The Criminal Procedure and Investigations Act 1996 Act introduced the current two-stage approach for disclosure. First the prosecution provide primary prosecution disclosure of any material which might undermine the case for the prosecution against the accused. Then the defence set out their case in a Defence Statement. Secondary disclosure is then made of material which might be reasonably expected to assist the accused's defence as disclosed by the statement.
The 1996 Act also introduced the procedure used today where the Crown decide that certain material, though relevant, should not be disclosed on sensitivity grounds, e.g. identity of informants, use of certain covert technology, information received in confidence etc. This is called Public Interest Immunity (PII). There are 3 types of PII applications. Type 1: this is to be used in most applications for non-disclosure. The prosecution tell the defence they are seeing the Judge and indicate what category of material they are seeking to withhold; i.e. place tactics and methods, identity of informants etc. Then at a hearing the Judge will be able to hear from both sides before going into Chambers with the prosecuting barrister and hearing the application. Type 2: this type of application - which should be rare, is for circumstances where the Crown believe that even to disclose to the defence the type of material sought to be not disclosed would be to give the game away. The Crown still tell the defence that the application is being made but not what the topic of discussion will be. Type 3: used in highly exceptional cases where even to reveal the fact that an application is to be made, could, in effect, give the game away. In that rare event, the prosecution could apply to the Court without notice to the defence. Following the House of Lords case of R v H & C  2 AC 134 (Feb. 2004) these sorts of hearings should now be regarded as completely defunct.
R v H & C and the Golden Rule
The case of R v H & C sprang from pre-trial legal argument (the authors represented H) to the effect that the prosecution's application for a private, or ex parte, PII hearing was a breach of our client's right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights. It was argued that the Court should appoint a 'special' or 'independent' counsel to argue the Defendant's case. This flowed from recent Strasbourg authority where the European Court considered whether the ex parte procedure in two cases where the Defendants claimed that such procedure breached their Article 6 rights as the Judges in their cases had to decide issues of fact - namely whether the Defendants were entrapped by police officers, before deciding whether to release the material. The Strasbourg Court felt that reaching a finding of fact on such a central issue was so important that the Defendants should somehow be represented so that the Judge could hear argument, instead of just a one-sided story. To preserve PII considerations the Court clearly believed that a good solution was the use of a 'special counsel' for future cases. Such a system was not in use at the time in this country in criminal cases. Basically a special counsel is an independent barrister who argues for the Defendant in the PII hearing without revealing the sensitive issues that he has heard about in Court to the defence. The argument was successful at the Crown Court stage and the Judge asked for a special counsel so that he could hear argument from the defence when considering the Crown's PII application.
The House of Lords considered the issue and took the opportunity to review the process of disclosure and PII. Essentially the Court required that in future the starting point, or the 'Golden Rule' applied, i.e. the prosecution had to disclose any material which weakened its case or strengthened that of the defendant, even if not part of its formal case against the accused. The prosecution therefore make the decision but the test is to be regarded as fairly wide ranging.
If the material does not weaken the Crown's case or assist the Defendants then it is not disc losable, this might include for example intelligence that a suspect has been committing certain offences previously.
Knowing this means that it is up to the defence to think tactically when setting out their case in the Defence Statement. The statement should address the Golden Rule making it clear that maximum disclosure is required but giving as much reasons for that disclosure as can be made at that stage. It should be made clear to the Crown that if they feel they cannot reveal certain material on sensitivity grounds then there must be a type 1 application made as soon as possible. This is very important because there is plenty of anecdotal evidence that the proper procedures were simply being given lip service.
Many suspects hear that the prosecution are making a PII application in their case. The next question should be - what is the application about? - What is the category? Often no one has informed the defence and no one has asked the Crown and the hearing effectively becomes a type 2 by default. If a PII hearing is to go ahead you should be able to have the matter listed and make your representations before His Honour prior to that hearing - unless it really is a type 2 hearing which is frankly going to be very rare these days. At such a hearing the defence can remind the Judge that he is not just an on/off switch - he should follow the 7 stage process set out in R v H & C.
Is there a need to withhold information?
This 7 stage process demands that the Judge satisfies himself that the Crown have to demonstrate a real need to withhold the material - not just that they want to withhold it. The process also requires the Judge to be rigorous with the defence case as well but provides room for compromise. The Judge must consider whether any 'derogation' from the Golden Rule is the minimum derogation necessary to protect the public interest; e.g. if there is a genuine need to keep the identity of an informant secret then perhaps the Crown should be ordered to reveal the existence of an informant - the Judge must consider how he can order as much disclosure as possible. The authors were recently involved in a case in Yorkshire where, after a PII hearing behind closed doors, the prosecution admitted to certain facts which were likely to be known only by use of a tracking device on a car, without the police having to actually admit to the existence of such a device. This is the new kind of flexibility that should be expected following R v H & C - but defence teams must be alive to these judicial choices and prepare their correspondence and submissions accordingly. It may even be possible to ask for a special counsel to be present at the PII hearing though the House of Lords made it clear that this is only to happen in the rarest of cases.
Very soon we will be experiencing even more change when the Criminal Justice Act 2003, comes into force in April.
It is now to be regarded as vital that defence teams keep the pressure on the Crown and continue to make demands, e.g. who the disclosure officer is, when reviews are taking place, when are updated schedules of used and unused material to be served etc etc?
In short disclosure and PII continues to be difficult area which now demands early and effective defence preparation of contested cases in order to maximise disclosure and to make your voice heard behind the closed doors of a PII application.
Jonathan Lennon is a Barrister specialising in criminal defence and Prison Law at 23 Essex Street Chambers in London. He is co-editor of the Prison Law Reports.
Aziz Rahman is a Solicitor - Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel.
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