Public Interest Immunity
Encyclopedia
Public-interest immunity (PII) is a principle of English common law
under which the English courts can grant a court order
allowing one litigant to refrain from disclosing
evidence
to the other litigants where disclosure would be damaging to the public interest
. This is an exception to the usual rule that all parties in litigation must disclose any evidence that is relevant to the proceedings. In making a PII order, the court has to balance the public interest in the administration of justice (which demands that relevant material is available to the parties to litigation) and the public interest in maintaining the confidentiality of certain documents whose disclosure would be damaging.
. Where a minister believes that PII applies, he signs a PII certificate, which then allows the court to make the final decision on whether the balance of public interest was in favour of disclosure or not. Generally, a court will allow a claim of PII without inspecting the documents: only where there is some doubt will the court inspect the documents to decide whether PII applies.
Originally, a government minister was under a duty to advance a PII point where PII could be relevant, and the court took a certificate from a minister claiming PII as final and conclusive. However, over time, there has been an increase in both the ability of a minister to make a disclosure, notwithstanding the potential application of PII, and the ability of the courts to review a claim of PII. In Conway v Rimmer [1968], the House of Lords held that the courts retained the final decision on whether PII should be upheld, and, in R v Chief Constable
of West Midlands, ex parte Wiley [1995], the House of Lords
decided that a minister could discharge his duty by making his own judgment of where the public interest lies (that is, to disclose or to assert PII). In practice, this is thought to have led to a reduction in the number of cases when PII is asserted.
from prosecution before the Crown Proceedings Act 1947
. However, PII is not limited to the Crown (see the NSPCC case mentioned below), and cannot be waived save in exceptional circumstances.
A number of PII certificates were signed in relation to the prosecutions of individuals involved in the Matrix Churchill "Arms to Iraq"
case, a subject that was subsequently investigated in the Scott Report
.
protects the right to a fair trial; an 'implied' right stemming from this is that of 'equality of arms' – the idea that hearings should be adversarial and both parties should have access to the same evidence and witnesses. The European Court of Human Rights
has held that Article 6 (especially the 'implied' rights) is not an absolute right and that measures restricting the rights of the defence so as to safeguard an important public interest are lawful if "strictly necessary".
It is of note that fewer PII certificates have been issued in recent years. For example, MI6 have not succeeded in obtaining a PII certificate since the 1995 Tomlinson case, and have thus been subject to court scrutiny for investigations such as the inquest into the death of the Princess of Wales, and allegations that their officers partook in torture.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
under which the English courts can grant a court order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
allowing one litigant to refrain from disclosing
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
to the other litigants where disclosure would be damaging to the public interest
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...
. This is an exception to the usual rule that all parties in litigation must disclose any evidence that is relevant to the proceedings. In making a PII order, the court has to balance the public interest in the administration of justice (which demands that relevant material is available to the parties to litigation) and the public interest in maintaining the confidentiality of certain documents whose disclosure would be damaging.
Seeking the order
An order that PII applies would usually be sought by the British government to protect official secrets, and so can be perceived as a gagging orderGag order
A gag order is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.Gag orders are often used against participants involved in a lawsuit or criminal trial...
. Where a minister believes that PII applies, he signs a PII certificate, which then allows the court to make the final decision on whether the balance of public interest was in favour of disclosure or not. Generally, a court will allow a claim of PII without inspecting the documents: only where there is some doubt will the court inspect the documents to decide whether PII applies.
Originally, a government minister was under a duty to advance a PII point where PII could be relevant, and the court took a certificate from a minister claiming PII as final and conclusive. However, over time, there has been an increase in both the ability of a minister to make a disclosure, notwithstanding the potential application of PII, and the ability of the courts to review a claim of PII. In Conway v Rimmer [1968], the House of Lords held that the courts retained the final decision on whether PII should be upheld, and, in R v Chief Constable
Chief Constable
Chief constable is the rank used by the chief police officer of every territorial police force in the United Kingdom except for the City of London Police and the Metropolitan Police, as well as the chief officers of the three 'special' national police forces, the British Transport Police, Ministry...
of West Midlands, ex parte Wiley [1995], the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
decided that a minister could discharge his duty by making his own judgment of where the public interest lies (that is, to disclose or to assert PII). In practice, this is thought to have led to a reduction in the number of cases when PII is asserted.
History
PII was previously known as Crown privilege, and derived from the same principle as the immunity of the CrownThe Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
from prosecution before the Crown Proceedings Act 1947
Crown Proceedings Act 1947
The Crown Proceedings Act 1947 is an Act of the Parliament of the United Kingdom that allowed, for the first time, civil actions against the Crown to be brought in the same way as against any other party...
. However, PII is not limited to the Crown (see the NSPCC case mentioned below), and cannot be waived save in exceptional circumstances.
