WV, R (on the application of) v Crown Prosecution Service

Where a prosecutor proposes to disclose the identity of a police informant or other person who supplied information in confidence, and the person objects, the prosecutor must apply to the court before disclosure. The court must independently balance the competing interests, including the fairness of the criminal trial, the public interest in prosecuting serious crime, the safety and confidentiality interests of the informant, and any relevant Convention rights. The usual wide margin given to prosecutorial decisions does not govern this issue. A trial judge must undertake the balancing exercise even if the prosecution does not invoke public interest immunity. Disclosure without the informant’s consent requires a judicial decision, unless the informant gives informed consent.

WV supplied information to the police in circumstances in which he understood that his identity would be protected. The CPS later decided that the information and WV’s real name should be disclosed to the defence under the Criminal Procedure and Investigations Act 1996, without applying to the trial judge for a ruling on public interest immunity.

The trial judge considered that he should defer to the CPS decision. WV sought judicial review. By the hearing, the evidence established a real and substantial risk to his life if his identity were disclosed. The central issues were whether the CPS decision was lawful and whether disclosure of an informant’s identity had to be referred to the trial judge for an independent decision.

1. The claim succeeded. The original CPS decision to disclose WV’s identity without applying to the trial judge was quashed. The court granted permission for WV to apply to the court if disclosure was subsequently proposed, subject to argument concerning section 28(2) of the Senior Courts Act 1981.
2. Under section 3(1) of the Criminal Procedure and Investigations Act 1996, the information supplied by WV was disclosable. It was highly arguable that his identity was also capable of undermining the prosecution case or assisting the defence, but the court did not decide that question. Section 3(6), however, permitted the court, on the prosecutor’s application, to order that material not be disclosed where disclosure was contrary to the public interest.
3. The common-law protection of informers is not absolute. The court must balance the public interest in protecting informants and maintaining the flow of information against the public interest in the administration of justice and the prevention of a miscarriage of justice. Confidentiality is not itself a separate head of privilege. It is nevertheless a material consideration in the public-interest balancing exercise.
4. Article 2 of the European Convention on Human Rights was engaged because there was a real and immediate risk to WV’s life. The state therefore had a positive obligation to take preventive operational measures within the scope of its powers.
5. The ordinary wide margin accorded to prosecutorial decisions does not apply in the same way where the CPS proposes to disclose the identity of an informant who objects. An express or implied undertaking to protect the identity of an informant or information provider must not be broken without informed consent or an independent judicial decision. The trial judge must conduct the balancing exercise himself, even if the prosecution does not invoke the rule protecting informers.

The judgment describes an earlier application to the trial judge, who declined to prevent disclosure and considered that judicial review might be available. The Administrative Court granted permission for judicial review, heard evidence, quashed the CPS decision, and directed that any proposed disclosure be referred to the court.