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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
Secondary Sources: 24
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.
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  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
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
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
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
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 inspect documents disclosed by the other party.
Civil Procedure Rule 31.3
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?
In this Chapter 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.
Let us commence with an analysis of three relevant criminal law cases; namely A Metropolitan Borough Council v S (a child by his Guardian)  EWHC 976, Re W (children) (care proceedings: disclosure)  EWHC 1624 and R v H, R v C  UKHL 3. This analysis will provide us with some insight in regard to (i) how seriously the Courts value the rule/ principle distinction; and, (ii) how the Courts approach the 'balancing act' of the interests of the whole with the rights of the individual in cases where two conflicting principles or rules are in play.
A Metropolitan Borough Council v S (a child by his Guardian)  EWHC 976
The case of A Metropolitan Borough Council v S (a child by his Guardian)  EWHC 976 concerned the tension between PII and the right of an individual guardian to have access to local authority records. This right is provided by section 42 of the Children Act 1989 which states: Where a person has been appointed as a guardian ad litem under this Act he shall have the right at all reasonable times to examine and take copies of (a) any records of, or held by, a local authority which were compiled in connection with the making, or proposed making, by any person of any application under this Act with respect to the child concerned; or (b) any other records of, or held by, a local authority which were compiled in connection with any functions which stand referred to their social services committee under the [1970 c. 42.] Local Authority Social Services Act 1970, so far as those records relate to that child. The Court held, in this case, that the local authority were not entitled to claim PII because section 42(3) of the 1989 Act makes it clear that the right provided by section 42(1) of the 1989 Act, has effect regardless of any enactment or rule of law which would otherwise prevent the record in question being admissible in evidence. In this case, the Court argued that even though PII could not apply, its interests were not prejudiced by this decision because, in the hands of the guardian the documents remained confidential.
This case demonstrates that when a rule-based legal provision provides an individual with a right of disclosure, the Courts are unwilling to allow considerations of the public interest to override that right. What is not clear from this case is whether or not the same conclusion would have been reached if the interests of PII had been severely prejudiced as a result of allowing the guardian to enjoy limited disclosure.
Re W (children) (care proceedings: disclosure)  EWHC 1624
In the case of Re W (children) (care proceedings: disclosure)  EWHC 1624, a local authority sought directions from the Family Division on the issue of whether or not it had to disclose a written statement made by a social worker about a particular mother to that woman, her family or her legal representatives. The main concern was that this statement contained the name and address of a key narcotics informant and that the life of this informant might be put at risk if full disclosure was to be granted. In this case, Wall J held that non-disclosure of relevant information in care proceedings is the exception rather than the rule, and should only be ordered when the case for it is compelling. In evaluating the case for granting PII, Wall J considered not only the risks to the informant that would be posed by full disclosure, but also to the Police force in being able to do its job properly and provide the local authority with such confidential information in the future. Additionally, Ward J held that it is important to establish whether or not there is a way to reconcile the public interests of PII with the mother's right to disclosure in preparing for her case in the forthcoming care proceedings. In this case, he held that there was such a way; namely, to grant the mother's legal representatives full disclosure but to only allow the mother herself to be privy to the 'substance of the allegations'.
This case required not only the balancing of the rights of the whole with the rights of the individual defendant, but also the rights of the individual witness with the rights of the defendant. In this latter regard, our analysis of this case must be seen to fall outside the strict scope of this paper, which is concerned only with the reconcilability of the public interest with individual rights. Nevertheless, this case does provide a useful insight into the way that the Courts strive to find a compromise solution whenever there are competing rights which cannot easily be reconciled. The decision in this case to allow full disclosure to the legal representatives of the defendant but only limited disclosure to the defendant herself demonstrates this point nicely. In the case of R v H, R v C  UKHL 3, which we will examine next, this point has not only been made by the Courts but has been drafted into a formal methodology for use by the Courts in such difficult cases.
R v H, R v C  UKHL 3
In this case, the House of Lords appointed a special counsel to represent the interests of the defendant in an ex parte PII hearing. The House of Lords held (at 37) that in criminal cases, the Courts should depart from the 'balancing act' which was advocated in the case of R v Ward  1 WLR 619 and rather follow an approach based upon answering seven sequential questions. The flow chart below describes these questions and demonstrates how they should be applied in any given case:
One might argue that it is not appropriate for the Special Counsel to be appointed on behalf of the defendant, for this procedure, while admittedly reserved for exceptional cases only, contravenes Article 6(3)(c) of the Human Rights Act 1998 which states that: Everyone charged with a criminal offence has the following minimum rights: ... (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; (emphasis not added)
As Lord Steyn opined in the case of Roberts v Parole Board  UKHL 45 (at 88): It is not to the point to say that the special advocate procedure is 'better than nothing'. Taken as a whole, the procedure completely lacks the essential characteristics of a fair hearing. It is important not to pussyfoot about such a fundamental matter: the special advocate procedure undermines the very essence of elementary justice. It involves a phantom hearing only. That having been said, it does at least offer a compromise solution.
