To what extent should the law on public interest immunity protect informants as a class?

Introduction

The theories of crime and punishment are used to define crime, provide justifications for punishments, explain the principles of liability that are used to enforce criminal liability against the offender and also justify the quantum of punishment. From the Natural Lawyers onwards there has been an attention drawn to theories of punishment, with different theories on the justification of punishment.

This essay considers the application of this principle for giving protection to informants. The essay first discusses the meaning and scope of the principle of public interest immunity and then discusses the protection afforded to informants under the principle. The essay submits that it is necessary to balance the competing interests of the accused and the informants in order to ensure justice in criminal cases as well as the protection of the informant who may be retaliated against by the accused. The public interest immunity cannot be given in each and every case and nor can it be made to suffer blanket denial with respect to all criminal cases. Courts must decide on the basis of the evidence before itself as to whether public interest immunity is to be given to an informant in the case or not. As such, public interest immunity to informants as a class should be avoided because this would shut out all possibility of balancing competing interests.

Public Interest Immunity- Meaning and Scope

The term ‘discovery’ is used to describe the procedure wherein the parties to a legal dispute obtain documents from each other. Before the passage of the Crown Proceedings Act 1947, the common law rule which applied in cases involving the Crown, was that discovery of documents against the Crown could not be ordered. The Crown Proceedings Act 1947, Section 28 abolished the above mentioned principle and instead provided that the Crown could be ordered by the courts to make discovery of documents. The provision excerpts below provide a fair understanding of the changes made to the principle of Crown privilege and the grounds on which crown privilege would continue to apply in cases involving discovery of documents leading to public interest violations. Section 28 provides that in any civil proceedings in which the Crown is a party, discovery of documents, production of documents for inspection; and answering interrogatories may be ordered by the court as against the Crown. Therefore, effectively Crown privilege was no longer applied in civil cases. However, the same provision allows the Crown to use the ground of public interest if, in the opinion of a Minister of the Crown, the disclosure would be injurious to the public interest.[2]

Therefore, two things are clear here: first, that the crown privilege is no longer a sufficient ground to withhold disclosure; and second, that this ground can still be used in cases where the disclosure would lead to violation of public interest. However, over a period of time, the term ‘Crown privilege’ became inappropriate or insufficient in this context because the courts came to apply the principle even in cases where the Crown was not one of the parties to the case. The principle came to be applied even in cases where the Crown was not one of the parties but nevertheless the disclosure of the documents was contrary to public interest. Thus, in Duncan v Cammell Laird and Co,[3] the House of Lords held that, even if the Crown was not a party to the proceedings, relevant documents which may be liable to production (as the Crown is not a party to the proceedings in court) should still not be produced where it is shown that disclosure would lead to injury to the public interest. It was also held that public interest can be injured by the disclosure of a document if the disclosure of its contents would lead to consequences that were injurious to public interest; or because the document was a part of class of documents which was generally considered to be outside the scope of public domain in order to ensure the proper functioning of the public service.

Although public interest immunity, which is based in the earlier ‘Crown privilege’ generally applies to civil cases, the principle can also be used in criminal cases. In R v. Governor of Brixton Prison ex parte Osman,[5] the judgement of Lord Justice Mann clearly indicates how public interest immunity may be applied in criminal cases, based upon the same principles applicable in civil cases.

The Royal Commission on Criminal Justice report[7] was influential in encouraging the government to introduce new crime control legislation, which included the Criminal Procedure and Investigations Act 1996. The Royal Commission suggested that the disclosure of unused material was heavily weighed in favour of the defendants in criminal prosecutions and there was little protection for informants or police undercover agents.[8] When the Criminal Procedure and Investigations Act 1996 was enacted, the suggestions made by the Royal Commission were reflected in the new provisions that widened the scope of public interest immunity in favour of police informants. Therefore, the present day immunity regime in favour of the police informants can be traced back in recent times to the Criminal Procedure and Investigations Act 1996. This law has restricted the availability of evidence to the defence and has also put new disclosure obligations on the accused.

Protection of Informants under Public Interest Immunity

Informants as a class is protected through the principles of public interest immunity because it is considered that the information about informants who are aiding police and the prosecution, is sensitive in nature and therefore, such information should not be subject to discovery. Therefore, information on police informants is generally protected under Section 28 of the Crown Proceedings Act 1947, which provides that although Crown privilege cannot be granted in all cases involving the Crown, it may however, be given in cases where the disclosure of information may lead to injurious consequences for public interest.

