Balancing Public Interest and a Fair Trial in Police Informer Privilege: A Critical Australian Perspective
| DOI | 10.1177/136571270200600202 |
| Published date | 01 March 2002 |
| Author | Henry Mares |
| Date | 01 March 2002 |
| Subject Matter | Article |
Balancing
and
a
fair public interest
trial
in police
I
ntor
mer
privilege
:
A
critical Austra
I
ian
per
spec
t
ive
By
Henry
Mares’
Faculty
of
Law, The Australian National University
Abstract
The name of a police informer is not to be revealed in court
unless certain conditions are met. What this article shows is that the
historical basis for this rule of evidence, ‘the informer rule’, is not
particularly authoritative, that the rule has changed over the past
200
years, most recently in favour of the prosecution, that it is not well
defined, and that it may not be appropriately applied. Despite widespread
agreement that an informant’s name must be revealed in certain
circumstances, this article shows that in practice Australian courts almost
never order that the name be revealed, and suggests a theoretical basis
for understanding why the procedural right to know the name of an
informer is subordinate to the perceived requirements of crime control.
History
of
the informer’ rule
he 18th century trial
of
Thomas Hardy
for
treasonZ
is
perhaps the
fundamental precedent in the area of the nondisclosure
of
the names
of
I
I-
1
2
Many thanks are due to John Seymour, Ben Clanchy. Angela Smith, Nisha Bajpe. Hugh Selby.
and especially to Simon Bronitt. All errors are solely the fault of the author.
One definition
of
informer, not exhaustive for these purposes, is provided by the NSW Director
of Public Prosecutions:
‘An
informer
is
a person (not being a victim
or
a primary witness) who
has given assistance to police
or
investigators as a consequence of knowledge that has come into
his
or
her possession through direct personal contact with an alleged offender’:
Prosecution
Guidelines.
NSW Director of Public Prosecutions. available via www.odpp.nsw.gov.au/. visited
Wednesday
6
February
2002,
and in
R.
Watson.
A.
M.
Blackmore. and
G.
S.
Hosking.
Criminal
Law
(NW.
vol.
2
(LBC: Sydney,
1996) 2-13560.
The
Trial of
Thomas
Hardyfor High
Treason,
before
the
Court
holden under
a
Special
Commission
of@m
and Terminer,
at
the Sessions House In the Old Balky:
35
George
111.
AD
1794. 24
St
Tr
199.
Hereafter
‘Hardy’s
Case’.
Generally on
Hardy’s
Case,
see A. Wharam.
The
Treason
Trials,
1794
(Leicester University
Press: London.
19921.
Note: this was neither Thomas Hardv the author, nor the friend ofAdmiral
94
THE INTERNATIONAL JOURNAL
OF
EVlDENCE
81
PROOF
BALANCING PUBLIC INTEREST AND
A
FAIR TRIAL
informers? The late 18th century in England was 'notoriously a time of great
political apprehension, in which criticism might be magnified into sedition, and
sedition into treason, in alarming geometrical progression': Throughout England,
'passions were being roused and sides taken in the war of ideas which the [French]
Revolution had let and this was the context
for
the trial of Hardy for high
treason in
1794.
Hardy had founded the London Corresponding Society, a society for reform, which
had, among other things, suggested a 'general convention of the people'6 and
'carried on an agitation
for
the establishment of universal suffrage and annual
parliaments'?
One George Lynham gave evidence at the trial that he had joined the society and
that he had reported his concerns about the society to a friend.8
At
the trial,
when Lynham was asked to whom the communications were made, the Attorney-
General objected? Hardy's counsel wanted to know the name to be able
inter
alia
to 'call that individual in order to show, peradventure that these reports had no
existence at that time'.Io Lord Eyre
CJ
held:
[I]f it can be made appear that really and truly it is necessary to the
investigation
of
the truth of the case that the name of the person
should be disclosed,
I
should be very unwilling to stop it
...I1
Nelson. On the meaning of a 'Special Commission of Oyer and Terminer' see J. Taylor, 'The
Health
Records
Case: Judicial 'Misprescription"?'
(1983) 5
Supreme Court
Law
Revtew
329
at
338.
n.
48.
On
'high treason' see e.g.
R.
West,
A
Discourse Concerning Treasons, and Bills ofAttainder.
2nd edn
(J.
Roberts: London.
1717) 12.
reprinted (Garland Publishing Inc.: London,
1978);
J. Stephen,
A
History
ofthe
Criminal
Law
ofEngland.
vol.
2
(Macmillan: London.
1883) 241
et seq.
On the authoritativeness
of the St Tr (State Trials) series of reports see W. Holdsworth.
A
History
of
English
Law.
vol.
12
(Methuen: London,
1938) 127-30;
J. Langbein. 'The Criminal Trial before Lawyers'
(1978) 45
University
of
Chicago
Law
Review
263
at
264-7.
Hardy was acquitted.
For example,
Hardy's Case
is cited in
Marks
v
Beyfus
(1890) 25
QBD
464
at
498.
per
Lord Esher
MR.
and at
500.
per
Bowen LJ.
Marks
v
Beyfus
is cited in
Jarvie
v
The Magistrates' Court
of
Victoria
at
Brunswick
[1995]
1
VR
84
at
89,
per
Brooking J, which is in turn cited in the International Criminal
Tribunal for the Former Yugoslavia,
Prosecutor
v
Dusk0
Tadlc:
Decision on the Prosecutor's Motion
Requesting Protective Measures for Victims and Witnesses
(10
August
1995) lT-94-1-T
at para.
55.
per
Judge McDonald.
H.
Hanbury. 'Equality and Privilege in English Law'
(1952) 68
LQR
173
at
181.
W. Holdsworth.
A
History
of
English Law.
vol.
13
(Methuen: London,
1952) 156.
Ibid. at
161.
J. Stephen,
A
History
of
the
Criminal
Law ofEngland.
vol.
2
(Macmillan: London,
1883) 275.
Hardy's Case
(1794) 24
St Tr
199
at
763-4
and at
807.
Ibid. at
808.
It appears unclear what the grounds for the objection were, other than that it was
a 'settled rule' not to divulge such information:
Hardy's Case
(1794) 24
St Tr
199
at
815.
Taylor,
above n.
2
at
341.
characterises it as an objection on the grounds of relevance. But. contra, see T.
Cooper.
Crown Mvilege
(Canada Law Book Inc.; Aurora, Ontario,
1990) 186.
10
Hardy's
Case
(1794) 24
St Tr
199
at
808.
It appears. contra Taylor, above n.
2
at
341.
that the inquiry
was to do with facts or issues as much as
with
the credit of the witness. Perjury at the time was
a real risk in such trials: see Holdsworth. above n.
5
at
161.
n.
3.
11
Hardy's Case
(1794) 24
St Tr
199
at
808,
per
Lord Eyre CJ.
THE INTERNATIONAL JOURNAL OF EVIDENCE
&
PROOF
95
To continue reading
Request your trial