Public Interest and Immunity

TITLE: Public Interest Immunity: Can the interests of the whole be reconciled with the rights of the individual?

Table of Contents

1. Abstract 1

2. Introduction 2

2.1 Background: 2

2.2 The Structure of the Paper: 3

2.3 The Methodology: 4

2.4 The Distinction between Rules and Principles: 5

Chapter 1: PII and the interests which it purports to protect. 6

Chapter 2: The rights of the individual to enjoy full disclosure in criminal and civil law proceedings: 10

The rights of the individual to enjoy full disclosure in criminal proceedings: 10

The rights of the individual to enjoy full disclosure in civil law proceedings: 12

Chapter 3: How have the Courts traditionally reconciled the public interest with the rights of the individual, and are these methods legitimate, in theory, taking into account the rule- or principle- based nature of these respective interests and rights? 14

Chapter 4: Conclusions. 21

References/ Bibliography: 22

Cases: 23

Statutes: 23

Secondary Sources: 24

1. Abstract

In this paper, the justifications for the existence of public interest immunity will be examined. In particular, the author will analyse the interests that this form of immunity seeks to protect and determine to what extent these interests exist in tension with the rights of the individual. Through an examination of the jurisprudence in this area and relevant secondary literature, the author will provide a critical analysis of the various rationales which have been employed by the Courts of England and Wales (and also the Courts of international jurisdictions) to justify the imposition of public interest immunity over the rights and interests of individual respondents. In conclusion, the author will provide a summary of those circumstances under which it is either necessary or justified to invoke public interest immunity and will argue that as long as the immunity is only utilized within these strict parameters then yes, the interests of the whole can be reconciled with the interests of the individual.

2. Introduction

2.1 Background:

An high-level definition of public interest immunity [‘PII’] was provided in the case of R v. Chief Constable of West Midlands, ex p Wiley^, in which it was stated: Public interest immunity is a ground for refusing to disclose a document which is relevant and material to the determination of issues involved in civil or criminal proceedings. A claim [for] public interest immunity can only be justified if the public interest in preserving the confidentiality of the document outweighs the public interest in securing justice.

In this case, Lord Woolf set out the questions which must be answered in order to determine whether or not PII should be granted in regard to a particular document/ piece of information. These enquiries are as follows:

I. Enquiries to be made by government ministers:

This generally applies to applications for PII made by government ministers. Before submitting the claim to the Courts the decision-makers must engage in a ‘balancing exercise’ to determine on the balance of probabilities whether the prima facie duty to disclose outweighs the duty to grant PII on the document/ information in question. Where this body feels that it does, then it will discontinue the case, effectively allowing disclosure of the document; but, where it is uncertain or feels that it does not, then it will submit a certificate to the Court requesting that PII be granted, providing reasons for its decision. The Court will then decide if PII should be granted.

II. Enquiries to be made by the Court:

Is the document/ information relevant to the proceedings to the extent that there is a prima facie duty to disclose that document to all parties involved in the proceedings?

If the answer to the first question is yes, then are the contents of the document/ information of the kind which are capable of attracting PII or does the document fall within a class of documents which is recognized as being able to attract PII?

From the nature of these procedural enquiries it can be seen that there exists a tension between the rights of an individual litigant (or group of litigants) to enjoy full disclosure of all documents relevant to his case and the public interests which justify the imposition of PII; after all, where such a tension does not exist the Courts will either deem the document/ information irrelevant by virtue of enquiry II(1) (supra), in which case there is no need for PII to be granted as the document will not be admitted into the proceedings anyway; or, incapable of attracting PII because it’s content are not of the kind or the document is not of the class which can attract PII. It is with this tension that this paper is concerned.

2.2 The Structure of the Paper:

The structure of this paper will take the following form:

In Chapter 1 of this paper, the author will seek to identify the public interests which PII is capable of protecting, and critically evaluate the ability of these interest to provide a legitimate basis for the imposition of PII. In order to identify the various arguments which have been cited in support of the existence of PII, the author will examine the dicta of the Courts, both domestic and to a lesser extent international, and also relevant secondary literature on this matter. Throughout this chapter the author will seek to distinguish between those justifications for PII which are no more than ‘legal principles’ and those justifications which should be considered ‘legal rights’.

