Public Interest Immunity and Disclosure of Unused Materials in Criminal Proceedings

Published date01 February 2000
Date01 February 2000
AuthorHelen H.Y. Lee
Subject MatterAccounting & finance
Journal of Financial Crime Vol. 7 No. 4 Briefings
Public Interest Immunity and Disclosure of Unused
Materials in Criminal Proceedings
Helen H. Y. Lee
This paper focuses on public interest immunity (PII)
and disclosure of unused material in the context of
criminal proceedings. PII used to be referred to as
Crown privilege1 and was hardly ever raised in con-
nection with criminal proceedings until 20 years ago.
Nowadays, PII issues are often raised in connection
with criminal proceedings, particularly during the
process of disclosure of unused material for the
purposes of criminal trials.
The obligations and principles regarding disclosure of
unused material by the prosecution to the defence
arose out of the common law duty to make full
and timely disclosure to the defence of all material
evidence, whether to be used by the prosecution at
the trial or otherwise, and whether it strengthens or
weakens the prosecution
The law and practice in this area have undergone
rapid changes in the last two decades. In the UK,
there were several attempts to introduce legislative
amendments concerning the duty of the prosecution
to provide information to the defence.3 These were
followed by various reports touching on the
leading to the 1982 Attorney General's Guidelines for
the Disclosure of Unused Material to the Defence in
England and Wales ('1982 Guidelines'). The 1982
Guidelines were also used for reference by many
common law jurisdictions such as Hong Kong,5
until they were replaced by the Criminal Procedure
and Investigations Act 1996 after much criticism in
the UK courts in the early 1990s. Particularly for
those common law jurisdictions which do not have
the benefit of similar statutes, it is useful to trace the
developments of the common law in this
The 1982 Guidelines principally referred to differ-
ent types of statements as 'unused materials' (although
'documents' were also referred to). The requirement
was that normally all unused material which has
some bearing on the offences charged and the sur-
rounding circumstances of the case should be disclosed
to the defence. The exceptions to disclosure of state-
ments include any statement 'which is, to a greater or
lesser extent, "sensitive" and for this reason it is not in
the public interest to disclose it'. (There appeared to
be no consideration given to 'documents' which are
not statements or referred to in statements.)
The examples given in the 1982 Guidelines as state-
ments containing sensitive material include those that
deal with national security, disclose identity of infor-
mants or unusual forms of surveillance or methods of
detecting crime, and statements supplied only on
condition that the contents will not be disclosed.
These statements form a large part of the different
categories of documents which may be subject to
more details are set out in the next section.
The 1982 Guidelines were considered in 1989 in R v
Saunders7 when a defence application was made
for disclosure by the Serious Fraud Office (SFO) of
'preparatory material', namely, notes made by inves-
tigators in interviewing witnesses, tape recordings of
interviews and their transcripts, and drafts of state-
ments. The SFO sought to withhold disclosure of a
large part of the preparatory material which in their
view would not assist the defence. The judge held
that all documents and statements gathered or created
by investigators were potentially disclosable and that
relevance was a matter for the defence.
The implications of the case on prosecutions of
economic crime, and for agencies such as the SFO,
were considerable, as disclosure of unused materials
in these cases usually involves an enormous volume of
documents to gather, list, disclose or resist disclosure.
Consequently, the Crown Prosecution Service
(CPS) set up a working party, consisting of senior
CPS lawyers and police officers, which reported to
the DPP in 1992. Later the same year, the DPP
Journal of Financial Crime
Vol 7 No 4,2000,pp 330-335
©Henry Stewart Publications
ISSN 0969-6453
Page 330

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