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Public Interest Immunity: Recent and Future Developments

Published online by Cambridge University Press:  16 January 2009

Christopher Forsyth
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Extract

Public Interest Immunity—previously known as Crown privilege—is an exclusionary rule of evidence. When it applies, it excludes relevant evidence (usually but not exclusively documents) from production in court. Thus when the rule applies the public interest in the due administration of justice has given way to a greater public interest that calls for the evidence in question to remain secret. It has been much discussed recently, not least in the Scott Report which made several suggestions for reform and, more significantly, revealed in detail how PII claims were used by the government in litigation. The government has responded by announcing important reforms. A review of developments is thus appropriate.

Type
Shorter Articles
Information
The Cambridge Law Journal , Volume 56 , Issue 1 , March 1997 , pp. 51 - 59
Copyright
Copyright © Cambridge Law Journal and Contributors 1997

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References

1. PII only arises when disclosure of a relevant document, i.e., one that tends to prove or disprove afact in issue, is sought. In civil litigation the issues will have been defined in the pleadings and the parties are bound to discover and allow to be inspected all documents that advance their opponent's case (Compagnie Financiere El Commerciale Du Pacifique v. Peruvian Guano Co. [1882] 11 Q.B.D. 55; for the technical detail see R.S.C. Order 24) unless PII or legal professional privilege is claimed. In applications for judicial review there is no right to discovery (R.S.C, Order 53, rule 8(1)) but it is available “whenever and to the extent that the justice of the case requires” (per Lord Diplock in O'Reilly v. Mackman [1983] 2 AC. 237 at 282C). In criminal cases the position is now covered by Part I of the Criminal Procedure and Investigation Act 1996 which, broadly, imposes a duty to disclose to the accused any prosecution material “which in the prosecutor's opinion might undermine the case for the prosecution” (s. 3(1)); but disclosure does not have to be made of material in respect of which PII has been successfully claimed (s. 3(6)).

2. For instance, as in Cammell, Duncan v. Laird & Co. [1942] A.C. 624Google Scholar. The submarine Thetis had sunk in 1939 during sea trials with the loss of ninety-nine men. Their dependants sued the submarine builders and sought discovery of the plans of the vessel. This was successfully resisted by the Admiralty. After the war it was revealed that the submarine was equipped with a new type of torpedo tube.

3. See, Leigh, Ian and Lustgarten, Laurence “Five Volumes in Search of Accountability: The Scott Report” (1996) 59 M.L.R. 695.Google Scholar Also, the Autumn 1996 part of Public Law, [1996] P.L. 357–529, is dedicated to the issues arising from the Scott Report.

4. Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions (15 February 1996) (H.C. 115). This article will not address the many other issues discussed in the Scott Report (such as Ministerial Accountability).

5. Attorney-General's Statement to the House of Commons (HC Deb. vol. 287 cols. 949-958), and Lord Chancellor's statement to the House of Lords (HL Deb. vol. 576 cols 1507–17), 18 December 1996. See The Times, 19 December 1996. Prior to Conway v. Rimmer [1968] AC 910, it wascommon for official concessions on PII to be made by way of Parliamentary statement (see Wade & Forsyth, Administrative Law (7th ed., 1994), p. 844).

6. [1942] A.C. 624.

7. Wade & Forsyth, op. cit., p. 847.

8. Wade & Forsyth, op. cit., p. 848. Sir Richard Scott (at p. 1531) remarks, erroneously, that this passage “is not to be found in the current (7th) edition of Administrative Law”!

9. [1968] A.C. 910.

10. “he Acceptable and Unacceptable Use of Public Interest Immunity”, [1996] P.L. 427 at 438, hereinafter Scott, op. cit..

11. Per Lord Reid in Conway v. Rimmer [1968] A.C. 910 at 952.

12. Note 4 above.

13. G 18.49–51.

14. Scott, op. cit. at p. 436.

15. [1995] 1 A.C. 274.

16. [1981] Q.B. 736.

17. Indeed, they often make their statements with that purpose in mind. The court left open whether the final report of the investigating officer might not attract PH.

18. Indeed, complainants often refused to make witness statements in complaint proceedings until any civil claim against the police had been concluded. The reason for this was that the Chief Constable/respondent would have the complainant's statement (and other witness statements) available in countering the civil claim, yet PII meant that this material (including his own statement) was not available to the complainant/plaintiff!

19. [1992] 3 All E.R. 617 (decided in 1989). See also Air Canada and others v. Secretary of State for Trade and another [1983] A.C. 394 at 436A.

20. It is an agreeable irony that the same minister who gave this advice, Sir Nicholas Lyell, M.P., made the government announcement in the House of Commons abandoning it. See p. 56 n. 27 below.

21. G 18.52.

22. See the Scott Report, p. 1510; Volume III, G 18.61.

23. [1992] Q.B. 270 at 295. Pointed out by A.W. Bradley, [1992] P.L. 514 at 520.

24. [1980] A.C. 1090. Pointed out by Lord Woolf in Wiley.

25. Scott, op. cil., p. 444.

26. These include the Attorney-General, Lord Alexander of Weedon and the Law Lords Lloyd, Hailsham and Ackner (speaking extra-curially). Lord Bingham (extra-curially) has stood by his dictum in Makanjuola. For the detail see Leigh and Lustgarden, op. cit., p. 717, n. 136. For more considered academic support see T.R.S. Allan, “Public Interest Immunity and Ministers' Responsibilities” [1993] Crim. L. Rev. 660.

27. In R v. Chief Constable of West Midlands Police, ex p. Wiley [1995] 1 A.C. 274 Lord Woolf “unhesitatingly endorse[d]” “most” of what Bingham L.J. said in Makanjuola. But he also said that the dictum had been applied in ways that the judge did not intend. Indeed, later he said “if a Secretary of State…concludes that any public interest in documents being withheld from production is outweighed by the public interest in the documents being available for purposes of litigation, it is difficult to conceive that … the court would feel it appropriate to come to any different conclusion …” (p. 296). From this and similar dicta Sir Richard Scott concludes that “Makanjuola … has, happily, been given its quietus by the House of Lords in ex p. Wiley” (op. cit. p. 443). The government announcement also adopts the stance that ex p. Wiley has granted Ministers a “general discretion” to disclose documents where they judge that to be in “the overall public interest.”

28. See G 18.52. Leigh and Lustgarten, op. cit., p. 720.

29. [1994] 1 All E.R. 289.

30. Simon, Brown L.J. was aware of Makanjuola but considered Bennett a “very exceptional” case. He was also influenced by R. v. Governor of Brixton Prison, ex p. Osman (No. 1) [1991] 1 W.L.R. 281 at 288.Google Scholar

31. K6.16, p. 1788; G18.86, p. 1525.

32. For instance, suppression of the identity of informers. But the judge will order disclosure when necessary for the defendant to establish his innocence: Marks v. Beyfus (1890) 25 Q.B.D. 494 at 498.