In Chapter 2 of this paper, the author will critically examine the right of the individual to enjoy full disclosure in legal proceedings to which he is party. In particular, the author will examine the legal bases for these rights, if any, and again will seek to distinguish between those ‘rights of disclosure’ which should be regarded as ‘legal principles’; and, those ‘rights of disclosure’ which should be considered ‘legal rights’ or fundamental rights.

In Chapter 3 of this paper, the author will examine how, in practice, the law has approached the ‘balancing act’ between the rights and principles identified in Chapter 1 of the paper and those corresponding principles and rights identified in Chapter 2. The author will critically evaluate this approach through reference to contemporary legal theory on the interoperability of legal rights and legal principles. At the end of this chapter the author will briefly revisit the earlier analysis, approaching the issue from an utilitarian perspective; in some cases it may well be necessary and justified to defeat the rights of an individual in order to effect the rights of a larger group of individuals or society as a whole, even where such practices contravene the legal scriptures pertaining to the theoretical nature of legal rule-based rights.

In Chapter 4 of this paper, the final Chapter, the author will attempt to provide an answer to the question of this paper, and describe the circumstances under which the rights of the whole can be reconciled with the rights of the individual, in theory or in practice. Some recommendations for legal reform may be offered in the Chapter.

2.3 The Methodology:

The primary methodology of this paper will take the form of a literature review. Sources will be selected on the basis of their relevance to the legal and theoretical issues with which this paper is concerned. The question of this paper asks: ‘Can the interests of the whole be reconciled with the rights of the individual?’ This enquiry is very different in nature to the question of : ‘Does the law manage to successfully reconcile the interests of the whole with the rights of the individual?’ The first enquiry is concerned with the question of whether it is possible to reconcile the tension identified; whereas, the second enquiry is concerned with the adequacy of the ways in which our legal system deals with this tension on a case by case basis. In light of the fact that this paper is predominantly concerned with the former of these two enquiries, it is wholly justified to remove all jurisdictional limitations from our source selection criteria.

2.4 The Distinction between Rules and Principles:

Throughout this paper, whenever a legal source is identified the author will assess whether that source should be considered a ‘rule’ or merely a ‘principle’. The reason that such a determination is important is that rules interact with one another differently to the way that principles interact, either with rules or with other principles. In order to determine whether the ‘interests of the whole’ can be reconciled with the ‘rights of the individual’, it is therefore necessary to identify which interests of the whole are based upon legal rules and which are based upon legal principles, and likewise with our analysis of the ‘rights of the individual’. Only in this way will we be able to determine which of the interests of the whole can be reconciled legitimately with the rights of the individual.

At the forefront of legal theory on the distinction between legal rules and legal principles is Ronald Dworkin. Dworkin conceptualizes the distinction between rules and principles in terms of their legal effect: Rules set out conditions which, if breached, result in pre-defined consequences; whereas principles provide general conditions which, if breached, may result in a pre-defined consequence in the majority of cases, but will not where other principles or rules apply to negate that principle. In other words, rules must be applied in an all-or-nothing way, whereas principles can be used in conjunction with one another to decide on the most appropriate legal consequences. As Dworkin (1967) writes: Even those principles that look most like rules do not set out legal consequences that follow automatically when the conditions provided are met. We say that our law respects the principle that no man may profit from his own wrong, but we do not mean that the law never permits a man to profit from wrongs he commits. In fact, people often profit, perfectly legally, from their legal wrongs. The most notorious case is adverse possessionif I trespass on your land long enough, some day I will gain a right to cross your land whenever I please. The natural implication of this analysis is that legal rules with opposite effects cannot be reconciled, whereas a legal principle can be reconciled with a contrary legal right or applicable legal principle.

The relevance of this conclusion to our current debate is as follows: If an individual’s right to disclosure is a rule, rather than a principle, then it is difficult to see how this rule can be avoided unless there is superceding legal rule which allows for PII to ‘trump’ this individual right, for example. However, if an individual’s right to full disclosure is provided by a legal principle, then it can be legitimately avoided by utilizing either a principle or a rule which allows for the grant of PII in the circumstances.

