6. Withholding material
6.1 The authorities quoted above appear to recognise that in some circumstances material which would otherwise be disclosable may be withheld from the defence on grounds of public interest or damage to other persons or interference with their rights. This chapter is concerned with the question what public or other interests may justify non-disclosure and how such interests may be taken into account in questions of disclosure. There are two broad classes of case in which this question may arise. The first is where disclosure would be prejudicial to individuals. The second is where it would cause prejudice to the public interest in preserving security and preventing or detecting crime. Material of both types is often referred to as "sensitive" 9. In my view, however, there are important differences between them and they should not necessarily be approached in the same way. I should also say that it has to be kept in mind that sensitive material is only disclosable if it is relevant, and that in many debatable situations the real issue is one of relevancy and materiality. It is, however, in practice difficult to keep considerations of relevancy and sensitivity separate, particularly in dealing with the protection of individual privacy.
The interests of victims, witnesses and other third parties
6.2 The Crown is under an obligation to comply with Article 8 (right to privacy) and Article 2 (right to life) of the European Convention on Human Rights and in consequence is required to have regard to the interests of victims, witnesses and any other parties involved in the investigation and prosecution of crime. The obligations on the Crown have been expanded in documents such as the Council of Europe's Framework Decision on the standing of victims in criminal proceedings and Recommendations concerning intimidation of witnesses and the rights of the defence. The Crown has an obligation to protect the safety of victims and witnesses, and also to respect their privacy; for example, Article 3 of the Framework Decision requires member states to ensure that its authorities question victims "only insofar as necessary for the purpose of criminal proceedings".
6.3 It is obvious that disclosure of some types of information has the potential to expose victims and witnesses to harm. Disclosure of a witness statement may put the witness at the direct risk of intimidation or reprisals. Similarly, disclosure of sensitive video evidence given by a vulnerable witness could do great damage if it led to circulation and duplication of the video images, either as part of an effort to intimidate or out of sheer mischief. Disclosure of information such as a medical condition or a previous termination of pregnancy may expose the subject of the information to ongoing harassment or worse. Disclosure of a previous conviction of a victim or witness may do harm to the reputation or standing of the witness, out of proportion to any significance which the conviction may have for the relevant proceedings. It is therefore fair to say that victims and witnesses have much to lose from an enhanced system of disclosure of information to the accused and his representatives. It is also clear that any disclosure system which regularly and repeatedly failed to protect the rights of witnesses could have severe adverse consequences for the system of justice as a whole, if it deterred future witnesses from coming forward.
6.4 Nevertheless, it is clear in terms of the ECHR that the accused's right to a fair trial must ultimately take precedence over any other person's right to privacy. The right to a fair trial in Article 6 is unqualified whereas the right to privacy is qualified by reference to the need to protect the rights and freedoms of others. The implication for any disclosure regime is obvious. Material whose disclosure is necessary for a fair trial must always be disclosed: the need to protect the privacy of another party cannot be any kind of justification for proceeding with an unfair trial. Equally, it is imperative that sensitive information whose disclosure is not required for a fair trial should be kept confidential.
6.5 It is not always quite so easy to apply these principles as might at first appear. The fundamental issue is how in a disputed case the balance should be struck between risk of prejudice to fairness of the trial and risk of damage to victims or witnesses. 10 The problem is illustrated by the case of McGhee where the Crown sought to withhold a previous conviction of a complainer. The case is unresolved and the precise circumstances are not known, but I understand that in essence the Crown position was that the age of the conviction, and perhaps its nature, made it entirely irrelevant to any issue in the trial in question, including issues of credibility. From the defence point of view, however, it is natural to argue that any previous conviction might have a bearing on credibility irrespective of its age or nature. Similar arguments may arise in relation to medical or social work records and other information about the history of a witness. It is not possible within the scope of this report to set down rules as to how conflicts of this sort should be resolved: it will be necessary for the courts to do so on a case by case basis. I have to say, however, that some of the arguments advanced from a defence perspective in favour of unrestricted disclosure, during this review, have tended to be too dismissive of the risks to witnesses and, particularly, to victims. In my view, the submissions made by organisations representing the interests of victims and witnesses make a very powerful case for limiting the disclosure, or at least the use, of personal information to that which is strictly necessary to secure fair trials. One of the issues involved is, what are the requirements of a proper defence? It should not, in my view, be thought that it is the duty of the defence to find and try to use every scrap of personal information about a witness however faint the hope that it will have some effect on the judge or jury.
