Public Interest Immunity in Court Process

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Table of Contents

Introduction
Burmah Oil Co Ltd v Bank of England
Matrix Churchill and arms of Iraq
Effect on Sir Richard Scott’s Report
Grounds for resisting disclosure: information given in confidence
The Courts as the final arbiters of disclosure
Conclusion
Bibliography
Footnotes

Introduction

The cardinal issues of this question arise from privilege and public interest immunity. Before attempt to evaluate the current operation of the law of public interest immunity in civil trials it is necessary to discuss the definition of public interest immunity, current situation and the judgement of few cases in light of the statement made by Lord Wilberforce in Burmah Oil Co Ltd v Bank of England¹. In order to answer this question it is important to consider Duncan v Cammell Laird², Conway v Rimmer³, The Matrix Churchill Trial, Air Canada v Secretary of State for Trade (No 2)⁴, and disclosure cases.

The phrase ‘crown privilege’ has been superseded by the term Public Interest Immunity (PII) or more colloquially gagging orders. PII formerly called ‘crown privilege’, is a rule of law that requires the withholding of documents on the ground that it would be harmful to the public interest to disclose them. Like competence and compellability that spouse are not compellable to give evidence, witness are not always be compelled to give information and be able to claim immunity from testifying.

The need for confidentiality was also accepted in Bookbinder v Tebbit in relation to sources of information given to the Audit Commission, which was investigating alleged irregularities in the financial dealings of a local authority. The court, however, be satisfied that there is a real need to prevent the disclosure of an informant’s identity.

Under the Crown Proceedings Act 1947, a Court may order the disclosure of documents in the interest of justice. However, Section 28 of CPA 1947 also provides that the power of the Court in civil proceedings does not extend to disclosure would or would not be in the public interest to make.

There are two aspects of Public Interest entitled within this area of the law: the public interest in the administration of justice and the public Interest in non-disclosure of damaging information. The questions which arise are, who it is who has the power to decide whether disclosure would or would not be in the public interest, and on what basis the Public Interest is to be evaluate in civil cases.

A convenient starting point for examining this rule is the decision of the House of Lords in Duncan v Cammell Laird and Co Ltd. That action was brought by the dependants of men who had died when a submarine sank during trials. It was alleged that the defendants who built the submarine had been negligent. Among the documents that the plaintiffs wanted to obtain on discovery were contracts between the defendants and the Admiralty, and salvage reports. The Admiralty resisted disclosure the ground of national security. The House of Lords held that was bound to accept the minister’s certificate that disclosure of these documents would be harmful to the public interest. The effect of this decision was that a court could never question a claim of crown privilege, if made in the proper form, regardless of the nature of the documents that the government wished to keep secret. The House of Lords said that claims to crown privilege could be put on two alternative grounds.

Disclosure of the contents of the particular documents would harm the public interest, for example, by endangering national security or prejudicing relations.
The documents belonged to a class of the documents that had to be withheld in the interest of ‘the proper functioning of the public service’.

Burmah Oil Co Ltd v Bank of England

In Burmah Oil Co Ltd v Bank of England⁵ the oil company sought disclosure of information relating to the rescue of the company by the bank, in exchange for low priced stock in the company. The Bank was acting according to the direction of the government aimed to rescuing the company from financial trouble. To eradicate company’s financial difficulties, the Bank functioned with government guidance. Terms of the agreement included to sell BP shares to the Bank at a reduced price. For rising price of BP Shares, the company was not willing to sell out. Bank disclosed included government in the transaction but no government officials were present in the Meeting. The Attorney General produced a public interest immunity certificate from the chief Secretary to the treasury, in which objection was made against producing documents sought on the basis that it related to government policy. The HL inspected the documents, but felt that disclosure was unnecessary.

In this case the HL considered claims of privilege relating to documents concerned with the formation of government policy and documents containing information given in confidence by business to the bank of England. Lord Wilberforce felt that given the obvious importance of the documents as regard policy formulation, there was no question of them being produced. The majority expressed a verity of views, all of which were in favour of inspection, but in the event the documents were found not to have anything recorded in them that needed to be disclosed for fairly disposing of the case.

