Matrix Churchill and Public Interest Immunity

DOIhttp://doi.org/10.1111/j.1468-2230.1993.tb01887.x
Date01 July 1993
Publication Date01 July 1993
AuthorGabriele Ganz
Matrix Churchill
and Public Interest Immunity
Gabriele Ganz"
Last year, in the much-publicised
Matrix Churchill
case, three executives of the
company were charged with illegally supplying arms-making equipment to Iraq.
The case went to trial but the prosecution collapsed after Mr Alan Clark, the former
Minister
of
State for Defence Procurement, admitted in cross-examination that he
supported the allegedly unlawful sale.
The
Matrix Churchill
affair is already something of a cause cCl&bre in legal circles.
However, its notoriety does not lie so much in the Minister's surprising admissions
under cross-examination, as in the Government's declared position on public interest
immunity. Four Ministers' having signed public interest immunity certificates in
relation to documents pertaining to the case, it was asserted by the Attorney-
General2 (and by other
minister^,^
including the Prime Ministep) that the Ministers
had a duty to claim public interest immunity for such documents and that this duty
cannot be waived. This assertion, which continues to be made, must be refuted.
It is not based on authority (despite the views expressed by
two
of the defence counsel
in a letter to
Re Timess)
and it goes against the spirit as well as the letter of recent
developments in the law of public interest immunity.
In his statement to the House of Commons on 10 November 1992, the Attorney-
General said:
It is the law expressly enunciated by the courts, that Ministers have a duty to claim public
interest immunity either in respect of specific documents or recognised classes of document,
the production of which would in principle be contrary to the public interest. This duty cannot
be waived. Once a proper claim has been made, it is for
the
court to
look
at the papers if
it thinks fit, to balance the competing public interests and to determine whether the interests
of justice in the particular case require disclosure of some or all of the documents in issue.
Such a claim must be made irrespective of whether it is embarrassing to the Government
either to reveal or to withhold. In this case, it was at the express invitation of prosecuting
Counsel that the judge looked at
all
the material before he made his ruling.
Almost every one of these assertions is questionable.
In a letter to
The Times
on 13 November 1992, the Attorney-General expanded
on his statement to the House and paraphrased in support the words of Bingham
W
in
Makanjuola
v
Metropolitan Police Commissioner?
Public interest immunity is not a trump card vouchsafed to certain privileged players. It is
an exclusionary rule, applying equally to all parties to litigation and irrespective of whether
it helps or hinders them, whereby certain classes of documents are immune from production
if harm may thereby be done to the operation
of
the public service.
However, the assertion by Bingham
LJ
that public interest immunity cannot be waived
was made in a totally different context from the
Matrix Churchill
case.
*Professor of Law, University of Southampton.
1
2
3
4
5
6
Namely, Mr Kenneth Clarke, Mr
Tristan
Garel-Jones, Mr Michael Heseltine and Mr Malcolm Rifkind.
HC Deb vol 213, col 743
(10
November 1992).
HC Deb
vol
214, col 640
seq
(23 November 1992).
HC Deb vol 213, col 987 (12 November 1992).
The
Times,
13 November 1992.
[1992] 3
All
ER
617, 623.
5
64
0
The
Modern
Law Review Limited
1993

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