the public interest factors relied on as justifying the withholding of documents may require that the documents be withheld from the litigant who requires them notwithstanding that they may be crucial to his case. The passage I have cited from Lord Reid's judgment in Conway v Rimmer makes that clear. But is this ever a possibility in a criminal case? On the authority of Marks v Beyfus, R v Hallett and R v Agar, I would say 'No'.
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(i) "...where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service ... and the minister feels it is his duty to deny access to material which would otherwise be available, there is no question but that the public interest must be preferred to any private consideration".(Viscount Simon in Duncan v Cammell Laird at p 642)
Could that have been said if "any private consideration" was that of a defendant in a criminal trial? Surely not.
(ii) "If ... national security would or might be imperilled by the production and consequent disclosure of certain documents, then the interest of a litigant must give way". (Lord Morris in Conway v Rimmer at p 955)
Could that have been said if the "litigant" were a defendant in a criminal trial? It could not.
(iii) "... if the production of a State Paper would be injurious to the public service, the general public interest must be considered paramount to the individual interest of a suitor in a court of justice" (Lord Morris in Conway v Rimmer at p 963)
A defendant in a criminal trial is not "a suitor in a Court of justice" but, in any event, the remarks could not possibly have been made with a defendant in a criminal trial in mind.
(iv) "...it is for the party seeking discovery to establish clearly that the scale falls decisively in favour of [the public interest in the administration of justice] if he is to succeed in his quest. If he fails, even material clearly 'necessary...for disposing fairly of the case or matter must be withheld". (Lord Wilberforce in Air Canada at p 442).
Could Lord Wilberforce have expressed this view if the party seeking discovery were a defendant in a criminal case? I am sure he could not.
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What has such a balancing process to do with the public interest that a defendant in a criminal trial should have a fair trial and that an innocent man should not be convicted. The suggestion that the public interest would ever have to give way in a balancing exercise is, to my mind, a grotesque one and is, moreover, one that is contradicted by the dicta in the criminal cases to which I have referred.
But, if that is so, what should be the approach to PII claims made in criminal trials?
In answering that question recourse should, I suggest, be had to first principles rather than to principles distilled from the seminal civil cases to which I have referred.
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In a 1993 case, R v Melvin (unreported), Mr Justice Jowitt referred to the following passage from the Court of Appeal judgment in R v Ward  1 WLR 619 at 642:
"The obligation to disclose only arises in relation to evidence which is or may be material in relation to the issues which are expected to arise, or which unexpectedly do arise, in the course of the trial".
Mr Justice Jowitt drew particular attention to the adjective "material" and went on to say this:
"I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly to raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."
This test of materiality has been expressly approved and adopted in two Court of Appeal cases. In R v Keane  1 WLR 746, the Lord Chief Justice, Lord Taylor, said (at p 752) that:
"The prosecution must identify the documents and information which are material according to the criteria set out above [i.e. Mr Justice Jowitt's criteria]. Having identified what is material, the prosecution should disclose it unless they wish to maintain that public interest immunity or other sensitivity justifies withholding some or all of it."
In R v Brown (Winston)  1 WLR 1599 Lord Justice Steyn (as he then was) referred to "The right of every accused to a fair trial" and observed that "in our adversarial system, in which the police and prosecution control the investigatory process, an accused's right to fair disclosure is an inseparable part of his right to a fair trial". After citing the passage from Mr Justice Jowitt's judgment in R v Melvin which had been adopted by the Lord Chief Justice in R v Keane as correctly stating the test of materiality for disclosure purposes, Lord Justice Steyn continued (at p 1606):
"This is a test which we would also adopt. It might be helpful, however, if we added a few comments under two headings. In the first place the phrase 'an issue in the case' must not be construed in the fairly narrow way in which it is used in a civil case. It must be given a broad interpretation".
