If the public interest immunity was originally confined to such high affairs of state, it is certain that it is no longer so confined, and lesser areas of public interest have been identified, some of which must give way to the public interes

2. Confidential reports upon which the Home Secretary made a detention order under regulation 18B of the Defence of the Realm Regulations 1939.  A case example is seen inR v. Secretary of State, ex p. Lees [1941].
3. Documents relating to the construction of a submarine: Duncan v. Cammel, Laird & Co. Ltd. [1942].
4. Government plans relating to the conduct of a military campaign in the First World War: Asiatic-Petrolium Oil Co. Ltd. v. Anglo-Persian Oil Co. Ltd. [1916].
5. Confidential documents to or from a foreign secretary concerning the interests of a foreign state in connection with a territorial dispute, as seen in Buttes Gas & Oil Co. v Hammer (No.3) [1981].

Sometimes it would be against the public interest to disclose the facts that are contained in the document.  No wartime court would have permitted proof of the method of construction of the submarine Thetis, the subject of the action in Duncan v. Cammell, Laird & Co. Ltd [1942], whether by production of the plans or by the testimony of workmen who built it.  But such a blanket ban is inappropriate in many other cases.  In Makanjuola the plaintiff alleged that she had been assaulted by a police officer.  The plaintiff sought, inter alia, the witness statements taken in the course of the investigation and the evidence given before the tribunals.  The Court of Appeal held that these documents were covered by public interest immunity. Yet in any actual trial of the action for assault, the plaintiff (and any other witness) would be able to testify as to her recollection of the assault even though these facts would have been covered in her witness statement and in any evidence to the disciplinary tribunal.  Presumably no witness could be cross-examined on any previous inconsistent statement made in a witness statement or given in evidence before the tribunal.  

There is obviously a distinction here between the Thetis situation where public interest immunity applies not only to the discovery of the documents but also to their contents - had a victim of the tragedy survived, testimony which revealed aspects of the construction of the submarine, however relevant, would be excluded as a result of the public interest rule.  Can this be contrasted with a police complaints scenario where public interest immunity applies only to the discovery of the document?  Information already in the hands of the parties, although replicated in the document, can be reproduced.  In Air Canada v Secretary of State for Trade (No 2) [1983], they sought discovery of ministerial documents which related to the formulation of the policy.  The House of Lords rejected an argument that Cabinet minutes were automatically immune from disclosure but considered that the information contained in the minutes added little to the plaintiffs’ case.

This view in Makanjuola was rejected in Conway v Rimmer [1968] where the House of Lords held that documents must be produced for inspection and if it was found that the disclosure would not be prejudicial to public interest or that any possibility of such prejudice was insufficient to justify their being withheld, disclosure should be ordered.  Conway v Rimmer is, therefore, an authority on for the proposition that documents in certain exalted spheres, such as Cabinet minutes, reports from ambassadors, communications between Ministers or between Ministers and their advisors, on the formulation or exercise of high government policy, would not be disclosed until they became of merely historical interest.

But as social engineers, judges must reconcile two principles; (i) the principle of disclosure which has as its object the disclosure of all relevant and admissible evidence and (ii) the public interest immunity claimed by the Government on the grounds of national interest or the likelihood of impairment of aspects of public service.  In reconciling these principles, judges have been compelled to examine documents in certain exalted spheres as shown in Burmah Oil v Bank of England [1980].  That the courts should be prepared to examine documents in these exalted spheres was accepted in principle in Air Canada v Secretary of State for Trade [1983]. In that case, the plaintiffs, a group of international airlines, claimed that the increase in port and landing charges at Heathrow airport were excessive and discriminatory.  They brought an action against the Secretary of Trade and the British Airports Authority alleging that the Secretary's order resulting in the increases were ultra vires.  In order to investigate the Secretary's dominant purpose, the plaintiffs sought production of documents for which the Secretary claimed public interest immunity.  Two certificates were issued by the Permanent Secretaries of the relevant government departments in support of the documents categorised as A and B.

Salako states that the documents in category A consisted of high level ministerial papers relating to the formulation of government policy whilst documents in category B consisted of interdepartmental communications between senior civil servants.  Bingham J (as he then was), was provisionally inclined to order the production of category A documents but decided to inspect them first.  He made an order for inspection but stayed the order pending the appeal.  On appeal, the House of Lords held that when the Crown objects to the production of a class of documents on the basis of public interest immunity, the judge ought not to inspect the documents in question until he is satisfied that it contains materials which, either would give substantial support to a contention of the party seeking disclosure or an issue arising in their case, or would assist any of the parties to the proceedings and that disclosure is necessary for disposing fairly the cause or matter within R.S.c. Ord. 24, r. 13 (l).  In this case, the plaintiffs have not been able to show that the documents whose production they were seeking were likely to be necessary for fairly disposing of the issue. 