6.6 What this discussion indicates is that it is vitally important that when an issue of sensitivity arises in connection with individual protection, there should be a sufficient opportunity for discussion between prosecution and defence. In the majority of cases, where the prosecution wishes to withhold sensitive personal material about a victim or witness, which it considers of no value to the defence, it should be possible to give enough of an indication of the nature of the information to reassure the defence that nothing genuinely relevant and material is being withheld. In more difficult cases, it will be necessary to hold a public interest immunity hearing, as later discussed, to resolve the issue. Whether the issue is resolved by discussion or by a hearing, there is a risk that enough may be revealed about the nature of the material to cause some of the damage which the procedure is designed to prevent 11. Where the accused is legally represented, it can be assumed that the information will be dealt with responsibly, but there is greater difficulty where the accused is not represented, and I deal with this in Part III.
6.7 There are other persons and organisations besides the prosecution authorities who have responsibilities to protect victims and other vulnerable persons and who may be under some duty to preserve confidentiality, for example in regard to medical records. It would go beyond the remit to make any recommendations in that respect, other than to comment that care needs to be taken to ensure that when such information is needed in connection with a criminal case, only the relevant part of the record should be copied and disclosed.
Informants, intelligence and security considerations
6.8 It is well known that in recent years there have been significant changes in police methods. As a result of developments in technology and the increasing problem of sophisticated organised criminality including drug dealing and money laundering, much police work now has to be "intelligence-based". Intelligence from a number of different kinds of sources is used to identify potential criminal individuals and organisations, and to direct investigations designed to recover evidence which can be used in court. The means used to acquire evidence vary but will often include surveillance and searches in pursuance of warrants. This evidence, rather than the original intelligence, will then form the basis for submitting reports to the procurator fiscal and subsequent legal proceedings.
6.9 The police gather intelligence from a wide variety of sources including informants (now usually referred to as covert human intelligence sources ( CHIS)) and deploy various covert tactics and techniques in acquiring such information. The information is recorded on a variety of forms and databases with the vast majority finding its way onto the Scottish Intelligence Database ( SID). The police have to comply with a number of legislative safeguards and codes (see the Data Protection Act 1998, Manual of Standards, Code of Practice) and all intelligence is also bound by the Government Protective Marking Scheme which imposes conditions on the production, dispatch, receipt and destruction of such material. Much of the intelligence acquired is derived from activity authorised under the provisions of the Regulation of Investigatory Powers Act, the Regulation of Investigatory Powers (Scotland) Act ( RIPA / RIPSA) or Part III of the Police Act 1997. This activity is strictly regulated by the provisions of the respective Acts and is subject to independent, and judicial, scrutiny by the Office of Surveillance Commissioners or the Interception of Communications Commissioner's Office.
6.10 The police obviously have a duty to protect their sources and their methods of intelligence gathering, a duty which is reinforced by RIPA/ RIPSA. Compliance with these duties requires police forces to have dedicated intelligence officers who deal exclusively with such information. These officers are required to assess and "sanitise" (remove source details from) the material before making it available for operational police work, which creates a "firewall" between intelligence and the operational side of policing, in order to protect intelligence sources and methods. It would obviously be very much against the public interest for surveillance techniques to find their way into the public domain because this could compromise future operations or endanger officers deployed in such activity. Likewise any exposure of the identity of CHIS is likely to place them in serious danger. A number of contributors to the review have also made the point that repeated requests for enhanced disclosure can have the cumulative effect of revealing the identity of informants and other sensitive information, and this is a consideration which may have to be kept in mind in considering applications for disclosure.
Intercept product
6.11 Under the Regulation of Investigatory Powers Act 2000, intercept product, that is, the records of authorised interception of telephone and wireless telegraphy communications, provides an exception to the normal arrangements for both revelation to the Crown and disclosure to the defence. Apart from specific and exceptional cases, (such as a prosecution of an offence under RIPA itself) intercept product cannot be used as evidence by either side, and cannot be disclosed to the defence. Police procedures derived from RIPA require that intercept product is destroyed as soon as it is no longer needed for its authorised and intended purpose. This destruction normally takes place prior to criminal proceedings commencing. However, if any of the product appears to be exculpatory, the investigator may retain this and reveal it to the procurator fiscal.
