Public-interest immunity (PII), previously known as Crown privilege, is a principle of English

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

under which the English courts can grant a

court order A court order is an official proclamation by a judge (or panel of judges) that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out ...

allowing one litigant to refrain from disclosing

evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, eviden ...

to the other litigants where disclosure would be damaging to the

public interest The public interest is "the welfare or well-being of the general public" and society. Overview Economist Lok Sang Ho in his ''Public Policy and the Public Interest'' argues that the public interest must be assessed impartially and, therefore ...

. This is an exception to the usual rule that all parties in litigation must disclose any evidence that is relevant to the proceedings. In making a PII order, the court has to balance the public interest in the administration of justice (which demands that relevant material is available to the parties to litigation) and the public interest in maintaining the confidentiality of certain documents whose disclosure would be damaging. PII orders have been used in criminal law against large organised criminal outfits and drug dealers where the identity of paid police informants could be at risk.

Seeking the order

An order that PII applies would usually be sought by the British government to protect official secrets, and so can be perceived as a gagging order. Where a minister believes that PII applies, he signs a PII certificate, which then allows the court to make the final decision on whether the balance of public interest was in favour of disclosure or not. Generally, a court will allow a claim of PII without inspecting the documents: only where there is some doubt will the court inspect the documents to decide whether PII applies. Originally, a government minister was under a duty to advance a PII point where PII could be relevant, and the court took a certificate from a minister claiming PII as final and conclusive. However, over time, there has been an increase in both the ability of a minister to make a disclosure, notwithstanding the potential application of PII, and the ability of the courts to review a claim of PII. In ''Conway v Rimmer'' 968 the House of Lords held that the courts retained the final decision on whether PII should be upheld, and, in ''R v Chief Constable of West Midlands, ex parte Wiley'' 995 the

House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminster ...

decided that a minister could discharge his duty by making his own judgment of where the public interest lies (that is, to disclose or to assert PII). In practice, this is thought to have led to a reduction in the number of cases when PII is asserted.

History

PII was previously known as Crown Privilege, and derived from the same principle as the

sovereign immunity Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, strong ...

the Crown The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has differen ...

from prosecution before the Crown Proceedings Act 1947. However, PII is not limited to the Crown (see the ''NSPCC'' case mentioned below), and cannot be waived save in exceptional circumstances. A number of PII certificates were signed in relation to the prosecutions of individuals involved in the Matrix Churchill "Arms to Iraq" case, a subject that was subsequently investigated in the

Scott Report The Scott Report (the ''Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions'') was a judicial inquiry commissioned in 1992 after reports surfaced of previously restricted arms sales to ...

Examples

*''Duncan v. Cammell Laird and Co. Ltd'' 942AC 624. The submarine HMS ''Thetis'' sank on 1 June 1939 during

sea trial A sea trial is the testing phase of a watercraft (including boats, ships, and submarines). It is also referred to as a " shakedown cruise" by many naval personnel. It is usually the last phase of construction and takes place on open water, and ...

s with the loss of 99 lives. The families of the sailors who had been killed in the disaster claimed damages from the builders,

Cammell Laird Cammell Laird is a British shipbuilding company. It was formed from the merger of Laird Brothers of Birkenhead and Johnson Cammell & Co of Sheffield at the turn of the twentieth century. The company also built railway rolling stock until 1929, ...

. The

upheld a certificate issued by the Admiralty claiming PII in relation to the plans of the submarine. The House of Lords also held that the courts should take a PII certificate at face value. *''Tomlinson v HMG''. In 1995, former MI6 officer Richard Tomlinson attempted to bring MI6 before an

employment tribunal Employment tribunals are tribunal public bodies in England and Wales and Scotland which have statutory jurisdiction to hear many kinds of disputes between employers and employees. The most common disputes are concerned with unfair dismissal, ...

to seek compensation for unfair dismissal. MI6 argued that this would "damage national security" and obtained a PII from the then Foreign Secretary Sir Malcolm Rifkind to block Tomlinson's application. Tomlinson argued vociferously that the real reason that MI6 obtained the PII certificate was to cover up their incompetent and dishonest personnel management. *''Conway v Rimmer'' 968 The House of Lords held that the courts are the final arbiters of whether PII applies or not. *''D v. National Society for the Prevention of Cruelty to Children'' 978AC 171. The

NSPCC The National Society for the Prevention of Cruelty to Children (NSPCC) is a British child protection charity. History Victorian era On a trip to New York in 1881, Liverpudlian businessman Thomas Agnew was inspired by a visit to the New Y ...

investigated an allegation that D was mistreating her child. D claimed damages, and sought documents from the NSPCC to identify who had made the allegation. The House of Lords upheld the NSPCC's claim of PII, since its legitimate role in protecting the welfare of children was clearly in the public interest and would be threatened by disclosure. *''

Air Canada Air Canada is the flag carrier and the largest airline of Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocea ...

v. Secretary of State for Trade'' 9832 AC 384. A group of

airline An airline is a company that provides air transport services for traveling passengers and freight. Airlines use aircraft to supply these services and may form partnerships or alliances with other airlines for codeshare agreements, in which ...