In conflict with the principle that all relevant information should be disclosed to the court is the equally important idea that information should not be publicly revealed in court that is injurious to the public interest.  As already discussed, this principle cannot be waived and, if neither party to the proceedings claims the immunity, the court or another person such as a government minister should assert it.

There are two themes in the development of public interest immunity.  The first issue is the substantive one as to how wide the net of immunity is cast: what categories of information attract it?  Secondly comes a procedural point as to who should decide whether a particular document is covered by public interest immunity: is this the province of the court of trial or of the relevant minister of the Crown?  These two questions were linked in the sense that until the 1960s, there was a clear rule that where such public interest was claimed by the requisite certificate from a minister, that would be accepted by the courts.  This was normally claimed, not on the basis of the contents of the particular document, but on the class to which the document belonged.  Consequently this meant that public interest immunity (or Crown privilege, as it was known) covered a broad range of public service records that had little to do with national defence or vital state interests.

It has been a long rule of English law that in any public prosecution or information for fraud against the revenue laws, or in any civil proceedings arising from either of these, no question may be asked and new evidence given which would tend to reveal the identity of any person who has given information leading to the institution of the prosecution or the nature of that information.  Police matters in public interest immunity is claimed to protect the identity of the informer for his own safety and to ensure that the supply of information in criminal cases does not dry up.  Its origin has been traced to R v Hardy (1794) and the immunity covers not only the identity of the informer but also the identification of premises used for police surveillance such as in the case R v Rankine [1986].

There are two policies to be reconciled: the public policy that an innocent man is not to be condemned when his innocence can be proved and the public policy that the identity of the informer must be protected for his own safety and to prevent the supply of information from drying up.  In Marks v Beyfus (1890), the disclosure of the name of the informer was refused.  Contrasting in R v Agar [1990] where the judge refused the disclosure of the name of informer was quashed.  The need for a fair trial, therefore, requires that any information which impinges on an issue of interest to the defence, present and potential, as to confirm an alibi or to buttress the defence that the small amount of cannabis resin found in a criminal charge under the Misuse of Drugs Act 1971 was planted must be disclosed; otherwise the convictions would be quashed.

Police informer who voluntarily wishes personally to sacrifice his anonymity is not prevented from doing so by the automatic application of the principle of public interest immunity at the behest of the relevant police authority, as illustrated in Savage v. Chief Constable of Hampshire Constabulary [1997].

Also concerning police matters is the disclosure of documents and relevant materials, in which where the prosecution refuse on the grounds of public interest immunity to disclose relevant materials to the defence, they should weigh the non-disclosure against the importance of the documents to the defence.  Lord Taylor stated in R v Keane [1994]:

“Having examined the material which the Crown put before us, we are wholly satisfied of two matters. First, there was undoubtedly a public interest in not disclosing the material withheld by the Crown. Second, that material had it been disclosed would not have assisted the defence at all.”

In R v Ward [1993]. the conviction of the defendant was quashed because the prosecution failed in their duty, which continued during the pre-trial period and throughout the trial, to disclose to the defence all relevant materials.

In Neilson v Laugharne [1981], the Court of Appeal held that confidentiality, the need for candour and frankness and the desirability of co-operation were all factors to be considered and weighed in the balance, and it was not right to allow the plaintiff to see statements taken for use in an investigation of police conduct.  This decision was followed in Halford v. Sharples [1992], in which a woman assistant chief constable made a complaint of unlawful sex discrimination to an industrial tribunal against the police authority for failing to interview her for the position of deputy chief constable and the chief constable of her own police force for refusing to recommend her for promotion. The woman sought discovery of, inter alia, the police complaints and disciplinary files. It was held that they were similarly covered by public interest immunity. In both cases, the documents were held to belong to a class to which the immunity applied.

The turning point came in Metropolitan Police Commissioner v Locker (1993) (Employment Appeal Tribunal) where Lord Justice Knox held that public interest immunity did not attach to statements made during the course of Metropolitan Police grievance procedure initiated by a police officer alleging either racial or sex discrimination because such statements were distinguishable from statements made in complaints and disciplinary procedures.  More recently, the House of Lords in Wiley and Sunderland (1994) held that there was no general public immunity in respect of documents coming into existence during an investigation into a complaint against the police under Part 9 of the Police and Criminal Evidence Act 1984.  Lord Woolf said that whilst he agreed with Lord Hailsham's dictum in D v. NSPCC “The categories of public interest are not closed and must alter from time to time as conditions and social legislation develop” no sufficient case had been made to justify the case of public interest in Neilson.

As regards to proceedings in Parliament, according to Nokes, privileges of Parliament were guarded so jealously at one time that Parliament resented the regular publication of its proceedings.  One of the vestiges of this attitude, Nokes observes, is that as a matter of public policy reports of proceedings in Parliament are inadmissible as evidence in any proceedings, as illustrated in Church of Scientology v Johnson-Smith [1972].