Questions of disclosure of sensitive material - the current system in England and Wales
6.12 There is extensive experience in England of the operation of a system of public interest immunity ( PII) hearings to enable the courts to manage issues of disclosure, and in practice that system seems to operate reasonably satisfactorily. I think that it is helpful to set out the operation of the English system before attempting to make recommendations for Scotland. 12
6.13 The CPI Act 1996 (as amended) sets out the developed system in England and Wales. The Act defines disclosable material as any unused material which "might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused" 13. "Sensitive" material is defined in a code issued under the statute as any material "whose disclosure would create a real risk of serious prejudice to an important public interest". The statute and code then specify how material which is both disclosable and sensitive must be treated by the CPS.
6.14 If the CPS considers any material both disclosable and sensitive, and cannot separate out the disclosable material and make it available in a way that does not compromise the public interest, it then has three options, namely to abandon the case; or to disclose the sensitive material because the overall public interest in pursuing the prosecution is greater than that in abandoning it: or to seek a court order to withhold the material, by means of a PII application.
6.15 Initially, PII hearings were used in England and Wales to test questions of materiality more than sensitivity. At that time, the CPS made a high number of applications to withhold material which was not in fact "disclosable" as it did not meet the statutory definition. Unsurprisingly, therefore, the majority of these applications were successful, because judges ruled that the sensitivity considerations were of greater importance than the (often negligible or nil) value of the material to the defence. However, the amount of court time taken up by such PII hearings was substantial, and represented a significant cost to the system as a whole. In fact, the CPS was criticised for making PII applications where the material to be withheld did not meet the disclosure test. Later, following the House of Lords decision in R v H and C which confirmed that the prosecutor is only required to disclose material which satisfies the statutory definition, there has been a sharp decline in the number of PII applications by the CPS. This has had the corresponding effect of decreasing the proportion of successful applications as the court is now only considering material that either undermines the Crown case or assists the defence case.
6.16 I accept that the earlier practice in England and Wales caused difficulties for the CPS and the court, and that these were at times quite severe. Nevertheless, in my view, there are good reasons for allowing, at least initially, wider use of PII hearings, even for material which the prosecutor does not consider disclosable, especially when the defence is not aware of the existence of the material. This would enable the court to check the prosecutor's combined judgement on whether the material is disclosable as well as sensitive. It would perhaps also contribute to building up trust in the fair operation of the system, the importance of which has previously been emphasised. Under the English and Welsh system, if the CPS considers material to be both sensitive and non-disclosable, and holds that view in the light of the defence statement, the defence is not normally told of its existence. There is inevitably a point at which such a judgement has to be made, but initially the COPFS should be prepared to allow the court to contribute to the process of establishing a common well understood practice.
6.17 Under the current arrangements there are three types of PII hearing, depending on the level of sensitivity:
- Type 1 (inter partes): In this case, the prosecutor informs the defence of the category of material at issue, and the defence is allowed to make representations at an inter partes hearing.
- Type 2 ( ex parte): The prosecutor informs the defence that an application is being made, but gives no details of the category of material. The defence may make broad statements to the court but the hearing then proceeds in the absence of the defence and accused .
- Type 3 ( ex parte): The defence is not notified; hearing takes place entirely in their absence. These are the most serious cases and the CPS rarely uses this route. (The European Court has not ruled specifically on whether type 3 procedures are Convention compliant. Clearly, if the defence does not know that a PII application has been made, it is not able to launch an appeal ).
6.18 The PII hearing is held before the judge who is to conduct the trial. The judge examines the material at issue in the context of the case and it is open to the court to order that the prosecution cannot proceed without full disclosure; or that the case may continue without disclosure of part or all of the material at issue. To reach the latter conclusion, the court must be satisfied that it will still be possible to hold a fair trial in the absence of disclosure of the material. The court can only reach this conclusion if it considers, in the context of the case as a whole, that a fair trial is still possible, ie that the sensitive disclosable material is of marginal importance and not capable of affecting the outcome.
