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

News
A 1930 image of the Karl Albrecht Spiritousen and Lebensmittel shop, Essen. The shop was opened by Karl and Theo Albrecht’s mother; the brothers later founded Aldi
people
Arts and Entertainment
Standing the test of time: Michael J Fox and Christopher Lloyd in 'Back to the Future'
filmA cult movie event aims to immerse audiences of 80,000 in ‘Back to the Future’. But has it lost its magic?
Arts and Entertainment
Flora Spencer-Longhurst as Lavinia, William Houston as Titus Andronicus and Dyfan Dwyfor as Lucius
theatreThe Shakespeare play that proved too much for more than 100 people
News
exclusivePunk icon Viv Albertine on Sid Vicious, complacent white men, and why free love led to rape
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
Arts and Entertainment
Stir crazy: Noel Fielding in 'Luxury Comedy 2: Tales from Painted Hawaii'
comedyAs ‘Luxury Comedy’ returns, Noel Fielding on why mainstream success scares him and what the future holds for 'The Boosh'
Life and Style
Flow chart: Karl Landsteiner discovered blood types in 1900, yet scientists have still not come up with an explanation for their existence
lifeAll of us have one. Yet even now, it’s a matter of debate what they’re for
Arts and Entertainment
'Weird Al' Yankovic, or Alfred Matthew, at the 2014 Los Angeles Film Festival Screening of
musicHis latest video is an ode to good grammar. But what do our experts think he’s missed out?
Sport
New Real Madrid signing James Rodríguez with club president Florentino Perez
sportColombian World Cup star completes £63m move to Spain
Travel
Hotel Tour d’Auvergne in Paris launches pay-what-you-want
travelIt seems fraught with financial risk, but the policy has its benefits
Arts and Entertainment
booksThe best children's books for this summer
Life and Style
News to me: family events were recorded in the personal columns
techFamily events used to be marked in the personal columns. But now Facebook has usurped that
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
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

Sustainability Manager

Competitive: The Green Recruitment Company: Job Title: Scheme Manager (BREEAM)...

Graduate Sustainability Professional

Flexible, depending on experience: The Green Recruitment Company: Job Title: T...

Programme Director - Conduct Risk - London

£850 - £950 per day: Orgtel: Programme Director - Conduct Risk - Banking - £85...

Project Coordinator/Order Entry, SC Clear

£100 - £110 per day: Orgtel: Project Coordinator/Order Entry Hampshire

Day In a Page

Noel Fielding's 'Luxury Comedy': A land of the outright bizarre

Noel Fielding's 'Luxury Comedy'

A land of the outright bizarre
What are the worst 'Word Crimes'?

What are the worst 'Word Crimes'?

‘Weird Al’ Yankovic's latest video is an ode to good grammar. But what do The Independent’s experts think he’s missed out?
Can Secret Cinema sell 80,000 'Back to the Future' tickets?

The worst kept secret in cinema

A cult movie event aims to immerse audiences of 80,000 in ‘Back to the Future’. But has it lost its magic?
Facebook: The new hatched, matched and dispatched

The new hatched, matched and dispatched

Family events used to be marked in the personal columns. But now Facebook has usurped the ‘Births, Deaths and Marriages’ announcements
Why do we have blood types?

Are you my type?

All of us have one but probably never wondered why. Yet even now, a century after blood types were discovered, it’s a matter of debate what they’re for
Honesty box hotels: You decide how much you pay

Honesty box hotels

Five hotels in Paris now allow guests to pay only what they think their stay was worth. It seems fraught with financial risk, but the honesty policy has its benefit
Commonwealth Games 2014: Why weight of pressure rests easy on Michael Jamieson’s shoulders

Michael Jamieson: Why weight of pressure rests easy on his shoulders

The Scottish swimmer is ready for ‘the biggest race of my life’ at the Commonwealth Games
Some are reformed drug addicts. Some are single mums. All are on benefits. But now these so-called 'scroungers’ are fighting back

The 'scroungers’ fight back

The welfare claimants battling to alter stereotypes
Amazing video shows Nasa 'flame extinguishment experiment' in action

Fireballs in space

Amazing video shows Nasa's 'flame extinguishment experiment' in action
A Bible for billionaires

A Bible for billionaires

Find out why America's richest men are reading John Brookes
Paranoid parenting is on the rise - and our children are suffering because of it

Paranoid parenting is on the rise

And our children are suffering because of it
For sale: Island where the Magna Carta was sealed

Magna Carta Island goes on sale

Yours for a cool £4m
Phone hacking scandal special report: The slide into crime at the 'News of the World'

The hacker's tale: the slide into crime at the 'News of the World'

Glenn Mulcaire was jailed for six months for intercepting phone messages. James Hanning tells his story in a new book. This is an extract
We flinch, but there are degrees of paedophilia

We flinch, but there are degrees of paedophilia

Child abusers are not all the same, yet the idea of treating them differently in relation to the severity of their crimes has somehow become controversial
The truth about conspiracy theories is that some require considering

The truth about conspiracy theories is that some require considering

For instance, did Isis kill the Israeli teenagers to trigger a war, asks Patrick Cockburn