The Six Factors to be Weighed in the Balance are as Follows:

1. The fact that the matters sought to be disclosed relate to high government policy, which does not confer automatic immunity.
2. The relative importance of disclosure in the context of the whole case of the party seeking disclosure (Burmah Oil v Bank of England, supra).
3. The availability of information from other sources (Air Canada v Secretary of State for Trade, supra).
4. The likelihood of reports from informants drying up if they are not assured of complete confidentiality (R v Lewes J.J. [1973]).
5. The fact that non-disclosure would in practice involve protecting wrongdoers (Norwich Pharmacal v Customs & Excise [1974])
6. The fact that the purposes of a statutory or Government inquiry will be frustrated if protection is not granted (Lonrho v Shell [1980] and Neilson v Laugharne [1981]).

Public interest immunity does not only cover the workings of central government but also local government, executive agencies, charities, professional organisations, and the police.  This is not to imply that particular organisations attract immunity.  It is the nature of the information which they hold, which attracts protection.  The mere fact that that information is confidential is insufficient in itself and there has to be a more substantial public interest.  Matters of national defence or economic policy are obvious examples. Another pervasive theme is crime detection when it concerns matters, which if public, would assist criminals or deter people from helping the police.  Such information will be subject to public interest immunity.  A further area where disclosure would be limited would involve the welfare of children.  But the scope of public interest immunity is not constrained by precedent.

In D v NSPCC [1987], the plaintiff claimed damages for injuries caused to her health by making false allegation that she maltreated her child.  The society (incorporated by Royal Charter with power to bring care proceedings under The Children and Young Persons Act 1969) sought an order for excusing it from disclosing the identity of the informer.  Lord Edmund-Davies held that where (i) a confidential relationship existed (other than of lawyer and client) and (ii) disclosure would be in breach of an ethical or social value involving public interest, the court has a discretion to uphold a refusal to disclose relevant evidence.  Again, in Re M (a Minor) (1980), it was held that public interest immunity extended to local authority social work and analogous records and that this was justified by the particular circumstances of the welfare of children.

Whether public interest immunity should or should not be extended to commercial transactions undertaken by the Government or mercantile organisations (including commercial banks) has given rise to considerable debate.  Attempts to avoid disclosure may be, and have been, asserted in two guises, such a s per Lord Denning M.R. in a dissenting judgment of the Court of Appeal in Burmah Oil and Bank of England..

There are, however, other cases worthy of note. In Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No.2) [1974] the Commissioners obtained information from customers of a company and others relevant to the company's liability for purchase tax. It was held that the Commissioners were entitled to withhold documents, which would reveal the sources of information.  This must be contasted with Norwich Pharmacal v Customs and Excise Commissioners [1974] where the appellants, the owners and licensees of a patent for a chemical compound known as furazolidone, alleged that their patent had been infringed by illicit importations of the chemical compound manufactured abroad. The Commissioners were compelled to disclose the relevant names and addresses of the importers.  In Lonrho plc v Fayed & Ors (No.4) [1994], where it was held that public interest immunity extended to documents in the hands of the Inland Revenue relating to a taxpayer's tax affairs in the absence of the taxpayer, since as a matter of public policy the state should not by compulsory powers obtain information from a citizen for one purpose and then use it for another.  However, public interest immunity does not extend to confidential reports disclosed voluntarily by a banking institution to the regulatory body of which it is a member unless it could be demonstrated that there is a need to withhold such documents as a class.  

Denying defendants access to relevant prosecution evidence on public interest grounds is not necessarily contrary to fair trial requirements. However, appropriate procedures should be in place to protect the interests of the accused.  In the absence of such measures, it would breach Article 6 of the European Convention on Human Rights to permit the trial judge to decide issues relating to non-disclosure of evidence, which may impact upon a subsequent determinative ruling on an issue of fact. The applicants in Edwards and Lewis v United Kingdom [2004] complained that the procedures adopted by the national court to determine matters of non-disclosure, which may have been relevant to defence applications to stay proceedings, failed to incorporate sufficient safeguards to satisfy Article 6.  This decision addresses the impact of non-disclosure on the equality of arms principle and raises questions concerning the role of the trial judge.

Judicial responses to miscarriages of justice in the 1990s arising from failings in disclosure represented an impressive attempt to prevent recurrence of the wrongs done. That common law expansion of disclosure obligations met with considerable criticism from the police, who claimed that the balance between defence access to material and preserving sensitive sources had swung too far, and who noted that vast quantities of information now had to be examined and disclosed.  The government's response in narrowing the prosecution obligation was criticised as “merely accepting the risk of further miscarriages as the cost of achieving economy”.  A decade later there is a danger that this cycle will be repeated in the Criminal Justice Bill.

There is a strong case to be made for extending the prosecution obligation of disclosure, and of refining the existing public immunity interest procedures. It has been suggested that the present regime can be made to work more effectively and fairly in this context provided there is adequate trust placed in the judiciary and that the defence are allowed more opportunity to play a part in the public interest immunity proceedings. These are realistic proposals for reform that could easily be accommodated in the present Criminal Justice Bill.

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