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The noble Lord, Lord Carlisle of Bucklow, and I are very familiar with the counsel-to-counsel disclosures that used to take place without causing any problems at all. Then in the case of the R. v Governor of Brixton Prison, ex parte Osman in 1991, the Secretary of State at the Foreign Office sought public interest immunity for papers which had been handed to me, as I was involved in the case. They were protected by a public interest immunity certificate. For the first time, there was a firm declaration by the Court of Appeal. Lord Justice Mann said:
Whereas Crown privilege was something claimed by a prosecutor in respect of documents in the hands of the police, we have now introduced the concept of a third partya government departmentissuing public interest immunity certificates to protect disclosure in criminal proceedings.
In the case of Douglas shortly afterwards, the Court of Appeal stressed that the court itself must view the material in order to carry out an effective balancing exercise between the interests of justice and the interests of those claiming that the documents should not be disclosed.
In the case of Davis, Johnson and Rowe, three different procedures were then outlined. The prosecution could apply to the court and tell the defence, indicating the nature of the material, and the defence would have the opportunity to make representations without knowing the detail of the material to the judge, indicating what his defence was,
In the second procedure, where the material was more sensitive, the prosecution could notify the defence of the application but apply ex parte without revealing the nature of the material. Thirdly, there are in exceptional cases the secret applications, where the prosecution goes to the judge without telling the defence at all. The defence knows nothing about the application or the material that is put before the judge.
In the case of Keane in 1994, the practice that had then occurred, which involved the prosecution dumping all the material it had on the judge and asking him to sort out what was material and what was not, was said to be an abdication of the prosecutor's duty. It was put on the prosecutor that he had to carry out a preliminary sorting of the material documents. The prosecutor choosing what is and is not relevant without the defence knowing what he is talking about came into the system in 1994.
There have been later cases. The matter went to the European Court for a decision in the case of Jasper v the United Kingdom. On the facts of that case, it was held by nine to eight that the procedures of Rowe and Johnson were compliant with Article 6 of the convention. However, in a different situation from the facts of that case the result might very well have been different.
The Criminal Procedure and Investigations Act 1996 set up a statutory scheme covering disclosure by the prosecution: primary disclosure, followed by the defence statement, followed by secondary disclosure. The code of practice that I have referred to came into force and the Attorney-General's guidelines were issued in November 2000. They said:
Secondly, I find that applications are made in the most trivial of cases for the ruling of the judge on obvious thingsnames of informants, observation posts, police methods, makes of cars and so onwhen a word to the defence would suffice. The procedure is over-used.
Thirdly, an atmosphere of secrecy is created. The matters that are ultimately disclosed from these lengthy PII applications tend to be highly disappointing to the defence and rather trivial. As a prosecutora position that I hold from time to timeI find myself making applications that in my view are unnecessary.
Finally, on principle, where there are serious issues in a serious case, there should be another route. PII applications should be limited to serious cases. I can see that the right to full disclosure is not absolute and can, in pursuit of a legitimate aim such as the protection of national security or of vulnerable witnessesfor example, medical records in a sexual abuse case or sources of informationbe subject to limitations. But the accused's interests are not adequately protected under the present proceedings. A special counsel should be appointed to assist the court, as we have special counsel under the Special Immigration Appeals Commission Act 1997, the Anti-terrorism, Crime and Security Act 2001 and the Youth Justice and Criminal Evidence Act 1999your Lordships will recall the issue of cross-examination when a defendant wishes to represent himself.
The special counsel is not responsible to the person whose interests he is appointed to represent and he is therefore entitled and obliged to keep confidential any information that cannot be disclosed. However, he can obtain instructions from the defence team. He can represent the defendant's interests and argue whether the criteria for withholding a specific form of information have been met. Rule 7 of the procedure rules under the SIAC Act is relevant. Obviously, such a procedure would be used only in the most serious of cases. I would welcome confirmation from the noble and learned Lord the Attorney-General that at least the current problems, difficulties, extra expense and wasted time in our courts will be looked at.
