The Courts and Applications for Public Interest Immunity: R v H and C

Date01 July 2004
DOI10.1350/ijep.8.3.179.40871
Published date01 July 2004
Subject MatterCase Note
E&P-8-3.pmd CASE NOTES
The courts and applications for public
interest immunity: R v H and C
By Chris Taylor
Leeds Metropolitan University
A lthough advance disclosure in criminal cases in the United Kingdom is
now governed by the Criminal Procedure and Investigations Act 1996
(CPIA),1 the statute specifically preserved the common law rules where
disclosure is opposed by the prosecution on the grounds that it would be injurious
to the public interest.2 In R v H and C3 the House of Lords considered the extent to
which these procedures for claiming ‘public interest immunity’ (PII) were
compliant with the right to a fair trial under Article 6 of the European Convention
on Human Rights.4 This followed the ruling of the European Court of Human
Rights in Edwards and Lewis v United Kingdom5 which had been relied on by the
defence before the Court of Appeal.
The facts
Both applicants faced charges relating to the supply of heroin and, as part of
their defence, sought prosecution disclosure of material relating to any covert
1 In conjunction with the Attorney General’s Guidelines: Disclosure of Information in Criminal
Proceedings, 29 November 2000 (published by the Legal Secretariat to the Law Officers and
available at www.lslo.gov.uk/pdf/guidelines/pdf (accessed 20 May 2004)).
2 CPIA, s. 21(2). For a more detailed overview of the role of public interest immunity see D. Ormerod,
‘Improving the Disclosure Regime’ (2003) 7 E & P 102–29.
3 [2004] UKHL 3.
4 In particular, the rights of the accused under Article 6(3)(a) ‘to be informed promptly, in a
language which he understands and in detail, of the nature and cause of the accusation against
him’; and under Article 6(3)(d) ‘to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him’.
5 Application Nos 39647/98 and 40461/98, 22 July 2003.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
(2004) 8 E&P 179–185
179

CASE NOTES
intelligence sources, including surveillance, conducted during the police
investigation. Disclosure was resisted by the prosecution which claimed PII for
the documents in question. The defence argued, however, that access to such
material was essential as their case centred on allegations of serious misconduct
by the investigating officers. The purpose of such disclosure, therefore, was to
support an application for exclusion of the surveillance evidence under s. 78 of
the Police and Criminal Evidence Act 1984.6
At a preparatory hearing,7 defence requests that disclosure of the sensitive
material be decided inter partes in open court were rejected, leaving the established
procedures for ex parte applications8 in accordance with the principles set out in
R v Davis, Rowe and Johnson9 and R v Keane.10 However, the defence sought to rely on
the recent judgment of the European Court of Human Rights in Edwards and Lewis
v United Kingdom11 which, it was argued, required the appointment of independent
special counsel to safeguard the interests of the defendants at any ex parte
proceedings where the disclosure of such material was to be decided. Concluding
that failure to do so could constitute a violation of Article 6 and without either
examining the material in detail or considering its relationship to the submissions
being made, the trial judge agreed.
In overturning this decision,12 the Court of Appeal granted leave for H and C to
appeal to...

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