Lord Scarman and Keith both doubted the excessive weight given in past cases to the need to secure secrecy for those giving information in confidence, or for civil servants who needed to fell free to state their opinions. Lord Scarman felt that the ‘candour’ argument (i.e. those documents ought to be protected if candid views were to be expressed) was only really appropriate where a civil servant was advising a minister on a matter security. In Burmah Oil Co Ltd v Bank of England⁶, Lord Wilberforce also felt that when a claim for PII has been made, it is necessary for applicant to demonstrate the existence of a counter-interest for disclosure of particular documents, on manifestly solid grounds, only then the court may proceed to a balancing process.

In 1957, the Lord Chancellor, Lord Kilmuir, issued a Statement where he drew a distinction between such documents which were absolutely necessary to protect the ‘proper functioning of the civil service’ and the documents which are relevant to litigation but which do not require ‘the highest degree of confidentiality … in the Public Interest’. The beginning of the modern approach to PII can be seen in the decision of the HL in Conway v Rimmer⁷. The new policy clearly indicates that Public Interest Immunity certificates should, in future, be signed because of the contents of a document, rather than the class to which in belongs, raising the theoretical possibility of Cabinet papers being adduced as evidence.

The Plaintiff of Conway v Rimmer, who had been a probationary police officer, brought an action against his former superintendent for malicious prosecution. It is also necessary to mentioned that he had been prosecuted for theft from a fellow probationer and acquitted. His legal advisers wanted to obtain on discovery a number of confidential reports which had been made on the plaintiff during hid probationary period these were likely to be relevant to the issue of malice, and both sides wanted them to be produced. The Home secretary objected. The HL took the opportunity to reverse its earlier ruling in Duncan v Cammell Laird, and held that in such cases it was for the court to decide where the balance of public interest lay: in protecting a government claim for secrecy, or in upholding a litigant’s right to have all relevant materials available for the proper adjudication of his claim. But the idea that PII might be based on a class rather than a contents claim was still accepted, and it was that the reason for supporting a class claim was that disclosure ‘would create or fan ill-informed or captious public or political criticism’, or would be ‘inimical to the proper functioning of the public service.

Now Public Interest Immunity can operate in cases not involving the government. In R v Lewes JJ experte Secretary of state for the Home Department⁸, it was said that the expression ‘crown privilege’ was wrong and misleading. While a minister was always an appropriate, and often the most appropriate, person to assert the public interest, it is open to any person to raise the question, and there may be cases where the trial judge should do so if no one else has. So, for example, in D v NSPCC⁹, the HL protected the anonymity of an informer who had reported suspicious of child cruelty to the NSPCC.

A question relating to Public Interest Immunity certificates (PIIs) which assumed particular importance in the arms of Iraq affair was whether the minister was under a duty to sign the certificate when advised to do so by the Attorney General. The notion of duty arose in Air Canada v Secretary of State for Trade (No 2)¹⁰ in which Lord Scarman (in the minority) stated that, whilst it was for the court to accept or deny the claim, in claiming Public Interest Immunity, the Crown was not ‘claimi8ng a privilege but discharging a duty’. In the Air Canada case by the majority of the HL ruled that the government was entitled immunity.

At issue were circumstances under which, in judicial review proceedings, the court would examine documents for which immunity was claimed. No order for disclosure can be made unless the documents are inspected by the Court. The majority in the HL ruled that the party seeking disclosure of documents had to show that the documents are very likely to contain material which would give substantial support to his contention on an issue which raises the case. It was not sufficient that the documents might reveal information relevant to the case; it had to be established by the person seeking disclosure that it was ‘very likely’ that the information would assist his case.