Baroness Blatch: My Lords, I am unashamedly being an opportunist, and I intervene in the debate to speak on one aspect of public interest immunity alone, about which I have concerns. That aspect is the enforcement of sustaining the confidentiality of information subject to public interest immunity, when it has been determined by the courts.
The context of my remarks is an incident when a policeman called Christopher Sherwood fired a weapon in the course of his duties, in what he believed was self-defence. A person called James Ashley died. I must declare an interest as a friend of the policeman's family. I am prompted to speak in the debate out of a deep sense of frustration about how the case was dealt with and the effect on Christopher Sherwood and his family of mishandling documents that were the subject of public interest immunity.
The background is as follows. On a day in January 1998, at four in the morning, 25 armed policemen were sent to raid a number of flats in a building in Hastings, in search of members of a group of people who were believed to be involved in drug dealing and were expected to put up considerable resistance against arrest. As the raid was under way, a crashing noise was heard that subsequently turned out to be an ironing board falling on a bare floor. A dog barked and, quite reasonably, Christopher Sherwood checked that they were to continue with the raid. The reply from a senior officer was, "Yes". Christopher Sherwood, together with a colleague, entered a flat and in the darkened room saw a person coming towards him with hands moving upwards and outwards as though he was about to shoot. In what must have been a split second, Mr Sherwood fired a single shot. Mr Ashley fell to the floor; Mr Sherwood tried to stem the wound; an ambulance was called and, sadly, Mr Ashley died as a result of the shooting.
A number of policemen, including Christopher Sherwood, were suspended. Two inquiries were put in hand. One dealt with Mr Sherwood and the shooting incident and the other with the role of senior officers in the planning of the incident.
It is almost beyond belief that an incident of which most of the facts were known should have taken four years to come to court. The venue, the date and time of the incident, who was there and why they were there, who shot who and the weapon usedall was known to the police and to everybody, including the lawyers and courts. All that was left to determine was the motive for the killing. Was it wilful, careless, incompetent or genuinely controlled in self-defence? It was also necessary to investigate the soundness of the planning that led to the raid in the first place.
This is not the debate to go into more detail, although such is my concern that I intend to initiate a debate when time allows. There is much to be discussed about what I believe amounted to abuse of procedure.
Suffice it to say in this debate that, after four years of waiting and having been charged with murder, Mr Sherwood was acquitted. The case fell because the prosecution did not and, I would argue, could not provide the evidence to underpin its casebecause that evidence did not exist. All charges against the other policemen involved in the incident were also unfounded. That process took over five years to be completedindeed, I do not believe that it has been completed yet.
The Hoddinot and Wilding reports were both made subject to public interest immunity certificates determined by the court. Those reports were knowingly leaked to the press. Indeed, the reports and associated documents were stated to be subject to PII in a letter from the Crown Prosecutor to the then defendants' solicitors when he warned against leaking on pain of prosecution under the Criminal Procedure and Investigations Act 1996an Act that I took through this House.
When such a leak happens, surely there is an obligation on the part of the state to investigate whether a leak has occurred, and thereby the interests of the state in maintaining PII are undermined. Am I correct in my view? I do not enjoin the noble Lord, Lord Thomas of Gresford, who made a powerful case for his particular aspect of the matter. He spoke about whether a PII certificate should have been given in the first place. I am talking about when the certificates have been determined by the courts, and their treatment thereafter.
The Home Office, Sussex Policewho own the documentsthe then Attorney-General and others refused to investigate that breach of law. Kent Police Authority, which was involved in overseeing the Sussex shooting, unilaterally decided to hold an investigation following much pressure from myself and others. However, the Chief Constable ruled out any question of criminality or illegality from the outset, before knowing who leaked or how the leak occurred.