s claimed that the British Airports Authority had unlawfully increased

landing fee A landing fee is a charge paid by an aircraft operator to an airport company for landing at a particular airport. Landing fees can vary greatly between airports, with congested airports, ones where most of the landing slots are held by airline ...

s at the instigation of a government minister. The minister disclosed some documents, but claimed PII in respect of others. The House of Lords decided not to inspect the disputed documents, holding that inspection was only required if they were "reasonably likely" to assist or damage a party's case. *''R v Chief Constable of West Midlands, ex parte Wiley'' 9951 AC 274. The House of Lords decided that a minister could discharge his duty by making his own judgment of where the public interest lies, and was not obliged to claim PII in all cases where it may be applicable. * The Scott Inquiry found that public interest immunity certificates had been issued which withheld from defence counsel certain documents which would have exonerated the defendants in the Matrix Churchill trial. * ''R v Paul Burrell'' 002– A public-interest immunity certificate allowed the prosecution to apply to the judge for a ruling that disclosure of certain information would be harmful to the public interest and should not be made public. * ''R v Hicks, Nute and Rowe'' 002– A public-interest immunity certificate was presented to the court by the Crown Prosecution Service after about ten minutes of this hearing. A possible reason for the introduction of the PII certificate was that the

Duchy of Cornwall The Duchy of Cornwall ( kw, Duketh Kernow) is one of two royal duchies in England, the other being the Duchy of Lancaster. The eldest son of the reigning British monarch obtains possession of the duchy and the title of 'Duke of Cornwall' at ...

refuses to reveal the circumstances under which it transferred several of its properties (including

Tintagel Castle Tintagel Castle ( kw, Dintagel) is a medieval fortification located on the peninsula of Tintagel Island adjacent to the village of Tintagel (Trevena), North Cornwall in the United Kingdom. The site was possibly occupied in the Romano-British p ...

) to the care of

English Heritage English Heritage (officially the English Heritage Trust) is a charity that manages over 400 historic monuments, buildings and places. These include prehistoric sites, medieval castles, Roman forts and country houses. The charity states that i ...

. * ''R v. Yam'' 008(trial of Wang Yam for the murder of

Allan Chappelow Allan Gordon Chappelow FRSA (20 August 1919 – May/June 2006) was an English writer and photographer who lived in Hampstead, north London. He wrote books on George Bernard Shaw and specialised in portraits of writers and musicians. He was fo ...

) – In December 2007 the

Crown Prosecution Service The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions. The main responsibilities of the CPS are to provide legal ad ...

indicated it would ask for this trial for murder, burglary and deception to be held "

in camera ''In camera'' (; Latin: "in a chamber"). is a legal term that means ''in private''. The same meaning is sometimes expressed in the English equivalent: ''in chambers''. Generally, ''in-camera'' describes court cases, parts of it, or process ...

", making it the first UK murder trial ever heard behind closed doors without access by press or public. A public-interest immunity certificate was sought by the

Home Secretary The secretary of state for the Home Department, otherwise known as the home secretary, is a senior minister of the Crown in the Government of the United Kingdom. The home secretary leads the Home Office, and is responsible for all national ...

Jacqui Smith Jacqueline Jill Smith (born 3 November 1962) is a British broadcaster, political commentator and former Labour Party politician. She was Member of Parliament (MP) for Redditch from 1997 to 2010. She served as Home Secretary from 2007 to 2009 ...

; it was reported by ''

the Times ''The Times'' is a British daily national newspaper based in London. It began in 1785 under the title ''The Daily Universal Register'', adopting its current name on 1 January 1788. ''The Times'' and its sister paper '' The Sunday Times'' ...

'' on 13 December 2007 that the grounds were "on the basis of protecting national security interests and to protect the identity of informants". A further order was made under the Contempt of Court Act 1981 prohibiting the press from any speculation as to the reasons for parts of the trial being held in private. In the Court of Appeal on 28 January, the "gagging order" was upheld, with the

Lord Chief Justice Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or ...

insisting that a fair trial would be possible even if some or all of it is held "in camera". *'' R (Mohamed) v

Foreign Secretary The secretary of state for foreign, Commonwealth and development affairs, known as the foreign secretary, is a minister of the Crown of the Government of the United Kingdom and head of the Foreign, Commonwealth and Development Office. Seen as ...

'' eb 2010

European Convention on Human Rights

Article 6 of the

European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...

protects the

right to a fair trial A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge". Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, th ...

; an "implied" right stemming from this is that of "equality of arms" – the idea that hearings should be adversarial and both parties should have access to the same evidence and witnesses. The

European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...

has held that Article 6 (especially the "implied" rights) is not an absolute right and that measures restricting the rights of the defence so as to safeguard an important public interest are lawful if "strictly necessary". It is of note that fewer PII certificates have been issued in recent years. For example, MI6 have not succeeded in obtaining a PII certificate since the 1995 Tomlinson case, and have thus been subject to court scrutiny for investigations such as the inquest into the death of the Princess of Wales, and allegations that their officers partook in torture.

External links

Legal guidance
published by the

on PII in criminal proceedings
Reforming Public Interest Immunity

References