Therefore, in theory, we can provide an answer to the question at the top of this paper: ‘Can the interests of the whole be reconciled with the rights of the individual?’ Yes, so long as the legal basis for the rights of the individual are principles rather than rules.

Chapter 1: PII and the interests which it purports to protect.

Its is important to note at the outset, that PII is not only designed to protect the interests of the government, but also, under certain circumstances, the rights of individuals and also other bodies, such as public and private corporations. As Leigh (1995) p2 writes: PII does not exist solely for the protection of the government (other bodies and individuals may benefit from it where it is in the public interest) and nor is it the only restriction in the law of evidence on the release of confidences (various professional communications are privileged under other rules). In this chapter we will identify each of the classes of person or body that can benefit from the grant of PII and determine to what extent each of these interests provide a legitimate basis for the existence of PII.

A useful starting point for our analysis, are the Attorney General’s Guidelines on Disclosure of Information to the Defence in Cases to be Tried on Indictment: [A statement will be said to contain sensitive material worthy of PII if – ] (a) It deals with matters of national security; or it is by, or discloses the identity of a member of the Security Services who would be of no further use … once his identity became known; (b) It is by, or discloses the identity of, an informant and there are reasons for fearing that disclosure of his identity would put him or his family in danger; (c) It is by, or discloses the identity of, a witness who might be in danger … if his identity became known; (d) It contains details which, if they became known, might facilitate the commission of other offences.

From this statement, it is clear that one group of individuals the identity of which public authorities often seek to protect through PII is the criminal informant. Not only might disclosure of the identity of a criminal informant prejudice the safety and well-being of that informant, but also, if disclosure of such documents (containing details of an informant identity) were to be generally allowed, then it is likely that the number of willing criminal informants in the UK would decrease significantly, undermining a valuable tool of the Police Service. It should be noted that other government agencies might also be affected; for example, the Social Services, who often receive tip-off’s from the police in regard to the criminal conduct of their clients or those people with whom their clients reside. Additionally, one cannot ignore the operational expenses which would result from having to place and keep informants in witness protection if the Courts forced their identities to be be disclosed on a regular basis, in criminal proceedings.

Prima facie, the justification for invoking PII in these types of cases seems sound, even if only for the protection of informants themselves, who are highly likely to be at risk of harm if documents containing details of their identity were to be given to defendants in criminal proceedings. Sir Richard Scott (1996) seems to agree with this assertion, and argues that the law is settled on this issue: Documents disclosing the identity of an informant, or disclosing the channels through which information about the offence has been obtained by the prosecuting authority, will not ordinarily be made available to the accused, nor will questions of witnesses designed to reveal this information be allowed, unless, in either case, the disclosure is necessary to prevent a miscarriage of justice. This principle was well established at least as long ago as 1890… [i]n Marks v Beyfus (1890) 25 QBD 494.

The legal bases for these justifications are varied. In regard to protecting the identity of criminal informants, by virtue of Article 8 of the Human Rights Act 1998, public bodies are under a duty not to interfere with the private and family lives of UK citizens and in the case of Perry v UK Application 63737/00 17 July 2003 it was held that this duty extends to protect the personal information of those persons who have been compelled to provide such information by the state, such as criminal informants. Of course, this duty is subject to the exceptions provided by Article 8(2) of the 1998 Act which states: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In light of the qualified nature of this right and its corresponding duty on the state, it is difficult to argue that Article 8 of the Human Rights Act 1998 is a rule-based provision. Rather, it is a principle, providing that, in general, the state is under a duty not to reveal the identities of its informants, except when there is an overarching reason why such disclosure is justified.

In regard to the other justifications, which centre around the aim of protecting the efficiency of public services such as the Police and the Social Services for the benefit of society as a whole, it is difficult to identify specific rule-based legal sources which legitimize these justifications, other than the general constitutional principles which set-out the duties of public bodies to act in the interests of the public. For example, the Code of Conduct for Members of Parliament, which states, inter alia, that: Members shall base their conduct on a consideration of the public interest, avoid conflict between personal interest and the public interest and resolve any conflict between the two, at once, and in favour of the public interest.