The investigation was solely directed at the civilians, not the uniformed members of the Kent Police Authority. No reason was given for such a narrow remit. The person responsible for leaking the documents was established, and he is to be dealt with as a purely internal disciplinary matter. That is not the first time that the Kent Police Authority has been found wanting in that respect.
The police reports on internal and criminal investigations are generally regarded as attracting public interest immunity. That is, I believe, because they contain the reporting officer's opinions which may or may not withstand legal challenge. No evidence was produced to support the content of the report. Therefore, to release those reports or leak them as statements of public interest when there has been no challenge whatever to their content is wrong and, I believe, against the law. Again, am I correct in my understanding of the law in this respect? I must ask the noble and learned Lord about the status of such documents. While subject to PII, is it unlawful to leak them to the media?
The press, especially the tabloids, exploited the case and the information in the reports, much of which was inaccurate in a lurid and extremely biased fashion. Apart from the distress caused to all concerned, especially Christopher Sherwood's family, the character of Christopher Sherwood and other
PII should be established only for good and defensible reasons. However, when a certificate is signed, immunity from public interest should be enforced. If any review is to be undertaken as a result of the request that initiated this debate, I would ask that this aspect of PII is taken into account.
Lord Carlisle of Bucklow: My Lords, I cannot but reflect on the fact that it is more than 21 years since I last spoke at the Dispatch Box in another place. I briefly do so tonight in place of my noble friend Lord Kingsland. I know that he would have wished to be present for this debate and to take part in it. Sadly, he is unable to do so. I am sure that all noble Lords in the Chamber will join me in wishing him a speedy return to full health, to his active participation in the functions of this House, and above all to his ever effective and succinct interventions.
The operation of public interest immunity in criminal cases is not a matter of party politics, but it is a matter of great of importance. I think that the noble Lord, Lord Thomas of Gresford, has chosen an appropriate time to raise the issue. He has called for a review of the overall working of the system. Whether such a review is justified and necessary is of course a matter for the Attorney-General. What I think is indisputable is that, as the noble Lord said, the public interest immunity procedure is a matter of continuing and considerable controversy at the Bar. It is certainly an aspect of the working of the criminal law that continues to attract widespread public interest.
As has been mentioned, there was an enormous amount of speculation following the end of the Burrell trial as to whether public interest immunity had played a part. As I am following the noble Lord, Lord Thomas, and have seen his notebook, I should perhaps mention that the Lord Carlile to whom he referred in that case was the noble Lord, Lord Carlile of Berriew, and not myself.
The noble Lord, Lord Thomas, asked whether public interest immunity played any part in that decision. I am bound to say in fairness that I had thought that the Government had fully answered that in another place. The Prime Minister himself said:
It is clear that as well as being an area of concern this is certainly an area of the law which requires continual careful scrutiny, as was pointed out in a recent article, which the Attorney-General may have seen, by, I believe, Mr Richard Glover in the bulletin of the JSB. In that article Mr Glover mentions the danger of the procedure being in conflict, and being found to be in conflict, with Article 6 of the European Convention on Human Rights.
The practice and procedure surrounding PII applications in criminal cases have grown enormously. As the noble Lord, Lord Thomas, stated in a letter to The Times in the latter part of last year, the first case involving such a certificate was in 1989. Yet over the past 15 years matters of disclosure and non-disclosure of evidence in criminal cases often relating to PII have constituted a great growth areathe applications are becoming an industry in themselvesand seem to take up more and more of the time of the courts in criminal trials. If what one hears from current members of the judiciary is true, they are often a cause of substantial delay in serious cases.
I start from the proposition in the Criminal Procedure and Investigations Act 1996 that in a criminal case there is clearly a fundamental duty on the prosecution to disclose to the defence anything that they consider to be relevant or which in any way could be seen to undermine the case for the prosecution or to assist the defence. That disclosure is necessary for the bringing of a fair trial. And yet at the same time they have an interest and responsibility to protect their sources of information which, if not protected, may lead either to a drying up of vital channels of information to the policewhich are so important for the protection of this country as a wholeor, indeed, to the disclosure of the identity of an informant which leads to genuine fear on that man's part for his life or at least to fear of physical assault. That interestthe general public interestis one which the prosecution share as it relates to the volume of future crime and to the degree of information which the police will be able to secure in their intelligence work.