In R v Chief Constable of West Midolands Police ex p Wiley¹¹ the HL held that class claim cannot be made in respect of documents complied as part of the investigation of the complaint against the police, and it seems likely that class claims generally will be much reduced in future. In ex p Wiley, Lord Woolf acknowledged that Bingham LJ’s dicta in Makanjuola had provided ‘a very clear statement as to the nature of Public Interest Immunity’, but suggested that the dicta had been applied subsequently in a manner beyond what Bingham LJ had intended. As was shown above, Bingham LJ was not referring to something new when he used the ‘term card analogy: in Air Canada, Lord Scarman had spoken similarly of a duty rather than a right. But after ex p Wiley, it is clear that if a minister believes that the overriding public interest requires government documents to be disclosed then he is not obliged to request immunity for them. It appears that ministers must now consider, before making a claim for public interest immunity, whether the public interest is better served by disclosure than by concealment. It looks very much as if they are expected to exercise discretion in deciding whether or not to claim PII.

In recent decades, the leading cases on PII in the HL have been concerned with civil claims, and it seems that the judges in those cases did not regard themselves as expressing principles that were equally applicable in criminal trials. In R v Governor of Brixton Prison ex parte Osman¹² Lord Justice Mann said that he thought they should apply, although the acknowledged that great weight should be attached in such cases to the need to do justice to the defendant. However, Sir Richard Scott has argued that this view is contradicted by dicta in both old and modern criminal cases.

However, the withholding of evidence on the basis of Public Interest Immunity (PII) has been recognized as permissible by the European Convention on Human Rights, which acknowledged that there may be competing interests to be weighted against the rights of a defendant to disclosure of all material evidence in the hands of the prosecution (Chief Constable of Grater Manchester Police v McNally¹³ and R v H¹⁴). Section 7(1) (b) of the Human Rights Act provides that a person who claims that a public authority has acted unlawfully by taking action incompatible with the Convention Rights in any legal proceedings provided he is (or would be) the victim of the unlawful act. It is possible that a claim against the Crown contract or tort could raise such issues. Action could also be taken against a court that failed to uphold the Convention Rights, given the wider definition given to the term ‘public authority’ under s 6(3) (a), but not against a minister failing to introduce or lay legislation before Parliament. Breach of the Convention Rights by the Crown will not of itself give rise to a right to damages. Section 8(2) provides that ‘damages may be awarded only by a court which has power to awarded damages, or to order the payment of compensation, in civil proceedings.

Section 8(3) provides that no award is to be made unless, taking account of all circumstances of the case including any other relief or remedy granted, or other made, in relation to the act in question and the consequences of any decision in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

Hence the plaintiff in civil cases will have to have a subsisting claim in contract or tort in order to receive damages for violation of the Convention Rights. In determining the availability of damages and the level of damages the court must have regard to the principles applied by the European Convention on Human Rights in relation to the award of compensation under article 41 of the convention. In case of Osman v United Kingdom¹⁵ where the European Convention on Human Rights upheld the applicant’s claim that the application of the rule in Hill v Chief Constable of West Yorkshire¹⁶ amounted to the violation of art 6(1) of the European Convention on Human Rights.

Matrix Churchill and arms of Iraq

Between 1987 and 1989, the Matrix Churchill Company exported machine tools in Iraq. It was alleged by Customs and Exercise (which brought the prosecution against the three directors of the company) that those exports breached the export regulations in place at the time. In defence, it was argued that the government knew that M16 (the Secret Intelligence Service) was aware of the exports. When the matter came to trial, four government ministers signed Public Interest Immunity certificates, refusing disclosure of documents relating to, inter alia, records of meetings and communications between the Department of Trade and industry and the Foreign and Commonwealth Office. The effect of the certificates was to deny to the court the evidence which might have led to the acquittal of the defendants, each of whom was facing a significant term of imprisonment if convicted. The trial of the of the directors of the Matrix Churchill collapsed after a former government minister, Mr. Alan Clark, revealed to the court that the government had- as the defence claimed – in fact known of the exports. The Prime Minister established the inquiry the day after the collapse of the trial.

In 1992, however, it was revealed by Mr. Alan Clark that evidence which affected the defence was not before the court. The effect of this revelation was the collapse of the prosecution’s case and the announcement the following day of a judicial inquiry into the circumstance surrounding the prosecution. The decision to establish a judicial inquiry was brought about in large measure through the failure of select committee inquiries to unravel the full facts surrounding the issue.

