Regina v. H (Appellant) (2003)(On Appeal from the Court of Appeal (Criminal Division)) Regina v. C (Appellant) (On Appeal from the Court of Appeal (Criminal Division))(Conjoined Appeals)

In criminal proceedings, prosecution material which may weaken the prosecution case or strengthen the defence must ordinarily be disclosed. Material which is neutral or adverse to the defence need not be disclosed.

Any withholding of disclosable material on public interest grounds must be the minimum necessary derogation from full disclosure and must preserve the fairness of the trial as a whole. The judge must examine the material, consider less restrictive safeguards, involve the defence as fully as possible and keep fairness under review throughout the trial.

Special counsel may be appointed where justice requires, but appointment is exceptional, never automatic and a last resort. Properly operated, the existing public interest immunity procedures comply with article 6 of the Convention.

Regina v H and Regina v C were charged with conspiracy to supply heroin. They sought extensive prosecution disclosure to challenge the police operation and surveillance evidence and to support applications concerning abuse of process, exclusion of evidence and dismissal of the charge.

Before examining the sensitive material in detail, the Crown Court judge directed that special counsel should be appointed for the public interest immunity proceedings. The Court of Appeal (Criminal Division), in [2003] EWCA Crim 2847, allowed the prosecution's appeal and held that the direction was premature.

The conjoined appeals concerned whether the procedures for determining prosecution claims to public interest immunity complied with article 6 of the Convention and, in particular, when fairness required the appointment of special counsel.

The appeals were dismissed unanimously. The Appellate Committee delivered a single considered opinion agreed by Lord Bingham of Cornhill, Lord Woolf, Lord Hope of Craighead, Lord Walker of Gestingthorpe and Lord Carswell.

1. The Committee held that the overriding requirement was a fair trial viewed as a whole. The prosecution's disclosure obligation ordinarily extended to material which might weaken its case or strengthen the defence. The parties' cases required careful and non-restrictive analysis, but neutral material and material damaging to the defence did not require disclosure.

2. Where disclosable material engaged an important public interest, the judge had to inspect the material and determine whether disclosure presented a real risk of serious prejudice. The judge then had to consider admissions, summaries, extracts, editing, anonymisation or other safeguards. Any restriction had to be the minimum necessary, and fuller disclosure was required if the trial would otherwise be unfair, even if that led the prosecution to discontinue.

3. The Committee held that the defence must be involved to the maximum extent compatible with protection of the public interest. The judge's assessment of fairness was provisional and had to remain under review as the trial developed.

4. Appointment of special counsel could be necessary where no other procedure adequately protected the defendant. It was nevertheless exceptional, never automatic, and a last rather than first resort. Article 6 did not prescribe an inflexible procedure for a defined class of cases. The touchstone was what justice required in the circumstances.

5. The trial judge had not first examined the material in detail. The Court of Appeal was therefore right to hold that appointment of special counsel was premature. Properly operated with scrupulous attention to fairness, the existing public interest immunity procedures were compatible with article 6.

6. By way of further guidance, the Committee held that R v Smith (Joe) [2001] 1 WLR 1031 should no longer be treated as good law. A defence could not fairly be defeated by evidence privately supplied to the judge which the defence had no opportunity to meet.

7. Special counsel would be still rarer in magistrates' courts. Apparent-bias principles remained applicable, although continuing review ordinarily favoured retention of the court which determined the immunity application. The Attorney General was an appropriate person to appoint special counsel because, in that function, he acted as an independent guardian of the public interest in the administration of justice.

1. House of Lords: In Regina v H; Regina v C [2004] UKHL 3, the Appellate Committee unanimously dismissed the conjoined appeals and upheld the conclusion that appointment of special counsel had been premature.
2. Court of Appeal (Criminal Division): In [2003] EWCA Crim 2847, the court allowed the prosecution's interlocutory appeal and held that the Crown Court judge should have examined the sensitive material and the issues before seeking appointment of special counsel. It also rejected C's contention that the assessment had to occur in open court.
3. Crown Court: His Honour Judge Murphy QC directed that special counsel should be appointed for the public interest immunity proceedings before he had examined the sensitive material in detail.