We must never forget that we are dealing in these cases with serious crime and that, whether in the fields of terrorism or of dangerous drugs, the stakes are high and those involved are very dangerous people. This is the conflict of interest inherent in many criminal cases that has to be faced. At present it is resolved by the trial judge. He does so on the basis of the matters which are put before him. It is his duty to decide where the balance is to be struck.
We have to ask ourselves whether that is the best way to resolve that conflict. Is there, as the noble Lord, Lord Thomas, said, too great an atmosphere of secrecy surrounding the whole proceedings? Is too great a role given to the trial judge, who inevitably will come to see evidence which otherwise he would not have seen and which in some ways may affect his own outlook, certainly on matters of sentence?
The noble Lord, Lord Thomas, suggested that too much had been placed before the judge, taking up unnecessary time, and that the prosecution should be prepared and trusted to decide such issues for itself. It should decide those cases where it considers that public interest is clearly overruled by the need to disclose, and should place something before the judge only when it might reasonably consider that the evidence is clearly capable of undermining the prosecution or assisting the defence, but that the public interest for immunity is such that it is unwilling to disclose it.
In such decisions, the prosecution clearly has the responsibility to disclose material that it does not consider undermines the case for the prosecution or assists the defence. If it does so, it has an ongoing duty to review that decision in the light of the defence statement and any further evidence that may emerge during the course of the trial.
Like the noble Lord, I have absolutely no doubt that in past years more decisions were finally taken by the prosecution on such matters, subject always to judicial review or appeal. One has to ask whether it would be acceptable if that burden was put back on the prosecution and taken away from the court today. I cannot answer that, other than to say that it was criticism by the Court of Appeal and others about the failure of the prosecution to disclose evidence, which itself led to a wrongful conviction, that has led to the present proceedings.
If the decision is to rest on the shoulders of counsel, it is essential that counsel themselves should have before them all the necessary evidence held by the police. That should be handed to them in full by the CPS.
As the noble Lord asked, is there a role for a special advocate who can review the evidence intended to be put before the court in the light of the case for the defence, and yet without contact with the defendant? He can make submissions to the judge on the defendant's behalf, as to both the relevance of that evidence to the defence case and the vital importance of that disclosure.
At the moment, of course, the judge has only one side of the evidence and submissions on which to proceed, with also the defendant's statement of the case. As the noble Lord said, one of the fundamental grievances is that the defence often does not even know what is going on. The suggestion of a special advocate would be one way to deal with what appears on the face of it to be a system that could be said to be unfair to the defendant. Certainly, that may well be worth looking at, although whether it would add greatly to an enhanced role of the prosecution counsel, I am not sure.
Finally, should the defence at least be told whenever a PII application is to be made to the judge so that, even if it was unaware of its nature and the evidence involved, it would at least have some idea of what was going on and be given the opportunity to make any submission in writing which it might wish the judge to take into account when coming to his decision?
This is a difficult area with no easy solution. Some would argue that PII has no place whatever in a criminal trial and that, despite the strength of public interest in its immunity, everything must be disclosed, with the prosecution's only recourse being to abandon the trial. The trouble is that that might lead to a considerable increase in the number of trials that are already abandoned.
Clearly, as I said, this remains an area to be kept under review, remembering that, while the public rightly has an interest in the conviction of the guilty, it is even more important to protect the acquittal of the innocent.
The Attorney-General (Lord Goldsmith): My Lords, this has been an interesting, if short, debate on an area of law and practice which all who have spoken recognise to be important and of interest to the public. Therefore, I thank the noble Lord, Lord Thomas of Gresford, for having initiated the debate and I also thank the noble Baroness, Lady Blatch, and the noble Lord, Lord Carlisle of Bucklow, for their contributions.
