The report deals in detail with the facts - something that has been noticeably absent in the brouhaha of the past three and a half years. So what are the facts about PII certificates? What did happen involving Michael Heseltine? What advice did I give and did I get it wrong?
It is self-evident in any legal proceedings, and above all in criminal cases, that the courts must have the evidence they need to do justice. It has also been accepted by the courts that there is a public interest in the confidentiality of some kinds of material. It is the judges who have developed the concept of public interest immunity in order to reconcile these competing interests.
It is not just government documents that may need protection. Social Services records in child-abuse cases, police reports and information about police informants are common examples. PII is claimed in Crown Courts up and down the land on a daily basis.
When PII is claimed in a criminal case all the documents are shown to the judge. He must then read them to decide which should be disclosed to the defence - either because the sensitivity of the material does not seem to him very great or because, even if it is, the documents are important to the case.
The sensitivity of PII in criminal cases was well understood, and it was for that reason that in 1990 the Government sought an authoritative opinion on a range of issues from three leading experts, Michael Kalisher QC (chairman of the Criminal Bar Association 1991-93), John Laws (then Junior Treasury Counsel and now Mr Justice Laws) and Nicholas Ainley.
They advised that PII applied to criminal cases and that the principles were the same in both criminal and civil cases. The difference in a criminal case, which was recognised in the opinion, is that the courts are plainly more likely to balance the completing public interests in favour of disclosure. Their advice was fully supported by the existing case law and accords with subsequent decisions of the courts, including several judgments given by the Lord Chief Justice.
These experts also confirmed the then accepted view that a minister had a duty to put the public interest in non-disclosure before the court. He could not simply volunteer the documents unless on any balance the court was bound to order disclosure. The law on that point changed in 1994. The House of Lords decided in ex parte Wiley that ministers, although not other PII claimants, can now decide for themselves whether disclosure is in the overall public interest. This has made the system in some ways less likely to be misconstrued, though it places what can be a difficult burden on a minister.
My own first significant involvement in the Matrix Churchill case was in 1992, when I was asked to advise on Michael Heseltine's PII certificate. I had to advise on the basis of the law as it then was. The case had been brought by Customs & Excise which is an independent prosecuting authority and is not answerable to me.
Michael Heseltine believed the documents covered by his certificate were within the well-established PII classes of national security and advice to ministers. He viewed disclosure of such documents as being in principle contrary to the public interest. But his instinct caused him to think that some at least of the documents ought to be disclosed.
Yet the prosecuting counsel Alan Moses QC, a barrister of great experience and much respected at the Bar, who had been working on the case for many months, was of the view that it was by no means certain that the court would find the documents sufficiently relevant to justify disclosure. That did not provide sufficient foundation for treating the case as exceptional and for relieving Michael Heseltine of his duty to provide a certificate explaining to the court the reasons for treating the documents as confidential. This, I advised, must be done in accordance with the accepted view at that time.
However, to meet Michael Heseltine's concerns, and to point up the respective functions of the minister and the judge, his certificate was specially redrafted to emphasise that he was doing no more than his duty and was expressly leaving to the judge the question as to which document should or should not be released. The court heard arguments on the PII issues in the fortnight before the trial itself began. The outcome produced a just result.
Judge Smedley was invited by Alan Moses to read all the documents. He expressly acknowledged that the PII claims had been properly made. In his initial judgment he disclosed the "advice to ministers" documents, but was not initially persuaded of the need to disclose those relating to national security. Geoffrey Robertson QC then disclosed more detail of Mr Henderson's case. The judge re-read the remaining documents and ordered further disclosure. That procedure demonstrates not only that questions of relevance can be by no means clear-cut, but also that the advantage that a judge has over a minister in assessing the overall public interest.
Lawyers for one of the defendants in the case have publicly supported the prosecution's handling of PII in a letter written to the Times after the trial, and the QC for a second defendant has also done so in a full article.
As to the criticism that I failed to ensure that prosecuting counsel had adequate instructions, the notion that I should have been personally involved in vetting the brief is really not realistic. I had every reason to suppose that prosecuting counsel, having helped to redraft Michael Heseltine's PII certificate, was well aware of his concerns. My careful letter of advice to Michael Heseltine and his reply had both been sent immediately to the Treasury Solicitor's Department, which was responsible for briefing him.
No business, let alone government, can work on the basis that everything done by competent subordinates has to be checked. The reason Sir Richard Scott regards this as so important relates essentially to his fundamentally different view of the law. But on my advice and the generally accepted understanding, the decision on disclosure was not for Michael Heseltine but for the judge.
Nevertheless, having been alerted to Michael Heseltine's concerns, I at once called for a meeting. Alan Moses made it clear that he considered the prosecution a fair and proper one to bring to trial. The trial then ran for nearly four weeks after the PII documents had been disclosed. It was only when Alan Clark described his "economy with the actualite" that Alan Moses asked the judge to direct an acquittal.
Sir Richard Scott casts not the slightest doubt on my integrity. Nor does he suggest that I should have intervened further to stop the prosecution. His criticisms are founded on the different view that he takes of the law on PII. I remain of the belief that the advice I gave was correct.
The writer is Attorney-General.Reuse content