A number of PII certificates were signed in relation to the prosecutions of individuals involved in the Matrix Churchill "Arms to Iraq"
Arms-to-Iraq
The Arms-to-Iraq affair concerned the uncovering of the government-endorsed sale of arms by British companies to Iraq, then under the rule of Saddam Hussein...
case, a subject that was subsequently investigated in the Scott Report
Scott Report
The Scott Report was a judicial inquiry commissioned in 1992 after reports of arms sales in the 1980s to Iraq by British companies surfaced. The report was conducted by Sir Richard Scott, then a Lord Justice of Appeal. It was published in 1996...
.
Examples
- Duncan v. Cammell Laird and Co. Ltd [1942] AC 624. The submarineSubmarineA submarine is a watercraft capable of independent operation below the surface of the water. It differs from a submersible, which has more limited underwater capability...
HMS ThetisHMS Thetis (N25)HMS Thetis was a Group 1 T-class submarine of the Royal Navy which served under two names. Under her first identity, HMS Thetis, she commenced sea trials on 4 March 1939. She sank during trials on 1 June 1939 with the loss of 99 lives...
sank on 1 June 1939 during sea trialSea trialA sea trial is the testing phase of a watercraft . It is also referred to as a "shakedown cruise" by many naval personnel. It is usually the last phase of construction and takes place on open water, and can last from a few hours to many days.Sea trials are conducted to measure a vessel’s...
s with the loss of 99 lives. The families of the sailors who had been killed in the disaster claimed damages from the builders, Cammell LairdCammell LairdCammell Laird, one of the most famous names in British shipbuilding during the nineteenth and twentieth centuries, came about following the merger of Laird, Son & Co. of Birkenhead and Johnson Cammell & Co. of Sheffield at the turn of the twentieth century.- Founding of the business :The Company...
. The House of LordsHouse of LordsThe House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
upheld a certificate issued by the AdmiraltyAdmiraltyThe Admiralty was formerly the authority in the Kingdom of England, and later in the United Kingdom, responsible for the command of the Royal Navy...
claiming PII in relation to the plans of the submarine. The House of Lords also held that the courts should take a PII certificate at face value. - Tomlinson v HMG. In 1995, former MI6 officer Richard TomlinsonRichard TomlinsonRichard Tomlinson is a New Zealand-born British former MI6 officer who was imprisoned during 1997 for violating the Official Secrets Act 1989 by giving the synopsis of a proposed book detailing his career in the Secret Intelligence Service to an Australian publisher...
attempted to bring MI6 before an employment tribunalEmployment tribunalEmployment Tribunals are tribunal non-departmental public bodies in England and Wales and Scotland which have statutory jurisdiction to hear many kinds of disputes between employers and employees. The most common disputes are concerned with unfair dismissal, redundancy payments and employment...
to seek compensation for unfair dismissal. MI6 argued that this would "damage national security" and obtained a PII from the then Foreign Secretary Sir Malcolm Rifkind to block Tomlinson's application. Tomlinson argued vociferously that the real reason that MI6 obtained the PII certificate was to cover up their incompetent and dishonest personnel management. - Conway v Rimmer [1968]. The House of Lords held that the courts are the final arbiters of whether PII applies or not.
- D v. National Society for the Prevention of Cruelty to Children [1978] AC 171. The NSPCCNSPCCThe National Society for the Prevention of Cruelty to Children is a United Kingdom charity campaigning and working in child protection.-History:...
investigated an allegation that D was mistreating her child. D claimed damages, and sought documents from the NSPCC to identify who had made the allegation. The House of Lords upheld the NSPCC's claim of PII, since its legitimate role in protecting the welfare of children was clearly in the public interest and would be threatened by disclosure. - Air CanadaAir CanadaAir Canada is the flag carrier and largest airline of Canada. The airline, founded in 1936, provides scheduled and charter air transport for passengers and cargo to 178 destinations worldwide. It is the world's tenth largest passenger airline by number of destinations, and the airline is a...
v. Secretary of State for TransportSecretary of State for TransportThe Secretary of State for Transport is the member of the cabinet responsible for the British Department for Transport. The role has had a high turnover as new appointments are blamed for the failures of decades of their predecessors...
[1983] 2 AC 384. A group of airlineAirlineAn airline provides air transport services for traveling passengers and freight. Airlines lease or own their aircraft with which to supply these services and may form partnerships or alliances with other airlines for mutual benefit...
s claimed that the British Airports Authority had unlawfully increased landing feeLanding feeA landing fee is a charge paid by an aircraft to an airport company for landing at a particular airport. Landing fees can vary greatly between airports, with congested airports, ones where most of the landing slots are held by airlines being able to charge premium prices because of supply and...
s at the instigation of a government minister. The minister disclosed some documents, but claimed PII in respect of others. The House of Lords decided not to inspect the disputed documents, holding that inspection was only required if they were "reasonably likely" to assist or damage a party's case. - R v Chief Constable of West Midlands, ex parte Wiley [1995] 1 AC 274. The House of Lords decided that a minister could discharge his duty by making his own judgment of where the public interest lies, and was not obliged to claim PII in all cases where it may be applicable.