If I may, I shall welcome the noble Lord, Lord Carlisle, back to the Dispatch Box after 21 years. On the last occasion that we discussed public interest immunity in this House in the context of the Burrell case, the noble Lord, Lord Carlisle, suggested that he might be getting a second career as a result of the confusion with another Lord Carlile. If this is a second career at the Dispatch Box, all noble Lords will be pleased to see him, while entirely endorsing the best wishes that he sends to the noble Lord, Lord Kingsland, and the comments that he made about him.
I am grateful to the noble Lord, Lord Thomas of Gresford, for his historical survey of the law relating to PII. However, given that we are now in a particular place in relation to PII, it may be helpful if I sketch that out because much has happened since the old days of so-called "Crown privilege"itself a term which is no longer used.
The starting point is, as the noble Lord, Lord Carlisle, said, the following proposition. The prosecution has a legal duty to disclose any material not already disclosed that might undermine its case against the accused or might reasonably assist the case for the accused. That is a very important proposition which is necessary in order to avoid miscarriages of justice and is in the interests of justice.
The law and practice on that is now found in the Criminal Procedure and Investigations Act, taken through this House by the noble Baroness, Lady Blatch, the accompanying code of practice, statutory rules and regulations, and the Attorney-General's guidelines on disclosure for the year 2000. In additionI shall return to this pointjoint operational instructions have been agreed between the police and the Crown Prosecution Service.
Some might say that if any industry has grown up, it is not the industry of PII but the industry of disclosure, which is necessary in order that the interests of justice are met. I noted that the noble Lord, Lord Thomas, referred to disclosure schedules, lists of documents which are produced and a volume of unused material. It is in order to meet that, in my view, necessary requirement of disclosure in the interests of the defence that those procedures have grown up, and rightly so.
But, against that, there will be cases where material is of such a sensitive nature that there will be a public interest in it not being disclosed. It is in that context that public interest immunity arises. Here, the basic system now is that it is for a judge to consider whether the public interest in non-disclosure outweighs the undoubted public interest that in the administration of justice the court should have the fullest possible access to all relevant material.
During the course of this short debate examples have been given of where public interest will indicate that certain pieces of information should be kept confidential. Typical examples are, as has been said, to preserve the anonymity of informers. It is well established that the police need informers, or "covert human intelligence sources", as we now call them, to assist them in the detection and prevention of crime in the interests of the public. But the courts also recognise the need to protect the identity of informers for their own safety and to ensure that sources of information do not dry up. Equally, the courts are well aware that criminals will often have a considerable interest in finding out the identity of informers for reasons that have nothing to do with establishing their innocence. Sometimes it may be to attempt to force the prosecution to drop the case. Sometimes the identity of an informer may be very relevant to a defence; sometimes it may not.
Other examples would be where householders have allowed their premises to be used for surveillance or where organisations such as social services have been keeping confidential candid records in relation to particular people, which may have some relevance to a criminal case, but again where the disclosure would create serious problems.
As I have said, the exercise which the court has to do is to balance on the one hand the public interest in the absence of disclosure against the interests of justice in disclosure. In practice, that balancing exercise requires the judge to consider the degree to which the material in question assists the defence. As the noble and learned Lord, Lord Taylor, the then Lord Chief Justice, said in the important case of Keane decided in 1996, if the disputed material may prove the defendant's innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it. As the noble Lord, Lord Carlisle, stated, the consequence of that on some occasions is that the prosecution takes the view that it cannot disclose that information and therefore the prosecution has to be abandoned. That is something which happens and gives rise inevitably to the concerns to which the noble Lord, Lord Carlisle, referred. The public has an interest in seeing criminality brought to justice and determined and not abandoned unnecessarily.
The question then is how does one deal with the assessment of that balance. The system that we now operate is one which has been developed by the common law through statutory and extra-statutory rules and in my view contains sufficient safeguards to counterbalance any prejudice. Perhaps I may identify certain features of the basic system.