6.19 The court may revise its decision during the subsequent course of the trial, if subsequent developments cast doubt on the conclusion that the accused can still have a fair trial without the sensitive material being disclosed. In practice such revisions of PII decisions are very rare, but they are possible because the trial judge, having conducted the PII hearing, is aware of and able to review the material that has been withheld throughout the trial. The fact that it is the trial judge who examines the material has been recognised in a number of ECtHR cases as an important part of the English system.
6.20 In R v H and C, the House of Lords specified a checklist of questions that should be considered by the court in PII hearings. This is included at Annex 3 and is now followed in PII hearings in England and Wales. In addition to the points already discussed, the key additional requirement is that the court must check that any proposed withholding of material represents the minimum derogation necessary to protect the public interest in question.
Special Counsel
6.21 For some time, judges in England and Wales have had power to call for special counsel to safeguard the interests of the defendant in ex partePII hearings (ie type 2 and type 3 hearings). At present this power is normally used in certain categories of cases involving national security, such as cases involving offences under the Terrorism Act 2000. Special counsel are appointed and funded by the Attorney General. The purpose is to permit the retention of a Chinese wall between the defence and any sensitive material, while allowing the interests of the defence to be represented at the PII hearing. Special counsel can engage in adversarial argument about the strength of public interest in keeping the material secret, and, briefed by the defence, draw attention to any particular issues to which the material was relevant. Communication between the defence and special counsel is, however, a one way street. Special counsel are not permitted to inform the defence of the nature of the sensitive material. One implication is that the defence cannot tailor their arguments for disclosure to the nature of the sensitive material.
6.22 There has been some debate over whether special counsel should be used more widely in type 2 and 3 hearings, in the interests of fairness. In Jasper v United Kingdom [2000] 30 EHRR 441, a substantial minority of the ECtHR thought that this was an appropriate solution to type 2 situations in general. However, in R v H and C, the House of Lords held that, when applied correctly, the existing provisions in England and Wales for dealing with PII hearings were sufficient to comply with Article 6 of the Convention and that, in the vast majority of cases, the interests of the accused will be sufficiently protected by the steps set out in the checklist at Annex 3. They therefore held that appointment of special counsel should only be ordered if the trial judge was satisfied that no other course would adequately meet the overriding requirement of fairness to the defendant. On this view, the use of special counsel will always be exceptional and a course of last resort.
Discussion
6.23 The problem of handling sensitive information can be simplified if a clear view is taken as to what types of material require to be disclosed. If, as I recommend, this is defined in the manner discussed in chapter 5, it is probable that the majority of sensitive information will not have to be treated as disclosable at all, and the dilemma about its disclosure would not then arise. However, in consequence of the developments in police work and in relation to rights of privacy previously discussed, it is certain that there will be some cases in which the dilemma will be unavoidable and, in the nature of things, these will often be complex and high-profile cases. In approaching such cases, the working assumption has to be that if there is material which tends to exculpate the accused, it is likely to be impossible to have a fair trial without it. The initial practical problem therefore then becomes one of finding ways of making as much as possible of such "sensitive" disclosable material available to the defence and the court without significant damage to the interests which require protection. Straightforward "redaction" (see chapter 14) provides one means of doing this. In more complicated cases it may be possible to take steps such as making a formal statement of the content of intelligence without disclosing its source; or perhaps dropping an item from the indictment if the sensitive material is only relevant to one aspect of the case. In these and other similar ways the need for PII hearings can and should be minimised.
6.24 The check-list set out in R v H and C requires the court to consider the material which the prosecution seek to withhold in detail, to decide whether it is truly disclosable as defined, and if so to order disclosure unless there is a real risk of serious prejudice to an important public interest. If there is such a risk, the court must consider whether the defendant's position can be protected without disclosure or whether disclosure can be ordered in such a way or to such an extent as to give adequate protection both to the public interest and to that of the defence, and this involves analysis of the respective cases and the possible use of summaries or edited versions of evidence. The derogation from full disclosure must be the minimum necessary and the pre-eminence of the requirement of a fair trial is preserved. This gives clear instructions as to how the court should proceed, but the position remains that, so far, the UK authorities have not specifically answered the question whether it is conceivable that material which does tend to exculpate the accused may be withheld. It is clear from Rowe and Davis that the Crown cannot withhold such material at its own hand. It is less clear whether it can be withheld with the authority of the court.