The application of Mr Justice Jowitt's criteria, adopted and applied by the Court of Appeal in R v Keane and R v Brown (Winston) will identify the documents that, subject to PII claims, must be disclosed to the defence. It is worth reminding oneself of the reason why "material" documents have to be disclosed. It is in order to avoid the possibility that the defendant may, for want of the documents in question, be unable to pursue, or effectively to pursue, or to decide whether to pursue, a particular issue and that a miscarriage of justice may consequently be caused. But the breadth of the disclosure required by Jowitt J's criteria of 'materiality' makes it at least highly likely that among the "material" documents will be found some whose potential to provide assistance to the defence will not be apparent. Some, indeed, may be positively harmful to the defence. Relevance is, after all, a strictly neutral concept. Similarly a PII claim may well cover documents with an apparent potential to assist the defence as well as others whose potential to assist the defence is not apparent.
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In criminal trials, once it has been decided that a document might be of assistance to the defence, that should be the end of the PII claim. If that is so, there is only one issue for decision when a PII claim is made in a criminal trial in respect of "material" documents, namely, is there a real possibility (as opposed to a fanciful one) that the documents might be of assistance to the defence.
The present tenor of authority is that a judge adjudicating on a PII claim at a criminal trial does conduct a balancing exercise. In R v Clowes, Mr Justice Phillips expressed himself to be doing so (at p 454). But he rejected the PII claims. He said (at p 455):
"... the likelihood of the [documents] containing additional material evidence is sufficient to justify upholding the witness summonses in the face of the public interest immunity involved".
He was not prepared to run the risk that the withholding of the documents might lead to a miscarriage of justice.
In R v Keane, the Lord Chief Justice said that "if the disputed material may prove the defendant's innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it".
In R v Brown (Winston), Lord Justice Steyn said that (at p 1608) "...the judge must always perform a balancing exercise taking into account the public interest and the interests of the defendant", but he went on to cite the passage from Lord Taylor's judgment in R v Keane that I have just cited.
It does not, perhaps, matter whether or not the process required to be performed by judges in criminal trials when dealing with PII claims is referred to as a balancing exercise. I would not myself so describe it. The reason I would not do so is that the weight of the public interest factors underlying the PII claim cannot, or should not, be allowed to tip the scale. R v Keane and R v Brown (Winston) concerned documents which might assist the defence. A document which might be of assistance to the defence would, I think, necessarily be a document that might "prove the defendant's innocence or avoid a miscarriage of justice." The dicta of the Lord Chief Justice in R v Keane and of Lord Justice Steyn in R v Brown (Winston) suggest that it is not possible to have public interest factors in favour of non-disclosure whose weight can tip the scale against disclosure of such documents. If that is an accurate assessment, then the only question on a PII claim in a criminal case is whether the documents might be of assistance to the defence. If the posing of that question and the reaching of an answer are to be described as carrying out a balancing exercise, so be it. But it is important to recognise that it is a balancing exercise of a very different character from that performed in civil cases.
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"To date the Services [i.e. the SIS and the Security Service] have had no real difficulties protecting their sensitive information from disclosure by relying on contents claims."
He added that "if any information held by the Services was relevant to the issues in any criminal trial it [would be], in my view, inconceivable that the Court would weigh the balance in favour of a class claim". I entirely agree.
Later in his evidence, he said:
"I am concerned that the use of class claims undermines the credibility of the Services. The Services obtain information in the same way as law enforcement agencies (but usually in a more intensive and long term manner). Agents are used, surveillance is deployed, eavesdropping and clandestine searches are made. These matters will not protect something that is relevant to the issues."
In short, in Mr Bickford's view, which I share, any genuinely sensitive material can be protected by contents claims. Seeking PII protection by means of class claims is not necessary for protecting sensitive material.
The second reason why, in my view, PII class claims should not be made in criminal cases is that experience has shown that the existence of class claims has encouraged Government to seek protection for ever expanding categories of documents.
Lord Upjohn in Conway v Rimmer referred to(at p 993):
"documents which by their very nature fall in a class which require protection such as, only by way of example, Cabinet papers, Foreign Office dispatches, the security of the State, high level interdepartmental minutes and correspondence and documents pertaining to the general administration of the naval, military and air force services."