Effect on Sir Richard Scott’s Report

Sir Richard Scott’s Report represented the most wide ranging judicial inquiry into a number of important constitutional issues, including:

whether the relevant government departments, agencies and responsible ministers operated in accordance with the policies of Her Majesty’s Government,
an examination of decisions taken by the prosecuting authority and those signing Public Interest Immunity certificates,
An examination of similar cases relevant to the issues of the inquiry and making recommendations.

In 1989, government minister William Waldegrave, in response to inquires from Members of Parliament, advised that government policy in respect of exports had not changed. However, in Sir Richard Scott’s view, the answers given were not accurate and were apt to mislead. Sir Richard Scott accepted, however, that William Waldegrave had not in fact noticed the changed wording in the letters which, if noticed, would have altered him to the fact that the policy had in fact changed, and that there was no intention ‘to be misleading’.

In relation to parliamentary questions concerning the policy being applied, Sir Richard found that the government had deliberately failed to ‘inform parliament of the current state government policy on non-lethal arms sales to Iraq’. The rules regulating the disclosure of documents in civil and criminal cases vary, but in each case there are common rules. First, a document may or may not fall within a category of documents which prima facie must be disclosed. Secondly, disclosure may be denied on the basis that the contents of the documents fall within a particular category of disclosure or non- disclosure or that the documents fall within a class of documents which may or may not be disclosed. Thirdly, disclosure involves the evolution of the relevance of the information or documents, which in some cases will be clear, but in other cases less clear, but in other cases until disclosed and evaluated by counsel and the court. Over and above these rules is the public interest Immunity certificate may be used to claim on the basis of either contents or class.

In civil cases where the government would prefer not to disclose information, and the information falls into a ‘grey area’, there is a temptation to claim Public Interest Immunity to protect the information, whereby its actual relevance to the case in hand may go undetected.

Under the new regime for claiming PII outlined by Lord Mackey LC it is envisaged that PIIC would only be signed in relation to a document, the disclosure of which could undermine the safety of an individual, such as an informant, interfere significantly with regulatory process or result in damage to international relations by the disclosure of confidential diplomatic communications. To justify a PIIC the harm would normally have to be direct and immediate, harm to the nation’s economic interests or relations with a foreign state. In each case the nature of the harm will have to be clearly explained.

In Marks v Beyfus¹⁷ was the case of an action for malicious prosecution, the Director of Public Prosecutions was called as a witness by the plaintiff but refused on grounds of public policy to give the names of his informers or to produces the statement on which he had acted in directing the earlier unsuccessful prosecution of the plaintiff. His objection was upheld by the trial judge and by the Court of Appeal. The reason for the rule is that informers need to be protected, both for their own safety and to ensure that the supply of information about criminal activities does not dry up.

However, Marks v Beyfus¹⁸, Lord Esher qualified this basic rule by stating that could be departed from if the disclosure of the name of the informant was necessary to show the defendant’s innocence. In such a case one public policy would be in conflict with another, and the policy that an innocent man should not be condemned when his innocence could be proved had to prevail. But it is for the defendant to show that there is a good reason for disclosure.

Areas which attract PII are state interests, information given for the detection of crime, police complaints, and interception of communications. State interests for example Burmah Oil and Air Canada involved economic and fiscal policy which prima facie attract claims to PII but are not immune from judicial inspection. Administrative practices: both governmental and non-governmental, the history of PII has seen non-disclosure of more routine administrative information. This was justified because the proper functioning of public service required candour and ingenuousness or openness between officials and those who supplied information. In case of police complaints the HL in ex parte Wiley held that a class claim to PII did not attach generally in such circumstances.