6.25 While in theory it might be possible to say that some material which does have a tendency to exculpate could be regarded as of such minor importance in the context of the whole prosecution that withholding it would not render the trial unfair, all the prosecution authorities who have contributed to this review accept that if the problem cannot be solved in one of the ways discussed below, the prosecution may be unable to proceed. Nevertheless, as has been said earlier, both the European and the UK decisions recognise that the defence right to disclosure is not absolute and that there may be circumstances in which material otherwise disclosable can be withheld from the defence in order to protect some other human right, such as the right of witnesses to privacy and safety, or public interest, such as the confidentiality of police methods or the identity of sources of information. It cannot therefore be assumed that the problem will not have to be considered at some time.
6.26 I have already stressed that when a court has to consider whether to order disclosure of information for which immunity is claimed, the first question must be, as emphasised in R v H and C, whether the information is actually disclosable, in the sense previously discussed. That may seem too obvious to require repetition, but it appears that in a number of the cases in which PII has been discussed, the argument, properly analysed has really been about relevancy and disclosability. If the information is disclosable, then the court will encourage the prosecution to look for ways in which the defence can be provided with the benefit of the information by a means or in a form which avoids the damage to the competing interest, as by concealing the identity of an informant, but if no satisfactory method can be found then, according to the authorities, the court has to carry out a "balancing exercise" to determine whether disclosure should be ordered.
6.27 In other settings, courts frequently have to carry out a balancing exercise in reaching a decision. In the ordinary case, however, the exercise involves comparing like with like. For example, in deciding whether or not to grant interim interdict, the court has to balance the economic damage which one party will suffer if the interdict is granted with the economic damage which the other will suffer if it is not. In deciding questions to do with the custody of children, the factors to be weighed are the material and emotional benefits and disadvantages for the child which are to be anticipated. One difficulty about the disclosure issue is that the potential damage to the defence by non-disclosure and the potential damage to other interests by disclosure are of different kinds and not strictly comparable. There is therefore an issue as to how the balancing exercise can be carried out, and the authorities so far have not resolved it.
6.28 In addition, there is an important issue about the kind of decision which may legitimately be made by a judge in the absence of defence representation. This problem can best be approached by comparing two ECtHR decisions. In Jasper v United Kingdom, the facts were, in very brief outline, that a consignment of refrigerated meat, in which a large quantity of cannabis was concealed, had been imported into the UK. The accused collected the consignment and drove it to a garage where he spent some time. He was arrested on leaving the garage and it was found that some of the cannabis in the consignment had been opened and left to defrost. The accused's defence was that he was only a haulage contractor and had not known of the cannabis. Before the trial, the prosecution made an application for evidence to be withheld from disclosure, which was granted. The defence had an opportunity to explain to the judge what their position was, but the nature of the material withheld was never disclosed, other than to the judge. The material part of the majority judgment is as follows:
"53. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since as a general rule it is for the national courts to assess the evidence before them. In any event, in many cases, such as the present, where the evidence in question has never been revealed, it would not be possible for the Court to attempt to weigh the public interest in non-disclosure against that of the accused in having sight of the material. It must therefore scrutinise the decision-making procedure to ensure that, as far as possible, it complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused.
"55. The Court is satisfied that the defence were kept informed and permitted to make submissions and participate in the above decision-making process as far as was possible without revealing to them the material which the prosecution sought to keep secret on public interest grounds. Whilst it is true that in a number of different contexts the United Kingdom has introduced or is introducing a "special counsel", the Court does not accept that such a procedure was necessary in the present case. The Court notes in particular that the material which was not disclosed in the present case formed no part of the prosecution case whatever and was never put to the jury…
"56. The fact that the need for disclosure was at all times under assessment by the trial judge provided a further, important, safeguard in that it was his duty to monitor throughout the trial the fairness or otherwise of the evidence being withheld. It has not been suggested that the judge was not independent and impartial within the meaning of Article 6(1). He was fully versed in all the evidence and issues in the case and in a position to monitor the relevance to the defence of the withheld information both before and during the trial. Moreover it can be assumed - not least because the Court of Appeal confirmed that the transcript of the ex parte hearing showed that he had been "very careful to ensure and to explore whether the material was relevant or likely to be relevant to the defence which had been indicated to him" - that the judge applied the principles which had recently been clarified by the Court of Appeal, for example that in weighing the public interest in concealment against the interest of the accused in disclosure, great weight should be attached to the interests of justice and that the judge should continue to assess the need for disclosure throughout the progress of the trial. The jurisprudence of the English Court of Appeal shows that the assessment which the trial judge must make fulfils the conditions which according to the Court's case law are essential for ensuring a fair trial in instances of non-disclosure of prosecution material. The domestic trial court in the present case thus applied standards which were in conformity with the relevant principles of a fair trial embodied in Article 6(1). Furthermore, during the appeal proceedings the Court of Appeal also considered whether or not the evidence should have been disclosed, providing an additional level of protection for the applicant's rights."