As I have said, public interest immunity procedures were developed independently by the courts considering what was the best way to preserve the interests of the public and the very important interest of the administration of justice in ensuring that miscarriages of justice did not take place and that material information was disclosed. It has been formalised in rules of court. It has been upheld as a system by the European Court of Human Rights.
I have not had the benefit of reading the article of Mr Glover, to which the noble Lord, Lord Carlisle, referred, but these are matters which it is always possible for courts to review. If the courts at any stage in Strasbourg were to take the view, having once decided that the system was satisfactory that they saw a need for change, that is something that the Government would carefully and immediately consider. However, in the cases of Jasper and Fitt particularly, the European Court of Human Rights upheld the system as giving rise still to a fair trial. That is the fundamental point.
The system works on this basis: first, disclosure is to be withheld only where it is strictly necessary in the public interest. That meansthis is what was established and stated as policy by the Government after the Scott inquiry in 199697where there would be "real harm" from disclosing particular documents. I can certainly assure the noble Lord, Lord Thomas of Gresford, that that is based not on concern about embarrassment to any figure, however important or eminent, but on real harm of disclosing particular documents.
So there are three types of PII application, as rules of court recognise. There is the first category, under which it is possible, having regard to the nature of the material, to notify the defence of the application and the general category of material in respect of which immunity is sought. The defence is then entitled to attend the application and to be heard inter partes. So the defence there take a full part in the application.
The second type is private applications where the defence is notified of an application but is told nothing about the nature of the material. That is justified only where even to reveal to the defence the category of material that the court is being asked to consider would reveal that which it is not in the public interest to disclose.
The third and most exceptional category is the secret application where the defence is not even notified of the fact of the application. That would be justified, for example, in a case where there is material relating to an informer that where even to inform the defence that an application is being made would alert it to the likely means of the suspect's arrest and enable that person or others to infer the existence and identity of the source.
But in each of those cases, it is for the judge hearing the application to be satisfied that it is appropriate for the matter to be dealt with in that way. Prosecutors are also informed of the importance of providing as much information as possible by redacting documents and summarising material.
The question of present practice on PII has been carefully consideredand recently. As I want to deal with one or two other matters, I shall summarise what has taken place. First, the Crown Prosecution Service Inspectorate conducted a thematic review of disclosure in 2000. That identified certain procedural failures or absences of good practice by the inspectors on which the Crown Prosecution Service and its counsel could improve. In December 2001, a Home Office report identified other issues about how the system operated across the criminal justice system as a whole.
Those two reports led to a joint project between the police and the Crown Prosecution Service considering the procedures in detail that will cover how the documents are identified, how they are scheduled, what logs are kept and how close is the examination of the documents. The proposed solutions are reflected in a new set of joint operational instructions on the disclosure of unused material, known as a JOPI. It contains extensive revisions from the previous version and will be published later this year. There will be a comprehensive programme of training which will support those new instructions. I very much hope and believe that that will enable us to put in place an effective PII system based upon the propositions that I have identified.
Noble Lords raised additional matters. The noble Lord, Lord Carlisle, raised the question of the application made in the Burrell case. I am grateful to the noble Lord for saying that he thought that the issue had been resolvedso did I. I had the benefit of a meeting with Mr Simon Hughes and Mr John Burnett of the noble Lord's party, at which we discussed the matter in detail. I understood that perhaps they had passed it on to him that they saw no further problem in that regard. I refer to the answer that I gave in this House on the occasion of a Question on the issue. Given what the noble Lord has said, I shall emphasise the point:
In response to the question raised by the noble Baroness, Lady Blatch, who sits patiently waiting for what I shall say, sadly I am not able to give her very much information. I do not say this as criticism but merely to explain what I say: the noble Baroness did not give me notice of the particular case to which she was going to refer. I shall happily write to her with what I can say on that case. Of course I know something about the case.
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