In the latest instalment of a continuing series, we offer advice on the issues that face solicitor-advocates


Q What is a PII application and how is it now dealt with in the criminal courts?



A Material held by the prosecution that weakens its case or strengthens the defendant's case should be disclosed to the defence.



Public interest immunity (PII) applications arise usually when the prosecution wishes to withhold information it has on the grounds that public interest in non-disclosure outweighs disclosure. One example is the withholding of information concerning the prevention, detection and investigation of crime.



The way in which the court should deal with such applications was considered recently by the House of Lords in a case where the Attorney-General appeared for the Crown (R v H&C House of Lords, 6 February 2004).



The Law Lords said three classes of cases could be identified:



- In most cases, the prosecution has to notify the defence that it is applying for a court ruling and has to indicate to the defence at least the category of the material it holds - namely, the broad ground on which immunity is claimed. And the defence has to have the opportunity to make representations to the court. There would be a party-and-party hearing in open court.



- Cases where the prosecution contend that the public interest would be injured if disclosure were made even of the category of the material. In these cases, the prosecution still has to notify the defence of the application but the category of material need not be specified. It is important to note that the defence will still have an opportunity to address the court on the procedure to be adopted but the application would be made to the court in the absence of the defence. There would be an ex parte hearing.



- There might be highly exceptional cases where the public interest would be injured even by disclosure that an ex parte application was to be made. In such cases, the application would be without notice to the defence.



It is important that if the defence is notified there is to be an ex parte PII application, the defence can address the court on the procedure to be adopted.



Q How should the court approach an application that material should not be disclosed?



A In what is now the leading case, the Lords set out in H&C the seven questions the court had to address. These are:



(1) What is the material which the prosecution seeks to withhold? (That has to be considered by the court in detail.)



(2) Is the material such as might weaken the prosecution case or strengthen that of the defence? If 'no', disclosure should not be ordered. If 'yes', full disclosure should, subject to 3, 4 and 5, be ordered.



(3) Is there a real risk of serious prejudice to an important public interest (and if so, what) if full disclosure is ordered? If 'no', full disclosure should be ordered.



(4) If the answers to 2 and 3 are 'yes', could the defendant's interest be protected without disclosure? Or could disclosure be ordered to an extent or in a way which would give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence? (That question requires the court to consider, with specific reference to the material that the prosecution seeks to withhold, the facts of the case and the defence as disclosed, whether the prosecution should formally admit what the defence seeks to establish or whether disclosure short of full disclosure might be ordered. That might be done in appropriate cases by the preparation of summaries or extracts of evidence, or the provision of documents in an edited or anonymised form, provided the documents supplied are in each instance approved by the judge. In appropriate cases, the appointment of special counsel might be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected. In cases of exceptional difficulty, the court might require the appointment of special counsel to ensure a correct answer to questions 2 and 3 as well as 4).



(5) Do the measures proposed in the answer to 4 represent the minimum derogation necessary to protect the public interest in question? If 'no', the court should order such greater disclosures as would represent the minimum derogation from the golden rule of full disclosure.



(6) If limited disclosure is ordered under 4 or 5, might the effect be to render the trial process, viewed as a whole, unfair to the defendant? If 'yes', then fuller disclosure should be ordered even if that leads, or might lead, the prosecution to discontinue the proceedings so as to avoid having to make disclosure.



(7) If the answer to 6 when first given is 'no', does that remain the correct answer as the trial unfolds, evidence is adduced and the defence advanced? (It was important that the answer to 6 should not be treated as a final once-for-all answer, but as a provisional answer that the court had to keep under review.)



If the material is to be withheld, that is not an end to the matter. The court must always have the matter under review, in particular if the material becomes important to the defence case.



Q Does the judge have to discuss with the advocates his directions to the jury?



A The directions to the jury are a matter for the trial judge, but the Court of Appeal has made it clear that if there are any potential difficulties, the judge should at all times discuss with the advocates the directions to be given, for example, if a direction is to be given that the jury can draw an inference from the defendant's silence in a police interview or a Lucas direction on the effect of lies.



Except in the most straightforward cases, the advocate should ask the judge to indicate the directions he proposes giving to the jury. Indeed, the advocate should have in mind those that he thinks should possibly be given.



It may be in any event that the judge at the end of the evidence will ask the jury to leave so that the directions can be considered. If the judge does not do so, then there is no reason why the advocates cannot discretely ask for the jury to leave. This will give the advocate the opportunity to discuss or debate with the judge the proper directions to be given in the case. Indeed, it is always worthwhile doing so as this may well affect the closing speeches.



This column was prepared by the Solicitors Association of Higher Court Advocates. For details of SAHCA, membership enquiries or advocacy questions, contact Hilary Riddle, SAHCA Administrator, tel: 01233 820676, or e-mail: hilary@hradmin.co.uk