Law Report: Sensitive material need not be shown to defence: Regina v Davis and others - Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Owen and Mr Justice Curtis), 15 January 1993.

As a general rule, the Crown should notify defence counsel of any application to the court for a ruling supporting the non-disclosure to the defence of evidence for which public interest immunity was claimed. But in certain exceptional cases, where the sensitivity of the material was such that to disclose the category of material involved, or indeed even the fact that an application was being made at all, might in effect reveal what the Crown maintained should not be revealed, the Crown need not even notify the defence. But the ultimate decision on disclosure was still for the court, and if the court, on hearing the application, considered that the normal procedure should be followed, it would so order.

The Court of Appeal (Criminal Division) declined to depart from a ruling, given on 20 October 1992 by a different constitution of the court, endorsing the decision of the prosecution not to disclose certain material to the defence in the case of the three defendants, Michael Davis, Raphael Rowe and Randolph Egbert Johnson, who are now appealing against their convictions for a number of offences including murder, for which they were sentenced to life imprisonment.

Michael Mansfield QC and Alan Masters (J B Wheatley & Co and B N Birnberg & Co) for Davis and for Rowe; David Stokes QC and Maurice Aston (assigned by the Registrar of Criminal Appeals) for Johnson; Julian Bevan QC and David Waters (CPS) for the Crown.

LORD TAYLOR LCJ, giving the judgment of the court, said the procedure, when the prosecution were in possession of material they believed should not be disclosed to the defence, had recently been changed by the decision of the Court of Appeal in R v Ward (the Independent, 5 June 1992).

Previously, the decision whether to disclose was made by the prosecution in accordance with the Attorney General's guidelines of 1981 - see Practice Note (Criminal Evidence: Unused Material) (1982) 1 All ER 734; 74 Cr App R 302 - which provided by paragraph 2 that all unused material should normally be made available to the defence 'if it has some bearing on the offence(s) charged and the surrounding circumstances of the case'.

This normal rule was subject to certain discretionary exceptions, including in paragraph 6(v) a number of categories of 'sensitive' material which it would not be in the public interest to disclose.

In R v Ward, it was held that where the prosecution wished to claim public interest immunity justifying non-disclosure, it was for the court, not the prosecution, to decided whether disclosure must be made.

Mr Mansfield submitted that in all cases where the prosecution contended that public interest immunity or sensitivity justified non- disclosure, (a) they must give notice to the defence that they were applying for a ruling by the court; (b) they must indicate to the defence at least the category of the material they held; and (c), the defence must have the opportunity to make representations to the court.

Mr Bevan accepted that in most cases these requirements should be met. The problem arose where, exceptionally, the sensitivity of the material was such that to reveal its category or even the fact that the application was being made to the court, would defeat the public interest in non-disclosure. In their Lordships' judgment, the proper approach was as follows:

(1) In general, it was the duty of the prosecution to comply, voluntarily and without more, with the requirements stated in paragraph 2 of the Attorney General's guidelines.

(2) If the prosecution wished to rely on public interest immunity or sensitivity to justify non-disclosure, whenever possible, which would be in most cases, (a), (b) and (c) of Mr Mansfield's formulation would apply.

(3) Where, however, to disclose even the category of material in question would in effect reveal what the Crown contended should not in the public interest be revealed, a different procedure would apply. The Crown should still notify the defence that an application to the court was to be made, but the category of the material need not be specified, and the application would be ex parte. If the court, on hearing the application, considered that the normal procedure under (2) ought to have been followed, it would so order. If not, it would rule on the ex parte application.

(4) In the highly exceptional case where even to reveal the fact that an ex parte application was to be made might 'let the cat out of the bag', so as to stultify the application, the prosecution should apply to the court, ex parte and without notice to the defence.

Again, if the court, on hearing the application, considered that at least notice should have been given to the defence, or even that the normal inter partes procedure should have been adopted, it would so order.

In reaching these conclusions, their Lordships recognised that open justice required maximum disclosure and whenever possible the opportunity for the defence to make representations on the basis of fullest information. However, in regard to public interest immunity in criminal cases, it was implicit that the defence could not have the fullest information without pre-empting the outcome of the application.

The effect of Ward had been to give the court the role of monitoring the views of the prosecution as to what material should or should not be disclosed, and it was now for the court, not the prosecution, to decide. But Ward went too far in accepting Mr Mansfield's submission that the general rule requiring notice to the defence admitted of no qualification or exception.

Paul Magrath, Barrister

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