What Next for Public Interest Immunity?
| Author | Chris Taylor |
| DOI | 10.1350/jcla.69.1.75.58955 |
| Published date | 01 February 2005 |
| Date | 01 February 2005 |
| Subject Matter | Article |
What Next for Public Interest
Immunity?
Chris Taylor*
Abstract This article examines recent developments in the law of public
interest immunity (PII), a mechanism for the non-disclosure of sensitive
material to the defence which continues to cause concern as a potential
source of injustice. The article considers the lessons to be learned from
recent decisions, most notably the London City Bond cases which saw a
large number of prosecutions tainted by misuse of PII. This series of cases
illustrated the ethical dilemma faced by investigators anxious to preserve
covert intelligence sources, primarily informants, and the way in which
the courts may be misled during PII applications in order to avoid jeopar-
dising the prosecution. The article then considers a number of recent
domestic and European decisions which have sought to refine the proce-
dure for considering PII applications in order to evaluate their impact on
the trial process and the administration of justice.
If anything has been learned from the miscarriages of justice of the past
30 years it is that effective pre-trial disclosure is central to the notion of
a fair trial.1Yet, despite the critical importance of this aspect of the
criminal justice system, the process has rarely been free of controversy.
It is widely accepted that the current procedures for disclosure, as set out
in the Criminal Procedure and Investigations Act 1996 (CPIA), have
never operated as originally intended,2leaving the enduring suspicion
that potentially vital information may be withheld from the defence,
either innocently or otherwise. It is also clear that the reasons for this
persistent failure to address the issue of disclosure are to be found not
only in the provisions themselves but also in the operational cultures
and practices of the various protagonists.
Public interest immunity
One of the most contentious aspects of disclosure relates to the proce-
dures for safeguarding sensitive, unused material, generated by covert
intelligence sources, such as informants. The presence of such material
frequently results in prosecution applications for non-disclosure on
grounds of public interest immunity (PII). The impact of an increase in
* Senior Lecturer in Law, Leeds Metropolitan University.
1 In this context ‘disclosure’ means the process by which the prosecution alerts the
defence to the existence of ‘unused material’ gathered during the investigation.
Such material does not form part of the prosecution case, but may have the effect
of either undermining the prosecution case or assisting the defence.
2 This is the conclusion of all of the major studies of CPIA disclosure to date. Law
Society, CPIA 1996 Disclosure Provisions Survey (1999); British Academy of Forensic
Sciences and the Criminal Bar Association, Survey of the Practising Independent Bar
into the Operation in Practice of the Criminal Procedure and Investigations Act 1996
Disclosure Provisions (1999); Crown Prosecution Service, Inspectorate Report on the
Thematic Review of the Disclosure of Unused Material (2000); J. Plotnikoff and R.
Woolfson, A Fair Balance? Evaluation of the Operation of Disclosure Law (HMSO:
London, 2001).
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