Moving on to examine some additional justifications which have been invoked to justify the grant of PII: A class of documents which are often the subject of PII certificates are government documents, especially those which contain sensitive political information. The justifications put forward for granting PII over these documents are various. For one example, such documents may contain details of confidential diplomatic communications, the disclosure of which could result in damage to international relations. For another example, such documents may contain details of regulatory processes, the disclosure of which might undermine the operations of those processes; for example, such documents may contain details of anti-terrorism strategies which, if disclosed, would undermine the operation of those strategies as Terrorist cells adapt their criminal behaviour to avoid prosecution. As a former Attorney General, Sir Nicholas Lyell once commented: It is impossible in advance to describe such damage exhaustively. The damage may relate to the safety of an individual, such as an informant, or to a regulatory process; or it may be damage to international relations caused by the disclosure of confidential diplomatic communications….Normally it will be in the form of direct and immediate harm to, for example, the nation’s economic interests or our relations with a foreign state. In some cases, it may be indirect or longer-term damage to which the disclosure of the material would contribute, as in the case of damage to a regulatory process.

These justifications for the grant of PII are valid so long as the information contained within the government document in question is capable of causing real harm to, for example, national security or international relations. However, where, on the balance of probabilities, disclosure of the document is unlikely to cause any real harm, then these justifications obviously must fail. It is difficult to identify the source of the legal principle that the state must act to preserve national security and international relations, but for the purposes of this discussion it is only necessary to establish that this duty is principle- rather than rule-based.

In conclusion, in this short chapter we have examined some of the justifications for granting PII. We have seen that, apart from the justification which was based upon preserving the health and lives of criminal informants, the justifications for the imposition of PII are generally centred around the public interest of protecting society as a whole; for example, by protecting society from breaches of national security, or protecting the efficiency of public services such as the Police and the Social Services. We have also argued that the duty of the state to protect these interests is based upon legal principles rather than legal rules.

In the next chapter of this paper we will examine the ‘rights of the individual’ to enjoy full disclosure in civil and criminal proceedings, identify the legal sources for these rights, and determine to which rights can be regarded as being rule-based and which must be considered principle-based.

Chapter 2: The rights of the individual to enjoy full disclosure in criminal and civil law proceedings:

The primary legal source for the rights of individuals in the UK to enjoy full disclosure in legal proceedings is the Human Rights Act 1998. In this Chapter, inter alia, we will identify which provisions of the Human Rights Act 1998 can be said to give individuals such rights, and whether these rights a rule-based or principle-based. Because the provisions giving individuals rights to non-disclosure in criminal trials are not (all) the same as those which give individuals similar rights in civil law proceedings, we will divide our analysis in this chapter into two sections, accordingly:

The rights of the individual to enjoy full disclosure in criminal proceedings:

Article 6(3) of the Human Rights Act 1998 provides that: Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Of particular relevance to the right to disclosure are the rights provided by Article 6(3)(b) and (d) of the 1998 Act. One might argue that by not allowing a defendant and/or his legal representatives to have sight of all relevant evidence, that defendant is being deprived of adequate facilities for the preparation of his defence. Likewise, by failing to disclose the statements of criminal informants, a defendant is deprived of a chance to examine or have examined all witnesses against him. Article 6 therefore gives individual defendants a right, inter alia, to examine and challenge any evidence which is used against them in a criminal court of law.

Likewise, Article 5(4) of the Human Rights Act 1998 states: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Some authors have argued that this Article also gives individual criminal defendants the right to examine evidence used against them. In fact some commentators have gone as far as suggesting that Article 5(4) of the 1998 Act provides a valid ground upon which an individual defendant could contest the lawfulness of decision made by a criminal court of law, where that defendant was not given a chance to examine and challenge the evidence admitted in support of that decision. For example, in the case of Roberts v Parole Board [2005] UKHL 4, Lord Bingham stated: I would doubt whether a decision of the Board adverse to the appellant, based on evidence not disclosed even in outline to him or his legal representatives, which neither he nor they had heard and which neither he nor they had had any opportunity to challenge or rebut, could be held to meet the fundamental duty of procedural fairness required by article 5(4).

In considering the legal nature of these rights it is important to note that not all rights provided by the Human Rights Act can be considered ‘legal rights’, per se. After all, we argued earlier that Article 8 of the Human Rights Act 1998, which provides a right to enjoy freedom of expression, is actually a legal principle because it is accompanied by ‘public interest’ qualifications which prevent its breach from being classed as unlawful automatically.

