Law Report: Guidance provided for disclosure documents: Regina v Horseferry Road Justices, Ex parte Bennett - Queen's Bench Divisional Court (Lord Justice Simon Brown and Mr Justice Buckley), 11 November 1993

The Crown Prosecution may give voluntary disclosure of documents covered by public interest immunity provided it first obtains the approval of the Treasury Solicitor who would weigh the public interest underlying the immunity and who should maintain a record of all voluntary disclosures.

The Divisional Court gave guidance to the Crown Prosecution Service on how to deal with voluntary disclosure of documents subject to public interest immunity.

In the present case the CPS agreed that the documents wanted by the applicant, although covered by a ministerial certificate, should be disclosed to the applicant. The class of documents, consisting of communications passing between prosecuting authorities in London and prosecuting authorities abroad, would enable the Divisional Court to resolve a conflict of evidence about the circumstances in which the applicant had been brought in to the jurisdiction. The dispute, if resolved in the applicant's favour, could bring an end to criminal proceedings against the applicant.

The question raised was whether the CPS itself was entitled to take the decision to disclose class documents covered by public interest immunity without referring the matter to the court for a ruling.

Alan Newman QC and Brian Jubb (Hallinan Blackburn Gittings & Co) for the applicant; Colin Nicholls QC, Stephen Richards and Robert Ward (CPS) for the CPS.

LORD JUSTICE SIMON BROWN said that the public interest in withholding the class of documents from disclosure in the present case was so as not to divulge information useful to criminals, and not to inhibit the fullest co-operation between authorities in different jurisdictions. Such public interest in non-disclosure was neither absolute nor conclusive. It must always be weighed against any competing public interest in the administration of justice.

What documents in the class attracted was no more than a prima facie immunity from disclosure, an immunity dependent upon there being no weightier public interest requiring their disclosure. In a criminal case, the balancing of the competing public interests was subject to special considerations as the proceedings concerned a person's liberty.

Although the interests of the prosecution in using otherwise immune documents should be recognised, the public interest in the prosecution's use of documents could never have the same weight as the public interest in the defendant having a proper opportunity of establishing his innocence or furthering his defence. It was obviously more important that an innocent man be acquitted than that a guilty one be convicted. The prosecution had the further option to abandon the prosecution altogether rather than allow class documents to be disclosed.

It was necessary to protect the public interest in the immunity of the class where appropriate. It was one thing to refuse disclosure on the basis of a class claim to which exceptions were never made; quite another to do so when in reality the integrity of the class claim had been weakened by repeated past disclosures. Taking the facts of the present case, with each voluntary disclosure made, it would clearly be the more difficult to assert in a ministerial certificate 'a very real risk that (co-operation between authorities in different jurisdictions) would be withheld unless the participating authorities can be sure that the information they impart will be treated in absolute confidence and not disclosed'.

It was not necessary in every criminal case where, but for public interest immunity, documents would ordinarily fall to be disclosed as part of the material evidence gathered by the prosecution, for the CPS to seek the court's ruling. The CPS could, provided safeguards were observed, make voluntary disclosure of class documents to the defence.

Before making voluntary disclosures the CPS should first obtain the Treasury Solicitor's express written approval. The Treasury Solicitor need not act in person; a responsible member of his department should be assigned to the task. In seeking such approval the CPS should submit to the Treasury Solicitor copies of the documents proposed to be disclosed, identify the public interest immunity class into which they fall, and indicate the materiality of the documents to the particular proceedings in which it was proposed to disclose them.

Before giving his approval the Treasury Solicitor should consult any other relevant government department and satisfy himself that the balance in his view fell clearly in favour of disclosing the documents. He would have regard, inter alia, to (a) the particular class of documents, (b) their materiality to the proceedings, and (c) the extent to which disclosure would damage the public interest in the integrity of the class claim.

The Treasury Solicitor should be the readier to approve disclosure of documents likely to assist the defence case than those which the CPS wished to disclose with a view to furthering the interests of the prosecution.

The Treasury Solicitor should consider not merely the importance of the documents to the prosecution's case but also the importance of the prosecution itself: it might be preferable to abandon the case rather than damage the integrity of the class claim. The Treasury Solicitor should maintain a permanent record of all approvals given for voluntary disclosure of documents.

Although the CPS would prefer to operate a system whereby it decided when the balance clearly fell in favour of disclosure, that would not satisfactorily protect the various interests involved. If the court was not to rule (except when an objection to disclosure was maintained), then the Treasury Solicitor must be consulted.

Mr Justice Buckley agreed.

Ying Hui Tan, Barrister