Interlocutory Application , Re

A public interest immunity hearing may ordinarily proceed without the defendant or representatives being present. Article 6 does not confer an absolute right to disclosure. The prosecution, judge and appellate court provide safeguards, provided that restrictions on defence rights are strictly necessary.

Special independent counsel is appropriate only in rare and exceptional cases. It may be required where undisclosed material is so prejudicial that a judge should not decide a factual issue affected by it without further adversarial assistance. The judge must first inspect the material and consider it against the issues raised. A direction to appoint counsel before that assessment is premature.

Six defendants were indicted for conspiracy to supply heroin. At a preparatory hearing, the Crown proposed a public interest immunity hearing concerning sensitive material, including material connected with covert surveillance.

The Crown Court judge held that the hearing should not be conducted inter partes and in open court. He also directed the appointment of special independent counsel because of the possible effect of Edwards & Lewis v United Kingdom on Article 6 fairness. C appealed the first ruling. The Crown appealed the second.

The central issue was when Article 6 requires an adversarial safeguard, including special independent counsel, in a criminal public interest immunity application.

1. C’s appeal was dismissed and the Crown’s appeal was allowed. The judge was right to reject the submission that the public interest immunity hearing had to be conducted in open court and inter partes. The entitlement to disclosure is not absolute. The court must balance the defendant’s interests against national security, protection of witnesses and informants, and the need to protect investigative methods.

2. The domestic regime under the Criminal Procedure and Investigations Act 1996, the disclosure rules and the common law was compatible with Article 6. Its safeguards include the prosecutor’s duty to act as a minister of justice, disclosure duties, continuing review by prosecutor and judge, defence submissions where possible, and appellate review. A judge does not necessarily become unable to rule fairly merely because, during a PII process, the judge has seen material not disclosed to the defence.

3. The court explained that Edwards & Lewis v United Kingdom did not require special independent counsel whenever a PII claim was made. The exceptional category concerns material which is so sensitive, or so prejudicial, that the judge should not determine a factual issue by reference to it without further adversarial assistance. In such a case, the judge should invite the Attorney-General to appoint independent counsel.

4. Before taking that course, the judge must inspect the material, hear the prosecution, consider the issues raised by the defence, and decide whether the case falls within the ordinary Jasper v United Kingdom position or the exceptional Edwards & Lewis v United Kingdom position. In an exceptional case, independent counsel should examine the material and make confidential submissions on disclosure, after which the judge should hear any defence submissions and rule. Disclosure remains subject to continuing review.

5. Here, the judge had neither examined the material in detail nor considered it against the issues and prosecution submissions. The request for independent counsel was therefore premature. The case was to continue before the judge under that guidance. The court also certified questions and granted both defendants leave to appeal in relation to the second ruling.

• Court of Appeal (Criminal Division): C’s interlocutory appeal against an ex parte PII hearing was dismissed. The Crown’s interlocutory appeal against the direction to appoint special independent counsel was allowed.
• Crown Court: At a preparatory hearing under the Criminal Procedure and Investigations Act 1996, the judge directed that the PII hearing remain ex parte but ordered the appointment of special independent counsel.