However, in regard to the rights provided by Article 6(3) of the 1998 Act, these ‘minimum rights’ are not accompanied by any ‘public interest’ qualifications and must therefore be considered legal rules. Even if one interprets Article 6(3) through reference to Article 6(1), which does contain a reference to ‘public order’ and ‘national security in a democratic society’, it has been argued that the rights provided by Article 6 of the 1998 cannot be considered generally subject to the public interest. As Justice writes: Article 6 of the European Convention on Human Rights (ECHR) is subject to very special rules of interpretation: unlike rights of an absolute nature, such as Articles 2 and 3, the general public interest is relevant to its interpretation, but, unlike rights of a qualified nature, such as Articles 8 to 11, a breach of Article 6 can never be justified by reference to the general public interest. In other words, the general public interest can be taken into account when determining what the right to a fair trial under Article 6 means in any given context; but, once that meaning has been properly determined, Article 6 assumes an absolute character, such that no-one should be denied a fair trial because the general public interest so demands.

In regard to the individual right provided by Article 5(4) of the Human Rights Act 1998: Again, there does not appear to be any public interest qualifications contained within the wording of provision. For this reason, it must be argued that Article 5(4) of the 1998 Act is a rule-based provision.

In conclusion, the rights of the individual to full disclosure in criminal proceedings can be summarized as follows:

Description of Right	Legal Source	Principle- or Rule-based?
The right to enjoy a fair trial.	Article 6(1) of the Human Rights Act 1998	Rule-based [although principles of public policy can be utilized by the Courts to determine the scope of the rule]
The right to cross-examine all witnesses and examine all witness statements.	Article 6(3)(d) of the Human Rights Act 1998	Rule-based
The right to be given adequate facilities to prepare a defence.	Article 6(3)(d) of the Human Rights Act 1998	Rule-based [although the definition of ‘adequate’ is subject to judicial interpretation]
The right to challenge a decision which is based upon undisclosed evidence.	Article 5(4) of the Human Rights Act 1998	Rule-based

The rights of the individual to enjoy full disclosure in civil law proceedings:

Article 6(3) and Article 5(4) of the Human Rights Act 1998 apply only to criminal law proceedings. However, Article 6(1) does apply to both civil and criminal law proceedings. Therefore, an individual cannot rely upon Articles 6(3) and 5(4) of the Human Rights Act 1998 to establish a right to full disclosure, but could argue, if non-disclosure was likely to significantly undermine the fairness of the proceedings, that his right to a fair trial under Article 6(1) of the 1998 Act has been breached.

Additionally, an individual can rely upon his rights under Part 31 of the Civil Procedure Rules [CPRs], which provide the practice rules on disclosure of documents in civil law proceedings.

CPR 31.3 describes the circumstances under which a civil litigant is entitled to inspect documents which the opposing litigant has disclosed: (1) A party to whom a document has been disclosed has a right to inspect that document except where – (a) the document is no longer in the control of the party who disclosed it; (b) the party disclosing the document has a right or a duty to withhold inspection of it; or (c) paragraph (2) applies. (Rule 31.8 sets out when a document is in the control of a party) (Rule 31.19 sets out the procedure for claiming a right or duty to withhold inspection) (2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) – (a) he is not required to permit inspection of documents within that category or class; but (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.

It should be noted that the right to inspection is subject to ‘the party disclosing the document [not having] a right or [being subject to] a duty to withhold inspection of it’. Such a right or a duty will only be held to exist where the party purporting to have such a right or duty is able to satisfy the court that disclosure of the document would ‘damage the public interest’. This is provided by CPR 31.19(1). Additionally, CPR 31.19(8) strengthens this public interest qualification by providing that: This Part does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest.

In light of these public interest qualifications, it must be argued that the CPR 31.3 right of a litigant to full disclosure in civil law proceedings is a principle-based right rather than a rule-based right.

In conclusion, the rights of the individual to full disclosure in civil law proceedings can be summarized as follows:

Description of Right	Legal Source	Principle- or Rule-based?
The right to enjoy a fair trial.