Public Interest Immunity

“Public interest immunity” – or PII – is probably the best known of the ways in which the term “public interest” can be used in the courts. It is, essentially, a rule of evidence whereby one party to proceedings argues that certain documents that it has in its possession should not be disclosed to the other party because it would be prejudicial to the “public interest” to do so. In all such cases, the question of disclosure is ultimately one for the court, which must decide how to balance public interest arguments against disclosure against the public interest in “open justice”. When striking the balance, the courts will of course have regard for the context to the case and it may be that they would be reluctant to second-guess an argument that the interests of national security militate against disclosure. But that does not also mean that such disclosure would not be ordered as the court may still conclude that disclosure is necessary in the interests of “open justice”. In that instance, government would either have to disclose the information or, if it wished to keep it secret, concede the case in question.  

One of the areas of law in which arguments about PII arise most frequently is criminal law where the prosecution may wish not to disclose certain information to a defendant (for instance, information that could lead the defendant to identify a police informant). In that context, there is an important overlap between common law principles on “open justice” and those contained in Article 6 ECHR. In the leading case on the overlap – R v H [2004] UKHL 3, – the House of Lords held that a trial judge should give detailed consideration to the information in question, noting the nature of the public interest claimed and ensuring that any departure from full disclosure is no more than is necessary in the context of the case. This may require the trial court to modify some of its procedures to guarantee that the requisite scrutiny is given to the claim, for  example by inviting submissions from special counsel for the defendant where the prosecution makes an application for PII in the absence of the defendant. However, if such scrutiny and so on is achieved, the House of Lords was of the view that claims for PII can accord with Article 6 ECHR.

The relationship between open justice and PII was also considered by the Supreme Court in its ruling in Al Rawi v Security Service [2011] UKSC 34. This was a claim for damages made by a number of men who had been detained by foreign forces at, among other places, Guantanamo Bay and who alleged that the UK Security Service had been complicit in their ill-treatment. When defending the claim, the Security Service argued that the demands of national security meant that part of the trial should be “closed” in the sense that the claimants would not be given direct and immediate access to various pieces of evidence (they would instead be represented by so-called “special advocates”). Although the case was eventually settled out of court, the Supreme Court still heard argument about “closed” hearings given the importance of the issues raised. It held that the common law would not facilitate the creation of closed hearings in tandem with those that are open as this would be contrary to the fundamental principle of open justice. Where governmental bodies wish to rely upon arguments about national security etc, they must therefore do so under the law on PII which already provides protection for State interests where that is merited. 

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