Lord Salmon in the Burmah Oil case referred to (at p 1121):
"Classes of documents which are immune from production because their production would imperil the safety of the state or diplomatic relations, and also classes of documents such as Cabinet minutes and others whose immunity from production is considered necessary for the proper functioning of the public service."
Lord Wilberforce said in the Air Canada case that (at p 437):
"the documents now in issue...can claim to bear a higher degree of confidentiality than those involved in Burmah: they relate directly to the making of decisions as to government policy in a sensitive area, viz. the economic and financial policy of the government..."
Whether, in the absence of any sensitive contents that would qualify for PII protection on a contents basis, documents in these classes do require PII protection is a matter for debate and not here in point. What is in point is that the documents contemplated as qualifying for PII protection on a class basis are, broadly speaking, documents relating to matters of high policy. And yet, in both the Matrix Churchill case and in the Ordtec case (at trial, not at the appeal) PII protection was claimed on a class basis for a number of documents that could not possibly have been described as relating to "high policy". The lawyers in the Treasury Solicitor's Department who were responsible for advising on the PII claims took the view that PII class protection should be claimed for any documents relating to advice given by an official to a Minister, whether relating to formulation of policy or to the taking of an executive decision. In oral evidence given at my Inquiry, one of their lawyers expressed the opinion that:
"... it is regarded as damaging for the public interest that any of this process [i.e. the process of advising Ministers and decision making] should be exposed...."
He was asked, "Is this approach bred of a desire for convenient administration?"
He answered, "I think so, yes."
He amplified his answer thus:
"It would be very difficult to distinguish between degrees of policy advice, whether it is of a high or medium level, and the tendency is to regard all advice on policy of significant importance as being within the class. As a result, a cautious approach is followed, and all documents of such nature are claimed to be within the class.
The damage to the public interest, if the class did not exist, would be the exposure of the decision making process."
Is this what the Law Lords who gave the several judgments in the House of Lords cases to which I have referred had in mind in endorsing the making of PII class claims? I do not think so.
Whether judicial authority supports the making of class claims in civil cases in respect of government documents of the nature of some of those for which PII protection was sought in the Matrix Churchill case, seems to me very doubtful. But even assuming that these PII class claims would have been justifiable in a civil case, they ought not, in any opinion, to have been made at a criminal trial.
I have already observed that, strictly, PII only arises in respect of documents whose relevance to the issues in the case would otherwise require their disclosure. Wide criteria of relevance are now, under the authority of Keane and Brown (Winston) applied in criminal cases. One of the reasons and justifications for the very wide ambit of disclosure of documents required in criminal cases is, I believe, that the selection of documents that, although relevant to an issue in the case, can safely be withheld from the defence without the risk of a miscarriage of justice is often very difficult. An error in selection, however justifiable it may seem at the time, may later transpire to have been prejudicial to the defence and to the fairness of the trial. So if, in criminal cases, documents are material and prima facie disclosable, they ought, I suggest, to be disclosed unless they have a sensitivity of content that would justify a PII contents claim. Moreover, experience does suggest that if PII class claims continue to be sanctioned in criminal trials, Whitehall departments will inevitably seek to bring within the recognised classes an increasing range of documents. I see no realistic reason to suppose that the instinctive Whitehall reaction to seek to withhold Government documents from public inspection is likely to change.
In my opinion, whatever the justification and authority for PII class claims in civil cases, PII claims in criminal trials should be confined to contents claims. Class claims should not be allowed.
There is a further point which distinguishes PII claims in civil cases from those in criminal trials. In a civil case (including a habeas corpus application of the ex parte Osman variety), if an order for disclosure of documents is made the case will continue on foot with the material in question disclosed to the parties. In a criminal case, on the other hand, an order for disclosure will not necessarily lead to the disclosure of the documents. The prosecuting authority, will have the option of discontinuing the prosecution in order to safeguard the material from disclosure. In a civil case between private litigants, the government, the police or other public authority seeking to resist disclosure will, once the PII claim has been rejected have no means of avoiding disclosure. The option of discontinuing the case will not be available.
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