Let us now turn to examine how the Courts have traditionally justified being able to balance the individual rights provided under the Human Rights Act with the public interests of PII:
In regard to the application of Article 6 of the Human Rights Act 1998, which imports Article 6 of the European Convention on Human Rights into UK law, the Courts of Strasbourg have argued that it is possible to reconcile non-disclosure with an individual's Article 6 convention rights. Lord Philips in the recent case of Secretary of State for the Home Department v MB  1140 (at 80) acknowledged this fact: The Strasbourg court has accepted that there can be circumstances where material evidence need not be disclosed in order to satisfy the requirements of Article 6. He went on to say (at 86): If one accepts, as we do, that reliance on closed material is permissible, this can only be on terms that appropriate safeguards against the prejudice that this may cause to the controlled person are in place. We consider that the provisions of the PTA for the use of a special advocate ...constitute appropriate safeguards, and no suggestion has been made to the contrary.
However, not all commentators agree with this analysis. Human Rights Watch (2005) have criticized the use of secret evidence heavily as being a breach of fundamental convention rights: The use of secret evidence in closed proceedings without the ability of the person subject to a control order to confront the evidence against him in person with assistance of counsel of his choice violates fundamental due process standards enshrined in human right treaties and the English common law.
In regard to the right provided by Article 6(3)(d): We have argued earlier that because this right is unqualified, it should be considered a legal rule. However, in the case of Kostovski v Netherlands, (1990) 12 EHHR 434 and also in the case of X v UK (1993) 15 EHRR CD 113, the European Courts held that it is appropriate to take into account the general public interest when interpreting the extent of any rights provided by Article 6 of the European Convention. At first glance, one might argue that the decisions in these cases undermine the rule-based nature of the rights provided by Article 6(3) of the Human Rights Act 1998 and also of the Convention. However, upon a closer inspection of the decisions in these cases it becomes clear that the European Commission of Human Rights was not advocating a qualified approach to the interpretation of Article 6, but rather was suggesting that in cases where there is a pressing need to protect the identity of a witness to criminal proceedings then there may be a way to reconcile this public interest with the rights of an individual 's rights under Article 6 of the Convention. For example, in Kostovski v Netherlands (1990) 12 EHHR 434, Baegen (at 77) held: [I]n criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence. Justice (2005) have summarized this point eloquently in Margaret Anderson Brown v Procurator Fiscal, Dunfermline: When assessing the extent to which the general public interest can be taken into account in the interpretation of Article 6 rights, the European Court of Human Rights primarily has regard to the purpose and character of the right in question. So, for example, in Kostovski, the Court recognised the legitimacy of interpreting Article 6(3)(d) in such a way as would protect the rights of witnesses in genuine fear of reprisals, but found a breach of that provision because, on examination, the approach adopted in that case did not ensure a fair trial. The evidence of two anonymous witnesses was taken before the examining magistrates and then presented in hearsay form at the applicant's trial. Although the defence lawyers were permitted to ask questions of the magistrates at the trial, they had not been present at the earlier stage, and this defeated the purpose of Article 6(3)(d) which is to give the defence, at some stage of the proceedings, an adequate and proper opportunity to challenge and question prosecution witnesses.
The case of X v UK (1993) 15 EHRR CD 113 provides a clear example of how such reconciliation may be achieved in practice. In this case it was decided that the identity of a vulnerable witness should be protected. Therefore, the witness was asked to give her testimony from behind a screen so that only counsel and the judges could see the face of the witness. It was argued by the defendant's representatives that this practice amounted to a breach of Article 6(3)(d) of the European Convention of Human Rights. The Court held that even though the defendant had not been able to see the witness, his ability to hear the testimony of that witness and challenge that testimony in open Court had not been prejudiced. In other words, the prosecution and the Courts had found a way to balance the public interest in protecting the witness with the individual right of the defendant.
On the face of it, it would seem that generally the Courts have tried not to undermine the rule-based nature of the individual rights provided by the Human Rights Act. However, in cases where it is not possible to find a compromise solution, the Courts have tended to couch these rights in the language of public policy, treating the considerations as conflicts of principle rather than resolutions of conflicting rules. For example in the case of R v. Agar, the then Lord Justice Mustill recognised that:There was a strong ... overwhelming public interest, in keeping secret the source of information: but, as the authorities show, there was an even stronger public interest in allowing a defendant to put forward a tenable case in its best light. Similarly, the then Justice Phillips stated, in the decision in R v. Clowes, that I do not find easy the concept of a balancing exercise between the nature of the public interest [against production of the documents] on the one hand and the degree and potential consequences of the risk of a miscarriage of justice on the other.
