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

Arts and Entertainment
Benedict Cumberbatch has refused to deny his involvement in the upcoming new Star Wars film
filmBenedict Cumberbatch reignites those Star Wars rumours
News
Russell Brand has written a book of political analysis called Revolution
peopleFilm star says he is 'not interested in making money anymore'
News
newsMcKamey Manor says 'there is no escape until the tour is completed'
News
people

Britain First criticised for using actress's memory to draw attention to their 'hate-filled home page'

PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksAn unforgettable anthology of contemporary reportage
Arts and Entertainment
JK Rowling is releasing a new Harry Potter story about Dolores Umbridge
booksChristmas comes early for wizard fans
News
news

Emergency call 'started off dumb, but got pretty serious'

News
news
Arts and Entertainment
On The Apprentice, “serious” left the room many moons ago and yet still we watch
tv

Greatest mystery about the hit BBC1 show is how it continues to be made at all, writes Grace Dent

Voices
Hunted: A stag lies dead on Jura, where David Cameron holidays and has himself stalked deer
voicesThe Scotland I know is becoming a playground for the rich
News
i100
Arts and Entertainment
filmsOculus Rift offers breathtakingly realistic simulation of zero gravity
Sport
footballAccording to revelations from Sergio Aguero's new biography
Life and Style
tech

News
people'When I see people who look totally different, it brings me back to that time in my life'
Arts and Entertainment
A scene from David Ayer's 'Fury'
film

"History is violent," says the US Army tank commander Don "Wardaddy" Collier

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Business Analyst - Surrey - Permanent - Up to £50k DOE

£40000 - £50000 Per Annum Excellent benefits: Clearwater People Solutions Ltd:...

***ASP.NET Developer - Cheshire - £35k - Permanent***

£30000 - £35000 Per Annum Excellent benefits: Clearwater People Solutions Ltd:...

***Solutions Architect*** - Brighton - £40k - Permanent

£35000 - £40000 Per Annum Excellent benefits: Clearwater People Solutions Ltd:...

Senior Research Fellow in Gender, Food and Resilient Communities

£47,334 - £59,058 per annum: Coventry University: The Centre for Agroecology, ...

Day In a Page

Wilko Johnson, now the bad news: musician splits with manager after police investigate assault claims

Wilko Johnson, now the bad news

Former Dr Feelgood splits with manager after police investigate assault claims
Mark Udall: The Democrat Senator with a fight on his hands ahead of the US midterm elections

Mark Udall: The Democrat Senator with a fight on his hands

The Senator for Colorado is for gay rights, for abortion rights – and in the Republicans’ sights as they threaten to take control of the Senate next month
New discoveries show more contact between far-flung prehistoric humans than had been thought

New discoveries show more contact between far-flung prehistoric humans than had been thought

Evidence found of contact between Easter Islanders and South America
Cerys Matthews reveals how her uncle taped 150 interviews for a biography of Dylan Thomas

Cerys Matthews on Dylan Thomas

The singer reveals how her uncle taped 150 interviews for a biography of the famous Welsh poet
DIY is not fun and we've finally realised this as a nation

Homebase closures: 'DIY is not fun'

Homebase has announced the closure of one in four of its stores. Nick Harding, who never did know his awl from his elbow, is glad to see the back of DIY
The Battle of the Five Armies: Air New Zealand releases new Hobbit-inspired in-flight video

Air New Zealand's wizard in-flight video

The airline has released a new Hobbit-inspired clip dubbed "The most epic safety video ever made"
Pumpkin spice is the flavour of the month - but can you stomach the sweetness?

Pumpkin spice is the flavour of the month

The combination of cinnamon, clove, nutmeg (and no actual pumpkin), now flavours everything from lattes to cream cheese in the US
11 best sonic skincare brushes

11 best sonic skincare brushes

Forget the flannel - take skincare to the next level by using your favourite cleanser with a sonic facial brush
Paul Scholes column: I'm not worried about Manchester United's defence - Chelsea test can be the making of Phil Jones and Marcos Rojo

Paul Scholes column

I'm not worried about Manchester United's defence - Chelsea test can be the making of Jones and Rojo
Frank Warren: Boxing has its problems but in all my time I've never seen a crooked fight

Frank Warren: Boxing has its problems but in all my time I've never seen a crooked fight

While other sports are stalked by corruption, we are an easy target for the critics
Jamie Roberts exclusive interview: 'I'm a man of my word – I'll stay in Paris'

Jamie Roberts: 'I'm a man of my word – I'll stay in Paris'

Wales centre says he’s not coming home but is looking to establish himself at Racing Métro
How could three tourists have been battered within an inch of their lives by a burglar in a plush London hotel?

A crime that reveals London's dark heart

How could three tourists have been battered within an inch of their lives by a burglar in a plush London hotel?
Meet 'Porridge' and 'Vampire': Chinese state TV is offering advice for citizens picking a Western moniker

Lost in translation: Western monikers

Chinese state TV is offering advice for citizens picking a Western moniker. Simon Usborne, who met a 'Porridge' and a 'Vampire' while in China, can see the problem
Handy hacks that make life easier: New book reveals how to rid your inbox of spam, protect your passwords and amplify your iPhone

Handy hacks that make life easier

New book reveals how to rid your email inbox of spam, protect your passwords and amplify your iPhone with a loo-roll
KidZania lets children try their hands at being a firefighter, doctor or factory worker for the day

KidZania: It's a small world

The new 'educational entertainment experience' in London's Shepherd's Bush will allow children to try out the jobs that are usually undertaken by adults, including firefighter, doctor or factory worker