In recent times, especially since Matrix Churchill and the Scott Report, there has been a decline in the use of public interest immunity.[10] At the same time, the police is increasingly seeking to withhold information from court proceedings under the principle of public interest immunity, especially for the purpose of safeguarding information with respect to their informants in cases involving prosecution.[11] The withholding of such information also gives rise to questions regarding the sue process rights of the accused, who are unable to get discovery of information of the informants.[12] This gives rise to the competing claims between the rights of the informants and the rights of the accused. The informants’ rights arise from the need to protect them from any retaliation by the accused or others.[13] The rights of the accused are based in due process principles which ordinarily are applied to ensure that the accused is given the opportunity to review and rebut all the evidence there is against himself.[14] This would include the right to cross examine the witnesses for the prosecution. However, when the accused is unable to enforce discovery of informant’s information, he is also denied the opportunity to cross examine the informant. Therefore, the competing claims of the accused and the informant have to balanced in order to understand the extent to which the informant can be protected under the public interest immunity provisions without unduly affecting the due process rights of the accused.

There are several important objections that can be made to the application of the public interest immunity to informants as a class. First, the right of the accused to due process guarantees would require that the disclosure concerning the informant is enforced as against the police.[15] The old English maxim, "The Public Has a Claim to Every Man's Evidence", as articulated by the Duke of Argyle in 1742 in the British Parliament, would require such a disclosure to be made. Second, the problem with the application of public interest immunity principle application with respect to police informers is that the judicial control is not effective. The judiciary makes its decision on whether or not to permit public interest immunity to the police informant, based on the limited and selective information that is given to the courts by the person demanding immunity, that is, the police in cases involving police informants.[16] At the same time, there is no other external authority that sees the accountability of the possible suppression of evidence.[17] Third, the Human Rights Act 1998 read with the European Convention of Human Rights (ECHR) would require the protection of due process liberties of an accused, which he can claim are being violated by the public interest immunity application to his case.[18] In particular, the ECHR, Article 5 provides that:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.”[19]

The clause ‘procedure applied by the law’ is the same as due process of law in meaning and its spirit. This provides that the physical liberty of a person shall not be denied in an arbitrary fashion.[20] Where an accused is denied the right to discovery as against the prosecution, there is a possibility that such a denial will be contrary to his rights under the ECHR.

The clause ‘procedure applied by the law’ is the same as due process of law in meaning and its spirit. This provides that the physical liberty of a person shall not be denied in an arbitrary fashion.[20] Where an accused is denied the right to discovery as against the prosecution, there is a possibility that such a denial will be contrary to his rights under the ECHR.

With respect to the informants, it is seen that there is always a possibility that the informant is a potential victim of retaliation himself for testifying in a criminal case as against the accused. Due to this, the need to protect his privacy and the denial of publication of his information in the court proceedings may itself be essential to the protection of the right to life, liberty and security of the accused. These rights are also guaranteed by the ECHR.

It is also pertinent to note the need to provide public interest immunity in cases may itself arise from the tendency of modern policing which “no longer relies solely on detection, confession and the hope that witnesses will come forward.”[21] Pro‐active, intelligence‐led methods and the use of informants has become common in crime investigation and prosecution.[22] There is also an increase in organised crime, wherein the members of the organised crime are known to be retaliatory towards police witnesses and informants. In such a situation, informants will hesitate to pass the information on to the police. This would act as an impediment to successful indictment and prosecution. The police and the investigative agencies depend greatly on the informants, whose information help the police to carry out their own duties.[23] The protection of the informants has long been allowed by the courts in England and Wales. For instance, in Marks v Breyfus,[24] the Court of Appeal held that the Director of Public Prosecutions could withhold information about the informants. Therefore, it becomes necessary to assure potential informants that their personal information will not be disclosed during the court proceedings as such a disclosure may lead to threat to the life or security of the informant. However, this protection needs to be done while keeping in mind the need to balance the competing interests of the accused. By allowing the application of public interest immunity to the informants as a class, the court may also lead to perverse results in the case. This was seen in D v NSPCC,[25] a case where the NSPCC was allowed to withhold information regarding an informant who had wrongly averred that a woman was beating up her child. Therefore, prudence would require that the courts must balance the competing interests of the accused and the informant in order to decide whether or not to apply the public interest immunity. This was done in the case of Chief Constable of Manchester v McNally,[26] where the court had held that the claimant’s interest of fair trial outweighed the informant’s right to public interest immunity.

Conclusion

The right of informant to public interest immunity is important in order to safeguard the life and security of the informant in case of retaliation by the accused. At the same time, the interest of the accused in his own fair trial demands that he should have access to due process, which would include access to disclosure. Therefore, there are competing claims between the accused and the informant, which must be considered by the courts before deciding to apply the public interest immunity principle to deny disclosure about the informant. The rationale behind applying the principle to informants is to encourage potential informants to help in the police investigations without fear of reprisals from the accused. However, the application of the immunity should be informed by the principles of right to due process and fair trial of the accused.

Bibliography