6.29 I would note, however, that the decision was reached by nine votes to eight in the Grand Chamber of the ECtHR and that the minority view, very forcefully expressed was that the procedure could not be said to respect the relevant principles: -
".. given that the prosecuting authorities were provided with access to the judge and were able to participate in the decision-making process in the absence of any representative of the defence. We do not accept that the opportunity given to the defence to outline their case before the trial judge took his decision on disclosure can affect the position as the defence were unaware of the nature of the matters they needed to address. It was purely a matter of chance whether they made any relevant points."
6.30 Although the minority observed that it is not for the ECtHR to lay down particular procedures, it is fairly clear that they thought that the special counsel system should have been applied.
6.31 The contrasting case is Edwards and Lewis v United Kingdom [2005] 40 EHRR 24. Each of the applicants had been arrested following a surveillance and undercover operation. In one case, the applicant had been charged with a drugs offence; in the other, the offence concerned counterfeit currency. Both applicants maintained that they had been victims of entrapment and that they could not have a fair trial because of the activities of undercover police or participating informers. In both cases, applications by the prosecution to withhold material evidence were granted. The Court referred to the principles established by its previous decisions, including Jasper, but held that in these cases there had been breaches of Article 6(1). The material parts of the judgment are as follows:
"51. As the applicants point out, it is impossible for this Court to determine whether or not either applicant was the victim of entrapment, contrary to Article 6, because the relevant information has not been disclosed by the prosecuting authorities. It is, therefore, essential that the Court examine the procedure whereby the plea of entrapment was determined in each case, to ensure that the rights of the defence were adequately protected.
"56. Under the English system of trial by jury, it is the jury which decides upon the guilt or innocence of the accused. The Court considered it material, in finding no violation in Jasper v the United Kingdom, that the material which was withheld from the defence and which was found by the trial judge to be subject to public interest immunity formed no part of the prosecution case whatever and was never put to the jury.
"57. In the present case, however, it appears that the undisclosed evidence related, or may have related, to an issue of fact decided by the trial judge. …. In order to conclude whether or not the accused had indeed been the victim of improper incitement by the police, it was necessary for the trial judge to examine a number of factors, including the reason for the police operation, the nature and extent of police participation in the crime and the nature of any inducement or pressure applied by the police. Had the defence been able to persuade the judge that the police had acted improperly, the prosecution would, in effect, have had to be discontinued. The applications in question were, therefore, of determinative importance to the applicants' trials, and the public interest immunity evidence may have related to facts connected with those applications.
"58. Despite this, the applicants were denied access to the evidence. It was not, therefore, possible for the defence representatives to argue the case on entrapment in full before the judge. Moreover, in each case the judge, who subsequently rejected the defence submissions on entrapment, had already seen prosecution evidence which may have been relevant to the issue."
6.32 In these circumstances, the Court held that the procedure did not comply with the requirements of adversarial proceedings and equality of arms and did not provide adequate safeguards to protect the interests of the accused, with the consequence that there had been a breach of Article 6.
6.33 These cases show that, although the system of application by the prosecution to the court in England and Wales seems to have worked reasonably well and has survived some Article 6 challenges, it is by no means free from problems. There are persistent doubts, despite R v H and C, as to whether the system, particularly in relation to type 3 applications, is Article 6 compliant. 14 I have to say that my personal view is that these doubts may very well be justified, as regards type 3 and even type 2 cases, and that the fact that the initial decision whether or not to make an application at all lies with the prosecutor is a weakness in the system. As police work is increasingly based on intelligence and covert techniques, including the use of participating informants, the sort of difficulty which occurred in Edwards and Lewis of distinguishing matters which the judge can decide from those which he cannot, is likely to recur. There is another possible difficulty in that it is conceivable that the material shown to the judge may include material which is prejudicial to the accused, which would place the judge in a difficult position and perhaps require him to recuse himself.