- The Scott Inquiry found that public interest immunity certificates had been issued which withheld from defence counsel certain documents which would have exonerated the defendants in the Matrix Churchill trial.
- Crown Prosecution ServiceCrown Prosecution ServiceThe Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
v Paul BurrellPaul BurrellPaul Burrell, RVM is a former servant of the British Royal Household. He was a footman for Queen Elizabeth II and later butler to Diana, Princess of Wales...
[2002] – A Public Interest Immunity Certificate allowed the prosecution to apply to the judge for a ruling that disclosure of certain information would be harmful to the public interest and should not be made public. - Crown Prosecution ServiceCrown Prosecution ServiceThe Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
v Cornish Stannary Parliament [2002] – A Public Interest Immunity Certificate was presented to the court by the Crown Prosecution Service after about ten minutes of this hearing. A possible reason for the introduction of the PII certificate, given by the Stannary Parliament, was that the Duchy of CornwallDuchy of CornwallThe Duchy of Cornwall is one of two royal duchies in England, the other being the Duchy of Lancaster. The eldest son of the reigning British monarch inherits the duchy and title of Duke of Cornwall at the time of his birth, or of his parent's succession to the throne. If the monarch has no son, the...
refuses to reveal the circumstances under which it transferred several of its properties (including Tintagel CastleTintagel CastleTintagel Castle is a medieval fortification located on the peninsula of Tintagel Island, adjacent to the village of Tintagel in Cornwall, United Kingdom. The site was possibly occupied in the Romano-British period, due to an array of artefacts dating to this period which have been found on the...
) to the care of English HeritageEnglish HeritageEnglish Heritage . is an executive non-departmental public body of the British Government sponsored by the Department for Culture, Media and Sport...
. - Trial of Wang Yam for murder of Allan ChappelowAllan ChappelowAllan Gordon Chappelow FRSA was an award winning writer and photographer living in Hampstead. He was the author of books on George Bernard Shaw, and specialised in portraits of writers and musicians.-Life:...
[2008] – In December 2007 the Crown Prosecution ServiceCrown Prosecution ServiceThe Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
indicated it would ask for this trial for murder, burglary and deception to be held 'in cameraIn cameraIn camera is a legal term meaning "in private". It is also sometimes termed in chambers or in curia.In camera describes court cases that the public and press are not admitted to...
', making it the first UK murder trial ever heard behind closed doors without access by press or public. A Public Interest Immunity certificate was sought by the Home SecretaryHome SecretaryThe Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
Jacqui SmithJacqui SmithJacqueline Jill "Jacqui" Smith is a member of the British Labour Party. She served as the Member of Parliament for Redditch from 1997 until 2010 and was the first ever female Home Secretary, thus making her the third woman to hold one of the Great Offices of State — after Margaret Thatcher and...
; it was reported by the TimesThe TimesThe Times is a British daily national newspaper, first published in London in 1785 under the title The Daily Universal Register . The Times and its sister paper The Sunday Times are published by Times Newspapers Limited, a subsidiary since 1981 of News International...
on 13 December 2007 that the grounds were 'on the basis of protecting national security interests and to protect the identity of informants'. A further order was made under the Contempt of CourtContempt of courtContempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
Act 1981 prohibiting the press from any speculation as to the reasons for parts of the trial being held in private. In the Court of Appeal on 28 January, the 'gagging order' was upheld, with the Lord Chief Justice insisting that a fair trial would be possible even if some or all of it is held 'in camera'. - R (Mohamed) v Foreign Secretary [Feb 2010]
European Convention on Human Rights
Article 6 of the European Convention on Human RightsEuropean Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
protects the right to a fair trial; an 'implied' right stemming from this is that of 'equality of arms' – the idea that hearings should be adversarial and both parties should have access to the same evidence and witnesses. The European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
has held that Article 6 (especially the 'implied' rights) is not an absolute right and that measures restricting the rights of the defence so as to safeguard an important public interest are lawful if "strictly necessary".
It is of note that fewer PII certificates have been issued in recent years. For example, MI6 have not succeeded in obtaining a PII certificate since the 1995 Tomlinson case, and have thus been subject to court scrutiny for investigations such as the inquest into the death of the Princess of Wales, and allegations that their officers partook in torture.
See also
- English lawEnglish lawEnglish law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
- State Secrets PrivilegeState Secrets PrivilegeThe state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
– similar doctrine under United States law
External links
- Legal Guidance published by the Crown Prosecution ServiceCrown Prosecution ServiceThe Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
on PII in criminal proceedings - Reforming Public Interest Immunity
- The Use of Public Interest Immunity Claims in Criminal Cases