R v H and Another

JurisdictionEngland & Wales
Judgment Date16 October 2003
Neutral Citation[2003] EWCA Crim 2847
Docket NumberNo: 200305303/B5200305458/B5
CourtCourt of Appeal (Criminal Division)
Date16 October 2003

[2003] EWCA Crim 2847



Royal Courts of Justice


London, WC2


The Vice President

(lord Justice Rose)

Mr Justice Penry Davey

Mr Justice David Clarke

No: 200305303/B5200305458/B5

Interlocutory Application Under Sections 35 & 36 Of The Criminal Procedure And Investigatgion Act 1996
H & C

MR L SMITH & MR J LENNON appeared on behalf of H

MR R HOWAT & MISS T TAGON appeared on behalf of C

MR D PERRY & MR S MORRIS appeared on behalf of the CROWN



There are before the Court interlocutory appeals, under section 35(1) of the Criminal Procedure and Investigations Act 1996, against rulings made at Sheffield Crown Court on 15th September 2003, by His Honour Judge Murphy QC. Six defendants, one of whom has pleaded guilty, are indicted for conspiracy to supply heroin with a street value of £1.8 million. The trial is fixed to start before Judge Murphy on 27th October 2003 and is expected to last six weeks. All the defendants, apart from one who has pleaded guilty, are on bail.


On 11th and 12th September there was a preparatory hearing, under section 29(1) of the Act, to expedite the proceedings before the jury and to assist in the management of the trial. This led to the judge ruling, on 15th September, first, that a public interest immunity (PII) enquiry sought by the prosecution should not be conducted inter partes and in open court and, secondly, that a special independent counsel should be appointed to introduce an adversarial element to the PII hearing. The purpose of this was to avoid a possible violation of Article 6(1) of the European Convention on Human Rights, in the light of the judgment of the European Court of Human Rights in Edwards & Lewis v United Kingdom (applications number 39647/98 and 4O461/98, 22nd July 2003).


One of the defendants, C, with leave of the judge, appeals against the first ruling. The Crown, with leave of the judge, appeals against the second. This is the first occasion that this Court has considered the effect of Edwards & Lewis, which has a potential impact on all those Crown Court cases in which the prosecution make a PII application. We know of another case since Edwards & Lewis in which the judge, after hearing a PII application, has recused himself from conducting a trial and ordered a stay of proceedings. There is an appeal in another similar case imminently pending in this Court. Judge Murphy expressed the hope that this Court could establish some ground rules as to the application of Edwards & Lewis. We shall endeavour to do so in the light of the submissions which we have heard.


It is convenient, first, to set out, as shortly as possible, the statutory and common-law principles and the Attorney-General's guidelines as to disclosure and PII hearings which, it is largely common ground, provide the English domestic regime. We shall also refer to the different views expressed in two judicial reports, one of which was before the Strasbourg Court in Edwards & Lewis.


In addition to disclosing the material on which it intends to rely at the trial, the prosecution must, by virtue of the Criminal Procedure and Investigations Act 1996, by section 3(1), make primary disclosure of other material which, in the prosecution's opinion, might undermine the case for the prosecution. The defence must, by s.5 subsections (5) and (6), provide a defence statement setting out, in general terms, the nature of the accused's defence and indicating the matters on which he takes issue with the prosecution and why. The prosecution then comes under a duty, under section 7, to make secondary disclosure of any previously undisclosed material which might reasonably be expected to assist the accused's defence as disclosed by the defence statement. The prosecution, under section 9(2), and the court, under section 15(3), are under a continuing duty to review questions of disclosure. The Act addresses PII in relation to primary and secondary disclosure (see sections 3(6), 7(5), 8(5) and 9 (8)) and also contemplates the discontinuance of the proceedings as a possible result of an order for disclosure (see section 14(2)(b) in relation to the Magistrates' Court and section 15(2)(b) in relation to the Crown Court).


The prosecutor may apply to the Court for an order excusing him from the disclosure obligation on the basis of PII. The Court is then required to weigh the competing interests and decide whether or not material should be disclosed. Rules of Court made pursuant to section 19 of the Act set out the procedure for making such an application. Those are, in relation to the Crown Court, the Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997 SI 1997 698 and, in relation to Magistrates' Courts, The Magistrates' Court (Criminal Procedure and Investigation Act 1996) (Disclosure) Rules 1997, SI 1997 703. The rules are modelled on the procedure set out in Johnson, Davis & Rowe [1993] 1 WLR 613. Rule 3.4 of the Crown Court Rules expressly contemplates a judge hearing prosecution representations in the absence of a defendant and his lawyers.


The principles of the common law as to whether disclosure is in the public interest are expressly retained by section 21(2) of the Act, namely the judge must rule on immunity having viewed the material for which PII is claimed and, in doing so, must perform a balancing exercise taking into account the public interest and the interests of the defendant. If the disputed material may prove the defendant's innocence or avoid a miscarriage of justice, then it must be disclosed, or the proceedings must be stayed or modified. The case law also makes it clear that the categories of PII are not closed and that sensitivity alone is not a valid reason for withholding information from the defence (see D v NSPCC 1978 AC 171 and R v Chief Constable of the West Midlands Police Force, ex parte Wiley (1995) 1 Cr App R 342). We should refer to two other authorities. In Turner (1995) 2 Cr App R 94, Lord Taylor CJ, at 97G said this:

"We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure …there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary."


In R v Joe Smith [2001] 1 WLR 1031, the Court of Appeal held that there is no principle in English law that a judge cannot use information obtained during a PII investigation to determine whether or not the police had reasonable suspicion that the defendant had committed the offence or had reasonable cause to arrest him. They held that there was no violation of the defendant's Article 6 rights. A question was certified for the House of Lords, the Appellate Committee of which, following oral argument, refused leave to appeal. It has been submitted before us, on behalf of the defendants, that this decision, which is of course binding on this Court, is incompatible with Edwards & Lewis.


In November 2000 the Attorney-General issued new guidelines on the disclosure of information in criminal proceedings. Paragraphs 41 and 42 deal with "applications for nondisclosure in the public interest" and provide:

"Before making an application to the court to withhold material which would otherwise fall to be disclosed, on the basis that to disclose would not be in the public interest, a prosecutor should aim to disclose as much of the material as he properly can (by giving the defence redacted or edited copies of summaries).

Prior to or at the hearing, the court must be provided with full and accurate information. The prosecution advocate must examine all material which is the subject matter of the application and make any necessary enquiries of the prosecutor and/or investigator."


It is important to set those guidelines in the context of prosecuting counsel's proper role.


In that regard, in Randall v R [2002] 2 Cr App R 267, in giving the judgment of the Privy Council, Lord Bingham of Cornhill, at 273, said this:

"The duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice [authorities are cited]. The prosecutor's role was very clearly described by Rand J in the Supreme Court of Canada in Boucher v R (1954) 110 Can CC 263 at 270:

'The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the judicial proceedings."


Finally, in regard to the common law, it is to be noted that in R v Botmeh & Alani [2002] 1 Cr App R 345, the Court of Appeal held that there was no breach of Article 6 if the Court of Appeal examined material ex parte, where that material had not been the subject of a PII application before the trial judge. It has not been suggested to us that that decision was wrong.


Auld LJ's Review of the criminal courts of England and Wales was published in October 2001. In relation to PII...

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