6.34 I should add that there are other features of the use of type 3 applications with which I do not feel comfortable. Prosecuting counsel, it appears, may be in the position of approaching the judge on a number of occasions during a trial to discuss questions bearing on disclosure. In a type 3 case, the defence will not be told that the approach is being made, and, it has been said, counsel may even have to take care to prevent the defence noticing that he has approached the judge. This kind of behaviour seems to me difficult to reconcile with the responsibilities of counsel to one another as traditionally understood.
6.35 In trying to work through this set of problems as a whole, I have found it increasingly difficult to believe that the system of PII hearings provides an adequate and satisfactory long term solution for the dilemmas created by the competing pressures discussed in the last few paragraphs. It seems to me to be likely that, in cases in which the problems do arise directly, there will be a risk that the result will be an untidy compromise or fudge. I also think that the disclosure requirements of the ECHR, as they have been interpreted, would sit much more easily with a system in which the whole investigation of crime, or at least serious crime, was under judicial supervision. 15 If the role of the defence in carrying out independent investigation is reduced, there is likely to be an increased stress on the prosecution's duty to carry out all reasonable lines of enquiry, and resulting pressure in the same direction. There are huge difficulties in ensuring that the protection necessary for informants and covert operators is provided without prejudicing the legitimate interests of the defence. The role of the judge in deciding the issues which may arise is not well-defined and there are no clear rules to be applied. These problems, it seems to me, may have to be approached on a wider basis than disclosure in isolation, and to be thought through in terms of finding ways to secure fairness in the whole process of intelligence-based and covert investigation as well as prosecution. Any move in that direction would, however, have implications extending well beyond mere questions of disclosure.
6.36 Nevertheless, I have come to the conclusion that, despite the uncertainties to which I have referred, I should recommend the introduction of legislation to provide for a system of PII applications on the same lines as that operating in England and Wales. I discuss in chapter 14 the steps which can be taken to try to reduce the need for such applications, but there will inevitably be cases in which the issues cannot be entirely resolved. I do not see that there is any practicable alternative in the short or medium term. I have hesitated as to whether that recommendation should include type 3 applications, but it has been strongly urged by police and security organisations that they should be included. As I understand the position, there are now very few type 3 applications and I hope that their use would be severely discouraged, except in the most unusual cases.
6.37 The kind of jurisdiction which the court would be expected to exercise in PII cases if the English model were followed would be new to Scotland and it is not easy to assess how it would be received and what changes in attitudes might be required. I am aware that there may be some anxiety among judges that in exercising this kind of jurisdiction they would become unduly close to the prosecution and could almost be seen as cooperating with it. I have had some sympathy with these concerns, particularly in relation to type 3 applications. The jurisdiction may, however, perhaps be seen as a development of the duty which has always lain on the judge to take care to ensure that there is a fair trial. In doing so, in the past the judge has been primarily concerned with what happens in court, unless some specific defence of entrapment or the like is raised. What is really involved in the PII process is that the judge is required to ensure that the process of prosecution is fair. If so, the judge may have to be prepared to take an initiative to investigate potential unfairnesses.
6.38 For example, it is not uncommon for it to become obvious in the course of a trial that the police investigation leading to the identification of the accused must have been sparked off by information from some source. Normally, it is not relevant to investigate what that information might have been, if it does not form part of the prosecution case. Circumstances might however arise in which the judge might feel that it was essential to know what the origin of the investigation had been, and it might therefore be appropriate that it should be recognised that he is entitled to require the prosecution to provide that information, even in the absence of some PII application by the Crown.
6.39 Finally, a further aspect of this is that judges should be alert to consider, and even suggest, reasonable requests by the defence for hearings outside open court. If the PII process were seen as one application of an independent obligation and function of the judge to scrutinise the fairness of the whole prosecution process, the objections to it might be reduced, if not entirely eliminated.
Recommendations
6.40 Legislation should provide for a system of "Public Interest Immunity" hearings in Scotland, along the lines of the English model. The trial judge or sheriff should conduct the hearings, and the use of ex-parte applications and special counsel should be possible when necessary. This facility should extend to both solemn and summary cases.