In conclusion, it would seem that the Courts have indeed found a way to reconcile the public interests of the whole with the rights of the individual. However, the concerns regarding the use of special counsel cannot be ignored, and the resultant conclusion is that the Courts have not always managed to reconcile these rights successfully without compromising the individual rights to some extent.
In regard to the legitimacy of the Courts' approach: In Chapter 2 of this paper we argued that the majority of legal provisions from which individuals rights to full disclosure can be derived, particularly in criminal proceedings, are rule-based and therefore cannot legitimately be overridden by public interest principles of the kind identified in Chapter 1 of this paper. That having been said, in practice, decisions are not always clear-cut and it would be remiss of the law to apply a legal rule in its strictest form where to do so would undermine legitimate concerns in regard to the public interest. I would therefore argue that while the Courts have not always managed to honour the rules pertaining to the interoperability of rules and principles, there may exist in certain cases utilitarian-style arguments which can justify exceptional deviations from the norm.
One such school of thought is the liberal political movement which, as George (1989) p245 notes, ...has long been concerned with the problem of individual rights and collective interests. John Mill himself argued that individual rights are in fact collective interests, because they only exist because it is beneficial to society as a whole that individuals be allowed to enjoy certain rights. Under this conceptualization of the problem, one could argue that there is no problem reconciling the interests of the whole with the rights of the individual because they are one and the same. While modern theorists have criticized this approach, predominantly because they fear it would undermine the 'absolute' nature of individual rights, it cannot be denied that there will be occasions where PII will prevent more harm than that which will be suffered by the individual who's rights are compromised by its grant. For example, where a document reveals a top-secret anti-terrorism initiative which could potentially save the lives of many thousands of people, then it may be justified to sacrifice the rights of one defendant, especially if practical initiatives are introduced to try to mitigate that compromise, such as the employment of special counsel in exceptional criminal trials.
Chapter 4: Conclusions.
Drawing together the findings of our earlier analyses, let us now try to provide an answer to the question: Can the interests of the whole be reconciled with the rights of the individual?
As we have argued in the previous chapter, the answer to this question may vary depending upon whether one adopts a theoretical perspective or a practical one.
In theory, it is never legitimate to utilize public interest principles to override rule-based individual rights. In general, the Courts have paid homage to this theory. For example, in the case of A Metropolitan Borough Council v S (a child by his Guardian)  EWHC 976 we have seen how the Courts were unwilling to consider the public policy justifications for granting PII because the legal right which the guardian was relying upon was one based upon a clear unqualified legal rule; namely, section 42(3) of the Children Act 1989. One might argue that this demonstrate an instance of where the interests of the whole cannot be reconciled with the rights of the individual; after all, in this case only the rights of the individual were taken into account.
However, in other cases we have seen the Courts showing an increased willingness to find a compromise solution under which both the interest of the whole and also the rights of the individual can be satisfied. Often, this requires some judicial ingenuity, and it is not always successful in wholly reconciling the public interest with the rights of the individual. An example of a case where it was wholly possible to find reconciliation is the case of X v UK (1993) 15 EHRR CD 113, in which the identity of the witness was masked from the defendant, but his right to question that witness through cross-examination was not affected. An example of a case where it was not wholly possible to find reconciliation is the case of R v H, R v C  UKHL 3, for while a compromise solution was utilized in this case, the solution was itself a breach of the defendant's right to appoint his own legal representation, or so we have argued.
Therefore, while in theory it might seem that, because the majority of legal provisions from which individuals rights to full disclosure can be derived, particularly in criminal proceedings, are rule-based, and because the interests of the whole are predominantly based upon public policy principles, that the interest of the whole can not be reconciled with individual rights, the fact that the Courts have been willing to find new ways to achieve protection of individual rights, ways which also serve the public interests which justify the grant of PII, means that in practice this is no longer strictly true.
The new approach advocated in the case of R v H, R v C  UKHL 3 and explained in Chapter 3 of this paper should be seen as setting out a new future for reconciliation in this regard. The entire approach is based upon trying to find compromise solutions which achieve the minimum level of procedural fairness while at the same time achieve the maximum level of public interest protection.
In final conclusion to the question I would therefore argue: Yes, the interests of the whole can sometimes be reconciled with individual rights, and in the UK will increasing be so as the Courts are bound to follow the new approach laid down in the case of R v H, R v C  UKHL 3. However, there will always remain occasions where reconciliation is not possible, due to the inherent tension which exists between the rights of an individual to enjoy full disclosure and the interests promoted by PII.
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