XY, R (On the Application Of) v The Crown Court sitting at Newcastle & Ors

In public interest immunity proceedings concerning a police informant, the court must apply the staged approach in R v H&C. It must consider whether disclosure is necessary for a fair trial and whether a lesser measure can protect both the public interest and the defence case. Once disclosure of identity is the only means of securing a fair trial, the choice between disclosure and discontinuance belongs to the prosecutor, not the trial judge.

Procedural failures do not automatically invalidate a Crown Court decision. Judicial review remains unavailable where the alleged defects are qualitative rather than fundamental and the Crown Court was exercising its jurisdiction. Separately, the prosecutor must conduct a broader assessment, including the risks under Articles 2, 3 and 8, and may rely on responsible protection authorities when satisfied that adequate protective measures exist.

The claimant was a registered covert human intelligence source whose identity was ordered to be disclosed to defendants in serious criminal trials arising from alleged trafficking and sexual exploitation. The trial judge considered the claimant’s allegations of police misconduct, the competing interests of the defendants, the public interest in protecting informants and the risks to the claimant and his family.

The claimant challenged the judge’s disclosure decisions and the Crown Prosecution Service’s decision to continue the prosecutions and disclose his identity. The issues included the court’s jurisdiction under section 29(3) of the Senior Courts Act 1981, the claimant’s procedural right to be heard, the correct public interest immunity approach, and the prosecutor’s obligations under Articles 2, 3 and 8.

1. Judge’s disclosure decision. The trial judge correctly applied the staged approach in R v H&C. The material potentially weakened the prosecution case or strengthened the defence, and disclosure was therefore necessary. At the fourth stage, the judge considered whether a lesser form of disclosure could protect both the public interest and the defendants’ right to a fair trial. She concluded that only disclosure of the claimant’s identity would suffice.
2. Separate prosecutorial decision. Once the judge ordered disclosure, the decision whether to disclose or discontinue the prosecutions was for the CPS. That was a broader decision requiring consideration of the claimant’s safety, his family, the public interest in the prosecutions, informant confidentiality and the availability of protection. R (WV) v CPS did not modify the approach in R v H&C.
3. Procedural objections. The claimant could not rely on section 16(c) of the Criminal Procedure and Investigations Act 1996, because he was not involved in bringing the material to the prosecutor’s attention. His right to be heard arose under Part 15 of the Criminal Procedure Rules 2015. Although the rules were not fully complied with, the claimant had sufficient information and made meaningful written representations. The defects therefore did not invalidate the decision.
4. Judicial review. Under section 29(3) of the Senior Courts Act 1981, the decision concerned the Crown Court’s jurisdiction in a matter relating to trial on indictment. The defects alleged were qualitative rather than fundamental. The exception recognised in R v Maidstone Crown Court, ex parte Harrow LBC did not apply, and an alternative remedy existed against the CPS.
5. Articles 2, 3 and 8. The CPS was entitled to rely on information from the responsible protection authorities. It identified the risk, considered measures capable of reducing it, and was entitled to conclude that an adequate protective system existed, including for a high-risk scenario if the claimant left protection. Articles 2 and 3 did not require an absolute guarantee of safety. The Article 8 challenge was unsupported.
6. Outcome. The claimant had not shown that the CPS’s decision was unlawful or irrational. All claims were dismissed.

The judgment itself records no prior appellate decision. The claim was a judicial review of decisions made by the Newcastle Crown Court judge and the Crown Prosecution Service.