Grounds for resisting disclosure: information given in confidence

The Courts have always been willing to accept that it may not be in the public interest to admit certain documents in evidence if to do so would revel the identity of anyone who has given information in confidence, and who might thus be at risk of harm if identified, or where the supply of information to law enforcement agencies would be adversely affect. In Rodgers v Home Secretary¹⁹ documents containing information given by police informers to the Gaming Board were held to be privileged, on the grounds that anonymity had been promised to the informers were to dry up. Similarly, in Alfred Crompton Amusement Machine Ltd v Customs and Excise Commissioners (No 2)²⁰, information given in confidence to the Inland Revenue was held to be privileged. Again the fear that such information might become difficult to obtain if sources were disclosed was a paramount consideration. The HLs established that confidentiality itself was not a basis for upholding a claim to PII.

The principle has more recently been reaffirmed in Bookbinder v Tebbit²¹, where the Court refused to order disclosure of statements and order documents from audit commission employees who had been investigating a local authority’s finances. The support of a libel action, Drake J expressed the view that Public Interest Immunity should extend to evidence obtained by the Audit Commission during its investigation, particularly that which might disclose the identity of informants, since the Commission performed a public duty of inquiring into the legality of public expendure and the performance of duty may be hampered if informants felt less at case about coming forward.

The Courts as the final arbiters of disclosure

Even if a minister does sign a Public Interest Immunity certificate in respect of a document a Court will not be bound to accept it. For the first half of the twentieth century the Courts adopted what might be called an administration-minded approach to ministerial claims of Public Interest Immunity, tending to accept the minister’s word that documents needed to be suppressed in the Public Interest. In Duncan v Cammell Laird and Ellis v home office [1953], a significant turning point however was the decision of the House of Lords in Conway v Rimmer, where it was held that the documents in question should be produced, notwithstanding the fact that the Home secretary had certified that their production could be injurious to the public interest. The House of Lords made it clear that the courts should not always allow a ministerial certificate to be conclusive.

Lord Reid accepted that there were certain matters of which a minister should be a better judge than the courts, such as whether documents should be suppressed on grounds of national security, and that any event great weight would always be given to any ministerial view. Documents such as cabinet papers, he felt, would not be disclosed until they were of historical interest only. On other matters, such as the effect of disclosure of documents on the smooth running of a public service, the courts were in just as good a position as the minister to decide what should and should not be produced.

Conclusion

In civil proceedings a judge has no discretionary power even though its disclosure is relevant, central issue and necessary for the achievement of justice in the particular case. But where a confidential relationship exist (excluding lawyer and Clint) and disclosure would be in breach of some social or ethical value involving public interest, then they has discretion to uphold a refusal to disclose relevant evidence. The court may proceed to a balancing process if the sole touchstone is the public interest and to prove public interest it need to show that the party acted under some duty. However, Relevant confidential information which was communicated does not inevitably mean that it need not be disclosed unless it is the subject matter of public interest.

Bibliography

Allen, C. Practical Guide to Evidence, (2004), 3^rd edition, Cavendish Publishing, [ISBN: 978-1-859-41899-4].

Dr Michael, S., Rebecca M and et al, (2007), Nutcases Evidence, 1^st edition, Sweet & Maxwell, UK, ISBN: 9781847030603.

Keane, A., The Modern Law of Evidence, (2005), 6^th edition, Oxford University Press, [ISBN: 0406975795].

Murphy, P., Murphy on Evidence. (2005), 9^th edition, Oxford: Oxford University Press, [ISBN: 0199281130].

Maureen, S., & John S., (2007), Evidence: Questions & Answers, 5^th edition, Oxford University Press, ISBN: 9780199260843.

Footnotes

[1979] 3 All E.R 700 at 708 f-g.
[1942] AC 624.
[1968] AC 910.
[1983] 2 AC 394.
[1979] 3 All E.R 700 at 708 f-g.
[1979] 3 All E.R 700 at 708 f-g.
[1968] AC 910.
[1973] AC 388.
[1978] AC 171.
[1983] 2 AC 394.
[1995] 1 AC 274.
[1991] 1 WLR 281.
[2002] 2 Cr AppR 617, CA.
[2004] 1 All ER 1269, HL.
[1998] BHRC 293.
[1989] AC 53.
(1890) 25 QBD 494.
(1890) 25 QBD 494.
[1973] AC 388.
[1974] AC 405.
[1992] 1 WLR 217.

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