Regina v H; Regina v C (Conjoined Appeals)

The appeals concern the procedures for handling claims of public interest immunity (PII) by the prosecution in criminal proceedings and the circumstances in which a judge should appoint an approved advocate as "special counsel" to represent the interests of an accused when PII material is considered in the accused's absence. The House held that judges must apply the overriding requirement of a fair trial under Article 6 of the European Convention on Human Rights and the domestic disclosure regime (notably sections of the Criminal Procedure and Investigations Act 1996) but that the appointment of special counsel is an exceptional remedy, not automatic. The trial judge was premature in seeking appointment of special counsel before considering in detail the material sought to be withheld and applying a stepwise test (identify the material; decide whether it may weaken the prosecution or strengthen the defence; assess real risk of serious prejudice to an important public interest; consider whether less intrusive measures or edited disclosure would suffice; and ensure the minimum derogation from full disclosure). The Court of Appeal was held to be correct to interfere with the trial judge's premature order; the appeals were dismissed.

This is an interlocutory appellate determination arising from criminal charges of conspiracy to supply heroin against H and C. At a preliminary hearing the trial judge, having received prosecution PII material shortly before the hearing and having been alerted to defence allegations (including alleged planting of evidence and entrapment), indicated that he would seek the appointment of special counsel to represent the defendants' interests in any PII hearing conducted wholly or partly in their absence. The prosecution successfully appealed to the Court of Appeal, which held that the judge's request for appointment of special counsel was premature because he had not examined the material in detail or reached the stage at which competing public interest and fairness considerations required that step. The appellants sought to reinstate the trial judge's order and relied heavily on Strasbourg jurisprudence, notably Edwards and Lewis, to contend that special counsel must be appointed whenever PII material may be determinative of disputed factual issues relevant to applications to stay proceedings or exclude evidence.

Nature of the application: interlocutory appeals concerning PII procedure and the appointment of special counsel; applicants sought reinstatement of the trial judge's request for special counsel.

Issues framed: (i) whether procedures for PII claims in criminal proceedings comply with Article 6; (ii) if not, how they are deficient and how to remedy any deficiency; (iii) whether and when a judge should appoint special counsel; (iv) related questions about PII in magistrates' courts and the appointment process for special counsel.

Reasoning: The House reiterated that a fair trial is the overriding requirement and that disclosure duties under the Criminal Procedure and Investigations Act 1996 must be applied. PII is permissible only where non-disclosure is necessary to protect an important public interest and any derogation must be the minimum required. The court set out a stepwise set of questions to be addressed whenever disclosure issues arise (identify the material; is it capable of undermining the prosecution or assisting the defence; is there a real risk of serious prejudice to an important public interest; can protective measures or edited disclosure suffice; are measures the minimum derogation; will the measures render the trial unfair viewed as a whole; and should the position be kept under continuous review). Appointment of special counsel may be necessary in exceptional cases but must not be ordered until the judge is satisfied no other course will adequately protect fairness. The House found the trial judge had failed to consider the first necessary step in that sequence and dismissed the appeals.

The House also commented on the effect of Strasbourg decisions (including Edwards and Lewis, Rowe and Davis, Jasper and others), concluded that rigid rules are inappropriate and that English procedures, if applied with scrupulous attention to the governing principles, will not infringe Article 6, and commented on related issues (R v Smith (Joe) should not be treated as good law; appointment of special counsel in magistrates' courts will be still rarer; the Attorney General is an appropriate appointing officer for special counsel lists).

Appeals dismissed. The House concluded that the trial judge was premature in seeking the appointment of special counsel before identifying and carefully considering the material the prosecution sought to withhold and applying the required stepwise assessment of whether material should be disclosed, whether protective or edited disclosure would suffice, and whether appointment of special counsel was the minimum derogation necessary to secure a fair trial under Article 6. The appointment of special counsel is exceptional and should only be ordered when no less intrusive measure will adequately protect the defendant's right to a fair trial.

At first instance a preliminary hearing was held on 11 and 12 September 2003 before His Honour Judge Murphy QC. The prosecution appealed the judge's indication that special counsel should be sought; the Court of Appeal allowed the prosecution's appeal: [2003] EWCA Crim 2847, [2003] 1 WLR 3006. The Court of Appeal certified two points of general public importance and the appellants were granted leave to appeal to the House of Lords, which heard the conjoined appeals and delivered this judgment: [2004] UKHL 3.